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Dr Omar Hasan Kasule[1], Sr.; M B Ch B, M P H, Dr P H (Harvard) Professor of Medicine, Universiti Islam Antarabangsa PO Box 70 Jalan Sultan Petaling Jaya 46700 MALAYSIA Fax 60 3 757 7970 (Incomplete draft of paper written for the International Seminar on Organ Transplantation and Health care Management from an Islamic Perspective 29-30 July 1996 Jakarta Indonesia)
ABSTRACT
1. The paper identifies and critically analyzes medical, legal, and ethical issues in the motivation, execution, and after-effects of transplantation of organs and tissues (human and non-human, living and dead) into living humans using the Purposes of the Law (maqasid al sharia) and Principles of Figh (al qawaid al fiqhiyyat al kulliyat). II. Under the PURPOSE OF MAINTAINING LIFE (hifdh al nafs) There should be no injury to the health and human dignity of both the donor and the recipient. III. The associated side-effects, complications, and abuses for both the recipient and the donor are treated under 2 Principles of Law: hardship (mashaqqa) and injury (dharar). Under the PRINCIPLE OF HARDSHIP: necessity and hardship legalize what would otherwise be objectionable or risky (al dharuurat tubiihu al mahdhuuraat) , lowering donor risk has precedence over benefit to the recipient (dariu al mafasid muqaddamu ala jalbi al masaalih), the complications and side-effects to the recipient must be a lesser harm than the original disease (ikhtiyaar ahwan al sharrain). Under the PRINCIPLE OF INJURY: transplantation relieves an injury to the body (al dharar yuzaal) in as far as is possible (bi qadr al imkaan) but its complications and side-effects should be of lesser degree than the original injury (al dharar la yuzaal bi mithlihi). Abuse of transplantation by abducting or assassinating people for their organs could lead to complete prohibition under the principles of dominance of public over individual interest (al maslahat al aamat muqaddamat ala al maslahat al khhasat), prevention of harm has priority over getting a benefit (dar’u al mafaasid awla min jalbi al masaalih), and pre-empting evil (dariu al mafasid). IV. The principles of custom and certainty are invoked in the definition of death and thus the earliest time for organ harvesting. Under the PRINCIPLE OF CUSTOM (al aadat), brain-death does not fulfill the criteria of being a widespread, uniform, and predominant customary definition of death which is considered a valid custom (al aadat muhakkamat). The successes of biotechnology in transplantation and other fields introduces a strong doubt (shakk) in the irreversibility of brain-death. Under the PRINCIPLE OF CERTAINTY (yaqeen), existing customary definition of death should continue in force until there is compelling evidence otherwise (al asl baqau ma kaana ala ma kaana). V. Selling organs could open the door to criminal commercial exploitation and may be forbidden under the purpose of maintaining life, the principle of preventing injury, the principle of closing the door to evil (sadd al dharia), and the principle of motive. Protecting innocent people from criminal exploitation is a public interest that has priority over the health interests of the organ recipient. The PRINCIPLE OF MOTIVE (qasd) will have to be invoked to forbid transplantation altogether if it is abused and is commercialized for individual benefit because the purpose will no longer be noble but selfish. Matters are to be judged by the underlying motive and not the outward appearances (al umru bi maqasidiha) VI. The concepts of LEGAL COMPETENCE (ahliyyat) and FREE CONSENT(‘adam al ikraah) are invoked for organ donors. In order to avoid any doubts, decisions about donation of organs should be made only by those giving the organs not because they own the organs but because, of all the players involved, they are the most intimately concerned and have no conflict of interest. They must however fulfill the conditions of legal competence which are: adulthood, soundness of mind, and no coercion. This practically excludes harvesting organs of minor children, the insane, or the unconscious VII. The paper concludes with the observation that most outstanding ethical and legal problems of transplantation are temporary, they will disappear in the near foreseeable future when medical science advances to use xenografts or artificial organs. The issues of definition of death and the possible abuse of the transplantation process by organized crime are two outstanding issues that could lead to prohibition of transplantation. (Read more...)
[1] Dr Omar Hasan Kasule, Sr. is a physician epidemiologist trained at Harvard University and currently a Professor in the Faculty of Medicine at the International Islamic University in Malaysia. Dr Kasule had a traditional education in Arabic and Islamic Sciences before embarking on medical studies. He has been involved in several conferences and seminars on Islamic aspects of medicine since the early eighties. Professionally he has was a teaching fellow at Harvard University and was later involved as a consultant in field and clinical epidemiological projects. He was principal investigator of a national survey of sickle cell disease carried out by the National Institutes of Health of the US Federal Government. He worked as a quality assurance medical officer for the governments of the District of Columbia, Pennsylvania, and Maryland. He is currently working on a book on the Islamic input into the medical curriculum of the newly-established medical school at IIU. Besides his medical work, Dr Kasule has been involved in Dawa and leadership training programs in many parts of the Muslim world.