In the name of Allāh, Most Gracious, Most Merciful

OPT-OUT ORGAN DONATION LAW FAQs

بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ

OPT-OUT ORGAN DONATION LAW FAQs

 

A lot of confusion and uncertainty still exists amongst the U.K. Muslim population regarding organ donation despite several years of targeted campaigns and education programs on the subject.

One of the reasons is that some of these targeted campaigns and education programs aimed at U.K. Muslims do not reveal the whole truth in a transparent manner because their main objective is to promote organ donation which creates institutional mistrust, as well as mistrust of health care professionals involved in the organ donation-transplantation programs which in the long run can be counter-productive.

My name is Dr. Abid Hussain, I am a consultant anaesthetist in the NHS, I have been directly involved in whole organ retrieval-donation-transplantation, both living and dead, for over 20 years. During my career, I have worked in children’s, adults, cardiac and neuro-surgical intensive care units, and been involved in brainstem testing and removal of life support systems. I have worked in the U.K. and in Riyadh, Saudi Arabia (KFSH&RC) for many years. My objective in writing this piece of work is simply to seek to provide you with information which will allow allow Muslims to make an informed choice regarding deceased organ donation.

With the coming of the new opt-out organ donation law in the U.K. (Wales 2015, England 2020 and Scotland 2021) it has become necessary for all Muslim adults to understand what their religion says about organ and tissue donation after death and what the new opt-out organ donation law means for them.

This is a humble attempt by me to give an overall view of the fatāwa issued for U.K. Muslims on this important issue of deceased organ donation from the deceased in simple language for the benefit of Muslims in the U.K. 

I run the website FreeIslamicWill.com and you can read the articles on there to get some information about me so that you know where I am coming from.

Muslims should follow the rulings of their religious scholars (muftis) when it comes to religious issues such as organ donation. The mufti (Muslim jurist) takes into consideration, not just the narrow legal framework surrounding organ donation but other factors operating within the local society before issuing his fatwa. The answer you get from mufti (Muslim jurist) can often depend very much on the question you ask and how you ask it.

It must be stressed that deceased organ donation is a difficult and complicated subject, some issues are grey without clear cut answers and in some instances, there never will be clear cut answers.

 


Frequently asked questions by Muslims

Q1. What is the Islamic ruling on the removal of organs from a dead person, is it ḥalāl or ḥarām?

A1. All Muslim jurists consider the removal of organs from a dead person to be ḥarām (forbidden).

 

Q2. Is it permissible to donate organs after one has died?

A2. Yes, it is permissible, according to some Muslim jurists, but only under certain conditions. Some of these Muslim jurists not only consider deceased organ donation as permissible but recommended or highly recommended as there is potential to save other peoples lives.

 

Q3. Should I opt-in or opt-out of the NHS organ donation in the U.K.?

A3. If the conditions for permissibility are fulfilled and you follow the rulings of those Muslim jurists who consider deceased organ donation as permissible then you can consider opting-in to donate your organs after you have died.

If you follow the rulings of those Muslim jurists who consider deceased organ donation as ḥarām (forbidden) then you should opt-out.

You can see questions directly related to the new opt-out organ donation system (Max and Keira's law) from Q18 onwards.

 

Q4. Is there a division between the different madhāhib (Islamic schools of thought) regarding deceased organ donation?

A4. Some people say there is not, but in reality, there appears to be. The mainstream opinion of Ḥanafī jurists from the Indo-Pak region and elsewhere regarding deceased organ donation is that it is not permissible (it is harām). The ruling of the mainstream Ḥanafī jurists has been highlighted by Mufti Amjad Mohammed (a Ḥanafī jurist based in the U.K.) and been signed by over 50 U.K. Muslim scholars

It should be pointed out that the majority of the Muslims in the U.K. are from the Indo-Pak region background so most of the Muslim scholars are also from the Indo-Pak background (i.e. Ḥanafī jurists). Examining only the fatāwa of the U.K. Muslims jurists can thus give a skewed picture as to the overall view of Muslim jurists worldwide. There are some eminent Muslim scholars in the U.K. from the Middle East who hold a different viewpoint on deceased organ donation than the Ḥanafī jurists. A compilation of fatāwa from around the world on the subject is available on this website here.

 

Q5. Is it necessary to follow your own madhhab (Islamic school of thought) in an issue such as organ donation?

A5. If you wish to be consistent in your application of religious legal theory, i.e. applying the same principles, then you should. Also, as a general rule, you should only borrow a fatwa (ruling) from another madhhab if there is no ruling on the issue in your own madhhab.

For instance, a few years ago, the Ḥanafī jurists in the U.K. of Indo-Pak origin declared the Fluenz® flu vaccine to be ḥarām, this was the legal opinion promoted by MCB (Muslim Council of Britain), even though in 1995 in Kuwait at a meeting of over 100 leading Muslim jurists and experts from around the world at the 8th Islamic Organisation for Medical Sciences (IOMS) stated that porcine gelatine in vaccines is judicially pure and permissible to use. Similarly, when it comes to the slaughtering of animals, and numerous other issues, Muslims in the U.K. from Indo-Pak background tend to stick to the views of their own scholars (madhhab) from Indo-Pak background.

Also, it is much better to follow the fatāwa of local Muslim jurists rather than importing fatāwa from other lands. Muslim jurists issue fatāwa not just based on the application of religious legal theory but they also consider the state and needs of the local society. This requires a deep understanding of Islamic law.

 

Q6. Those Muslim jurists who consider deceased organ donation as permissible what are the conditions that they insist on?

A6. All the following conditions must be met:

  1. There must be a need (necessity) which cannot be fulfilled by other means. It is left to the Muslim jurists to determine when the principle, "Necessities overrule prohibitions" is applied.
  2. Donation of the organ must be able to fulfil the need.
  3. The donor must be Islamically dead.

 

Q7. Are all the above conditions met in the manner in which organs are removed in the NHS (U.K.)?

A7. i) There is definitely a need. There is a worldwide shortage of organs for transplantation including the U.K.. The U.K. Asian community is over-represented on the organ transplant list (17%) and under-represented on the organ donor register (3.3%). In 2018-19 13% of all deceased transplants were Asian while only 4% of deceased donors were Asian. This imbalance means Asian and Muslim patients have to wait much longer for an organ transplant compared to white patients. For instance, for a kidney transplant, during the year 2018-2019, Asian patients waited on average 830 days compared to 640 days for white patients.

3 patients a day die in the U.K. waiting for an organ transplant.

So the need is definitely there, but not all Muslim scholars feel that this need fulfils the requirements to make something which is ḥarām permissible.

ii) Donation of organs will fulfil the need of those awaiting for an organ transplant.

iii) Whether or not brainstem death and circulatory death as practised in the U.K. for the purposes of organ donation equates with Islamic death (Shari death) has been debated. Of the 4 documented fatāwa (legal rulings) for U.K. Muslims 3 out of these 4 fatāwa do not consider brainstem death to be Islamic death. Only 2 out of these 4 fatāwa address the issue of circulatory death because the criteria for determining circulatory death was established in 2008, the other 2 fatāwa were issued before this time. Both the fatāwa which address circulatory death for organ donation do not consider it to equate with Islamic death (Shari death).

It is important to emphasise that you are pronounced legally dead as per U.K. rules before your organs are removed.

 

Q8. What are these 4 fatāwa on organ donation issued for U.K. Muslims?

A8.      1995   Muslim Law Council fatwa

            2000   European Council for Fatwa and Research (ECFR). Decision 2/6

            2017   Harvesting the Human: Traditional Sunni Islamic Perspective by Mufti Amjad Mohammed

            2019   Organ Donation and Transplantation in Islam, An opinion (fatwa) by Mufti M. Zubair Butt

 

Q9. I have heard some people promoting deceased organ donation by referring to Mufti Zubair Butt’s fatwa issued in 2019 claiming he approves of deceased organ donation. Is this true?

A9. This is a mis-understanding and mis-representation of the fatwa. Mufti Zubair Butt’s fatwa, which is aimed at U.K. Muslims, states that deceased organ donation is permissible from the deceased if certain conditions are met as stated in the answer A6 above. But for organ donation he does not consider the donor to be Islamically deceased, i.e. he does not consider brainstem death nor circulatory death for purposes of organ donation as Islamic death because the heart has not stopped irreversibly. So, application of Mufti Zubair Butt’s fatwa only allows donation of corneas and tissue.

You can see Mufti Butt's ruling on brain death in this video interview which is also available on Youtube@ 20min 36s;  for fatwa on circulatory death @ 19min 55s, and also on pages 18-19 and page 103 of the full fatwa text.

 

Q10. Is it possible to declare someone legally dead when he or she is not actually dead?

A10. Yes. If someone disappears for many years the court can declare that person legally dead while in reality, he or she may well be actually alive. This can happen in an Islamic court as well. In some jurisdictions, such as England and U.S.A., someone who has been declared legally dead based on the presumption of death cannot be reversed.

In the context of organ retrieval, the issue of whether brain death and cessation of the circulation for 2 to 5 minutes is actual death has been the subject of much debate amongst medical and ethics experts in the West for many years without a clear cut answer. The discussions and debates of claims and counterclaims have been going on for years. Some experts in the U.S.A. have even advocated abandoning the Dead Donor Rule which states that vital organs can only be removed from an organ donor who has been declared legally dead, the retrieval of the organs must itself not be the cause of death of the donor.  So, this is not an issue which just affects Muslims.

A number of recent legal cases in the U.K. have upheld that brainstem death is legal death.

2020: Court of Appeal

2020: High Court of Justice - Justice Lieven

2019: High Court of Justice - Justice Francis

2015: High Court of Justice - Justice Hayden

It is important that a person is declared legally dead before the organs are removed otherwise the removal of the organs could be seen as the cause of death and this could lead to litigation by the relatives of the dead person.

The debate continues because there is no absolute definition of death although, in Islam, we say death occurs when the angel of death removes the soul (ruh) from the body causing it to die, the precise time at which this occurs nobody can say for certain.

It is important to note that whether or not a potential organ donor is Islamically dead or not their medical condition is so severe that the doctors never expect them to recover. There has never been a case of someone declared brain dead reliably, making a full recovery, never regained consciousness nor started to breathe on their own, although some brain dead patients have had the rest of their body maintained for many years.
 

Q11. If someone is on the verge of dying with no chance of survival, according to the doctors, and he has consented to donate his organs does it really matter if he is alive or dead when his organs are removed?

A11. This would not be morally acceptable from an Islamic perspective and nor is it legally acceptable in the U.K.  From an ethical perspective, it may suggest that the value we place on the life of someone with a severe disability is less than that of a healthy person.

Dr. Christian Barnard, who performed the first human-to-human heart transplant in 1967 from a brain dead donor, was asked by the media as he came out of the operating theatre, "Was the patient dead when you removed the heart?" Dr. Bernard had injected the donor heart with potassium chloride to stop it beating and thereby, the patient was considered technically dead by the whole-body standard. The debate has continued ever since to the extent that some medical ethics experts have put forward the argument that the Dead Donor Rule should be abandoned. If one takes that approach then the debate regarding if someone is alive or dead when his organs are removed ends but it opens up many more debates and problems. In such a scenario the cause of death may be the removal of the organs, the family may file a lawsuit against the doctors involved, many doctors may not wish to participate in what would tantamount to homicide, and whether killing one human being to try to save other human beings is ethically acceptable or not.

Donation prior to death does take place in Belgium, Canada, and the Netherlands who also have euthanasia legislation. Euthanasia is illegal in the U.K. and there is no plan to introduce this type of donation.

 

Q12. Do some Muslim jurists consider brain death to be equivalent to Islamic death?

A12. Yes. Shaikh Yasin, a renowned Jordanian jurist, put forward the case of equating brain death with Islamic death in the 1980’s at a meeting of the Islamic Fiqh Academy (OIC). His main arguments to support his opinion was that since there are no clear scriptural texts to indicate when the soul has departed from the body we have to rely on knowledge of medical experts. Medical knowledge, like other worldly knowledge, only requires dominant probability and not certainty, so it is not necessary to be absolutely certain if someone is dead to declare them dead, dominant probability of death will suffice to declare someone dead. Since the brain dead person does not have any volitional activity nor presumably any sensation this is an indication that the soul has departed from the body. So he tried to tie the brain with the soul. Shaikh Tawfeeq al-Wai of Jordon argued against these presumptions including the notion that loss of consciousness and loss of voluntary motion indicates departure of the soul (ruh), and also against the notion of tying the soul to the brain.

Very recently, Shaikh Dr. Rashid who is a traditional Islamic scholar and a medical doctor (G.P. based in the U.K.) has also taken up a similar position with the same sort of arguments as Shaikh Yasin. However, he goes a step further, in that, he also considers the loss of higher brain function including cessation of volition, sentience and voluntary action to indicate an Islamic legal death (maut hukmi). This idea of defining death as the loss of higher brain function has also been advocated by some authors in the West but never been taken up by any jurisdiction as it would mean that some permanently comatosed individuals who are able to breathe and maintain heart function unassisted would meet the criterion of death. Shaikh Dr. Rashid’s opinion on this matter is not a fatwa but his own personal opinion which has been very well researched citing the rulings of classical Muslim jurists to support his viewpoint.

 

Q13. What exactly is death, is there a definition?

A13. There is no agreed-upon definition of actual death, different countries have different criteria for declaration of legal death. In Islam actual death is the separation of the soul (ruh) from the body in a manner which causes death, this process is absolutely irreversible by any present or future human intervention. The problem is that there is no clear cut sign to indicate when exactly this happens. But the doctors involved in organ retrieval want the Muslim jurists to make a decision as to when this event occurs. A further problem is that in the view of some Muslim jurists, actual death, i.e. separation of the soul (ruh) from the body does not necessarily equate with legal death (maut hukmi). This can be a further source of confusion.

Declaration of Islamic death (if defined as the ruh departing from the body) comes down to what degree of certainty do you want before declaring death. If you want to be absolutely certain that the soul (ruh) has departed from the body then you have to wait for a long time, the classical Muslim scholars mentioned 3 days. This is obviously impractical in a hospital setting when someone is on the verge of death. However, there is a religious obligation to delay the declaration of death until the doubt is removed. The time of declaration of death is a retrospective diagnosis.

 

Q14. If it is not possible to determine the exact time of actual death, then at what time it is permissible to remove the organs?

A14. Firstly, as stated in answer A4 above the majority of the Muslim jurists in the U.K. who happen to be Ḥanafī jurists consider the removal of organs from a dead body to be ḥarām (forbidden).

So the question is really aimed at those Muslim jurists who consider the removal of organs from a dead body for the purposes of organ transplantation to be permissible. Can the organs only be removed when an individual who is actually dead (defined as the separation of the soul from the body) and reached a point where he is ready to be buried or can the organs be removed at a time prior to this event?

If we wish to be certain that the soul has undoubtedly departed from the body, then in the hospital setting where someone is on the verge of death, cessation of the circulation for 1 hour continuously should suffice. Because after such a time interval no medical intervention either currently available or perceivable in the future could possibly resuscitate the person. Actual death is generally understood to be wholly and totally irreversible.

However, a further question for the Muslim jurists is whether or not it is actually necessary to wait for actual death (defined as the soul departing from the body) before the organs can be removed or if they can be removed at the point of Islamic legal death (maut hukmi) which could occur at an earlier point in time.

While we can contemplate about such questions, we, simply, have to follow the rulings of the Muslim jurists who are well-versed in this field of knowledge and issue their ruling based not just on the narrow legal framework surrounding organ donation but also take into consideration other factors operating within the local society before issuing their fatāwa. Furthermore, just because the mufti says, "You can," does not mean that you must. The real question is what does Allāh () want us to do? So the decision whether to donate or not to donate is not just a legal issue but also a spiritual issue.

 

Q15. Is a person not likely to be Islamically dead before 1 hour of complete cessation of the circulation?

A15. Yes, it is likely to be earlier, but the limit of 1 hour removes any doubt whatsoever.

 

Q16. Are the organs not useless for the purposes of transplantation after 1 hour of circulatory arrest?

A16. Yes and No. Most of the organs would not be suitable for transplantation except the kidney which may be suitable. However, you could still donate tissues.

 

Q17. Why cannot people with kidney failure continue with dialysis?

A17. Kidney dialysis is not a cure for kidney failure. The best form of treatment for end-stage kidney failure is a kidney transplant. Kidney transplantation offers a better quality of life and a longer life. On top of that, it is highly cost-effective compared to kidney dialysis. The life span of a donated kidney is 10-12 years. The cost of kidney dialysis over a 10 year period is approx. £300,000 compared to the cost of a kidney transplant over a 10 year period which is approx. £103,000. The number of patients on the kidney transplant waiting list as of 31st Match, 2019, were 4,739. So kidney transplantation makes financial sense.

 

Q18. If I opt-in to the organ donation program what are the chances that my organs will actually be donated after I die?

A18. Only about 1% of all those who die in U.K. die in circumstances allowing for possible organ donation. So the chances of being a deceased organ donor are small even if you decide to opt-in.

 

Q19. Does the new opt-out organ donation law apply to every adult in the U.K.?

A19. No, even after the law is a passed some people will be exempt. These include anybody less than 18 in England, anybody less than 16 in Scotland, someone who has not been ordinarily resident in UK for 12 months prior to death, those who lack the capacity to understand the law, visitors and those not living in the U.K. voluntarily.

 

Q20. Why has the government decided to pass this new opt-out organ donation law?

A20. The main reason is due to a shortage of organs. The majority of the U.K. population support donation (80%) but only 40% are registered donors. The opt-out law will catch those people who agree with organ donation but have not registered and make it easier for hospital staff to raise the issue. The new opt-out law is also supported by the majority of the U.K. population.

 

Q21. Which organs are covered by the new law?

A21. The opt-out system will only include routine transplants: heart, lungs, liver, kidneys, pancreas, small bowel, corneas and tissue (such as skin, bone and tendons).

The opt-out system does not cover rare or novel transplants such as limb, face or uterus donation. A person’s family would have to give explicit permission before their loved one’s limb, face or uterus could be donated.

The donor and/ or family can also specify which organs are to be donated.

 

Q22. Can I nominate someone to make a decision on my behalf?

A22. If you live in England, Wales or Northern Ireland, “Yes.”  In Scotland, “No.”

You can appoint up to two people to make that decision for you. If you die in circumstances where donation is possible, your appointed representative(s) will be asked if your organs should be donated. The registration process requires filling a form with physical signatures from the individual concerned, the appointed representative(s) and a witness.

 

Q23. Is it possible that my organs are removed and then not used for donation?

A23. Unlikely. Even if you have healthy organs, the organs will only be retrieved if a suitable recipient is found on the day that you die. Sometimes organs are retrieved but on inspection at the transplant centre are not used.

 

Q24. Can I choose to whom my organs are donated so that they go to a practising Muslim?

A24. No. the organs are given to recipients based on need.

 

Q25. Could my organs end up being used for research rather than transplantation?

A25. Yes, if the organs are retrieved for the purpose of donation but cannot ultimately be used, with your family's prior consent, the organs might be able to be used for research, helping advance the science of transplantation.

 

Q26. Can I decide which organs to donate and which ones not to donate?

A26. Yes, you can. If you don't your family can also decide after you die.

 

Q27. Could my organs be used in more than one patient?

A27. Yes, if you donate more than one organ these will be given to different patients. One person can potentially save through donation up to nine different lives.

 

Q28. Could my organs be sent abroad?

A28. Yes, that is possible but not likely. Organs are offered to Europe if there is no suitable recipient found in the U.K. 

 

Q29. If I register to donate can my family overrule my decision after I die?

A29. Your family does not have the legal right to override your decision but they will be consulted in case you had made any requests or decisions prior to your death. The wishes of the family will be respected, and, therefore, in practice, they can overrule your donation decision. This emphasises the need to share your organ donation decision with your family.

 

Q30. If I do not register a decision at all will my organs be taken for transplantation?

A30. Even though it is an opt-out system with deemed consent your family will be consulted before any decision is made to remove your organs. The wishes of the family will be respected.

The NHSBT clearly states they are committed to supporting the faith and beliefs of individuals throughout the organ or tissue donation process. In the event of your death, they will tell your family that your faith and beliefs are important, they will support your family to speak to your faith leader or a representative of your belief system, and provide information to support the discussions.

 

Q31. Can I dictate that my organs are only taken if I am declared dead using circulatory criteria?

A31. Yes, only by letting your family know and them making this point when donation is discussed or by nominating someone as mentioned in A22 above.

 

Q32. Will my funeral be delayed if I decide to donate?

A32. No.

 

Q33. Can I change my mind at any time?

A33. Yes. Use “Amend my details” on the NHSBT website. You even have the option of removing your details.

 

Q34. How do I register my decision to opt-in or opt-out?

A34. Follow the link below to register your decision. It is important to register your decision whether you wish to opt-in or opt-out this will make it easier on your family when you die. You should communicate your decision to close family members.

https://www.organdonation.nhs.uk/register-your-decision/

 

Any comments/ suggestions please submit here.

Dr. A. Hussain