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

 

The new opt-out organ donation law has now been introduced in the U.K. (Wales 2015, England 2020 and Scotland 2021), as explained by Dr. Dale Gardiner in this video.  It is sometimes, perhaps wrongly, referred to as presumed consent, as the late Professor Robert Veatch explains. In the U.K. opt-out system, the family of the deceased will always be consulted before any organ retrieval is considered and their wishes respected. The NHS is committed to supporting the faith and beliefs of individuals throughout the organ or tissue donation process. With the introduction of this new law, 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.

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 programmes on the subject. At times even the non-Muslim organ donation-transplantation community is confused about the views of Muslims on deceased organ donation.

The jurisprudence of organ donation is a complex subject with lots of terminologies that can cause confusion when being translated into religious terms as well as giving rise to legal opinions which appear to be contradictory. Another reason for confusion amongst the Muslim public is that some targeted campaigns and education programmes aimed at U.K. Muslims do not reveal the whole truth in a transparent manner. Because there is a huge demand for organs for transplantation, the main objective of these campaigns and educational programs is to promote organ donation rather than give a completely unbiased picture of the situation. So the Muslim public hears one narrative from these campaigns and a different narrative from their religious scholars as Mufti Zubair Butt points out. This can create confusion, suspicion and mistrust. As Professor Arthur Caplan explains the whole area of organ donation is dependent on public trust. The best strategy is probably to tell the whole truth, rather than presenting selective truths. As doctors, we do not have the answers to every question but we do try to do what is best for our patients and the community as a whole, maintaining public trust is crucial as a whole for long-term success. Within Islām health is one good amongst many goods, and it is not the ultimate good although in our modern society it seems to have become the ultimate good, that can be bought.

The Muslim public puts their trust in us, Muslim doctors, to provide them with all relevant information in an appropriate manner to allow them to make an informed decision regarding organ donation. In Islām, the mere intention to do good is not enough, one's methodology must also be correct. Unfortunately, the debate on this emotive subject has become polarised in some Muslim circles. It is better to provide all the relevant information to the Muslim public and let each individual decide what he or she thinks is best for their akhira. The Muslim's emphasis is nearly always on what the Muslim scholars say about the issue rather than what the doctors say, so it is important for Muslim doctors to be familiar with Islāmic rulings on this subject. Most if not all rulings on organ donation by Islāmic organisations in Muslim countries can be found on this website as well as Islāmic legal rulings on brain death.

The Muslim jurist (mufti) 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 a mufti (Muslim jurist) can often depend very much on the question you ask and how you ask it. Is organ transplantation permissible? Is organ donation permissible? Is the removal of organs from a dead body permissible? Does the dead body need to be Islāmically dead before the organs can be removed? These questions, although related, will get different responses and sometimes varying responses from Islāmic scholars. Muslim physicians need to look a bit further than simply the ruling of a fatwa, they need to examine under what circumstances the fatwa is applicable and what evidences are used to derive at the conclusion to see if the fatwa is applicable to a particular clinical situation.

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

My objective in writing this piece of work is simply to provide information that will allow Muslims to make an informed choice regarding deceased organ donation. In this article, I have concentrated on the Islāmic rulings/ fatāwa on deceased organ donation issued for Muslims in the U.K. because the diagnosis of legal death prior to organ donation can vary from country to country and it is preferable to follow the rulings of scholars from one's own community who know the law of the land, have similar backgrounds, share our local experiences and know the needs of the local population. The views presented in this article are largely those of Muslim scholars, medical & bioethics experts rather than my personal views. There are several video clips accompanying the text to emphasise this point, which you can view by clicking on the highlighted text in light green for which you will need an internet connection. On this emotional subject of organ donation, I am conscious of the fact that it is very easy to persuade the public in either direction based on the information presented. Therefore, expert views on both sides of the debate are presented to give a balanced view so that the reader can make a truly informed choice whether to donate organs or not. You are welcome to leave comments by clicking here.

It must be stressed that deceased organ donation is a difficult and complicated subject, organ donation-transplantation is probably the most complex procedure that takes place in the NHS in a 24 hour period, some issues are grey without clear-cut answers and in some instances, there never will be clear-cut answers.

FAQs by Muslims on Organ Donation Qs1-16

FAQs related directly to the Opt-Out Organ Donation Law Qs17-33

 

A huge thanks to Dr. Dale Gardiner consultant in anaesthesia & intensive care and National Clinical Lead for Organ Donation at NHSBT for his comments and suggestions. 

 


 

 

In summary, the permission for deceased organ donation in Islam is conditional upon Islamic death to have occurred so the crucial question is if this condition is fulfilled or not in organ donors in the U.K. 

Two crucial and difficult questions the Muslim jurists contemplate in the context of DBD and DCD organ donation:

 1. Is it feasible to declare someone Islamically dead, under certain circumstances, even though the individual shows obvious signs of life?

2. Is it feasible to declare someone Islamically dead, under certain circumstances, even though the individual can be potentially resuscitated?

In summary, those Muslim jurists who require irreversibility for the heart function as a condition for declaration of death then that requires cessation of the circulation for an extended period of time. After this time period not only would the whole brain be dead but also all the organs. You cannot expect to retrieve live organs suitable for transplantation from a truly dead body, only corneas and tissues would be suitable for donation.

                                            _______________________

 

Frequently asked questions by Muslims on Organ Donation

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).

For Muslims living in the U.K. the local Muslim scholars who consider the Fluenz® nasal flu vaccine to be ḥarām (forbidden) also consider the removal of organs from a dead person to be ḥarām (forbidden). Furthermore, most of these scholars do not consider a person declared dead in the context of organ donation (DBD and DCD) in the UK  to be Islāmically dead. This includes Mufti Zubair Butt as documented in his 2019 fatwaSee also A12 below.

 

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

A2. Yes, it is conditionally permissible according to many Muslim jurists. The two broad positions for permissibility are due to theological necessity (darura) and for public benefit (maslaha). Some of these Muslim jurists not only consider deceased organ donation as permissible but recommended it or highly recommended it. Some consider it to be a form of ongoing charity (sadaqa jariya) as there is potential to save other people's lives.

So, the decision to donate organs can be viewed as a  balance of risk of harm from an Islamic perspective v potential benefits. This is the crux of the debate. Alternatively, the potential loss of life while waiting for organ transplantation can also be viewed as a harm v potential benefits for the recipientAs a general rule within Islam, the removal of/avoiding harm takes precedence over acquiring benefits. 

Harm [karama (sanctity) and hurma (inviolability) of the human body

versus

Potential benefits (saving a life/ improving health of another human being)

So, the permissibility for end-of life organ donation is conditional, see A6 below. The question is not only if organ donation is permissible but equally important when is it permissible, see A7 and A13 below. It is important to note that organ transplantation has been accepted and performed in most Islamic countries.

 

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 (see A6 below) and you follow the rulings of those Muslim jurists who consider deceased organ donation as permissible then you can register your decision to donate your organs after you die.

If you follow the rulings of those Muslim jurists who consider deceased organ donation as ḥarām (forbidden) then you should register your decision not to donate your organs after you die.

If you do not register a decision, then it will be presumed you wish to donate.

You can see questions directly related to the new opt-out organ donation system (Max and Keira's law) from Q16 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 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 Ḥanafī jurists can be seen outlined in this video by Shaikh M. Ibrahim and 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 (mainly of those affiliated with Wifaq-ul-ulema)

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. Muslim jurists can thus give a skewed picture as to the overall legal opinions 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.

The Ḥanafī jurists appear to set the bar for permissibility much higher than some other Muslim jurists for things such as end-of life organ donation and Fluenz® nasal flu vaccine.

 

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 food (stunned v unstunned v meat of ahl-ul-kitab), 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 rather than borrowing rulings from other madhāhib. Many fatāwa on deceased organ donation seem to be based more on individual scholars' opinions and fiqh organisations rather than madhhab based.

It is probably 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 upon?

A6. Besides consent, all the following 3 conditions must be met:

  1. There must be a need (necessity) from an Islamic law perspective that cannot be fulfilled by other means. It is left to the Muslim jurists to determine when the principle, "Necessities overrule prohibitions" is applied. Some Muslim jurists do not consider that the necessary level of theological necessity (darura) is reached in deceased organ donation to make something that is forbidden (ḥarām) permissible.
  2. The donation of the organ must be able to fulfil the need.
  3. The donor must be Islamically dead.

 

Q7. The most crucial question: "Are all the conditions for organ donation permissibility from the deceased (A6 above) met in the U.K.?"

A7. i) Condition 1. Yes. There is definitely a need, but whether or not this reaches the level of theological necessity (darura) is for the jurists to decide. 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. The case for organ donation amongst the Asian community is concisely put here by Dr. Mukadam, a transplant surgeon based in the U.K.

ii) Condition 2. Yes. The donation of organs will fulfill the need of those waiting for an organ transplant.

iii) Condition 3. Unknown. Whether or not brainstem death (DBD) and circulatory death (DCD) as practiced in the U.K. for the purposes of organ donation equates with Islamic death (Shari death) has been debated. Even amongst Western academics in this field debate whether or not brainstem death (DBD) equates with actual death as outlined in this video by Professor Robert George who was a member of the President's Council on Bioethics. Similarly, with circulatory death (DCD) as Professor Truog, a paediatric intensivist explains. The declaration of brain death (DBD) and the declaration of circulatory death (DCD) varies from country to country and sometimes within the same country which casts further doubt on this practice. Fortunately, as we have the National Health Service in the U.K. there is consistency in such practices. Here is a detailed explanation of brainstem death diagnosis by Dr. Dale Gardiner of the NHSBT.

These varying definitions of death have been triggered by the shortage of organs for donation. Whatever definition we use the concept of death is that it is an irreversible biological event, a point of no return, which is applicable to all living animals. Death, an event, is not to be confused with dying, a process, or impending death.

Of the 4 documented fatāwa (legal rulings) for U.K. Muslims 3 out of these 4 fatāwa do not consider brainstem death to be Islāmic death. So from their perspective, the question that arises is: "Is deceased organ donation actually living organ donation?". This causes confusion because the Islamic rulings (ahkam) for organ donation from the living is very different from the rulings for organ donation from the deceased.

Of the 4 documented fatāwa (legal rulings) for U.K. Muslims none of them specifically sanction the process of circulatory death prior to organ donation (DCD) to equate with Islamic death. In the U.K. the criteria for circulatory death prior to organ donation (DCD)  was published in 2008.  Prior to 2008 organ donation was confined to those declared legally dead using brainstem criteria. It could be argued the cardio-respiratory criteria for death was in practice a long, long time before the criteria for DCD was published in 2008. That is true, but in the past, before the era of organ donation doctors certified death in patients who were already clearly dead or after failed attempts at resuscitation. The Muslim law Council fatwa was issued in 1995 and this fatwa clearly stated brainstem death as constituting the end of life for the purpose of organ transplant, the fatwa did not specifically mention cardio-respiratory death, its main focus was on brainstem death, but the fact that earlier fatāwa in the 1980s such as the IFA fatwa in Amman in 1986 had required irreversibly of the heart function it seems highly unlikely that the Muslim law Council would have sanctioned DCD as Islamic death. The ECFR fatwa requires the heart to be medically completely irreversible which cannot be said to have been attained in circulatory death for organ donation (DCD). In fact, no medical doctor will testify that the heart cannot be restarted after a cessation of 5 minutes, so it is argued that true irreversibility is not achieved when declaring circulatory death for organ donation (DCD). The fact that a heart from a DCD donor can function after transplantation means that the heart did not cease function irreversibly. In some as our understanding of death ahs changed over the last 50-60 years, our curent understanding of death from a scientific perspective the current criteria based on WHO guidelines is "Death is the permanent loss of capacity for consciousness and all brainstem functions." (2014). The cessation of cirulation for 2-20 minutes (depnding on which country you are in) is based on the notion that this will lead to brain death, thereby fulfilling the neurological criteria for death. So from an Islāmic perspective we need only to concentrate on brain death. Does brain death equate with Islāmic death?

The rulings of the 4 fatāwa are summarised diagrammatically and in a table form in Fig. 1 below. It is more than likely that some people will have a different understanding of these fatāwa and derive at a different conclusion including knowledgeable individuals such as Shaikh Dr. Mansur Ali in his article, so the reader can examine the original text for him or herself by following the links below in A8 and listen to Mufti Zubair Butt commenting on his own fatwa and other fatāwa regarding DBD and DCD with reference to Islamic death in this  Youtube video, @ 19min 55s for DCD and @ 20min 36s for DBD. Note that Fig. 1 shows whether the various fatāwa consider DBD and DCD criteria for declaring death to equate with Islamic death or not, and not whether organ donation is permissible or not.

 

         Islamic legal rulings/ fatāwa          issued for U.K. Muslims Does brainstem death in U.K. (DBD) equate with Islamic death? Does circulatory death (DCD) equate with Islamic death?
Muslim Law Council fatwa 1995 YES 1995 fatwa did not specifically mention cardio-respiratory death and DCD criteria was published in U.K. in 2008 after the fatwa was issued in 1995
ECFR Decision 2/6 2000

NO

Only recognises whole brain death when all functions of the brain have stopped

NO

ECFR fatwa requires  complete irreversibility of the heart

Mufti Amjad Mohammed 2017 NO NO
Mufti M. Zubair Butt 2019 NO NO
Fig. 1 showing if the criteria used in DBD and DCD in U.K. satisfy the criteria for an Islamic death according to fatāwa issued by Islamic bodies for U.K. Muslims (Source with Mufti Amjad fatwa added)

It is important to note that organ transplantation has been accepted and performed in most Islamic countries, so organ donation and brain death is accepted as legal Islamic death in these Islamic countries. However, close examination of the wording of some of these fatāwa reveal that they would be grossly impractical for the purposes of deceased organ donation as the stipulated criteria in these fatāwa are not fulfilled when diagnosing brain death in practice. For example,  the 1986 fatwa (resolution no. 17) of the Islamic Fiqh Academy requires "complete cessation of all vital brain functions and the brain to have started to degenerate." The ECFR fatwa of 2000 endorses this 1986 fatwa. You can see the various fatāwa compilation here.

Similarly, for cardio-respiratory death, the Muslim jurists and the fatāwa issued require complete irreversibility of the heart. It is unlikely that the Muslim jurists will ever accept "permanence" which is used to justify DCD by some Western experts as a replacement for "irreversibility". It can be argued that in brain-dead patients the heart is only beating as the patient is on life support (artificial ventilation), if this is removed, the heart will stop, but from the Muslim jurists' perspective, it is the function that is important rather than the mechanism. As long as the heart is beating and air is going into the lungs the patient is considered alive.

Because the diagnosis of criteria for diagnosing brain death (DBD) and criteria for diagnosing circulatory death prior to organ donation (DCD) varies around the world it seems reasonable for U.K. Muslims to focus mainly on Islamic rulings/ fatāwa issued for U.K. Muslims because we in the U.K. want to know specifically about criteria used to diagnose legal death in the U.K. and it is preferable to follow the rulings of scholars from one's own community who have similar backgrounds, know the local situation and share our local experiences.

It is important to emphasise that you are pronounced legally dead as per U.K. rules before your organs are removed as explained in detail in this Youtube video by Dr. Dale Gardiner of NHS Blood and Transplantation (NHSBT). The donor must be legally dead before any essential organs can be removed to comply with the Dead Donor Rule which has been the ethical central, moral, and legal requirement that has guided organ donation-transplantation. 

Here is my summary of my understanding of diagnosing death legal death v Islamic death

 

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

A8.     There have been 4 fatāwa (legal rulings) Issued by Muslim jurists on the issue of organ donation for Muslims in the U.K.

            1995   Muslim Law Council fatwa

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

            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

You can look at the original text where available by following the links provided above. The Muslim law Council statement (1995) is below. It is difficult to know from the wording their fatwa of equating brainstem death with Islamic death is contingent on organ donation/ transplantation.

 

The two fatāwa issued by the Muslim Law Council and the European Council for Fatwa and Research are rather old. Some of the most prominent international fatāwa on the subject are also very old and need updating. Although the two most recent fatāwa issued for U.K. Muslims do not allow deceased organ donation after DBD or DCD, there are U.K. Islāmic scholars who do allow deceased organ donation in these circumstances. So individuals should seek advice from a scholar of their choice whose judgment they trust.

 

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 of all organs besides the gonads. Is this true?

A9. This misinformation is being promoted by some by quoting a sentence out of context from effectively a paragraph. This is a misunderstanding and misrepresentation of the fatwa. A number of well informed Muslim individuals also seem to think that Mufti Zubair Butt’s fatwa gives the green light for deceased organ donation, and even the BBC has been involved in spreading misinformation about Mufti Zubair Butt's fatwa.  This suggestes that there is a problem the way this fatwa has been written and conveyed to the general public.  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 (DBD) nor circulatory death (DCD) for purposes of organ donation as Islāmic death because the heart has not stopped irreversibly and one cannot say with certainty that the soul has deaprted from the donor body to mark Islāmic death.. By the time the heart has stopped irreversibly none of the organs will be suitable for transplantation but the corneas and tissues (heart valves, tendons and bones) could still be donated, similarly if the ECFR fatwa is applied. Those individuals who wish to follow Mufti Zubair Butt's or the ECFR fatwa can opt to donate corneas and tissues only when registering to donate.

You can see Mufti Butt's ruling on brain death in this video interview which is also available in full 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, legal death does not necessarily mean actual death, and the definition of legal death varies around the world as discussed in A7 (iii) above.

In the context of organ retrieval, the issue of whether brain death and cessation of circulation for 2 to 5 minutes is actual death has been the subject of debate amongst medical and ethics experts in the West for decades without a clear-cut answer. Even the authors of the comprehensive report entitled "Controversies in the Determination of Death" by the President's Council on Bioethics did not agree that brain death is death, so the extent they made personal statements at the end of the report. the Because of the uncertainty as to whether or not the organ donors are actually dead or not, as the definition of death varies, some medical experts in the USA and Canada have 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. Some countries do allow donation prior to death, see A11 below. Some experts feel that the Dead Donor Rule may have been violated in some cases of organ donation in the USA.  This creates the so-called organ donation conundrum, "We Want Live Organs from Dead Bodies." 

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, nor ever having 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. nor the U.S.A. as this would tantamount to murder as it violates the Dead Donor Rule. There is a discussion amongst medical experts in the U.S.A. and Canada about the feasibility of abandoning of the Dead Donor Rule. Amongst the Muslim jurists, there appears to be a consensus that essentials organs cannot be removed from a living donor. 

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. Abandoning the Dead Donor Rule would end the debate as to whether the DBD and DCD organ donors are dead or not when the organ are removed 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 argument 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 the knowledge of medical experts. Medical knowledge, like other worldly knowledge, only requires dominant probability and not a certainty, so it is not necessary to be absolutely certain if someone is dead to declare them dead, the 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.

Some academics in the West have advocated defining death as the permanent loss of higher brain function but this approach was rejected in 1981 by the President's Commission on the determination of death and this position has never been taken up by any jurisdiction. Controversies in the determination of death continue. A patient with permanent loss of higher brain function would still be breathing by him or herself and have their own heart function. Even an individual with no skull and no higher brain but having a brainstem is considered alive because they can breathe and have a heartbeat as discussed here by Professor George Annas.  The Islāmic Organization for Medical Sciences (IOMS) in 1989 also concurred that an anencephalic is alive until brainstem death occurs. It is important to distinguish between dying, which is a process, and actual death, which is an irreversible biological event.

Recently, Shaikh Dr. Rashid who is a traditional Islamic scholar and a medical doctor (G.P. based in the U.K.) has written on this subject, see attached PDF file, after extensive research on the subject. Shaikh Dr. Rashid’s opinion is that permanent loss of higher brain function would fulfil the criteria of Islamic death (mawt al-hukmi) and allow for certain death behaviours like retrieving essential organs if the principles of the dead donor rule are fulfilled. 

If we accept death is based on the function of the brain then the different stages can be represented as below and the line for legal death is drawn at some stage of the dying process. Life cannot be sustained after brainstem failure, without medical intervention death is assured in a very short period of time but brainstem failure ( brainstem death) does not equate with death itself. In a similar way a person with a high cervical cord injury, above C4, is also destined for death within a short period of time without medical intervention, but no one would equate such an injury with death. There are some patients whose neurological injury is at a stage prior to brain failure (brain death), if their circulation is stopped for a few minutes then brain failure (brain death) will be achieved, this is the rationale behind the declaration of circulatory death before organ donation (DCD).

 

Q13. What exactly is death, is there an agreed-upon definition?

A13. There is no agreed-upon definition of death. This may be due to the fact that different people are referring to slightly different phenomena or slightly different stages in the process leading to actual death. The layman's understanding of death is an event that occurs once in a lifetime and is wholly irreversible and the individual is ready for burial, the dead person displays no signs of life, he is cold, pale, pulseless, not breathing, he looks dead.  The religious concept of death is the separation of the soul (ruh) from the body causing death with no clear-cut signs to indicate when this event takes place. What degree of certainty do we want that the soul has left the body before declaring someone dead?  Some definitions of death are based on determining what the essential elements of life are, and death is then defined as cessation of these elements of life. But what constitutes life is in itself debatable. 

In the minds of some people, a body labeled as dead is not truly dead if it displays obvious signs commonly associated with life such as having a pulse, colour, warmth (being able to regulate its temperature), mature and grow proportionally if supplied with oxygen and food, able to fight off infection etc. Brain dead individuals can be and have been maintained for years by supplying the body with oxygen and food, the most recent case being of Jahi McMath. A truly dead body even if supplied with oxygen and food remains dead and starts to decay. 

The 2 crucial questions Muslim jurists have to contemplate on in the context of DBD and DCD are:

1. Is it feasible to declare someone Islamically dead, under certain circumstances,  even though the individual shows obvious signs of life such as a pulse, a heartbeat and some brain functions?

2. Is it feasible to declare someone Islamically dead, under certain circumstances,  even though the individual can be potentially resuscitated?

The fact that the definition of death has evolved over the last few decades would suggest that our concept of death within the medical community has also changed. So criteria of death based on higher brain function, brainstem function, and whole-brain function can be thought of as stages of death where some traditional signs of life such as pulse, heartbeat and some brain functions are still present. Brainstem death and whole-brain death will lead to the layman's understanding of death if life support is removed. But does that imply the patient was not dead while on life support? The confusion and debates are based on where to draw the boundary between life and death, this is problematic because what constitutes life itself is debatable. This boundary between life and death varies in different jurisdictions. The criteria for the declaration of brain death (DBD) as well as circulatory death (DCD) varies from country to country and also may vary within a country such as Canada with its advanced healthcare system, see video clip here

Those who insist on the irreversibility of the heart as a condition for the declaration of death are effectively saying that there should be no signs present that are normally associated with life and that it should be irreversible. 

Standardising the definition of death is often based on what purpose the definition is supposed to serve, i.e., what rights and procedures come into play once someone is declared dead.  If we use this approach it means we can label various stages of the death process as death to achieve a predefined purpose but in reality, there is only one true death for each individual and it is the event when the soul is removed from the body. The predefined purpose may not necessarily be for organ donation but more likely to be the futility of continuing medical treatment in hopeless cases with all the medical expenses that involves as well as occupying precious ICUs beds that could be used for other patients.

Many in the medical scientific community have come to accept that death is based on the irreversible loss of brain function as discussed in this paper here. Indeed, brain death is practiced in very many countries around the world, the majority follow the whole brain death criteria as opposed to brainstem death. Over time there will probably be a unified brain-based definition of death. A cardio-respiratory basis of death is difficult to defend in the face of numerous cases of successful heart and lung transplantation. If a "dead" heart can be replaced with a new one then the person cannot be said to have died due to the "death" of the heart, similarly with lungs. In fact, the heart can be kept beating without being attached to a body, does that imply the person from whom the heart has been removed is in some way still alive? 

A brain-based definition of death is the irreversible loss of function of the brain which could be triggered by 3 primary events which are inextricably linked as shown in the figure below:

i) Respiratory arrest.  The cessation of breathing deprives the whole body of oxygen including the heart causing cardiac arrest and hence circulatory arrest which means no blood reaches the brain causing loss of brain function and ultimately brain arrest and death. 

ii) Circulatory arrest. The cessation of heart function causes cessation of circulation so no blood and oxygen reach the brain leading to loss of brain function and subsequent brain arrest which in turn causes respiratory arrest.

iii) Brain arrest. Primary head injury causing intracranial pressure within the skull such that the circulation to the brain is inadequate or stops leading to deprivation of oxygen to the brain resulting in loss of brain function and subsequent brain arrest which will cause respiratory arrest and in turn cardiac arrest. 

 Any one of these 3 events will initiate the dying process and if no medical intervention takes place lead to death, this is the natural progression of things with the final common end-point being brain arrest and death.   The absence of circulation (i.e. blood flow to the brain) for a period of time is evidence that irreversible loss of brain function has occurred and hence brain arrest and death as Professor James L. Bernat explains in this video clip.  In situations where respiration and circulation are artificially maintained, thereby interrupting the natural cycle of progression to death, then brainstem tests are necessary to confirm brain arrest and hence death.

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 a large number 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 providing the donor is Islamically dead. Can the organs only be removed when an individual is actually dead (defined as the separation of the soul from the body in a manner which causes death) and reached a point where he is ready for ghusl and burial or can the organs be removed at a time prior to this event?

It is impossible for any person to say with certainty how long after the circulation stops the soul (ruh) leaves the body. Indeed, this time interval may not be fixed. The nature of the soul is unknown to mankind so this question is impossible to answer. Indeed if it were not for the retrieval of organs from a dead body there is no point in trying to determine this point in time with any accuracy. One would just wait long enough to remove any doubt.

However, for the purposes of organ donation, time is critical, so the Muslim jurists, who require irreversibility of the heart/ circulation as a condition for declaration of death, should in collaboration with medical experts provide some sort of answer to this question that they all agree upon, i.e. at what point in time is absolute irreversibility of the heart reached so that no medical intervention either currently available nor perceivable in the future that could possibly restart the heart. This would require cessation of circulation for an extended period of time, perhaps 4 hours, by which time most of the organs would not be suitable for transplantation except perhaps the kidneys, although the corneas and tissues would still be useful for donation. The quality of organs for donation starts to deteriorate once the heart stops beating, the best organs for donation are those removed from a body with a beating heart.

 

Q15. Why can't people with kidney failure continue with dialysis?

A15. 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.

 

Q16. Is there a way forward for Muslim jurists to allow deceased organ donation for Muslims in the U. K.?

A16. Education is the key, which means understanding what the whole process of organ donation and transplantation involves and thereafter issuing revised or new fatāwa which reflect the current medical practice of organ donation. Brainstem death and whole-brain death do not lead to "complete cessation of all brain functions" nor immediately to "degeneration of the brain" as stipulated in some fatāwa. Whether or not brain death is associated with the departure of the soul (ruh) causing an Islamic death is impossible to say. Patients with brain death have reached a point where continuing medical treatment is futile and withdrawal of life support is appropriate. From a functional perspective, these brain-dead patients have obvious signs of life such as a heartbeat, pulse, and air going in and out of their lungs albeit with a ventilator. The question is can organs be removed from these brain-dead individuals who are at the end of their life but not dead in the traditional sense?

Similarly, patients close to death but not fulfilling brain death criteria have also reached a point where continuing medical treatment is futile and withdrawal of life support is appropriate. From a functional perspective, these patients also have obvious signs of life such as a heartbeat, pulse, and air going in and out of their lungs albeit with a ventilator. These patients are also at the end of their lives but not dead in the traditional sense. If their heart stops for 5 minutes due to removal of life support then they too will become brain dead, is such a practice feasible in Islam to allow removal of organs for transplantation? 

Those Muslim scholars (and other religious scholars) who insist on the irreversible cessation of the heart function as a condition for declaration of death. In order to achieve this requires continuous cessation of circulation for an extended period of time, perhaps 4 hours. Unfortunately, after this extended period of time not only would the whole brain be dead but so would be all the other organs, only the tissues and corneas would be suitable for donation, there is an option for this when you register your decision to donate. With our current technology, you cannot have death based on irreversible cessation of heart function and have viable organs for donation. 

In reality, we have to accept that it is impossible to ascertain when the soul leaves the body and that it is impossible to have a truly dead body with living organs. From an Islamic perspective, is it acceptable to remove organs from patients who are close to death with no hope of recovery whose life support is going to be withdrawn anyway while acknowledging that the actual removal of essential organs may well contribute to their death

 

FAQs related directly to the Opt-Out Organ Donation Law

 

Q17. If I opt-in to the organ donation programme what are the chances that my organs will actually be donated after I die?

A17. Only about 1% of all those who die in the 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.

 

Q18. Does the new opt-out organ donation law apply to every adult in the U.K.?

A18. 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 the 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.

 

Q19. Why has the government decided to pass this new opt-out organ donation law?

A19. 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.

 

Q20. Which organs are covered by the new law?

A20. 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.

 

Q21. Can I nominate someone to make a decision on my behalf?

A2. 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.

 

Q22. Is it possible that my organs are removed and then not used for donation?

A22. 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.

 

Q23. Can I choose to whom my organs are donated so that they go to a practicing Muslim?

A23. No. The organs are given to recipients based on need.

 

Q24. Could my organs end up being used for research rather than transplantation?

A24. 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.

 

Q25. Can I decide which organs to donate and which ones not to donate?

A25. Yes, you can. If you don't decide your family can also decide after you die.

 

Q26. Could my organs be used in more than one patient?

A26. Yes, if you donate more than one organ these will be given to different patients. One person can potentially save up to nine different lives through donation.

 

Q27. Could my organs be sent abroad?

A27. Yes, that is possible but not likely. Organs are offered to Europe if there is no suitable recipient found in the U.K. 

 

Q28. If I register to donate can my family overrule my decision after I die?

A28. 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.

 

Q29. If I do not register a decision at all will my organs be taken for transplantation?

A29. 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.

 

Q30. Can I dictate that my organs are only taken if I am declared dead using circulatory criteria?

A30. Yes, only by letting your family know and them making this point when the donation is discussed or by nominating someone as mentioned in A22 above.

 

Q31. Will my funeral be delayed if I decide to donate?

A31. No.

 

Q32. Can I change my mind at any time?

A32. Yes. Use “Amend my details” on the NHSBT website. You even have the option of removing your details.

 

Q33. How do I register my decision to opt-in or opt-out?

A33. 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.

 

LINKS

Does brainstem death equate with Islāmic death

The Conundrum of Organ Donation

 

 

Dr. A. Hussain, Ramadan 1442