Prof. Dr. Muhammad Fawzi Faidullah
Allah, highly exalted be He, says in His Mighty Book
AND ASSUREDLY WE HAVE HONOURED THE CHILDREN OF ADAM: AND WE HAVE BORNE THEM ON THE LAND AND THE SEA, AND WE HAVE PROVIDED THEM WITH CLEAN THINGS, AND WE HAVE PREFERRED THEM OVER MANY OF THEM WHOM WE HAVE CREATED WITH A PREFERMENT. (S17:V70)
The honour given to man is due to the fact that Allah created him by His Hands, thus moulding him in a goodly shape, providing him with hearing and sight, preferring him over all creatures by virtue of reason, knowledge, speech and the ability to create through the faculties man instinctively enjoys, making His Angels prostrate for him, placing all things in the universe at his disposal and making him His viceroy on earth to spread His religion, disseminate His Law and execute His Judgement.
AND SLAY NOT YOURSELVES, VERILY ALLAH IS UNTO YOU EVER MERCIFUL - (S4:V29)
It is prohibited for man to kill himself and for people to kill each other, to do anything conducive to murder or ruin, to take drugs or use poisons harmful to the body and to run risks in things involving perdition.
Amro Ibn Al-Aas narrated that when he was sent as a commander of the military expedition of Dhatul-Salasil: I had a wet dream at a very cold night, I felt if I perform major ablution I should die, so l had a dry ablution, then led my companions in the morning (Dawn) prayer. When we came to the Messenger of Allah, may the blessings and peace of Allah be upon him, they told him this. He said:
"O Amro, you led your companions in prayer when you were junub (i.e. on a state that makes bathing obligatory). I said, I remember what Allah, Exalted be He, says, "And slay not yourselves, verily Allah is unto you ever Merciful" The Messenger of Allah, smiled and did not say anything".
The verse, in general, involves sound argument to which Amro Ibn Al-Aas adhered to avoid doing something that would harm him, for more obligatory Sharia-wise is safeguarding life than the obligatory duty of taking a bath.
3. It is impermissible to deliberately kill a believing soul as it is protected by Islam, nor to kill anyone living in Muslim lands, unless otherwise stipulated by the Sharia:
Allah, highly exalted be He, says:
AND WHOSOEVER SLAYETH A BELIEVER INTENTIONALLY HIS MEED IS HELL, AS AN ABIDER THEREIN. (S4:V93)
Allah also says:
AND SLAY NOT ANY SOUL WHICH ALLAH HATH FORBIDDEN, SAVE IN JUSTIFICATION. (S25:V68)
Such killing may be tantamount with infidelity as the Prophet, blessings and peace of Allah be upon him, said in the speech of farwell pilgrimage:
"Do not become disbelievers after me by cutting the necks of one another" (1).
In the Shahih, "Narrated Anas Ibn Malik, the Messenger of Allah, said:
"the greatest sins are to join partners in worship with Allah, to kill a soul which Allah has forbidden to kill, and to be unkind to one's parents" (2).
The Law-Maker has only excluded two cases as follows:-
(i) In advertent killing, which necessitates expiation for Allah's sake and blood money for the killed.
(ii) Killing with Justification as in the Hadith by Abdullah Ibn Mas'ud, the Messenger of Allah, may the blessings and peace of Allah be upon him said:
"It is not permissible to take the life of a Muslim who bears testimony (to the fact) that there is no God but Allah, and I am the Messenger of Allah, but in one of the three cases: a life for a life, the married adulterer and the deserter of his Islam, abandoning the community" (3).
4. It is absolutely impermissible to make an aggression against man, even in a lawful fight. Allah, highly exalted be He, says:
AND FIGHT IN THE WAY OF ALLAH THOSE WHO FIGHT YOU, AND TRANSGRESS NOT.
(S2:V190)
that is you should fight for the sake of Allah, and should not fall in transgression in fighting with infidels, avoid mangling dead bodies, killing women, children, the aged, or monks, and that you should only fight those who fight you.
In Buraid's Hadith, the Messenger of Allah, used to say:
"Fight in the name of Allah, fight against those who disbelieve in Allah, do not embezzle the spoils, do not break your pledge, and do not mutilate (the dead) bodies, do not kill the children nor hermits"(4).
If this is the guidance of Islam in lawful war, how about such guidance in peace, in Muslim countries and among Muslims?.
The Arabic Linguists say that the omission of the object (in Arabic) in "And transgress not;" indicates the absolute prohibition of transgression which means that you should not transgress upon others, in the sense that transgression is merely a tresspass beyond that which one should be confined to whether in soul, or in other things, exactly as in killing animals, setting fire to trees for no benefit, and whether transgression is small or great.
Transgression is greatest when committed against a Muslim, as well as against a Zimmi (i.e. a free non-Muslim subject living in a Muslim country).
It is impermissible to harm a Muslim in word, deed or look because:
"A Muslim is the one who avoids harming Muslims with his tongue or his hands "(5) and, "It is impermissible for a Muslim to look at his brother in a way that offends him" (6) and, "It is impermissible for a Muslim to scare a Muslim"(7).
In many texts of the Sunna, it is prohibited to harm a Muslim, not to mention taking off organs of his body, and this will be tackled in the present research.
5. It is impermissible to dispose of man who is honoured by Allah by selling him or any organ of his, whether in life or death. Such sale is not to be effected, as it is invalid and should be abrogated. It is, further, inadmissible, and is not subject to rules of prescription. It is not binding by money paid nor conditions made. Such sale does not also generate any of the rules ensuing from a sound contract, as Al-Kassani maintains.(8).
Narrated Abu-Huraira, the Prophet, said:
"Allah, highly exalted be He, says: "I will be an opponent to three person on the Day of Judgment:
One who makes a covenant in My Name, but he proves treacherous,
One who sells a free person (as slave) and eats the price,
And one who employs a labourer and gets the full work done by him but does not pay him his wages": (9)
This is an authentic Hadith, narrated as briefly by Al-Siouti, but not ascribed to Allah the Mighty, the Majestic.(10)
The Hadith indicates the prohibition of selling a free man.
"Extremely great is the sin of the seller who derives benefit, whatsoever, from such sale because the one, who sells a free man, unlawfully usurps a subject of Allah, to whom no body has a right except Allah".
Allah, the Lord of all worlds, being the One from whom this "bondman" was usurped, takes such usurper as an opponent.
Jurists have unanimously agreed that sale of a free man is impermissible.
Ibn Al-Mundher said: "they have all agreed upon the invalidity of selling the free".(11)
6. Jurists justify the impermissibility of selling a free man, nor of his organs on the basis of non-assessability money-wise; and that among the conditions of a valid contract of sale is - unanimously - that the subject is contractable, being assessable property in possession and of beneficial interest.
Man, as a total entity, is not to be possessed, nor to be subject to ownership or possession because what is subject to rights and contracts are money and property, but man, as Al-Karkbi says "was created to possess money and between being possessed as money and being a possessor of money there is quite a contradiction"(2).
If the Hanafite jurists state that man's organs such as the hand, the leg, the eye, the nose, the ear, and others are treated as property - as Al Kassani says(13) - this does not mean being an estate or real "money" but they can be compensated for by wergild and money in case avenge is dropped for some reason, as in the case of the ear, or the order to amputate the hand, for instance. If the man who cuts the organ is not a doctor, because the order of amputation casts doubt, and the doubt here is deemed as a fact, however it necessitates a wergild, because the preservation of Muslim's blood is looked upon as inviolability, and dropping of avenge for doubt does not hinder the stipulation of money for the inviolability.
7. However, jurists, though viewing that man or man's parts are not contractable, have excluded the milk of a wet-nurse, in the same that though it is part of the wet-nurse, and is not subject of contract, they have rendered permissible the contract of breast feeding which applies to the milk itself, by way of exclusion and in favour of dire necessity, because the baby's right to live through milk nutrition is more important then human dignity, and the preservation of human life is more important than moral the consideration, because such are the qualities of the self, and those are the props on which the self rests. That's why this contract is made permissible due to dire necessity, and situations of necessity are excluded in law.
Jurists have looked upon the contract of breast-feeding as one of hiring, as a wet-nurse is hired for feeding the baby with her milk. Since the contract rests on the consumption of the subject of material value, which is milk, and hiring is originally attached to a benefit, but not an object of material value, then juristic allay deemed it impermissible, and consequently decided that the consumption of an object of material value, namely milk, is not intended, but is subsidiary to the service of the wet-nurse given to baby.
There are matters that are originally impermissible, but permissible as a subsidiary.
The case applies to the milk of the wet-nurse. It is not permitted to conclude a contract for it, being a part of a human being, but permissible as a subsidiary.
This juristic adaptation represents application of discretion, substantiated by the text as Allah says:
THEN IF THEY SUCKLE THEIR CHILDREN FOR YOU, GIVE THEM THEIR HIRE.
(S65:V6)
8. Treatment with Human Organs of the Dead on the basis of what we have mentioned about human dignity, Hanafite Jurists, and the multitude of Jurists in general, do not allow benefiting from the organs of man for treatment or for any other purpose, whether man is alive or dead. However, they deem permissible remedy through things not human existing in animals even if they are dead and whether Allah's name was mentioned when it was slain or not, of bones or limbs, in dire necessity, with the exclusion of pigs, due to their impurity (14).
"Necessity" as technically defined in the Fundamentals of Jurisprudence is: an occurrence that one cannot overcome unless by the perpetration of an impermissible thing to be therefore permissible.
Nevertheless, the Hanafite scholars confined benefiting from the parts of the dead animal for treatment to the following conditions:
A. To have a Muslim doctor decide this.
B. To lead to recovery.
C. To have nothing permissible as a substitute(15).
As regards the Shafiite jurists, their attitude is perhaps more comprehensive than that of the others, concerning benefiting from the organs of man if he is dead.
They permitted eating man's flesh if a person is driven by a dire necessity, Imam Al-Nawawi, justified this by saying that the inviolability of the living man is more pressing than that of the dead,(16) and the harms ensuing from eating man's flesh are less than those entailed by his death.
Sherazi and the multitude of Shafiite jurists were quoted as asserting this.
Al-Darmi was also quoted as establishing a difference between two cases; if the dead man were an infidel thus eating his flesh is permissible, and if a Muslim there are two viewpoints:
If the one driven by dire necessity is a non-Muslim subject, and he finds a dead Muslim, they see in this permissibility two points:
Al-Nawawi mentioned that the established analogy renders it impermissible due to the principle of human dignity(17).
It seems that the necessity of establishing treatment through the transfer of the human organs of the dead to the living is like the necessity to eat the flesh of the dead; moreover, it is so with greater reason, because eating the flesh of the dead sacrifices the part eaten to preserve the life of another person, whereas transferring an organ to the Living preserves it alive, and is, even more, continuation of the life to the living person.
9. Benefiting from the Organs Of the Living:-
As regards benefiting from the organs of a living human, through eating by the one driven by a dire need, or the necessity of treatment, the Shafiite Jurists presented four possibilities as follows:-
First:
That the donor is legally subject to be killed is by no means protected such as the belligerent and the apostate, the person driven by a dire necessity is indisputably permitted to kill and eat them.
Second:
That the donor is covered with sanctity of life but convicted to death due to a crime whose prescribed punishment is "killing" as specified by the Lawmaker such as the married adulterer, the aggressive warrior (who disobeys the fair Imam and is an outlaw) and the one who denies prayers.
Al-Nawawi expressed in killing and eating them two views: the more sound is permissibility - He says "Because we have been prevented from killing those people to give government full power to consider the matter, so that false allegations against him may be warded off, and this excuse does not necessitate impermissibility when dire necessity is established"(18).
Third:
That the donor is not protected, by virtue of a right established to the one who cuts, such as the right to avenge for the avenger of blood on the murderer. That is the one Al-Nawawi decided that killing in retaliation and eating are permissible, whether the ruler attends his killing or not.
Fourth:
That the donor is protected, such as the non-Muslim subject, the one who enters into a covenant with Muslims or takes a pledge of safety from them. The killing of such people for eating is indisputably forbidden(19).
10. If the necessity of treatment is like that of eating, then cutting off from the people who belong to the second category, as mentioned by Imam Al-Nawawi, such as the married adulterer, the aggressive warrior and the one who denies prayers, should apparently be prohibited, because killing them as a prescribed punishment is in implementation of a Sharia provision, whereas cutting parts from their bodies is an excess beyond the right and the prescribed punishment, a matter impermissible in the Sharia except if permission is taken from them.
The permissibility of cutting is confined to the first category, the aggressive warrior and the apostate, as they both harbour enmity against Muslim people; the first sheds blood in Muslim lands, and the second shows dissidence from the Muslim community and becomes an enemy to Muslims.
Also the permissibility of cutting is confirmed to the third category, the murderer, on condition that cutting does not lead to mangling the dead body as prohibited by the Sharia, because what is lawful is to kill the aforementioned, and the Lawmaker commands that killing whatsoever the case is must be in a good way on basis of the Hadith(20):
"Verily Allah has enjoined goodness to everything; so when you kill, kill in a good way"(20).
If cutting does not lead to mutilation and torture it is then permissible.
11. The One Driven By Dire Necessity Benefiting From His Own Body:
Al-Nawawi stated two views in this question:
The first view is held by Abu-lshaq, who allows it on the basis that it brings life to a man through an organ, and so it is permissible. It is also permitted to cut an organ if it suffers from the "flesh eating" (perhaps Grangrene) as this means saving his life.
The second one is held by some Shafiite Jurists who say that such matter is impermissible, because if an organ is cut, then the risks endangering the patient are greater.
It seems that if cutting an organ definitely lead to ruin or what implies ruin, paralysis for instance, then it is impermissible because in this case, it will be a suicide and precipitation of death, a matter forbidden in the Hadith:
"Whoever purposely throws himself from a mountain and kills himself will be in the (Hell) Fire falling down into it and abiding therein perpetually forever; and whoever drinks poison and kills himself with it, he will be carrying his poison in his hand and drinking it in the (Hell) Fire wherein he will abide eternally forever; and whoever kills himself with an iron weapon, will be carrying that weapon in his hand and stabbing his abdomen with it in the (Hell) Fire wherein he will abide eternally forever"(21).
On the other hand, if the cutting does not definitely lead to ruin, through experience or the operation of a skilled doctor, then it must be permissible such as cutting the hand, the finger, the kidney and the like.
It is apparent that such cutting is made permissible, conditional on:
(a) The organ cannot be substituted by others.
(b) Cutting does not lead to ruin or death.
12. Cutting An Organ From A Living Person For Treatment Of Another:
In this question, Imam Al-Nawawi emphatically states:
1. It is indisputably impermissible for man to cut organs for himself from another o ,o is lawfully protected.
2. Other persons are indisputably forbidden to cut from their body and give to the one in a dire necessity, as stated by "Imam Al-Haramain and Al-Ashab"(22).
The Hanafite scholars also stated that the one driven by a dire necessity should not eat the food of another one also in dire necessity, nor eat any part of his body(23). Their Justification is that harm cannot be eliminated by another harm.
13. The Permissibility Of A Living Person Allowing Cutting An Organ From Him For Treatment Of Another:
This is an aspect of altruism and desired charity which can also be understood from what Allah, highly exalted be He, says:
AND WHOSOEVER BRINGETH LIFE TO ONE IT SHALL BE AS THOUGH HE HAD BROUGHT LIFE TO ALL MANKIND.
(S5:V32)
What greater reward can be desired.
Nevertheless, it may be superficially understood from the Hanafite texts that cutting an organ from a living person for his treatment is permissible, not to serve as food for the one driven by dire necessity. Hanifite Jurists stated that if one man says to another "cut off my hand and then the other man does so", the rule is that if (cutting) is made for the purpose of treatment, like the case when his hand is afflicted by gangrene then there is no harm in the cutting, but if the purpose is other than treatment, then it is impermissible(24).
Ibn Abdeen says: "If one says to another: cut my hand and eat it, then cutting is impermissible", because it is not permissible to eat man's flesh even in dire necessity due to the principle of human sanctity(25).
14. Accordingly, Hanifite scholars by no means allow man's flesh at necessity, not for oneself, nor for others due to the principle of human sanctity.
It is also impermissible, as they maintain, to cut any of man's organs for any purpose other than treatment.
The only justification which they give is the one aforementioned namely necessary treatment.
However, if cutting an organ in man's body is for his own treatment, then it is permissible, on the basis of necessity, as already set forth in the first text from which it is readily Understood that it is impermissible to cut an organ from one for the treatment of another, in the absence of necessity, which is here in this context the fear of ruin and damage, or even the fear that the cut organ causes a detriment.
However, can we say that: (the Hanifite Jurists permitted cutting an organ for treatment, as this is the principle, even for the treatment of the person from whom organ is taken and for fear of causing detriment to him. Yet, the fear that any other man may be exposed to death is like detriment caused to oneself as all living human beings can be viewed as one entity.
Preserving life is something required, lawfully - ascertained and made desirable as in the former verse.
Hanifite scholars and others stated that if one finds a human being on the verge of drowning, and he can save him, but he does not, until that man dies, then he has committed a wrong-doing. Some Hanbalite scholars, moreover, said that he is under the obligation to pay blood money. Therefore, what objection is there in the permissibility of cutting an organ from one person for treatment of another if he allows donating the organ in his life, or in a will after he dies but with no material compensation received, and under the conditions we shall mention. If it is said: The Hanifite Jurists stated that man's flesh is not permitted in cases of dire necessity, on the basis of the principle of human dignity, as already mentioned, we can answer by saying that: they stipulated the impermissibility of eating man's flesh, because of damage as it contradicts human sanctity. Whereas cutting for the treatment of others does not involve damaging man's parts, not wasting his sanctity so as to make it forbidden, but it saves the lives of others, and preserves the cut organ by preserving life of the recipient who is under treatment, and such cutting does not denote any humiliation, on the contrary, it is a sort of relief, revival and help. And these are things which the general rules and absolute precepts of the Sharia do not object to, but encourage and urge one to do.
15. However, cutting should be controlled by the following conditions:-
A Cutting is made possible through an absolute permission from the donor. However, if cutting occurs without his permission, then it becomes forbidden. Moreover, if cutting results in death of person or damage of an organ, then the one who makes the cutting is held liable, and must pay indemnity and if he makes it deliberately, then he should be subject to avenge.
B. The consenting donor should be of age, discerning and exercising free will and, moreover, enjoying the capacity to exercise his rights as permission of cutting means that he disposes of part of his self, of which he is entitled in what is not conflicting with the Sharia.
C. The donor should not be selling his organ, as jurists unanimously agree that it is impermissible to sell man, nor his parts, in respect for him the abuse brought about through the sale arouses a feeling of humiliation, as Al-Kassani says(26), "man, with his entire parts is respected and honoured, His abuse through sale and purchase does not denote any of that dignity nor respect(27)".
D. Donation of an organ does not lead to death of donar nor damage of biological and/or religious duties.
E. Permission of cutting is released in man's life, or through his legatees after his death.
F. Permission of cutting after death does not result in mangling of the dead, as the Prophet forbade mutilation saying:
"you will find mutilations but these I did not command".
G. Execution of cutting takes place after the ascertainment of man's death, if the organ is vital such as removing the heart or lung, so that death of a person who leads a normal life is not precipitated, on the basis of the principle of "the possibility of living", as jurists explain.
Being on the verge of death; such as the case with the one finally sentenced to death; has no effect on the permissibility of cutting, because in this case it will be like suicide if through his permission, and unlawful homicide if without his permission. Both cases are forbidden, but the latter necessitates indemnity as jurists say.
H. Cutting takes place to save the life of another, in the sense that such organ can not be substituted by animal organ or any artificial organ in establishment of the principle of necessity, because the general rule is prohibition as aforementioned.
16. Purchase of Man's Organs:-
We mentioned that a free man is not to be sold, and that selling him or some part of his is not allowed, as unanimously agreed upon. Nevertheless, if a patient is forced to receive an organ of another person to his body, and he does not find any person to donate such needed organ, or does not find any person to donate such needed organ, or does not find any artificial substitute, then purchase of that organ is permissible within the aforementioned conditions for cutting from living people, due to a necessity and in this, the patient does not make a wrongdoing, but the sin is the seller's.
In this context, and for similar situation, Allah, highly exalted be He, says:
WHILE HE HATH SURELY DETAILED UNTO YOU THAT WHICH HE HATH FORBIDDEN YOU, UNLESS YOU ARE DRIVEN HERETO (BY NECESSITY) - (S6:V119)
In the Accessories (of Jurisprudence) there is reference to permissibility of purchase and impermissibility of sale. Hanbalite scholars state that the sale of the Munificent Qur'an is forbidden, even for the settlement of a debt.
Imam Ahmad says (we do not know any excuse for selling the Book) (29).
Abdullah Ibn Omar, says (I wish that hands were cut for such sales) (30).
The Hanbalite scholars, by way of Justification said: because giving due respect to it is obligatory and its sale implies abuse and disrespect, whereas purchasing the Munificent Book is not disliked because such purchase is looked upon as a deliverance like purchasing of a captive from belligerents) (31).
Allah, highly exalted be He, says in His Mighty Book
AND ASSUREDLY WE HAVE HONOURED THE CHILDREN OF ADAM: AND WE HAVE BORNE THEM ON THE LAND AND THE SEA, AND WE HAVE PROVIDED THEM WITH CLEAN THINGS, AND WE HAVE PREFERRED THEM OVER MANY OF THEM WHOM WE HAVE CREATED WITH A PREFERMENT. (S17:V70)
The honour given to man is due to the fact that Allah created him by His Hands, thus moulding him in a goodly shape, providing him with hearing and sight, preferring him over all creatures by virtue of reason, knowledge, speech and the ability to create through the faculties man instinctively enjoys, making His Angels prostrate for him, placing all things in the universe at his disposal and making him His viceroy on earth to spread His religion, disseminate His Law and execute His Judgement.
AND SLAY NOT YOURSELVES, VERILY ALLAH IS UNTO YOU EVER MERCIFUL - (S4:V29)
It is prohibited for man to kill himself and for people to kill each other, to do anything conducive to murder or ruin, to take drugs or use poisons harmful to the body and to run risks in things involving perdition.
Amro Ibn Al-Aas narrated that when he was sent as a commander of the military expedition of Dhatul-Salasil: I had a wet dream at a very cold night, I felt if I perform major ablution I should die, so l had a dry ablution, then led my companions in the morning (Dawn) prayer. When we came to the Messenger of Allah, may the blessings and peace of Allah be upon him, they told him this. He said:
"O Amro, you led your companions in prayer when you were junub (i.e. on a state that makes bathing obligatory). I said, I remember what Allah, Exalted be He, says, "And slay not yourselves, verily Allah is unto you ever Merciful" The Messenger of Allah, smiled and did not say anything".
The verse, in general, involves sound argument to which Amro Ibn Al-Aas adhered to avoid doing something that would harm him, for more obligatory Sharia-wise is safeguarding life than the obligatory duty of taking a bath.
3. It is impermissible to deliberately kill a believing soul as it is protected by Islam, nor to kill anyone living in Muslim lands, unless otherwise stipulated by the Sharia:
Allah, highly exalted be He, says:
AND WHOSOEVER SLAYETH A BELIEVER INTENTIONALLY HIS MEED IS HELL, AS AN ABIDER THEREIN. (S4:V93)
Allah also says:
AND SLAY NOT ANY SOUL WHICH ALLAH HATH FORBIDDEN, SAVE IN JUSTIFICATION. (S25:V68)
Such killing may be tantamount with infidelity as the Prophet, blessings and peace of Allah be upon him, said in the speech of farwell pilgrimage:
"Do not become disbelievers after me by cutting the necks of one another" (1).
In the Shahih, "Narrated Anas Ibn Malik, the Messenger of Allah, said:
"the greatest sins are to join partners in worship with Allah, to kill a soul which Allah has forbidden to kill, and to be unkind to one's parents" (2).
The Law-Maker has only excluded two cases as follows:-
(i) In advertent killing, which necessitates expiation for Allah's sake and blood money for the killed.
(ii) Killing with Justification as in the Hadith by Abdullah Ibn Mas'ud, the Messenger of Allah, may the blessings and peace of Allah be upon him said:
"It is not permissible to take the life of a Muslim who bears testimony (to the fact) that there is no God but Allah, and I am the Messenger of Allah, but in one of the three cases: a life for a life, the married adulterer and the deserter of his Islam, abandoning the community" (3).
4. It is absolutely impermissible to make an aggression against man, even in a lawful fight. Allah, highly exalted be He, says:
AND FIGHT IN THE WAY OF ALLAH THOSE WHO FIGHT YOU, AND TRANSGRESS NOT.
(S2:V190)
that is you should fight for the sake of Allah, and should not fall in transgression in fighting with infidels, avoid mangling dead bodies, killing women, children, the aged, or monks, and that you should only fight those who fight you.
In Buraid's Hadith, the Messenger of Allah, used to say:
"Fight in the name of Allah, fight against those who disbelieve in Allah, do not embezzle the spoils, do not break your pledge, and do not mutilate (the dead) bodies, do not kill the children nor hermits"(4).
If this is the guidance of Islam in lawful war, how about such guidance in peace, in Muslim countries and among Muslims?.
The Arabic Linguists say that the omission of the object (in Arabic) in "And transgress not;" indicates the absolute prohibition of transgression which means that you should not transgress upon others, in the sense that transgression is merely a tresspass beyond that which one should be confined to whether in soul, or in other things, exactly as in killing animals, setting fire to trees for no benefit, and whether transgression is small or great.
Transgression is greatest when committed against a Muslim, as well as against a Zimmi (i.e. a free non-Muslim subject living in a Muslim country).
It is impermissible to harm a Muslim in word, deed or look because:
"A Muslim is the one who avoids harming Muslims with his tongue or his hands "(5) and, "It is impermissible for a Muslim to look at his brother in a way that offends him" (6) and, "It is impermissible for a Muslim to scare a Muslim"(7).
In many texts of the Sunna, it is prohibited to harm a Muslim, not to mention taking off organs of his body, and this will be tackled in the present research.
5. It is impermissible to dispose of man who is honoured by Allah by selling him or any organ of his, whether in life or death. Such sale is not to be effected, as it is invalid and should be abrogated. It is, further, inadmissible, and is not subject to rules of prescription. It is not binding by money paid nor conditions made. Such sale does not also generate any of the rules ensuing from a sound contract, as Al-Kassani maintains.(8).
Narrated Abu-Huraira, the Prophet, said:
"Allah, highly exalted be He, says: "I will be an opponent to three person on the Day of Judgment:
One who makes a covenant in My Name, but he proves treacherous,
One who sells a free person (as slave) and eats the price,
And one who employs a labourer and gets the full work done by him but does not pay him his wages": (9)
This is an authentic Hadith, narrated as briefly by Al-Siouti, but not ascribed to Allah the Mighty, the Majestic.(10)
The Hadith indicates the prohibition of selling a free man.
"Extremely great is the sin of the seller who derives benefit, whatsoever, from such sale because the one, who sells a free man, unlawfully usurps a subject of Allah, to whom no body has a right except Allah".
Allah, the Lord of all worlds, being the One from whom this "bondman" was usurped, takes such usurper as an opponent.
Jurists have unanimously agreed that sale of a free man is impermissible.
Ibn Al-Mundher said: "they have all agreed upon the invalidity of selling the free".(11)
6. Jurists justify the impermissibility of selling a free man, nor of his organs on the basis of non-assessability money-wise; and that among the conditions of a valid contract of sale is - unanimously - that the subject is contractable, being assessable property in possession and of beneficial interest.
Man, as a total entity, is not to be possessed, nor to be subject to ownership or possession because what is subject to rights and contracts are money and property, but man, as Al-Karkbi says "was created to possess money and between being possessed as money and being a possessor of money there is quite a contradiction"(2).
If the Hanafite jurists state that man's organs such as the hand, the leg, the eye, the nose, the ear, and others are treated as property - as Al Kassani says(13) - this does not mean being an estate or real "money" but they can be compensated for by wergild and money in case avenge is dropped for some reason, as in the case of the ear, or the order to amputate the hand, for instance. If the man who cuts the organ is not a doctor, because the order of amputation casts doubt, and the doubt here is deemed as a fact, however it necessitates a wergild, because the preservation of Muslim's blood is looked upon as inviolability, and dropping of avenge for doubt does not hinder the stipulation of money for the inviolability.
7. However, jurists, though viewing that man or man's parts are not contractable, have excluded the milk of a wet-nurse, in the same that though it is part of the wet-nurse, and is not subject of contract, they have rendered permissible the contract of breast feeding which applies to the milk itself, by way of exclusion and in favour of dire necessity, because the baby's right to live through milk nutrition is more important then human dignity, and the preservation of human life is more important than moral the consideration, because such are the qualities of the self, and those are the props on which the self rests. That's why this contract is made permissible due to dire necessity, and situations of necessity are excluded in law.
Jurists have looked upon the contract of breast-feeding as one of hiring, as a wet-nurse is hired for feeding the baby with her milk. Since the contract rests on the consumption of the subject of material value, which is milk, and hiring is originally attached to a benefit, but not an object of material value, then juristic allay deemed it impermissible, and consequently decided that the consumption of an object of material value, namely milk, is not intended, but is subsidiary to the service of the wet-nurse given to baby.
There are matters that are originally impermissible, but permissible as a subsidiary.
The case applies to the milk of the wet-nurse. It is not permitted to conclude a contract for it, being a part of a human being, but permissible as a subsidiary.
This juristic adaptation represents application of discretion, substantiated by the text as Allah says:
THEN IF THEY SUCKLE THEIR CHILDREN FOR YOU, GIVE THEM THEIR HIRE.
(S65:V6)
8. Treatment with Human Organs of the Dead on the basis of what we have mentioned about human dignity, Hanafite Jurists, and the multitude of Jurists in general, do not allow benefiting from the organs of man for treatment or for any other purpose, whether man is alive or dead. However, they deem permissible remedy through things not human existing in animals even if they are dead and whether Allah's name was mentioned when it was slain or not, of bones or limbs, in dire necessity, with the exclusion of pigs, due to their impurity (14).
"Necessity" as technically defined in the Fundamentals of Jurisprudence is: an occurrence that one cannot overcome unless by the perpetration of an impermissible thing to be therefore permissible.
Nevertheless, the Hanafite scholars confined benefiting from the parts of the dead animal for treatment to the following conditions:
A. To have a Muslim doctor decide this.
B. To lead to recovery.
C. To have nothing permissible as a substitute(15).
As regards the Shafiite jurists, their attitude is perhaps more comprehensive than that of the others, concerning benefiting from the organs of man if he is dead.
They permitted eating man's flesh if a person is driven by a dire necessity, Imam Al-Nawawi, justified this by saying that the inviolability of the living man is more pressing than that of the dead,(16) and the harms ensuing from eating man's flesh are less than those entailed by his death.
Sherazi and the multitude of Shafiite jurists were quoted as asserting this.
Al-Darmi was also quoted as establishing a difference between two cases; if the dead man were an infidel thus eating his flesh is permissible, and if a Muslim there are two viewpoints:
If the one driven by dire necessity is a non-Muslim subject, and he finds a dead Muslim, they see in this permissibility two points:
Al-Nawawi mentioned that the established analogy renders it impermissible due to the principle of human dignity(17).
It seems that the necessity of establishing treatment through the transfer of the human organs of the dead to the living is like the necessity to eat the flesh of the dead; moreover, it is so with greater reason, because eating the flesh of the dead sacrifices the part eaten to preserve the life of another person, whereas transferring an organ to the Living preserves it alive, and is, even more, continuation of the life to the living person.
9. Benefiting from the Organs Of the Living:-
As regards benefiting from the organs of a living human, through eating by the one driven by a dire need, or the necessity of treatment, the Shafiite Jurists presented four possibilities as follows:-
First:
That the donor is legally subject to be killed is by no means protected such as the belligerent and the apostate, the person driven by a dire necessity is indisputably permitted to kill and eat them.
Second:
That the donor is covered with sanctity of life but convicted to death due to a crime whose prescribed punishment is "killing" as specified by the Lawmaker such as the married adulterer, the aggressive warrior (who disobeys the fair Imam and is an outlaw) and the one who denies prayers.
Al-Nawawi expressed in killing and eating them two views: the more sound is permissibility - He says "Because we have been prevented from killing those people to give government full power to consider the matter, so that false allegations against him may be warded off, and this excuse does not necessitate impermissibility when dire necessity is established"(18).
Third:
That the donor is not protected, by virtue of a right established to the one who cuts, such as the right to avenge for the avenger of blood on the murderer. That is the one Al-Nawawi decided that killing in retaliation and eating are permissible, whether the ruler attends his killing or not.
Fourth:
That the donor is protected, such as the non-Muslim subject, the one who enters into a covenant with Muslims or takes a pledge of safety from them. The killing of such people for eating is indisputably forbidden(19).
10. If the necessity of treatment is like that of eating, then cutting off from the people who belong to the second category, as mentioned by Imam Al-Nawawi, such as the married adulterer, the aggressive warrior and the one who denies prayers, should apparently be prohibited, because killing them as a prescribed punishment is in implementation of a Sharia provision, whereas cutting parts from their bodies is an excess beyond the right and the prescribed punishment, a matter impermissible in the Sharia except if permission is taken from them.
The permissibility of cutting is confined to the first category, the aggressive warrior and the apostate, as they both harbour enmity against Muslim people; the first sheds blood in Muslim lands, and the second shows dissidence from the Muslim community and becomes an enemy to Muslims.
Also the permissibility of cutting is confirmed to the third category, the murderer, on condition that cutting does not lead to mangling the dead body as prohibited by the Sharia, because what is lawful is to kill the aforementioned, and the Lawmaker commands that killing whatsoever the case is must be in a good way on basis of the Hadith(20):
"Verily Allah has enjoined goodness to everything; so when you kill, kill in a good way"(20).
If cutting does not lead to mutilation and torture it is then permissible.
11. The One Driven By Dire Necessity Benefiting From His Own Body:
Al-Nawawi stated two views in this question:
The first view is held by Abu-lshaq, who allows it on the basis that it brings life to a man through an organ, and so it is permissible. It is also permitted to cut an organ if it suffers from the "flesh eating" (perhaps Grangrene) as this means saving his life.
The second one is held by some Shafiite Jurists who say that such matter is impermissible, because if an organ is cut, then the risks endangering the patient are greater.
It seems that if cutting an organ definitely lead to ruin or what implies ruin, paralysis for instance, then it is impermissible because in this case, it will be a suicide and precipitation of death, a matter forbidden in the Hadith:
"Whoever purposely throws himself from a mountain and kills himself will be in the (Hell) Fire falling down into it and abiding therein perpetually forever; and whoever drinks poison and kills himself with it, he will be carrying his poison in his hand and drinking it in the (Hell) Fire wherein he will abide eternally forever; and whoever kills himself with an iron weapon, will be carrying that weapon in his hand and stabbing his abdomen with it in the (Hell) Fire wherein he will abide eternally forever"(21).
On the other hand, if the cutting does not definitely lead to ruin, through experience or the operation of a skilled doctor, then it must be permissible such as cutting the hand, the finger, the kidney and the like.
It is apparent that such cutting is made permissible, conditional on:
(a) The organ cannot be substituted by others.
(b) Cutting does not lead to ruin or death.
12. Cutting An Organ From A Living Person For Treatment Of Another:
In this question, Imam Al-Nawawi emphatically states:
1. It is indisputably impermissible for man to cut organs for himself from another o ,o is lawfully protected.
2. Other persons are indisputably forbidden to cut from their body and give to the one in a dire necessity, as stated by "Imam Al-Haramain and Al-Ashab"(22).
The Hanafite scholars also stated that the one driven by a dire necessity should not eat the food of another one also in dire necessity, nor eat any part of his body(23). Their Justification is that harm cannot be eliminated by another harm.
13. The Permissibility Of A Living Person Allowing Cutting An Organ From Him For Treatment Of Another:
This is an aspect of altruism and desired charity which can also be understood from what Allah, highly exalted be He, says:
AND WHOSOEVER BRINGETH LIFE TO ONE IT SHALL BE AS THOUGH HE HAD BROUGHT LIFE TO ALL MANKIND.
(S5:V32)
What greater reward can be desired.
Nevertheless, it may be superficially understood from the Hanafite texts that cutting an organ from a living person for his treatment is permissible, not to serve as food for the one driven by dire necessity. Hanifite Jurists stated that if one man says to another "cut off my hand and then the other man does so", the rule is that if (cutting) is made for the purpose of treatment, like the case when his hand is afflicted by gangrene then there is no harm in the cutting, but if the purpose is other than treatment, then it is impermissible(24).
Ibn Abdeen says: "If one says to another: cut my hand and eat it, then cutting is impermissible", because it is not permissible to eat man's flesh even in dire necessity due to the principle of human sanctity(25).
14. Accordingly, Hanifite scholars by no means allow man's flesh at necessity, not for oneself, nor for others due to the principle of human sanctity.
It is also impermissible, as they maintain, to cut any of man's organs for any purpose other than treatment.
The only justification which they give is the one aforementioned namely necessary treatment.
However, if cutting an organ in man's body is for his own treatment, then it is permissible, on the basis of necessity, as already set forth in the first text from which it is readily Understood that it is impermissible to cut an organ from one for the treatment of another, in the absence of necessity, which is here in this context the fear of ruin and damage, or even the fear that the cut organ causes a detriment.
However, can we say that: (the Hanifite Jurists permitted cutting an organ for treatment, as this is the principle, even for the treatment of the person from whom organ is taken and for fear of causing detriment to him. Yet, the fear that any other man may be exposed to death is like detriment caused to oneself as all living human beings can be viewed as one entity.
Preserving life is something required, lawfully - ascertained and made desirable as in the former verse.
Hanifite scholars and others stated that if one finds a human being on the verge of drowning, and he can save him, but he does not, until that man dies, then he has committed a wrong-doing. Some Hanbalite scholars, moreover, said that he is under the obligation to pay blood money. Therefore, what objection is there in the permissibility of cutting an organ from one person for treatment of another if he allows donating the organ in his life, or in a will after he dies but with no material compensation received, and under the conditions we shall mention. If it is said: The Hanifite Jurists stated that man's flesh is not permitted in cases of dire necessity, on the basis of the principle of human dignity, as already mentioned, we can answer by saying that: they stipulated the impermissibility of eating man's flesh, because of damage as it contradicts human sanctity. Whereas cutting for the treatment of others does not involve damaging man's parts, not wasting his sanctity so as to make it forbidden, but it saves the lives of others, and preserves the cut organ by preserving life of the recipient who is under treatment, and such cutting does not denote any humiliation, on the contrary, it is a sort of relief, revival and help. And these are things which the general rules and absolute precepts of the Sharia do not object to, but encourage and urge one to do.
15. However, cutting should be controlled by the following conditions:-
A Cutting is made possible through an absolute permission from the donor. However, if cutting occurs without his permission, then it becomes forbidden. Moreover, if cutting results in death of person or damage of an organ, then the one who makes the cutting is held liable, and must pay indemnity and if he makes it deliberately, then he should be subject to avenge.
B. The consenting donor should be of age, discerning and exercising free will and, moreover, enjoying the capacity to exercise his rights as permission of cutting means that he disposes of part of his self, of which he is entitled in what is not conflicting with the Sharia.
C. The donor should not be selling his organ, as jurists unanimously agree that it is impermissible to sell man, nor his parts, in respect for him the abuse brought about through the sale arouses a feeling of humiliation, as Al-Kassani says(26), "man, with his entire parts is respected and honoured, His abuse through sale and purchase does not denote any of that dignity nor respect(27)".
D. Donation of an organ does not lead to death of donar nor damage of biological and/or religious duties.
E. Permission of cutting is released in man's life, or through his legatees after his death.
F. Permission of cutting after death does not result in mangling of the dead, as the Prophet forbade mutilation saying:
"you will find mutilations but these I did not command".
G. Execution of cutting takes place after the ascertainment of man's death, if the organ is vital such as removing the heart or lung, so that death of a person who leads a normal life is not precipitated, on the basis of the principle of "the possibility of living", as jurists explain.
Being on the verge of death; such as the case with the one finally sentenced to death; has no effect on the permissibility of cutting, because in this case it will be like suicide if through his permission, and unlawful homicide if without his permission. Both cases are forbidden, but the latter necessitates indemnity as jurists say.
H. Cutting takes place to save the life of another, in the sense that such organ can not be substituted by animal organ or any artificial organ in establishment of the principle of necessity, because the general rule is prohibition as aforementioned.
16. Purchase of Man's Organs:-
We mentioned that a free man is not to be sold, and that selling him or some part of his is not allowed, as unanimously agreed upon. Nevertheless, if a patient is forced to receive an organ of another person to his body, and he does not find any person to donate such needed organ, or does not find any person to donate such needed organ, or does not find any artificial substitute, then purchase of that organ is permissible within the aforementioned conditions for cutting from living people, due to a necessity and in this, the patient does not make a wrongdoing, but the sin is the seller's.
In this context, and for similar situation, Allah, highly exalted be He, says:
WHILE HE HATH SURELY DETAILED UNTO YOU THAT WHICH HE HATH FORBIDDEN YOU, UNLESS YOU ARE DRIVEN HERETO (BY NECESSITY) - (S6:V119)
In the Accessories (of Jurisprudence) there is reference to permissibility of purchase and impermissibility of sale. Hanbalite scholars state that the sale of the Munificent Qur'an is forbidden, even for the settlement of a debt.
Imam Ahmad says (we do not know any excuse for selling the Book) (29).
Abdullah Ibn Omar, says (I wish that hands were cut for such sales) (30).
The Hanbalite scholars, by way of Justification said: because giving due respect to it is obligatory and its sale implies abuse and disrespect, whereas purchasing the Munificent Book is not disliked because such purchase is looked upon as a deliverance like purchasing of a captive from belligerents) (31).