On Determining Domain and Plan of Research:
The objective of this research is to know the lawful legal consequence of a human organ.
The legal consequence of any sale in terms of contracting or not, validity or not, permissibility or not is contingent upon the fulfillment of the conditions stipulated by law in sale, and deduced by Muslim jurists from Sharia texts and rules.
The terms and conditions of sale are numerous, some of which pertain to the parties to the contract (seller and purchaser), some to the element of (offer and acceptance), while others to the subject of contract, the sold object. The domain of this research does not tackle all such conditions. We shall exclude from the condition believed to indisputably to be fulfilled in the sale of human organs, as it is not necessary for the research to consider the terms and conditions of the two entire parties, nor those of the aforementioned element, nor many others stipulated as regards the subject of contract, such as the condition of "existing" and the condition of "being known", the ability to deliver and finally voidness of invalid conditions. All such terms and conditions can indisputably be fulfilled in the sale of human organs.
Nevertheless, the condition which should be central in the research, and which is most controversial is one stipulated by the jurists as regards the subject of contract, viz-the "sold object", that it should be "evaluable property. Jurists have stipulated that condition for concluding the sale, having effectiveness and ensuing consequences None of the jurists has disagreed in this regard. Yet, they have differed in application.
Such matter necessitates studying the meaning of this condition on the one hand, and the old juristic application to the sale of human parts on the other hand.
There is another matter that is irrelevant to the terms and conditions of sale. This matter should not be overlooked in our discussion of the legal consequence of sale of human organs, namely that such sale is not commonly concluded except with a harm inflicted upon the body of the seller. So, is it lawfully permissible for man to accept inflicting harm on his body to receive a material return or other compensation?
These are the questions on which the research focuses. We shall tackle them, God willing, under four studies and a conclusion as follows:
Meaning Of "Estate", "Valuation" And Possession
Ibn Qudamah defines sale as: "An exchange in money in terms of ownership and possession".(l) Saheb Al Dur also defines it by saying: "sale, Sharia-wise, is an exchange of a desired object for another".
Ibn Abdeen interprets the "desired object" as the thing sought by man.. that is money"(2).
Jurists have unanimously agreed to stipulate in sale the condition that money should be valuable. They have not disagreed as regards this condition. Nevertheless, they have differed in the style of expression. Such difference could be categorized in three trends:
The first trend:
Its advocates expressed this condition as aforementioned, and differentiated between the concept of Estate and valution, rendering the first one a matter relevant to human consideration, while the other to Sharia consideration - Money,as viewed by them, is everything existing to which the instinct of man inclines. The "Valuatable" is every money the benefit of which is permissible by the Sharia. Estate, for them, is a condition for valuation but not the opposite. Wine, for instance, is regarded as money, but it is not valuatable, and the carcass, for them, is not money nor valuatable.
Among their definitions of money is what some of them say (it is the thing to which the instinct of man inclines and that can be saved for the time of need). Others say (it is that to which the instinct inclines and for which one may give or deny). A third group contended (money is a term other than that for a human, created for his interest, to be collected and disposed of by an act of volition) (3).
The second trend
Its advocates contented, themselves with expressing the condition that the sold object should be on Estate Without mentioning "valuation". Disregarding valuation here is not because they do not stipulate it in the sold object as a condition, but because they consider the concept of Estate including the meaning valuation.
For them, money is everything of real benefit. Everything whose valuable consideration as lawfully permissible in cases of no dire necessity, otherwise this thing is not called money if it is not of benefit to man and is made impermissible by the law-maker is not called money, even if it is made permissible in case of dire need.
The Third trend:
Advocates of this trend did not make this aforementioned condition of Estate or that of valuation. Yet, they stipulated for the sold object being pure and of lawful benefit presently or eventually. They contended with mentioning the elements of Estate as viewed by the advocates of the second trend. They moreover, paid no attention to calling it "money", and this is a formal difference as we see.
To sum up, it is manifest that the description of Estate and valuation in the sold object as viewed by the jurists is not materialized, unless with the fulfillment of the following conditions:
1. It should be of actual benefit, which means that man can benefit from it in any aspect of interest such as food, drink, clothes, adornment, transportation, medication etc.
The benefit derived from every object conforms with the nature of its creation. Qaluoubi says: It is obvious that the benefit derived from anything goes in accordance with its nature. The benefit of a leech is sucking blood, the benefit of a peacock is to gratify the sight with its colour, the benefit of the nightingale is to enjoy its voice, the benefit of the cat is trapping the mouse, and finally the benefit of a monkey is teaching..." (6).
Whereas the things of no benefit, which are not imposed by any of man's interests should indisputably not be sold. It is natural that many things of actual benefit but not discovered yet by man are included in such things.
2. Its benefit should be permissible by Sharia in any aspect of benefit in the absence of dire necessity.
It is not a condition that Sharia permits its benefit in all aspects whatsoever to which it is fit according to creation. However, it is sufficient to render its benefit permissible in a single aspect, such as the dog whose benefit is permissible in hunting and guarding, but not in eating, adornment or anything else.
It is not enough for the fulfillment of this condition that Sharia permits its benefit in case of dire necessity such as wine and carcass (7).
Some requirements for this conditions:
(A) The sold object should be religiously pure. If it is impure, sale shall be invalid and impermissible, such as the pig, carcass, the organ of animal which is cut in its life, being a carcass... etc. (8).
(B) The sold object should not be something that is not used except in the impermissible, such as the idols, statues whose materials are not of benefit, instruments of entertainment which are also of no benefit except in prohibited entertainment... etc. (9).
(C) It should not be honoured beyond sale, ownership and circulation, such as the free man and the Munificent Book as viewed by some jurists (10).
(D) Its ownership is possible without wasting away the right of Allah, Exalted be He, or the right of man. Jurists of Malikite school pointed out this meaning and cited the example of mosques and Kaaba for things which cannot be owned except by wasting away the right of Allah, Exalted be He. They also cited the example of a free man for things whose ownership is not conceived unless by wasting human rights (11).
3. It should be a material object. This condition is stipulated by the Hanafite school. For them, sale is not effected unless of material objects but not of utility. They were keen on highlighting this condition in their definitions of money as aforementioned.
However, other jurists do not stipulate that condition in sale nor in the establishment of the concept of Estate.
Applications of Jurists as Regards
Condition of Estate And Valuation
To Sale of Man And Human Organs
Jurists unanimously agree upon impermissibility and invalidity of selling a free person. They do not consider man as "money" on the basis of the authentic Hadith by the prophet:
"Allah, the Mighty, the Majestic said: I will be an opponent to three persons on the Day of Judgement: One who makes a covenant in My Name, but he proves treacherous, One who sells a free person (as a 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" (12).
Denying "Estate" in the free person, for them, is not attributed to non-benefit, as the benefit of man are numerous and their exchange in hiring is permissible as it is known. However, this denial is ascribed to other implications to which jurists referred in their classifications as follows:
(A) Some of them ascribe the reason to the honour by Allah, that is given to man. He, Highly Exalted & Glorified, says
AND ASSUREDLY WE HAVE HONOURED THE CHILDREN OF ADAM.(13)
His honouring comes through the peculiar characteristic of mind which is cause of enjoined duties, and because for man, all other creatures were harnessed at his disposal (14).
Considering man as "money" to be owned and circulated contradicts with such honouring as it arouses the feeling of abuse and humiliation. Ibn Abdeen, says (Man is lawfully honoured even if he is an infidel; being the subject of a contract, and abusing him therewith and attaching him to the inanimate is humiliation to him, and that is impermissible) (15).
Such honouring never departs from man neither willingly nor forcibly. It only departs from man on the single occasion of disbelief; if hostility against Islam and falling captive are combined together in him, then his honouring is denied by permission of the Lawmaker, and he becomes "money" to be sold and purchased (16).
(B) Other jurists hold the view that the reason behind this is the inadmissibility that a free man becomes part of the property of another, because he is, as being the worth more entitled to "his self" than anyone else and his inclusion in the property of others wastes away his right (17). It is not to be said, by way of answer, that he owns himself, so he can waive his soul, because it is inconceivable that the one who concludes a contract is the subject of the contract, and that the seller is the sold object at the same time, whereas sale of man by another is not also lawfully conceived, because man is not entitled to sell what he does not own, and a free man is not included in the property of anyone (18).
(C) A third group holds the opinion that the reason is that considering man as "money'' contradicts with his lawfully established inalienable freedom, because such consideration renders him liable to sale and ownership the matter which conflicts with his right to freedom and holds him back from having a free hand in what Allah has made permissible to him (19).
As far as Human Organs are concerned, Jurists unanimously agree that they are not money qua money, nor should they be subject to sale. Jurists do not disagree except on human milk. The multitude of Jurists permit its sale, whereas scholars of Hanafite school deem it impermissible.
The reason behind their disagreement is not attributed to difference in opinion as regards the principle upon which they unanimously agree, but to the difference in justifying this principle as follows:
1) Hanafite Jurists hold the view that the reason for impermissibility of selling human organs is attributed to the honouring particularly conferred by Allah upon man. They look upon each organ of man as the "his self". For them, honouring includes man and each part of him. This honouring keeps going all over his body with no exception for any part, sale of which is invalid and impermissible, even if benefit from any organ in any aspect whatsoever is possible.
Among the things which they stipulate the invalidity and impermissibility of selling thereof are human hair, bones, skin and woman's milk if obtained by milking. Al-Merghinani says: It is impermissible to sell nor benefit from man's hair, because man is honoured and not abused. So it is not permitted that any of his parts be humiliated or abused...) (20).
2) The multitude of Jurists hold the view that the reason behind the impermissibility of selling human organs is that if they are cut off and separated from man's body, they become of no benefit, or impossibly useful in a way permitted by the Sharia. They cannot be looked upon as "money", as already mentioned; that the thing is not to be considered as "money" unless it involves real benefit permitted by the Sharia in conditions of no dire necessity.
I do not find among such jurists someone who gives reasons for the impermissibility of sale of human organs in contradiction with the principle of honouring man.
Therefore, when they find a part of man, which is of benefit if cut off from him in any permissible form, they approve the permissibility of its sale, in contrast with the Hanifite school in respect of the woman's milk when obtained by milking.
The sale of a woman's milk is also permissible by the Malikite, Shafiite and Hanbalite schools which holds a widespread view and accepted argument that it is pure and of benefit. The Lawmaker made it permissible to drink it in the absence of need. So it can be deemed "money" subject to sale and fulfilling the two elements of "Estate": real benefit and lawful permissibility of such benefit (21).
Ibn Qudamah expresses this trend in a way that serves well here. He said: "As for the sale of women's milk, Ahmad says I "dislike this", and our fellow jurists differ as regards its permissibility. The words of Al Kharqi denote its permissibility as he argues that "Everything is of benefit". This is the opinion of Al-Shafii'. Another group of our fellow jurists holds the view that its sale is impermissible, and this is the attitude of the Hanifite school... as it is a fluid coming forth from a woman, and it is impermissible to sell, exactly like the sweat, and because it is part of a human being all other parts then Ibn Qudama says:
"The first opinion is more correct, because milk is pure and of benefit so its sale is permissible, like that of the ewe, and because it is permissible to receive a compensation for it as the case is with the wet-nurse so it is of benefit. But the case differs with the sweat because it is of no benefit. That is why the sweat of the ewe is not sold but its milk is... the impermissibility to sell a free man is simply because he is not owned and it is also impermissible to sell the organ cut from him because it is of no benefit) (22).
Discussing Opinions of Jurists
In The Light of
Contemporary Medical Achievements
As already mentioned, jursits unanimously agree on the invalidity sale of any part of man except woman's milk, either due to honouring man with his entire organs, or for the inconceivability of deriving benefit from human organs after separation.
It is indisputable that their approach is sound on the basis of their conception of the dimensions of the question. It is an acknowledged fact Judging a thing is a branch of its conception. They did not conceive that deriving benefit from any human organ separated from the body possible in a considered interest, nor did they imagine the possibility benefiting from such organ in any form without prejudicing man's honour.
To bring the picture nearer, if we suppose that we live in an age like theirs, when medically speaking, the transfer and transplantation human organs from one man to another, and blood transfusion with its serious consequences were not known nor even conceived; and also when no specialized expert thought of the possible benefits of any organ separated from the human body as a treatment for any kind of disease wonder, what were their concepts of benefits from the transfer of a kidney an eye, a spinal marrow, a bone, the skin or any other of the human parts?
Deriving benefit from a human part to serve the same function for which Allah created it in such a way that transfer for the service of a new soul other than the one for which this human part was created and to be the cause of saving the life of the new soul from perdition, such procedure was not known before, nor occurred to the minds or imagined by ancient scholars. If they had imagined that transfer, they would have supposed its occurrence and endeavored to deduce legal consequences.
As already mentioned, they tackled in general the legal consequence of the sale of human parts, hair, bones, skin and woman's milk as follows:
As far as the human hair is concerned, along with their conception of deriving possible benefit from it impermissibility of its sale on the grounds of a lawful text prohibiting this, as the prophet says:
"Allah has cursed the woman who artificially lengthens (her or someone's) hair, and the one who gets her hair lengthened (23), both by someone else's hair".
As regards man's bones and skin, they unanimously agreed on the impermissibility of their sale on the basis of the impossibility of deriving benefit from them except through the methods which violate the honour and respect bestowed upon man.
Concerning woman's milk, a multitude of jurists rendered permissible its sale as it is pure and of benefit. They did not see in this any contradiction with human honour.
These are all the points tackled by ancient jurists as regards the organs which could be subject to sale. They specified them in detail. They did not think of anything else except this. It is natural that their reasoning be based on their conceptions as regards this question.. the most improbable of which was the likelihood that a man embarks upon selling a human kidney, blood, an eye or other organs, due to the absence of any probability that a need may arise for such organs in an age that knows nothing about organ transfer or transplantation, or its effective role in saving the lives of patients.
Nowadays, however, the matter has become extremely different. Some medical and scientific innovations have taken place calling for the reconsideration of the reasons given by previous Jurists when they passed the ruling of the impermissibility and invalidity of the sale of human organs.
As regards deriving possible benefit from this and the need of man for it there is no longer any dispute, specially after the real success of the operations of the transfer and transplantation of organs and saving of many people from definite death.
As far as the lawfulness of deriving such benefits is concerned, it is evident that modern Islamic Jurists reasoning has given judgement when rendering permissible the donation of some organs for the purpose of transplantation for patients in need, because the judgement which permits the donation of a thing for a specific purpose is in fact a Judgement admitted the lawfulness of deriving benefit from this thing for that purpose.
However, still a question remains on the extent of contradiction between the sale of human organs and honour and respect bestowed upon man.
More often, I believe that the sale of human organs for the purpose of profit, trade, circulation or material gain is the thing which arouses the feeling of humiliation and contradicts with the principle of human dignity. Sale of human organs for purposes other than those for which they are created is also included. If organs, however, are sold to save the lives of patients from perdition, and used in the same manner as that for which they were created, by placing them in the locations through which they serve the same functions when Allah created them, and if they are not sold for purposes of trade and material gain, then such sale, within these limits and restrictions is permissible as it implies no humiliation nor contradiction with the dignity of man. Is there any implication of disrespect and degradation in the transfer of man's kidney or some of his blood to another person whose life is contingent upon such transfer, God willing, even if the owner of the transferred organ receives a financial return?
Yes, someone may say: In sale, ownership of the object sold is assigned to the purchaser and that of price to the seller. The right to ownership is a material one granting its holder all sorts of disposal, exploitation, sale, donation, mortgage, lending, or anything of the like, all of which contradict with human dignity as already established.
In reply to this, it is said that the right to ownership only grants its holder the right to derive benefit from what he owns in the proper way, and as permitted by law, not all forms of benefit unrestrictedly. The one who purchases a beast of burden is not lawfully allowed to dispose of it through killing or perdition without a justifiable reason. The one who purchases grapes is not entitled to derive benefit from them by extracting wine. The one who purchases a dog, cat or donkey is not lawfully allowed to benefit from them by eating... etc. (24).
Also the one who purchases a human organ acquires the right to deriving benefit from it. Yet, such right is restricted by lawfulness. It is indisputable that using such an organ in functions other than those for which it was created for, or circulating it, or trading in it is regarded impermissible, as it contradicts with the principle of human dignity established by law.
Such acquired right on the sold organ does not permit sale except for purposes not impermissible by the Sharia. Deriving benefit from that organ is restricted to that benefit for which the Creator created it in man.
The restriction is generated from the Sharia, and does not need the stipulation on the part of seller.
It is true that man is not permitted to sell a thing to someone whom he knows or strongly believes that he would not use it except in the impermissible. The case applies to the owner of grapes who is not permitted to sell his grapes to someone whom he knows he would not use except for the extraction of wine. It is also impermissible to sell dogs to the one who would not use them except for eating or selling as meat for people to eat (25).
It is also impermissible for man to sell an organ of his body to someone whom he knows that he would use it for the purpose of trade and profit, and in other things implying humiliation to human dignity.
In other words, the analogy established in the sale of a human organ in relation to a free man as regards impermissibility is one of great difference, due to the fact that the invalidity of sale of a free man is attributed, as already mentioned, to the contradiction implied in that sale with human dignity, on the one hand, and to the wasting of his lawfully established right, on the other.
Such two implications are ruled out in the sale of human organs. No harm is inflicted upon human dignity if a human organ is sold to be used for the purposes for which it was created, while asking for no material gain, but with the aim of saving the life of a patient from perdition. The free man is not to be sold for this purpose.
The sale of human organ also does not contradict with man's freedom, in the sense that if man sells part of his blood or a kidney of his, he does not lose anything of his freedom.
A third aspect is that the analogy established in the separate human organ in man's life in relation to the cut organ of an animal in its life is one of great difference, because jurists hold the view of the impermissibility and invalidity of cutting the organ or an animal in this case only due to its impurity, being carcass, and the carcass of an animal is impure.
But man is pure in all cases. His organs are also pure whether they are separated from him or not. Al Kassani was inclined to this in reply to those who Justify the impermissibility of selling man's hair, and bones on the basis of impurity. He thought that it was enough to bring forward the reason that it contradicts with the dignity of man and his organs (26).
This subject has also been discussed by some Malikite jurists and others. They rendered permissible the sale of woman's milk, putting aside that analogy and that argument of contradicting with the honour of man, by arguing that such milk is pure and of benefit. It was mentioned that Aisha, may Allah be pleased with her, sent her milk to an aged man to drink it, and to be in a degree precluding marriage to her. If such milk had been impure or contradictory with human dignity, the companions would have denied that deed, but none of them did so, the matter which evidences the permissibility of deriving benefit from it, even for the purpose of precluding marriage, although no dire necessity is involved (27).
Results of the Discussion of Ancient Jurists:
As already mentioned, it is evident that the meanings stated by the jurists, and on which they have established the invalidity of sale of any human organ (with the exception) of the controversy over woman's milk), are no longer applicable to sale of human organs for treatment purposed in the present time, or at least have become possibly avoidable in the practice of such sale in reality. There is no room today for the allegation that one can derive no benefit from a human organ. Nor is there space to state the impossibility of deriving benefit from it unless with the sacrifice of human dignity.
Since it became evidently clear to them that deriving benefit from woman's milk is possible, along with avoiding the prohibited matters, and observing such principles on which they have based their opinions, we have found the multitude of them rendering sale permissible.
Most probably, had they known the transfusion of human blood and its benefits as known by us today, a dispute would have been triggered over its sale as it happened with the sale of woman's milk.
Contradiction Between Sale of Human Organs and
The Principle of Impermissibility of
Harming the Body
If the matter had been confined to such considerations upon which jurists based the impermissibility of sale of human organs, it would have been possible to end the discussion on this question by giving more weight to the opinion that sale of human organs is valid under some conditions, now that it is apparent that such sale is possible without prejudice to such considerations.
However, there is another matter not yet touched by jurists, namely, that sale of a man's organ while still alive mostly entails harm inflicted upon him in some form, at least loss of physical fitness. They did not discuss this matter, in the belief that the other justifications were sufficient, and, even more, that there was nothing that necessitated raising it in their time.
Yet, in view of the recent medical achievements, along with which sale of human organs has been possible without compromising the principles mentioned by jurists, research on the legal consequence of that sale cannot be complete and accurate, unless when knowing the opinion of law as regards the one who sells pan of his body and sacrifices some of his bodily fitness for material return.
It is necessary, while discussing this subject,to distinguish several cases:
(A) There is no doubt about the impermissibility of sale of a human organ, the loss of which leads to death, such as the heart, for instance, because this is suicide, which is a deadly sin.
(B) More often, sale of part of human blood is not impermissible if the donor's health will not be affected or harmed.
Analogy can be made concerning woman's milk whose sale is permissible by the mainstream of jurists.
(C) Other organs vary in the bodily benefits and harms caused by their loss. The legal consequence of sale should be considered in relation to the rule governing the contradiction between the harms and benefits for man, that's taking the less detrimental, if not able to avoid both, and enduring the little harm toward off the great one. Al-Ezz Ibn Abdulsalam says: In case benefits and harms are involved, if it is possible to get the benefits and avoid the harms, then we do in compliance with what Allah, Highly Exalted Be He, says:
WHEREFORE FEAR ALLAH AS MUCH AS YE ARE ABLE.
In case, however, that such acquisition and avoidance are unattainable, we avoid the harm if it is greated regardless of the benefit, and should not care for missing that benefit (28). In application of that principle, he says: (it is obligatory to cut the abdomen of a woman to bring out the baby whose life is hoped for, because maintaining life is a benefit greater than the harm of violating the inviolability of its mother) (29).
He looked upon the anticipated harm that is as probable as if it already happened. If occurrence of harm is overwhelmingly probable, even as a future possibility then it is considered as one that has already taken place (30).
On the basis of such principle, we see that it is impermissible for man to sell an organ of his body, the loss of which entails disability in the body, such as sale of an eye, for instance, to receive material gain, raise more money or promote a trade, or with a view to seeking fame or any other end. Nevertheless, it is permissible to sell human organs if the purpose is to drive away a greater harm, in case a person, for instance, is in need of purchasing a kidney for himself or for a person dear to him, and he cannot find any other way except selling an organ of his whose loss does not entail perdition. Such act is permissible if the procurement of the kidney will save his life or his dear person from definite perdition.
In the same way, analogy can be drawn as regards the other organs in the body, and based on expert medical opinion.
This is in as far as the seller is concerned, whereas the purchaser is permitted to purchase human organs if he wants to use the purchased organ to save his own life or a dear person from perdition, total or partial, or if it were an institution established to collect organs for utilization when needed for the purpose already referred to, provided that such act is not taken as a means for material gain or profit or organs purchased to be later sold for profit. However, there is no objection to selling the purchased organ at cost price or below the costs.
(D) It is necessary to refer, in this context, to the fact that some human parts can be no means be sold when there is a specific provision prohibiting their use or due to their contradiction with another Sharia principle other than what has been mentioned, among these things:
Sale of human hair to join it to the hair of purchaser. It was mentioned that Asma', daughter of Abu-Bakr reported thaA a wgman came to the prophet and said:
"I have a newly wed daughter. She had an attack of small pox and thus her hair had fallen; should I add false hair to her head? He said: "Allah has cursed the woman who adds some false hair and the woman who asks for it".
Most probably, the wisdom of prohibition is not as some Hanafite scholars view that it contradicts the honour and dignity bestowed upon man (32), but because it implies falsehood by adorning the person with things not in her, and this is prohibited. The prophet said:
"The one who makes a false statement of that which one has not been given is like one who wears a garment of falsehood (34).
Which means that the one who falsely boasts of what he does not have so as to show off and falsely adorn himself, is a person dispraised like the one who wears the garment of falsehood.
This meaning is corroborated by the authentic Hadith that the Messenger of Allah, may the blessings and peace of Allah be upon him, forbade that a woman joins things to her hair (35). This prohibition includes everything joined to a woman's hair, even if it were not human hair, so long as it makes her take an appearance that is not hers.
Sale of man's semen is similarly prohibited. It is indisputable that this is impermissible and invalid, because its use, after sale, for the purpose for which it has been created, namely reproduction, leads to mixing blood relationships which is indisputably impermissible.
Conclusion
In the light of this research, we come to the following conclusion:. It is permissible to sell human organs when judged necessary under the following provisions:
1. The sale does not contradict human dignity, in the sense that the purpose of sale is not profit, trade nor circulation.
2. The organ should be utilized for the function it was created for, or else the sale is impermissible.
3. The sale repels a harm greater than the loss of the organ.
4. The sale should not contradict a Sharia text (as in the case of "hair"), or any other Sharia principle (such as semen).
5. There is no available artificial substitute for the needed organ.
6. The sale and purchase should be made under the supervision of a reliable official specialized institution to verify that the aforementioned conditions are fulfilled.
The objective of this research is to know the lawful legal consequence of a human organ.
The legal consequence of any sale in terms of contracting or not, validity or not, permissibility or not is contingent upon the fulfillment of the conditions stipulated by law in sale, and deduced by Muslim jurists from Sharia texts and rules.
The terms and conditions of sale are numerous, some of which pertain to the parties to the contract (seller and purchaser), some to the element of (offer and acceptance), while others to the subject of contract, the sold object. The domain of this research does not tackle all such conditions. We shall exclude from the condition believed to indisputably to be fulfilled in the sale of human organs, as it is not necessary for the research to consider the terms and conditions of the two entire parties, nor those of the aforementioned element, nor many others stipulated as regards the subject of contract, such as the condition of "existing" and the condition of "being known", the ability to deliver and finally voidness of invalid conditions. All such terms and conditions can indisputably be fulfilled in the sale of human organs.
Nevertheless, the condition which should be central in the research, and which is most controversial is one stipulated by the jurists as regards the subject of contract, viz-the "sold object", that it should be "evaluable property. Jurists have stipulated that condition for concluding the sale, having effectiveness and ensuing consequences None of the jurists has disagreed in this regard. Yet, they have differed in application.
Such matter necessitates studying the meaning of this condition on the one hand, and the old juristic application to the sale of human parts on the other hand.
There is another matter that is irrelevant to the terms and conditions of sale. This matter should not be overlooked in our discussion of the legal consequence of sale of human organs, namely that such sale is not commonly concluded except with a harm inflicted upon the body of the seller. So, is it lawfully permissible for man to accept inflicting harm on his body to receive a material return or other compensation?
These are the questions on which the research focuses. We shall tackle them, God willing, under four studies and a conclusion as follows:
- Study (1): Meaning of the condition of "Estate" ownership and "Valuation'' as viewed by Jurists.
- Study (II): Applications of that condition to sale of human organs.
- Study (III): Discussing the opinions of Jurists in the right of contemporary medical achievements.
- Study (IV): Extent of contradiction between sale of organs and the principle of impermissibility of inflicting harm upon the body.
- Conclusion: In the findings of the Research.
Study I
Meaning Of "Estate", "Valuation" And Possession
Ibn Qudamah defines sale as: "An exchange in money in terms of ownership and possession".(l) Saheb Al Dur also defines it by saying: "sale, Sharia-wise, is an exchange of a desired object for another".
Ibn Abdeen interprets the "desired object" as the thing sought by man.. that is money"(2).
Jurists have unanimously agreed to stipulate in sale the condition that money should be valuable. They have not disagreed as regards this condition. Nevertheless, they have differed in the style of expression. Such difference could be categorized in three trends:
The first trend:
Its advocates expressed this condition as aforementioned, and differentiated between the concept of Estate and valution, rendering the first one a matter relevant to human consideration, while the other to Sharia consideration - Money,as viewed by them, is everything existing to which the instinct of man inclines. The "Valuatable" is every money the benefit of which is permissible by the Sharia. Estate, for them, is a condition for valuation but not the opposite. Wine, for instance, is regarded as money, but it is not valuatable, and the carcass, for them, is not money nor valuatable.
Among their definitions of money is what some of them say (it is the thing to which the instinct of man inclines and that can be saved for the time of need). Others say (it is that to which the instinct inclines and for which one may give or deny). A third group contended (money is a term other than that for a human, created for his interest, to be collected and disposed of by an act of volition) (3).
The second trend
Its advocates contented, themselves with expressing the condition that the sold object should be on Estate Without mentioning "valuation". Disregarding valuation here is not because they do not stipulate it in the sold object as a condition, but because they consider the concept of Estate including the meaning valuation.
For them, money is everything of real benefit. Everything whose valuable consideration as lawfully permissible in cases of no dire necessity, otherwise this thing is not called money if it is not of benefit to man and is made impermissible by the law-maker is not called money, even if it is made permissible in case of dire need.
The Third trend:
Advocates of this trend did not make this aforementioned condition of Estate or that of valuation. Yet, they stipulated for the sold object being pure and of lawful benefit presently or eventually. They contended with mentioning the elements of Estate as viewed by the advocates of the second trend. They moreover, paid no attention to calling it "money", and this is a formal difference as we see.
To sum up, it is manifest that the description of Estate and valuation in the sold object as viewed by the jurists is not materialized, unless with the fulfillment of the following conditions:
1. It should be of actual benefit, which means that man can benefit from it in any aspect of interest such as food, drink, clothes, adornment, transportation, medication etc.
The benefit derived from every object conforms with the nature of its creation. Qaluoubi says: It is obvious that the benefit derived from anything goes in accordance with its nature. The benefit of a leech is sucking blood, the benefit of a peacock is to gratify the sight with its colour, the benefit of the nightingale is to enjoy its voice, the benefit of the cat is trapping the mouse, and finally the benefit of a monkey is teaching..." (6).
Whereas the things of no benefit, which are not imposed by any of man's interests should indisputably not be sold. It is natural that many things of actual benefit but not discovered yet by man are included in such things.
2. Its benefit should be permissible by Sharia in any aspect of benefit in the absence of dire necessity.
It is not a condition that Sharia permits its benefit in all aspects whatsoever to which it is fit according to creation. However, it is sufficient to render its benefit permissible in a single aspect, such as the dog whose benefit is permissible in hunting and guarding, but not in eating, adornment or anything else.
It is not enough for the fulfillment of this condition that Sharia permits its benefit in case of dire necessity such as wine and carcass (7).
Some requirements for this conditions:
(A) The sold object should be religiously pure. If it is impure, sale shall be invalid and impermissible, such as the pig, carcass, the organ of animal which is cut in its life, being a carcass... etc. (8).
(B) The sold object should not be something that is not used except in the impermissible, such as the idols, statues whose materials are not of benefit, instruments of entertainment which are also of no benefit except in prohibited entertainment... etc. (9).
(C) It should not be honoured beyond sale, ownership and circulation, such as the free man and the Munificent Book as viewed by some jurists (10).
(D) Its ownership is possible without wasting away the right of Allah, Exalted be He, or the right of man. Jurists of Malikite school pointed out this meaning and cited the example of mosques and Kaaba for things which cannot be owned except by wasting away the right of Allah, Exalted be He. They also cited the example of a free man for things whose ownership is not conceived unless by wasting human rights (11).
3. It should be a material object. This condition is stipulated by the Hanafite school. For them, sale is not effected unless of material objects but not of utility. They were keen on highlighting this condition in their definitions of money as aforementioned.
However, other jurists do not stipulate that condition in sale nor in the establishment of the concept of Estate.
Study II
Applications of Jurists as Regards
Condition of Estate And Valuation
To Sale of Man And Human Organs
Jurists unanimously agree upon impermissibility and invalidity of selling a free person. They do not consider man as "money" on the basis of the authentic Hadith by the prophet:
"Allah, the Mighty, the Majestic said: I will be an opponent to three persons on the Day of Judgement: One who makes a covenant in My Name, but he proves treacherous, One who sells a free person (as a 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" (12).
Denying "Estate" in the free person, for them, is not attributed to non-benefit, as the benefit of man are numerous and their exchange in hiring is permissible as it is known. However, this denial is ascribed to other implications to which jurists referred in their classifications as follows:
(A) Some of them ascribe the reason to the honour by Allah, that is given to man. He, Highly Exalted & Glorified, says
AND ASSUREDLY WE HAVE HONOURED THE CHILDREN OF ADAM.(13)
His honouring comes through the peculiar characteristic of mind which is cause of enjoined duties, and because for man, all other creatures were harnessed at his disposal (14).
Considering man as "money" to be owned and circulated contradicts with such honouring as it arouses the feeling of abuse and humiliation. Ibn Abdeen, says (Man is lawfully honoured even if he is an infidel; being the subject of a contract, and abusing him therewith and attaching him to the inanimate is humiliation to him, and that is impermissible) (15).
Such honouring never departs from man neither willingly nor forcibly. It only departs from man on the single occasion of disbelief; if hostility against Islam and falling captive are combined together in him, then his honouring is denied by permission of the Lawmaker, and he becomes "money" to be sold and purchased (16).
(B) Other jurists hold the view that the reason behind this is the inadmissibility that a free man becomes part of the property of another, because he is, as being the worth more entitled to "his self" than anyone else and his inclusion in the property of others wastes away his right (17). It is not to be said, by way of answer, that he owns himself, so he can waive his soul, because it is inconceivable that the one who concludes a contract is the subject of the contract, and that the seller is the sold object at the same time, whereas sale of man by another is not also lawfully conceived, because man is not entitled to sell what he does not own, and a free man is not included in the property of anyone (18).
(C) A third group holds the opinion that the reason is that considering man as "money'' contradicts with his lawfully established inalienable freedom, because such consideration renders him liable to sale and ownership the matter which conflicts with his right to freedom and holds him back from having a free hand in what Allah has made permissible to him (19).
As far as Human Organs are concerned, Jurists unanimously agree that they are not money qua money, nor should they be subject to sale. Jurists do not disagree except on human milk. The multitude of Jurists permit its sale, whereas scholars of Hanafite school deem it impermissible.
The reason behind their disagreement is not attributed to difference in opinion as regards the principle upon which they unanimously agree, but to the difference in justifying this principle as follows:
1) Hanafite Jurists hold the view that the reason for impermissibility of selling human organs is attributed to the honouring particularly conferred by Allah upon man. They look upon each organ of man as the "his self". For them, honouring includes man and each part of him. This honouring keeps going all over his body with no exception for any part, sale of which is invalid and impermissible, even if benefit from any organ in any aspect whatsoever is possible.
Among the things which they stipulate the invalidity and impermissibility of selling thereof are human hair, bones, skin and woman's milk if obtained by milking. Al-Merghinani says: It is impermissible to sell nor benefit from man's hair, because man is honoured and not abused. So it is not permitted that any of his parts be humiliated or abused...) (20).
2) The multitude of Jurists hold the view that the reason behind the impermissibility of selling human organs is that if they are cut off and separated from man's body, they become of no benefit, or impossibly useful in a way permitted by the Sharia. They cannot be looked upon as "money", as already mentioned; that the thing is not to be considered as "money" unless it involves real benefit permitted by the Sharia in conditions of no dire necessity.
I do not find among such jurists someone who gives reasons for the impermissibility of sale of human organs in contradiction with the principle of honouring man.
Therefore, when they find a part of man, which is of benefit if cut off from him in any permissible form, they approve the permissibility of its sale, in contrast with the Hanifite school in respect of the woman's milk when obtained by milking.
The sale of a woman's milk is also permissible by the Malikite, Shafiite and Hanbalite schools which holds a widespread view and accepted argument that it is pure and of benefit. The Lawmaker made it permissible to drink it in the absence of need. So it can be deemed "money" subject to sale and fulfilling the two elements of "Estate": real benefit and lawful permissibility of such benefit (21).
Ibn Qudamah expresses this trend in a way that serves well here. He said: "As for the sale of women's milk, Ahmad says I "dislike this", and our fellow jurists differ as regards its permissibility. The words of Al Kharqi denote its permissibility as he argues that "Everything is of benefit". This is the opinion of Al-Shafii'. Another group of our fellow jurists holds the view that its sale is impermissible, and this is the attitude of the Hanifite school... as it is a fluid coming forth from a woman, and it is impermissible to sell, exactly like the sweat, and because it is part of a human being all other parts then Ibn Qudama says:
"The first opinion is more correct, because milk is pure and of benefit so its sale is permissible, like that of the ewe, and because it is permissible to receive a compensation for it as the case is with the wet-nurse so it is of benefit. But the case differs with the sweat because it is of no benefit. That is why the sweat of the ewe is not sold but its milk is... the impermissibility to sell a free man is simply because he is not owned and it is also impermissible to sell the organ cut from him because it is of no benefit) (22).
Study III
Discussing Opinions of Jurists
In The Light of
Contemporary Medical Achievements
As already mentioned, jursits unanimously agree on the invalidity sale of any part of man except woman's milk, either due to honouring man with his entire organs, or for the inconceivability of deriving benefit from human organs after separation.
It is indisputable that their approach is sound on the basis of their conception of the dimensions of the question. It is an acknowledged fact Judging a thing is a branch of its conception. They did not conceive that deriving benefit from any human organ separated from the body possible in a considered interest, nor did they imagine the possibility benefiting from such organ in any form without prejudicing man's honour.
To bring the picture nearer, if we suppose that we live in an age like theirs, when medically speaking, the transfer and transplantation human organs from one man to another, and blood transfusion with its serious consequences were not known nor even conceived; and also when no specialized expert thought of the possible benefits of any organ separated from the human body as a treatment for any kind of disease wonder, what were their concepts of benefits from the transfer of a kidney an eye, a spinal marrow, a bone, the skin or any other of the human parts?
Deriving benefit from a human part to serve the same function for which Allah created it in such a way that transfer for the service of a new soul other than the one for which this human part was created and to be the cause of saving the life of the new soul from perdition, such procedure was not known before, nor occurred to the minds or imagined by ancient scholars. If they had imagined that transfer, they would have supposed its occurrence and endeavored to deduce legal consequences.
As already mentioned, they tackled in general the legal consequence of the sale of human parts, hair, bones, skin and woman's milk as follows:
As far as the human hair is concerned, along with their conception of deriving possible benefit from it impermissibility of its sale on the grounds of a lawful text prohibiting this, as the prophet says:
"Allah has cursed the woman who artificially lengthens (her or someone's) hair, and the one who gets her hair lengthened (23), both by someone else's hair".
As regards man's bones and skin, they unanimously agreed on the impermissibility of their sale on the basis of the impossibility of deriving benefit from them except through the methods which violate the honour and respect bestowed upon man.
Concerning woman's milk, a multitude of jurists rendered permissible its sale as it is pure and of benefit. They did not see in this any contradiction with human honour.
These are all the points tackled by ancient jurists as regards the organs which could be subject to sale. They specified them in detail. They did not think of anything else except this. It is natural that their reasoning be based on their conceptions as regards this question.. the most improbable of which was the likelihood that a man embarks upon selling a human kidney, blood, an eye or other organs, due to the absence of any probability that a need may arise for such organs in an age that knows nothing about organ transfer or transplantation, or its effective role in saving the lives of patients.
Nowadays, however, the matter has become extremely different. Some medical and scientific innovations have taken place calling for the reconsideration of the reasons given by previous Jurists when they passed the ruling of the impermissibility and invalidity of the sale of human organs.
As regards deriving possible benefit from this and the need of man for it there is no longer any dispute, specially after the real success of the operations of the transfer and transplantation of organs and saving of many people from definite death.
As far as the lawfulness of deriving such benefits is concerned, it is evident that modern Islamic Jurists reasoning has given judgement when rendering permissible the donation of some organs for the purpose of transplantation for patients in need, because the judgement which permits the donation of a thing for a specific purpose is in fact a Judgement admitted the lawfulness of deriving benefit from this thing for that purpose.
However, still a question remains on the extent of contradiction between the sale of human organs and honour and respect bestowed upon man.
More often, I believe that the sale of human organs for the purpose of profit, trade, circulation or material gain is the thing which arouses the feeling of humiliation and contradicts with the principle of human dignity. Sale of human organs for purposes other than those for which they are created is also included. If organs, however, are sold to save the lives of patients from perdition, and used in the same manner as that for which they were created, by placing them in the locations through which they serve the same functions when Allah created them, and if they are not sold for purposes of trade and material gain, then such sale, within these limits and restrictions is permissible as it implies no humiliation nor contradiction with the dignity of man. Is there any implication of disrespect and degradation in the transfer of man's kidney or some of his blood to another person whose life is contingent upon such transfer, God willing, even if the owner of the transferred organ receives a financial return?
Yes, someone may say: In sale, ownership of the object sold is assigned to the purchaser and that of price to the seller. The right to ownership is a material one granting its holder all sorts of disposal, exploitation, sale, donation, mortgage, lending, or anything of the like, all of which contradict with human dignity as already established.
In reply to this, it is said that the right to ownership only grants its holder the right to derive benefit from what he owns in the proper way, and as permitted by law, not all forms of benefit unrestrictedly. The one who purchases a beast of burden is not lawfully allowed to dispose of it through killing or perdition without a justifiable reason. The one who purchases grapes is not entitled to derive benefit from them by extracting wine. The one who purchases a dog, cat or donkey is not lawfully allowed to benefit from them by eating... etc. (24).
Also the one who purchases a human organ acquires the right to deriving benefit from it. Yet, such right is restricted by lawfulness. It is indisputable that using such an organ in functions other than those for which it was created for, or circulating it, or trading in it is regarded impermissible, as it contradicts with the principle of human dignity established by law.
Such acquired right on the sold organ does not permit sale except for purposes not impermissible by the Sharia. Deriving benefit from that organ is restricted to that benefit for which the Creator created it in man.
The restriction is generated from the Sharia, and does not need the stipulation on the part of seller.
It is true that man is not permitted to sell a thing to someone whom he knows or strongly believes that he would not use it except in the impermissible. The case applies to the owner of grapes who is not permitted to sell his grapes to someone whom he knows he would not use except for the extraction of wine. It is also impermissible to sell dogs to the one who would not use them except for eating or selling as meat for people to eat (25).
It is also impermissible for man to sell an organ of his body to someone whom he knows that he would use it for the purpose of trade and profit, and in other things implying humiliation to human dignity.
In other words, the analogy established in the sale of a human organ in relation to a free man as regards impermissibility is one of great difference, due to the fact that the invalidity of sale of a free man is attributed, as already mentioned, to the contradiction implied in that sale with human dignity, on the one hand, and to the wasting of his lawfully established right, on the other.
Such two implications are ruled out in the sale of human organs. No harm is inflicted upon human dignity if a human organ is sold to be used for the purposes for which it was created, while asking for no material gain, but with the aim of saving the life of a patient from perdition. The free man is not to be sold for this purpose.
The sale of human organ also does not contradict with man's freedom, in the sense that if man sells part of his blood or a kidney of his, he does not lose anything of his freedom.
A third aspect is that the analogy established in the separate human organ in man's life in relation to the cut organ of an animal in its life is one of great difference, because jurists hold the view of the impermissibility and invalidity of cutting the organ or an animal in this case only due to its impurity, being carcass, and the carcass of an animal is impure.
But man is pure in all cases. His organs are also pure whether they are separated from him or not. Al Kassani was inclined to this in reply to those who Justify the impermissibility of selling man's hair, and bones on the basis of impurity. He thought that it was enough to bring forward the reason that it contradicts with the dignity of man and his organs (26).
This subject has also been discussed by some Malikite jurists and others. They rendered permissible the sale of woman's milk, putting aside that analogy and that argument of contradicting with the honour of man, by arguing that such milk is pure and of benefit. It was mentioned that Aisha, may Allah be pleased with her, sent her milk to an aged man to drink it, and to be in a degree precluding marriage to her. If such milk had been impure or contradictory with human dignity, the companions would have denied that deed, but none of them did so, the matter which evidences the permissibility of deriving benefit from it, even for the purpose of precluding marriage, although no dire necessity is involved (27).
Results of the Discussion of Ancient Jurists:
As already mentioned, it is evident that the meanings stated by the jurists, and on which they have established the invalidity of sale of any human organ (with the exception) of the controversy over woman's milk), are no longer applicable to sale of human organs for treatment purposed in the present time, or at least have become possibly avoidable in the practice of such sale in reality. There is no room today for the allegation that one can derive no benefit from a human organ. Nor is there space to state the impossibility of deriving benefit from it unless with the sacrifice of human dignity.
Since it became evidently clear to them that deriving benefit from woman's milk is possible, along with avoiding the prohibited matters, and observing such principles on which they have based their opinions, we have found the multitude of them rendering sale permissible.
Most probably, had they known the transfusion of human blood and its benefits as known by us today, a dispute would have been triggered over its sale as it happened with the sale of woman's milk.
Study IV
Contradiction Between Sale of Human Organs and
The Principle of Impermissibility of
Harming the Body
If the matter had been confined to such considerations upon which jurists based the impermissibility of sale of human organs, it would have been possible to end the discussion on this question by giving more weight to the opinion that sale of human organs is valid under some conditions, now that it is apparent that such sale is possible without prejudice to such considerations.
However, there is another matter not yet touched by jurists, namely, that sale of a man's organ while still alive mostly entails harm inflicted upon him in some form, at least loss of physical fitness. They did not discuss this matter, in the belief that the other justifications were sufficient, and, even more, that there was nothing that necessitated raising it in their time.
Yet, in view of the recent medical achievements, along with which sale of human organs has been possible without compromising the principles mentioned by jurists, research on the legal consequence of that sale cannot be complete and accurate, unless when knowing the opinion of law as regards the one who sells pan of his body and sacrifices some of his bodily fitness for material return.
It is necessary, while discussing this subject,to distinguish several cases:
(A) There is no doubt about the impermissibility of sale of a human organ, the loss of which leads to death, such as the heart, for instance, because this is suicide, which is a deadly sin.
(B) More often, sale of part of human blood is not impermissible if the donor's health will not be affected or harmed.
Analogy can be made concerning woman's milk whose sale is permissible by the mainstream of jurists.
(C) Other organs vary in the bodily benefits and harms caused by their loss. The legal consequence of sale should be considered in relation to the rule governing the contradiction between the harms and benefits for man, that's taking the less detrimental, if not able to avoid both, and enduring the little harm toward off the great one. Al-Ezz Ibn Abdulsalam says: In case benefits and harms are involved, if it is possible to get the benefits and avoid the harms, then we do in compliance with what Allah, Highly Exalted Be He, says:
WHEREFORE FEAR ALLAH AS MUCH AS YE ARE ABLE.
In case, however, that such acquisition and avoidance are unattainable, we avoid the harm if it is greated regardless of the benefit, and should not care for missing that benefit (28). In application of that principle, he says: (it is obligatory to cut the abdomen of a woman to bring out the baby whose life is hoped for, because maintaining life is a benefit greater than the harm of violating the inviolability of its mother) (29).
He looked upon the anticipated harm that is as probable as if it already happened. If occurrence of harm is overwhelmingly probable, even as a future possibility then it is considered as one that has already taken place (30).
On the basis of such principle, we see that it is impermissible for man to sell an organ of his body, the loss of which entails disability in the body, such as sale of an eye, for instance, to receive material gain, raise more money or promote a trade, or with a view to seeking fame or any other end. Nevertheless, it is permissible to sell human organs if the purpose is to drive away a greater harm, in case a person, for instance, is in need of purchasing a kidney for himself or for a person dear to him, and he cannot find any other way except selling an organ of his whose loss does not entail perdition. Such act is permissible if the procurement of the kidney will save his life or his dear person from definite perdition.
In the same way, analogy can be drawn as regards the other organs in the body, and based on expert medical opinion.
This is in as far as the seller is concerned, whereas the purchaser is permitted to purchase human organs if he wants to use the purchased organ to save his own life or a dear person from perdition, total or partial, or if it were an institution established to collect organs for utilization when needed for the purpose already referred to, provided that such act is not taken as a means for material gain or profit or organs purchased to be later sold for profit. However, there is no objection to selling the purchased organ at cost price or below the costs.
(D) It is necessary to refer, in this context, to the fact that some human parts can be no means be sold when there is a specific provision prohibiting their use or due to their contradiction with another Sharia principle other than what has been mentioned, among these things:
Sale of human hair to join it to the hair of purchaser. It was mentioned that Asma', daughter of Abu-Bakr reported thaA a wgman came to the prophet and said:
"I have a newly wed daughter. She had an attack of small pox and thus her hair had fallen; should I add false hair to her head? He said: "Allah has cursed the woman who adds some false hair and the woman who asks for it".
Most probably, the wisdom of prohibition is not as some Hanafite scholars view that it contradicts the honour and dignity bestowed upon man (32), but because it implies falsehood by adorning the person with things not in her, and this is prohibited. The prophet said:
"The one who makes a false statement of that which one has not been given is like one who wears a garment of falsehood (34).
Which means that the one who falsely boasts of what he does not have so as to show off and falsely adorn himself, is a person dispraised like the one who wears the garment of falsehood.
This meaning is corroborated by the authentic Hadith that the Messenger of Allah, may the blessings and peace of Allah be upon him, forbade that a woman joins things to her hair (35). This prohibition includes everything joined to a woman's hair, even if it were not human hair, so long as it makes her take an appearance that is not hers.
Sale of man's semen is similarly prohibited. It is indisputable that this is impermissible and invalid, because its use, after sale, for the purpose for which it has been created, namely reproduction, leads to mixing blood relationships which is indisputably impermissible.
Conclusion
In the light of this research, we come to the following conclusion:. It is permissible to sell human organs when judged necessary under the following provisions:
1. The sale does not contradict human dignity, in the sense that the purpose of sale is not profit, trade nor circulation.
2. The organ should be utilized for the function it was created for, or else the sale is impermissible.
3. The sale repels a harm greater than the loss of the organ.
4. The sale should not contradict a Sharia text (as in the case of "hair"), or any other Sharia principle (such as semen).
5. There is no available artificial substitute for the needed organ.
6. The sale and purchase should be made under the supervision of a reliable official specialized institution to verify that the aforementioned conditions are fulfilled.