Question
Does brain death constitute death according to the Sharīʿah, particularly within the context of modern medical practice? What is the ruling on organ donation, particularly following brain death, and what are its permissible limits and conditions in the Sharīʿah?
Answer
The default status of a brain-dead patient is that he is alive. The very existence of a dispute as to whether such a person may be considered dead clearly indicates the presence of doubt. Accordingly, the certainty of his being alive cannot be displaced by the doubt surrounding his death. Consequently, the removal of life-sustaining organs from a brain-dead patient is not permissible.
This is based on the following considerations:
1. The definition of death according to the Sharīʿah is the departure of the soul from the body. [Ramli, Nihayah]
2. The existence of the soul as an indication of the existence of life is a fundamental point of departure between medicine and the Sharīʿah. The Sharīʿah's recognition of the presence of the soul confers upon the human body a degree of sanctity that is not recognised within the framework of Western medicine.
3. Our jurists speak of a state that resembles brain death. They describe a state in which an individual has an absence of conscious cognition, with all remaining functions being involuntary, and where death is certain to ensue shortly. [Khatib, Mugni]
4. This description accurately corresponds to the condition of a brain-dead patient, in that the removal of life-sustaining support would result in irreversible cardiorespiratory death.
5. The jurists nevertheless considered a person in this state to be alive and held that anyone who takes his life would be regarded as having killed him. Commenting on the Minhaj of Nawawi, ibn Hajar says,
(ولو قتل مريضا في النزاع) وهو الوصول لآخر رقم (وعيشه عيش مذبوح وجب) بقتله (القصاص)
(If a person kills someone who is terminally ill and in the throes of death) having reached the final moments of life, (where his functions are involuntary such that it resembles that of a slaughtered animal, then qiṣāṣ is obligatory) upon the killer.
6. Accordingly, removing life-sustaining organs from a brain-dead individual is equivalent to removing them from a living person. Consequently, the one who removes these organs would be regarded as a murderer according to the Sharīʿah.
النصوص المستندة إليها:
قال (م ر) في النهاية: والموت عدم الحياة ويعبر عنه بمفارقة الروح الجسد:
قال في منهاج كتاب الجراح: وإن أنهاه رجل إلى حركة المذبوح بأن لم يبق إبصار ونطق وحركة اختيار قال الخطيب: بأن لم يبق إبصار ولا نطق اختياري ولا حركة اختيار وهي التي يبقى معها الإدراك وهي المستقرة ويقطع بموته بعد يوم أو أيام.
قال حج: (ولو قتل مريضا في النزع) وهو الوصول لآخر رمق (وعيشه عيش مذبوح وجب) بقتله (القصاص)