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:
—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.
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:
- 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.
- 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:
- 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).
- 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).
- 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).
- 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.