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.