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.
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:
- The sale does not contradict human dignity, in the sense that the purpose of sale is not profit, trade nor circulation.
- The organ should be utilized for the function it was created for, or else the sale is impermissible.
- The sale repels a harm greater than the loss of the organ.
- The sale should not contradict a Sharia text (as in the case of “hair”), or any other Sharia principle (such as semen).
- There is no available artificial substitute for the needed organ.
- The sale and purchase should be made under the supervision of a reliable official specialized institution to verify that the aforementioned conditions are fulfilled.