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Abstract
Traditionally Islamic jurisprudence defines death as
complete cessation of the heart or respiration. However, a
further dimension has been added to this formulation of
death in view of the modern medical technology that can
intervene to prolong life through the life-support system in
the case where all functions of the brain have ceased. This
development has given rise to the question whether brain
death can be recognized as a valid formulation of death
without first defining the criteria of life in Islam. Can
innate integration of vegetative functions without cognition
in a brain dead person be used as the necessary and
sufficient condition of life? What are the social and moral
implications of recognizing brain death as a right criterion
for death in Muslim society?
Some Conceptual
Considerations
Although the Muslim scripture, the Qur'an, contains
various death themes that add significantly to our insight
into the meaning of death, the concept is left undefined and
always portrayed in close relationship with the concepts of
life, creation, and resurrection. The Qur'an seems to be
more concerned to determine the nature of death. Thus, in
speaking about the agonies of death suffered by the wicked
ones it uses the crucial term nafs, which means `person' and
not simply a thing or an existing entity. To quote the
Qur'an:
Every person (nafs) shall taste of death;
and We try you with evil and good for a testing, then
unto Us you shall be returned. ( Q.21:35-6)
In other words, the Qur'an says that it is a person who
has to taste death, and not his physical existence separate
from his soul. It is a person who ceases to exist when death
occurs. Death is the termination of an individual
comprehensive being, capable of believing and disbelieving,
and not simply a living organism. Even though later orthodox
Islam came to accept the mind- body dualism, the Qur'an by
using the term nafs, seems to be rejecting the idea that
some entity, like the soul, leaves the body at the time of
death. Life does not end with death. In the same way that a
person does not cease to exist in sleep, so also he does not
cease to exist in death. And in the same way that a person
comes back to life when walking from sleep, so also will he
be revived at the great awakening on the Day of Judgement.
Hence, Islam views death merely as a stage in human
existence. Physical death should not be feared as an evil.
One should, however, worry about the agonies of spiritual
death caused by living a life of moral corruption. That
sinful life is not worth living.
The mystery of life and death is resolved in the Qur'an by
linking it to the working of human conscience and its
ability to maintain a healthy status of human
spiritual-moral existence with faith in God. Once that
necessary equilibrium between faith and work in life is
lost, then a state of human being's death has set in. It is
this death that should cause anxiety in human beings. Human
efforts should be concerned with the revival of human
conscience which will lead to a meaningful life. Does it
mean that human body should be simply neglected? No, not at
all. It simply means that human death must be viewed as
secondary to the spiritual and moral quality of life. This
religious evaluation of death is reflected in Muslim
cultural attitudes to life and death. In general, Muslim
public does not view, for instance, a persistent vegetative
state of an individual as life. Life in Muslim culture has a
set of criteria which must be fulfilled in order for the
patients, their families and society in general to regard a
person living. These include a person's ability to make
decisions and execute them through his own conscious and
cognitive competence. In the absence of such competence
close family members or religious and lay leaders in the
community assume the guardianship to protect the person's
rights. The principle of equity and public good for society
in Islam allow the leaders of community act as surrogate
decision makers in cases when the person due to mental or
any related incompetency is unable to assume that
responsibility.
Significantly, in the case of a patient in the vegetative
state ethical deliberations in Islam are not only concerned
with determining the value of the patient's life. The
principle of public good (maslaha) demands that an
individual's life must be weighed in the scale of general
well estate of those who are horizontally related to the
patient. End of life decisions require to take into
consideration an individual's interpersonal relationship
with his own family and society in general. If active
medical intervention in the case of a severely brain-damaged
patient leads to further suffering of the patient and those
related to him in society, then the ethical judgement cannot
ignore the ensuing general harm, including the rising cost
of prolonging such life for the entire society.
It is for this reason that Muslim jurists, the Ulema,
have adopted the view that it is permissible for the patient
in an irreversible vegetative state, either through a prior
living will or his immediate family or supreme legal
authority (hakim al-shar`), to refuse any treatment that
simply prolongs the patient's miserable condition. The point
is explicitly made clear that in the eyes of Muslim public
it is pointless and even degrading to intervene medically in
the nature's course towards an imminent death. On the basis
of the religious and moral duty of rejection of harm, if it
is reasonably determined, at least by three consultant
physicians that pursuing a particular course of treatment is
proportionally more harmful than allowing the nature to take
its course, then it is obligatory to stop the treatment.
At the same time, to protect the individual's right to
life, the Islamic law empowers Muslim courts to determine
each case of terminal illness whether it deserves the
essential treatment that would put financial and emotional
burdens on the family and society. Although the court takes
into account the suffering and welfare of the family, there
is no justification in Islam to end a human life merely
because of the family's and patient's suffering.
Nevertheless, it must weigh financial and related demands
imposed on the state's resources to provide medical care to
needier patients who have a better chance of recovery. Based
on its presuppositions about the communitarian ethics the
primary obligation of the Islamic court is to ensure the
safety and welfare of the individual in the context of the
society as a whole. This conceptual and cultural
understanding of death in Islam is important to keep in mind
as we consider the legal and ethical deliberations that were
undertaken by Muslim legist in providing the criteria to
determine death. Their decisions were not deduced solely on
the basis of what we would call normative sources like the
Qur'an and the Tradition, the Sunna; they also took into
account cultural understanding of the nature of life and
death in the community. In Muslim culture, until recently
when modern medical technology admitted the distinction
between cessation of cerebral function and cardiorespiratory
function, the pronouncement of death was based upon the
criteria provided by the vitality of mutually dependent
organic system of human body. The terms cerebral death and
brain death are neologisms in Muslim societies which
continue to see death as the cessation of vital functions in
a single organ system rather than a part of the organ.
Having said this, the question arises whether the Islamic
legal tradition provides any criteria to determine when a
person can be regarded as dead.
The Traditional Criteria and Modern
Medicine
Until recently, determination of death in Muslim culture
was not enigmatic at all. In general, Islamic law has
depended upon the opinions of scientific experts and
professionals who have used the pragmatic but traditional
criteria for death routinely observed in patients. According
to the traditional criterion, the life ends with the
permanent cessation of respiration and of circulation. In
other words, Muslim jurists regarded complete cessation of
heartbeat as a sufficient criterion to declare a person
legally dead. The problem arose when modern medical
technology acquired the ability to keep the signs of life
through respiratory support in a brainstem dead patient. The
patients were regarded alive in accord with the traditional
definition of death. It is important to add a footnote here
that the paternalistic and authoritarian style of medical
care in the Islamic world, usually limited to medical
professional and the sponsoring government agencies, has not
allowed for necessary debate involving legal and religious
communities on the issue of when to call patients dead.
There are two interrelated reasons that have prompted
countries like Iran and Saudi Arabia to reconsider the
stance on brain death criteria in the case of patients with
irreversible brain damage while the cardiovascular system
continues to function by means of new techniques of
intensive care:
- Can recognition of brain death lead to the unethical
and illegal retrieval of organs for transplantation in
such patients whose cardiorespiratory physiology can be
kept functional for successful retrieval? In many poor
countries in the Third World there is an irresistible
temptation to make money from the sale of these
organs.
- Can the government policy authorize the health care
providers to withdraw treatment when organ viability can
be maintained by active medical intervention?
Until recently, health policies in the Muslim countries
generally reflected insensitivity to the public's moral and
cultural sensitivities connected with death. The
authoritarianism of medical profession in Muslim societies
is abundantly clear in the following decision that was
imposed as a government policy in Saudi Arabia under the
rubric of Religious Aspect of Organ Transplant:
(1) The Purport of the Senior Ulama Commission's
Decision No: 99 dated 6-11-1402 (AH)/25-08-1982: The
board unanimously resolved the permissibility to remove
an organ, or a part thereof from a Muslim or a Dhimmi
living person and graft it onto him, should the need
arise, should there be no risk in the removal and should
the transplantation seem likely successful.
According to two leading medical doctors Ali al-Bar and
Nizamuddin, the latter being the liver transplant surgeon in
King Fahad National Guard Hospital in Riyadh, the above
policy statement requires the following elaboration:
Should the diagnosis of brain death be
established unequivocally, the physician in charge may
keep the corpse ventilated for the purpose of
pre-arranged organ donation until receiving the consent
of the heirs, or an order from the Qadi, the magistrate,
in the case of an unknown corpse. The ventilated corpse
is considered dead from the time of declaration of brain
death and not from the time of turning off the
ventilator.
The last statement is contradicted by the Council of
Islamic Jurisprudence, which includes jurists from all
schools of thought in Islam and which meets regularly to
review some of these new rulings. Their ruling reads as
follows:
It is permissible to switch off the life support
system with total and irreversible loss of function of
the whole brain in a patient if three attending
specialist physicians render their opinion unequivocally
that irreversible cessation of brain functions has
occurred. This is so even when the essential functions of
the heart and the lungs are externally supported by life
support system. However, legal death cannot be pronounced
except when the vital functions have ceased after the
external support system has been switched off. (al-qarar
al-thani, p. 21)
In none of the rulings examined for this study has any
Muslim jurists tried to define or determine the criteria for
accepting the validity of brain death from Islamic legal
perspective. They have depended on the consultant physicians
to provide their expert opinion, who, appear to be more
interested in getting the approval for retrieving organs.
Hence, the debate in North America concerning the acceptance
of "higher brain formulations of death" and the
controversial aspects of providing medical care of patients
with advanced forms of dementia and PVS is absent in the
juridical literature dealing with the definition of
death.
In its third session held in Amman, Jordan, on October
16, 1986 the Council of Islamic Jurisprudence (majma`
al-fiqh al-islami) once again took up discussed the life
supportive system in the ICU and after extensive and
exhaustive explanation given by physicians specializing in
that field of medicine decided the following:
The person is considered legally dead, and all
the guidelines provided by the Shari`a to determine death
are applicable when following signs are confirmed:
- When complete cessation of the heart or
respiration occurs, and the expert physicians
ascertain that the cessation is irreversible.
- When complete cessation of all functions of the
brain occurs, and the expert physicians ascertain that
the cessation is irreversible and the brain is in the
state of degeneration. In this condition it is
permissible to discontinue the life supportive system
from the patient even when some of the patient's
organs like the heart are kept functional by
artificial means. God knows the best!
The document then proceeds to list the procedure that
must be followed as part of the Brain Death
Documentation:
Brain death is the irreversible cessation of all
spontaneous brain activity including the brain stem.
Before any supportive means is discontinued, the family
members must be counseled. This should be documented in
the patient's chart.
In a question that was submitted by Ministry of Health in
Tehran to one of their leading jurists, Ayatollah Tabrizi,
he was asked about the definition of death in Islamic law
whether it is the cessation of brain function or the
function of heart. His responsa is quite revealing of the
early stages of debate on brain death in jurisprudence. He
says that for that distinction one must refer to a
physician. He says:
It is necessary to refer to the medical
specialist in order to decide whether the first or the
second conforms to the definition of death. Some experts
are of the opinion that if the brain waves show the
cessation for more than two and a half minutes, then
death is definite and there is no way that life could
return. He then proceeds to define death as it is
accepted in the tradition: Death is the passing away of
the soul from the body, as some commentators have
indicated in their explanation of the verse from the
Qur'an: "Muhammad is not but a messenger; before him also
there were messengers." This certainly refers to the
traditional concept of mind-body dualism inherited from
Hellenistic sources by Muslims.
Death is, then, passing away of the soul and cancellation
of life from body. Contrast this with murder. Murder is
death when the cause is related to premeditation or
something like that. Hence, death is distinct from murder.
However, when compared with it, death is natural, whereas
murder is just the contrary. In other words, this jurist
hesitates to regard irreversible cessation of brain function
as a valid form of death. However, the government appointed
council of Islamic Jurisprudence in Iran, under the section
regarding the section regarding Rulings Concerning Organ
Transplantation writes: The criterion for death is that
normal pulse and the heart by means of which a person
continues to live has come to a complete halt. When a person
reaches this stage he is regarded as dead. Reviving the
pulse in his heart through an electronic device does not
constitute life for him. However, if by means of a
ventilator or other mechanical device the heart begins to
function or by means of an artificial heart a person's life
is restored, then the person is regarded as being alive.
Hence,
A. As long as he is not dead, if he
himself gives the permission to remove an organ, with the
conditions stated in # 2 above, then it is permissible to
remove that organ for transplantation.
B. After he dies, even when the heart is kept
alive by some electronic device, it is permissible to
remove his organs for transplant, provided he has made a
will to that effect. Or, there is no problem in removing
his organs under the two above- mentioned
circumstances.
There is little doubt that the redefinition or expansion
of the traditional criteria of death is virtually dominated
by two factors: retrieval of organs and termination of
medical treatment. There is little conceptual or
philosophical discussion regarding the confusion over the
higher brain conceptions and its implications for
continuation of treatment. In other words, under the present
paternalistic medical care there is little room for
intellectual interaction between religious thinkers,
doctors, jurists and policy makers to undertake precise
understanding of the way developments in medical care are
interacting with traditional beliefs about life and death in
Islam. In fact, there is abundant evidence to suggest that
the neologism connected with braindeath among Muslims,
adopted from Western languages, is fraught with persistent
ignorance of the facts about brain death. The true state of
patients with irreversible brain damage whose other organ
systems continued to function remains non-comprehensible
among various sectors of Muslim society. And, in the absence
of any public debate geared towards educating the society
that has accepted the brain death criterion for practical
reasons without questioning its validity in certain
controversial cases, it seems unlikely that any well
considered definition and a set of criteria for determining
brain death will emerge among Muslim jurists.
The exception is Iran where the interaction between
policy makers and the religious establishment has been
vibrant and even paradigm setting in the Muslim world. The
Iranian parliament in 1995 rejected to accept the present
brain death criteria as sufficient to initiate a state
supported policy of organ retrieval for transplantation. The
debates have centered on the inevitable connection between
the notion of brain death and the permissibility of organ
retrieval enterprise. Is the society unwittingly endorsing
killing one patient in order to save the life of another?
After all the success in the transplant surgery requires
that organs be removed from patients who breathed. In the
eyes of the public, still under the traditional criteria of
death in Islam, the surgeons seemed to be engaged in
literally terminating the lives of these helpless
patients.
More importantly, the Qur'anic view of human person, the
nafs, that rejects the dichotomization of human personality
into a body and mind, is at the root of theological debate
on the relationship between life and death. As a nafs who
dies through the divine decree any definition of this nafs's
death must focus on the criteria that determines the death
of the whole human rather than just a part of his biological
existence. In other words, no definition of death that fails
to take a living person, as seen in the Qur'an, can have a
valid ground for acceptance in Islamic jurisprudence.
Obviously, if the brain death criterion is rejected by Iran
as a valid ground in pronouncing death, it raises the
critical issue justice in distribution of meager resources
for health care. What is responsibility of the health care
providers to keep the brain dead person alive with expensive
intensive care technology? Here the Iranian jurists have
resorted to practical principles like rejection of harm and
proportionality to provide sanctions for turning off the
life sustaining equipment. In the final analysis, it is
pragmatic considerations rather than any philosophical or
theological evaluation of the obligation that have
determined the course of action. And, like any other ethical
judgement that takes into consideration the contextual
aspects of a given case at hand, the judicial decision in
this and many other matters related to the interaction of
traditional values and modern biomedicine, is at the most
temporary and open to revision as underlying confusion about
brain death becomes clearer to not just the medical
community but also Muslim jurists, theologians, and
politicians.
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