In a prior ruling you stated: “the bequest (Wasiyyat) of a person that after his death, his organs be donated is forbidden in Shariah”. Please give the explanation for this ruling from the Qur’an and Sunnah. Jazak Allah Khair
The Islamic Fiqh Academy of India, during its Second Fiqh Seminar, held
between 8-11 December 1989 at the Hamdard Convention Centre, New Delhi,
India, resolved that if a person directed that after one’s death one’s organ
should be used for the purpose of transplantation (testamentary disposition,
as is commonly known), it would not be considered as wasiyyah (will)
according to Shari’ah. (“Islamic Fiqh Academy of India – Developing A
Religious Law in Modern Times” in Religion and Law Review, op. Cit., p. 330)
The plausible factors/considerations that may have influenced the adoption
of this negative resolution pertain firstly to the concept of human organ
being regarded as an amanah (trust endowed to every human being by the
Creator) and secondly to the stance that human organ is invaluable.
A. Human Organ: An Amanah
As discussed in chapter ix, there are Muslim jurists who regard the human
body (including its parts) as an amaanah (trust). Therefore, since a human
being does not own his body, he/she cannot make a gift in respect of any
part of his/her body either during his/her lifetime or after death. Thus to
include organ donation in one’s will would not be in order since one cannot
give away that which one does not legally own.
B. Human Organ: Invaluable
The testator’s estate is termed in Arabic as mal mutaqawwam (asset upon
which a price can be set for it). Muslim jurists are of the opinion that a
human being’s person (organs included) is mal ghayr mutaqawwam (invaluable
i.e. no price can be set for it). (Tanzil-ur-Rahmaan. A Code of Muslim
Personal Law. North Nazimabad, Karachi. Islamic Publishers. 1980, vol. 2 p.
330). Thus it logically follows that since no price can be set for human
organ, the inclusion of its donation into one’s will would be regarded as
null and void.
From the book, ‘Organ Transplantation – Contemporary Islamic Legal and
Thical Perspectives’, Abul Fadl Mohsin Ebrahim.
and Allah Ta’ala Knows Best
Mufti Ebrahim Desai
FATWA DEPT.