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Between Life and Death?
Islamic Biomedical Perspective on the
Question of Brain Death
Rehab Abuhajiar

Ⅰ．Introduction
The conception of brain death presents a real challenge to clinicians andmedical experts when required to take into account cultural and religious
dimensions. Islamic scholars have been tackling the sensitive issue of brain
death in the last few decades from the ethic-legal opinions. The issue at stake iswhether brain death is accepted as true death according to Islamic law. Boththe medical experts and Islamic scholars have been exerting efforts in using
the tools of jurisprudence in order to formulate an ethic-legal opinion on brain
death. The Organization of Islamic Conferences’ Islamic Fiqh Academy (OICIFA), considers brain death similar to cardiopulmonary death. In the meanwhile,
the Islamic Organization of Medical Science (IOMS), takes brain death as anintermediate state between life and death. The assessment is not entirely
uniform. So far, the issue has not received enough attention or inefficiently dealt
within the medical and fiqh literature. Thus, this study proposes to find out how
Islamic perspective understand brain death as a clinical phenomenon? Or, how
Islamic ethics treat such medical uncertainty? In other words, what are theIslamic ethics that should apply to the field of biomedical issues about life anddeath. Such questions are vital as certain ethical principles become ever more
important for clinicians when treating patients with a different religious belief,thus, influencing the course of medical care and practice as well as the interface
with local laws governing the determination of death.
The definition of death itself proves to be as complex as life itself according tovarying cultural perspectives. Death is a mysterious moment of all humantransitions. Individuals and communities view death in different ways whether
looking at spiritually, ethically, legally, medically, etc. One can imagine the kindof challenge facing medical doctors or clinicians on closing the gap between
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medicine and related ethical, cultural, religious and legal aspects. And in thecase of “brain death,” it poses even greater challenge to all stakeholders, be itpatients, clinicians, family members, because of its seriousness and emotional
potential. In non-Muslim societies, death is governed by state law. In global
society, the interface of secular laws and definitions have been witnessing more
attention and scrutiny as to adapt to the needs of religious and cultural
sensitivities of people with different religions and cultures. What is being
witnessed, though, is an evolutionary process of the means of determining brain
death and how such concepts and notions are being interacted and debatedwithin Islamic societies and communities. In other words, how Islamic jurists
and medical professional try to answer the ethical question on brain death froman Islamic perspective. This paper is going to show that two scholarly schoolsof thoughts have shaped the debate within the Islamic biomedical ethics
discourse to treat complex questions of brain death. Contemporary Muslim
scholars have devised a renewed methodology within Islamic jurisprudence,
known as ilm al-maqasid (the higher objectives of Islamic sharia) which aims at
renewing Islamic law and rulings. This methodology examines the entire fieldof biomedical ethics, including brain death, from a holistic approach. Utilized asa check list, the methodology of higher objectives requires the collaboration
between Muslim scholars and biomedical professional so that scholars become
well informed of the necessary medical and scientific knowledge of brain death.
Such collaboration is deemed highly crucial for contemporary scholars in order
to come up with the appropriate ethical rulings and scholarly opinions from andIslamic perspective.
In investigating the interface between brain death and related Islamic ethicalprinciples, we can show further understanding of Islamic ethical perspective indealing with commonly shared issues like wellbeing and health, caring of oldaged people, dementia, smoking, etc.

Ⅱ. The Concept of Islamic Biomedical Ethics
In order to facilitate an understanding of the issue of brain death, ethicallyand legally, it is crucial to illustrate the debate around the definition of“biomedical ethics.” Later, we shall investigate the definition of death, brain
death as a necessary prelude to the discussion of the issue of brain death54

Between Life and Death? Islamic Biomedical Perspective on the Question of Brain Deathaccording to Islamic ethical understanding or more specifically the perspectiveof Islamic biomedical ethics.
There are various contested definitions which are related to the field of ethics
in medicine and bioresearch.1 At the present time, scholars often use the terms“medical ethics,” “bioethics,” and “biomedical ethics.” 2 The debate amongscholars continues in attempting to provide a more agreeable definition of thephenomenon. What specific term is most widely used? What does each one of
the three terms informs us? And finally, what do Muslim scholars prefer touse? 3
Perhaps one of the mostly common known definition is “medical ethics” which
is more of a traditional field describing the relationship between a physician andpatient.4 As the focus is limited to a physician-patient relationship, the term“medical field” does not imply the larger realm of medical sciences and bio
research such as stem cells and technology. At the present time, medical andrelated scientific research and technical breakthroughs points towards a larger
horizon beyond the strictly traditional physician-patient relationship. Thus, theterm “medical ethics” remains limited in the face of immense advancement andprogress in the medical sciences and technologies. It becomes necessary to seekother definitions to describe the phenomenon in question.
Another term known as “bioethics” is used widely. 5 Bioethics consists of thetwo words; “bio” and “ethics.” The origin of the word “bio” is Greek, meaning“living things.”6 The definition implies a vast meaning that there are possibilities
of including various types of living things such as animals, food, agricultural
products. In addition, the term can be perceived to cover public health andhealthcare ethics. The wide and vast implication of the term “bioethics” pausesa challenge to ethicists as to where does it end? Shall the term “bioethics”
include animals for example? It appears that the term “bioethics” does not domuch justice in its description as a definition. It is too broad with no limit orend.7 This necessitates a more suitable definition of the phenomena of medicine
and bio research on one hand and related ethics on the other.
It is of a high priority to come up with a definition that does answer to themodern rise of medicine and related science and technology. 8 The term
“biomedical ethics” appears to answer the need for a more precise definition
which does not restricts itself to the traditional medical field but also covers
issues such as genetics, reproductive health, cell research, research ethics and
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experimenting with human beings. This definition pertains a broader term than“medical ethics” as it includes the practice of medicine related to human beings
but also deals with related medical science and technological advances.
Biomedical ethics as a definition seems to be the most appropriate whenconnecting ethics with the “biomedical field.” For Muslim scholars, especially, in
the Arab world, have tried to come up with the most suitable equivalenttranslation in Arabic language. The understanding of Arabic language isimportant to all Muslims because the Quran (the Holy book of Islam) is in
Arabic. Muslims do differ linguistically and racially, but every Muslim must
learn some Arabic in order to perform the daily prayer as an example. For any
Muslim scholar, anywhere, particularly the field of f iqu ( jurisprudence),
k nowledge of A rabic is es sent ia l a s usu l a l f iqu (t he f u nda ment a ls ofjurisprudence) requires a good command of Arabic when referring to the versesof the Quran and Hadith (the holy book and the prophetic traditions) which areconsidered the two basic sources of Islamic legislation and ethics.
A discussion has ensued on what would be an appropriate translation of theterm “ biomedical ethics” in Arabic. Certainly, the majority of Muslims
worldwide are not Arabic speaking, but Arabic language is the language of the
Quran (the holy book of Islam) and Sunna (the prophetic sayings and actions).
Muslim scholars and jurists rely mainly on Arabic sources in order to produce
rulings and scholarly opinions (fatwas). The effort to bring an Arabic translation
would be helpful in general to facilitate a better understanding of the biomedical
ethics from an Islamic perspective. The Arabic equivalent for the Greek word“bio” is haya.9 From the word “haya,” more suitable vocabularies are derived inorder to produce exact words for the definition in Arabic. Two words arederived, ahyaiyah, and hawiyah for the word bio.10 A prominent Muslim scholar
named Raysouni pointed out the word hawyiah seems to provide a wider
meaning than the specific medical field. The word hawyiah implies both the
medical and bio research for example. It implies the meaning of “lively” or“active.” As for “medical,” it is “tibbiyah” in Arabic. Combined together, theArabic term for “biomedical” becomes “hayawiyah tibbiyah.” The combination
contains hawyiah for biology and tibbiyah for medical.11
How is the term “ethics” perceived among Muslim scholars particularly in its
Arabic language context? The literal translation of the word “ethics” in Arabic
is akhlaq or adab. For the word akhlaq, it comes from the Arabic root verb kh56

Between Life and Death? Islamic Biomedical Perspective on the Question of Brain Deathl a-qa. The verb means “to from” or to “create” as it implies completingsomething.12 There is a knowledge of discipline known in Islam as ilm al akhlaq
which means the science of morality. The name of the discipline is derived fromthe same root verb kh-la-qa. The other Arabic word for ethics is adab. The
literal translation of adab is “literature.”13 But it is implication goes further asadab means the combination of both knowledge and personal conduct. This isconsidered the basic foundation of a human personality; knowledge and good
conduct. The word adab pertains towards an action of improving and refining
one’s conduct. It is the ethics that defines the character both at individual level
as well as professional one. It is no surprise that the word adab was used inprobably the most important book in Islamic history on medicine and ethics
titled, “Adab al-Tabib” (The Practical Ethics of a Physician). The work belonged
to the prominent ninth century physician Ishaq ibn Ali al-Ruhawi. His bookremains relevant to this our present day when it comes to the Islamic code
relevant to the medical ethics.14 The ethical factor played an important role inshaping Islamic philosophy on medical ethics throughout history.
Being considered as a “sub-branch of applied philosophy,”15 ethics is strongly
linked to morality. An ethical application of distinguishing between “right andwrong” or “good and bad” at any given situation or conduct.16 In the field of
medical ethics and bio research, biomedical ethics is the subdivision of ethics
that attempts to mitigate the various challenges in the field. Contemporary
discourse of ethics in the West was produced as a result of philosophicalendeavor which over time, distanced itself from Christian frame of reference.
Well known Western philosophers such as Augustine and Kant influenced the
new secular discourse in the west by shifting the reference to ethics fromreligious to philosophical. The notion of “Right and wrong” has become subject
to human experience according to the secular discourse. This strict notion of
ethical reference does not exist in Islamic intellectual view. Yet, without a doubt,
Muslim scholars have always studied and adapted different philosophicaltradition throughout history in order to fit such imported intellectual traditions
to suit Islamic discourse. But, the teachings of Islamic religion and texts havealways proven pivotal in influencing the outcome and shape in the realm of
ethics in Islam.17

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Ⅲ. Islamic Sources of Ethics and Law
The main sources of Islamic ethics and law are the Quran (the Holy book ofIslam) and Hadith (the prophet’s sayings and actions) and there are numerous
references to the human body, hygiene and general health. The Islamic notionof al-tahara means a ritual purification in which fuqaha (Muslim jurists)
provided lengthy explanation with details throughout written chapters ofjurisprudence in order to maintain human body’s cleanliness and caring for
health.18 In some cases, fuqaha, themselves, were medical doctors who practiced
medicine and were well versed in the science of jurisprudence. The efforts by
the jurists in establishing the tradition of ritualistic hygiene can be described as
the beginning of what is known to be “medical ethics” in Islam.19 The jurists’goal was to preserve and protect life, welfare and dignity of human kind andhealth represent a personal integrity in which every individual has the right tohave. In other words, health is connected to a personal integrity and in Islam
this is relevant to the larger Islamic notion of life and death and the common
good and interest of any given community. Islam’s main source, the Quran andHadith, have ample references to such conception and understanding, pointing
towards health and medicine.
One vital aspect of how the Quran looks at health is that the revelation itself
is an integral part of health. The Quran says, “a guide to a remedy (a cure that
restores health), for those who believe.”20 What is meant here is the wellbeing of
the heart and its peacefulness or serenity are vital to the meaning of life which
can lead to a healthy one. 21 A healthy heart can lead an individual to live a “ahigher quality” of life free from vises such as lying, ego, arrogance, hate, etc. So,
in Islam, the idea of returning to God after death is emphasized on the ideal of
returning to God with qalbin salim (a healthy heart). It points out to theimportance of possessing a healthy heart throughout life before death. The
Quran highlights this point, “a day when neither wealth nor children will be of
any use, but for who return to God with a sound (health, balance, peaceful)salim heart.” 22 In Arabic, the root verb of salim is sa-la-ma which means areference to health and welfare as well as spiritual peace and tranquility. 23
The idea that revelation is “a remedy” is to motivate the conscience ofbelievers to strive towards inner peace or health which can lead ultimately togeneral wellbeing and health. 2 4 The well-known concept of jihad al nafs
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Between Life and Death? Islamic Biomedical Perspective on the Question of Brain Death(exerting one’s utmost efforts) is to realize the highest form of wellbeing,
including health and human body. 25 Human existence in this life has a purpose,according to Islam and the aim of existence of man/woman is that God has
entrusted a human being as vicegerents of life and of earth. 26 That everyone in
responsible in this life as g uardia n on this earth. “ Then, we made you
vicegerents on Earth.”27 People are not only responsible for themselves only, butalso extending to every fellow human being and that saving one life, “as if they
had saved a ll ma nkind.” 2 8 G od g ives life a nd huma n body a nd it is t heresponsibility to take care of the body and its health and maintain its fitness.
Prophet Mohammad referred to the right of body when he said, “Your body has
rights over you.”29 Here it is vital reference to the Islamic concept of protecting
life as one of the main five aims of Islamic Sharia. The human life and thehuman body are entrusted by God and it is the responsibility of the believe topreserve and protect them. Good health and the efforts to maintain good healthas well as finding cure in order to preserve the overall wellbeing is clearly
emphasized. “Ask God for health, for no body receives anything better than
good health.”30
In Islam, God gave the body and life and that one day the body returns toHim. 31 As God has entrusted the body, nourishing and taking care of the body
becomes necessary to seek the best means of curing any illness. Seeking
solutions and medical remedies become a priority as an endeavor to find a curefor the illness in addition to ease the pain. This is emphasized by the prophet
saying, “There is no disease for which has not provided a cure.”32 It is vital tohighlight the confidence in seeking medical solutions through new discoveries,
science and bio research. In addition to the efforts in finding cure for illnesses,
the sound heart and spiritual wellbeing make a big difference in the overall
health of an individual as the notion of health and sound heart can become asource of remedy and hope in the long run. Explaining here the Islamic
philosophical perspective on illness, cure and wellbeing is not to highlight how
different it is from Western medicine, but rather to facilitate further theconnection with questions of ethics and how it is relevant to the life and deathin the long run.
It is crucial to point out the essential link between ethics on one hand andhealth of body and heart as well as the overall notion of life and death,according to Islamic teachings. In daily life, people face diseases, epidemics,
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accidents and health challenges in general. Medicine and bio research attempt
to respond to such challenges in the pursuit of finding solutions, cure, easing
pain, etc. However, such new methods and discoveries do not come in vacuum. 33
Challenges do arise when experimenting on human beings for example ordeciding on ending a patient’s life due to pain and certain circumstances. To
meet up to such challenges and rising ethical concerns in the medical and bio
research areas, the Islamic perspective becomes the more necessary tounderstand well its dynamics and concepts. That even becomes the moreurgent since in principle, there is no distinct branch of knowledge or discipline
known in Islamic history as “Islamic Biomedical Ethics.” The word “ethics” itself
c a n a c t u a l ly b e fou nd i n I s l a m ic s c ie nc e s a nd m at er i a l suc h a s f i qh
(Jurisprudence), kalam (scholastic theology) and tafsir (Quranic exogenesis.) 34
Thus, despite the long existence of the “Science of Morality” (Ilm Al-akhlaq),
there never existed a separate branch of biomedical ethics in Islamic history. In
all, the term biomedical ethics is more of a contemporary discipline which has
gradually witnessed its own formation to become a credible and recognized
branch of knowledge. A fact that has been aptly infused with the acceleration of
globalization and technical medical advancement, the discipline of biomedical
ethics has become the more relevant in the multi-cultural societies with diverse
religions, set of values and cultural norms. In the case of Islamic culture, this iscertainly the case as many Muslim communities live in different parts of theworld in which Sharia, as a collective moral and legal reference, play a crucialrole in applying ethics on issues of health, wellbeing, life and death. 35
3-1. The meaning of Sharia and its centrality to Islamic Biomedical ethics
For Islamic ethics in general, the basic principle is the faith in Allah for boththe individual and society in seeking to approach Allah as much as possible. 36
Sharia is the method to approach Allah. In the contemporary Muslim world, no
Muslim country applies Sharia as a legal frame of reference to the governmentor the state. However, at individual level, Sharia is quite relevant and remains
functional for Muslims no matter where they are. 37 Sharia can simply bedescribed as the “collective ethical subconscious of the Muslim Community.”38 In
real life, this means when a Muslim is challenged with an ethical issue or aquestion, he/she would seek the opinion of a scholar or an expert in Islamic law.
Every Muslim knows what are the goals of Sharia which comprise five basic
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Between Life and Death? Islamic Biomedical Perspective on the Question of Brain Deathnecessities of life; the protection of life, religion, intellect, integrity and property.
Thus, when a Muslim seeks an advice, those five necessities represent theoverall frame of reference. The aim becomes to find the most suitable divine
law for a certain issue and biomedical issues are very relevant and important.
Therefore, for the case of brain death, as an example, it is vital to understandthat only God defines what is right and what is wrong. That means good deed
are good because God instructs them and evil deeds are evil because God
forbids t hem . 3 9 The concept here poi nts towa rds a n u nderst a nd i ng ofdependency on revelation. Furthermore, there is a purpose that God, the will ofGod, is meant and enhanced through human reason. Relying on revelation,
human reason can distinguish and make rules to apply in different aspects ofday-to-day life. Through such notions and concepts, a rich ethical tradition witha culture of legal thought, such as jurisprudence, experienced flourishment andprogress in Islam. The most obvious result was the formation of the disciplineof usul ul-fiqh (Principles of Islamic Jurisprudence) which is about studying thesources of fiqh laws and produce rules. When examining an issue in the field ofbiomedical ethics, scholars and jurists put efforts to return back to the root
(usul) of revelation. Thus, usul ul-fiqh can mean the science of Jurisprudence.
Once the root is examined, a rule is derived and the actual law or rule isapplied on a specific case concerning biomedical ethics. That is why it is highly
crucial to understand what is meant by Islamic Sharia? In the contemporary
time of internet and the barrage of media outlets, the word sharia has been
often taken out of context, stripped of its real meaning, and falsely politicized.
So, it would be worthwhile to provide a concise and brief definition andunderstanding for the word Sharia and its purpose in Islam.
The understanding of the term sharia as a word and context is certainly
crucial in grasping the Islamic perspective on biomedical ethics in general andthe issue of brain death in particular. The root verb of the word sharia is sh raaa (to command, to make lawful, to prevent to designate). It also means “flatand clear landscape” and “clear straight road.”40 Another meaning includes to “
be free from ambiguity and vagueness.” The contextual definition of sharia is
known as “the complete guide of al-din (religion), pertaining to rules, commands
and prohibitions that God revealed upon believers. The great Andalusianscholar, Ibn Hazm, referred to the matter of sharia in illustrating that Islamic
belief brings Muslims together where sharia organizes their lives in order to
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bring people from darkness to light.41 He added that Sharia is about principles
and rules that Allah has commanded upon believers in order to organize bothreligious and earthly lives. In other words, sharia takes care of ibadat (acts ofdevotion) as well as muamalat (dealings and transactions) for the happiness of
all human beings, stability, justice and wellbeing.42
From sharia, principles are derived from the Quran, Hadith and ijmmaa(consensus of scholars). The principles depend on two pillars, complete faith inAllah and it is God that created sharia. That means sharia cannot be changed,
however, sharia is relevant, realistic, moderate when taking into consideration
the realistic conditions and circumstances of people. The rights of every man
and woman is guaranteed under sharia and the application of sharia is suitableto every place and time for all people in the pursuit of individual’s happiness inthis life and after. The five necessities of sharia are well known to every
Muslim and they constitute the following basic five necessities; protection of life,
religion, intellect, progeny and property. The scholarship of the study of sharia
developed over the course of Islamic intellectual history. With the advent of thetwentieth century, a prominent Muslim scholar form Tunisia introduced a new
discourse on the study of Islamic Sharia. Ibn Ashur wrote a book, The Scienceof the Higher Objectives of Sharia ilm al -maqasid). The Arabic word ilm
stands for science or knowledge while al-maqasid means higher objectives. The
book is about focusi ng on renewi ng a nd rei nv igorat i ng t he science ofjurisprudence which has not undergone any significant change since the 9 th
century. Different schools of jurisprudence developed over time where manyscholars became entangled in arguing, defending each one’s school instead ofresolving a given issue or challenge. Thus, ilm al-maqasid was proposed as arenewed methodology for the renewal of Islamic law. The basic tenet of theargument of ilm al-maqasid is that the text of sharia is infinite, however issues
and incidents are not infinite. Certainly, biomedical ethics, including the questionof brain death, is one of those issues and challenges that are not infinite. An
additional purpose of ilm al-maqasid is to minimize disputes as some scholars,
instead of focusing on the issue in question, become biased to own mathhab(school of thought). In short, ilm al-maqasid is a methodology to address current
issues as the fast pace of change in sciences and technologies is moving forward
on an unprecedented fashion.
One of the most concise definition of al-maqasid has been introduced by the62Between Life and Death? Islamic Biomedical Perspective on the Question of Brain Deathscholar Al-Najjar. His definition of al-maqasid is summarized in the following;“The ultimate objective of sharia (al-maqasid) is to empower the human being
to realize what is good for him and his wellbeing through the realizing thereason for his/her existence that a human being is the khailfa, vicegerent, on
this earth. And that by developing of individual self and social organization,community, for the purpose of facilitating happiness of human being in this lifeand hereafter.” Thus, contemporary Muslim scholars have opted to apply themethodology of al-maqasid in the field of biomedical ethics.
One view considers al-maqasid as a holistic approach in dealing with thepreservation of personal integrity (nafs). In other words, a person’s health andlife are based on higher objectives. The health of a person is not about atechnically medical and chemical quest, rather it is about a more comprehensive
approach and concerned not only to health itself medically but also to theoverall sound and spiritual context. The approach of al-maqasid requires
further examination and study in terms of refinement and clarification.43 Froma n Isla m ic poi nt of v iew, pract ica l applicat ion of et h ics needs ca ref u lconsideration in a holistic manner; connected as much as possible to theknowledge of biomedical field. It would be feasible, then, to say that Islamic
biomedical ethics are applied. The structure of such approach must be clear forthe scholar and those concerned. Three steps can summarize the applicabilityof biomedical ethics; defending the fundamental conception, determining thehigher objective particular to the field of biomedical ethics and finally bringing
about a terminology of both the conception and ultimate goal.44 In other words,
al-maqa sid can function as “a checklist that can be utilized in tacklingbioethical issues and dilemmas.”45 Thus, al-maqasid is designed as a simplified
version of sharia by simply understanding what does sharia ultimately want?
The answer to the question aims at examining the entire field of biomedical
et h ic s , i nc lud i ng t he i s sue of br a i n de at h . It i s a b out a re newa l a nd
reinvigorating the approach in order to deal effectively with important issues
such as biomedical ethics. In all, the Muslims’ approach to sharia and its higher
objectives is about an effective way of mitigating the contemporary ethical andlegal issues of biomedical ethics, including brain death.

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Ⅳ. Islamic Perspective on Brain Death4-1. The Evolving Definition of Death
In medical practice, death has been defined traditionally as “the irreversible
cessation of cardiac and respiratory activity.”46 This definition is mostly used inemergency medicine settings. Yet, technically speaking, how would it bepossible to know the duration of cessation of the cardiopulmonary. Thisparticular point is further complicated with the newly introduced advanced
technologies such as extracorporeal membrane oxygenation, mechanicalventilation as well as cardiac bypass. In such instances, the function ofcardiopulmonary may temporarily cease, however the period of the function of
the brain may become extended in time. Clinicians and medical institutions may
differ in deciding the actual time point where the cessation of cardiopulmonaryof a patient occurs. Also, the patient’s health condition does represent a concern
because of possibilities of comorbidities where a patient may suffer additional
illnesses throughout such a process.
4-2. Definition of Brain Death
In 1959, the concept of “ brain death ” was introduced through studies
conducted by Mollaret and Gluon 47 when they referred to patients withirreversible coma. By the mid-1960s, additional medical terms surfaced, namely“cerebral death syndrome” and “electro cerebral silence,” designated to describe
patients with brain death.48 A well-known report, The Ad Hoc Committee ofthe Harvard Medical School to Examine the Definition of Brain Death, waspublished in 1968. The report described irreversible coma as brain death. It
stated, “an organ, brain, or other, that no longer functions and has no possibilityof functioning again is for all practical purposes dead.”49 Moreover, the reportbased the diagnosis of brain death on the total unawareness of externallyapplied stimuli with no evidence of spontaneous breathing, no brainstem reflexes
and a flat EEG.” 50 Many counties, during the time of publishing the report,
passed a law recognizing brain death. 51 Perhaps in one of the first conferences
to be held, representatives of the three Abrahamic religions met to discuss
ethical issues, focusing mainly on defining death. The outcome of the conference
described cerebral death as “a reasonable concept fully within the province ofthe physician to identify. 52 By 1980, the Uniform Determination of Death Act
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Between Life and Death? Islamic Biomedical Perspective on the Question of Brain Death

produced a definition of brain death. It was sanctioned by the National
Conference of Commissioners on uniform State Laws. 53 The act says, “An
individual who has sustained either: (1) irreversible cessation of circulatory andrespiratory functions, or (2) irreversible cessation of all functions of the entire
brain, including brain stem, is dead. A determination of death must be made inaccordance with accepted medical standards.”54
Yet, the methodology and guideline used at the present time to identity thecase of presence of brain death may differ according to a definition, legal
precedent, compliance based on law or the policy of an individual policy. 55
Confusion is likely to occur among observers even after determination of brain
death particularly with non-brain mediated spontaneous movements as theyfalsely tell of retaining brain function. For example, ventilator autocycling could
be fa lsely understood as a breathing initiated by the patient . A nothercontentious difference is the period acceptable as a determination of irreversible
cessation of neurologic functions. In order to assess this condition sufficiently,
there is no proof to determine the “optimal time period” for such an extremely
delicate condition. 56 The limit of available data to know if the ancillary test isenough to determine irreversible cessation of brain function is a problematic
factor. 57
The Western definition of brain death was borrowed by Muslim scholars
about twenty-five years ago along with the complicated attempts of defining
brain death. This created a challenge to Islamic bioethics. The traditional
Western definitions of brain death have been transplanted in the Islamic
discourse and related biomedical ethics. Complexity of the issue is manifestedby the traditional definition of brain death as cardiopulmonary. Or, brain death
is a state between life and death. Also, the debate on the formulation of brain
death is whether it is whole-brain death or brain-stem death. Clinicians do facea challenging task when considering the above-mentioned issues.
In the Muslim World, the issue of brain death is still debated widely on
whether it is true death. 58 Such debate is not only restricted to religious aspect
but also to include different judgments, rulings, diverge opinions on ethical andlegal issues. The same would apply to secular laws that may be deemed
contradictory from one another. For example, in the United States laws arelegislated and enacted at the federal and state levels, taking into consideration“the constitution, statutes, regulations, and common law or case law.”59 Thus,
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assessment of the ethic-legality of brain death from an Islamic perspective canbe varied and controversial. This fact can add a considerable strain uponclinicians, hospitals and medical institution in taking the religious belief of apatient as well as the local governing laws enacted to determine brain death.
The entire medical care can be influenced by the religious aspect and local
rules within a given culturally- diverse society. Muslim scholars have beenworking in the issue of brain death for decades.
Since the 1980s, Islamic scholars have collaborated with medical professionalin order to come up with ethical and legal opinions on brain death using thenecessary tools of Islamic sharia and laws. These opinions and assessments,
however, maintained its controversy as determination of brain death varied
from one another. The Quran and Islamic tradition do not contain a specific anddirect reference to brain death. The notion of brain death was brought to theforefront of the medical and intellectual discourse in the Muslim world about
fifty years ago, mainly because of organ transplantation and its link to brain
death. This started debate and discussions between Islamic jurists andclinicians.60 The Quran does emphasize the universality of death.61 The Islamicview, according to the Quran, is the moment of death (al-mawt) is the time
when the soul (al-ruh) leaves or separates the soulless body (al-mawt). There is
not precise description of how the soul departs the body. Before death, however,the Islamic principle of “no harm” (la darer wa la dirar fi il islam) is clear andpresent in the mind of a Muslim doctor when facing a situation of determining
death. In other words, “no harm shall be inflicted or reciprocated in Islam.”62
The Islamic principle of “no harm” can be described to resemble the Westernprinciple of nonmaleficence.63 Reflecting on this significant Islamic biomedical
ethical position on death, a number of highly influential Islamic conferences
further explained this crucial principle, pointing out a position on determining
brain death. In his/her defense of life, however, the doctor is well advised torealize his limit and not transgress it. If it is scientifically certain that life
cannot be restored, then it is futile to diligently keep the patient in a vegetative
state by heroic means or to preserve the patient by deep freezing or otherartificial methods. It is the process of life that the doctor aims to maintain andnot the process of dying. In any case, “the doctor shall not take a positive
measure to terminate the patient’s life.”6 4 As a well-known contemporary
Muslim scholar elaborated, “life is given by God and cannot be taken away
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except by Him or with his permission and that preservation of life is one of thefive fundamental objectives of Islamic sharia.”65 Some Islamic juridical councils
have attempted to come up with certain definitions and opinions.
A number of scholar Islamic councils and conferences have attempted tosettle the controversy. The Organization of Islamic Conferences’ Islamic FighAcademy (OIC-IFA) put forward a clear assessment by equating brain deathwith cardiopulmonary death. However, the Islamic Organization of Medical
Science (IOMS) placed brain death between life and death. Other councils havedenied and dismissed the whole notion of brain death. The result there is no
consistent position on the ethical and legal aspect which reflects the lack ofconsensus on the entire concept of brain death.
However, the Islamic institutions’ role is crucial for the understanding of brain
death and its relation to Islamic biomedical ethical stand. The Organization of
the Islamic Conferernce-Isalmic Fiqh Academy, OIC-IFA, in 1986, and theMuslim World League, MWL, in 1987, produced decisions (qarart), concernedwith legitimizing a criterion of brain death. In 1986, at the third annual
conference in Amman, Jordan, the OIC-IFA produced resolution number Five.66
The decision declared that a person is considered legally dead and sharia
principles can be applied when one of the following signs is confirmed; “ 1.
complete stoppage of the heart and breathing, and the doctors decide that it isirreversible, 2. complete stoppage of all vital functions of the brain, and thedoctors decide that it is irreversible, and the brain has started to degenerate.”
Under these circumstances, it is justified to disconnect life supporting systems
even though some organs continue to function automatically (e.g. the heart)
under the effect of the supporting devices.”67 In 2003, the ethics committee of
the Islamic Medical Association of North America (IMANA) introduced anddeveloped a document titled, “Medical Ethics: the IMANA Perspective.”68 The
document agrees, in general, with the assessment of the diagnosis of death.
However, it provides more details, demanding attention on the need of trainingof a physician in diagnosing brain death. Despite the fact that the medical
community refer most often to the resolution of OIC-IFA and IMANA, as an
accepted notion of brain death within the Islamic law and Muslim Community,
there are still remaining clinical and conceptual ambiguities. 69 The debate
continues, whether whole-brain death or brain stem or the higher brain
functions are most likely and fitting for the purpose of conceptualizing and
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diagnosis of brain death.70

Ⅴ. Conclusion
The definition of death varies. However, clinicians and the medical community
recognize that the patient’s cultural norms and religious teachings directly
influence the medical care particularly when it encounters the question of brain
death and its related interface with local laws governing the determination ofdeath. Thus, the challenge becomes how to bridge the gap between the conceptof bra i n deat h a nd cu lt u ra l /rel ig ious nor ms . Th roug h t he science ofJurisprudence, Islamic scholars have been working on the issue of brain deathand its link to the Islamic perspective of biomedical ethics for the past decades.
And the issue of brain death poses a considerable challenge because the main
Islamic sources, Quran and Sunna, do not specifically address brain death.
This explains the current controversy among Muslim jurists on the Islamic
discourse concerning brain death. Yet, brain death has been recognized byma ny Muslim schola rs a nd related medica l Isla mic orga n izat ion . The
Organization for Islamic Conference-Islamic Fiqh Academies and the Muslim
World League, the Islamic Medical Association of North America and otherreligious-based medical organizations have in principle agreed that brain death
represents true death. Yet, the Muslim World does not unanimously agree on
the above definition. As shown throughout the paper, and despite the complexityof this subject, Islamic scholars have basically created two main interpretations.
One considers brain death equal to cardiopulmonary death. The other considers
it as an intermediate state between life and death as brain death does notprescribe to the standard of legal death. Thus, the application of the Islamic
biomedical ethics on brain death varies.
This paper, then, examines how the two scholarly schools have shaped thedebate within the Islamic biomedical ethics discourse to treat complex questionsof brain death. As explained in the discussion above, a renewed methodology
has been devised which basically aims at a renewal of Islamic law and rulings.
Contemporary Muslim scholars have opted to apply the methodology of ilm almaqasid (the higher objectives of Islamic sharia) in the field of biomedical
ethics. It is a method aims at addressing current issues of science a ndtechnologies which are moving in a fast pace in an unprecedented level. The
68

Between Life and Death? Islamic Biomedical Perspective on the Question of Brain Deathrenewed methodology avoids the tedious entanglements of past disputes among
various schools of thought within Islamic jurisprudence. It is a simplified versionof sharia to reinvigorate the understanding of what does sharia want ultimately.
This renewed methodology of ilm al-maqasid functions as a checklist which tobe utilized in tackling bioethical issues and dilemmas. It examines the entire
field of biomedical ethics, including brain death, in a holistic manner. Islamically,practical application of ethics requires careful consideration holistically. The
structure of such approach needs to be clear for the both the scholar and the
medical professional. The collaboration between the scholars and practitioners
cannot be overemphasized. For scholars to apply ethics, knowledge of biomedical
field is crucially necessary to be informed by the collaboration of professionals
in order to formulate an educated opinion and thus an ethical ruling without
losing sight of the higher objectives of sharia. The introspection of the spiritualand intellectual is far more demanding. Therefore, it is possible, then, to saythat Islamic biomedical ethics are applied. Since the 1980s, there has been an
encouraging progress by the increasing collaboration between Islamic scholars
and medical professionals in order to come up with the ethical and legal
opinions on various biomedical issues, including brain death, using the tools ofIslamic sharia and its higher objectives.

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Endnotes
1
2
3
4
5
6
7

8
9
10
11
12
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14
15
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21
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Mohammed Ghaly, ed., Islamic Perspectives on The Principles of Biomedical Ethics(London, World Scientific Publishing), 408.
Ibid.
Ibid.
Ibid.
Ibid.
Dictionary, T. (n.d.). bio. Retrieved September 3, 2017, from Dictionary.com:
http://www.dictionary.com/browse/bio?s=t)
This point was published in a conference proceeding that took place in the city of Doha,
Qatar, 5-7 January 2013 at the Center for Islamic Legislation and Ethics (CILE), Hamad
Bin Khailfa University.
Ghaly, op.cit., 408
Ibid., 410.
Ibid.
Ibid.
Ibid., 170.
Ibid.
Ibid.
Aasif I. Padela, “Islamic Medical Ethics: A Primer,” Bioethics, 21, No. 3 (2007): P.170.
Ibid.
Ibid.
Tareq Ramadan, Radical Reform: Islamic Ethics and Liberation (Oxford: Oxford
University Press, 2009), 159.
Ibid.
Ramadan, Radical Reform, 41-44.
Ramadan, Radical reform, 160.
Quran 26:88; 26:89
Ramadan, Radical Reform, 160.
Ibid.
Ibid.
Ibid.
Quran 10:44
Quran 5:32
Hadith reported by Bukhari.
Hadith reported by Bukhari and Muslim.
Ramadan, Radical Reform, 160.
Hadith reported by Bukhari and Muslim.
Ramadan, Radical Reform, 161.
Padela, “Islamic Medical Ethics,” Bioethics, 21, No. 3 (2007): P.170.
Ibid.
Padela, “Islamic Medical Ethics: A Primer. Bioethics, 21, No.3 (2007), 169-178, P.175
Ibid.
Ibid.
Mallick, A. S. (2012, April 23), The Aims and Purposes of Sharia, Retrieved August 29,
2017, from Inside Islam: http://insideislam.wisc.edu/2012/04/the-aims-and-purposes-ofsharia/

Between Life and Death? Islamic Biomedical Perspective on the Question of Brain Death

40 Ibid.
41 Chauki Lazhar, Obligations of The Renewal of The Principles of Jurisprudence inContemporary Era: The Case of Tareq Ramadan (Cairo: Dar Al Mashreq, 2017), 59.
42 Ibid.
43 Ghaly, op.cit., 417.
44 Ibid., 416
45 Saifuddeen. (2014, June 20). Maqasid al-sharia as a complementary framework toconventional bioethics. Sci Eng Ethics, 20(2), 317-27. doi:10.1007/s11948-913-9457-0)
46 Miller, A. C., Ziad-Miller, A., & Elamin, E. M. (2014, October). Brain Death and Islam:
The Interface of Religion, Culture, History, Law, and Modern Medicine. CHEST, 146(4),1092-1101, P. 1092
47 Ibid., 1094
48 Ibid., 1095
49 Miller, “Brain Death and Islam,” CHEST, 146(4), 1092-1101, 1093
50 Ibid.
51 Ibid.
52 Miller, “Brain Death and Islam,” CHEST, 146(4), 1092-1101, 1094
53 Ibid., 1098.
54 Miller, “Brain Death and Islam,” CHEST, 146(4), 1092-1101, 1904
55 Ibid.
56 Ibid
57 Ibid.
58 Miller, “Brain Death and Islam,” CHEST, 146(4), 1092-1101, 1098
59 Ibid.
60 Ali Reza Bagheri.( 2005) Retrieved August 8, 2017.Priority Setting in Islamic Bioethics:
Top 10 Bioethical Challenges in Islamic Countries. (n.d.). Retrieved from https://www.
cilecenter.org/en/articles-essays/priority-setting-islamic-bioethics-top-10-bioethicalchallenges-islamic-countries-dr-alireza-bagheri
61 Qur’an 3:156, 3:185, 29:57, and 39:42
62 Miller, “Brain Death and Islam,” CHEST, 146(4), 1092-1101,1099
63 Ibid
64 International Organization of Islamic Medicine; Islamic Medical Association of South
Africa. Islamic Code of Medical Ethics: Kuwait Document Johannesburg, South Africa:
Islamic Medical Association of South Africa; 1981.P.69
65 Ghaly, op.cit., 239
66 Miller, “Brain Death and Islam,” CHEST, 146(4), 1092-1101,1099
67 Ibid., 1100
68 Padela, A. I., Shanawari, H., & Arozullah, A. (2011). Medical Experts & Islamic Scholars
Deliberating over Brain Death: Gaps in the Applied Islamic. The Muslim World, 101,
35-72
69 Ibid.
70 Miller, “Brain Death and Islam,” CHEST, 146(4), 1092-1101, 1101

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Bibliography
Adib, S. M. (2004). From the biomedical model to the Islamic alternative: a brief overview of
medical practices in the contemporary Arab World. Social Sciene & Medicine, 58,
6 9 7-70 2 . Ret r ieved f rom htt p: //ac .els - cd n .com /S 0 2 7 79 5 3 6 0 3 0 0 2 211 /1- s 2 . 0 S0277953603002211-main.pdf?_tid=4fece018-93a3-11e7-bf7d-00000aab0f27&acdnat=1504771709_19aaa553a1876cd5831d318857d2752e
Aksoy, S., & Elmail, A. (2002). The Core Concepts of the "Four Principles" of Bioethics asFound in Islamic Tradition. Medicine and Law, 21, 211-224. Retrieved from http://
he i no n l i ne . org / HO L / Pa g e? h a nd le =he i n .j ou r n a l s /m lv2 1& d iv =2 3 & g _sent=1&collection=journals
Al-Bar, M. A., & Chamsi-Pasha, H. (2015). Contemporary Bioethics-Islamic Perspective. New
York: SpingerOpen .
Brockopp, J. E. (2008, March 10). Journal of Religious Ethics, 36(1), 3-12.
Bulow, H.-H., Sprung, C. L., Reinhart, K., Prayag, S., Armaganidis, A., Abroug, F., & Levy, M.
M. (2007). The world's major religions' points of view on end-of-life decisions in theintensive care unit. IntensiveCareMed, 423-430.
Chamsi-Pasha, H., & Abar, M. A. (2017, April). Ethical Dilemmas at the End of Life: Islamic
Perspective. Journal of Religion and Health, 56(2), 400-410.
Dictionary, T. (n.d.). bio. Retrieved 9 3, 2017, from Dictionary.com: http://www.dictionary.
com/browse/bio?s=t
Ghaly, M. (Ed.). (2016). Islamic Perspective on The Principles of Biomedical Ethics. London:
World Scientific Publishing.
Haque, O. S. (2008, March). Brain Death and its Entanglements . Journal of Religious Ethics,
36(1), 13-36.
Ibn Taimiya, A. A. (1993). Al Siyasaa Al Shariaa fi Islah Al Rahi wa Al Raiaa. Damascus:
Dar Al Bayyan.
Keane, J. (2009). The Life and Death of Democracy. New York: W.W.Norton & Company,
Inc.
KM, H. (2007). The Possibility of a universal decleration of biomedical ethics. (33, Ed.)
Journal of Medical Ethics, 17-20. Retrieved from http://jme.bmj.com/content/33/1/17.
citation-tools
Lazhar, C. (2017). Obligations of The Renewal of The Principles of Jurisprudence inContemporary Era: The Case of Tareq Ramadan. Cairo: Dar Al Mashreq.
Medicine, I. O., Islamic Medical Association of South Africa, & Islamic Code of Medical
Ethics. (1981). Kuwait Document.
Miller, A. C. (2016, April). Opinions on the Legitimacy of Brain Death Among Sunni and
Shi'a Scholars. Jouranl of Religion and Health, 55(2), 394-402.
Miller, A. C., Ziad-Miller, A., & Elamin, E. M. (2014, October). Brain Death and Islam: The
Interface of Religion, Culture, History, Law, and Modern Medicine. CHEST, 146(4),1092-1101.
Padela, A. I. (2007). Islamic Medical EThics: A Primer. Bioethics, 21(3), 169-178.
Padela, A. I., & A.Basser, T. (2012). Brain Death: The Challenges of Translating Medical
Science into Islamic Bioethical Discourse. Medicine and Law, 31, 433-450. Retrieved
from http://heinonline.org/HOL/Page?handle=hein.journals/mlv31&div=34&g_
sent=1&collection=journals
Padela, A. I., Arozullah, A., & Moosa, E. (2013). BRAIN DEATH IN ISLAMIC ETHICOLEGAL DELIBERATION: Chellenges for Applied Islamic Bioethics. BIoethics, 27(3),72Between Life and Death? Islamic Biomedical Perspective on the Question of Brain Death132-139.
Padela, A. I., Shanawari, H., & Arozullah, A. (2011). Medical Experts & Islamic Scholars
Deliberating over Brain Death: Gaps in the Applied Islamic. The Muslim World, 101,
35-72.
Priority Setting in Islamic Bioethics: Top 10 Bioethical Challenges in Islamic Countries. (n.d.).
Retrieved from https://www.cilecenter.org/en/articles-essays/priority-setting-islamicbioethics-top-10-bioethical-challenges-islamic-countries-dr-alireza-bagheri/
Ramadan, T. (2009). Radical Reform: Islamic Ethics and Liberation. Oxford: Oxford
University Press.
Report. (1968). A Definition of Irreversible Coma: Report of the Ad Hoc Committee of theHarvard Medical School to Examine the Definition of Brain Death. The American
Journal of Medical Association, 205(6), 337-340.
Saifuddeen. (2 014, June 2 0). Maqasid al-shariah as a complementary framework toconventional bioethics. Sci Eng Ethics, 20(2), 317-27. doi:10.1007/s11948-913-9457-0
Shomali, M. A. (2008, October 19). Islamic Bioethics: A General Scheme. Journal of Medical
Ethics and History of Medicine, 1:1.
Siddiqui, A. (2006, July). Ethics in Islam: Key concepts and contemporary challenges. 423431. Retrieved from http://www.tandfonline.com/doi/abs/10.1080/0305724970260403
The Holy Quran. (n.d.).
Unal, A. (2009). Living the Ethics and Morality of ISLAM. New Jersey: Tughra Books.
Westra, A. E., Willems, D. L., & Smit, B. J. (2009, November). Communicating with Muslim
parents: " the four principles" are not as culturally neutral as suggested. European
Journal of Pediatrics, 168, 1383-1387. Retrieved from https://link.springer.com/
article/10.1007/s00431-009-0970-8
Zahedi, F., Larijani, B., & Bazzaz, J. T. (2007). End of Life Ethical Issues and Islamic Views.
Iran Journal of Allergy, Asthma and Immunology, 6, 5-15.

73

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Abstract

Between Life and Death?
Islamic Biomedical Perspective on the
Question of Brain Death
Rehab Abuhajiar
The conception of brain death presents a real challenge to clinicians andmedical experts when required to take into account cultural and religious
dimensions. Islamic scholars have been tackling the sensitive issue of brain
death in the last few decades from the ethic-legal opinions. The issue at stake iswhether brain death is accepted as true death according to Islamic law. Boththe medical experts and Islamic scholars have been exerting efforts in using
the tools of jurisprudence in order to formulate an ethic-legal opinion on brain
death. The Organization of Islamic Conferences’ Islamic Figh Academy (OICIFA), considers brain death similar to cardiopulmonary death. In the meanwhile,
the Islamic Organization of Medical Science (IOMS), takes brain death as anintermediate state between life and death. The assessment is not entirely
uniform. So far, the issue has not received enough attention or inefficiently dealt
within the medical and fiqh (jurisprudence) literature. Thus, this study proposes
to find out how Islamic perspective understand brain death as a clinicalphenomenon? Or, how Islamic ethics treat such a medical uncertainty? In otherwords, what are the Islamic ethics ought to be applied to the field of biomedical
issues related to life and death. Such questions are vital as certain ethicalprinciples become ever more important for clinicians when treating patientswith a different religious belief, thus, influencing the course of medical care andpractice. In investigating the interface between brain death and related Islamic
ethical principles, we can show further understanding of Islamic ethicalperspective in dealing with commonly shared challenges such as wellbeing andhealth, caring of old-aged people, dementia, smoking, etc.

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