Living and cadaveric organ donations: a comparative study of Islamic and South African law: consensus and divergence.

Abstract

A practicing Muslim (adherent of the Islamic Faith), is unlikely to consent to organ donation, if it is not in keeping with the tenets of Islamic law (Sharī`ah), even though it may be in accordance with South African law. This is because Muslims regard Islamic law as being immutable and God-ordained, as opposed to man-made (South African law). Although there is a wealth of information on organ donation with reference to both South African and Islamic law, there has not been a study comparing the two sets of law. Thus desk-top research provides a comparative analysis of Islamic and South African law with reference to living and cadaveric organ donation. The legal basis of living and cadaveric organ donation and bequeathing of organs is exposed in South African law and Islamic law (Sharī`ah). Muslims can be politically divided into two main groups; the majority of Sunnī Muslims, and a minority of Shī`ah Muslims. (Iran is the only Shī`ah Muslim country). There is startling consensus between South African law and Sunnī (mainstream) Islamic law, apart from minor differences inherent to each set of laws, on the issue of living and cadaveric organ donation. Shī`ah Islamic scholars hold a more liberal view, and were the first to sanction organ donation. Shī`ah Islamic jurists allow for the sale of organs in Iran through a state run compensated organ procurement system. They base their legal opinion on reason and logic, and the fact that human life is sacred, and that saving a life of a human being is a Divine obligation. Religion plays a pivotal role in people’s attitude to organ donation. With regard to increasing organ donation rates amongst Muslims in South Africa, it is important to publicize the fact that Islamic law not only allows, but encourages, both living and cadaveric organ donation, and that there is broad consensus between South African law and Sharī`ah. A number of recommendations in this regard are made in the concluding chapter.