Islamic Juridical Discourse on Death: Is Brain Death a Modern Criterion of Death?
This paper engages with a highly sensitive issue of biomedical ethics where a patient—whose heart is still beating—may or may not be declared dead. To be more precise, the study outlines some of the controversies associated with the issue of brain death debated and argued by contemporary Muslim juridical scholars and medical scientists, with illustration of the legal and medical reasoning behind them. The study will explore the question of removing a patient from life support machines once scientifically declared brain dead by medical experts and practitioners. It is demonstrated that the discussion on brain death has evolved into plurality of opinions and hence the issues involved in it have been subject to disagreement, which lends flexibility to the Islamic jurisprudence and allows implementation of Islamic injunctions in the best interest of the person in question and his/her family. The discussion is directly related to the question, “when does legal personality end?” The end of legal personality entails determining—if the patient is a man—(a) should his wife be treated as a widow?; (b) should his wife undergo ‘iddah period and be allowed to marry another man?; (c) should his children be treated as orphans; (d) should his property/assets be divided among his heirs?; (e) while in such a condition (i.e., brain dead) should he inherit if a relative dies?; (f) can he be given any gift while in such a state? These are some of the legal questions this discussion will help answer them.Keywords
brain death, biomedical ethics, modern legal debates, Islamic jurisprudence, organ transplantation.
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