Organ Transplantation after the Implementation of Hadd (prescribed Punishment) and Qisas (Retaliation) from the Perspective of Muslim Schools of Jurisprudence

One of the most important issues of our time in the field of medical law and jurisprudence is amputated limb/ organ transplantation after the implementation of Hadd (prescribed Corporeal Punishment) and Qisas (Retaliation), which is a matter of controversy among jurisprudents. Among the causes of this disagreement are references to texts with uncertain indications (Zanni al-Dalalah) and conflicts among ultimate religious purposes for practical regulations in the expression of Islamic rules. Furthermore, among the objectives of punishment are the disciplining of the convict, relief for the plaintiff and security for the society. Social security is the ultimate purpose of Hadd and relief for the plaintiff is the primary reason for the implementation of Qisas. Differences in the type of argument and attitude in preferring certain purposes over others have led to the emergence of three perspectives in this context: One group advocates the absolute prohibition of amputated limb/ organ transplantation including Imamyya, Hanbali, Maliki and some contemporary schools of jurisprudence. Another group advocates the absolute permissibility of amputated limb/ organ transplantation including Hanafi, Shafii and some contemporary schools of jurisprudence. The third group divides rights into Haq al-Lah (the rights of God) and Haq an-Nas (the rights of people), advocating the permissibility of transplantation under Haq al-Lah and also under Haq al-Nas but with certain conditions. The fatwa of the Jeddah Fiqh Academy and some temporary schools of jurisprudence fall into this category. Evaluations of the reasons posited by different perspectives in light of general Islamic principles and purposes bring us to the conclusion that we must differentiate between Haq al-Lah and Haq al-Nas in this issue such that amputated limb transplantation is not permissible under Haq al-Lah (Hadd for theft or Muharaba) but it is permissible under Haq al-Nas (retaliation for amputated limb/ organ) conditional on the plaintiff’s consent or limb/ organ restoration.