Medical Law


Brain death legislation and organ
transplantation in the Islamic world

 

Abrar Khan, MD, MS, MPhil, FACS, discusses the concept of brain death and the implications of brain death legislation on organ transplantation and hospital resource management.

If a person is not breathing and his heart not beating for a sustained period of time, that person is presumed to have departed this world. This was the intuitive and practical definition of death used for most of human history. The advent of modern medicine, however, changed everything. Today people, who only a few decades ago would have died, are kept alive by machines. Within this group of people is a subset that has absolutely no chance of recovery as their brain has no blood supply (due to injury, trauma, stroke, etc). What to do with this population? As time went by the world set about wondering whether such people were alive or dead? Today, most countries worldwide accept the fact that a person who has no blood supply to his brain is dead (brain death is accepted as death in all of North America, most countries in South America, most of Europe, India, the majority of Gulf Cooperation Council (GCC) countries, and most importantly, from an Islamic perspective, in Saudi Arabia). We will examine the pivotal importance of accepting brain death as death from two perspectives – organ transplantation and hospital resource utilisation. Whereas the transplantation perspective is somewhat intuitive and obvious, the hospital resource utilisation perspective is not. For example, should numerous expensive and precious intensive care unit (ICU) beds be occupied by patients who are brain dead while patients in the emergency room die because there is no ICU bed available?

Transplantation perspective

Organs for transplantation are acquired in two basic ways: from living persons (living donors) or from deceased persons who have suffered irreversible and complete brain damage (deceased donors). Living persons can of course only donate organs or parts of organs whose removal does not injure or hurt the donor in any way. For example, since humans have two kidneys the removal of one kidney from a healthy person is possible. Similarly, removal of half the liver or half the lung is also possible. Clearly, the heart cannot be removed from a healthy person and given to another. Thus, transplanting organs such as the heart and the pancreas requires a donor who is deceased based on the definition of brain death. Additionally, a donor who has been declared brain dead can also donate all his other organs such as the lung, liver, kidney, and small intestines

Concept of brain death

The concept of brain death was examined starting in the 1960s in the United States and, after extensive scholarly debate, was subsequently established as the legal definition of death by the Uniform Determination of Death Act (UDDA) in the United States of America in 1980[1]. According to this act, death is considered to have taken place if there is no heart beat or there is irreversible loss of all brain function. This definition of death has received wide medical, legal, ethical, and public acceptance in the United States[1], and in the Islamic world[2, 3].

Islamic view on brain death and transplantation

Transplantation of organs from such deceased patients after brain death is routinely performed in Saudi Arabia, a clear indication that brain death is accepted by Islam. In fact some Islamic scholars and legal experts have agreed that donation of organs after brain death is not only acceptable, but in fact the religious duty of a good Muslim. Additionally, many fatwas (religious decrees) have been handed down supporting and encouraging organ donation from patients who are deceased based on the definition of brain death[4-11].

There are various other aspects of transplantation surgery with which Islamic scholars and institutions have had to grapple and they include, actual removal of organs from brain dead people for transplantation, removal of organs from living people for transplantation, and sale of organs. As with any issue there are always differing points of view[12, 13], but by far the vast majority of Islamic societies and scholars worldwide support organ transplantation[ 6, 12, 14-16]. There are two central concepts here:

● The concept of brain death is of central importance in transplantation since the vast majority of organs transplanted come from patients who are declared brain dead (their heart and breathing is artificially supported by machines). The overwhelming consensus of Islamic jurists is that the definition of brain death is acceptable and that the definition of death in general should be left to the physician[2, 3].

● The issue of removal of organs from a brain dead or living person is also supported by the vast majority of Islamic jurists. One of the main issues is that mutilating a dead body is against Islamic teachings. However, most scholars point to the fact that Islam also teaches three other very important things. First, that necessity overrules prohibition. Second, the choice of the lesser of two evils should be made. Third, that he who saves one life saves the life of whole mankind. Based on these three Islamic concepts the vast majority of jurists and Islamic societies have decreed that transplantation is allowed, and some have even gone so far as to say that it is a good Muslim’s duty to save other people’s lives[6, 17, 18]. In fact many fatwas have also been handed down from various parts of the world supporting transplantation[5, 7-9, 11]. Most notably, Saudi Arabia, considered the hub and seat of Islam, supports the concept of brain death and organ transplantation. In fact, a full 50% of all kidney transplants in Saudi Arabia[4] come from patients who are deceased based on the definition of brain death[10]. Transplantation of organs from Muslims to Non-Muslims is also supported by some scholars[19].

Sale of organs is prohibited in Islam[13]. However, support is growing to make sure that live donors are reimbursed for the income that they lose while in the hospital and during recovery from the operation, and for other costs that they may have to bear during the transplant procedure. In other words, live donors should not have to incur any financial loss while donating their organs[20-22]. Any extra remuneration is expressly forbidden in most circumstances.

Education


Whereas passing brain death legislation is a vitally necessary step in the development of transplantation programmes in any country, an equally important step is to educate the people about the importance and meaning of such legislation. Unless people understand that brain death, organ removal, and transplantation is encouraged by Islam there will be no progress in increasing organ donation in Muslim countries. In fact, this principle applies equally well to all countries. For example, India is quite advanced in its legislative abilities, having passed the Transplantation of Human Organs Act in 1994. However, India made the blunder of not approaching the populace with the required coordinated and intensive education campaign. Consequently, the rate at which people donate their organs is extremely small[23]. Thus, it is at least as important to change social and cultural views as it is to pass legislation[ 23-25].

As part of enacting brain death laws, a national campaign to educate people about brain death, organ donation, and transplantation should be legislated simultaneously. Otherwise the significant efforts made to pass laws regarding transplantation will be wasted. This important point cannot be emphasised enough.

What then are the issues that need educational and information campaigns?

● Consent

By far, the most important issue is that the family, when approached for organ donation, does not know whether the deceased would have wanted to donate his/her organs. There are two major ways to tackle this issue. Countries that have a national identity card have a tremendous advantage over others that don’t, as each citizen can state on his identity card whether or not he wishes to donate his organs. The next alternative is the driver’s license (but this has the disadvantage that not all citizens drive). Other choices include a specially designated organ donation registry, but this option is inefficient. Stating one’s choice regarding organ donation after death through one or more of the above media should be legislated in all countries. When starting from the ground up in countries where there is no brain death legislation, the timing of this legislation is crucial. The citizens need to be properly informed and educated for a period of 2-5 years before being asked to state their choice.

Misconceptions

Another important issue is that many people in Islamic countries mistakenly believe that organ removal from brain dead persons and organ transplantation is prohibited by Islam. Other misconceptions include ignorance of the concept of brain death, lack of knowledge that organs from brain dead persons can be the gift of life for patients at death’s door, fear of mutilation of the body, and mistrust in the medical system that their medical treatment might be compromised if the physicians know they had consented to be organ donors[23]. These misconceptions can only be corrected by an intensive, well organised, and national education and information campaign, and unless this is done, passing brain death laws will not be effective. Having said this, it must be noted that all information and education campaigns have to be undertaken by carefully choosing the message and messengers, and by taking into consideration the sensibilities and religious beliefs of the citizens of any given country, for well intentioned campaigns have known to go awry.

Hospital resource utilisation perspective

Healthcare expenses are increasing exponentially in almost all countries and consequently delivery of cost effective medical care is a major issue. In fact, so dire is the situation that even wealthy countries (such as the United Arab Emirates), where health care has always been free for its citizens, are now moving towards an insured and self-sustaining healthcare system.

Financial burden


One of the most expensive parts of healthcare delivery is the intensive care unit (ICU), where costs can go into thousands of US dollars per bed per day. In countries where brain death is not an accepted definition of death, brain dead patients occupy many ICU beds for periods of weeks to months. Since in many countries accurate data is not available on how many brain dead patients are in ICUs at any given time, a study was initiated in one hospital in the GCC. In one three-month period, there were seven patients who were brain dead and occupied ICU beds for a total of 77 days. During the same period of time there were many patients who remained in the emergency department because no ICU beds were available.

The cost to the institution was as follows (using extremely conservative estimates): at US$1500/day, the ICU cost alone was $115,500 over three months. Additionally, had these seven patients been organ donors, 14 kidney transplants would have been performed. In the absence of kidney transplantation, it costs about $66,000 to maintain one patient on hemodialysis[26]. The cost of maintaining one patient on immunosuppression after transplantation is approximately $12,000. Thus, the average cost savings per year, if a patient is transplanted, is $66,000-12,000 = $54,000 per patient (the one-time cost of a kidney transplant operation ranges from $25,000 to $150,000[27]). Thus, the financial loss for the three months due to not having a brain death law and not using the brain dead patients for organ donation is $54,000 x 14 potential kidney recipients = $756,000. Add to this the extra ICU stay cost for brain dead patients whose organs were not procured ($115,000), and the total comes to $871,000 per year. If the cost of a transplant is taken into account then the cost saving – using an average of $50,000/transplant – in the first year after transplant is $871,000 – (14 patients x $50,000) = $171,000. The savings thereafter are $871,000/year. It should be noted that this number is for ‘kidneys only’ at one hospital in one country for only three months. Additionally, this calculation does not take into account the emotional well being bestowed upon the patients and their families and the gainful employment to which the patients return. This number also does not include the benefits to the healthcare system of transplanting the livers, lungs, heart, pancreata, and small bowel from these seven potential donors.

These quick calculations compellingly demonstrate a very basic principle – even though the numbers may vary from country to country – that not having a brain death law is very costly to the healthcare system.

There are other, somewhat hard to measure, benefits of having a brain death law. For example, ICU beds occupied by brain dead patients could be utilised by emergency room patients who need intensive care to save their life. Additionally, more kidney transplants mean more hemodialysis spots available for patients who desperately need hemodialysis.

In summary, brain death as bona fide death is accepted by most countries and religions. Countries that still do not accept brain death as death pay a heavy financial and emotional toll and should move rapidly towards enacting the requisite legislation.

Abrar Khan, MD, MS, MPhil, FACS is Senior Consultant and Director, Transplantation and Hepatobiliary Surgery at Sheikh Khalifa Medical City-Cleveland Clinic Foundation (SKMC), Abu Dhabi. He is a multiorgan Transplant Surgeon and Immunologist and has successfully started, from the ground up, two multiorgan transplantation programmes – one in the United States and one in Abu Dhabi. He is the author of many clinical and basic immunology papers, and has been educated, trained and employed variously at University of California - Berkeley, McGill University, University of California - San Francisco, Harvard Medical School, Yale University - Graduate School of Immunobiology, University of Pittsburgh - Starzl Transplantation Institute, University of Vermont - School of Medicine, and Columbia University (NY). He came from the USA to Abu Dhabi in October 2007 to help start the Transplantation Programme at SKMC.

References

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2. Gatrad, A.R., Sheikh,A., Medical Ethics and Islam:principles and practice. Arch Dis Child, 2001. 84.

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4. Ruling on organ transplants. 2004; Available from: http://islamqa.com/en/ref/2117.

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20. Removing the Disincentive to Donate. 2004; Available from: www.medscape.com/viewarticle/465739_3.

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25. Rashid, A., Muslim families: donating organs and asking for post mortems. Arch Dis Child, 1979. 85.

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ate of upload: 30th Sep 2009

                                  
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