Advice in Response to New Law on Organ and Tissue Donation in Scotland

From the 26th of March 2021, a new law on organ and tissue donation takes effect in Scotland. This new legislation officially recognises anyone who dies and has not explicitly opted out as having given consent for donation of certain organs and tissue for transplantation.

Background Information on the Law:

According to published statistics, only around 1% of the population “die in a way that makes organ donation possible, so every opportunity for donation is very precious” (NHS Scotland 2021). The new law therefore officially introduces a ‘deemed authorisation’ system whereby consent is assumed by default following death unless an explicit ‘opt out’ has been expressed.

Before outlining some of the Islamic perspectives and positions on this crucial matter, it is important to highlight the significance of the subject and legislation at hand as well as the complexity of the debate and pluralism that exists within the Muslim scholarly tradition that draws from the Islamic legislation (Shariah).

We hereby outline that this is an issue over which there is no consensus (Ijmaa`) and hence we recognise the validity in the differences of opinion (Ikhtilaaf) which exist. We therefore endorse a respectful dialogue with these varying positions and state that our advice is based on what we regard to be convincing - in our perspective - within the broader context of the scholarly debate.

Islamic Perspectives and Positions on Organ and Tissue Donation:

Muslim scholarly positions on the issue of organ/tissue donation can be broadly categorised into three: (a) desirability, (b) impermissibility and (c) permissibility. The group of jurists who regard organ donation from the deceased to a living recipient as impermissible gave prominence to the honouring of the body. Those who view it as desirable/recommended considered the benefits to the living recipient; and those who saw the matter as permissible considered both the benefits and potential harms and opted for a median position. As a group of academics and Muslim community practitioners based in the UK, one of the authoritative positions which we adopt in issuing this advice is that of the Islamic Fiqh Council of the Organisation of the Islamic Conference (OIC). The Council issued a resolution (no. 26, 6-11 February 1988) following an in depth consultation with Islamic law jurists and specialists from a range of disciplines in medicine and related sciences.

“It is permissible to transplant an organ from a dead person to a living person whose life or basic essential functions depend on that organ, subject to the condition that permission be given by the deceased before his death, or by his heirs after his death, or by the authorities in charge of the Muslims if the identity of the deceased is unknown or he has no heirs.”

Our Advice and Position:

We proceed upon the above outlined resolution which acknowledged the advances in medicine enabling successful organ transplantation in line with the aims (maqasid) of the Shariah in safeguarding the best interests of individuals and societies and facilitating cooperation and selflessness.

With due regard to differences of opinion which exist in such a significant and complex issue, we incline towards the position of desirability on the grounds of maximising the potential benefits to the living recipients of organ donations from the deceased. In doing so, we recognise the validity of the other positions as well and respect the authorities upon which they are based.

Some of the Islamic law jurists recognise the ‘silence’ of an individual as indicative of their ‘consent’ particularly after they have been ‘informed’ or notified. In outlining this, we would still advise the relevant authorities to gain explicit consent. In light of this, the new legislation on organ/tissue donation to be introduced in Scotland from the 26th of March 2021 does not present a significant challenge. While it could be preferred that the government retain the ‘opt-in’ mechanism, we also recognise that the newly-legislated ‘opt-out’ system is perhaps a more efficient way to get the consent of those who do not mind organ transplantation after they die.

Issued in consultation with Islamic Law experts and judiciary practitioners.

Co-authored by:

Dr Yahya Barry, Director of Olive Tree CIC

Shaykh Abdul Wahid Mark Stephenson, Director of Madinah College

Date: 19 March 2021.