The growing number of illnesses that can be remedied by way of organ transplants is matched by a number of critical and growing disparities. First, there is the disparity between those who need organs and available donors. Then there is the disparity between technological progress and society's lagging moral consciousness. Finally, legal structures that are in place to address and regulate organ transplant issues are far from adequate. These factors together have precipitated a global crisis of organ theft.
This article seeks to define the nature of this crime and address its criminality and its penal remedies within the context of Islamic Law.
Manifestations of the Crime
There are numerous ways this crime is being perpetrated around the world. Some of the most prominent of these are as follows:
1. Kidnapping minors and surgically removing organs like eyes and kidneys while leaving the victims alive. This has taken place mot notably in Brazil.
2. Kidnapping minors, refugees, and those who are physically or mentally disabled, and then killing them in order to cannibalize their organs to be sold at a high price on the black market.
3. Deceiving the victim into believing he must undergo a medical examination or procedure in the hospital under sedation. Later on, it surfaces that the victim's kidney was removed during the procedure.
4. Stealing corpses that are about to be destroyed or otherwise are not reclaimed after autopsy. Sometimes, bodies have been stolen from the graveyard before burial.
5. Stealing organs at the time of otherwise legitimate surgery.
6. Extracting organs from prisoners and war captives against their will.
Prevalence of the Crime
There are numerous recorded cases of this crime from places around the world, including
1. Britain: Doctors in one hospital in London removed organ from hundreds of deceased children without the knowledge or consent of their parents.
2. China: A number of former military doctors admitted that they removed human organs and skin from prisoners after they had been executed, and sold these organs to wealthy foreign clients.
3. The illegal traffic in human organs is rampant in Southeast Asia and Latin America.
4. Egypt: A number of prominent cases have been recorded in the French Qasar al-`Aynayn Hospital in Cairo
Determining the Nature of the Crime in Islamic Criminal Law
The theft of organs – whether form the living or the dead – is contrary to Islamic law. It violates the most essential principles of Islam and the primary objectives of Islamic teachings. There is no scholarly disagreement about this matter.
The Prophet (peace be upon him) stressed the sanctity of human life – as well as upon the body, wealth, and honor of the human being – on numerous occasions. He said: "Indeed, your blood, your wealth, and your honor are sacred and inviolable." [Sahîh al-Bukhârî
However, we may still ask: What is the nature of this crime? How is organ theft to be contextualized within the framework Islamic Law in order to determine the criminal punishment that should be carried out against the perpetrator?
The following four possibilities present themselves for consideration:
This is the most obvious comparison. This is what first comes to mind upon hearing the words "organ theft
". If we adopt this view, then the prescribed punishment for theft would apply to the perpetrator of this crime. Allah says: "The thief, male and female, cut off their hands." [Sûrah al-Mâ'idah
This view, however, is problematic. Defining it as theft assumes that the crime is essentially a transgression against property rights. Human organs are not property to be bought and sold. Therefore, transgressions against a person's organs – though we might call it "theft" colloquially – does not constitute a mere transgression against someone's wealth.
2. Aggravated assault resulting in grievous bodily harm:
This reflects the physical manifestation of the crime when the case entails a living victim who survives the theft of his or her organs. It is superficially the same as a case of assault where the person loses a limb or the functionality of a limb.
In Islamic Law, judicially dispensed retribution is prescribed for the intentional injury of another person resulting in loss of limb. Allah says: "And We prescribed for them therein: The life for the life, and the eye for the eye, and the nose for the nose, and the ear for the ear, and the tooth for the tooth, and for wounds retaliation. But whoso forgoes it (in the way of charity) it shall be expiation for him." [Sûrah al-Mâ'idah: 46]
All the same, this comparison is not as clear as it initially might appears. The victim of organ theft is not targeted on account of who he is, like is often the case with assault. More importantly, unlike a simple case of assault, the illegal traffic in human organs imperils the whole of society. It is more appropriate to compare organ theft with crimes of greater magnitude that victimize society at large, and not with crimes of a more narrow, individual scope.
3. Banditry and Terror (hirâbah):
Since the crime of organ theft poses a direct and serious danger to the security of society as a whole, it should be compared with other crimes at that level.
The punishment for banditry and terror is given in the following verse of the Qur'ân: "The only reward of those who make war upon Allah and His messenger and strive after corruption in the land will be that they will be killed or crucified, or have their hands and feet on alternate sides cut off, or will be expelled out of the land. Such will be their degradation in the world, and in the Hereafter theirs will be an awful doom." [Sûrah al-Mâ'idah
There is one point of contention here, and that is the role that deception often plays in the crime of organ theft which is not present in the the commission of banditry and terror.
4. Assassination (ghîlah):
This is a more specific crime than that of banditry or terror. The difference is in the clandestine element that it entails.
This crime can involve robbery. Al-Tasûlî – a Mâlikî jurist – writes:
The crime of assassination can come as a form of banditry where a person kills another to take his wealth… For instance, if the perpetrator lures an adult or child into a deserted locality to kill him, or deceive a child in order to rob him of what he has." [al-Buhjah Sharh al-Tuhfah (2/373)]
As for the punishment for assassination, Sheikh Bakr b. Abû Zayd adopts the ruling of the Mâlikî school and the Hanbalî opinion adopyted by Ibn Taymiyah and Ibn al-Qayyim that: "the punishment is death without reprieve, in consideration of the great harm the murderer causes to society and the severe difficulty there is in protecting people from the crime." [Ahkâm al-Jinâyah `alâ al-Nufûs wa Mâ Dûnaha
Since deception, stealth, and other clandestine practices are prevalent in the perpetration of organ theft, and since the harm that the crime poses to the individual and to the security of society is severe, the closest analogy we have to this crime is the crime of assassination. For this reason, the most suitable punishment for someone duly convicted in court for the crime of organ theft would be death without reprieve. The punishment would be a capital one, and not depend on the wishes of the living victim or the deceased victim's near relatives, as would be the case with judicially administered retribution.
Finally, it is the duty of society to find solutions for the problem of organ theft and its underlying causes. This not only entails preventing the crime through law enforcement and through punishing the perpetrators, but also through finding lawful and amicable ways to ensure the availability of organ replacements for those who are in need.