Iranian Journal of Medical Ethics and History of Medicine

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More than half a century has passed since the onset of successful life-saving and at times astonishing transplantations of organs from brain dead donors, numerous books and articles have been written on the subject, and local, regional and international meetings and conferences have been held. Nevertheless, no consensus has yet been reached among scholars of various fields such as medical sciences, religion, ethics and law on a number of generalities as well as theoretic and practical details of this issue. There have been discussions on topics such as the organ donor’s legal will, gaining consent while the donor is still alive, seeking consent from the brain dead patient’s family, nature of the required organ, observance of religious, cultural and conventional standards, individuals’ dignity and so on. The main challenge to overshadow other factors has so far been the discord among experts, physicians and religious scholars specifically, over determining the time the spirit leaves the body, and a unified definition of death. Some researchers have attempted to minimize religious, ethical and legal challenges and thus facilitate organ donation following brain death by emphasizing the urgency of organ donation and the practices related to certain specialties, and even maintain that brain death is the equivalent of death and a lifeless body. Others have focused on the time of death and the spirit leaving the body based on lexical, religious and medical evidence, regardless of equality of brain death and death, and ensuing rulings. These researchers have thus separated the solution to the problem of those in need of transplants from considering brain death to occur at the same time when the spirit leaves the body, and encourage experts to seek different solutions. Organ donation by brain dead patients is an undeniable social necessity that can be resolved without bringing about fundamental changes in lexical and jurisprudential concepts, and through other alternatives such as propounding “urgency”, declaring a patient “as good as dead” and in general “non-elucidated jurisprudential issues”. Through references to lexical, jurisprudential and medical sources and examination of previous research, the present article will review several definitions of death, spirit, and the time the spirit leaves the body, as these are concepts that are related to brain death for all practical purposes. The article also considers organ donation following brain death to be an undeniable and unavoidable fact of life in human societies, and will examine the necessity of altering lexical and jurisprudential concepts to accommodate current interests and goals.

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With the progress of science, organ transplantation emerged as one of the modern innovations of the medical science. Like other innovations, organ transplantation brings individuals in the society some disadvantages alongside numerous advantages. Legislators have therefore adopted rules and regulations for the mutual support of society members and their rights.In this article the researchers will examine the current regulations on organ transplantation in Iran. Legal sources in Iran, especially the constitution, Islamic criminal law, health and sanitary regulations, moral codes and so on will be referred to in this respect.In the constitution (as epigraph of all laws and regulations within the country), articles 14, 29, 43, 167 will be examined, and in Islamic criminal law articles 159, 372, 495, 497 and 724 will be discussed as the most significant existing articles on organ transplantation. In relation to the moral codes and medical and sanitary regulations we studied the following: Organ transplantation act of April 5, 2000 about the deceased or patients whose brain death has been confirmed the protocol on confirmation of brain death, established 2000 executive regulations for transplant from the deceased or patients whose brain death has been confirmed, adopted May 15, 2002 act of renal transplantation and donation from living donors passed on October 20, 2008 executive regulation 13101 approved on April 29, 2006 about living donors (with the exception of transplantation from a living donor to a foreign citizen) and the charter of patient’s rights ratified in 2009. Lastly, it should be mentioned that transplantation laws and regulations that presently exist in Iran appear to be inadequate for the purpose of resolving the current challenges and problems.