(1) the history background of the concept of brain death;

(2) the basic anatomy of the brain;

(3) the concept of brain death; and

(4) the indications of brain death. In his discussion he brings out two important points which have bearing on the fiqh ruling: (a) the difference of opinion in the medical field regarding if death occurs with the death of the brain stem; (b) the inconclusiveness of the indications used by doctors to determine brain death.

In the third section on "the fiqh definition of death and its indications," Dr. Bakr Abu Zaid shows that the scholars are in agreement that death is defined as the separation of the soul from the body. Moreover, this definition was extracted by them from the lengthy hadith reported by al-Bara' ibn Azib and collected by Ahmad and others regarding the nature of the death of the believer and the unbeliever, the questioning in the grave, and the subsequent pleasure or torment faced by the deceased in his grave. He also quotes al-Ghazzali (Ihya' 'Ulum ad-Din, Vol. 4, p. 493) who further clarifies that death occurs only with the total separation of the soul from the body. (This will have bearing on the fiqh ruling). He summarizes with the following
two points:

(1) the reality of death according to the sharia is the separation of the soul from the body;

(2) the reality of the separation of the soul from the body is such that the soul remains in no part of the body, and hence no part of the body contains any life.

With regards to the indications of death according to fiqh, he begins with the hadith which states that when the soul leaves the body the eyes follow. (Muslim). He also lists eight indications of death which he gathered from a number of classical fiqh works. He then quotes an-Nawawi(2) (Rawdatat-Talibin, Vol. 2, p. 97) who adds this important note regarding the indications of death, namely, that when there is any doubt regarding death, it is to be assumed that the person is still alive until death is proven conclusively.

In the fourth section on "the various states of the ill under life support," Dr. Bakr lists three possibilities for a person in intensive care under life support.

(1) The individual begins to breath on his own and his heart returns beating normally, and here life support is removed as the person is no longer in danger.
(2) The heart no longer beats nor is there any breathing even under life support. Here life support is remove is without doubt dead.
(3) The person is brain dead however his heart still beats and there is breathing while he is under life support. Here doctors normally conclude death (due to brain death) and remove the person from life support.

In the fifth and final section regarding, "the fiqh resolution of this issue," Dr. Bakr concludes with the following.

(a) As for cases 1 and 2 (see above), this is not any issue for investigation as both life (case 1) and death (case 2) are certain. The only issue that needs to be investigated is case 3, namely there is brain death but their is a heart beat and breathing under life support.

(b) This third case raises three fiqh questions:

1. What is the ruling for removing someone from life support?
2. What is the ruling regarding organ removal (like a heart) for a transplant into another person?
3. Do the sharia regulations regarding death (like inheritance) take effect?

He summarizes that the answer is pretexted upon the question if brain death is a conclusive sign of death according to the sharia definition of death (i.e., does brain death indicate that the soul has completely left the body?)

He answers:
(1) Brain death as being a definition for death is an issue of difference in the medical field.
(2) The indications to show brain death are not always conclusive.

Thus the sharia principle is that "certainty is not removed by doubt," negates this being used as a conclusive sign for death.

Moreover, it has been seen in repeated cases where people have still lived after the removal of life support.

He also adds that among the five aims of the sharia is the preservation of life and as a result the sharia rulings seek to continue and rescue life and that the general principle is that life is assumed until conclusive proven otherwise.

Thus brain death cannot be seen according to the sharia to be equivalent to the separation of the soul from the body.

However, he goes on to add the following important point that this does not mean that brain death is not an indication of death; just like the heart stopping is an indication of death, but not necessarily death itself.

For this reason, the scholars, like an-Nawawi quoted previously, said that the sharia refrains from ruling a judgment of death, if there is any doubt, even though the indications of death might be present.

Based on this, he answers the three fiqh questions (see above):

As for the removal of life support in this situation where their is an indication of death (brain death), but an indication of life (heart beating and breathing with the aid of life support); either the doctor will feel that with the removal of life support, the patient most likely die, most likely live or both possibilities being equal.

If the doctor who has no ulterior motive feels that the with the removal of life support the patient will most likely die; then it IS PERMISSIBLE to remove life support as in this case the removal of life support does not mean preventing treatment from an individual who there is hope in his cure. Indeed, LIFE SUPPORT SHOULD be removed as it only prolongs his pain as his soul is being removed.

Even with this, as the same time death is NOT to be ruled by the mere lifting of life support until it is certain that the soul has departed the body. And hence the sharia regulations like inheritance do not take effect. And similarly organ removal is not permissible (if we are to say that it is permissible even with death being certain).

This division of sharia rulings, where some take effect and others held back until certainty occurs has many examples in the sharia.

However, if the doctor has no ulterior motives, is of the opinion that the person will still live with the removal of life support or there is a 50/50 chance for life. It becomes impermissible to life support, until it is felt death in all likelihood will occur or death does occur or the patient is no longer in need of life support.
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(1) Dr. Bakr Abu Zaid is the former Deputy Minister of Justice in the Kingdom of Saudi Arabia and at present a member of the Council of Leading Scholars and President of the Muslim World League's Body of Scholars which investigate contemporary fiqh issues.

(2) Fiqh an-Nawazil refers to Sharia Rulings (Fiqh) of New Issues (an-Nawazil, pl. of an-Nazilah or something sent down)