Islamic Laws

A Comparison between Cerebral Death and Perilous Life in Islamic Jurisprudence

Dr. Saeed Nazari Tawakkuli, PhD
Ferdowsi University, Mashhad
This paper is an attempt to define life and death in relation to faith and the acceptance of spirit and to analyze stable and perilous life in Islamic jurisprudence. It describes its signs in jurisprudential texts and compares it with existing definitions for cerebral death. By studying the criteria for stable and perilous life and comparing them with the symptoms of cerebral death it is proved that there is a natural difference between them. That is because in the case of perilous life, the body has lost the ability to retain the spirit, but in cerebral death, despite the failure of the cortex and stem of the brain, the body is still able to retain the spirit due to natural or artificial respiration. The variation between these two is the cause for the differences in legal and jurisprudential texts. A person suffering from cerebral death is considered alive in such legal matters, as rules of inheritance, will making, religion, marriage and crime. However, a person who is in the state of perilous life is supposed to be dead in the above matters.
Keywords: death, life, cerebral death, stable life, perilous life
Cerebral death is an issue that has recently been under scrutiny and analysis in the world of medicine as well as in Islamic jurisprudence. Its significance emanates from the fact that, thanks to advanced medical technology, it has now become possible to use body organs of a person suffering from cerebral death for transplantation in the body of the needy ill person before the emergence of real death symptoms. Regardless of the difficulty of offering a medical definition for ‘cerebral death’, this question have arisen for the Islamic jurisprudents whether someone suffering from cerebral death should be considered as dead or alive in the light of jurisprudential rules.
Some Islamic jurisprudents while answering to this question have tried to relate cerebral death to what has been referred to as ‘perilous life’ in books of Islamic law and jurisprudence and generalize the rules concerning the latter to the former. Is what has been medically defined as ‘cerebral death’ identical to what is cited in jurisprudential texts as ‘perilous life’? If not, what are the differences between them?
Life and death
Humankind is made up of a physical and an unphysical dimension (i.e. body and spirit). There are two theories concerning the way these two are fused together. According to one, the truth of humankind is its spiritual substance or divine element and the body is an instrument at its service. Therefore, the spirit does not remain in the physical world, but belongs to the body in an intrusive way.(Qaysari 1/113). Imam Jafar al- Sadiq’s words support such an interpretation. He likens the relationship between soul and body to the jewelry and the box safeguarding it, in a way that the box would be rendered useless if the jewelry is removed from it.
Another theory holds that the spirit is unified with the body the moment it is possessed by it, so much so that the spirit is the body and the body is the spirit. Thus, humanity emerges from their union. Regardless of the nature of the relationship between body and soul, Muslims believe that human life begins with the body’s fusion with the spirit. It can be construed from what has been retold by Zurareh(Kulayni, 6/13-14) and Saeed ibn Mosayyeb(Kulayni, 7/347) that humankind has two spirits or lives, a spirit or life resulting from the father’s seed and the mother’s womb and another spirit called the spirit of life, occasionally described as the ‘spirit of rationality’. The relationship between the rational spirit and the body is the standard by which it can be decided whether a person is dead or alive. Therefore, presupposing a lack of relation between the rational spirit and the body, cellular life cannot be taken as evidence of life. Thus, it can be either said that death is the permanent detachment of the rational spirit from the body(I’lal ush-Sharaye,1/107-8) due to the perfection of the spirit and its independence from the body(Sadr al-Mutalliheen,Ash-Shawahid al-Rububiyah, p 89) or caused by body failure(Ihtijaj, 2/97).
The stage at which humankind assumes life and the spirit enters the body has been described in various ways in narrative texts((Mukhtasar al-Nafah,pp 274, 239; Tahrir al-Ahkam, 1/278, 2/174; Mabsut, 7/200; Manahej al-Mutaqqin,p.530; Jameh al-Madarek, 5/371). It has been cited that the rendering of the spirit takes place after the formation of the body has been completed (Kulayni, 7/342; Tusi, Tahzeeb, 10/282; Mufeed, 119). In some other traditions, there is an exact time at which the spirit is known to be breathed into the body after 4 months (Kulayni, 6/13), after 5 months (Ibid, 7/346), the succession of several 40-day periods (Ibid, 6/13-14; 7/347). Finally, certain physical signs have been cited as evidence of life in the fetus, such as movement, crying (Tusi, Tahzeeb, 10/281, No: 1100 and 1/48, No: 1875), and the opening of the eyes and the ears (Kulayni, 7/345). It can be construed from the traditions of the Holy Ahlul Bayt (A.S.) that the spirit is breathed into the body after the fetus has grown flesh at which point the physical development of the fetus is obviously complete. Hence, according to the tradition quoted by Ibn Maskan is said to have called this stage as ‘fetal completion’. Likewise, with completion of the physical dimension of the fetus its human shape also emerges, so in the tradition quoted in Irshad Mizan it is said the spirit is breathed with the completion of the fetus.
The formation of flesh and the growth of the fetus only occur at the end of the fourth month of pregnancy. It is at this time that the body is capable of assuming the spirit. However, this does not necessarily occur at the end of the fourth month. The rendering of the spirit takes place in a period of one month, beginning at the end of the fourth month of pregnancy and continuing until the end of the fifth month, the exact time of which is only known to God (Al-Tarqih wa Zarah al-A’za fi al-Fiqh al-Islami, pp 207-211).
Unlike life, an exact beginning for death cannot be identified. Although it is not known when the spirit leaves the body, certain signs have been cited in the words of Holy Ahlul Bayt (A.S.) for the detachment of the spirit from the body, such as the decomposition of the body (Tabarsi,2/97), the whitening of the skin (Kulayni,3/134), the sweating of the forehead (ibid.), discharge of fluids from the eyes (ibid.), discharge of sperms (ibid,3/161-163), slackening of the muscles ((Saduq,I’lal ush-Sharaye,1/309,section 261), the contortion of the eyes (Kulayni,3/135) and puckering of the mouth (ibid.). Interestingly, death has been classified into two types in medicine, namely bodily death and cellular death. The symptoms cited for the occurrence of each type correspond to those mentioned in our Islamic texts on tradition.
Life and death are existential and contrasting phenomena. The existential aspect of death can be discerned from this verse of the Holy Qur’an: “Who created death and life”(Chapter Mulk,2) that creation is an external phenomenon, which God has applied to death, although some hold that death is of nonexistence and life of existence. Therefore, they are in contrast with one another (Tafsir Kabir, 30/54).
At any rate, no matter if we believe the two to be in contrast (death being the nonexistence of life) or that both are existential, there is definitely no space between them.
Stable and perilous life
Jurisprudents have talked of two forms of life with regard to death, i.e. stable and perilous life. This bears significance in certain legal issues such as inheritance, writing a will, crime and slaughtering animals.
Signs of stable and perilous life
In order to differentiate between stable and perilous life, several criterions have been discussed, which have been summed in four criterions.
First criterion, Time: The ability to survive is a sign of life, but its duration has been in question, ranging from half a day to longer periods (Allamah Hilli, Qawaid al-Ahkam, 2/155).
Second criterion, Physical symptoms: Some believe certain physical features to be the distinguishing factor between stable and perilous life. These features can be summed up in the following: cognition and voluntary motion (Khui, 2/19), strong motion (Tusi, Mabsut, 1/390), the flow and discharge of blood (Muhammad bin Makki, 277), discharge of blood (Fazel Hindi, 2/74).
Third criterion, Time and physical symptoms: Some experts believe that both time and physical symptoms should be taken into consideration although some hold one of the two to be sufficient. These factors can be grouped into strong motion and time (Muhammad bin Makki, 3/108-109) and voluntary actions or time (Tusi, Mabsut, 4/124).
Fourth criterion, convention: Some believe common understanding to be the factor by which stable and perilous life can be identified (Husaini Ameli, 8/46; Najafi, 36/148; Ibn Nawawi, 9/89; Fazel Hindi, 2/75).
Analyzing the criterions for stable life
Time cannot rightly be a factor for determining stable life, since time of death is unknown to us and only God knows about it. Therefore, how can one claim that a certain human or animal will die in, for example, a certain number of days or in less than an hour? The most advanced medical technology is not capable of making such calculations, and can only make rough estimates that do not always prove right. That is why some experts doubt time to be a proper factor. (Muhaqqiq Ardabili,11/107;Riyaz al-Masa’il,2/268)
Motion cannot be a good factor either, just as its absence cannot bear evidence to death. Motion can be caused by physical or chemical factors. For example, a dead body is caused to make slight moves by the loss of elasticity (Allamah Hilli, Qawaid al-Ahkam, 2/336), and a living human fallen into coma his body remains alive without any motion for years.
Therefore, although voluntary motion can be taken as a sign of life, its absence does not necessarily mean death.
By resorting to the common usage the life cannot be ascertained either. How can the imperfect knowledge and scant attention of common people be used as a criterion for life and death? If such common usage is used, anyone fallen into a coma or suffering from a stroke or heart attack should be pronounced dead, which is certainly not right.
Jurisprudents and their understanding of ‘perilous life’
The existence of an intermediary state between life and death, referred to as ‘perilous life’ is the key to the problem at hand. Death is a gradual process of the detachment of the body from the spirit, and produces certain symptoms, which point to the absence of life on the one hand and to its presence on the other. That is because the body has lost its capacity to contain the spirit, but at the same time the connection between them has not been fully severed yet. This state is known by jurisprudents as ‘perilous life’. If a hen is beheaded and let loose, it can still run around for a little while and if a man is beheaded while running, he keeps on running for some time. That is why, Muhaqqiq Ardabili(11/121) doubts motion and discharge of blood as signs of life. The author of Jawahir al-Kalam’s (36/149) response can make sense, but it does not contradict the view of Muhaqqiq Ardabili.
What each says reflects one aspect of the issue. What Muhaqqiq Ardabili maintains relates to the fact that cutting off parts of the body that lead to death cause the body to lose its capacity to possess the spirit. However, this is not necessarily in contrast with a state in which the spirit has not completely left the body which is the author of Jawahir al-Kalam’s point because the spirit is weakly linked to the body from the time it begins to leave it to the time it is fully detached from it. This link produces certain symptoms such as motion, palpitations, and blood circulation, which do not mean the body is able to continue living. They indicate that the spirit is about to leave the body, not that the body can stay alive (Ameli, 8/244).
It can be understood from those words of the Holy Ahlul Bayt (A.S.) concerning the duration of a person’s posthumous right to his property that in some cases the link between the body and the spirit is not completely broken although that much of it which has been lost cannot be restored. Kulayni(7/8,No:7) and Saduq(Amali,125) in this regard have quoted from Imam Sadiq(A.S.).
The above quotations indicate that a person’s right to his property continues to exist as long as he has a spirit. At the same time, a person having a spirit can be considered dead in some cases, because the link between the body and the spirit is not lost abruptly and a person can reach a stage at which his connection with his soul is minimal. Such a person is alive and dead; alive because there is still a connection, albeit weak, and dead because that much of the connection that has been severed cannot be restored.
Therefore, life and death act contrary to one another in degree, and death does not occur unless there is a gradual disconnection between the spirit and the body. The word ‘dead’ can be applied to anyone who has completely or partially lost possession of his spirit, because even in the case of partial disconnection, the decomposition of the body makes it impossible for the spirit to return. Of course, using the word ‘dead’ in the case of a person who has partially lost his spirit is not because he is going to die at some point in the future, since usage of a word cannot be based upon probability.
The difference between death and sleep must now be clear too. The connection between the body and the spirit in not lost in sleep, but there is a gradual disconnection in death.
Some experts believe the strong discharge of blood from the body to be a sign of life (Ibn Barraj, 2/463; Ibn Fahd Hilli, 4/169-170), because cutting the veins of a living creature causes its blood to gush out as long as its heartbeats and blood circulates in its veins. Cutting the veins of a dead creature, however, causes a weak and slow discharge of blood (Allamah Hilli, Tahrir al-Ahkam, 2/159). One of the ways to confirm death in medicine after heartbeat and breathing have stopped is the absence of bleeding when the veins are cut (Forensic Medicine, 3).
The above facts makes it clear why some jurisprudents compare perilous life with the slaughtering of an animal(Tusi, Mabsut,6/259; Husaini Ameli, 8/244; Allamah Hilli, Tahrir al-Ahkam, 2/156; Ibn Qadamah, 8/300,No:6660). That is because when a creature’s throat is cut, blood flow and breathing stop and death is inevitable (Qazi Ibn Barraj, 2/246).
To sum it up, perilous life is a state in which a person is losing the connection between his body and spirit, on the condition that this disconnection is not yet complete and that it is irreversible due to the decomposition of the body. Now, we must see whether perilous life in Islamic law is the same as ‘cerebral death’ in medicine.
Cerebral death in medicine
Death is tangible but hard to define. Not long ago, death was defined as the complete and irreversible failure of the cardio respiratory apparatus, because a permanent cessation of the respiratory functions would result in the permanent failure of cerebral functions. With the advances in medical care and equipment, the failure of the cardio respiratory system is no longer taken to be irreversible. Artificial respiration in some patients suffering from a heart attack can at times saves their lives if they have not suffered great cerebral damage. In some cases, problems with the bloodstream and the proper circulation of oxygen in a 5 to 10 minute critical period can result in irreversible cerebral damage.
This process takes another course at times. Parts of the brain suffer hemorrhage caused by concussion and stop functioning. This results in temporary or permanent breakdown of cognition, awareness, and orientation, but because that part of the brain responsible for the vital functions of respiration and heartbeat is still working, the oxygen required by the brain and other organs is still supplied to them. Even if this part of the brain is damaged, the basic functions of breathing and heartbeat can still be performed artificially.
So, while the circulation of blood and exchange of oxygen are still active, at what time can a person suffering from brain damage be pronounced dead? Brain damage has been defined in three ways in medicine:
1. Death of the cerebral cortex: Some believe the irreversible stop of the functioning of the cerebral cortex to be the cause of death, because it results in the loss of consciousness and cognition. The best way to identify this state is by electroencephalogram, because the failure of the cortex stops the electrical functioning of the brain and the above instrument displays a straight line. This is not an acceptable way of defining death among neurologists, because lack of consciousness and orientation cannot be equated with death. Many patients have remained unconscious for long periods up to 36 months and returned to normal life afterward because the basic functions of breathing and blood circulation were active, which in turn indicates that their brain stem was undamaged.
2. Death of the brain stem: Others believe that death occurs when the brain stem stops working. That is because in such a condition, the vital functions of the body stop and the brain cortex stop working shortly. A criticism leveled at this view is that when the brain stem dies, if the blood circulation and respiration are maintained through cardio pulmonary resuscitation, the brain is still able to function for a period ranging from a few minutes to a few hours. Therefore, death of the brain stem is not enough cause for death either.
3. Death of the entire brain (cortex, stem, and cerebellum): The only criterion currently used to determine death is the failure of the entire brain.
A comparison between cerebral death and perilous life
It seems that cerebral death cannot rightly be equated with perilous life, because the latter occurs in the case of a person who shows some signs of life despite the fact that his body is not able to continue living. However, in the case of cerebral death, the body is capable of life, because there is blood circulation and exchange of oxygen, be it all by itself (assuming the cortex is dead) or by artificial resuscitation (assuming the brain stem is dead). What human life depends on is the circulation of blood and the supply of oxygen to body organs, and this process can be carried out not only by the heart and lungs but also by artificial organs or instruments such as the ventilator.
The best proof for the ability of the body to continue living when the brain is dead is that symptoms of cerebral death in adults cannot be considered sufficient proof for death in children under the age of five. That is because of the youngness of their nervous organs, higher resistance to ischemia, and the lowness of intra cranial pressure due to the absence of blockage in cranial sutures (Medical Journal, Qanun, No:68). Moreover, the few instances in which a person who suffers from damage to parts of his brain (such as the cortex or stem) can still return to life are enough not to conclude that those suffering from brain death are truly dead.
Therefore, when the heart stops beating, the lungs are unable to absorb oxygen (and cannot be revived by artificial resuscitation), and all layers of the brain have stopped functioning, the body loses its capacity to possess the spirit. In such a condition, the first symptoms of death appear and finally the body decomposes. However, if the brain stops working, but the heart is artificially kept alive, the body maintains its possession of the spirit and no death symptoms will appear. Shaykh Tusi says, “If a person’s stomach is cut in a way that his guts are exposed but still attached to the body, that person is alive, but if his guts are removed and detached from the body, he is dead. (Mabsut, 6/275). This clearly indicates that the criterion for death is the ability to survive, which exists as long as the guts are attached to the body. Of course, it is true that it is impossible to keep the body’s possession of the spirit forever by resuscitation when cerebral death occurs, because despite artificial respiration or any sort of revivification, the heart will stop beating after 107 days and the ventilator cannot extend the period either.
Interestingly, the irrevocable failure of natural heartbeat and respiration is a sign of cerebral death in medicine, but the question is how can one make sure that it is irrevocable while the possibility to use artificial respiration and resuscitation exist? That is why medical experts are divided on the necessity to perform additional tests after death. Some hold that it is possible to declare cerebral death based on clinical symptoms and without performing any tests while others believe that clinical signs are not enough and further tests are required. Still, a third group believes that these tests should only be performed in special cases. Laboratory tests are usually carried out 6 hours after the initial clinical examination and are as follows: cardiac angiography, electro encephalography, Computed Tomography Scan (CT scan), and Doppler ultrasonography. If we take these tests to be valid and observe the period needed between each two, mere failure of the heart and respiration in a period less than three days cannot be taken as sufficient proof of death. Of course, if a person dies, the initial symptoms of death automatically appear, but the definite signs of cerebral death can be seen 36 hours after the bloodstream is cut off from the brain. These changes are the fragmentation and passage of the necrotic tissue of the cerebellum into the cavity underneath the subarachnoid, softening and bleeding of the upper segments of the spine and the necrosis of the frontal lobe of the hypophysis.
It is a source of pride that the Holy Ahlul Bayt (A.S.) have mentioned that to declare death in such cases as being caught under rubble, it is necessary to wait for three days (Kulayni, 3/209-210; Tusi, Tahzeeb, 1/337; No: 988), and interestingly enough, modern medical science indicates that real death symptoms appear 36 hours after the bloodstream stops in the brain. This bears witness to the fact that it would be wrong to stop resuscitation as soon as symptoms of life such as consciousness, physical reflexes, heartbeat and respiration disappear.
If a person suffers from the death of the entire brain, i.e. the cortex, the stem, and the cerebellum, and all the supplementary tests needed to confirm cerebral death have been performed in a timely manner and point to death, it can be said with certainty that the body has lost its capacity to maintain the spirit and the person is indeed dead. Nevertheless, if the cortex or the stem of the brain malfunction, the person is considered alive and the rules of the living are applicable to him or her. Comparing such a case to perilous life is definitely wrong.
There are some major differences between cerebral death and perilous life:
1. If the cortex or stem of someone’s brain dies, his or her property is not bequeathed to his or her heirs, unlike perilous life, which like actual death requires that all his property be bequeathed.
2. If the cortex or stem of somebody’s brain dies, their obligations do not have to be met, but in the case of perilous life like actual death, their obligations have to be fulfilled.
3. Amputating the body of a person suffering from cerebral death is forbidden and results in qisas (punitive action). In the case of real death, this right is transferred to his heirs, and can change to blood money upon their agreement.
4. Non intentional crime against a person suffering from cerebral death has the blood money which belongs to the person and in event of his real death is transferred to his heirs. But the blood money for the person suffering from perilous life should be spent in endowments and cannot be transferred to his heirs.
5. With the cerebral death the marriage contract remains intact and the wife should not observe the period of Iddah after the death of her husband. But in the perilous life the wife have to observe the period of Iddah.
6. Disconnecting the life reviving measures in person suffering from cerebral death is considered as murder of that person and keeping that person alive is necessary at any cost. Nevertheless, it is not necessary to activate life reviving measures in person suffering from perilous life and it is also not considered as murdering that person.
7. If the cortex or stem of brain dies in a person suffering from cerebral death, the real death is not ascertained and that person’s wills are not enforced and nobody can take control or own his possessions.
8. The expenses of the medical treatment of the person suffering from cerebral death have to be paid from his possessions but the expenses of the medical treatment of the person suffering from perilous life have to be paid from one-third of his possessions and if that is also not sufficient the consent of heirs have to be obtained.
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