Brain Death (Inactive-unwillingly etanazy) and its religious rules and legal effects
(Mohammad Sadegh Amirkhanlou, fatemeh hossienabadi)
Masters of Science in religious rules and principles, and law, the Islamic free university Babol unit)
Abstract
Brain death is considered as one kinds of murder from compassion, and different views about that depends on difference views in morality. Discussions about ending to life are discussions about the worthies. Some believe that life is the top limit of goodness and other goodness are meant by life and living. Without life and living no worth and goodness doesn`t exist. If we know an affected man by brain death a living man, this is the case that when the man him/herself or others have the right to end the life?
Nowadays, study of this case has a critical position in legal, political social, behavioral, philosophy and medical debates so that numerous seminars have been held about it in international scale and there are different viewpoints toward that. Opposes of this right have refused it with reference to the basis of legal patriarchy and moral tendencies and holiness of life. Opposing, compatibles have reasoned with the basis of individuality and personal autonomy, nihilism, maintaining worthies, the manners of society, usefulness tendencies. Nonbeing direct disadvantage to the society and others for making it customary accepting of this right can have different consequence. Because absolute acceptance of this right is against human nature and in contrast with holiness of life and have harmful effects for societies and public disciplines. Now, no country knew customary this right as an absolute legal right. Only some countries just so limited have given this right to some noncurable patients and persons affected by brain death. This article only discusses one kind of right to death (ending to life of an affected by brain death).
Key words: right, right to death, brain death
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Definition of brain death and its position in murder by compassion
A) The meaning of brain death
In Quran, death word has been discussed by three words quietus, passing away and murder. For example in 31, 91 and 92 signs of Maedeh surah, sign 178 in Baghareh (cow) surah and sign 29 Nesa surah Has been referred to the word murder. All this cases in above-mentioned signs comes to view that a person kills another person that is alive. In other signs of Quran, ending the life has been discussed by the word quietus that for example, we can refer to the sign 2 Malak surah and sign 61 Vaghe`e surah. In this two signs fortune and formation and creation is assigned to quietus. God says in Malak surah:[الذی خلق الموت و الحیاه لیبلوکم ایکم احسن]
By comparing mentioned words in practice, perhaps can say in Quran, murder hasn`t used the same meaning with quietus, meaning quietus as an existing event that creation and fortune are belonged to it. Is assigned to lofty God, but murder is not like that. So in Islamic culture, there is two words to state for ending material life here it is required that as an important matter it should be thought and paid attention more on these two words. It seems the cause of exportation of fatwa by some contemporary canonists in exportation of judgment to international murder in brain death- that is one confirmation of Atanazy. Thus we should make a difference between these two words. Also canonists in canon books defined murder to ezhaghon-nafs and have brought:
[ازهاق النفس المعصومه المحترمه المکافئه عملاً عدواناً]
Paying attention to the meaning of ezhagh word can help to accurate understanding of the murder meaning and its difference with quietus and passing away. It has become in comparison of Quran with some grandees of canon law: the meaning of ezhagh and the reason of using it in defining murder [و زهق الباطل] have said that the word ezhagh is used where the object is send out by force and obligation from the noted site (Nasrani, Tooba (penitence) printing) for example, when an equitable ruler wants to get the government from a tyrannous ruler, certainly the tyrannous ruler will persevere against this act and should send him out by force. In deliberate murder canonists have used this word and this companion is because of in murder. A person disconnects the relation between spirit and body. In other word, spirit doesn`t intend to go out from body yet and murderer cuts and send the spirit out before completion of spirit and before receiving natural departure time, unlawfully and illegally. Meaning that quietus is not like that, it is a complete reception. Thus natural quietus is a time that because of spirit`s reception to find limit, it parts from body without force, like a ripe fruit that after ripen, it separates from the branch of a tree easily.
Here, should paid attention that is inactive Atanazy meaning, not curing a patient suffering from brain death or cutting artificial devices from him murder deserving guarantee? A positive response to this question is famous saying between canonists and jurists or that brain death is not separation of spirit from body but only herbal soul and the last energy in body stayed. There are different viewpoints about meaning of brain death that we refer some of them.
Some have said about brain death: “non-returnable stoppage of all brain acts.” (A collection of articles in second seminar of Islam in medicine) some interpreted a man suffering from brain death as alive and believe that although in the shape of departed act, have caused his/her death. Some know the criterion to achieving deliberate murder deploying or not deploying the life and have compared brain death with getting the last energy of life. That 217th article of Islamic punishment law is about that. So, what can be the scale in achieving or not achieving death based on canonists` opinion is deploying or not deploying the life.
Another one of canonists has expressed like this: the end of life should be announced and here canonists greatly need to find specialist.
If the specialist distinguished that by this brain death, spirit will separate even if you preserve this person for a month, the soul won`t return never. Is movements from the viewpoint of herbal life, but the spirit had separated, we say it was the end of life from one month this can`t be said life in the meaning of life that is Alagheh between soul and body and if we have doubt on quietus we ask for life. One of psychologists that believes for dimensions for a man`s spirit says about it: there are some causes that is important for finding out brain death. About miscarriage until forth month spirit is in body and both of them are alive. About brain death according to that spirit in body may continue for several years for a man and be the only cause of a person`s life. Really the person is alive and with this title, spirit in body is active in it and it seems that we can`t construe him dead.
Till here we brought some canonists` votes about meaning of death and brain death way. For more explanation of this matter we mention some specialist`s saying. One of specialists doctors says about it: brain death is like that we bring up a human`s cranium from the bottom of his ear, meaning all connection that a human have with his circuit, comes down from Kartex area. Thus if we pick up an airplane`s engine and just deposit its wings, that airplane isn`t worthy. In brain death, man is dead from the viewpoint of brain. We don`t pay attention to heart. Hearts has an automatic system and this system can continue long and have heart beat, if brain death occurs, the return of patient may not be possible and if we cut respiratory set, the patient will die. If the medical science wasn`t and this set wasn`t connected to this patient, the patient certainly had died. In brain death, the appearance of brain is healthy, but like a cable that its appearance is healthy, but its lines are cut from within, and brain have lost its conductivity.
According to what was said and according to the meaning of murder word and that every death can`t be known as deliberate murder deserving and by paying attention to specialist`s view that have inferred to some votes of them, it seems that the truth of murder to separating and not connecting medical equipment to the patient by common usage isn`t considered as murder and crime.
B) Kinds of murder by compassion
Totally we can divide Atanazy to four types, active willingly, inactive willingly. Active involuntary, inactive unwillingly that usually brain death rest on the second and forth group.
1. Active voluntary
A) With satisfaction and request B) to end his/her endless pain kills him
2. Active involuntary
This type is the same as the first type, but the patient doesn`t have the qualification to make decision. Like that the patients are in coma. The medic injects the drug, but the patient doesn`t have the qualification and the ability to decide about him/herself. This, kind of death includes brain death.
3. Active involuntary
A) By making permission B) or even against his/her will, for a reason like, heavy maintenance fees, kills him. This case jointly human`s votes is confirmation to murder crime.
4. in active involuntary
In fact, this kind of behavior is like quitting an act, like not beginning to cure a person that quitting to cure causes his/her death and has different types. In this status, the patient has a critical situation and medics don`t begin the treatment from the beginning or if in patience procedure, the patient suffers from an infection. Don`t prevent it. Brain death in this group is assessable. In continue its canon and juridical judgment is our topic of discussion Atanazy had been discussed in different shapes all history long. In different periods, this discussion about suicide have changed to Atanazy and then to right to die and today’s right to die against right to live is a topic to discuss and debate as one right of human`s rights.
C) Principles and viewpoints related to murder by compassion.
1. Principles in conventional rights
From the viewpoint of some people, in some cases Atanazi is an obvious, freely and knowingly request of a incurable patient that suffers severely or the patient`s status shows that although he himself can`t request, medic should do Atanazy based on respect rule to patient`s self-determination that is one rule of four rules in medical behavior based on this idea, medical judgment don`t have worth.
Compatibles with this idea reason that no one want to die because of nothing. Thus certainly Atanazy is requested based on reasons, but investigating of trueness and untruth of this reasons I meaningless we should say that this reasoning is untrue. Because an individual that requests Atanazy thinks that his act is true and if he doesn`t believe the accuracy of his act. First limitation; means being qualified is questioned.
Some, in opposing with Atanazy have reasoned that Atanazy destroys society`s attention toward life. Becoming widespread of Atanazy decreases the sensitivity of society to death. In a society that life hasn`t had real worth, people don`t refrain from killing other people. The opposer`s of Atanazy believe that whenever Atanazy becomes a law it will be an abusing potential in health`s watchmen`s hands taking the first steps to do Atanazy causes next steps will take easier. This reasoning is called slippery slope. Yal Kamisar a jurist in Michigan university and one opposes of Atanazy have criticized like: the danger of abusing of health`s watchmen, slippery slope and the danger of mistaken.
2. from the viewpoint of Islam.
Islam maintains inherent value for life and every act that man does that hurts this value, it has hurt the whole life like a real event some Islamic scientists believe that is a total reality and all living things are in place of waves from that fact. Human life is the most worthy case in life that divine spirit has distended to it and because of the same spirit and holy life. The angels have prostrated him/her (Hajr surah, 29 signs) thus; in suicide case should look human from this point of view. Of course suicide and killing others are acts against the total life fact and are contrary to holy human life. Although murder in every kind of it in Islamic school. Severely is scolded, and is accounted for the greatest faults, until killing a man is like all men and reviving a man is like reviving all men. Thus without paying attention to devised judgment to murder by satisfaction of murderer, murder by compassion or except that in Islam, is banned and prohibited.
D) Brain death from the viewpoint of canon law
There are signs in Quran that their appearance bespeaks the respectfulness of suicide, for example we can refer to this sign “لاتقتلو انفسکم ان الله التهلکه”
Some, interpreters have interpreted recent sign to “کان بکم رحیما”.
Although there are other interpretations about this matter,some, according to descent dignity of this sign know it like ablution and immersion in cold weather with cold water that is harmful to body. Some, have interpreted this sign to killing others and by comparing this sign with “تلمزوا انفسکم” have said that the goal of this sign is that don`t offend others and the goal of “لاتقتلوا انفسکم” is that don`t kill others. By assuming this probability we should say that honorable sign about permission to self-suicide doesn`t have specificity and emergence.
One of the important cases from the viewpoint of canon law is the relation between spirit and body and disconnection of this relation. There are numerous viewpoints about the relation between spirit and body. In any case, all are of the same opinion that spirit by taking body does his task. High brain centers do this task in the body. Thus if high brain centers die, in fact, spirit has separated from body; because by brain death, necessary talents and capability for taking spirit in body destroys.
In this order, can say between canonist`s saying in defining murder to exiting spirit from body and medic`s saying in dying of central high sets of body, meaning brain is agreed. (Hossein Hosseini, brain death). Most canonists know the scale of specifying quietus and brain death as common, there are some differences between special common law and widespread common law. But here in origin of specifying the case by common law concur is seen.
According to some contemporary canonists, in suspecting cases like brain death we should obey the common law specialist. Thus, as, from the viewpoint of expertise, death is not certain yet, it is necessary to judge for life, and killing a man like this is unlawful. Scholar Helli writes about it.“This view is common accord among canonists; the reason is to avoid the assistance of Muslim’s murder. Saheb Javaher writes about certain death avoidance “different ways are mentioned for certainty to death of these individuals, some know necessary two days patience and some three days and some have made rottenness a condition. But the first is the scale of putting knowledge.
Some present sages said about it “brain disability may be inferred death next to medics, but next to widespread common law that is the scale of these kind of religious law don`t account for death (Mohammad Rohani and Fateme Noghani).
Ayatollah Khamenei in one of his viewpoints has declared like this viewpoint.
By paying attention to the votes of canonists it is obvious that for death occurrence, knowledge about it is necessary and the scale to recognize it is common law. Till here, we refer to death avoidance judgment. Briefly after this, we specially search (study) brain death judgment by investigating different topics of canon law specially talion relation topic and judgments about it, we found out that a man may have three status that are:
1- Deployedlife 2- Un-deployed life 3-Certain death
The two first and third assumptions are not discussable because of obviousness. Brain death may be one of instances of unemployed life. Unemployed life is where individual doesn`t have the possibility to return to deployed life because of harms to him/her and his/her death will be assured after some time. Canonists have mentioned un-deployed life like a slaughtered man that his/her head isn`t separated completely yet or his/her stomach is ripped.
A question that is under consideration here is that what is the scale of accomplishment un-deployed life? In response, some referred to dissolution of comprehension, sanity, talking and authorized movements. According to what mentioned and by paying attention to that in brain death, person don`t have any willful movement, sanity and sense, and without artificial respiration set, is completely without breathing, he/she doesn`t have the possibility to return to life and medics liken him/her a headless person. Thus certainly we can say he/she doesn`t have deployed life that is the scale of punishment judgments. In this case, we can know brain death as instances of unemployed life,because by cutting artificial means, person won`t stay alive. Now we separately pay attention to the viewpoints of contemporary canonist about brain death: