حق الولاية العامة في التعامل بالأعضاء والأنسجة البشرية ( دراسة مقارنة )

The right of the general guardian to deal with human organs and tissues ( A comparative study)

Abstract

The right of the general guardianship to deal with human organs and tissues is represented by a legitimate or legal authority granted by the legislator to the general guardian (the state or the legitimate ruler) through which he can deal with human organs and tissues according to the public interest, and human organs and tissues are dealt with through operations performed on parts of the human body, such as removal, transfer, transplantation or disposal, according to the public interest.
Dueto the medical development in this field, it has become very common to treat by replacing human organs and tissues, but this development was accompanied by some inhumane practices, such as human body trafficking, so it was necessary for the state to intervene and organize and refine these operations, according to the public interest, and this intervention was represented in the legal legislation that regulated the operations of transferring and transplanting human organs and tissues.
When we review the Iraqi law and compare it with the French and Egyptian laws, it becomes clear to us that there are some problems and shortcomings in this law (the law on human organ transplants and the prevention of trade in them) in terms of regulating the right of the public guardian to deal with human organs and tissues, as a result of the medical development at the present time, as it did not fully encompass the rapid development in this field, and this explains to us the first amendment to it, although only a few years have passed since its enactment.
It also became clear to us that the right of the public guardian was not explicitly addressed, despite stating how to obtain human organs and tissues (donation or will), so the law neglected many aspects of the right of the public guardian to deal with human organs and tissues. Of course, we also found these problems at the level of Islamic law, in addition to the contradictions in the jurisprudential opinions, which made us face the discussion and preference between those opinions, according to the public interest and the spirit of Islamic law.
After studying the comparative laws and jurisprudential opinions of Islamic schools of thought, we tried to reach some real treatments for the shortcomings that accompanied the Iraqi law, with the aim of tightening the Ministry of Health’s grip on the operations of transferring and transplanting human organs and tissues, given the importance of these operations, and to prevent human trafficking, so we sought to follow the best solutions to regulate the right of the general guardian to deal with human organs, and although Islamic law has greatly restricted these operations, we tried to keep pace with them, and make the law and Sharia go in one direction (the public interest) and that the purpose of dealing with parts of the human body is treatment or scientific research, without abusing the right of the living donor or harming the dignity of the dead.
We also learned about the nature of the right of the general guardian to deal with human organs and tissues, how to deal with them, and its limits, and the legal and legitimate foundation for such a right became clear to us: From the Islamic law perspective; We have concluded that the basis of the right of the general guardian has been referred to in some verses of the Qur’an, the hadiths of the Prophet, the principles of jurisprudence, and what the imams of the Islamic schools of thought have said: that the donation or bequest of human organs or tissues under the supervision of the general guardian for the purposes of treatment is considered a charitable act. It became clear to us that the theory of treatment associated with the donor’s consent is the most important thing that has been said in establishing the right of the public guardian to deal with human organs from a legal perspective, and this explains its text in Iraqi law and comparative laws.
We tried to clarify the legal and Sharia controls for such a right (the right of the public guardian to deal with human organs and tissues), including the consent of the donor or testator, full legal capacity, not harming the human body in relation to the living and preserving the dignity of the dead, and that the purpose is therapeutic or research, and that these operations are performed in health centers licensed by the state.
We also detailed in this study the provisions of the right of the public guardian to deal with human organs and tissues through donation or will, clarifying its controls and the extent of its legal and jurisprudential legitimacy, and studying and detailing some cases that are outside the classification of donation or will, such as the person sentenced to death, the clinically dead, and the deceased of unknown identity. Finally, from all of the above, we have tried to state the best legal opinions, making the standard of treatment or scientific research the scale through which preference is given between those legal opinions, on the basis of following the best of them. We have suggested to the Iraqi legislator to follow the best legal texts, through comparison with the Egyptian and French legislations, and we have suggested some new texts, for the purpose of addressing the legislative shortcomings in Iraqi law.