"The Will to Donate Human Organs: Between Trust and Ownership: A Study of Legal and Sharia Responsibility According to Iraqi Law and Ja'fari Jurisprudence"

Abstract

This research aims to examine the legal and Sharia responsibility arising from the will to donate human organs, through a descriptive analytical comparative approach between the provisions of Islamic jurisprudence (across its various schools, with a focus on the Ja'fari school) and positive laws, particularly Iraqi legislation. The research addressed the conceptual framework of wills in Islamic jurisprudence and Iraqi law, and explored the extent to which the provisions of the Personal Status Law (Article 64) and the Evidence Law can accommodate this emerging type of legal disposition. The research also presented the opinions of jurists regarding the permissibility or prohibition of organ donation, with a detailed account of the stance of Shiite jurists (Ayatollah Al-Sistani and others) on the issues of brain death and bequeathing organ donation.  The research concluded that the will to donate organs is closer to a mandatory (testamentary) will than to a proprietary will, because it does not involve the transfer of ownership of a valuable asset, but rather entails instructing heirs or medical authorities to execute the testator's will. This has significant legal implications, including: it is not subject to the one-third rule (except for procedural costs), it cannot be invalidated by heirs if valid, and it requires that the testator meet the conditions of legal capacity in terms of sanity, free will, and choice, while jurists differ on the extent of the heirs' authority to object. The research also clarified the responsibility of each party—the testator, the heirs, medical authorities, and the beneficiary—whether that responsibility is Sharia-based (religious and moral) or legal (civil and criminal(The researcher recommended the necessity of enacting special legislation to regulate this matter in Iraq, along with establishing unified medical protocols, creating a national registry for donors, raising community awareness, and training judges on how to handle these emerging issues.