Publication Date

1-1-2021

Document Type

Article

Organizational Units

Sturm College of Law

Keywords

Kidney, Donations, Transplant, Transplant tourism, Medical tourism, Ethics, Regulation, Medicine, Exploitation, Coercion, Black markets, Iranian model, Shia, Shia law, Contracts, Kidney shortage, Comparative law, Necessity, Islamic law, Nudge, Orrgan transplant act, Organ donation, Sales of organs

Abstract

In the U.S., over 43,000 people die every year waiting for a kidney. In Iran, however, monetary incentives have eliminated such a waitlist. Iran is the only country in the world with an unrelated living kidney donor program that has allowed for monetary incentives in the form of an altruistic gift, which has become known as “the Iranian Model.” Nevertheless, the legal details of the system remain vague and scholars both in and outside of Iran continue to debate the nature of the system. Does the Iranian system consider kidneys a commodity? Can you legally buy a kidney in Iran? If not, what is the legal nature of the monetary incentive? The answers to these questions are particu- larly important as many countries seek to find the right approach in addressing kidney shortages. This Article follows the newly established guidelines of the Iranian Model and seeks to answers these questions. It argues that Iran’s pecu- liarity is neither related to its view on the marketability of the kidney nor the proprietary nature of the organ; instead, it can be associated with the principle of necessity as interpreted by Shī‘ah Islam in Iran. The legal nature of the act of giving monetary incentives is also best described under the Islamic contract of ju’ala—the unilateral contract of reward. This Model as explained in this article can be implemented outside of Iran, eliminating the need to create a market for the sale of kidneys as some scholars have suggested.

Publication Statement

Copyright held by the authors. User is responsible for all copyright compliance.

Originally published as Takhshid, Zahra, Kidney, Money, and the Shī‘ah Implementation of the Rule of Necessity, UCLA J. OF ISLAMIC & N. E. LAW (2021).

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