1.Introduction

It is trite to observe that the legal approach to the donation and transplantation of human organs – and especially to the fight against the criminal deviations in the implementation of these practises – is particularly complex, quite ambiguous, and imbued with important ethical, religious and social implications. In fact, it has to combine various interests and to pursue very contrasting goals.

Naturally, the evolution of medical science in this field offers new opportunities for a longer life expectancy as well as for a better quality of living standards. At the same time, these opportunities can lead to (and even favour!) ignominious practices where the human person is humiliated in his own dignity and reduced to a mere object in the hands of unscrupulous criminals.

This article aims to discuss whether and to what extent religion can contribute to a legal regulation of organ transplantation which may best enhance such positive opportunies, while simultaneously limiting possible degenerations.

It has been argued that since religion has a very strong influence in people’s behaviour, it can no doubt play a relevant role in solving the complex issues related to the various forms of objectification of the human being that strike at core values of human dignity, protection for the vulnerable, and accountability for the exploiter.Cf. M. Leary, ‘Religion and Human Trafficking’, CUA Columbus School of Law Legal Studies Research, 8 (2015), available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2683364. As the Author points out, religions can play a crucial role in the fight against trafficking, because of their chance to act, at the same time, as global institutions as well as grassroots organizations and as moral voices of the community. In particolar, the ‘combination of global institutional capacity to provide an organized International reach to combat trafficking and subject moral expertise, demonstrates that religious organizations possess a unique ability to combat human trafficking. Few other organization or social groups possess this combination and it should be built upon for a global strategy against human trafficking’.

However, this assumption is not so straightforward and it is necessary to be particularly cautious in analyzing and potentially supporting such a role. The following considerations are precisely intended to outline some major reasons for this caution.

2.Organ Transplants, Law and Religion in the Global World and in the Modern Multireligious and Multicultural Society: An Uncertain Relationship

In order to assess the real contribution of religion in combating organ trafficking, it is useful to start considering recent trends in the relationships between law and religion as well as religion and the State (that is to say, more generally, political institutions), as they are developing in the scenario of the global world and in the modern multireligious and multicultural society.

In fact, the role of religions in solving the issues of organ trafficking is strictly related to the trends we can note in the wider field of the relationships between law and religion. As a consequence, some critical points we can observe in the development of these general trends constitute analogous critical points to be necessarily considered in assessing that role.

To start with, it is worth recalling what many scholars engaged in the analysis of the relationship between law and religion intend to point out when they speak of the increasing visible place of religion in the public sphere.‘Recent years have seen religion assume an increasingly visible place in public life, with mixed results that have been aptly described in terms of the ‘ambivalence of the sacred’: J. Martínez-Torrón & W. Cole Duhram Jr., ‘General Report’, in Religion and the Secular State: National Report/La Religion ed l’État laïque/: Rapports nationaux, General Reporters/Rapporteurs généraux J. Martínez-Torrón & W. Cole Duhram Jr., ed. Donlu D. Thayer (Madrid: Servicio de Publicaciones de la Facultad de Derecho de la Universidad Complutense, 2015), 1, citing P.L Berger, ed., The Desecularization of the World. Resurgent Religion and the World Politics (Washington D.C.: Ethics and Public Policy Center, 1999); J. Casanova, Public Religions in the Modern World (Chicago: University of Chicago Press, 1994) and R. Scott Appleby, The Ambivalence of the Sacred: Religion, Violence and Reconciliation (New York: Rowman and Littlefield, 2000).  At a first level, they refer to today’s process of ‘desecularization of society’ where religion is not only a question of individual consciousness, and religious experiences are fully legitimated to be publically manifested.

But, in a deeper sense, this visible place can be seen as a basis for (or, if you prefer, a symptom of) the ‘public role’ of religions.

This essentially means, on the one hand, that religions increasingly tend to consider that the level of the relationship between God (that’s to say the Supreme Being) and the believers is not the only one which falls within their own competence and, on the other, that they consider themselves fully legitimated to claim more space for their political attitude.As it is well known, this is probably one of the most significant consequences of the globalisation as well as of the modern multicultural and multireligious society.

Consequently, some religions reinforce their traditional perception as a legal system (this is especially true for the Roman Catholic Church and its legal system, that is to say ‘Canon Law’For a first approach to the basic characters of ‘Canon Law’, see ex multis, J. Hervada, Elementos de derecho constitutional canónico (Eunsa, Pamplona, 1987); P. Lombardia, Lezioni di diritto canonico, it. tr. ed. G. Lo Castro (Milano, Giuffrè, 1985); S. Berlingò, Diritto canonico (Torino, Giappichelli, 1995). See also, in a comparative view, S. Ferrari, Lo spirito dei diritti religiosi. Ebraismo, cristianesimo e islam a confronto (Bologna, Il Mulino, 2002) and, especially referring to the aims of religious dialogue, H. Kung, Christianity and the World Religions. Paths of Dialogue with Islam, Hinduism and Buddhism (London, Collins, 1987). ), while they can successfully claim, for their (religious) rules, a specific legal value even in the State’s legal system. That’s to say that the religious are legitimated to direct the conduct of individuals (not only in their relationships with the Divine but) also in their relationships with the society and public institutions. In other words, religious values and principles are legitimated to guide people in their social behaviour as the faithful and even citizens.

In addition, new forms of cooperation and collaboration between the State and religious institutions are developing, in the pursuit of those goals which they consider very important and quite common.

That being said, it is clear that religions behave as real political agencies. Correspondly, while the traditional principles of autonomy of the State from religion and of autonomy of religion from the State (that is, of the Secular State, in a strict sense) are still claimed to be fundamental, they often risk to be superseded in the realitySee the ‘National Reports’ in Religion and the Secular State: National Report/La Religion ed l’État laïque/: Rapports nationaux, General Reporters/Rapporteurs généraux, J. Martínez-Torrón & W. Cole Duhram Jr., ed. Donlu D. Thayer, (Madrid: Servicio de Publicaciones de la Facultad de Derecho de la Universidad Complutense, 2015)..

To put these considerations in context, it is essential to highlight that the public role of religions is successfully claimed particularly in presence of those issues – just like bioethical ones – that interfere with the values and the rules that religions consider as fundamental, beyond the religious sphere itself, due to their inherence with the dignity and centrality of the human being. The issues related to organ transplants are a case in point. In this area, in fact, some kind of interference between the secular and religious spheres may seem even intuitive.

So, one could reasonably speculate that religious values are not far from the principles and rules of the secular approach to these issues. In fact, it could be considered that voluntary donation of organs to save people´s lives is an act of compassionate love whereas organ trafficking is an inhumane practice contrary to the sanctity of life.

On this basis, religion can present itself as a very important factor in the implementation of the conditions which promote a wider access to the transplantation of organs and the fight against every inhuman interpretation of this medical practice and especially the fight against organ trafficking.

Nevertheless, in a more in-depth analysis, the contribution of religion to the issue related to the donation and transplantation of human organs is harder to decipher as it might appear at first sight. In fact, it is also known that the attempts to improve, through medicine and science, health and life and, generally, to promote and safeguard ‘new’ individual rights, are often hampered by religious values and concepts.See M. Oliver, A. Woywodt, A. Ahmed & I. Saif, ‘Editorial Review. Organ Donation, transplantation and religion’, in Neprhol Dial Transplant (2010): 1, ‘Religious concerns may be an important reason why patients decline listing for a renal transplant. These issues may be equally, or even more, important when live donation is discussed. There is a good reason to believe that religious concerns may play a significant role much more often than clinicians and transplant teams believe’. At the same time, ‘care must be taken not to equate ethcnicity with religion, and detailed analysis is required to dissect the various factors’.

In this perspective, it is worth remembering that religion and medicine are often juxtaposed and the need for a secular bioethics is strongly felt.See, for example, G. D’Angelo, ‘The Interface between End-of-Life Care and Religious Rights: Legislation of a Christian or a Secular State?’, in Self-Determination, Dignity and End-of-Life Care. Regulating Advance Directives in International and Comparative Perspective, ed. S. Negri (Leiden-Boston, Martinus Nijhoff Publishers, 2011), 437-454. So, even in the area of organ transplantation, secular States as well as international and supranational institutions cannot safely rely on the fact that the pursued protection objectives are fully consistent with the religious values in society, i.e. the values of the most influential religious institutions.

Anyway, it is necessary to avoid incorrect generalizations and separate our wishes from reality. In this perspective, it is also worth considering that many bioethical issues have only emerged recently, as a result of the progress of medical science and religions are not always able to promptly find clear and safe answers in their traditional principles and rules. As a consequence, religious answers to these issues – that is, the transposition of the relevant religious rules in the legal sphere – could be quite diverse, depending on the way every religion conceives the relationship between law and religion, as well as between religion and political community. Naturally, a very important role is still played by the specific political and historical context in which these relationships are placed.See S. Hamdy, Our Bodies Belong to God: Organ Transplants, Islam, and the Struggle for Human Dignity in Egypt (Berkeley: University of California Press, 2012).

3.Religious Approaches to Organ Transplantation and Organ Trafficking: A Comparative Analysis between the Roman Catholic Church’s and the Islamic Approaches. General Aspects and Preliminary Clarifications

A brief comparative analysis between the Christian (especially the Roman Catholic Church’s) approach and the Islamic approach can be very useful to support and further explain the above mentioned considerations.A wider picture of the most significant religious views about organ donation and transplantation can be seen in M. Oliver, A. Woywodt, A. Ahmed & I. Saif, ‘Editorial Review. Organ Donation, transplantation and religion’, in Neprhol Dial Transplant (2010): 1-8.

Assuredly, the reference here is to religions having a powerful legal attitude, as they constitute a very relevant force in society and can interact freely and independently with the State’s authorities.

Therefore, a comparative analysis between the Christian and Islamic approach can indeed provide a good background to understand the difficulties met by religions when attempting to adapt their traditional precepts to the needs of the contemporary society. But above all, such a comparison can contribute to highlight the diversity of paths which can enable religions to support the states and the international community in pursuing very important goals such as the fight against organ trafficking.

In this perspective, it is even clear that the religious approach to organ trafficking is closely linked to the lawfullness of organ transplants. Both approaches are also to be considered as a result of the religious views about the most important bioethical issues, as well as to the issues related to the dignity of the human person, and more generally about the legal projection of the religious rules which regulate the relationship between God and the faithful.

With particular reference to the latter point, some particular features in the Islamic representation of the relationships between the secular sphere and the religious sphere must be outlined.

Firstly, it is well known that  unlike Christianity, Islam does not conceive the Western distinction between politics, law and religion. Most of the Islamic precepts are both religious and legal.It is correct to clarify that the following considerations can be neither comprehensive nor detailed at all. Islam is in fact a very complex and articulated reality. In literature it is frequently asserted that there is not only one Islam. Here, we only want to draw some general coordinates for an essential picture in interpreting the Islamic approach to organ transplants and organ trafficking. The literature on Islamic law is virtually boundless and we can only recall some minimum references, for example: Wael B. Allaq, An Introduction to Islamic Law (Cambridge University Press, 2009); Sami A. Aldeeb Abu-Sahlieh, Introduction à la société musulmane, Fondements, sources et principes (Paris, Editions d’Organisation, Eyrolles, 2006); Yvonne Yazbeck Haddad & Barbara Freyer (eds), Islamic Law and the Challenges of Modernity (Oxford, AltaMira Press, 2004).

Secondly, in the Islamic perspective, it is not possibile to conceive a public interest as well as a State interest which could be in contrast with the interest of the Islamic community (the Ummah). This is a crucial point for our issue too: the interest of the Ummah is the only one to be pursued and the Community’s interest takes precedence over the interests and the rights of individuals. That must be necessarily so even in the general field of bioethics and especially in the field of organ transplants.

Furthermore, Islam gives absolute priority to the divine sources, first and foremost the the Quran.Divine sources are also the collection of teachings from the prophet Muhammad (Sunnah) and the consensus of the scholars as well as of the Community (ijma’). The analogy (qivas) is sometimes considered (but the issue is heavily discussed, even among Islamic scholars) more simply a rational source. Moreover, it’s easy to understand that this kind of relationship between the divine source and the human activity constitutes the essential and most problematic (especially for the Western scholars) hub of the Islamic law. Thus the Islamic approach is naturally oriented to use the divine sources to find solutions for bioethical issues.

Clearly, the adaptation of religious precepts to the needs of modern society is a difficult task for all religions, even for the Catholic religion.

But, unlike other religious laws (firstly, the above mentioned Canon law), Islamic law is not based on a well-defined hierarchical authority, intended to take precedence over the others religious authorities. This results in some very interesting peculiarities.Generally, when some cases are not explicitly and clearly governed by the divine sources, it is not easy to appeal to a higher authority entitled to resolve uncertainties. In such cases, the faithful have recourse to the scholars who apply the divine sources by issuing fatwas or legal opinions, but these declarations are often conflicting since any difference should be resolved only with the passage of time, i.e. with the Community consensus which is expressed through the prevalent opinion. The importance of this feature for the analysis of the Islamic approach to bioethical issues is very clearly highlighted by D. Atighetchi, Islamic Bioethics: Problems and Perspectives (Berlin-Dordrecht, Springer, 2009). As the author points out, when a bioethical issue lacks a regulation, patients and health care organizations seek official positions taken by individual authorities as well as religious institutions or groups. In many Muslim countries, the scientific role of these local organizations has become increasingly important, even if these organizations may update their positions as a result of new scientific findings.

Last but not least, it is worth considering that the application of the Islamic law may be conditioned by the social and historical background as well as the prevalent State regulatory model. In some cases, the Islamic law and the State law interact and influence each other.For more details, also relating to a specific case, see G. D’Angelo, ‘Factor religioso, procesos constituyentes, transiciones constitucionales: la experiencia de Sudán’, Revista General de Derecho Público Comparado, iustel.com, vol. 4 (1/2009): 1-31; Id., ‘Religion and the Secular State: Sudan National Report’, in Religion and the Secular State: National Report/La Religion ed l’État laïque: Rapports nationaux, General Reporters/Rapporteurs généraux J. Martínez-Torrón - W. Cole Duhram Jr., ed. Donlu D. Thayer, (Madrid: Servicio de Publicaciones de la Facultad de Derecho de la Universidad Complutense): 674-699. 

As we can see, there are some general assumptions for a possible convergence between Christianity and Islam as well as religion and the States in searching for a quite common ground. We have now to consider these assumptions – in the religious side – more in detail.

3.1.The Roman Catholic Church Perspective

From a Christian perspective, organ transplantation is largely admitted and even (inderectly) supported.As M. Oliver, A. Woywodt, A. Ahmed & I. Saif, ‘Editorial Review. Organ Donation, transplantation and religion’, in Neprhol Dial Transplant (2010): 2 and note (18), remember, in 2007 the Church of England explicitly declared organ donation a Christian Duty.

Naturally, some different opinions can be found even within the Christian world, especially considering some specific medical and legal issues related to organ donation and organ transplantation. Notwithstanding, organ donation is essentially considered as a selfless act, as well as a testimony of God’s glory and of Christian love, while organ transplants are strictly anchored to the centrality of the human person, that is to say to his/her dignity.

This is a very important starting point when considering the Christian view on organ trafficking. The example of the Catholic Church is particularly significant due to the traditional tendency of the Church itself to interface with the political authority on a (quite) common ground.

In particular, it is widely known what Pope John Paul II said about the ‘personality’ of the human body and the ‘shameful abuses’ related to organ donations: the competent legislative bodies as well as medical associations and the donor societies have to act to prevent and punish these abuses.Pope John Paul II gave a very significant contribution in this perspective: see, e.g., his Encyclical Evangelium Vitae (1995), http://w2.vatican.va/content/john-paul-ii/it/encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae.html (last accessed 7 January 2017). In John Paul’s view, using the human body as an object equates to violate the dignity of the human person and the commodification or commercialization of human bodies or organs must be considered morally unacceptable.

Pope John Paul II’s successors have maintained and strengthened this line of thought and action.

At the International conference on ‘A gift for life. Considerations on organ donation’ organized in 2008 by the Pontifical Academy for Life,The Conference was organized on 6-8 November 2008 in collaboration with the International Federation of Catholic Medical Associations and the National Transplant Center. Pope Benedict XIV stated that

‘organ donation is a peculiar form of witness to charity (…) It is helpful, above all in today’s context, to return to reflect on this scientific breakthrough, to prevent the multiple requests for transplants from subverting the ethical principles that are at its base (…) the body can never be considered a mere objectBenedict XVI refers to his first Encyclical, Deus Caritas Est, https://w2.vatican.va/content/benedict-xvi/en/encyclicals/documents/hf_ben-xvi_enc_20051225_deus-caritas-est.html (last accessed 7 January 2017), n. 5. (…) otherwise the logic of the market would gain the upper hand. The body of each person, together with the spirit that has been given to each one singly constitutes an inseparable unity in which the image of God himself is imprinted.’Address of His Holiness Benedict XVI to participants at an International Congress organized by the pontifical academy for the life, https://w2.vatican.va/content/benedict-xvi/it/speeches/2008/november/documents/hf_ben-xvi_spe_20081107_acdlife.html (last accessed 7 January 2017).

It is worth reminding that after his predecessor, Pope Benedict suggested some guidelines: respect for the dignity and the protection of personal identity; protection of the donor’s health; proportionality and moral validity of the reasons that lead to transplantation; condemnation of the organ sale as a morally illicit act; decisive rejection of transplant abuses as well as organ trafficking; and absolute protection of the human embryo.Textually (English version): ‘Therefore, it is necessary to put respect for the dignity of the person and the protection of his/her personal identity in the first place. As regards the practice of organ transplants, it means that someone can give only if he/she is not placing his/her own health and identity in serious danger, and only for a morally valid and proportional reason. The possibility of organ sales, as well as the adoption of discriminatory and utilitarian criteria, would greatly clash with the underlying meaning of the gift that would place it out of consideration, qualifying it as a morally illicit act. Transplant abuses and their trafficking, which often involve innocent people like babies, must find the scientific and medical community ready to unite in rejecting such unacceptable practices. Therefore they are to be decisively condemned as abominable. The same ethical principle is to be repeated when one wishes to touch upon creation and destroy the human embryo destined for a therapeutic purpose. The simple idea of considering the embryo as ‘therapeutic material’ contradicts the cultural, civil and ethical foundations upon which the dignity of the person rests’. He also particularly emphasized on the importance of the informed consent as ‘the condition subject to freedom, for the transplant to have the characteristic of a gift and (…) not to be interpreted as an act of coercion or exploitation’.‘It often happens that organ transplantation techniques take place with a totally free act on the part of the parents of patients in which death has been certified. In these cases, informed consent is the condition subject to freedom, for the transplant to have the characteristic of a gift and is not to be interpreted as an act of coercion or exploitation. It is helpful to remember, however, that the individual vital organs cannot be extracted exceptex cadaver, which, moreover, possesses its own dignity that must be respected. In these years science has accomplished further progress in certifying the death of the patient. It is good, therefore, that the results attained receive the consent of the entire scientific community in order to further research for solutions that give certainty to all. In an area such as this, in fact, there cannot be the slightest suspicion of arbitration and where certainty has not been attained the principle of precaution must prevail. This is why it is useful to promote research and interdisciplinary reflection to place public opinion before the most transparent truth on the anthropological, social, ethical and juridical implications of the practice of transplantation. However, in these cases the principal criteria of respect for the life of the donator must always prevail so that the extraction of organs be performed only in the case of his/her true death’ (Benedict XVI refers to the Compendium of the Catechism of the Catholic Church, http://www.vatican.va/archive/compendium_ccc/documents/archive_2005_compendium-ccc_en.html n. 476 (last accessed 7 January 2017).

More recently, Pope Francis clearly stressed that organ donation is an act of love and condemned trafficking in organs suggesting a global approach and urging the political authorities to intervene to address the problem.‘Human trafficking is an open wound on the body of contemporary society, a scourge upon the body of Christ. It is a crime against humanity. The very fact of our being here to combine our efforts means that we want our strategies and areas of expertise to be accompanied and reinforced by the mercy of the Gospel, by closeness to the men and women who are victims of this crime. Our meeting today includes law enforcement authorities, who are primarily responsible for combating this tragic reality by a vigorous application of the law. It also includes humanitarian and social workers, whose task it is to provide victims with welcome, human warmth and the possibility of building a new life. These are two different approaches, but they can and must go together. To dialogue and exchange views on the basis of these two complementary approaches is quite important. Conferences such as this are extremely helpful and much needed’: Address of Pope Francis to participants in the International Conference on combating human trafficking, http://w2.vatican.va/content/francesco/it/speeches/2014/april/documents/papa-francesco_20140410_tratta-persone-umane.html (last accessed 7 January 2017).

3.2.The Islamic Perspective

As mentioned above, Islam is a very complex and articulated reality. So in the case of Islam, it is quite possible to find significant differences in the interpretation of the legal significance and the legal value of some religious rules, especially when they are called to solve new problems and emergencies.

That’s probably true, in particular for the approach regarding the issues of organ donation and transplantation. We can also observe that these internal differences are probably more evident than the differences we could find in other religious approaches.‘Bioethical decision-making in Islam takes place within a multi-dimensional framework of authorities and themes. With no central authoritative body for the Islamic community, such as the Magisterium for the Catholic Church, general consensus on bioethical matters is difficult to locate’: D.J. Hurst, ‘Approaching Organ Transplant in Islam from a Multidimensional Framework’, in Online Journal of Health Ethics, 12 (2, 2016), http://dx.doi.org/10.18785/ojhe.1202.08.

Nevertheless, some basic principles in this field can be further highlighted.

In this perspective, it can probably be said that the main feature of the Islamist approach to these issues is just in the fact that, as mentioned earlier, Islam itself assigns a decisive role to the value and the defense of the Islamic Community, so that this value takes precedence over the individual ones.

Human life is undoubtedly a value to be protected, and violating the human body is consequently forbidden.See also A.M. Hassaballah, ‘Definition of Death, Organ Donation and Interruption of Treatment of Islam’, Nephrol Dial Transplant 11, no. 6 (June 1996): 964-65; A.A. Sachedina, Islamic Biomedical Ethics: Principles and Application (Oxford; New York: Oxford University Press, 2009). Nevertheless, this protection is not absolute, due to the possible presence of higher goals which protect the Ummah. The possible application of the death penalty and corporal punishment is an important and really significant consequence of this basic principle.

Naturally, the approach to organ transplantation must be strictly consistent with these assumptions concerning the relationship between the Community and the individuals.

Organ donation and transplantation are generally permitted even if divergent opinions exist.Cf. D. Atighetchi, Islamic Bioethics: Problems and Perspectives (Berlin-Dordrecht, Springer, 2009). The legitimacy of these practices is assessed from the perspective of the interest of the Community, taken as a whole, and only secondarily in the perspective of the individuals. In other words, organ transplantation is justified and endorsed in the light of the existence of a common good, i.e. a public benefit (maslaha).But there are also some doctrinal positions protecting the physical integrity of individuals: see D. Atighetchi, Islamic Bioethics: Problems and Perspectives (Berlin-Dordrecht, Springer, 2009); D.J. Hurst, ‘Approaching Organ Transplant in Islam from a Multidimensional Framework’, Online Journal of Health Ethics, 12(2, 2016), http://aquila.usm.edu/ojhe/vol12/iss2/8/. In this perspective, saving a life constitutes a goal of the Islamic Community and the Islamic law. This is a strong argument in favour of transplantation and an exception to the prohibition of violating the human body is justified by the need to save a life, which makes the organ transplant a legitimate means to achieve this goal. At the same time, however, doctors involved in transplant procedures have to firstly verify that the transplant will surely help the recipient and secondly, that it will not cause any harm to the donor.

Despite these peculiarities in its general presumptions, the Islamic approach is not far from a significant attitude toward the respect of the human life and the resolute rejection of organ trafficking is clearly consistent, that’s to say automatic. In particular, there is an unanimous opinion among the majority of Islamic scholars that donation should be strictly voluntary and no financial compensation should be provided. In this respect, scholars and Islamic organisms converge with several important international declarations against organ sale and trafficking.See, D. Budiani & O. Shibly, ‘Islam, Organ Transplants, and Organ Trafficking in the Muslim World: Paving a Path for Solutions’, in Muslim Medical Ethics: From Theory to Practise, eds. J.E. Brockopp & T. Eich (Columbia, S.C.: University of South Carolina Press, 2008), 138-150.

In conclusion, despite their different approaches, Christianity and IslamismIt’s worth remembering that, among the Abrahamic religions, saving a life is a value which could lead to organ donation and transplant also in the Jewish approach. In fact, despite ‘the Jewish faith has traditionally taken a sceptical view regarding transplantation and deceased donation in particular’ due to the ‘great importance on avoiding any unnecessary interference with a body after death, and the requirement for burial of the complete body (…) many Jewish scholars feel that these concerns are overridden by the urge to save lives’: M. Oliver, A. Woywodt, A. Ahmed, I. Saif, ‘Editorial Review. Organ Donation, transplantation and religion’, Neprhol Dial Transplant (2010): 13. seem to share a common ground in opposing organ sale and organ trafficking and asking States and international institutions to pay more attention to social justice in regulating organ donations and transplants.

4.Brief Conclusions

The regulation of organ donation and transplantation is mainly based on ethical principles and rules which are often very close to religious ones. This is the reason why religion is proposed as a tool to enhance a correct social development of these medical practices.

Religion can indeed contribute to the fight against organ trafficking. However its role should not be overestimated for a number of reasons.

First of all, the correspondence between ethical and religious principles and rules is not completely perfect. Moreover, there is always the risk that religion may be invoked as a justification for the affirmation of completely different ideals. In this respect, it should not be forgotten that religion is an important means in orienting people’s behaviour. So the risk of the use of religion for political rather than religious goals – and, finally an authoritative use of religion, even with respect to the faithful – is always to be considered. As explained below, this should be a significative point for public and secular institutions too.

Secondly, the correspondence in considering bioethical values and principles and, especially, in combating organ trafficking is not that perfect even if we limit the analysis within the various spheres of religions. In this respect, the comparative analysis between the Christian and Islamic approaches developed above, even if not comprehensive of the plurality of religious faiths and denominations, has proved significant in highlighting the theoretical opposite pole when this issue is considered from a religious point of view.

Indeed, even if both Christianism and Islamism virtually meet on the opposition to a market system of human organs saleFor a Christian perspective regarding the proposals of legalizing a market system of living donor organ sale, see F.L. Delmonico & N. Scheper-Hughes, ‘Why We Should Not Pay For Human Organs’, Zygon 38, no. 3 (September 2003): 689-698. and, hence, on the fight against organ trafficking, this convergence moves from rather different bases. Surely this cannot be insignificant for States and the international community when they invoke religions in combating organ trafficking.

However, in a deeper analysis – and this is another reason for being cautious – it should be stressed that many of the issues related to organ transplantation find no direct answers in religious law. In this respect, it is rather the State, together with political institutions and social sensitivity, that can help religions to further evolve combining tradition with innovation. That being said, even if not so perfect, the correspondence we have just remembered can be seen as the result of a complex web of relationships in which both the State and religions play an important role.

Strictly related to this consideration, it is worth noting that the relationship between the secular sphere and the religious sphere is really complex. This relationship is probably to be described in terms of mutual aid.

In any case, as discussed above, some kind of issues (just like organ donation and transplantation as well as organ trafficking) can be considered as an important vehicle for religions to assert, through their own laws, the importance of religious values and rules even in the secular State. In other words, organ transplants and organ trafficking can constitute very significant fields in hiring the public role of religions, that is to say to verify the capacity of religions to interface with the secular values and to fight the supremacy of the political authorities.

Therefore, it can definitely be said that it represents a way to confirm the religious freedom as well as the autonomy of religion from the State, but it should also be considered, at the same time, that the political sphere still constitutes the best guarantee for the rights of the individual, in the light of the legal principle of equality.

By this way, it should be clear that some negative effects of acritical collaboration between State and religions in combating organ trafficking should be always considered.

Moreover, as mentioned above, rules imposed by a religious group or denomination are very similar to the legal rules imposed by the State since they intend not only to direct the relationship between the faithful and God, but also the conduct of the faithful himself in society. In addition, religious denomination is a legitimate reaction through harsh sanctions, in the case of violation of these rules. Although it is not decisive, it is worth noting that these sanctions cannot be only of a spiritual nature.

In this regard,  religious freedom is an expression which can be referred to individuals and groups or denominations, but it is clear that it is not always possible to consider these two dimensions in exercising freedom (that is, the individual one and the collective one) as concretely coinciding.

That being said, it is clear that, while protecting the individuals in their religious freedom is a specific duty for the State, enhancing the public role of religion can equate to emphasizing the collective dimension of religion. So, implicitly, religious freedom (in the collective dimension) can be converted in a way to violate religious freedom (in the individual dimension). This also constitutes a very important reason to be very cautious in evaluating this public role too generously.

Finally, religious priorities and strategies could in practice be very different from those of States, so that both States and International organisations should never give up their centrality in regulating these practices.

In light of the foregoing considerations, fighting against organ trafficking through (the ‘public role’ of) religion has both benefits and risks. All actors – both political and religious – have to ensure that the first prevail on the seconds.