Note: Ayatollah Mohammad Andelib-Hamadani is a traditional jurist in terms of adherence to Jawahiri jurisprudence and a reformist jurist in terms of interest in addressing newly emerging issues. Following years of teaching advanced levels and dars-e kharij of jurisprudence and Usul in the Qom Seminary, he has turned to teaching advanced contemporary jurisprudence. One of his teaching topics in contemporary jurisprudence in recent years is medical jurisprudence. In this exclusive note, he addresses four important points regarding the ownership of stem cells; points that appear to have received less jurisprudential attention and precision to date. The detailed text of the exclusive note by this member of the Supreme Scientific Council of the Research Institute of Contemporary Jurisprudence Studies follows:

Regarding ownership rights and informed consent in stem cell extraction, four points require attention:

Point One: Terminology

Three primary terms must be separated from one another in this chapter:

A: Valuableness/Wealth-status (Maliyyah);
B: Ownership (Milkiyyah);
C: Authority/Dominion (Saltanat), which itself is of three types: First, authority arising from wealth-status and ownership; second, authority stripped of ownership (=permissibility of disposal/ibahah-ye tasarruf); and third, authority stripped even of wealth-status, where an object possesses no wealth-status among rational beings, yet the right of exclusivity (haqq-e ikhtisas) remains.

In this connection, it must be noted that:

First: We might state that because in this era and time, umbilical cord blood and other stem cells taken from an embryo or an adult possess a permissible intended benefit (manfa’at muhallalah maqsudah) and are customarily recognized as property/wealth (mal), albeit potential wealth, they consequently possess wealth-status (maliyyah) in Sharia as well, and ritual impurity (najasat) does not prevent the benefit from being permissible in the Lawgiver’s view and intended in the rational beings’ view; and we might state that even if we doubt its wealth-status and subsequently its ownership, the right of exclusivity and authority remains established.

Second: When a cell is separated from the body, it can be stated to possess ownership as well (apparently for the mother, the child, or perhaps both), and again it can be stated that assuming non-ownership, authority and the right of exclusivity exist within it.

Third: Caution (ihtiyat) here lies in obtaining permission from both the mother and the guardian of the child, who is usually the father.

Fourth: These stem cells (from fat deposits, etc.), as long as they remain inside the body of a sane, adult individual, are under their own authority; hence their permission is necessary for surgical operations. However, customarily and religiously, as long as they are inside the body, they possess neither wealth-status (maliyyah) nor ownership (milkiyyah), and thus are not inherited; but once these fat deposits are separated, even if we do not hold them to possess wealth-status and ownership, the right of exclusivity and consequently authority in permitting any disposal remains.

Point Two: Causes and Factors of Acquiring Ownership

The causes and factors of acquiring ownership consist of:

1. Compulsory cause; which is inheritance.

2. Conventional cause; which is sale (bi’), reconciliation (sulh), etc., among legal and conventional causes. This ownership is the product of conventionalizing another’s ownership and expressing this convention through words, writing, etc.

3. Action-based cause; such as reviving barren land (ihya’ al-mawat).

4. Enactment of permissibility of all disposals (insha’-e ibahah-ye jami’-e tasarrufat); under specific rules, ownership is realized for the permitted party as a result (of course, it is discussed in jurisprudence whether mere possession (qabd) by the permitted party realizes ownership for them or whether disposal must occur, etc.).

Now it must be seen: Where is the standing of renunciation/abandonment (i’raz) among these?

Perhaps, considering the material jurists hold in the chapter on renunciation, we might state that renunciation is in a way appended to the fourth category, albeit with qualifications and conditions, expressed as follows:

First: The main proof for the validity of possession, disposal, and subsequent ownership in renunciation is the conduct of rational beings (sirat al-‘uqala’); and because the most important proof is rational conduct, which is an implicit proof (dalil-e labbi), and because in implicit proofs one must restrict oneself to the certain core (qadr-e mutayaqqan), the certain core is where the object is either genuinely of low value or, if valuable, the owner abandons the object knowingly regarding its value and without coercion.

Second: In the above assumption, this owner’s renunciation itself means enacting the permissibility of disposal for all; and if someone picks up that object, they become its owner (either becoming owner through mere possession or through disposal, etc.).

Third: If the child’s mother and father (as guardian) are unaware of the current value of umbilical cord blood and other stem cells, even their explicit permission will not cause the permissibility of its extraction for the blood bank; because the jurisprudential criterion is genuine willingness of soul (tib-e nafs), and under the assumption of ignorance regarding the asset’s value, willingness of soul is contextual and naturally formal, not absolute and actual; thus, even if we entertain the probability of non-consent, the cells must not be extracted.

Fourth: The owner’s or ruler’s inability regarding the quality of exploiting an object under no circumstances justifies laxity in acquiring permission from the owner; thus formal consent forms possess no utility.

Point Three: Contracts

Jurisprudential and legal contracts each possess a specific definition, particular standing, and dedicated rulings. To prevent any form of uncertainty/risk (gharar) and harm (darar), to prevent disputes between the two parties, and to provide a legal and jurisprudential solution for dispute resolution in times of conflict, the type of contract must be mentioned in the forms, and relying merely on the title “contract” appears insufficient.

If the intention of both parties is that this blood belongs to specific individuals such that the bank does not own it, here the type of contract is lease (ijarah), in the sense that those in charge of collecting and maintaining the blood are hired for a specified sum to prepare this blood for the use of the lessee and their intended individuals through technical procedures, and maintain it in a special location for a specified duration. Of course, they can also draft this contract in the form of a reconciliation contract (‘aqd-e sulh) yielding the benefit of lease.

If the intention is that the bank becomes the owner or dominant over the product, it must acquire ownership either through renunciation (i’raz) according to the articulated framing, through blood donation by the parents, or through paying consideration to the parents; and if their intention from this contract is a sale contract (‘aqd-e bi’), the contract must observe all rulings and effects of sale. Furthermore, for greater ease and avoiding restriction to the conditions and specificities of sale and ensuring greater religious validity of this transfer, they can resort to an independent, unprompted, and flexible reconciliation (sulh-e bad’i va mustaqill va musamahi). It is obvious that regarding the extraction of adult, sane cells and the quality of their transfer to relevant centers, the individual himself is the decision-maker.

Point Four: The Duty of the Government

What has been stated maintains an individual outlook pertaining to the blood bank directly confronting individuals; however, what is important here is that in this vital and so-called Quranic issue, legislative assemblies and governments play a major role; since by judgment of reason and textual proof, the legislative and executive branches must regulate the affairs of creation and establish good (iqamat-e ma’ruf), including their health; thus:

First: They must strive to raise public awareness regarding this human scientific achievement so that people perform this action with complete consent.

Second: If, despite the mother and father being informed of the value of this object and this life-saving action, they nevertheless insist on non-use and discarding it, the government must not accompany them in this “social wrong” (munkar-e ijtima’i). Here, in the conflict (tazahum) between the necessity of parental permission and the necessity and obligation of preserving lives and aiding patient recovery, the second option is definitely more important (aham); hence the conditionality of permission from the cell owner or parents falls away. Of course, the governance apparatus is obligated to combine necessities and respect for individual rights as far as possible.

Third: The governance apparatus is obligated to arrange matters such that the possibility of utilizing cell therapy is accessible to all, and prevent the activities of those who think purely of their own profitability in this vital matter.