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Abortion

By:
Abul Fadl Mohsin Ebrahim, Jonathan AC Brown
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

Abortion

Legal experts define abortion as the deliberate expulsion of the fetus from the womb prematurely and artificially without the presence of any need for such an action. The expelling of the fetus from the womb before the period of gestation has ethical and legal implications in practically all societies, irrespective of prevailing religious traditions. Muslim and Western conceptions of abortion differ, both with respect to unplanned and unwanted pregnancies. Like the legal systems of many countries today, however, Islamic jurisprudence allows abortion under certain circumstances and recognizes that circumstances might call for the modification of normal legal rulings.

Fetal Life and Penalties for Abortion

In Islamic thought, procreation of the human species is regarded as one of the most important aspects of marriage. While there is no textual evidence from the Qurʾān or sunnah specifically regarding the prohibition of abortion, the holy book gives dire warning against killing infants out of fear of poverty (17:31). This provides the ethical groundwork that Muslims may not terminate pregnancies on the grounds of their being unplanned or unwanted. Insofar as the ḥadīth corpus is concerned, mention is made of an incident wherein a woman approached the Prophet Muḥammad and informed him that she had committed adultery. He commanded that the punishment for adultery (stoning to death) be effected only after she had delivered and weaned the baby. Finally, other ḥadīths specify the compensation payment (diyah) owed for causing the miscarriage of a fetus, thus establishing it as a legally protected interest.

From these original sources, Muslim jurists deduced the sanctity of human life and unanimously held the termination of a life in utero to be blameworthy. They then faced the problem of determining the gravity of the crime, the appropriate punishment, and possible mitigating circumstances. Their deliberations on this matter revolved around the quality of personhood contained in the fetus.

Many modern Muslim scholars have recognized that life begins as soon as the ovum is fertilized, that is when it combines with the sperm. Thus, a significant school of thought in modern Islamic jurisprudence rejects the notion that, when the embryo is still at its first rudimentary stages and before a certain period of time, it is merely a “lump of flesh” which is void of life (International Islamic Conference, p. 388). Jurisprudence on the subject, however, has long been dominated by a well-known ḥadīth that strongly suggests that the creation of a new life is not completed even in its initial stages before forty days after conception, and that the soul is not bestowed on the fetus (janīn) until after 120 days. The Prophet is reported to have said:

"Each of your creations is brought together in his mother’s womb in forty days, then he is a clinging clot (ʿalaqah) for that same time, then he is a small lump of flesh (muḍghah) for that same time. Then God sends an angel to him, and it breathes into him [a soul] and assigns four things: his sustenance (rizq) is written, and his lifespan, his deeds and whether he will achieve salvation or not" (Ṣaḥīḥ Muslim).

The Qurʾān refers to the fetus as the procreated being inside the woman’s body, irrespective of the stage of its development (53:32). However, commentators on the Qurʾān (mufassirūn) hold that the words khalqan ākhar (another act of creation), that appear in 23:13, signify the ensoulment of the fetus.

Thus, Muslim scholars differ in their definition of the fetus. Some maintain simply that the fetus stands for that which is in the womb at any stage. Mālik thus held that any visible flesh constitutes a fetus, and causing its miscarriage would render the responsible party liable for paying the fetus’ blood money (diyah) to its relatives. The majority of scholars, however, hold that the living fetus is initiated only after 120 days, when the ensoulment occurs and a human possessing differentiated characteristics, such as fingers, nails, or eyes, can be clearly identified. There is consensus among Muslim scholars that, after the ensoulment of the fetus, abortion constitutes homicide and is thus liable to penalty. Since the amount of the diyah for causing a miscarriage differs if the child is stillborn or dies after birth, jurists set six months as the point in a pregnancy after which it is assumed that an aborted (here a forced miscarriage) fetus was living and thus due the full diyah. As in the case of the miscarriage of an ensouled fetus caused by a blow from a third party, a mother who took medicine to cause a miscarriage would be liable for the diyah. Moreover, she would not be included among the relatives who would receive a portion of this diyah on the basis of the Prophet’s command that a killer not inherit from his victim.

Positions on abortion before the ensoulment of the fetus differ, ranging from permissibility to prohibition. Most Ḥanafī and Shāfiʿī jurists render abortion permissible up to 120 days after conception provided it is done for a juridicially valid reason (see below). Otherwise it is either permissible or discouraged (makrūh). Zaydīs and some Shāfiʿīs (like al-Ramlī) rule that abortion is permitted before animation in an unqualified manner without the need for an excuse. The Ḥanbalī school holds the same position, but it places the beginning of the fetus’ life at forty days based on the first stage of fetal formation mentioned in the above ḥadīth. Abortions done during the permitted period require both parents’ consent in all schools. The third opinion is that of the Mālikīs, who ruled that abortion is discouraged (makrūh) in all cases regardless of the existence of an excuse. This is based on the school’s stance on birth control. It forbids the woman from removing sperm from her body after intercourse, and, a fortiori, one cannot remove the fertilized egg even before the forty-day first stage of creation has occurred. The last opinion is also the view of the Ẓāhirīs, who say that abortion before 120 days is totally prohibited.

Legal Rights of the Fetus

The schools of Islamic jurisprudence allot certain rights to the fetus. First, the fetus is accorded the right to life, that is, the right to be born and to live as long as God permits. Thus, in the event of the death penalty being passed on a pregnant woman, the sentence may only be carried out after delivery and provisions have been made for the child to be suckled by a wet nurse. The Shāfiʿī school provides that the belly of a pregnant woman who has died be cut open in order to give the fetus a chance to survive since it is considered prioritizing the living over a dead body. The Ḥanbalī schools allows this if it is probable that the fetus is alive, but it is preferable for midwives to pull the child out through the birth canal due to the ḥadīth that “Breaking the bone of a dead body is like breaking the bone of the living” (Abū Dāwūd).

Second, the fetus has a right to inheritance. The fetus cannot, according to the Sharīʿah, inherit while still in the womb, but the law provides that the inheritance be kept in abeyance for various practical reasons until birth occurs. In the case of a fetus being stillborn, there is no question of existence. Shares of the inheritance are determined after birth, on the basis of the infant’s sex. Third, the Sharīʿah provides that a stillborn baby or miscarried fetus has the right to a burial. Babies who die before uttering any sound should be given the ceremonial bath (ghusl) and a name, placed in a white cloth (kafan), and then buried. These provisions apply to both formed and unformed fetuses. The only difference between the burial of a human being and that of a stillborn or miscarried fetus is that no prayer is said for the latter.

Abortion after 120 Days and the Concept of “Therapeutic Abortion”

Abortion after ensoulment is prohibited in Islam, but Muslim scholars have generally allowed for circumstances in which it is permitted. The Ḥanafī school has most fully elaborated the reasons for which such a “therapeutic abortion” before 120 days of pregnancy can be performed: (1) if the doctors fear that the pregnant mother’s life is in danger; (2) if the pregnancy may result in causing a disease to the mother; (3) if a second pregnancy severely reduces the mother’s ability to lactate while her prior infant is completely dependent on her milk for survival. These situations constitute necessity (ḍarūrah), which can render the prohibited permissible in Islamic jurisprudence.

Muslim scholars do not recognize the risk of having disfigured or developmentally disabled babies, or of a baby having congenital birth defects or disease, as excuses for abortion. This ruling is based on the reason that the life of the fetus should not be disposed of when there is uncertainty over its inevitable death by a disease. Some Muslim fiqh councils, however, such as the High Council for Islamic Legal Opinion in Kuwait and the Majmaʿ al-Fiqh al-Islāmī (Academy of Islamic Jurisprudence) in Saudi Arabia permit termination of pregnancy before 120 days for malformation of the fetus on the basis that, prior to ensoulment, the fetus is not a full human being. The ruling is the same for abortion in cases of pregnancy resulting from rape, incest, or adultery within the 120-day window. Here, the Academy followed the course of some Ḥanafīs and Shāfiʿīs, who permitted abortion even without a valid reason before the lapse of 120 days. After this period, however, terminating pregnancies resulting from rape or adultery is not permitted. The Academy rendered a similar opinion on terminating the pregnancies of women infected with HIV. This would not be permitted since the virus is most commonly transferred to the fetus during the last stages of pregnancy or during childbirth, both of which exceed the 120-day limit of ensoulment. The strict rule is based on the Prophet’s ruling on the woman who conceived adulterously; he ordered the punishment to be postponed until she had delivered.

In the event that there is a dilemma between saving the life of the baby and that of the mother, the mother’s life should have the priority. This conclusion comes despite the fact that Muslim jurists acknowledge that, since ensoulment occurs after 120 days, from that point onward the fetus has a right to life equal to that of the mother. This dilemma is resolved through application of a general principle of the Sharīʿah: choosing the lesser of the two harms (akhaff al-ḍararayn). Rather than losing both lives, the life of the mother should be given preference over that of the fetus. For the mother is the origin of the fetus, established in life, with duties and responsibilities, and is also a pillar of the family. Moreover, the life of the mother is positive and factual, while that of the fetus is only contingent.

Another issue regarding abortion in the case of rape is the question of whether or not the victim can use morning-after pills. Contemporary Muslim scholars have distinguished between the use of these pills and abortion, as the pills only delay the release of the egg from the ovary and prevent it meeting with the sperm. Since it has been agreed (with the exception of the Mālikī school) that a woman has the right to expel the semen before it reaches her womb, the use of the morning-after pill is permitted by analogy.

[See also FAMILY LAW; and SEXUALITY AND LAW: FAMILY PLANNING AND BIRTH CONTROL].

Bibliography

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