The expelling of the fetus from the womb before the period of gestation, abortion 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. Within the Islamic system, procreation of the human species is regarded as one of the most important aspects of marriage. A Muslim may not terminate pregnancy on the grounds of it being unplanned or unwanted as the trend seems to be in the West. The question for Muslims is not whether it is right or wrong, from an ethical standpoint, to engage in abortion. Rather, Muslims ask whether the shari`ah (Islamic law) sanctions abortion, and proceed accordingly.
Muslim jurists (fuqaha’), in attempting to determine the legal implications of abortion, engage in what is termed ijtihad (intellectual deliberation) in order to deduce laws from the broad teachings of the Qur’an and the hadith (sayings, practices, judgments, and attitudes) of the prophet Muhammad (57o-633 CE). The Qur’an places a high premium on life and its preservation. Punishment for the unlawful killing of a human being is imposed in this life and in the Hereafter (surah 4.93). Moreover, it propounds that neither poverty nor hunger should cause one to kill one’s offspring (surah 17.31). Insofar as the hadith is concerned, mention is made of an incident wherein a woman approached the prophet Muhammad, informing 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 (Karim, 1939, vol. 2, PP. 538-540).
From these original sources, Muslim jurists deduce the sanctity of human life and unanimously hold abortion to be blameworthy (Naciri, 1973, p. 144). They then face the problem of determining the gravity of the crime, hence the appropriate punishment. Their deliberations on this matter revolve around the quality of personhood contained in the fetus. The word janin (“fetus”; pl. ajinnah) literally stands for “that which is veiled or covered” (Lane, 1955, vols. 1-2, pp. 463). The Qur’an refers to janin as the procreated being inside the woman’s body, irrespective of the stage of its development (surah 53.32). However, commentators on the Qur’an (mufassirun) hold that the words khalqan akhar (“another act of creation”), which appear in surah 23.13, signify the ensoulment of the fetus (Musallam, 1983 P. 54). The hadith contain at least two vital citations relating to the fetus. In one it is stated that organ differentiation occurs forty nights after fertilization. In another, ensoulment of the fetus is said to occur 12o days after conception (Muslim [trans. Siddiqi], 1976, vol. 4, PP. 1391-1392)
Thus, Muslim scholars differ in their definition of the fetus. Some maintain simply that the fetus stands for that which is in the womb (Ebrahim, 1989, P. 73). Others, including the Islamic jurist al-Shafi’i, hold that the “fetus” is initiated after the stages of al-mudghah (“the chewed lump”) and al-`alaqah (something that clings) have been completed; only then can a human possessing differentiated characteristics, such as fingers, nails, or eyes, be clearly identified (al-Bfiti, 1976, p. 197). A third group uses the word janin to mean that which exists in the womb after the ensoulment has taken place (Madkur, 1969, p. 32). However, despite these differences in interpretation, there is consensus among scholars that, after the ensoulment of the fetus, abortion constitutes homicide and is thus liable to penalty (alQaradawl, p. 201).
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 Shafi`i 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 (Ebrahim, 1989, p. 76).
Second, the fetus has a right to inheritance. The fetus cannot, according to the shari `ah, inherit while still in the womb, but the law provides that the inheritance be kept in abeyance for various practical reasons until birth occurs (Madkfir, 1969, pp. 287-288). In the case of a fetus being stillborn, there is no question of existence (Ibn `Abidin, 1979, vol. 2, p. 228). Shares of the inheritance are determined after birth, on the basis of the infant’s sex.
Third, the shari`ah 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 (al-ghusl) and a name, placed in a white cloth (kafan), and then buried. These provisions apply to both formed and unformed fetuses (Ibn `Abidin, 1979, vol. 2, p. 228). 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.
Concept of “Therapeutic Abortion.” The Hanafi jurists render abortion permissible up to 120 days after conception and only for a juridically valid reason (Khan, 1979, p. ioi). “Therapeutic abortion” before the fourth month of pregnancy may be sanctioned in the following cases: (I) 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; and (3) if a second pregnancy severely reduces the mother’s ability to lactate while her infant is completely dependent on her milk for survival (al-Buti, 1976, pp. 96-99).
Although the mother’s life takes precedence over that of the fetus, priorities change should the mother’s life be in danger after the fourth month of pregnancy. Muslim jurists hold that, since ensoulment occurs after 120 days, 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 shari`ah: choosing the lesser of the two evils. 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 (al-Qaradawi, p. 202).
[See also Family Law; Family Planning; Surrogate Motherhood.]
BIBLIOGRAPHY
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Ebrahim, Abul Fadl Mohsin. Abortion, Birth Control, and Surrogate Parenting: An Islamic Perspective.Indianapolis, 1989.
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Qaradawi, Yusuf al-. The Lawful and the Prohibited in Islam.Indianapolis, n.d. (198o?).
ABUL FADL MOHSIN EBRAHIM