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Abortion

By:
Abul Fadl Mohsin Ebrahim, Updated by Yasmin Safian and Robert Gleave
Source:
The Oxford Encyclopedia of the Islamic World What is This? Provides comprehensive scholarly coverage of the full geographical and historical extent of Islam

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. “Islam and Christianity both object to abortion, and while Roman Catholicism prohibits abortion absolutely, Islamic jurisprudence allows abortion under certain circumstances. Islam recognizes that under some circumstances there is a need for a modification of the original ruling on abortion” (Brockopp, p. 51).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 its 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 sharīʿah (Islamic law) sanctions abortion and proceed accordingly.

Muslim jurists (fuqahāʿ), in attempting to determine the legal implications of abortion, engage in what is termed ijtihād (intellectual deliberation) in order to deduce laws from the broad teachings of the Qurʿān and the ḥadīth (sayings, practices, judgments, and attitudes) of the Prophet Muḥammad (570–633 CE). While there is no textual evidence from the Qurʿān or sunnah regarding the prohibition of abortion, the Qurʿān 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 (Qurʿān 4:93). Moreover, it propounds that neither poverty nor hunger should cause one to kill oneʾs offspring (Qurʿān 17:31). Insofar as the ḥadīth is concerned, mention is made of an incident wherein a woman approached the Prophet Muḥammad, 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.

From these original sources, Muslim jurists deduce the sanctity of human life and unanimously hold abortion to be blameworthy. They then face the problem of determining the gravity of the crime and the appropriate punishment. Their deliberations on this matter revolve around the quality of personhood contained in the fetus.

"Medical science and Muslim law have recognised the fact that life begins as soon as the ovum is fertilized, that is when it combines with the sperm. Thus, modern Islamic jurisprudence, in general, 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)."

The word janīn (“fetus”; pl. ajinnah) literally means “that which is veiled or covered.” The Qurʿān refers to janīn as the procreated being inside the womanʾs body, irrespective of the stage of its development (Qurʿān 53:32). However, commentators on the Qurʿān (mufassirūn) hold that the words khalqan ākhar (another act of creation) that appear in 23:13, signify the ensoulment of the fetus. The ḥadīth 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 120 days after conception.

Thus, Muslim scholars differ in their definition of the fetus. Some maintain simply that the fetus stands for that which is in the womb. Others, including the Islamic jurist al-Shāfiʿī, hold that the “fetus” is initiated after the stages of al-mudghah (the chewed lump) and al-ʿalaqah (something that clings) have been completed; only then can a human possessing differentiated characteristics, such as fingers, nails, or eyes, be clearly identified. A third group uses the word janīn to mean that which exists in the womb after the ensoulment has taken place. 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.

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.

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 infantʾs 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 (al-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.

Concept of “Therapeutic Abortion.”

The Ḥanafī jurists render abortion permissible up to 120 days after conception and only for a juridicially valid reason. “Therapeutic abortion” before the fourth month of pregnancy may be sanctioned in the following cases:(1) if the doctors fear that the pregnant motherʾs 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 motherʾs ability to lactate while her infant is completely dependent on her milk for survival.Muslim scholars are not unanimous about the prohibition of abortion before the animation of the fetus; views range between permissibility, discouragement, and prohibition. Ḥanafīs, Zaydīs and some Shāfiʿīs rule that abortion is permitted before animation in an unqualified manner without the need for an excuse. The second opinion from some Ḥanafīs and Shāfiʿīs is that pre-animation abortion is permitted if there is an excuse, and that if there is no excuse, it is a discouraged act. The third opinion is of the Mālikīs, who ruled that it is discouraged in all cases regardless of the existence of an excuse. The last opinion is also the authoritative view of the Ẓāhirīs, who also say that abortion before 120 days is totally prohibited.

Abortion after animation is prohibited in Islam. However, certain circumstances are classified as a ḍarūrah (necessity) and “necessity” can be accepted as a valid reason for abortion after animation. “Necessity” includes a case in which the motherʾs life is in danger or the pregnancy will cause a fatal disease to the mother. Muslim scholars do not recognize the risk of having disfigured babies, or a baby having a fatal defect 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 councils however, such as the High Council for Islamic Legal Opinion in Kuwait and Majmaʿ al-Fiqh al-Islāmī permit termination of pregnancy before 120 days for malformation of the fetus. The ruling is the same for abortion in cases of rape or adultery. The strict rule of this prohibition after the fourth month is based on a ḥadīth of the Prophet regarding a woman who conceived adulterously; he ordered the punishment to be postponed until she had delivered. However, some ʿulamāʿ have proposed that pregnancies resulting from adultery or rape can be carried out before animation, as giving birth to these babies could be extremely distressing, especially for rape victims. This ruling is also based on the earlier view of some of Ḥanafīs and Shāfiʿīs who permitted abortion even without a valid reason before the lapse of 120 days.

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 expel the semen before it establishes itself in the womb, and the woman has the right to expel the semen before it reaches her womb. Moreover, these attempts to reduce the extent of any legal transgression in terminating a pregnancy before 120 days (either by using “morning after” pills or by other means) rely on an analogy between early stage pregnancy and coitus interruptus.

In the event that there is a dilemma between saving the life of the baby and that of the mother, the motherʾs life should have the priority. 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 sharīʿah: 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. Moreover, the life of the mother is positive and factual, while that of the fetus is only contingent. In conclusion, abortion is disfavored in general and it is forbidden after the lapse of four months, except for pressing personal necessity. Islam does not prohibit abortion absolutely, rather it is decided on case-by-case basis. See also FAMILY LAW; FAMILY PLANNING; and SURROGATE MOTHERHOOD.

Bibliography

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  • Muslim ibn al-Ḥajjāj al-Qushayrī. Ṣaḥīḥ Muslim. Translated by ʿAbdul Hamid Siddiqi. 4 vols. Lahore, 1976.
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