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Sexuality and Law: Family Planning and Birth Control

By:
Donna Lee Bowen, 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.

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Sexuality and Law: Family Planning and Birth Control

Concern with population growth rates over the past fifty years coupled with worries about economic and social development have spurred debate on the use of family planning measures by Muslims. In terms of popular usage, family planning, used to space rather than prevent births, has become increasingly accepted. In the nineteenth and early twentieth centuries, populations in Muslim countries grew slowly as high birth rates were offset by high mortality rates. Following World War II and continuing today, countries with a majority of Muslim citizens are, generally speaking, characterized by slowly declining birth rates and mortality rates that are declining steadily. A variety of factors have combined to decrease the total fertility rate (number of children born) to at or below replacement level (2.1 children per woman), including availability of medical services, widespread community health and sanitation programs, greater literacy, the education and higher status of women, migration to urban areas, and employment availability. As a result population growth has slowed considerably, and the average number of children born to a Muslim family, now around 3.5, has decreased by half from 1970.

Although some Muslim countries have the resources to support a growing population, others with more limited resources fear the impact of population growth on their ability to provide services for their citizens. National family planning programs have been implemented successfully in a number of countries. Muslim countries in the Middle East, North Africa, and Asia, with a few exceptions, have slowed their rate of natural increase considerably. Yet, unlike many European nations, populations of Muslim countries continue to grow.

Classical Fiqh

Since the beginning of Islam, the Muslim community has encouraged large families to ensure a strong and vibrant Muslim population. However, the majority of Muslim schools of law have asserted the religious permissibility of family planning in the fiqh (jurisprudence) literature on marriage (nikāḥ) and family. The Qurʾān makes no mention of family planning measures, but a few crucial ḥadīth texts mention ʿazl (coitus interruptus), specifically the Prophet affirming the practice among his Companions and confirming that any being God wished to create would be created (Ṣaḥīḥ al-Bukhārī, Jāmiʿal-Tirmidhī).ʿAzl has been permitted by all schools of law when done with a slave woman. It is permitted by all schools with a free wife as well, but the Ḥanafī school requires her consent, and a major opinion in the Shāfiʿī school considers this preferable as well. This requirement for the woman’s consent is based on a contested ḥadīth in which the Prophet forbade ʿazl with a free woman without her permission (Musnad Ibn Ḥanbal).It was understood that ʿazl could be detrimental to a woman since it deprives her of her right to children (some schools believe it deprives her of sexual satisfaction).Many ʿulamāʾ, however, have considered ʿazl and any form of birth control to be discouraged (makrūh) due to the Prophet’s command, expressed in ḥadīths of contested reliability according to jurists, to “marry and multiply” (Muṣannaf ʿAbd al-Razzāq).

ʿAzl was the only contraceptive method discussed in the premodern fiqh literature in the context of intercourse, but medical texts and fiqh discussions document that women have utilized a variety of other means of contraception. These methods included infusions, suppositories, sexual techniques, and magic, and they provoked more serious fiqh debates because they often crossed into the realm of causing miscarriages.

Modern Discussions of Family Planning

Contemporary ʿulamāʾ tend to resolve the religious permissibility of family planning along the same lines of reasoning as their medieval colleagues. The twentieth century introduced a variety of contraceptive methods whose usage is primarily controlled by women. The permissibility of ʿazl, however, remains the basis for fiqh rulings on the subject. Because the majority of birth control methods, including condoms, birth control pills, and the “morning after” pill function to prevent the sperm from fertilizing the egg, they are treated as analogous to coitus interruptus. An exception to the general permissibility is the majority position of the Mālikī school, which allows ʿazl on the basis of the Prophetic precedent but prohibits other methods of birth control. This ruling stems from the school’s prohibition of removing sperm from the vagina/womb as well as tampering with its contact with the egg inside the body.

Because marriage contracts in Sharīʿah law involve the husband’s right to reproductive access, the majority of ʿulamāʾ rule that using contraceptive methods is permissible for only as long as the husband and wife agree to it. This position follows the logic of the classical texts in that, although use of contraception may be injurious to the wishes of one spouse, if both agree, then the rights of both are guaranteed.

Less well-educated religious leaders in small towns and villages often hold that family planning is prohibited by Islam. Their reasoning follows a different line, which argues on deterministic grounds. They base their premise on a ḥadīth that states: “Marry, have children and multiply that I will be proud of you on Judgment Day.” They prohibit family planning on the basis that it opposes the supremacy of the will of God.

Some Muslim scholars, as well as economists and development experts, have challenged Islam ’s pro-natalist policy by questioning whether the traditional way of defining the strength of Islam as proportional to the number of its adherents still applies. Maḥmūd Shaltūt (d. 1963), rector of al-Azhar University during the early part of the regime of Gamal Abdel Nasser, argued for both the permissibility of family planning and the role of the state in implementing family planning programs. Although in early Islam strength was equated with a large population, Shaltūt maintained that in the twentieth century, large populations may weaken rather than strengthen communities. Factors such as poverty, malnutrition, and lessened public morality that are concomitant with large populations in developing areas all make the Muslim community vulnerable to enemies. Shaltūt stated that if family planning would contribute to alleviation of these social ills, it was then permissible in Islam; he implied that the state was responsible for the facilitation of such programs. Many scholars still quote Shaltūt and utilize this reasoning.

Contemporary ʿulamāʾ who oppose family planning generally cite reasons having as much to do with politics as religion. The terms used for contraception often indicate political stances. “Birth control” (taḥdīd al-naṣl) carries the negative sense of limiting or eliminating progeny; “family planning” (al-takhṭīṭ al-ʿāʿilī or tanẓīm al-usrah) has a more positive connotation of spacing births in the best interests of all family members. While most ʿulamāʾ hold that any family has the option to employ private family planning measures, most uphold the general principle of supporting strong families and oppose government programs that set limiting birth as a national policy rather than a tool to strengthen families. They counsel moderation. They also warn about the negative population growth seen in Eastern Europe. In some countries, government support for family planning policies has correlated inversely with patriotic needs for manpower to strengthen national defense against enemies. As the defense needs receded, family planning programs were again implemented.

Some Muslims regard the Western development experts ’ linkage of population control and economic development as both damaging and fallacious. They postulate that the West seeks to weaken Islam by limiting the size of the Muslim community, and they reject all family planning programs on that basis. Conservative Muslims are among the most vocal opponents of family planning. Some Islamists inveigh against family planning; others support it for spacing of children. Opposition still exists even to pro-natalist government family planning programs. Some Muslims still accept views promulgated in a 1977 essay, “Birth Control Is a Refuted Idea,” by the then Shaykh al-Azhar, ʿAbd al-Ḥalīm Maḥmūd (d. 1978), which held that family planning is both unnecessary and counter to Islamic belief. He called for greater human reliance on God for sustenance and for Muslim inventiveness and dedication in the conquest of the desert and better use of resources. Conservative Muslims may hold that use of birth control contributes to greater immorality in the form of premarital sexual activity, adultery, and abortion. These arguments are common in conservative circles throughout the Muslim world and are often tied to attempts to restrict greater latitude given to women in personal status laws. More controversial, still, would be to apply sterilization policies in order to limit births, but this would be unlikely, as all Muslim religious leaders oppose sterilization as a means of family planning on religious grounds as it permanently alters what God has created.

[See also ABORTION.]

Bibliography

  • Ali, Kamran Asdar. Planning the Family in Egypt: New Bodies, New Selves. Cairo: American University in Cairo Press, 2003. A case study of state-sponsored family planning and its impact on women in Egypt.
  • Bowen, Donna Lee. “Islamic Law and Family Planning.” In Islam and Social Policy, edited by Stephen P. Heyneman. Nashville, Tenn.: Vanderbilt University Press, 2004. Survey of Muslim theologian and popular opinions on family planning in medieval and contemporary times.
  • Bowen, Donna Lee. “Muslim Juridical Opinions Concerning the Status of Women as Demonstrated by the Case of Azl.” Journal of Near Eastern Studies 40, no. 4 (1981): 323–328. Presentation of Muslim legal schools’ positions on contraceptive use.
  • Hines, Norman E. Medical History of Contraception. New York: Schocken Books, 1970. Chapter 6, “The Islamic World and Europe during the Middle Ages,” details contraceptive methods used in that period.
  • Musallam, Basim F. Sex and Society in Islam: Birth Control before the Nineteenth Century. Cambridge, U.K.: Cambridge University Press, 1983. Excellent study of family planning in theory and practice, and the demography of Muslim nations during the medieval and early modern period.
  • Nazer, Isam R., ed. Islam and Family Planning. 2 vols. Beirut: International Planned Parenthood Federation, 1974. Collection of articles by Muslim theologians (ʿulamāʾ) on all aspects of marriage, family, and family planning. First published in Arabic.
  • Omran, Abdel Rahim. Family Planning in the Legacy of Islam. London and New York: Routledge, 1992. Comprehensive collection and discussion of Qurʾānic, ḥadīth, and jurisprudence references relating to marriage, the family, and family planning.
  • Roudi-Fahimi, Farzaneh, and Mary Mederios Kent. “Challenges and Opportunities—The Population of the Middle East and North Africa.” Population Bulletin 62, no: 2 (June 2007). Comprehensive survey of population and demographic issues and their implications for policy. Also available at prb.org/pdf07/62.2MENA.pdf.
  • Shaltūt, Maḥmūd. “Tanẓīm al-Nasl.” In al-Islām: ʿAqīdah wa Sharīʿah. Cairo, 1966. Controversial reading of Islamic social theory by the politically astute rector of al-Azhar.
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