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Abortion

By:
Abul Fadl Mohsin Ebrahim, Yasmin Safian, Robert Gleave, Samir Ben-Layashi
Source:
The Oxford Encyclopedia of Islam and Women What is This? A single source for accurate overview articles covering the major topics of scholarly interest within the study of women and Islam.

Abortion

In the medical sense, abortion is the termination of pregnancy before the fetus is viable and is capable of survival outside the uterus. In legal terms, regardless of the religious and/or cultural context in which abortion takes place, the definition is predicated on the idea that abortion is a deliberate expulsion of the fetus from the womb prematurely and artificially without the presence of any need for such an action. Hence, the link between medicine and legal opinions is largely centered on the question of whether a need for an abortion exists.

Although Muslim, Christian, and Jewish conceptions of abortion differ in their constructions, they all share a fundamental trait in terms of content: abortion is framed in terms of unplanned and unwanted pregnancies. While in canon Christian texts, abortion is discussed within the context of morality, it is not mentioned at all in the Qurʾān. It is, however, referred to implicitly in the sunnah. In Judaism, abortion is invoked explicitly in relation to the state of the health of the mother (Mishna Oholoth 7:6). Much of the time, the circumstances that call for such a change involve a pregnancy that is either the result of a rape or endangers the mother's health. Unlike in Christianity, which considers abortion to be one of the gravest transgressions, Islam and Judaism do not view it as a murder or a crime, but, rather, as an inevitable scourge that one may have to endure in order to avoid an even greater evil. Traditional Muslim (and Jewish) views on abortion are more permissive than classical Christian views. Anti-abortion positions and opinions exist in both Islam and Judaism, but they are not categorical, as is the case with orthodox Christianity.

While Muslims encountered other cultures between the eighth and twelfth centuries as they spread their faith throughout the territory between Spain and Afghanistan, Muslim canon texts, like Muslims themselves, adapted to local customary laws and traditions. This explains why many societies that had tolerated abortion prior to Islamization continued to do so after the advent of Islam.

Although there is no textual evidence from the Qurʾān or sunnah regarding the prohibition of abortion, Muslim jurists (fuqahāʾ) have attempted to determine the legal implications of abortion, engaging in what is termed ijtihād (intellectual deliberation or reinterpretation) in order to deduce laws from the broad teachings of the Qurʾān and the ḥadīth. Thus, most legal opinions derived from either the four legal schools (madhāhib al-Arbaʿa) or fatāwā (legal opinions) have based their deductions on the interpretation (taʾwīl) of some verses of the Qurʾān and/or the ḥadīth where there is a high premium placed on life and its preservation. Examples include verses 4:93 and 17:31.

Medical science and Muslim law have recognized that life begins as soon as the ovum is fertilized (combines with sperm). Modern Islamic jurisprudence, in general, rejects the notion that, before a certain period of time, it is merely a “lump of flesh,” one devoid of life. From Islamic scriptural sources, however, Muslim jurists have also deduced the sanctity of human life and unanimously held abortion to be blameworthy. They then faced the problem of determining the gravity of the crime and the appropriate punishment. Their deliberations on this matter revolved around the quality of personhood endowed in the fetus. On the other hand, the fact that there was no franc banning (tahrim sarih) either in the Qurʾān or in the sunnah rendered the gates of ijtihād wide open in this instance.

The word janīn (fetus; pl. ajinnah) literally means “that which is veiled or covered.” The Qurʾān refers to janīn as the procreated being inside a woman's body, irrespective of the stage of its development (53:32). However, commentators on the Qurʾān (mufassirūn) have held that the expression khalqan ākhar (another act of creation), which appears in 23:13, signifies the ensoulment of the fetus. The ḥadīth contain at least two critical references related 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.

The 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 stillborn fetus, 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 (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.”

Ḥanafī jurists render abortion permissible up to 120 days after conception and only for a juridically 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 mother's life is in danger; (2) if the pregnancy may cause a disease in 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.

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. A second opinion from some Hanafīs and Shāfiʿīs is that pre-animation abortion is permitted if there is an excuse, and if there is no excuse, it is a discouraged act. The third opinion comes from the Mālikīs, who opined 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 in addition state that abortion before 120 days is prohibited.

Abortion after animation is prohibited in Islam. However, certain circumstances are classified as a ḍarūrah (necessity), which can be accepted as a valid reason for abortion after animation. As stated earlier, “necessity” includes a case in which the mother's life is in danger or the pregnancy will cause a fatal disease to the mother. Muslim scholars do not recognize the risk of bearing 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 uncertainty exists over its inevitable death by a disease. However, some Muslim councils, such as the High Council for Islamic Legal Opinion in Kuwait and Majmaʿ al-Fiqh al-Islāmī, permit termination of a 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 ʿulamāʾ have proposed that pregnancies resulting from adultery or rape can be aborted 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 Hanafīs and Shāfiʿīs who permit abortion even without a valid reason before the lapse of 120 days.

Another issue regarding abortion, apart from rape, is the question of whether or not the victim can use the morning after pill. 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.

Throughout the Arab-Muslim world, abortion for medical reasons, aiming to preserve maternal health or to prevent the birth of handicapped children, is the only legal form of abortion. In most Muslim countries, the penal codes condemn abortions that do not meet at least one of these two criteria. For this reason, in Morocco, for instance, between 600 and 800 abortions are conducted clandestinely every day.

In the wake of the Arab Spring (2011–2012), many NGOs and feminist associations in the Middle East and Arab North Africa and Muslim feminist associations in Europe have increasingly demanded the abolition of the articles in the penal codes of these states that confine the legal justification of abortion to medical reasons alone. Studies on abortion in the context of contemporary Muslim societies must take into consideration the technological shift (in both communications and medical sciences), which has been accompanied by a spirit of liberalism that resulted from the Arab Spring. In the wake of the Arab Spring, many feminist voices (and women in general) are trying to influence the process of constitutional (re)writing in order to introduce, among other things, pro-choice articles that grant them legal jurisdiction over their own bodies.

[See also FAMILY LAW; FAMILY PLANNING; and SURROGATE MOTHERHOOD.]

Bibliography

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