Abortion (2/4)

Fawzy Shaban Elgariani

Abortion essentially is either for a good reason or not, and is either before ruh (soul) is blown into the foetus or after. These different situations are essential components in determining the legal status of abortion.

If abortion is not for a good reason, rather stems from a desire to keep the elegance of the mother’s body, or for birth control, it is either before ruh (soul) is blown into the foetus or after. For the former, the fuqaha’ adopted different positions. The majority of the Malikis and some scholars of other schools, such as al-Ghazali ibn Rajab, and ibn Taymiyyah, adopted a strict position against it from the first moment of conception. [1]Al-Ghazali considered it as jinayah (a crime), and said that the crime is more serious with the progression of pregnancy. [2]In contrast, the majority of scholars held the view that it is allowed for the mother to abort the foetus in the first forty days of pregnancy (at the stage of sperm), while it is not allowed after this stage. [3]They thought, based on some nusus, that a foetus is not yet formed into a human image, while in the sperm stage, and therefore aborting it does not amount to killing it. On the other hand, the formation of a foetus into a human image, according to them, starts after the sperm stage; thus, abortion is no longer permissible.[4] Some scholars adopted a middle position, and said that abortion before 120 days of pregnancy is makruh, if both spouses agree and a trusted physician has advised that such abortion will have no bad consequences on the mother. [5]Each of the views has been supported by a number of nusus from the Qur’an and / or the Sunnah, and / or other evidence. The presentation here will be confined only to the usage of al-qawa’id al-fiqhiyyah in the argumentations to support the different views where applicable.

As such, a number of qawa’id fiqhiyyah have been used to support the view of those who are totally against abortion. First, “al-umur bimaqasidiha”, referring to intention for determining the legal status of abortion, as intention is always deemed an essential component in this regard. As such, the intention to keep the elegance of the mother’s body is not a good reason for the mother to abort what is in her womb, since, according to them, life begins once the semen from a man fertilised an ovum from a woman, and went into the womb of the mother; thus, attacking the ejected sperm would prevent the formation of a human being. [6]Likewise, intention is also crucial in prohibiting abortion for birth control or for economic reasons, such as fear of poverty and inability to feed a child.[7] For birth control, it can be practiced using various methods of contraception before ejecting the sperm into the womb of the mother.[8] Abortion for economic reasons, on the other hand, is condemned in Islamic law in the same way and for the same reasons as infanticide.[9] The Qur’an says in this regard: “Kill not your children for fear of want: We shall provide sustenance for them as well as for you”. [10]Children, accordingly, is a general word that includes fetuses. [11] Second, “la yajuzu li-ahadin an yatasarrafa fi milki alghayri bila idhn” (No person may deal with the property of another without such person’s permission). Accordingly, a foetus is the creation of Allah; so no one, even the parents, has the right to make a decision about its life, unless there is a good reason to do so.[12] As keeping the elegance of the mother’s body is not a good reason in this regard, abortion is considered as tasarruf fi milk al-ghayr bi-dun idhnihi I). Third, “al-aslu fil-anfusi wal-atrafi al-hurmah” (the norm with regard to souls and limbs is that of impermissibility). This qa’idah is regarded as an exemption of a general qa’idah, which says: “ala-aslu fil-ashya’i al-ibahah” (the norm with regard to all things is that of permissibility). Accordingly, souls and limbs are essentially ma’sumah (protected) by the law unless a person is convicted of a crime, which follows a prescribed penalty. Since, a foetus is considered, according to this group of scholars, as a human being from conception, it shall not be deprived of its life intentionally[13].

Abortion is totally impermissible and tantamount to murder, if it was after the entry of the soul into the foetus, which is after 120 days of conception. This legal ruling is a consensus of all the Muslim scholars in the past and present time. It was based on the above mentioned hadith and other nusus, which made it clear that ruh is blown into the foetus when it is 120 days old in its mother’s womb; the point at which a foetus becomes a complete living human being. [14]In this regard, jurists said that the payment of full diyah (a hundred camels or their equivalent) becomes incumbent upon any person, who is responsible for the abortion, be it the mother herself or the father, if the baby is aborted alive and then died, while a ghurrah (five camels or their equivalent) if it is aborted dead[15].

However, there are cases when abortion is allowed before or after 120 days. This is the case when medical checks done by specialist, trusted and committed doctors show that the continuation of the pregnancy would necessarily result in the death of the mother, or they show that the foetus is already dead. Such cases are seen to be unanimously agreed upon, although some scholars in the past who considered that abortion is still forbidden even when doctors say it might threaten the life of the mother; according to them, such a determination is mawhumah (doubtful), and that killing a human being is not allowed based on doubt. [16]They seem to apply the qa’idah fiqhiyyah which says: “al-yaqinu la yazulu bil-shakk” (certainty is not overruled by doubt). This view, however, no longer seems to have any supporters with the introduction of modern medical technologies in all areas, including the area of medical diagnosis.

Continued