Abortion (1/4)

The right to life is guaranteed and protected by law perhaps in all legal systems, be they religious, customary, secular, etc. Article 2 of the European Convention on Human Rights, for example, declares that:

“Everyone’s right to life shall be protected by law. None shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law”. [1]

Likewise, the foremost aim of the Shari’ah is protecting human life after protection of religion in the context of al-daruriyyat al-khams (the five necessities). In the Qur’an, it is clearly stated: “And do not kill the soul (i.e. person) – which Allah has forbidden – except for a just cause”. [2]

The question is: when does the life of a human begin biologically?

Determining the start of personhood is critical, as it would determine the legal status of many acts, such as abortion and homicide. Apparently, the question about the exact timing of the start of personhood is a controversial issue. Many thought life begins at conception, others say it is at cell division, whereas a third group think it is during childbirth, etc. [3]

In Islam, the foetus is believed to become a living soul after four months of gestation. This is based on a hadith reported by Al-Bukhari and others, which says:

“(The matter of the creation of) a human being is put together in the womb of the mother in forty days, and then he becomes a clot of thick blood for a similar period, and then a piece of flesh for a similar period. Then Allah sends an angel who is ordered to write four things. He is ordered to write down his (i.e. the new creature's) deeds, his livelihood, his (date of) death, and whether he will be blessed or wretched (in religion). Then the soul is breathed into him”. [4]

Nevertheless, fuqaha’ say that a foetus has ahliyyat wujub (legal personality) from conception and can, subsequently, enjoy certain rights; namely: nasab (family name), mirath (inheritance), wasiyyah (bequeathed will) and waqf (endowments), even though it applies when it is delivered alive. [5] This legal personality is described as naqisah (restricted) due to the fact that the foetus is subject to both possibilities of life and death. [6] Moreover, a foetus, based on presumed living status, can enjoy the right of compensation in case of a crime committed against its mother, which affected it. [7]

Thus, according to the fuqaha’, a foetus must be protected from whatever might harm it. This can be manifested in a number of cases as examples. As such, the mother is allowed to break the fast if fasting will badly affect the baby to be. Moreover, in case of al-talaq al-ba’in (irrevocable divorce), a husband must provide nafaqh (maintenance) to his pregnant ex-wife until she delivers the baby, which is not the case if she is not pregnant. Furthermore, in case a pregnant woman is convicted of a crime, and sentenced to execution provided by law, the implementation of the sentence must be delayed not only until birth, but until weaning.[8] This is true even when the pregnancy is a result of illegal sex.[9]

Having said this, is abortion, which is an interruption of pregnancy, considered a violation of the right to life; thus it is not permissible? It is an old, but living topic for debate and disputation, as many new conditions relate to foetal life have been examined in order to determine the appropriate legal rulings. As such, books of fiqh have dealt with abortion on a considerably wide scale. It is usually discussed in different contexts, such as in the books of fasting, ‘idah (waiting period), marriage, diyah (blood money), etc. For example, in instructing mothers not to fast if, as mentioned above, fasting would badly affected the foetus. Indeed, fuqaha’ say that in case it is aborted because of fasting, the mother is obliged to pay a diyah (blood money), and she is not entitled to have a share in the foetus’s inheritance, if she previously knew that fasting would lead to abortion.[10]

However, the legal status of abortion varies according to the nature of the foetus, the process of foetal development, and the point at which the foetus is considered a human being.[11] The contemporary therapeutic environment and the introduction of modern medical technologies have a remarkable impact in further elucidating the different situations of the mother and the foetus, and, subsequently, in determining the proper legal ruling for every situation. The following is a detailed presentation on the matter, which will essentially include the role of al-qawa’id al-fiqhiyyah in this regard.

However, the presentation here will only be on the deliberate termination of a pregnancy before normal childbirth; i.e. the type of abortion caused intentionally by consuming certain drugs or surgery, regardless of the motivations. Thus, unintentional abortion (such as that resulting from an error by the mother or doctor, or out of a criminal act against the mother or the foetus) will not be dealt with.

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