Abortion (3/4)

Jurists have used some qawa’id fiqhiyyah to support that abortion is permissible in the case it threatens the life of the mother. First, the intention of abortion in such cases is to save the mother’s life, and since “al umuru bi-maqasidiha”, such intention is one of the bases of the permissibility of abortion in these cases. Second, abortion can be seen as a means to raf‘al-darar (eliminating harm), since it prevents the mother of bad consequences and saves her life. However, eliminating harm includes preventing its occurrence, since protection is better than cure; and, in case it occurs, eliminating it by whatever means. [1]Abortion can work in both dimensions according to the situation of the mother. In case that the continuation of the pregnancy, based on reliable medical checks, would cause the mother to contract a permanent and dangerous illness in future, which significantly threatens her life, and where abortion is determined to be the only solution, the qa’idah fiqhiyyah says in this regard: “al-dararu yudfa’u qadra al-imkan” (harm must be prevented – to accrue - as far as possible). In case that harm (dangerous illness) has already occurred because of pregnancy and that abortion would eliminate this kind of harm, it is then allowed based on the qa’idah which says: “al-darar yuzal” (harm is removed). Third, abortion is seen as committing the lesser of two evils, when it is diagnosed that pregnancy would lead to either the mother or the foetus to survive, but not both of them. The mother can have other children, whereas the child cannot have another mother. The qa’idah says in this context: “yukhtaru ahwanu al-sharrayn”.[2]

There is no direct comment in the Shari’ah on AIDS, nor there are specific guidelines on this disease. This is understood since AIDS has been recently discovered. Some of AIDS related issues have ethical and sociopolitical implications and are beyond the strictly medical context.

Thus, public education and cultural attitudes are very important in addressing and overcoming the disease. Islamic law, in this regard, have provided some solutions within the Muslim world and Muslim communities in non-Muslim countries. Muslim community leaders, religious scholars and teachers are vital educators in combating the spread of HIV/AIDS. In this context, fatwas were used in the AIDS struggle. For example, two progressive fatwas were issued in 2007 at the International Consultation on Islam and HIV and Aids, organised by the charity, Islamic Relief Worldwide (IRW), in Johannesburg, South Africa. One fatwa approved the use of funds from the zakat (mandatory alms giving) for HIV-positive people, whether Muslims or non-Muslim, regardless of how they contracted the virus, as long as they are poor. The other fatwa approved the use of condoms by married discordant couples, where one is HIV-positive and the other is not, to avoid infection[3].

The attitude of contemporary Muslim scholars towards AIDS varied from one another. For example, Al-Azhar University condemned AIDS as a disease and thought that it is only common among homosexuals. Malik Badri, demonstrated that AIDS is a sign of divine justice towards homosexuals and others who disobeyed God’s limits; and he further noted that the only remedy for everyone is to adhere to Islamic values.

Mohammad Hashim Kamali reflected on the general Shari’ah principles to develop a Muslim perspective towards this pandemic. He emphasised, among others, the concern for the protection of basic human values, and the mustering of communal resources to prevent individuals from being stigmatised.[4] On the other hand, some contemporary Muslim scholars have discussed issues relate to AIDS legally and have given legal rulings in various matters. For example, Shaykh Muhammad al-Munajjid, a well-known Saudi scholar, has given fatwas on issues such as: aborting or caring for a child whose mother has AIDS; marriage of persons who have been diagnosed with HIV[5].

In this context, many contemporary researchers held the view that a HIV positive mother is not allowed to abort her child. According to them, the virus is not usually transmitted to the foetus until the later stage of pregnancy, i.e. after the soul has been blown into the foetus and around the time of labour and delivery. Therefore, this situation is under the abovementioned general legal ruling, which indicates that abortion is impermissible when a foetus is 120 days or more. The abnormality of being HIV positive does not render abortion permissible, especially when considering the contemporary rapidly changing therapeutic environment, which has allowed many HIV positive women to have healthy pregnancies and healthy babies.[6] In this regard, they cited a qa’idah fiqhiyyah, which says: “al-dararu al-ashaddu yuzalu bil-darar ial-akhaf” (Severe injury is removed by lesser injury). Accordingly, abortion is a severe injury, while having a child whose mother is HIV positive is the lesser injury, since the risk for the child to have the virus might become slight due to, as stated above, the new therapeutic environment and the introduction of modern medical technologies[7].

(Continued)