Abortion (4/4)

Most contemporary scholars agreed on the permissibility of the abortion of a foetus, which medical tests have shown is physically deformed. The deformities of the foetus should be certain and proven by trustworthy physicians, and should be after exhausting all possible means of treating the problem.[1] They base their ijtihad on the principles of removal of hardship and harm, which are expressed in a number of qawa’id fiqhiyyah, such as “idha daqa al-amru ittasa’ ” (latitude should be afforded in the case of difficulty), “yukhtaru ahwanu al-sharrayn” (the lesser of evils is preferred) and “al-dararu yuzal” (harm must be eliminated), since the deformed child would most likely face hardship in his life, and so would his parents in taking care of him, and due to the burden which would be placed upon the society. However, aborting a deformed foetus, according to most scholars, becomes impermissible once the soul is blown into the foetus, no matter what the deformity, unless this condition will put the mother’s life at risk.[2]

The legal ruling of abortion of a foetus, which is a result of illegal sex, differs according to nature of the action, whether it was adultery or rape. This classification, however, did not exist in the traditional books of fiqh, as scholars then seemed not to have gone into details, on whether the pregnancy resulted from adultery or rape. They seem to consider it to come under the same ruling as abortion of a pregnancy resulting from a proper marriage.[3] Some seemed to allow abortion, during the first 120 days of pregnancy, without considering the nature of the action.[4]

In contrast, contemporary scholars have differentiated between the actions of illegal sex, whether it resulted from adultery or rape as follows. In case of adultery, abortion is totally impermissible at any time of pregnancy according to many of the contemporary scholars. According to them, a woman is not allowed to make the foetus to pay for her fault; as the Qur’an insists that: “no one laden with burdens can bear another’s burden”. [5]

Furthermore, abortion is essentially a rukhsah, which is to be invoked when there is an excuse. Adultery is a sin, and sins prevent, in most cases, the enjoyment of the rukhas. The qa’idah fiqhiyyah says in this regard: “alrukhasu la tunatu bil-ma’asi” (concessions cannot be connected to sins).

Moreover, abortion in many cases of adultery is intended to cover up this kind of illegal act, which can be a means to intishar al-fahishah (the spread of immorality) if it is to be authorized always. As such, allowing a woman who committed adultery to get rid of her pregnancy by abortion is like encouraging her to commit this sin again, while the restriction would most likely prevent her from it. The qa’idah says in this context: “al-aslu almu’amalatu bi-naqidi al-qasdi al-fasid” (the rule is that in the case where the intention is proven to be fraudulent the result is that the converse is to apply). In this regard, it is amongst the duties of the hakim (ruler) to prevent the spread of immorality by whatever means to achieve the maslahah of the whole community, and to take into consideration the rights of the society as a whole. The qa’idah says: “altasarrufu ‘ala al-ra’iyyati manutun bil-maslahah” (management of a citizen’s affairs is dependent upon public welfare). As such, forbidding abortion in cases of adultery can be a means to achieve this purpose.[6] This qa’idah, however, can work in another aspect. Omar Ghanim, a contemporary researcher said in this regard:

“In addition, the foetus in the case of zina has no guardian, because according to Shari’ah the title of father can only be given to the one who has a child from a woman in a proper marriage. ... The guardian of the foetus in such cases is the ruler – the one who is in charge of the Muslims’ affairs – for he is the guardian of those who have no guardian. The way in which the ruler disposes of people’s affairs is based on the interests of the people, and there is no interest to be served in destroying the soul of the foetus in order to preserve the mother’s interests, because that would involve encouraging her and others to persist in this evil action”.[7]

In rape cases, on the other hand, almost all contemporary scholars agreed that it is allowed for a raped woman to abort the foetus, in order to relieve distress and hardship. Accordingly, abortion is allowed for her, if she suffered psychological or nervous diseases resulting from this criminal act, or if she feared the effect of this act on her reputation or she thought that shame may be brought upon her family from a matter in which she is not guilty of any sin, or she feared that she may be subjected to harm such as being killed. Likewise, it is allowed for her to abort the foetus, if she thought the baby would suffer harm, such as being outcast. They built this view on some basic principles of Shari’ah, such as raf’ al-haraj (relief of hardship) and izalat al-darar (eliminating harm). Among the qawa’id fiqhiyyah, which were used in this context are: “al-dararu yuzalu” (harm must be eliminated) and “al-mashaqqatu tajlibu al-taysir” (hardship begets facility). However, scholars say that abortion in all of the mentioned cases and the like should be done during the first 120 days of pregnancy; otherwise it becomes forbidden if it occurs after the soul is breathed into the foetus, where it becomes a complete human being.[8]