Introduction
Our bodies are an amanah (trust) from Allah who is the Creator and Fashioner. We cannot simply do what we want with this amanah. We need to abide by the rules and regulations of the Creator in utilising this amanah.
Let's have a quick look at the 5 stages of man's life in this world:
Stage 1 - Creation of soul till the soul is blowed into the body at 120 days.
Stage 2 - The soul is breathed into the body at 120 days and remains there till death.
Stage 3 - The Sleeping state - Sleep is the sister of death - The soul leaves the body but some connection is still maintained; but we don’t know what it is.
Stage 4 - The soul after death is in the Barzakh till the blowing of the trumpet.
Stage 5 - The station of the soul after the second blowing of the trumpet for Judgement till it is united with a body in the Heaven/Hell and this is the final stage.
Allah described the chronological phases of foetal growth and development 14 centuries ago, long before any ultrasound machine existed:
وَلَقَدْ خَلَقْنَا الْإِنسَانَ مِن سُلَالَةٍ مِّن طِينٍ
ثُمَّ جَعَلْنَاهُ نُطْفَةً فِي قَرَارٍ مَّكِينٍ
ثُمَّ خَلَقْنَا النُّطْفَةَ عَلَقَةً فَخَلَقْنَا الْعَلَقَةَ مُضْغَةً فَخَلَقْنَا الْمُضْغَةَ عِظَامًا فَكَسَوْنَا الْعِظَامَ لَحْمًا ثُمَّ أَنشَأْنَاهُ خَلْقًا آخَرَ فَتَبَارَكَ اللَّهُ أَحْسَنُ الْخَالِقِينَ
“Verily We created man from a product of wet earth; then placed him as a drop (of seed) in a safe lodging; then We fashioned the drop into a clot, then We fashioned the clot into a little lump, then We fashioned the little lump into bones, then clothed the bones with flesh, and then produced it another creation. So blessed be Allah, the Best of Creators!” [Surah al-Mu’minun, 12-14]
يَٓأَيُّهَا ٱلنَّاسُ إِن كُنتُمْ فِى رَيْبٍۢ مِّنَ ٱلْبَعْثِ فَإِنَّا خَلَقْنَكُم مِّن تُرَابٍۢ ثُمَّ مِن نُّطْفَةٍۢ ثُمَّ مِنْ عَلَقَةٍۢ ثُمَّ مِن مُّضْغَةٍۢ مُّخَلَّقَةٍۢ وَغَيْرِ مُخَلَّقَةٍۢ لِّنُبَيِّنَ لَكُمْ ۚ وَنُقِرُّ فِى ٱلْأَرْحَامِ مَا نَشَآءُ إِلَىٰٓ أَجَلٍۢ مُّسَمًّۭى ثُمَّ نُخْرِجُكُمْ طِفْلًۭا ثُمَّ لِتَبْلُغُوٓا۟ أَشُدَّكُمْ ۖ وَمِنكُم مَّن يُتَوَفَّىٰ وَمِنكُم مَّن يُرَدُّ إِلَىٰٓ أَرْذَلِ ٱلْعُمُرِ لِكَيْلَا يَعْلَمَ مِنۢ بَعْدِ عِلْمٍۢ شَيْـًۭٔا ۚ وَتَرَى ٱلْأَرْضَ هَامِدَةًۭ فَإِذَآ أَنزَلْنَا عَلَيْهَا ٱلْمَآءَ ٱهْتَزَّتْ وَرَبَتْ وَأَنۢبَتَتْ مِن كُلِّ زَوْجٍۭ بَهِيجٍۢ
O People, if you should be in doubt about the Resurrection, then [consider that] indeed, We created you from dust, then from a sperm-drop, then from a clinging clot, and then from a lump of flesh, formed and unformed - that We may show you. And We settle in the wombs whom We will for a specified term, then We bring you out as a child, and then [We develop you] that you may reach your [time of] maturity. And among you is he who is taken in [early] death, and among you is he who is returned to the most decrepit [old] age so that he knows, after [once having] knowledge, nothing. And you see the earth barren, but when We send down upon it rain, it quivers and swells and grows (something) of every beautiful kind. [Surah al-Hajj, 5]
هُوَ الَّذِي خَلَقَكُم مِّن تُرَابٍ ثُمَّ مِن نُّطْفَةٍ ثُمَّ مِنْ عَلَقَةٍ ثُمَّ يُخْرِجُكُمْ طِفْلًا ثُمَّ لِتَبْلُغُوا أَشُدَّكُمْ ثُمَّ لِتَكُونُوا شُيُوخًا وَمِنكُم مَّن يُتَوَفَّى مِن قَبْلُ وَلِتَبْلُغُوا أَجَلًا مُّسَمًّى وَلَعَلَّكُمْ تَعْقِلُونَ
“It is He Who has created you from dust then from a sperm-drop, then from a leech-like clot; then does he get you out (into the light) as a child: then lets you (grow and) reach your age of full strength; then lets you become old,- though of you there are some who die before;- and lets you reach a term appointed; in order that you may learn wisdom.” [Surah Ghafir, 67]
The developing stages of pregnancy or the creation of a human in the womb of its mother was highlighted in detail in the Sunnah. On the authority of Abdullah ibn Mas'ud رضي الله عنه, who said,The Messenger of Allah (ﷺ), and he is the truthful, the believed, narrated to us, “Verily the creation of each one of you is brought together in his mother’s womb for forty days in the form of a nutfah (a drop), then he becomes an alaqah (clot of blood) for a like period, then a mudghah (morsel of flesh) for a like period, then there is sent to him the angel who blows his soul into him and who is commanded with four matters: to write down his rizq (sustenance), his life span, his actions, and whether he will be happy or unhappy (i.e., whether or not he will enter Paradise). By the One, other than Whom there is no deity, verily one of you performs the actions of the people of Paradise until there is but an arms length between him and it, and that which has been written overtakes him, and so he acts with the actions of the people of the Hellfire and thus enters it; and verily one of you performs the actions of the people of the Hellfire, until there is but an arms length between him and it, and that which has been written overtakes him and so he acts with the actions of the people of Paradise and thus he enters it.” [Bukhari and Muslim]
Apart from 'Abdullah bin Mas'ud, this hadith was also narrated by many other sahaba as well. This hadith is among many of the miracles in the life of the Prophet. It gives unwavering credibility to the revelation of the words of Allah. This hadith sums up the life of man from nothingness, showing the early relationship between the physical and the spiritual components of human existence, the encounter between a piece of flesh (mudgha) upon which the spirit (ruh) is breathed.
Scholars have summarized the stages of fetal development as the following:
1. Three stages of forty days each, beginning with the ‘alaqah, then the nutfah, and then the mudghah, thereby completing one hundred and twenty days before the soul is blown into the fetus. This is the position of the majority and the 4 madhaib. Abdullah Ibn Mas’ud رضي الله عنه narrated, the Prophet ﷺ said, “For every one of you, the components of his creation are gathered together in the mother’s womb for a period of forty days. Then he will remain for two more periods of the same length, after which the angel is sent and insufflates the spirit into him.”
2. One stage of forty days, during which the zygote develops into the stages of ‘alaqah, nutfah, and mudghah, followed by ensoulment at the completion of forty days; the fetus will then grow and be considered a living being. Abdullah Ibn Mas’ud narrated, the Prophet said, “If a drop of semen spent in the womb forty-two nights, Allah sends an angel to it who depicts it and creates its ears, eyes, skin, flesh and bones.” Allah says,
يَخْلُقُكُمْ فِى بُطُونِ أُمَّهَتِكُمْ خَلْقًۭا مِّنۢ بَعْدِ خَلْقٍۢ فِى ظُلُمَتٍۢ ثَلَثٍۢ ۚ ذَلِكُمُ ٱللَّهُ رَبُّكُمْ لَهُ ٱلْمُلْكُ ۖ لَآ إِلَهَ إِلَّا هُوَ ۖ فَأَنَّىٰ تُصْرَفُونَ
He creates you in the wombs of your mothers, creation after creation, within three darknesses. That is Allah , your Lord; to Him belongs dominion. There is no deity except Him, so how are you averted [Surah az-Zumar, 6]
Three veils of darkness refers to:
- Darkness of the womb
- Darkness of the uterus
- Darkness of the placenta
The fetus is within these three veils of darkness.
Imam Ibn al-Qayyim رحمه الله said: If it is asked: Before the soul is breathed into it, does the foetus move and feel things or not? The answer is that it has movements of growth and nourishment like plants, and these movements of growth and nourishment are not voluntary. Then when the soul is breathed into it, its senses and voluntary movements are joined to its movements of growth and nourishment. [at-Tibyaan fi Aqsam al-Qur’an, p. 218]
We learn from the benefits of the narration of Abdullah Ibn Mas'ud that anything that the Messenger of Allah ﷺ came with, it needs to be accepted and submitted to. It cannot be rejected or questioned in any manner. Having doubts is a deficiency in a person's iman. This doesn't mean that we don't ask or learn. There is a proper method to do that. We ask if there is a wisdom behind something that we are asked to do or did Allah give us a reasoning for it. If yes, then we are good. If not, even then we are good and we submit as not all knowledge and wisdom will make sense to our limited intellects and Allah is All Knowledgeable, All Wise, and Most Just. Rejecting our negatively doubting takes one out of the fold of Islam.
It is very important to highlight this point because at times we get arrogant and think that because we have progressed so much, we know or can know anything that we want. There can be absolutely no contradiction between the Quran and authentic Sunnah. Why? Because the source of the revelation is One. A person might find an apparent contradiction and it needs the right knowledge to clarify that. With regards to clashing with science or our intellect - There is a shortcoming in our understanding of the matter. There is a flaw in our logic or even a flaw as what we think to be the established truth based on our intellect. We see these things change from time to time as we learn and discover more. Anyone interested to learn more about the relationship between our intellect and the revelation can refer to the extensive work of Sheikhul Islam Ibn Taymiyyah رحمه الله titled, ‘Dar at-Ta'arud al-'Aql wan-Naql’. In recent time Sheikh Muhammad Ameen al-Shinqiti رحمه الله compiled a book tackling such matters as well that seem to be contradictory or problematic to the intellect to accept.
Imam Ibn Khuzaymah رحمه الله claimed, ""It is not to my knowledge that any prophetic traditions are contradictory. Should anyone find such instances, bring them to me, and I’ll have them reconciled."
Abortion
After having this sound background on our very origin, we can move forward to understand further discussions on abortion.
Abortion or al-ijhad (الإجهاض) lexically means foetus which is already collapsed with complete features and the soul is blown, but not yet alive. And the word al-ijhad also means the same with some other words, which are al-izlaq (slip), al-isqat (fall), al-imlas (slip) and al-islab (fall). (Refer: Al-Qamus al-Fiqhi, pg 174) According to the field of obstetrics and gynaecology, abortion means dumping fertilized produce or conceptus before the normal period of pregnancy ends. The World Health Organization (WHO) defines abortion as “the expulsion or extraction of a foetus or embryo weighing 500 grams or less from its mother.”
The first country in the world to legalize abortion on demand was communist Russia, which passed a law on 18 November 1920, “permitting abortion to be performed freely without charge in Soviet hospitals.”This resulted in the decline of the family and the population. The ruler of the time, Stalin saw the dangers clearly and hence passed a new law in 1935, which restricted abortion to medically indicated reasons. But this would soon change. By 1980, over 70% of the world's population lived in countries where abortion was allowed on demand or with minor restrictions.
Islam, Christianity and Judaism all view procreation as an integral part of marriage and the growth of society. But we see throughout history and even today that abortions, murder of the unborn child, or female infanticide is quite prevalent.
Allah says,
وَإِذَا ٱلْمَوْءُۥدَةُ سُئِلَتْ بِأَىِّ ذَنۢبٍۢ قُتِلَتْ
“And when the girl (who was) buried alive is asked for what sin she was killed.” [Surah at-Takweer, 8-9]
Prophet Muhammad ﷺ abolished the practice of female infanticide that was something very common in society. The Prophet ﷺ said, “The very first matter to be decided between people on the Day of Judgment will be the cases of bloodshed.” [Bukhari]
Use of Contraceptions
It is permissible to use contraceptions to delay pregnancy for a bit provided that the contraceptions being used do not harm the ability to reproduce or completely cut off the ability to produce like getting a vasectomy etc. The wife needs the permission of the husband if she is using contraceptions and likewise it is good for the husband to inform his wife on his use of contraceptions. During the time of the Prophet ﷺ, the sahaba used to engage in the practice of ‘azl (coitus interruptus), or withdrawing before ejaculation. This has been reported from over 10 companions. Jabir b. Abdullah رضي الله عنه says, “We used to perform ‘azl during the lifetime of Allah’s Messenger ﷺ, and if it were something punishable, the Qur'an would have prohibited us from it.” [Bukhari]
Abortion from 0-40-80 Days
Abortion is prohibited by default.
Allah says,
وَلَا تَقْتُلُوا۟ ٱلنَّفْسَ ٱلَّتِى حَرَّمَ ٱللَّهُ إِلَّا بِٱلْحَقِّ
And do not kill the soul which Allah has forbidden, except by right. [Surah al-Isra, 33]
This period includes the first two stages of pregnancy. The first is the nutfah (drop) stage which results from the mixing of the “two waters” which is the first forty days after the embryo attaches itself in the womb. The second is the ‘alaqah (clot) stage where it turns into solid blood during the second forty days), which add up to a total of eighty days.
The hadith wording read - “Verily the creation of each one of you is brought together in his mother's womb”
The term used here is ‘Yujma’u’ (brought together) because the child is formed by the coming together of two fluids; one from the father and one from the mother. Allah says:
إِنَّا خَلَقْنَا ٱلْإِنسَنَ مِن نُّطْفَةٍ أَمْشَاجٍۢ نَّبْتَلِيهِ فَجَعَلْنَهُ سَمِيعًۢا بَصِيرًا
Indeed, We created man from a sperm-drop mixture that We may try him; and We made him hearing and seeing. [Surah al-Insan, 2]
The child is first brought together in the womb of the mother in the form of a drop or Nutfah. The root of this word is: نَطَفَ يَنطِفُ – natafa yantifu: “To flow gently, trickle, ooze, drop.” Nutfah linguistically is a pure liquid and refers to a drop of semen or the zygote. This is the first stage and lasts a period of 40 days.
This word of Nutfah seems to be an addition from Ibn Mas’ud. With the addition of this word, it would mean that there is a period of 40+40+40 and that the soul is breathed into the body at 120 days. Without the word, it would mean that the soul is breathed into the body at 40 days and all the developments happen within those 40 days itself.
Our Sheikh Ibrahim Nuhu حفظه الله said, "Up until 40 days after conception, abortion is allowed for legitimate reasons like rape, or major medical issues confirmed by a doctor etc. After rape, everything can be immediately removed as everything is still in the early stages. Aborting due to the fear of poverty and maintaining the children is not permissible." Allah says,
وَلَا تَقْتُلُوا۟ ٱلنَّفْسَ ٱلَّتِى حَرَّمَ ٱللَّهُ إِلَّا بِٱلْحَقِّ ۚ ذَٰلِكُمْ وَصَّىٰكُم بِهِۦ لَعَلَّكُمْ تَعْقِلُونَ
And do not kill the soul which Allah has forbidden (to be killed) except by (legal) right. This has He instructed you that you may use reason." [Surah az-Zumar, 151]
Imam al-Mardawi رحمه الله said in al-Insaaf (1/386): It is permissible to take medicine to abort a nutfah. This was stated in al-Wajeez, and was mentioned in al-Furoo‘.
Few scholars like the Malikis are of the view that it is not permissible to abort the pregnancy at all. This view was shared by select scholars from the other 3 schools as well. This can be seen in the statement of Imam Ibn Juzzay al-Maliki رحمه الله who said, “Once the womb contracts the semen, it becomes impermissible to interfere with it. Worse than that is when it (the foetus) has developed [external] features, and worse than that is when the soul has been blown into it. In that (last) case, this would be killing a soul—by agreement.” [al-Qawanin al-Fiqhiyyah]
Qadhi Abu Bakr Ibn al-‘Arabi رحمه الله said, “The child has three stages. (First), a stage before it comes into existence, during which it ceases (to be) via ‘azl – this is permissible. (Second), a stage after the womb has taken hold of the semen. At this point, it is not permissible for anyone to interfere with it by stopping it from growing, as practised by the riffraff amongst the traders. When the menstrual period of their slaves stops, they make them drink medication that causes (their wombs) to slacken so the semen pours out with it and the pregnancy is terminated. The third is after its formation before the soul is breathed into it. This is more severe than the first two in prohibition, based on the ahadith narrated about it…As for when the soul is breathed into it, it is murder without disagreement.” [Sharh al-Muwatta]
“Then he becomes a clot of blood for a like period”
This is the Alaqah period. The semen after the first 40 days changes to blood or Alaqah (clotted blood or leech like clot) over a period of forty days bringing the second stage of development to 80 days. As the fertilized egg is implanted onto the uterus wall and it clings to it, that is why the word Alaqah is used to describe it.
Hudhaifa b. Usaid رضي الله عنه reported directly from Allah's Messenger (ﷺ) that he said: “When the drop of (semen) remains in the womb for forty or forty five nights, the angel comes and says: My Lord, will he be good or evil? And both these things would be written. Then the angel says: My Lord, would he be male or female? And both these things are written. And his deeds and actions, his death, his livelihood; these are also recorded. Then his document of destiny is rolled and there is no addition to nor subtraction from it.” [Muslim]
Some scholars use this hadith to mention that the soul is blown in at 40 days but this hadith doesn’t mention that explicitly as it is done in the ahadith of 120 days.
Abortion Prior to 120 Days
“then a morsel of flesh for a like period”
This is the third stage of pregnancy or the mudghah (chewed piece of flesh) stage. The clotted blood (Aalaqah) then becomes Mudgah over a period of 40 days. Mudgah refers to a little lump of flesh. This is where the initial signs of the limbs and features beginning to appear, which lasts for forty days from the eighty-first to the one hundred and twentieth day.
After 120 days are complete, an angel is sent to the fetus to blow in the soul. The angel records its provisions, lifespan, deeds, and whether it will be saved or doomed. Islamically, the soul is what determines if a person is alive or not.
Narrated Anas bin Malik رضي الله عنه: The Prophet (ﷺ) said, "At every womb Allah appoints an angel who says, 'O Lord! A drop of semen, O Lord! A clot. O Lord! A little lump of flesh." Then if Allah wishes (to complete) its creation, the angel asks, (O Lord!) Will it be a male or female, a wretched or a blessed, and how much will his provision be? And what will his age be?' So all that is written while the child is still in the mother's womb." [Bukhari]
Allah says,
وَيَسْـَٔلُونَكَ عَنِ ٱلرُّوحِ ۖ قُلِ ٱلرُّوحُ مِنْ أَمْرِ رَبِّى وَمَآ أُوتِيتُم مِّنَ ٱلْعِلْمِ إِلَّا قَلِيلًۭا
And they ask you, (O Muhammad), about the soul. Say, "The soul is of the affair of my Lord. And mankind have not been given of knowledge except a little." [Surah al-Isra, 85]
Imam al-Nawawi رحمه الله defines the soul as, “a delicate substance interwoven in the human body similar to sap interwoven in a green branch.” As mentioned previously, the true nature or reality of the soul is unknown and is from the matters of the Unseen. The soul itself is a miraculous creation if we ponder. We could take a functioning heart, a functioning body, a functioning brain and put them all together - but we still would not be able to create life as it is missing the soul. The soul is what we consider as life.
The soul exits the body at 2 times:
- During sleep. This is known as minor death.
- At death. This is known as major death.
Imam Ibn Rajab رحمه الله said: “The taking of the soul from the body does not necessarily mean that it has departed from the body altogether; rather it may be taken whilst some kind of connection is still present, as in the case of one who is sleeping.” [Fath al-Baari]
Allah says,
ٱللَّهُ يَتَوَفَّى ٱلْأَنفُسَ حِينَ مَوْتِهَا وَٱلَّتِى لَمْ تَمُتْ فِى مَنَامِهَا ۖ فَيُمْسِكُ ٱلَّتِى قَضَىٰ عَلَيْهَا ٱلْمَوْتَ وَيُرْسِلُ ٱلْأُخْرَىٰٓ إِلَىٰٓ أَجَلٍۢ مُّسَمًّى ۚ إِنَّ فِى ذَلِكَ لَءَايَتٍۢ لِّقَوْمٍۢ يَتَفَكَّرُونَ
Allah takes the souls at the time of their death, and those that do not die (He takes) during their sleep. Then He keeps those for which He has decreed death and releases the others for a specified term. Indeed in that are signs for a people who give thought. [Surah az-Zumar, 42]
Look at the miracle we experience around us on a daily basis. Allah has taken two liquids that are useless on their own and made them into flesh and bones. Not just that, but this is not fashioned to become an independent entity and is blessed with intellect as well. We should reflect on this development. In order to be perfect, Allah created us in stages, so in manners and behaviour, we need to also take it in stages and not expect ourselves or others to be very well-mannered overnight. Likewise with the revelation of the Quran over 23 years of the Prophet’s life.
Our Sheikh Ibrahim Nuhu حفظه الله said, "Abortion can become permissible nearing to 120 days after conception only if certain conditions are met.
1. There has to be a valid medical need such that the pregnancy increases the danger to the mother's life such that she might lose her life or aql. She needs to make sure from a trusted doctor that all that has been mentioned are not just mere assumptions on her behalf of what might happen and that there is an actual potential danger to her if she continues with the pregnancy. It is best to have a Muslim doctor to assess so that they know the gravity of the situation. This condition includes pregnancy due to rape or extreme foetal deformity incompatible with life.
2. Both husband and wife need to agree to abort. The wife cannot make this decision on her own.
3. They need to be very careful that they are correct in their calculations that 120 days have not crossed. If it has crossed the 120 days mark, then no matter what the doctors say, the child cannot be aborted.
If all the above points are met, only then she can abort."
Abortion After 120 Days
Abortion after 120 days from the day of pregnancy is completely forbidden with a consensus of scholars. Our Sheikh Ibrahim Nuhu حفظه الله said, "After 120 days, now this is a human being with rights in Islam. No one is allowed to take the life of another to benefit theirs. In the case where the soul hasn't been given to the child yet, then there is room for abortion to aid the mother. Allah has never sent down a disease except by sending a cure for it. There are cases where it is said that if an abortion is not done the mother will be lost. We tell them that this is Allah's interference and you cannot take one life to save another. Even in the case of a rape, the child cannot be aborted at this stage as it is now a human being with its own rights.
A person is allowed to do anything they can to survive, except killing another person. Everyone's blood is equal in importance in the eyes of Allah. Some narrations say that the blood of an innocent is greater than all that is in the heavens and the earth. Other narrations say that it is greater than the Kabah itself."
A famous slogan floats the streets today. ''My Body-My Choice'. Is it though really? Firstly, your body is an amanah from Allah, its Creator. You have to follow what He has legislated with regards to it. Secondly, coming to the baby. By following the same logic of the people who quote such statements, it is the body of another human being as well. Just because it is in your body doesn't give you the right to kill it.
Imam Ibn Taymiyyah رحمه الله states: “Aborting a foetus has been declared unlawful (haram) with the consensus of all the Muslim scholars. It is similar to burying an infant alive as referred to by Allah Almighty in the verse of the Qur’an: “And when the female infant, buried alive, will be asked as to what crime she was killed for”. (Surah al-Takwir, 8)” [Fatawa Ibn Taymiyyah, 4/217]
Imam Ibn Abidin al-Hanafi رحمه الله states: “If a woman intends to abort her pregnancy, then the Fuqaha have said: If the period of the soul being blown into the foetus has elapsed, it will be impermissible.” [Radd al-Muhtar, 5/276]
What if there is a valid need to do so? Scholars differ into 2 groups here:
- It is completely haram and impermissible to abort the child at this stage. Premature deliveries and cesarean section are allowed in the 7th month or so. By agreement of all scholars, it is forbidden to abort the foetus after 120 days into pregnancy. It is not permissible to commit a harmful act in certainty, in order to ward off a harm that is speculative.If you are in a state of necessity then you are allowed to do everything to save your life except for murder. Therefore abortion is not allowed as the child is a human who has a right like any other human and it is not permissible to take the life of the child.
- It is not permissible to abort the pregnancy unless a group of trustworthy medical specialists declare that keeping the foetus in his mother’s womb will cause her death, and that should only be done after all means of keeping the foetus alive have been exhausted. A concession is made allowing abortion in this case so as to ward off the greater of two evils and to serve the greater of two interests. The life of the mother is known by certainty and the life of the foetus is speculative and that which is certain takes precedence. In other words, a potential life (that of the infant) should not threaten a stable life (that of the mother).“If one is overtaken by two evils, one should choose the lesser of the two.”
إذا تعارضت مفسدتان رُوعي أعظمُهما ضررًا بارتكاب أخفهما
“If there are two types of harm, the bigger harm is taken into account by committing the lesser harm”
Jurists also support this from another angle; the mother is the origin of the infant, so even if they have equal possibility of surviving, as long as the foetus is part of her and dependent on her, you don’t cut the root to save the branch. When forced to choose, the branch should be sacrificed to save the root. We see a very interesting contrast in Christianity where the Catholic Church preferred the life of the foetus to that of the mother on the basis that the mother has already been baptized and is guaranteed salvation while the child has not yet been provided with such an opportunity.
This is what we see In Malaysia. Abortion is legal within very strict and certain parameters – namely, in cases where the mother’s life is at risk, and if the pregnancy is injurious to the mental and physical health of the mother. Both cases require a qualified doctor’s testimony.
Sheikh Saleh al-Munajjad writes: “If it is proven in a definitive fashion, beyond any doubt, by a trustworthy medical committee, that the foetus is deformed, and that this deformity cannot be treated by the specialists, then in my view it is permissible to abort it, in view of the difficulties it would face in life and the hardship this would present to the parents, and the burdens and responsibilities of care it would place on the society.
These considerations and others prompted the Islamic Fiqh Committee of the Muslim World League in its 12th conference held in Makkah on 15 Rajab 1410 AH (10/2/1990 CE), to issue the statement that “it is permissible to abort a foetus which is deformed in the manner mentioned above, with the consent of the parents and within the first 120 days from the beginning of the pregnancy.”
The decision of the committee was in accordance with the fatwa of the Standing Committee for Academic Research and Issuing Fatwas in the Kingdom of Saudi Arabia, no. 2484, issued on 16/7/1399 AH.”
In the case of multiple foetuses (twins, triplets, quadruplets etc), abortion of one more of the foetuses may become permissible if necessary to ensure the health and safety of the mother or other foetuses.
If it is proven that the foetus has died in the mother’s womb, from the reports of trustworthy doctors, there is nothing wrong with aborting it, and there is no sin on the mother for that. If the foetus is aborted after 120 days into pregnancy, or before 120 days but it had human-like features, then four things need to be done. These are:
- It must be washed
- It must be prayed upon (Janazah prayer)
- It must be buried
- It must be given a name
Blood Money (Diyah) For Abortion
If a pregnant woman aborts her foetus by taking medicine and the like after four months of pregnancy, then the diyah must be paid according to scholarly consensus, and the kafaarah (expiation) must be offered according to some of the scholars. Our Sheikh Ibrahim Nuhu حفظه الله said, "The diyah has to be paid by the woman if miscarriage happens because of any side-effects of medications that she is taking. If she has a miscarriage out of fear of government officials questioning her for example, then it is upon the government to pay the diyah. These examples are to show the importance of life and to show that there is no room for adoption simply."
Once Umar b al-Khattab رضي الله عنه summoned. a woman for questioning as people were seen visiting her house while her husband was away. Out of fear, she had a miscarriage on the way. The sahabah were debating that if Umar would have to pay blood money on that or not. The case was settled when ‘Ali رضي الله عنه said that the miscarriage had happened because of them and that blood money was required to be paid but from Bayt al-Maal.
The diyah (blood money) in this case is a slave, male or female. If that is not possible, then the diyah is five camels, because the diyah for a foetus is one tenth of the diyah for his mother, and it well known that the diyah for a free Muslim woman is fifty camels, so the diyah for the foetus is five camels. The diyah depends on the gender of the one murdered.
Who should pay the diyah? This diyah is required from everyone who had anything to do with the abortion of the foetus, so the doctor and the woman must both pay it if she took the medicine to help induce the abortion. The diyah should be paid to the heirs of the foetus, but the killer cannot take anything from it following the laws of inheritance where murder removes one from the heirs that can inherit.
What is the diyah? It could be calculated using gold as the determining asset. A man’s diyah is one thousand dinars of gold. Each dinar weighs 4.25 grams. Hence, the diyah in modern terms would be equal to 4250 grams of gold. This would then have to be converted into its value in the local currency in order to be paid in cash. Using the camel as the determining asset is in compliance with the decision of the Supreme Council of Scholars in Saudi Arabia. It is as follows: The diyah of a man is 100 camels whereas the diyah for a woman is half of that which is 50 camels.
Abu Hurairah رضي الله عنه who said: Two women from Hudhayl fought and one of them threw a rock at the other and killed her and the child in her womb. They referred the matter to the Prophet and he ruled that the diyah for her foetus was a slave, male or female. [Bukhari]
With regard to expiation, the Shafi’is and Hanbalis are of the view that it is obligatory, and the Hanafis and Malikis are of the view that it is mustahab. The expiation for killing is to free a slave; if that is not possible then one must fast for two consecutive months. The expiation (kaffarah) is different from the penalty (diyah) that has been highlighted above. One is the blood money paid for the murder and this is the right of the family of the murdered. The other is the expiation for doing such an act in the first place and this is the right of Allah.
Imam Ibn Qudamah رحمه الله said: If the pregnant woman takes medicine then aborts the foetus, then she must give a slave, and she does not inherit anything of this diyah, and she should manumit a slave. There is no difference of opinion concerning this among the scholars whom we know, apart from the view of those who say that it is not obligatory to manumit a slave. That is because she aborted the foetus by her own actions, so she must offer compensation by giving a slave, just as if someone else had transgressed against her. And she does not inherit any share of the slave, because the killer does not inherit from the slain. The slave should be for the rest of his heirs, and she also has to free a slave. [al-Mughni (8/327)]
He رحمه الله also said: If a number of people took part in beating the woman and she miscarried the foetus, then the diyah or slave must be given by them all, each contributing a share, and each of them must offer expiation, the same as if a group of people participate in killing one man. If she miscarries several foetuses then they must all contribute to the diyah, and each one must offer expiation for each foetus. If three people strike the woman’s stomach, and she miscarries three foetuses, then they must offer nine expiations in all, each one offering three. [al-Mughni (8/326)].
And he said: The value of the slave is half of one-tenth of the diyah, which is five camels. That was narrated from ‘Umar and Zayd رضي الله عنه. This was also the view of Malik, al-Shafi'i and Ashab al-Ra’y
Zina
Since we are on the topic of abortion, it is important to also touch upon the topic of zina (illegal sexual intercourse) and adultery. A lot of abortions are happening out of wedlock. The prevalence of adultery invites Allah’s Anger which inevitably leads to the occurrence of His Punishment on earth. Abdullah Mas'ud رضي الله عنه said: "Whenever usury and adultery prevail in a community, Allah orders its destruction. Destruction doesn’t mean that an entire nation will be destroyed, as this Ummah is saved from being destroyed entirely. However, when corruption spreads among a people, its consequences will spread and affect the community and not just the corrupt person exclusively.
If a woman becomes pregnant out of wedlock and kills her child, she would have combined adultery with killing. Hanafi scholars state that getting pregnant due to zina is a justification for abortion, as long as it’s done before the soul is blown into the foetus. But many abort their children after the soul has been blown into them, so, in a way, zina is what made them commit this murder.
Our Sheikh Ibrahim Nuhu حفظه الله said, "When a mother has children through the halal way, she has a strong connection to them. But having them out of wedlock removes those feelings of motherhood such that she has no issue with killing them.
Some of the ramifications of zina and adultery are:
- Destroys the society
- Destroy the family lineages
- It enjoins poverty: Don’t be deceived by the many people who are committing zina day and night and yet they are rich. Richness is the richness of the heart and how content it is. It could be attached to physical poverty too.
- It shortens one's (true) life: This doesn’t necessarily mean reduced lifespan, but that there will be no barakah in the person's life such that he doesn’t benefit from it.
- Darkens on the face of the fornicator: This refers to spiritual darkness that others -including himself- can feel.
- Makes him become despised among people
- Scatters the heart’s emotions (causes anxiety and fear) and causes it illness, if not death."
Zina VS Homosexuality
Our Sheikh Ibrahim Nuhu حفظه الله said, "Homosexuality is one of the greatest evils that can take place anywhere, and as such, the punishment prescribed by Allah for it in this Dunya is one of the harshest punishments a person can receive in this life before meeting Allah. There is a difference among the scholars over which act has greater punishment: zina or homosexuality, or if they are both equal? There are three opinions in this matter:
1. The opinion of most of the companions, including Abu Bakr As-Siddiq and Ali bin Abi Talib, and some scholars such as Imam Malik, Imam Ahmad, Imam Ash-Shaf’i, Az-Zuhari, Ishaq bin Rahawayh, amongst others is that they believe that the punishment of liwaat (sodomy) is harsher than that of zina.The punishment according to them is death in all circumstances, whether he is a muhsan or was never married in his life.
Imam Ibn Qayyim رحمه الله says that the scholars who hold the first opinion - which is the opinion of the majority of the scholars and represents the overall opinion of the companions - have said: "There is no greater evil deed than that of homosexuality; it comes after polytheism and also, perhaps killing." They said: "Allah never tested any nation in the world before the nation of Lut with this great sin, then punished them in a manner not witnessed by any other nation before. Allah combined several calamities in their destruction: He turned their houses and land upside down and rained down stones upon them as an example, in a way He never dealt with any nation before them. Angels even flee to remote areas of this universe for fear that the punishment set for those evil people might touch them. The earth moans and complains to its Lord, and the mountains nearly move away from their set positions, when a homosexual act is committed. Sodomy can remove all the good in a person, and his heart will be destroyed quicker than a poison destroys the body.
2️. The second minority opinion is the opinion of Ata' bin Abi Rabah, Al-Hasan Al-Basri, Sa'id bin Al- Musayyib, Ibrahim An-Nakha'i, Qatadah, Al-Awza' i, Imam Shafii (his second opinion), Imam Ahmad (his second opinion), Abu Yusuf and Muhammad. Their opinion is that the punishment for homosexuality is similar to the punishment of one who commits zina.
3️. The opinion of Al-Hakim and Abu Hanifah. The punishment of sodomy is lower than the punishment of zina. We don't kill him but it is up to the leader to kill him or let him go. This is called ta'zeer. This is because it is a sin that neither Allah nor His Prophet ﷺ specified a punishment for, and for such crimes, we let the leader and authority decide how to deal with it. The natural disposition of people is to stay away from something like this, because it is an act which is neither favoured nor desired by human nature. Allah did not create them like that, which is why there are no laws regarding it, as opposed to zina which comes from a natural desire."
May Allah Protect us from falling into that which displeases Him and Save us from everything that even leads towards the doors of disobedience.
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