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Allah Almighty, through His power and wisdom, created humankind as part of His creation. He prescribed duties and ordinances on them and offered them rights. All of this is indicated in the books He sent down to humankind via messengers and prophets.  Allah Almighty provided for humankind that which would support them until they die.

 

The divine wisdom facilitated the continuity and development of creation, generation after generation, until He, Almighty inherits the earth and all that is on it, and all the creation returns to the Creator. Man knew this fact, and so looked for a dwelling and tranquility with a wife, expecting all the consequences and results, most important of which is of having offspring and hence the continuation of life on earth.

 

The divine wisdom also made it a duty to protect this offspring from all kinds of aggression. So murder was prohibited in all its forms, and the punishment for committing it is so severe and great, because it hinders the process of life and obstructs its continuity.

 

The divine wisdom also ordered the protection of this offspring even when it is still a fetus in the womb, when it is in the consideration of being a believing soul and prohibited to kill. If the fetus is not protected and taken care of in the womb, there will be no newborn and consequently no settlement on earth, and that is contrary to the orders from Almighty Allah.

 

The fetus has two states of existence: either a state of death, which Allah willed before the fetus completes its cycle, and hence involuntarily comes out as abortion before its time. The second state of the fetus is when it is in a living state, during which it acquires all the forms of a living being. In this living state there are some Shar’iah rules for it.

 

Reasons of Abortion and its Effects

 

Abortion takes place for one reason or another. Some of them are because of infections, when, God willing, the womb repels the fetus, or when abortion takes place because of a voluntary action, i.e. when someone does it (whether the mother herself, a physician or any other person).

 

Infectious Abortion

 

A fetus is formed as a result of the interaction between an ovum and sperm, each of which has twenty three components. In their combination, a fetus is formed. If there was any discrepancy in the number these component either in the ovum or in the sperm, abortion takes place. There are also disease related reasons for abortion, like the disease of the fetus when it is in the preliminary stages, and it stops growing and transforms into an accumulation of small pieces. Sometimes it is the disease of the mother, either physically or psychologically. Some of these physical diseases are; womb infections, high blood pressure, kidney infections, anemia, lung diseases, heart diseases an venereal diseases. The psychological diseases may be caused when the mother is scared of the idea of being pregnant and the expected suffering in the process of giving birth, or even being scared of the responsibility of raising that child. All these may reflect in a psychological disease which may lead to abortion.

 

Voluntary Abortion

 

This kind of abortion is of two types. The first one is the abortion for a reason which take place as a result of the laws and regulations in some countries, and the second one is the abortion which takes place due to this regulation.

 

Abortion for a Reason

 

Many counties allow abortion and legalize it for a number of reasons, at the top of which is medical reasons. Under this reason may dangers are included, such as jeopardy on the mother's life, deformity of fetus, transfer of an infectious disease from the mother to the fetus. Other reason are when pregnancy occurs as a result of rape, or simply to limit birth for socio- economic reasons. Although many countries try to organize abortion and legalize it, with an aim to prevent secret or underground abortions, but still the call to this legalization finds strong opposition.

 

In the case of legalization of abortion, the mother and the physician involved in the operation of abortion, are released of any material or moral responsibility, even though disputes always erupt among members of a family when the desire to have an abortion is from one side. In any case, abortion brings problems with it, both psychological and social.

 

The question of legalization is strongly affected by public opinion. The conservative societies restrict abortion and prohibit it unless it is for the utmost medical necessity. The liberal societies would not pay attention to this prohibition, whether in its religious or moral aspects, and hence they are indifferent towards the whole issue.

 

The Prohibited Abortion

 

By this we means any kind of abortion which takes place beyond the special rulings for the allowable or medical abortion. The medical and social statistical data indicate the increasing occurrences  of this kind of aborting in a number of countries. This is due to a number of reasons; some of which are, lack of religiosity, the promotion of personal liberty, and the promotion of illegal sexual intercourse, and other acts contrary to the fi?rah. Other reasons are family disintegration and exploitation by medical firms and laboratories. The exploiters buy the embryos from the pregnant woman to be used in biological experiments.

 

Abortion could also be due to poverty, and birth control methods, something families would resort to when available or they would perform abortion as an alternative when they cannot pay for the birth control methods.

 

General Effects of Abortion

 

One of the most dangerous effects of abortion is inflammations and infections. The womb will be exposed to germs which may reach the circulatory system, leading to blood poisoning or sterility. If aborted one time, a woman will be susceptible to recurrent abortions.

 

The psychological effects of abortion would cause a lot of suffering for the woman. Not to mention the sense of guilt because of the illegal pregnancy, the  murdering of an innocent soul and depriving herself of the satisfaction of being a mother.

 

One of the general effects of abortion is the decrease in the human population. If this factor is added to the other factors of birth control and the availability of contraceptives, some countries will face a sharp decline in their population in the near future.

 

Embryo Abuse

 

The Muslim jurists have stated a number of definitions for the embryo. They all agree that the embryo must be fully formed to attain the Shari’ah consequences. Some jurists of the ?anafi school,  state that when the semen is ejaculated into the womb it is ready for life. The sperm, after combining with the ovum is given the consideration of the living. If it is misused or damaged, a liability will befall the one who caused the damage. Some other jurists considered an embryo alive after its birth, and the indications which show that it is alive, such a crying, breathing and nursing. The single movement of arms is not a sufficient indication of being alive.

 

According to Imam Malik and his followers, the life indication of the embryo is the first cry at birth. According  to Imam Shafi’i, Abu ?anifah  and ath-Thawri, life indication is any movement, showing life, such as a sneezing or breathing. In this case the embryo is considered alive and the rules to be applied on it are the rules applied on the living. The scholars disagreed on the formation of the embryo or the state when it would incur the blood money (ghurrah). Imam Malik states that an embryo is any clot or morsel of blood which is known to be a fetus. Imam Shafi’i required that the formation of the fetus must be identifiable. According to the ?anbali school, the aborted fetus must have the shape of a human being. If the aborted fetus does not have that form then there would be no liability, because being an embryo cannot  be ascertained. However, if trustworthy medical personal confirm that the aborted fetus has the formation of a human being, a blood money (ghurrah) is incurred. If they state that the fetus is only in the beginning of that formation, then there are two rulings. The most correct one is that there is no liability and the second one is that blood money should be paid.

 

The Physical Abuse

 

An embryo must stay in the womb for a certain period of time. The premature delivery happens because of two things:

 

Firstly: The infectious abortion, which takes place because of the infection of the fetus or of the mother, or due to any abnormal situation.

 

Secondly: The voluntary abortion which takes place because of any abuse or transgression on the fetus, such as violence on the mother, the intrusion of a foreign element in the womb, the use of an un-prescribed medicine, the prevention of nourishment, or charging the mother with work load above her capacity. This abuse may be directed to the embryo or to the mother or to both of them. Abu Hurayrah (ra?hiyallahu anhu) narrated that two women from the Hazil tribe quarreled with each other, and one of them hit the other with a stone and killed her, as well as the child in the womb. People came to the Prophet (?allallahu ‘alayhi wa-sallam) for justice. He judged that blood money- in this case- should be paid. The (diyah) for the dead mother was also required.

 

Moral Abuse

 

An embryo might be aborted as a result of the psychological condition of the mother, such as being shocked, scared or threatened or even mistreated.

 

Some jurists did not differentiate between the physical and moral abuse. Even if the pregnant woman craves for some food after its smell reaches her, and she is denies that food, this action would be considered aggression, if she aborts because of that denial.

 

Aggression of the Mother on Embryo

 

A  pregnant woman is subject to having an abortion inadvertently, when she carries a heavy load, exerts herself or takes a drug which affects the embryo and leads to abortion. In this case a dhaman is incurred.

 

Abortion might happen as a result of a voluntary action from the mother, such as taking a drug or asking a physician to give her that medicine. Imam Ibn ?a?m made a differentiation between the case of the (aborted) embryo into which the spirit is not yet breathed and said that the ghurrah is upon the mother, and the other case of the embryo into which the spirit is breathed, and said that if the mother did not intend to murder it, the ghurrah should be paid by her immediate blood relatives, and the expiation should be paid by the mother. But if she intended to murder it, the qisas or diyah is incurred by her.

 

The Medical Abuse

 

There might be aggression on the embryo from a medical personnel, like when a physician prescribes some medicine to the pregnant woman, and this leads to abortion due to the administration of that medicine, or advices her to do some exercises or perform an unnecessary operation, or when he wrongly interprets the pain a pregnant woman is suffering as pains of labour and hence performs an operation of an untimely delivery the consequently death of the newborn.

 

Aggression on Embryo by Mistake

 

An action is considered inadvertent or mistaken when there is no intention of murder, or when the action is not fatal, such as pulling or squeezing, or unlikely to lead to fatality such as throwing with a stone.

 

If a person intends to kill the embryo by hitting the effective part of the mother's body, and the embryo is aborted and dies afterwards, there is disagreement on the qisas in this case, according to the Maliki school. Some jurists think that diyyah should be paid, but no qisas incurred. Others think that qisas should be incurred after swearing the oath (qassamah). They also disagreed on the effective part which is hit, and which leads to abortion, and hence the imposition of diyah or qisas. The mostly favored opinion of the Maliki school supports the qisas if the hitting was on the back or on the stomach or the place where the embryo may be affected. There is no difference in the Maliki school on whether the qisas is incurred by one of the parents or anybody else.

 

Imam ash-Shafi’i states that if a woman aborts a living embryo, and that somebody kills it, a qisas is imposed on that person. But qisas is not imposed on the mother in cases where she intends to kill her embryo, but she should pay a diyah from her own property and so should the father if he kills the embryo. There is not qisas on the parent for killing his or her child.

 

Total and Partial Aggression

 

Aggression might be absolute, resulting in three cases:-

 

Firstly: The death of the mother and her embryo together.

 

Secondly : Abortion of the embryo alive and the death of the mother, and the death of embryo afterwards as a result of that aggression.

 

Thirdly: Abortion of the embryo dead while the mother is alive.

 

Aggression might also be a partial one, which means in this case that if would not have an immediate effect whether on the mother or on the embryo, but its effect would take place later. This partial aggression could be in hitting or pulling the pregnant woman and because of that violence the embryo is aborted or born with a permanent deformity.

 

Factors of Aggression

 

For aggression to be legally considered and punitive consequences to be imposed these factors should be fulfilled:-

 

1. Abortion

 

The majority of jurists condition the occurrence of abortion as a result of violence on the mother whether immediately or after the incident of violence or after sometime. But if the pregnant woman dies without aborting, or the woman who seems to be pregnant, like having a big belly or some movement in the womb, dies, no dhaman is incurred for killing the embryo, because in this case pregnancy cannot be assured. But if the embryo was aborted, dead, because of that violence, dhaman is incurred whether when she is alive or when she is dead.

 

2. Intention in Voluntary Action

 

Intention here means the meditation of the doer to abort that pregnancy by all means possible to induce death, whether directly such as hitting (violence) or indirectly like administering a drug or medicine or any other substance, liquid or solid with the intention of inducing abortion, or killing the embryo, its mother or both of them.

 

3. Proof of Cause of Effect

 

For the action to be related to the aggressor, it should be proved that the result of his action is effected by his aggression. The four schools of thought agree that abortion must have occurred as a result of aggression, but this cause is refuted in case of suspicion. If the aggressor commits violence on the mother, and abortion resulted after that violence or she suffers after that violence until abortion occurs because of that, then he will be responsible. But if the embryo is not aborted, or part of it does not appear because of that aggression, there is no punishment on the aggressor, even if movement in the womb and the big belly disappear, because pregnancy in this case cannot be assured through suspicion.

 

Prohibition of Abortion

 

Abortion is prohibited after the duration of one hundred and twenty days of pregnancy. If abortion is done after this period it is considered a crime and a felony on a human being.

 

Jurists have different opinions in case abortion takes place before the passage of one hundred and twenty days of pregnancy.

 

In the ?anafi school the penalty is not incurred unless the aborted embryo indicates  some formation. But if no formation can be identified in the embryo, there is no sin.

 

In the Maliki school, there is a penalty for all that a pregnant woman aborts, such as leech- like clot or a morsel of flesh, partly formed or unformed, or that which is known to be a fetus; when transgressed, and aborted.

 

In the Shafi’i school, there is disagreement on the question of abortion, before the period on one hundred and twenty days. Imam Ghazali said that before the passage of a hundred and twenty days, abortion is not prohibited, but after that period of time it is undoubtedly categorically prohibited, because after this time the spirit is breathed into the embryo.

 

In the ?abali school, if the aborted embryo does not have the distinct formation of a human being there is no sin in that.

 

Abortion and Necessity

 

The Islamic Shari'ah is a law which aims for security, forgiveness and redemption. When there is difficulty, it ordains relief, and allows for lenience when there is constriction. Within its rules and principles there are rulings which can be derived to bring some relief and render the ordinance to be easier at the time of necessity. Al-I?? Ibn ‘Abd as-Salam said that in times of necessity, constrained rulings are made flexible, with the intention of good. One of these necessities is the jeopardy on the life of the pregnant woman because of that pregnancy.

 

Jeopardy on the life of the Mother

 

At this point, we know that it is agreed that abortion is prohibited when the fetus is a hundred and twenty days old. But protection of the mother is of greater interest and importance. Hence abortion in this case, even after the passage of the prescribed period (120 days) is permissible. Necessity is observed in such cases.

 

Necessity for abortion has three conditions:

 

Firstly: The presence of a medical case urging abortion.

 

Secondly: Impossibility of a cure other than abortion.

 

Thirdly: Confirmation of medical opinion by two specialized trustworthy physicians or one such a physician when two are not available.

 

Cases of Rape

 

Crimes of rape and its effects is one of the most complicated problems facing women in the present time.

 

Considering all the damages, whether social or psychological and the difficulties which a woman goes through, would abortion be permitted in this case?

 

The answer to this questions is two fold, the first is that abortion is permitted before the passage of one hundred and twenty days of pregnancy. The second one is that consideration is given to the circumstances of rape after the passage of the period of a hundred and twenty days. It has been reported that jurists in a Muslim country in North Africa issued a Fatwa permitting abortion after the incidents of rape which took place during border dispute and fighting with a neighboring country. For them, it was intolerable to have such a high number of of illegitimate children in that Muslim nation, and therefore chose the least of the two harms (according to them).

 

As for the individual cases, there are two considerations:

 

Firstly: Opinion of the community.

 

Some communities can tolerate the presence of illegitimate children and the mother will not suffer in raising an illegitimate child. In this case abortion is prohibited because there is no necessity and no damage or mafsadah (harm).

 

Secondly: If the community can not tolerated the after effects of the crime of rape, and the pregnant woman is in jeopardy because of that, or mischief is expected to result from that, then abortion is permitted as protection against that harm (mafsadah).

 

Here the assessment of necessity is to be given its legal Shari' estimation. The raped woman should not wait until her pregnancy is in the eighth or ninth month. Also differentiation should be made between the case when the woman is raped or when there is consent on her part. The first one had been forcibly put in that situation, and therefore the Shari`ah allows for consideration and relief, as for the second case, the person should bear all the Shari’ consequences of her action which she has opted for voluntarily, including the prohibition of abortion.

 

Abortion and Genetics

 

Is abortion permitted if one of the parents suffers from a disease which the embryo might be susceptible to, through genetical induction?

 

As previously mentioned in similar cases, the answer to this question has two branches:

 

Firstly: The state of the fetus and whether the spirit is breathed into it or not. If this case is compared with the case in which abortion is permitted before the time the spirit is breathed into it, then abortion is permitted, according to the jurists of the ?anafi school. Two factors should be fulfilled to confirm that the disease is hereditary:

 

1. Disease must be certified of having a contagious nature.

 

2. Evidence of induction of the disease to the fetus.

 

However, it can be argued against this second factor, that whatever evidences made available to prove the induction of that disease to the fetus, there is still the probability of contingency or discrepancy. The disease carrier might be cured or the disease is not inducted to the fetus or an involuntary abortion takes place.

 

Secondly: The state of the fetus after the spirit had been breathed into it. In this case the restrictions are more evident than those in the first case. In this second case the fetus is considered a believing soul, having the right to live. This rule is not affected whether the fetus is full formed or partially formed or whether it had contracted any disease.

 

Comparison of Abortion in Cases of Genetics and Rape

 

First: The crime of rape is a case of aggression on the woman. It is a condition of compulsion, which releases her of the consequences of an intended mistake. This justification is not available in the case of abortion for genetical reasons.

 

Second: Rape and its resulting pregnancy are a source of pain and suffering which may lead to physical and mental diseases. Protection of the self and the mind are part of the five necessities affirmed by Islam.

 

Third: The question of disease induction is hypothetical, whereas the pregnancy after the incident of rape has material evidence and results.

 

Fourth: Permission of abortion in the cases of rape is not absolute but rather limited and conditioned by the effect that might be caused on the woman and the jeopardy on herself or her mind.

 

Contemporary Jurisprudence Research Journal

Riyadh, Kingdom of Saudi Arabia.

Volume: Nov-Dec 1990, Jan 1991, Second Year, Seventh Edition.

 

 

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