Protecting human life is one of the fundamental purposes of shari'ah (maqasid al-Shari'ah) and it comes immediately after the value of protecting the deen in the five major aims of the deen (al-Kuliyat al-Khams). (al-Bujayrami, al-Tajreed, Vol. 4, p. 209)
As Allah says:
أَنَّهُ مَن قَتَلَنَفْسًا بِغَيْرِ نَفْسٍ أَوْ فَسَادٍ فِي الْأَرْضِ فَكَأَنَّمَا قَتَلَ النَّاسَ جَمِيعًا وَمَنْ أَحْيَاهَا فَكَأَنَّمَا أَحْيَا النَّاسَ جَمِيعًا
"Whoever kills a soul unless for a soul or for corruption (done) in the land - it is as if he had slain mankind entirely. And whoever saves one - it is as if he had saved mankind entirely." (Qur'an 5:32)
Allah says (nafs), which is any living human being. The life of the fetus is not as equal others but it is valuable as well.
For that reason, the majority of scholars permitted the azl (coitus interruptus) as an alternative to abortion.
For the case of abortion, scholars classified it into two main categories i.e. abortion before receiving the soul, abortion after receiving the soul.
Abortion before Receiving the Soul
Scholars disagree on when exactly the fetus receives the soul: one group argue after 40 days and others argue after 4 months (120 days). Their disagreement on the date of the absolute prohibition emerges from their understanding of the ahadith discuss the fetus's stages in the womb. So, scholars who allow abortion before 40 days or four months actually refer to the receiving of the soul.
For this exact issue, after comparing the shawahid (similar narrations), verses and tafaseer along with the medical discoveries, one could argue the view of 40 days is more probable, according to my opinion (the author), or it better to identify the period of prohibition with the takhaluq (embryogenesis), as all of the jurists consider it as a sign for the specific period they stipulated, which is the stage of alaqah or mudghah. For that reason, I will use the term receiving the soul or takhaluq to cause no confusion.
Classical scholars of madhahib disagree on this issue some of them unrestrictedly allowed it before the fetus receives the soul because the fetus's embryogenesis (takhaluq) has not yet achieved and it now is nothing but a non-living thing; others argued it is allowed for only when there is a critical need (such as being dangerous to woman's life) medically decided, that could not be avoided except by abortion, as the fetus is a respected creation of God; others argued it absolutely forbidden and it is equal to killing a child alive; others argue it's the only makruh (disliked) to do it out of no critical need.
Abortion is unrestrictedly Permitted:
A group of jurists argue abortion is permitted without any critical need before the takhaluq (embryogenesis) which is, in fact, the receiving of soul. Neither of the dominant views of Sunni madhahib recognises this view (Zaydis do). It is the opinion of a minority of prominent individual mujtahid jurists: some Hanafi, Lakhmi of Malikis, Maruzi of Shafi'is as well as Ramli in the case of zina (adultery) and ibn Aqeel of Hanbalis.
They argue it is similar to any non-living thing that it is mubah (allowed) to do anything with as long as there is no harm for anyone. They also argued, when there is no soul, there is no resurrection and so it is not alive (similar to humans or even animals). (Bahuti, al-Rawd al-Murabaa, Vol. 2, p. 316, al-Mawsu'ah al-Fiqhiyah. Vol. 2, p. 57)
The ninth-century Hanafi jurist ibn al-Humam argued it is allowed before the embryogenesis:
وَهَلْ يُبَاحُ الْإِسْقَاطُ بَعْدَ الْحَبَلِ؟ يُبَاحُ مَا لَمْ يَتَخَلَّقْ شَيْءٌ مِنْهُ
"Is abortion allowed after pregnancy? It is permitted (mubah) as soon as it has not yet reached takhaluq." (Ibn al-Humam, Fath al-Qadeer, Vol. 3, p. 401)
The ninth-century Hanbali jurist Mardawi also argued it is permitted according to the leading Hanbali jurist ibn Aqeel and rejected by ibn al-Jawzi:
"It is allowed to take a medicine to miscarry the nutfah (unformed sperm) … Ibn al-Jawzi prohibited it … The face value of ibn Aqeel is the permissibility before the ensoulment." (Mardawi, al-Insaf, Vol. 1, p. 386)
The leading Hanafi jurist ibn Abdeen argued:
وَقَالُوا يُبَاحُ إسْقَاطُ الْوَلَدِ قَبْلَ أَرْبَعَةِ أَشْهُرٍ وَلَوْ بِلَا إذْنِ الزَّوْجِ … بِلَا كَرَاهَةٍ
"They said it is mubah to miscarry the fetus before four months even without the permission of the husband … with no karahah (dislike)" (Ibn Abdeen, al-Dur al-Mukhtar wa al-Hashiyah, Vol. 3, p. 176)
Similarly narrated by ibn Rajab al-Hanbali who argued it has not yet become a formed child in its case of nutfah. (Ibn Rajab, Jami al-Ulum, Vol. 1, p. 157)
Abortion is allowed in Necessity:
The dominant view of the Hanafi madhab (with a narration of two Shafi'i jurists Zarkashi and Khatib Shirbini as well as the above jurists who allowed it) is that abortion is permitted in only critical needs, that could not be avoided except by abortion, which are to be identified by an honest Muslim physician, such as the death of the mother, having no milk in the mother's breast or nursing of the previous child. Abortion in unnecessarily case, in this period, is considered makruh (disliked). (Ibn Abdeen, al-Dur al-Mukhtar wa al-Hashiyah, Vol. 3, p. 176)
For example, the Hanafi jurist Qadi ibn Wahban said:
فَإِبَاحَةُ الْإِسْقَاطِ مَحْمُولَةٌ عَلَى حَالَةِ الْعُذْرِ
"The permissibility of abortion is only in the case of necessity (udhr)." (Ibid)
They argue when the drop reaches the womb, it is considered a potential life which is not to be destroyed.
It is Makruh in any Case:
This view is not dominantly recognised by any of the madhahib, rather it is the opinion of individual scholars of Hanafis (Ali ibn Musa), some of the Malikis and individuals of the Shafi'is (Ramili and others).
The tenth-century leading Shafi'i scholar al-Ramli argued:
وَأَمَّا قَبْلَهُ فَلَا يُقَالُ إنَّهُ خِلَافُ الْأَوْلَى بَلْ مُحْتَمِلٌ لِلتَّنْزِيهِ وَالتَّحْرِيمِ، وَيَقْوَى التَّحْرِيمُ فِيمَا قَرُبَ مِنْ زَمَنِ النَّفْخِ
"But before the ensoulment, it could not be khilaf al-Awla (it is otherwise the priority) but it is a potential (or something in between) tanzeeh (equals makruh) and tahreem (prohibition) i.e. the more the abortion is closer to the ensoulment, the more it becomes haram." (Ramli, Nihayat al-Muhtaj, Vol. 8, p. 442)
This case could also be included in the above category because by the darurah (necessity) identified by the specialised people could make most of the cases (if it is not all) permissible. But scholars prefer to do such distinction.
Abortion is Prohibited:
This group of jurists argue abortion is haram (prohibited) in any case at all (except the critical issues that to be medically decided). This is the dominant view of Malikis, the majority (or even the al-Mu'tamad) of Shafi'is, some of the Hanbalis and the Zahiris. (Dusuqi and Dardeer, al-Sharh al-Kabeer wa Hashiyat al-Dusuqi, Vol. 2, pp. 266-267, Ibn Rushd, Bidayat al-Mujtahid, Vol. 2, p. 453, Bujayrami, Tuhfat al-Habeeb, Vol. 3, p. 303, ibn Qudmah, al-Mughni, Vol. 7, p. 816, Ibn Hazm, al-Muhala, Vol. 11, p. 33)
The Maliki jurist al-Hataab quoted al-Burzili reporting abortion is prohibited by the majority (dominant) in the madhab:
وَأَمَّا اسْتِخْرَاجُ مَا حَصَلَ مِنْ الْمَاءِ فِي الرَّحِمِ فَمَذْهَبُ الْجُمْهُورِ الْمَنْعُ مُطْلَقًا
"But bringing out the sperm from the womb is totally (mutlaq) prohibited by the majority." (Hataab, Mawahib al-Jaleel, Vol. 3, p. 477)
The leading Maliki jurist Ahmed Dardeer argued it is prohibited to bring out the formed sperm:
وَلَا يَجُوزُ إخْرَاجُ الْمَنِيِّ الْمُتَكَوِّنِ فِي الرَّحِمِ وَلَوْ قَبْلَ الْأَرْبَعِينَ يَوْمًا
"It is not permissible to bring the formed sperm from the womb even before 40 days." (Dusuqi and Dardeer, al-Sharh al-Kabeer wa Hashiyat al-Dusuqi, Vol. 2, pp. 266-267)
The fifth-century jurist and theologian Abu Hamid al-Ghazali argued:
وَأَوَلُ مَرَاتِبِ الوُجُودِ أن تَقَعَ النُطْفَةَ في الرَحِمِ وتَخْتَلِطَ بمَاءِ المَرْأةِ وتَسْتَِعِدَ لقَبُولِ الحياةِ وإفسادُ ذلك جِنَايّةً فإن صَارَتْ مُضْغَةً وعَلَقَةً كانت الجِنايّةُ أفْحَش
"The first stage of existence is when the sperm falls in the womb and mixed with the sperm of the woman and it is getting ready of receiving life.
Destroying this is a crime and when it becomes a mudghah and alaqah the crime is greater." (Gazali, Ihyaa Ulum al-Deen, Vol. 2, p. 51)
It was also said by ibn Taymiyyah who considered it as the case of infanticide. (Ibn Taymiyyah, Majmu al-Fatawah, Vol. 34, p. 160)
Arguments for the Prohibition:
They argue shari'ah prohibited the killing of an innocent life (nafs) and considered it a great sin (as the verse in the background) and as Allah says:
وَلَا تَقْتُلُوا النَّفْسَ الَّتِي حَرَّمَ اللَّهُ إِلَّا بِالْحَقِّ
"And do not kill the soul which Allah has forbidden, except by right." (Qur'an 17:33)
So we did not have the right to kill the fetus as he committed no crime. In addition, the fetus is a potential life (nafs) growing to be a Muslim and destroying it is similar to the taking of a complete life.
The Shari'ah also prohibits the cutting off of soulless plants with no need and harming the dead bodies, how could it allow the killing of a growing fetus. For the fetus being a strong or weak, it does not matter as it is a life.
The shari'ah prohibited the previous practices of female infanticide for no excuse:
وَلَا تَقْتُلُوا أَوْلَادَكُم مِّنْ إِمْلَاقٍ ۖ نَّحْنُ نَرْزُقُكُمْ وَإِيَّاهُمْ
"Do not kill your children out of poverty; We will provide for you and them." (Qur'an :151)
Therefore, abortion is a kind of killing your son or daughter regardless of their strength or weakness.
They also argued it is not allowed to stone (rajm) or flog (jald) the adulteress pregnant except after delivering the fetus (as the Prophet (saw) did with al-Ghamidiyah).
Imam Nawawi narrated the Ijma on this:
لَا تُرْجَمُ الْحُبْلَى حَتَّى تَضَعَ سَوَاءٌ كَانَ حَمْلُهَا مِنْ زِنًا أَوْ غَيْرِهِ وَهَذَا مُجْمَعٌ عَلَيْهِ لِئَلَّا يُقْتَلَ جَنِينُهَا وَكَذَا لَوْ كَانَ حَدُّهَا الْجَلْدَ وَهِيَ حَامِلٌ لَمْ تُجْلَدْ بِالْإِجْمَاعِ حَتَّى تَضَعَ
"The pregnant woman is not to be stoned except after delivering the fetus, whether this fetus is the outcome of zina or another.
This notion is unanimously agreed upon (ijma) for killing not her fetus. The something if the punishment was al-jald (flogging) in the state of pregnancy, by consensus she is not to be flogged except after delivering." (Nawawi, Sharh Muslim, Vol. 11, p. 201)
So it worth arguing the shari'ah recognises the right of this growing child to live and taking his\her life is not accepted in the unnecessary issue.
The Prophet (saw) even recognised the diyah (blood money) and kafarah (atonement) against the killing of a fetus. It was narrated such case (the age is not identified) came to the Prophet (saw) and he considered it like a minor case of killing:
أَنَّ امْرَأَتَيْنِ، كَانَتَا ضَرَّتَيْنِ فَرَمَتْ إِحْدَاهُمَا الأُخْرَى بِحَجَرٍ أَوْ عَمُودِ فُسْطَاطٍ فَأَلْقَتْ جَنِينَهَا فَقَضَى رَسُولُ اللَّهِ صلى الله عليه وسلم فِي الْجَنِينِ غُرَّةٌ عَبْدٌ أَوْ أَمَةٌ وَجَعَلَهُ عَلَى عَصَبَةِ الْمَرْأَةِ.
"Two women co-wives, (were fighting), and one of them hit the other with a stone or a tent post, causing her to have a miscarriage.
The Messenger of Allah (saw) judged that a Ghurrah (5% of complete diyah) male or female slave should be given for fetus, and he required it from the Asabah of the woman." (Nasa'i 4821, Muslim 4167)
All of these evidences and arguments support the forth view of majority: abortion is prohibited in any case except in the critical needs (such as the death of the mother because of pregnancy continuity, having no milk in the mother's breast, nursing of the previous child and other medical issues) identified by an honest physician and could not be avoided except by abortion. This view was the view of the recognised committees of contemporary international muftis, such as the committee of al-Azhar (Dar al-Iftaa al-Masriyah) No. 287 of the date 8\16\2009, the view of the Council of Senior Scholars in Saudi Arabia (al-Fatawa al-Jami'ah, Vol. 3, p. 1056) and others.
Abortion after Receiving the Soul
There is no dispute among all the individual classical scholars and madhahib on the prohibition of abortion after the receiving of the soul (40 or 120 days, or takhaluq) except in the absolutely crucial and critical cases identified by the physician that could not be avoided except by abortion. This Ijma was narrated by many scholars of the classical books mentioned above
For example, the leading Maliki jurist Ahmed Dardeer argued it is prohibited to bring out the formed sperm:
وَإِذَا نُفِخَتْ فِيهِ الرُّوحُ حَرُمَ إجْمَاعًا.
"When the soul is breathed in it, abortion is prohibited by ijma (consensus)." (Dusuqi and Dardeer, al-Sharh al-Kabeer wa Hashiyat al-Dusuqi, Vol. 2, pp. 266-267)
The leading Maliki jurist Ahmed Dardeer argued it is unanimously prohibited to bring out the formed sperm. (Ibid)
The same thing was reported by the eighth-century Maliki jurist imam ibn Jazzi:
وَإِذا قبض الرَّحِم الْمَنِيّ لم يجز التَّعَرُّض لَهُ وَأَشد من ذَلِك إِذا تَخَلَّقَ وَأَشَدُ مِنْ ذَلِكَ إِذا نُفِخَ فِي الرُّوحِ فَإِنَّهُ قَتْلُ نَفْسٍ إِجْمَاعًا
"When the womb contains the sperm, it is not allowed to harm it. What is harder is after takhaluq, and harder than these when the soul is breathed in him.
Abortion here is a killing of a living being (nafs) by the consensus." (Ibn Jazzi, al-Qawaneen al-Fiqhiyah, p. 141)
Similarly reported by Ramli in Nihayat al-Muhtajj, Vol. 8, p. 442.
The Atonement of Abortion
Jurists who prohibit abortion before the receiving of soul, as well as the consensus of scholars on prohibition after receiving the soul, identify an atonement and diyah on the committer of such an act for the hadith mentioned above. (Nasa'i 4821, Muslim 4167)
They considered it a minor case of murder by mistake (qatl khataa) requires Ghurah as a diyah (the price of 5 camels a 5% of the ordinary diyah) and the freeing of a slave (as a kafarah), but in the case of having no slaves as the case in our time (or the person has no money to free a slave) he is to fast continuous 60 days without breaking the fast of even one day. The person who committed the crime (even a father, mother, or both) does not inherit the diyah, but the other heirs of relatives do. The one who is responsible is everyone did the act by himself, even if he is the doctor. (Ibn Qudamah, al-Mughni, Vol. 8, pp. 413-418)
This was deduced from the hadith of Nasa'i and Muslim above as well as the rule in the following verse:
وَمَن قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ وَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ إِلَّا أَن يَصَّدَّقُوا
"And whoever kills a believer by mistake - then the freeing of a believing slave and a compensation payment presented to the deceased's family [is required] unless they give (up to their right as) charity." (Qur'an, 4:92)
When the family forgives the diyah, the kafarah is still required.
The Zahiri jurist ibn Hazm, the founder of the Zahiri madhab argued intended abortion or killing (qatl amd) of the fetus after the takhaluq is considered a major case of murder that requires the Qisas (the legal retribution) i.e. killing the killer.
Ibn Hazm stated:
إنْ كان لمْ يُنْفَخُ فِيهِ الرُوحَ فالغُرَّةَ عَليهَا، وإن كان قد نُفِخَ فيهِ الرُوحَ؛ فإن كانت لَمْ تَعْمَدُ قَتْلَهُ فالغُرَّة أيضًا على عاقِلَتٌها، والكَفَّارةُ عليها، وإن كانت عَمَدَتْ قَتْلَهُ فالقَوْدُ عليها أو المُفَاداةِ في مَالِهَا
"If (abortion) was before the ensoulment, the Ghurah is required.
If it happened after the ensoulment: if it was by mistake, the Ghurh is required and if she intended killing him (amd) the qawd (qisas) is required or the blood money (in case of forgiveness)." (Ibn Hazm, al-Muhala, Vol. 11, p. 31)
Even if the view of ibn Hazm is not considered by the majority, but it clarifies the magnitude of such an act.
Classical scholars unanimously agree on the prohibition of abortion after the stage of takhaluq (40 days or 4 months when the fetus becomes Alaqah), but they disagree on abortion before this stage:
Ibn al-Humam, Fath al-Qadeer
ibn Qudmah, al-Mughni
Ibn Abdeen, al-Dur al-Mukhtar wa al-Hashiyah
Ibn Rajab, Jami al-Ulum
Ramli, Nihayat al-Muhtaj
Bahuti, al-Rawd al-Murabaa
Al-Mawsu'ah al-Fiqhiyah al-Kiwitiyah
Dusuqi and Dardeer, al-Sharh al-Kabeer wa Hashiyat al-Dusuqi
Ibn Rushd, Bidayat al-Mujtahid
Bujayrami, Tuhfat al-Habeeb
Ibn Hazm, al-Muhala
Hataab, Mawahib al-Jaleel
Gazali, Ihyaa Ulum al-Deen
Ibn Taymiyyah, Majmu al-Fatawah
Nawawi, Sharh Muslim
Ibn Jazzi, al-Qawaneen al-Fiqhiyah
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