Sunday, April 16, 2017

Dead or Alive: Juristic Permission for Abortion in Islam

Juristic Permission for Abortion

What constitutes ‘legitimate reason’ for an abortion, whether in the first forty days or within the first one hundred and twenty days, is divided into two types: darurah (absolute necessity), which in the context of abortion means medical necessity; and haajjah (pressing need), which in the context of abortion, are related to societal issues.[1]
With regards to medical necessity, it is unanimous that the safety of the mother’s life takes precedence over all else.[2]  Any other circumstance of medical necessity that would permit the abortion of a fetus would require the expertise and testimony of qualified doctors, ideally with Islamic knowledge, but not necessarily. If a doctor with an Islamic background is not available, as will be the case in the majority of situations, a report from medical experts should be procured and presented to an Islamic scholar.
It is worth noting that in many Western countries, hospitals have ethics committees which liaises with religious leaders to help families come to a decision in such cases.
The definition of a haajjah (societal need) is highly dependent upon each circumstance and must be determined by a qualified Islamic expert.
The following are examples of fataawah shared online that address specific cases that fall under the case of haajjah rather than darurah (medical necessity).

1- Rape

Women who have been raped are considered to have a haajjah when it comes to the pregnancy – it is understandable that pregnancy resulting as rape can be traumatizing to the woman, and that she may not wish to proceed with it.
One of the basic principles of Islam is to relieve distress and hardship, so if a Muslim girl who is keen to remain chaste is exposed to bestial aggression and fears the effect that this may have on her reputation or her honor, or fears that she may be an outcast or that she may be subjected to harm such as being killed, or she fears that she may suffer psychological or nervous diseases, or that her sanity may be affected, or that shame may be brought upon her family for a matter in which she is not guilty of any sin, or that the child will not find any place of safety, then I say: that if this is the case, there is nothing wrong with her aborting the foetus before the soul is breathed into it, especially when it has become easy for a woman to find out if she is pregnant or not, with the advance of medical means of detecting pregnancy in the first week. The earlier the abortion is carried out, the more appropriate this concession is. And Allah knows best.”[3]

2- Zina

The case of zina (adultery) is one where there is some debate and difference. Some scholars permit it, under certain conditions, and depending upon the context of the situation.
For example, for a woman whose life may be endangered if her family discovers her pregnancy that resulted due to an illicit relationship, Shaykh Salah asSawy permits an abortion as long as it is done before the soul is blown into the fetus.
If the woman sincerely repented to Allaah and feared for her life if her family knew of her major sin, then I hope that Allaah forgives her if she has an abortion, with the condition that she does it immediately and without delay, because the act becomes more unlawful with each passing day.[4]
In another situation of zina, the repentance of the mother is considered to be a factor in whether abortion would be allowed or not.

The rule is the abortion is prohibited because the fetus enjoys the right to life. His status is that of any other human being; it bears no relation to the error of his/her mother, nor will (s)he be asked about her [the mother’s] crime. Also, how could she add to the crime of zina, [the crime of] murder? Fiqh scholars agree on this ruling if the fetus has had its spirit blown into it; if it is before that, however, it is subject to the deliberation and ijtihad of the scholars.
The stance we choose is that, if she is still in the initial days of pregnancy (within the first forty days), and this abortion would make it easier for her to repent and return to Allah Most High, then there would be no sin in that, on condition that her repentance is sincere and truthful; and we ask Allah to keep her from sin.[5]
However, other scholars are concerned that easily permitting abortion in the case of zina would lessen the sense of severity and impact of zina itself, and therefore prohibit it.
The efforts and ijtihaad of the fuqaha’ have focused on abortion in general terms, and the rulings on that and the consequences that may follow. They have not gone into details concerning cases where the pregnancy results from immorality. This may be because they consider that to come under the same ruling as abortion of a pregnancy resulting from a proper marriage. If abortion of a pregnancy resulting from a proper marriage is haraam under normal circumstances, then it is even more so in cases where the pregnancy results from immorality, because permitting abortion of pregnancy which results from immorality would encourage evil actions and the spread of immorality.
One of the basic principles of Islam is that it forbids immorality and all the ways that lead to it, e.g., it forbids tabarruj (wanton display of one’s charms) and free mixing (of men and women).
Furthermore, those who say that abortion is permitted within the first forty days of a legitimate pregnancy based their ijtihaad on a concession, like not fasting in Ramadaan for those who have valid excuses, or shortening the four-rak’ah prayers whilst travelling, but it is stated in sharee’ah that concessions cannot be connected to sins.
Imaam al-Quraafi said: “With regard to sins, they cannot be taken as reasons for concessions. Hence one who is travelling for the purpose of sin cannot shorten his prayers or break his fast, because the reason for doing these is travelling, but in this case the reason for travelling is to commit sin, so the concession does not apply, because granting a concession on the basis of sin will encourage people to sin further.” (al-Furooq, 2/33)[6]

3- Medical Complications with the Fetus

In addition to the issue of the mother’s life being in danger, the condition of the fetus also plays a role in determining whether or not an abortion may be allowed. With the advent of modern medicine, there are more ways to protect the health of a fetus even in cases where it is predicted that it may be born with certain medical conditions, whether it be Down’s Syndrome or otherwise.
However, in situations where the complications are severe and there is little chance for the fetus to live a dignified life once it is born, then scholars have allowed for abortions to be made permissible (again, on a case-by-case basis) if doctors testify to its necessity.
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.[7]
In the case of multiple fetuses (twins, triplets, quadruplets etc), abortion of one more of the fetuses may become permissible if necessary to ensure the health and safety of the mother or other fetuses.
If an authentic committee of medical doctors agree that any fetus endangers the life of mother or the fetus itself is disfigured beyond cure, aborting it is permissible. Note that abortion should be carried out within the first forty days or few days after it. Sometimes it is observed that a woman conceives by three fetuses and she lives a normal life without facing any dangers to her life so, one should not be restricted to a certain number (one or two) of pregnancies. Thus, every fetus (pregnancy) that does not endanger the life of a mother should not be aborted.[8]
Another medical complication that would permit an abortion would be in the case of an ectopic pregnancy.[9] Due to it not being a viable pregnancy in any way, and which would result in physical harm to the woman if it were to be left untreated, it is permitted to remove the fertilized egg from the fallopian tube via surgical procedures.

4- Severe difficulty

This is a vague term that covers any situation which does not fall under the above two, and is left to the interpretation of scholars. With the exclusion of fear of poverty, which is categorically prohibited as a reason for abortion due to explicit ayaat of the Qur’an, this phrase can be used to describe many circumstances that people may find themselves in.
This could include the case of a woman who already has children and who would experience severe psychological distress (such that it would impair her physical and/or mental well-being); a woman who is in a situation where she feels that she does not have the capacity to raise a newborn[10]; or a woman whose husband is a faasiq (someone who is morally corrupt or defiantly disobedient towards Allah).[11]
However, it cannot be stressed enough that each situation must be taken to someone who is Islamically qualified to determine whether any given situation achieves the level of haajjah or darurah that makes abortion permissible.

When Is Abortion Completely Forbidden?

1- Fear of Poverty

There is no disagreement amongst any of the scholars that fear of poverty is not a legitimate reason to permit abortion. Indeed, it is utterly prohibited due to the repeated admonition in the Qur’an not to kill one’s children out of fear of poverty.
{Say, “Come, I will recite what your Lord has prohibited to you. [He commands] that you not associate anything with Him, and to parents, good treatment, and do not kill your children out of poverty; We will provide for you and them.(Qur’an 6:151)
{Indeed, your Lord extends provision for whom He wills and restricts [it]. Indeed He is ever, concerning His servants, Acquainted and Seeing. And do not kill your children for fear of poverty. We provide for them and for you. Indeed, their killing is ever a great sin.} (Qur’an 17:30-31)
Sh Salah asSawy says on the topic: The basic principle concerning the abortion of a pregnancy within the first forty days of development is to refrain, except when there is dire necessity, clear need or obvious benefit. Fear of providing for the child is not one of those reasons, for verily, the One who creates the child and forms it in the womb is responsible for its provision.
After the soul is blown into the fetus, the rule on abortion is that it is strictly forbidden, except in the case when a choice must be made between the life of the child and the life of the mother, according to the testimony of trustworthy, reputable physicians. In such a case, the life of the mother would be given preference since she is the origin. As such, we advise the afflicted couple to give thanks for this blessing and to keep it, unless they find real interests besides the fear of poverty.[12]


2- Abortion After Ensoulment

There is no disagreement whatsoever that any abortion past the stage of 120 days is a sin and, while considered to be just short of murder (meaning that there is no death penalty for the one who causes it to happen), requires repentance and an expiation.
It should be noted that while there is no death penalty, the expiation itself is analogous to that of killing a living person in that it requires blood money. This is due to the fact that once the soul has been breathed into the body, the fetus is now considered a living being whose life is sacrosanct.
In the case where medical complications are detected after the 120 day period, even if there is a chance that the fetus will die immediately or shortly after birth, late term abortion is still prohibited. The pregnancy must be carried to full term, except and unless an emergency situation arises and the mother’s life is in danger. [13] [14] In such a case of emergency, no diya is required either of the doctor or of the mother.

Expiation

There is some discussion over the details of what the expiation for an abortion past 120 days is.
It is generally agreed upon that blood-money must be offered; that is, to purchase and free a believing slave (or to pay the equivalent of that cost). This must go to the heirs of the fetus, not including anyone involved in causing the abortion. In addition, those responsible for the abortion must also fast two consecutive months.[15] It should be noted that if the doctors involved in the procedure are Muslim, they too bear the burden of paying the kaffaarah.[16]
The following discusses the issue of diyah in more detail:
There is disagreement among the scholars as to the asset that must be used in the determination of the blood money (diyah); whether it must be gold, silver, or camels, or a combination thereof. This results in a tangible disagreement in the amount that must be paid.
It could be calculated using gold as the determining asset. In his case, a man’s diyah is one thousand dinârs of gold. Each dinâr 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, (which has been calculated to approximate roughly one hundred thousand Saudi riyals). The diyah for a woman is half of that.
With regard to the blood money in the event of an abortion or induced miscarriage, the determination is as follows:
The fetus will be either delivered dead or delivered alive and then die.
If someone criminally induced an abortion or miscarriage and the fetus is still alive upon delivery and dies as a result of this action, then the payment of full blood money (diyah) will be required. It would be same as the diyah of an adult man or woman.
If it is delivered dead, a compensation known as ghurrah must be paid. This amount has to be paid regardless of whether or not the fetus had been endowed with a soul (by passing four months from conception). However, payment of ghurrah will not be obligatory if the fetus has yet to take on the semblance of a human form.
The nutfah (when the embryo is in the form of a coagulated drop) has no ruling pertaining to it whatsoever. Al-Qurtubî relates that this is a point of consensus in Islamic Law. The same is the case with the `alaqah (a leech-like clot) and the mudghah (when it resembles a morsel of flesh which is not formed yet).
Determining whether full formation of the fetus has taken place must be decided by trustworthy doctors after they examine the fetus.
If the fetus has taken on the semblance of a human form and is delivered dead, then the ghurrah must be paid. The estimation of ghurrah which was mentioned in the hadîth as being equal to that of a slave boy or girl. It is estimated as being equal to one tenth of his mother’s diyah or one twentieth of a man’s diyah.
If we determine the ghurrah on the basis of a diyah of one thousand dinârs or 4250 grams of gold, we take one twentieth of that, which would 212.5 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 where the diyah of the man is 100 camels, the ghurrah will equal the value of five camels.[17]

In the next part, we’ll see how abortion is a reality among Muslims. Stay tuned..
References:

1 comment:

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