What is abortion?
Medically, the term ‘abortion’ refers to the termination of a pregnancy before it is viable. However, as this is a broad definition that includes miscarriages (which is when the pregnancy ends spontaneously or due to natural causes), the more specific term and definition is ‘induced abortion’: the deliberate interruption of the pregnancy.
The legal status of abortion, and conditions and restrictions on it, vary from country to country and even state-to-state in some countries.
In Canada, abortion first became liberalized in the 1960s; it later became legal without restriction or conditions and was considered to violate the Canadian Charter of Rights and Freedoms to force a woman to carry a pregnancy to full term against her will.[1] It should be noted that doctors do have the right to conscientious objection.[2]
Despite the lack of legal restrictions on abortion in Canada, 90% of abortions in Canada take place during the first trimester, just over 9% take place between 12 and 20 weeks, and 0.4% take place after 20 weeks.[3] These late term abortions take place primarily because the fetus is gravely or fatally impaired, or the woman’s life or physical health is at risk, or both (Statistics Canada, 2003).
Thus, the idea that removing any legal restrictions on abortion would result in a flood of women abruptly choosing to terminate their pregnancies is clearly a false one. Regardless of the faith or reasons for undergoing abortion, the vast majority of women who do choose to go through with it, do so with full understanding of the seriousness of the decision.
The United States of America has significantly more restrictions on their abortion laws. Abortion was made legal in the United States in 1973 in the famous landmark case of Roe vs Wade. However, unlike in Canada, the Supreme Court ruled that individual states were allowed to place their own restrictions with regards to physician and hospital requirements, gestational limits, funding, parental involvement, and more.
[4] 41 out of 50 states have restrictions that prohibit abortion after a certain number of weeks, ranging from as early as 6 weeks to as late as 28 weeks.[5] Regardless of the legal restrictions, however, 89-92% of all abortions take place within the first trimester.[6]
Abortion laws in the Muslim world are varied.
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.[7]
In Pakistan[8], Egypt[9], and Iran[10] abortion is illegal with the sole exception of the mother’s life being at risk or severe medical complications with the fetus.Abortion in Tunisia, however, was legalized in 1965; it is available upon request at any time within the first trimester. After this gestational period, “an abortion may be performed when there is a risk that the health or mental balance of the mother will be compromised by the continuation of the pregnancy or a risk that the unborn child will suffer from a serious disease or infirmity.”
[11] Neighboring Algeria permits abortion for the preservation of the mother’s physical and mental health, only with the testimony and involvement of a qualified doctor.[12]
Turkey permits abortion up until the 10th week, with conditions such as spousal consent, and strong reasoning such as risk to the mother’s physical or mental health, conception due to incest or rape, and serious socio-economic factors.[13] [14]
The Status of Children in Islam
Before one talks about abortion in Islamic Law, one must first be aware of Islam’s overall stance regarding family values and having children.
One of the most well-known ahadith that emphasizes having children is the following:
Abu Dawood (2050) narrated that Ma’qil ibn Yazaar (may Allah be pleased with him) said: A man came to the Messenger of Allaah (peace and blessings of Allaah be upon him) and said: “O Messenger of Allaah, I have found a woman who is from a good family and is beautiful, but she does not bear children; should I marry her?” He told him not to. Then he came to him a second time and said something similar and he told him not to marry her. Then he came to him a third time and said something similar and he (peace and blessings of Allaah be upon him) said: “Marry the one who is loving and fertile, for I will be proud of your great numbers.”
Classed as saheeh by al-Albaani in Irwa’ al-Ghaleel, 1784.[15]
Classed as saheeh by al-Albaani in Irwa’ al-Ghaleel, 1784.[15]
{Wealth and children are the adornment of the life of this world. But the good righteous deeds that last, are better with your Lord for rewards and better in respect of hope.} (18:46)
Scholars have also stated that that having children is one of the purposes of marriage, and one of the objectives of the Shari’ah is the preservation of lineage and offspring[16].
Due to this, the default attitude held by Islamic scholars is always that having children is something encouraged and that it should not be prevented (by either birth control or abortion) as much as possible, except for ‘legitimate reasons.’ Such legitimate reasons are usually considered to be of a medical nature, although more scholars have become understanding of other factors such as psychological well-being and even personal choice or preference (although the latter is still quite rare in terms of being taken as a serious basis for such decisions).
With that in mind, there is still room for discussion on the topic of abortion in Islamic Law. Islam does not outright forbid abortion at all, regardless of circumstances; rather, there are a few general principles that are held and referred to. For example, the preservation of life is considered to be one of the major Maqaasid ashShar’iah (objectives of Divine Law) – not only that of a fetus, but primarily, of the mother of that fetus. However, as with every other aspect of the Shari’ah, extenuating circumstances are considered on a case-by-case basis.
The Beginning of Life
The Qur’an and Sunnah have both mentioned details regarding embryology.
{And certainly did We create man from an extract of clay.
Then We placed him as a sperm-drop in a firm lodging.
Then We made the sperm into a clot of congealed blood; then of that clot We made a (foetus) lump; then we made out of that lump bones, and clothed the bones with flesh; then we developed out of it another creature. So blessed be Allah, the best of creators!} (Qur’an 23:12-14)
Allah’s Messenger (PBUH) ,the true and truly inspired said, “(The matter of the Creation of) a human being is put together in the womb of the mother in forty days, and then he becomes a clot of thick blood for a similar period, and then a piece of flesh for a similar period. Then Allah sends an angel who is ordered to write four things. He is ordered to write down his (i.e. the new creature’s) deeds, his livelihood, his (date of) death, and whether he will be blessed or wretched (in religion). Then the soul is breathed into him. So, a man amongst you may do (good) deeds till there is only a cubit between him and Paradise and then what has been written for him decides his behavior and he starts doing (evil) deeds characteristic of the people of the (Hell) Fire.
And similarly a man amongst you may do (evil) deeds till there is only a cubit between him and the (Hell) Fire, and then what has been written for him decides his behavior, and he starts doing deeds characteristic of the people of Paradise.” (Sahih Muslim)
There have been many detailed analyses of the Qur’an and Sunnah’s description of the creation of human life, and how they correspond to modern medical discoveries and knowledge of embryology.[17] However, it is sufficient for the scope of this article to note that the scholars have summarized the stages of fetal development as the following:
- 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.
- 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.[18] [19]
This distinction is necessary in order to understand the two fiqhi stances on the permissibility of abortion in extenuating circumstances. The presence of the soul is what establishes the Shar’i difference between an abortion (ijhaadh) that does not require the payment of diyah (blood-money), and killing (qatl) that does require the diyah.
Those who follow the first opinion, that the soul is blown into the fetus at the end of one hundred and twenty days, believe that it is not sinful to abort before that period of time, if the reasons for doing so are legitimate.[20] However, to abort after ensoulment is considered categorically prohibited except in the case of the mother’s life or death.[21]
Those who follow the second opinion, that the soul is blown into the fetus at the end of forty days, believe that to abort after that is sinful if for any reason other than life or death of the mother[22]; even if that is the case, diyah is still necessitated.[23]
The following is a brief summary of scholarly opinions on the issue of aborting before forty days, with and without specific conditions:
The following is a brief summary of scholarly opinions on the issue of aborting before forty days, with and without specific conditions:
Some scholars are of the view that it is permissible to abort the fetus before forty days, and others are of the view that it is haraam (prohibited).
Among those who regard it as permissible, Ibn al-Humaam al-Hanafi said in Fath al-Qadeer (3/401): Is it permissible to abort it after becoming pregnant? It is permissible, so long as no features have begun to appear.
It may be that what they meant by features appearing is when the soul is breathed into the fetus, which happens after one hundred and twenty days of pregnancy. Or it may be that what they meant is the appearance of features even though the soul has not yet been breathed into it, which does not happen before eighty days of pregnancy, and most likely occurs at ninety days.
In Haashiyat Qalyoobi wa ‘Umayrah (a Shaafa’i book) (4/160) it says: Yes, it is permissible to abort it, even by using medicine, before the soul has been breathed into it, unlike what al-Ghazaali said. End quote.
Al-Mardaawi said in al-Insaaf (a Hanbali book) (1/386): It is permissible to take medicine to abort a nutfah. That is stated in al-Wajeez. Ibn al-Jawzi said in Ahkaam al-Nisa’: It is haraam. It says in al-Furoo’: The apparent meaning of the words of Ibn ‘Aqeel in al-Funoon is that it is permissible to abort it before the soul is breathed into it. He said: There is some validity in this view. End quote. Shaykh Taqiy al-Deen said: It is better for a woman not to use medicine to prevent the sperm from taking its course. End quote.
Among those who do not allow it, al-Dardeer said in his commentary on Khaleel (a Maaliki book) (2/266): It is not permissible to expel the maniy from the womb even if that is before forty days, and once the soul has been breathed into it, it is haraam according to consensus. End quote.
Al-Ramli said in Nihaayat al-Muhtaaj (a Shaafa’i book) (8/442): al-Muhibb al-Tabari said: The scholars differed concerning the nutfah before forty days, and there are two views. It was said that it is not proven that it comes under the same ruling as abortion and infanticide, and it was said that it is protected and it is not permissible to harm it, and it should not be expelled after it has settled in the womb, unlike ‘azl (coitus interruptus) which occurs before it reaches the womb.
Al-Ghazaali referred to this matter in al-Ihya’ and said, stating that ‘azl is unlike the former case: This is not like abortion and infanticide because those are offences against a living being. The first stage of existence is when the sperm reaches the womb and mixes with the woman’s water, so harming it is an offence. If it has become an ‘alaqah or a mudghah, then the offence is more serious, and if the soul has been breathed into it and it has become a human being then the offence is even worse. Then he said: It is unlikely that it is not forbidden. End quote.
To sum up, the scholars’’ differed concerning this issue, so you should not do that unless there is a good reason, so that you will avoid falling into haraam (prohibited) and will be on the safe side with regard to your religious commitment.[24]
In the next parts of this series, we will discuss abortion rulings according to Islam, why women go for abortion and abortion amongst Muslim women.
In the next parts of this series, we will discuss abortion rulings according to Islam, why women go for abortion and abortion amongst Muslim women.
Stay tuned..
[18] Islam and Abortion; Shafi A. K. Lodhi