abortion and islamic law

7/30/2019 Abortion and Islamic Law

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The Rules for Abortion and Causing MiscarriageIsqt-i-Haml and Isqt-i-Janin in the Pakistan Penal Code

Fatw Issued For Virtual Sharah Court

Imran A. Nyazee Version [email protected] January 3, 2013Cite as: VSCF-2 (2012)

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2 T F: T V J . . . . . . . . . . . . . . . . . . . 22.1 Ab Bakr al-Ksns Text (Translation) . . . . . . . . . . . . . . 22.2 The View of Other Jurists . . . . . . . . . . . . . . . . . . . . . . 9

3 T I F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 A R . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

4.1 Nufah, Alaqah, Mughah and R . . . . . . . . . . . . . . . . 114.2 Is there life in the mughah? . . . . . . . . . . . . . . . . . . . . 154.3 Is Abortion an Intentional Killing of the Child in the Womb? . 15

5 P W L I--H I--J. . . . . . . 176 T R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17A T S P P C . . . . . . . . . . . . . . . . 18

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The Pakistan Penal Code deals with the issue of causing miscarriage/abortion in338, 338A, 338B, and 338C. The two offences dealt with are isq aml andisq jann. The distinction between the two offences is based on whether or notthe organs of the baby in the womb are formed. The sections do not specify whenthe organs are formed. The offences, as defined, apparently follow the texts of thejurists of the anaf school. The sections also provide for punishment in the formof imprisonment, which is something that the texts of the jurists do not talk about.Further, the jurists do not, for obvious reasons, distinguish between intentional

and unintentional causing of miscarriage in the situation under consideration.The PPC follows suit with what may not be the right thing to do, that is, theimposition of strict liability. In addition to this, neither the texts of the jurists northe sections of the PPC mention the time at which life (apparently r) is breathedinto the child in the womb. This, however, is an issue that is vigorously debated,on the basis of verses of the Qurn and traditions, by those writing on the issueof abortion.In this fatw, we will treat the texts of the jurists as the facts of the case. Atranslation of al-Ksns organized text will be provided followed by the views of

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other jurists. After this, the issues to be discussed will be framed. An analysis ofthe rules and presumptions will then follow. Finally, a ruling will be provided.

2 T F: T V J

2.1 Ab Bakr al-Ksns Text (Translation)

2.1.1 Introductory Remarks

1. The word jinyt as used in Islamic law covers both crimes and torts, thatis, offences and civil wrongs. Offences and civil wrongs are treated and analyzedseparately, but only after classifying them as one unified category. This classi-fication is, therefore, somewhat different from modern law in which crimes andtorts are kept separate. Even in the law, this separation is sometimes consideredunjustified as certain torts are also criminalized, and there may be other reasons

too for abolishing the distinction. Our purpose here is only to point this out so thatthis form of classification should not cause onceptual problems for the reader. 2. In this document, we will first translate al-Ksns text on Jinyah Againstthe Jann. This will be followed with the views of other jurists and an analysis ofthe various opinions to arrive at the rules for causing abortion and miscarriage.The meaning of the term jann, as well as other terms used by the jurists, willbecome clear as we move through the discussion.

2.1.2 The Meaning and Types ofJinyt

3. Al-Ksn begins the Book of jinytwith the following introduction: Jinyahis essentially of two types: jinyh against animals and inanimate things; and

jinyah against human beings. As for jinyah against animals and inanimatethings, it is of two types as well: ghab(usupration/misappropriation/abduction)and destruction (of property). We have already discussed each of these in theBook of Ghab. This book is designed specifically for identifying the legal position(ukm) of jinyah against a human being. We, therefore, sayand with Allah liesall success.

.

Jinyah against a human being is basically of three types: jinyah against lifein the absolute sense; jinyah against what is less than life in the absolute sense(limbs and body parts); and jinyah against what is life in some senses and not inothers.


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.Offences/Torts

Animals and

Inanimate Property

.

Usurpation

abduction

.

Destruction

.

Human Being

.

Life in the

Absolute Sense

.

What is less

than Life in the

Absolute Sense

.

Life in some

senses but not

in others

We may now turn to the translation of al-Ksns text on causing miscarriage. Hesays:

2.1.3 The Text on JinyahAgainst the Jann

4. As for jinyah against what is life in some respects and not in others, whichis the jann, it is like someone striking at the belly of the pregnant woman and shedelivers thejann; this invokes legal rules. The general statement about this is thatthe jann may: (1) either be [a] free [person], where the female is a freewoman, or isa slave girl who has conceived her masters child, or has conceived from a personwhom she married deceptively (posing as a freewoman); or it is a slave. Again,the woman may have delivered it dead or alive. If it is a freeperson and has beendelivered dead, then there is liability for the ghurrah (reparation for this offence).The discussion of the ghurrah is spread over several points: the description of itsobligation, its description and estimation, the description of who will pay it, andthe description of the person for whom it is paid.

5. As for the first, the ghurrah becomes obligatory by way of istisn.1

Analogydictates that there is no liability for the agressor. The reason (for the analogy) isthat it is probable that there was life (in the fetus) at the time of striking, and it isalso probable that no life had been created in it as yet. Compensation, therefore,cannot be imposed on the basis of (such) doubt. It is for the same reason that nocompensation is awarded in the case of the jann of animals, except for the loss (inthe value) of the animal itself, and this is the same case. Nevertheless, the juristsgave up this analogy on account of the sunnah, which is related by Mughrah ibnShubah (God be pleased with him), who said: I was among two females whenone of them struck the other with a tent-pole.2 The woman delivered a lifeless

jann and then died. The Messenger of Allah (pbuh) imposed the payment of diyah(blood-money for life) by the qilah of the female offender, as well as the paymentof ghurrah. 6. It is related from Sayyadn Umar (God be pleased with him) that a dis-pute was brought to him in the case of an aborted jann. Sayyadn Umar (Godbe pleased with him) said: I beseech you in the name of Allh, have you heard

1. Istisn is a method of legal reasoning by means of which the analogical or logical conclusion isgiven up as it is opposed by a stronger evidence. In this case, the stronger evidence is a traditiondue to which the use of our reason is turned down.

2. Or a tent-peg or a rolling-pin.


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anything from the Messenger of Allh (pbuh) about this matter. At this Mughrah(God be pleased with him) stood up and said, I was among two females, andhe related the above report. Within it he said, The uncle of the jann stood up

and said, He knows better. The father of the female who had struck stood up andsaid, How can we pay the diyah of one who did not let out a sound or cry, nor didhe drink or eat. The blood of such a thing goes waste. The Prophet (pbuh) said, Isthis the prose of a soothsayer? The words prose of the villagers are also narrated.In it there is aghurrah: a male or female slave. Umar (God be pleased with him)said to him, Who witnessed this with you? At this Muammad ibn Salamahstood up and testified. Sayyadn Umar said, We were about to decide on thebasis of our own opinion, but there is a sunnah of the Messenger of Allah (pbuh)on this. This incident is also related by Hammal ibn Mlik ibn al-Nbighah.

7. The reason is that if the jann was alive the aggressor caused the loss ofits life, and causing loss of life amounts to homicide. If it was not alive, then he

prevented the occurrence of life and is, therefore, liable for compensation, just likethe person marrying (that is, the slave girl) by deception prevents the occurrenceof slavery in the child for which liability for compensation is imposed on him. Itdoes not matter whether the form was complete or incomplete, because the Prophet(pbuh) awarded the ghurrah and did not elaborate. This indicates that the ruledoes not vary due to this (complete form). If nothing is visible with respect to itscreation (form), then there is no liability in this, because it is not ajannand is justan embryo. It does not matter either whether the jann was a male or female. Thereason is that due to the non-appearance of the created form it becomes difficultto distinguish between male and female, thus, the consideration of gender in thiscase is dropped.

8. As for the elaboration of the meaning ofghurrah, it is a male or female slave.This is what Ab Ubayd, an expert in language, said. Likewise, the Messenger ofAllah (pbuh) elaborated it in the same sense in the tradition that we have narrated.Thus, the Messenger of Allah (pbuh) said, In it there is aghurrah: a male slave ora female slave, deeming ghurrah a male or female slave. It was narrated that he(pbuh), Awarded aghurrah in the case of a jann as a male or female slave or fivehundred. This tradition became a commentary for the earlier report, therefore,the term ghurrah, in the terminology of the law, became the name for a male orfemale slave having a value of five hundred or valued at five hundred.

9. Thereafter, the fixing of ghurrah at five hundred is the opinion of our com-panions (anafs) (God bless them). According to al-Shfi (God bless him) it is

determined as six hundred. This is a sub-rule of what we have mentioned in whathas preceded. The reason is that they agreed that the obligation is one-half often percent of the diyah. According to him (al-Shfi), diyah is fixed at 12000,therefore, one-half of ten percent of this is six hundred. The evidence adducedfor the validity of our opinion is that in some narrations the Prophet (pbuh) isreported to have decided that the ghurrah is a male slave, or a female slave or fivehundred. This is explicit on this issue.

10. As for the elaboration of the person for whom the payment of the ghurrahis obligatory, (we say that) it is obligatory on the qilah, due to the tradition we


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have related, that is, The Messenger of Allah (pbuh) imposed the payment ofdiyah(blood-money for life) by the qilah of the female offender, as well as the paymentof ghurrah. It is also related that the qilah of the of the woman who struck the

blow said, Should we pay the diyah of one who did not let out a sound or cry, nordid he drink nor eat. The blood of such a thing goes waste. This indicates thatthe decision was to make them liable for the diyah insofar as they associated thiswith themselves by denying it. Further, it is in lieu of a life, therefore, it is imposedon the qilah, as in the case of the diyah.

11. As for the person to whom it is paid, it is the inheritance of the heirs ofthe jann, according to the farid (shares) fixed by Allah, the Glorious and theExalted. This is so according to most jurists. Mlik (God bless him) said thatthe payment is not to be be inherited and is for the mother alone. The reasoningadopted by him is that the jann has the same legal status as one of the otherbody parts of the mother. Accordingly, it is a jinyah against the mother. The

arsh (fixed compensation) is to be paid to her as in the case of her other limbs. We(anafs) maintain that the ghurrah is a counter-value (compensation) for the lifeof the jann, and a counter-value for life becomes inheritance like the diyah. Theargument that it is a counter-value for the life of the jann, and not a counter-valuefor a constituent part like other parts of the mother, is that the obligation in the

jann of the umm al-walad (slave girl bearing the child of the master) is the sameas the obligation for the jann of a freewoman. There is no disagreement in thisthat the jann of the umm al-walad is an independent part. Had it been given thestatus of a constituent part of the mother, it would have been a free part of themother when all her other parts were those of a slave. This is not (legally andlogically) permitted.3

12. The evidence for this is that the Prophet (pbuh) awarded the paymentof diyah for the mother, to be paid by the qilah, along with the award of thepayment ofghurrah. Had it (thejann) been assigned the meaning of a constitutentpart of the mother, the jann would not have been given a separate award, ratherthe ghurrah would have been included in the mothers diyah. For example, ifthe mothers hand had been cut and she had died, the diyah of the hand wouldbe included within the diyah for her life. Likewise, when the qilah refuted thebearing of the diyah (of the child) in this case, and said, Should we pay thediyah of one who did not let out a sound or cry, nor did he drink nor eat. Theblood of such a thing goes waste, the Prophet (pbuh) did not say to them that Ihave imposed this on the woman inflicting the stroke on the woman victim andnot due to the offence against the jann. Had the obligation of paying arsh forit been on account of its being a constiutent part of the mother, the objection ofthe qilah would have been removed (in any case), on the basis of what we havesaid. This indicates that the payment of the ghurrah become obligatory due to theoffence against the jann and not on account of the offence against the mother. It

3. Today, many people will not appreciate this argument, as slavery no longer exists, but it isessentially sound for those times and for a uniform development of the law without internalinconsistences. We may have something to say about this later.


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was, therefore, an independent acknowledged offence in itself and not due to thatagainst the mother.

13. The offender does not inherit any part of the ghurrah. The reason is that he

has committed unjustified homicide, and unjustified homicide becomes the basisfor the exclusion from inheritance. There is, however, no kaffrah for the strikingoffender, because the Prophet (pbuh) on awarding the ghurrahagainst the offenderdid not mention kaffrah, even though the situation was one that needed furtherexplanation. Had expiation been obligatory he would have elaborated this. Thereason is that the obligation is related to homicide, but other attributes could notbe identified in the jann with respect to faith and unbelief, in reality or legally.Allh the Exalted has said, And whoever kills a believer by mistake, it is ordainedthat he should free a believing slave, and pay compensation to the deceasedsfamily, unless they remit it freely.4 He has also said, If he belonged to a peoplewith whom ye have treaty of mutual alliance, compensation should be paid to his

family, and a believing slave be freed,5

that is, if he is killed and nothing is knownabout his death. The reason is that nothing is known about his life, and so alsohis faith and unbelief, in reality or legally.

14. As for the reality, there is no doubt that these attributes are absent, becausefaith and unbelief cannot be realized in the case of a jann. The same applies tothe legal position, because all this is possible through life, and its life could not beidentified. Further, kaffrah (expiation) is a matter of determined amounts anddetermined amounts are not known on the basis of opinion and ijtihd (rational-ization), rather they are known through reliance on the texts, and these are theMighty Book, the Sunnah and Ijm. Nothing with respect to this (expiation) is tobe found in the case of the jann that was delivered dead, therefore, kaffrah is

not to be made obligatory. Further, its obligation is related to (the taking of) life inthe absolute sense, while the jann is life in some senses and not in others. Thisis based on the argument that a complete diyah is not imposed for (destroying) it.In addition to this, the stroke that resluted in the loss of life (of the mother) wouldbe indirect homicide and not direct (in the case of the jann). Indirect homicide(due to indirect causation) does not give rise to the payment of kaffrah, like thedigging of a pit and so on (when someone accidentally falls in it).

15. Muammad (ibn al-asan al-Shaybn), God bless him, said that thereis no kaffrah for the striking offender even if the jann was delivered with fullyformed organs, unless the offender wishes to do so voluntarily as that is better;but it is not obligatory on him according to us. He should seek nearness to Allah,the Glorious and Exalted, by doing so with whatever he likes if he has the ability.He should seek repentence from Allah, the Praiseworthy and Exalted, for what hehas brought about. This is the view of Ab Ysuf (God bless him), and our view.This is how Muammad, God bless him, has mentioned it. The reason is that hehas brought about a prohibited act and it is recommended that he seek nearnessthrough kaffrah for erasing it.

4. Qurn 4:925. Qurn 4:92


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16. The above is the case when she delivered it dead. If, however, she deliversit and it is alive and then dies, then there is a full diyah (to be paid) from whichthe striking offender does not inherit anything, and is also liable for kaffrah. As

for deprivation from inheritance, it is based on what we said. As for the obligationof (full) diyah and kaffrah, the reason is that as it emerged alive and then died,it became known that it was alive at the time of the blow. The striking of the blowled to the killing of a living person; this takes the meaning ofkhaa (by mistake;manslaughter), and for this diyah and kaffrah are imposed.

17. This is the case when a single jannis delivered. If she delivers two and bothare dead, then for each one of them there is one ghurrah. If they were both aliveand then died, then for each one there is (separate) diyah, due to the presence ofthe cause of obligation for each one of them, and that is destruction (of life). Hekilled them, however, with a single blow, and one who kills two persons with asingle blow is liable for paying compensation for each one of them. It is as if he

killed each one of them with a separate blow, as in the case of two grown persons.If she delivers one of them as dead and the other alive, and then the one livingdies, then he is liable to pay a ghurrah for the one born dead and diyah for theone born alive, due to the existence of the cause of obligation of the ghurrah forthe dead jann and the cause of obligation ofdiyah for the jann that was alive (fora while). Thus, causing combined and separate destruction of life in this case areto be deemed the same.

18. If the mother dies from the blow and the jann emerges alive and diesthereafter, then he is liable for the payment of two diyas: a diyah for the motherand a diyah for the jann, due to the presence of the cause of both obligations,which is the killing of two human beings. If the jann emerges dead after the

mothers death, he is liable for the diyah of the mother, and he has to pay nothingfor the jann. Al-Shfi, God bless him, said that he has to pay ghurrah for the

jann in this case. The legal reasoning for his view is that he killed both of them,and is to be held accountable through compensation for each one of them, just asin the case where twojannsemerged dead and then the mother died. We maintainthat analogy essentially prevents that the (destruction of the) jann be subject tocompensation, on the basis of what we elaborated, along with the probability thatthere was no life in it. Another fact becomes more probable in this case, whetherthe jann died as a result of the blow or whether it died due to the death of themother. We have come to know about the imposition of compensation through thetext, and the text was laid down for a specific situation, which is that it emerges

dead prior to the death of the mother. This leads to the extinction of either one ofthese probabilities. Consequently, the second fact is determined, and that is thenegation of the obligation of amn (compensation) in situations other than this.

19. All the above applies when the jann is free. If it is a slave, and it emergesdead then there is one-half of ten percent of its value if it is a male, and tenth ofthe its value if it is a female. It is related from Ab Ysuf that in the case of the

jann of a slave woman the loss in the value of the mother is to be paid. Al-Shfisaid that a tenth of the value of the mother is to be paid. As for the discussionwith Ab Ysuf, it is based on the basic rule that we mentioned in what has


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preceded, which is whether the compensation to be paid for an offence against aslave is compensation for life or compensation for property. Thus, on the basicpresumption of both (Ab anfah and Muammad) it is compensation for life, so

much so that they said: its value is not to exceed the diyah of a freeman, rather itis to be less. Likewise, it is the qilah that has to bear it. According to Ab Ysuf,God bless him, its compensation is the compensation of property, so that he said:its value is to go up to whatever limit it goes up to, and it is not to be borne by theqilah. Thus, its jann comes to be similar to the jann of an animal. In that case,the liablity is only up to the loss in the value of the mother, and so also here. Asfor the discussion with al-Shfi, God bless him, it is based on whether the jannis to be considered an independent being or as part of its mother. We have alreadymentioned evidences that it is considered an independent being and not as partof its mother, as has preceded. Another evidence for it is that the compensationof the jann of a freewoman is inherited according to the farid (shares) fixed by

Allah, the Powerful and the Majestic. Had it been considered a part of the mother,the compensation would be delivered to her, just as the arsh for one her limbs ispaid to her.

20. If it is established that the jann is to be legally acknowledged for itself,and that the obligation for it(s loss) is amn, then this consideration leads to theconclusion that in the jann of a slave woman, if it (the jann) is a slave, is one-halfof ten percent of its value if it is a male, and ten percent of its value if it is a female.The reason is that the obligation for the free jann is five hundred, whether it ismale or female, which is one-half of ten percent of the diyah of the male and tenpercent of the diyah of the female. Value in the case of the slave is like diyah inthe case of the freeperson. Thus, it makes it binding that the payment in the case

of the slave jann is one-half of ten percent of its value if it is a male, taking intoaccount the rule for the freeman, and is ten percent of its value if it is a female,taking into account the rule for the freewoman. If it emerges alive and then dies,its value is to be paid, on the basis of what we said about the free jann.

21. If she delivers two dead or two alive janns, who then die, then the paymentfor each one of them taken together is the same as what is due taken separately,due to what we have said in the case of the free jann. If she delivers one of themdead and the other alive, who then dies, then for each one of them is due whatis due separately, as has preceded. If the mother dies of the blow and the jannemerges alive after this and then dies, then he is liable for two values: one forthe mother and one for the jann. If the jann emerges dead after the death of the

mother, then he is liable for the value of the mother and nothing is to be paid forthe jann, on the basis of what we said.

22. The rule then is that each case in which a ghurrah is to be paid for a freejann, for the slave jann one-half of ten percent of the value is to be paid if itis a male and ten percent of the value if it is a female. In each case where thewoman beaten is a freewoman the full diyah has to be paid, and in the case ofthe slave woman the value has to be paid. In each case where nothing is to bepaid for the jann there, nothing is to be paid for the jann here, on the basis ofwhat we said with respect to the free jann without any differences. The exception


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is that the obligation in the case of the jann of the slave woman, the payment ischarged from the wealth of the offender immediately, and it is not to be borne bythe qilah. The obligation in the case of the jann of the freewoman is imposed on

the qilah. The reason is that the burden on the qilah is established by the textagainst the requirements of qiys (analogy). The text was laid down for bearingthe ghurrah of the jann of the freewoman, thus, the case of the jann of the slavewoman remains within the original domain of qiys. Allah, the Praiseworthy andthe Exalted, knows what is correct.

2.2 The View of Other Jurists

23. The views of some jurists of the other schools have already appeared inthe above translation by al-Ksn. The Pakistan Penal Code relies on the anaflaw, therefore, we shall confine ourselves to the anaf school. The most authen-

tic and detailed book in the anaf school is al-Sarakhss al-Mabs, which is acommentary on the summarized text of Imm Muammad, and his texts in turnare the first books on Islamic law in its entire history. This shows the authenticityand reliability of these texts. 24. The translation above relies on the statements made in al-Mabs, butal-Ksns text is better organized, therefore, it has been provided in translationform. Nevertheless, we need to slightly amend or refine the statements in thetranslation on the basis of what is stated in al-Mabs. We consider these pointsto be crucial to the discussion that is to follow. 25. Sarkhas says: Thereafter, analogy (qiys) in the case of the jann can beone of two things: First, there is no obligation to pay anything as the existence of

life in it was not identified. The act of homicide is not established except in thecase of the object that is living. Compensation on the basis of doubt cannot beestablished. It is not to be said that it is obvious (hirprima facie) that it is aliveor is ready for life, because the prima facie position is a proof for denying claimsand not for affirming claims. It is on the same basis that it is not made obligatoryin the case of the fetus of the animal. The only thing relevant is the loss (in value)of the mother, if such a loss for the animal is indeed possible. If such a loss is notpossible, no compensation is to be made. Analogy may also dictate that full diyah(blood-money for a living person) be paid, because the person strking the blowprevented the benefit of life in the fetus. He is, therefore, like one who destroyedlife and that leads to compensation. 26. He says further: Thereafter, the water (fertilized ovum) in the womb, aslong as it is not damaged, is ready for life. Accordingly, it is deemed to be life forthe imposition ofamn (compensation) if it is destroyed. This is just like the rulefor treating the hunted eggs, in the case of one in the state of irm, as similar tothe hunted animal for the imposition of the consequence if he happens to breakthem. We have, however, given up (all the above) analogy due to the sunnah, whichis the tradition of Hammal .6

6. Al-Sarakhs, kitb al-Mabs, vol. 26, 87.


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27. We may now summarize some of the important points that emerge from thedescription of the issue by the learned anaf jurists in the most authentic workson Islamic law.

1. Our reason, logic and analogy tell us that there is life right from the timethat the fertilized ovum comes to rest in the womb. This is apparent whenthe woman is pregnant.

2. This apparent analogy or logic tells us that a living human has been destroyedand the compensation meant for a full living human being should be paid.This compensation is a one full diyat.

3. This apparent position does not tell us for sure that at the time of the blowthe child inside the womb was still alive. This creates a doubt, as it does inthe case of animals, and on the basis of such doubt no compensation is paid

for animals and consequently should not be paid for human fetuses. Themeaning here is that for convicting someone of homicide you have be cer-tain and sure that the fetus inside was alive at the time the mother receivedthe blow. If you cannot be sure, the benefit of doubt has to be given to theaccused, and no liability can be imposed.

4. As a result of this doubt, and the uncertainty surrounding the existence oflife in the child in the womb, the jurists discuss a limited set of facts. Thus,they only discuss the situation where the mother has been injured and asa result of this the miscarriage has been caused. This case then is that ofindirect homicide or qat bis-sabab (indirect causation).

5. All the above analogies, regarding the life of the child or otherwise, are givenup in the face of the sunnah, which is a tradition that applies to a womanwho was injured by a blow. If the child is stillborn one-twentieth of the fulldiyah is to be paid. If the child is born alive and then dies the full diyah hasto be paid.

6. In this particular case, as far as the child is concerned, it is not relevantwhether the blow struck was intentional or she was injured by mistake, thatis, mens rea is not taken into account. It is a case of strict liability: compen-sation has to be paid in any case.

7. The jurists (God bless them) do not go into details about the time when life is

breathed into the child in the womb. There are many discussions in modernwritings about the r (soul or life), but the jurists do not mention these. Al-Ksn says that there is no compensation for the mughah (clot, mere lumpof flesh), a word used in the Qurn, but al-Saraksh does not appear to giveit importance. It is obvious, however, that if the jurists draw a distinctionbetween the mughah and the jann on the basis of the formation of organs,the idea of the r must be in the background. We will have more to sayabout all this in what follows to see how far the discussion about the time ofbreathing the r into the child is important.


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3 T I F

28. Consequently, we frame the following issues:

Is the mughah also alive? Do the texts clearly say that no life is possible init?

Do the texts tell us that there is no liability for the mughah? Why was theqilah saying that this type of killing goes waste? Was it the mughah? Thetext said it was a jan{n, but what does it really mean?

What is the basis for the liability when the organs are formed and when theyare not formed? Does it have a legal basis in the texts of the Sunnah or inthe writings of the jurists?

What if the offender, doctor or mother or both, are well aware that the childinside the womb is alive, and yet they go ahead and abort the fetus? Thismeans when there is no shubhah (doubt) about the child being alive insidethe womb.

Will the above case be deemed indirect homicide? Will it be termed khaa?This means, when the doctor or mother know that what they are destroyingis the living child and the purpose is not to harm the mother.

Should additional punishment be awarded by way of tazr? Should addi-tional punishment be awarded in the case of mistake? Apparently, this hasbeen done in the Pakistan Penal Code.

4 A R

4.1 Nufah, Alaqah, Mughahand R

29. We will take up the first issue framed above about the mughahand whetherthere is life in it. Life depends upon the breathing of r into the child accordingto many writers, therefore the idea ofr will also be discussed under this issue.The terminology and ideas have been derived from the texts, therefore, a few ofthese texts will be discussed. As we cannot devote too much space to the issueshere, we will just mention a few verses and two traditions on which the discussionreally rests. The texts are as follows:

: :

: Man We did create from a quintessence (of clay); Then We placed him as (a dropof) sperm in a place of rest, firmly fixed; Then We made the sperm into a clot of


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congealed blood; then of that clot We made a (fetus) lump; then we made out ofthat lump bones and clothed the bones with flesh; then We developed out of itanother creature. So blessed be Allah, the best to create!

This, as is obvious, is a remarkable verse, and that is acknowledged by all. It doesnot matter whether the nufah is interpreted as a sperm or as the fertilized ovumfirmly embedded in the wall of the uterus. Verse 22:5 says almost the same thing.This verse, as compared to the one above, does talk about The Spirit or r.

: But He fashioned him in due proportion, and breathed into him of His spirit. AndHe gave you (the faculties of) hearing and sight and understanding: little thanksdo ye give!The breathing of the Spirit is mentioned, but here it is not clear whether the contextis that of the womb. The same applies to the following verse.

: :

Behold! thy Lord said to the angels: I am about to create man, from soundingclay from mud molded into shape; When I have fashioned him (in due proportion)and breathed into him of My spirit, fall ye down in obeisance unto him. 30. The point being made here is that it is not clear at which stage the Spirit isbreathed into man. It could be when he is fully fashioned and stands erect, unlikeother creatures. There are many views about this and the specialists in Qurnicstudies can comment on the issue. We may now turn to the traditions.

31. The first tradition we may mention is from Abd Allh ibn Masd (R). Itis found in al-Bukhrs a. He said: Allahs Messenger (may peace be uponhim), who is the most truthful and is verified as being truthful, said: The createdforms of one of you are gathered in your mothers belly for forty days; he is thenlike congealed blood (alaqahclot) like the first; after that he is a lump (flesh) likethe previous. Allah then sends His angel to him with four words (decisions). Theangel writes down his livelihood, his death, his deeds, his fortune and misfortune.He then breathes the Spirit into him. (The tradition is lengthy)7

32. The second tradition is from udhayfah ibn Asd al-Ghifr, who said: Iheard the Messenger of Allah (pbuh) saying: When forty-two nights pass over thenufah, Allah sends an angel to it, who gives it form creating his faculties of hearing

and sight, his skin, his flesh, and its bones. He then says: My Lord, will it be amale or a female? Your Lord decrees as He desires, which the angel records. Theangel then says: My Lord, his duration? Your Lord decides as He likes, which theangel records. He then says: My Lord, his sustenance? Your Lord decrees as helikes, and the angel records it. The angel then leaves with the scroll in his handwithout adding to or omitting anything from what was commanded.8

7. Bukhari, vol. 6/351.8. Muslim, a with Nawawis commentary, vol. 16, 19394.


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33. These traditions do not tell us whether the child is a living being right fromthe start, or comes to life at a later stage. The first tradition says that the r isbreathed into the mughah after one hundred and twenty days (if the words like

it mean duration and not the attribute of being gathered in the mothers belly).The second tradition mentions forty-two nights, but does not mention the r orthe breathing of the Spirit. 34. The exact time of the breathing of the Spirit is important for scholarswho discuss this issue, because abortion cannot lawfully be performed after lifeis created, but (possibly) it may be when the fetus does not yet carry life in it. Thediscussion centers around this timing based on the two traditions that we havementioned. There are different views according to the preference of the scholarand the matter cannot be said to be settled. 35. For our purposes, we deem another question to be very important. Thequestion is: what is the r or Spirit? Does it mean life? Does it mean the soul?

Does it mean something else? Two well known scholars have dealt with the issuein detail. One is an earlier scholar, the author of the famous Tafsr Kabrand a veryimportant book on ul al-Fiqh, al-Rz. The other is a more recent scholar calledAls. We will mention the different meanings of r according to the discussionfound in al-Rzs text. The discussion is found under the commentary of theverse in which the question is raised: They ask thee concerning the Spirit. Say:The Spirit is of the command of my Lord: of knowledge it is only a little that iscommunicated to you, (O men!). 36. Imm Fakhr al-Dn al-Rz, after discussing issues like whether the r iseternal or created, whether it is possible for the human mind to grasp its meaning,says that there five other views concerning the meaning. These are stated brieflyas follows:

Rmeans the Qurn. He gives a number of arguments for this, but we

will mention two verses. And thus have We,

by Our Command, sent inspiration (R) to thee.9

He doth send down His angels with inspiration (R) of His Command.10

R is one of the angels. The Day that the Spirit

and the angels will stand forth in ranks.11

R is that which is the cause of life. This meaning is based on humanconclusions and reasoning.

Ris Jibrl (pbuh). This is the meaning in the verse under discussion, thatis, they ask thee , and also Verily this is a Revelation from the Lord of the

9. Qurn 42:52.10. Qurn 17:2.11. Qurn 78:38.


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Worlds: With it came down the Truthful Spirit.12 She placed a screen (toscreen herself) from them; then We sent her Our angel (R), and he appearedbefore her as a man in all respects.13 (The angels say:) We descend not

but by command of thy Lord.14 This is about Jibrl (pbuh).

Rapplies to beings other than angels. Human conclusions.

From the above we can only conclude, relying on the words of the Qurn: Ofknowledge it is only a little that is communicated to you, (O men!), that onlyAllah knows what the term r means in the context of the baby in the womb.It could be a special gift given by the Almighty to each human being at the timeof his birth or creation. The gifts bestowed by the breathing or the r may bethe real distinction between humans and other creatures, who have life. It maybe something like the saying of Immanuel Kant: Two things fill me with awe: the

starry skies above and the moral law within. Allah knows best. 37. The above discussion shows that there is no conclusive evidence to provethat the term r applies to the cause of life. It is clear, however, that it is some-thing that Allah bestows on a child who is about to be born. What it is we do notknow. Consequently, we do not know that human life is created in the motherswomb much later than the time of conception. It might be safe to conclude thathuman life is created with the meeting and merging of the genetic material of themother and the father. This could be the conclusion that led the great Immal-Ghazl to say:

Thisthat is, abstentionis not like abortion (ijh) or burying a new-

born (girl), because this (abortion) is a crime against something that ispresent and attained. This too has has stages, and the first stage ofexistence is that where the sperm enters the womans womb and com-bines with the womans water, getting ready for the acceptance of life. Itsdestruction is an offence. If it turns into amughah and then an alqah,the offence becomes aggravated. When the r is breathed into it andit begins acquiring a form, the offence becomes more brazen (grievous).The final gravity of the offence is attained when it is commited againstthe living separated being.15

It appears that he believed in the existence of the soul, but he could not deny that

even the first stage is actually life or is preparation for life. The Mlik jurists arevery strict in prohibiting ijh.16 There are some stray opinions in Ibn bidnsHshiyah that permit ijh, but they appear to tbe unreliable.

12. Qurn 26:193, 19413. Qurn 19:17.14. Qurn 19:6415. Imm al-Ghazl, Iy, vol. 2, 735.16. Hashiat al-Dusuqi 2/237; Ibn Jazzi, al-Qawnn al-Fiqhiyyah, 235.


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4.2 Is there life in the mughah?

38. We now come to the issue of the liability for the mughah. The issue turns

on whether or not there is life in the mughah? This in turn depends on whetherthe r breathed into the child in the womb is the cause of life. In the abovediscussion, we have established that there is no conclusive proof that the r isthe cause of life. This does not prevent people from believing that there is a souland so on. That, however, is the world of feeling and faith. The law, on the other,hand looks for proofs beyond reasonable doubt to hold a person liable. Further,taqld in matters of faith and belief is not permitted, and is only permitted for thelaw. 39. The texts discussed so far do not tell us much about the presence of life inthe mughah, as has already been discussed. We may, however, look again at thetradition on the basis of which the jurists gave up analogy. The tradition does notspecify whether the fetus was amughahor ajannwith formed limbs. In fact, thestatement of the qilahthe father of the offendersaid: How can we pay thediyah of one who did not let out a sound or cry, nor did he drink or eat. The bloodof such a thing goes waste. The Prophet (pbuh) turned this down as village talk.This raises the possibility that the stillborn could have been amughah. It is truethat the word jann has been used in the tradition, but the word in its literal sensecan mean any stage, even the embryonic. The fine legal distinctions drawn by thejurists (God bless them) for legal terms is a later development and cannot affectthe plain terms of the tradition. Had the tradition fixed the meaning of the term

jann, as it does in the case of rib for example, it would have become a technicalmeaning on the basis of the tradition; but this is not the case here. 40. The conclusion to be drawn then is that one-twentieth of the diyah is to be

paid for any kind of miscarriage caused indirectly, and the formation of limbs isnot a decisive factor. This widens the liability for indirectly causing miscarriage,but that is what we are compelled to conclude on the basis of our reasoning. 41. This disposes of the issues at No. 2 and No. 3. We may now turn to thediscussion of the issue of modern day abortions.

4.3 Is Abortion an Intentional Killing of the Child in the Womb?

42. In the discussion above we have shown that the rules for thejannderived bythe learned jurists were only for the case of indirect causation where the mother isattacked and injured and as a consequence the miscarriage is caused. We now face

a situation where the mother of the child wishes to get rid of the child conceivedin her womb. A physician or some person is going carry out her wishes. 43. In this case, it is safe to assume that offenders, doctor or mother or both, arewell aware that the child inside the womb is alive, and yet they go ahead and abortthe fetus. Today, there are scientific instruments and methods to know whetherthe child in the womb is living or dead. If it is dead, and proof is recorded by thedoctor, it becomes necessary to save the mother and abort the fetus. Where thereis scientific proof that the child is alive, the case acquires a completely differentnature, different from the issues discussed by the jurists and explained above.


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44. The differences between this case and the case discussed by the jurists areobvious. In that case, it was the mother who was attacked and the child was lostas an indirect consequence. In this case, it is the child itself who is under attack

by persons who wish to terminate its life. There is no shubhah (doubt) of any kindabout the child being alive inside the womb in this case, whereas in that caseits being alive at the time of the blow was in question. In that case, the offenderintended to injure the mother and not the fetus. In this case, the offenders are fullyaware that the child is alive and they have full mens rea or intention to destroy thedefenseless and helpless child. Killing a living human being amounts to murderorqatl amd, as the jurists have acknowledged above. 45. The penalty for murder is qi. When qi cannot be implemented dueto lack of perfect equality, diyat is imposed. We have concluded above that thetradition taken into account by the jurists does not apply to this case as this isthe case of intentional homicide, while that was a case of indirect causation. In

that case, our logic said that either nothing should be awared or a full diyat shouldbe awarded, but this human reasoning was overturned by the noble Sunnah andone-twentieth of the diyah was imposed. We have reached the same stage, that is,whether our own qiys is to be followed or whether the sunnah is to be applied tothis case. The rule in the anaf school, as well as other schools, is that the textshave to be given effect as far as possible. We must, therefore, give up our analogyand impose the ghurrah as required by the Sunnah. The standard mentioned byImm al-Ksn is considered to be the basis of this reasoning and that is: lifein the womb is life in some senses and not in other senses. He also mentionsprevention of life and the payment of ghurrah for doing so. In addition to this,he makes a crucial observation, It does not matter whether the form was com-plete or incomplete, because the Prophet (pbuh) awarded the ghurrah and did notelaborate. This indicates that the rule does not vary due to this (complete form). 46. On the same reasoning, if the life of the mother is threatened and has to besaved, it is the mother that will be saved, as she represents life in the full sense,while the jann is life in some senses and not in others. Nevertheless, it is theintentional taking of life of the child, therefore, the mother must pay the ghurrahto the heirs. It is somewhat similar to the case where a person under duress ispermitted to consume anothers property to save his life, but compensation has tobe paid later to the owner. 47. In the case of the tradition, no tazr was awarded to the offender by thesunnah, and the only liability was the imposition of the ghurrah. As this case isthat of intentional destruction, the imm (ruler) at his discretion may award anadditional penalty under his siysah jurisdiction. This may be thirty-nine stripesfor both the physician and the mother of the destroyed child to be awarded in apublic square next to the main mosque. This will be adequate for purposes ofdeterrence and prevention. It will also be adequate for the rehabilitation of theoffenders. Imprisoning people at public expense is not the remedy preferred byIslamic law. The Prohibition of Whipping Act, 1966 prohibits this in Pakistan,however.


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5 P W L I--H I--J

48. The rules laid down by the jurists prescribe the payment of the ghurrah

for the indirect causation of miscarriage. For purposes of this payment, intentionis not taken into account, as the compensation is for the loss caused. The foursections in the Pakistan Penal Code, lay down the same rules for isqt-i-aml andisqt-i-jann. In addition to this, the sections also prescribe punishment by way ofimprisonment. Like the rules of the jurists, the sections ignore intention in certaincases. In other words, there is strict liability for both financial compensation aswell as the punishment of imprisonment. It is to be noted that the rules of thejurists, based on the tradition, do not prescribe any punishment in addition to thepayment of the ghurrah. 49. Thus, if a woman is travelling in a car and there is an accident with anothercar, as a result of which miscarriage is caused, the driver of the other car will

not only be liable for the payment of one-twentieth of the diyah, but can also bepunished with imprisonment. This is incorrect. There should be no punishmentfor causing accidental miscarriage or even in the case of indirect causation wherethe intention was to harm the mother and not the child. According to the sections,this will be miscarriage caused without the consent of the woman. 50. The section on isq-i-haml does not impose a financial penalty, but pro-vides punishment in the same way as above. Two changes need to be made in thissection too. First, one-twentieth diyah should be imposed in this case too. Sec-ond, no punishment should be provided for accidental miscarriage or one causedthrough indirect causation. 51. It is, therefore, necessary that two separate categories should be madefor this law. The first should impose one-twentieth of the diyah for all cases ofcausing miscarriage that are without the consent of the woman, and where thewoman is harmed and the intention is not to hurt the child. No distinction needsto be made on the basis of the formation or non-formation of organs. The act ofcausing miscarriage in this case should not be criminalized. The second categoryshould be the case of the intentional causing of miscarriage, whether it is withthe consent of the woman or without her consent. One-twentieth diyah shouldbe imposed in these cases too along with punishment. No distinction needs to bemade on the basis of the formation or non-formation of organs.

6 T R

The following rules emerge:

The ghurrah or one-twentieth of the diyah is to be paid in all cases of mis-carriage (isq), whether of the aml or of the jann.

In cases of the intentional causing of miscarriage, punishment, in additionto the ghurrah, may also be provided as tazr under the siysah jurisdictionof the ruler.


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When abortion is carried out in the case of necessity, to save the life of themother, aghurrahor one-twentieth of the diyah has to be paid by the mother.

Allah knows best.

Given under my hand, this 1st day of January, 2013.

Imran Ahsan Khan NyazeeSafar 18, 1434

January 1, 2013 January 3, 2013

A T S P P C

17

338. I-- ( ) Whoever causes a woman with child whose organshave not been formed, to miscarry, if such miscarriage is not caused in good faithfor the purpose of saving the life of the woman, or providing necessary treatmentto her, is said to cause Isq-i-aml.Explanation.A woman who causes herself to miscarry is within the meaning ofthis section.

338A. P I--.Whoever causes isq-i-aml shall be liableto punishment as tazr

(a) with imprisonment of either description for a term which may extend to threeyears, if isq-i-aml is caused with the consent of the woman; or

(b) with imprisonment of either description for a term which may extend to tenyears, if isq-i-aml is caused without the consent of the women:

Provided that if as a result of isq-i-aml any hurt is caused to the womanor she dies, the convict shall also be liable to the punishment provided forsuch hurt or death as the case may be.

338B. I--J ( ).Whoever causes a woman with child some ofwhose limbs or organs have been formed to miscarry, if such miscarriage is notcaused in good faith for the purpose of saving the life of the woman, is said tocause isq-i-jann.

Explanation.A woman who causes herself to miscarry is within the meaning ofthis section.

338C. P I--.Whoever causes isq-i-jann shall be liableto

(a) one-twentieth of the diyat if the child is born dead;

17. Subs. by Act II of 1997, 7 (including sub-sections till 338F).


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(b) full diyat if the child is born alive but dies as a result of any act of the offender;and

(c) imprisonment of either description for a term which may extend to sevenyears as tazr:

Provided that if there are more than one child in the womb of the woman,the offender shall be liable to separate diyat ortazr, as the case may be, forevery such child:

Provided further that if, as a result of isq-i-jann, any hurt is caused tothe woman or she dies, the offender shall also be liable to the punishmentprovided for such hurt or death, as the case may be.

abortion and islamic law

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