Abortion in Islamic Law
A Brief Description of the Question:
Consider yourself a Muslim judge working in the Islamic judicial system. You are asked to rule on the legal status of abortion. How would you proceed?
The Answer:
People are encouraged to have children in the hadiths having the meaning “The auspicious of your women is the one who is capable of having children”. “ The child’s odour is from the Heaven’s odour” and “Favourable child is heavenly light in the world, and joy in the hereafter.”
Giving so much importance to this subject, our religion protects the child in the uterus till the child is born and burdens some responsibilities to the parents. It doesn’t’ permit to terminate the existence of the child in the uterus called “fetus” by propounding arbitrary and fictitious reasons although there is no real reason. It considers the ones performing such a crime as “murderers”. Because, “the fetus” is counted as a human being.
As a fetus is considered as a human being after it is animated; having a miscarriage, that is, having an “abortion” in medicine terminology is like killing an adult person. If the fetus isn’t animate yet, since having an abortion, in this case, is deemed as preventing an innocent from coming into the world, then again it implies a serious responsibility. The late Umar Nasuhi describes the women making such a mistake to maintain their beauties like that:
“The women committing such a murder for the desire to protect the beauty and freshness granted to them in the pure youth age are the ones with a brutish nature. Doesn’t such a hard-hearted mother have a lower essence than a wild beast eating her infant while it is alive?
Sentencing the ones committing abortion to the punishment of “reproving”, the Islamic Law takes preventive measures as far as possible. However, it also points out the permissible aspect of abortion and the course of action when abortion relies on a real reason.
We can summarize the matter in this way by taking the Dictionary of the Islamic Jurisprudence Terminology (Istılahat-ı Fikhiyye Kamusu) as a basis:
Aborting a fetus isn’t counted as a murder and it doesn’t entail any physical or spiritual responsibilities if there is a certain excuse or necessity. That is:
Because of a sanitary reason, that affects his mother’s health, a fetus whose limbs can not be recognized yet can be aborted as a result of a medical inspection, examination and diagnosis.
There is also such an explanation:
If a woman becomes pregnant while she has a sucking baby, and mmeanwhile,if her suck lessens gradually and her baby gets hungry because of the deficiency of suck, and if the family doesn’t have the opportunity to employ a foster mother and the baby will become sick and will die, then it is permissible to have a miscarriage. Because, in this case, the fetus isn’t counted as a formed human being but a bit of flesh or a blood-clot. However, the born baby in arms is a living human. In this respect, there is no drawback in having an abortion to protect the living baby. (Dictionary of the Islamic Jurisprudence Terminology, 3: 145-149.)
Applying any kinds of methods to prevent pregnancy without giving any harm to the woman is permissible. But this method mustn’t terminate the insemination evermore. But if a fetus has come into existence, it is not the same case. According to Ghazali and many of the Maliki scholars, committing abortion without a serious excuse is religiously forbidden (haram) even if occurs in the first days of the fetus.
According to some Islamic jurists, abortion is permissible before 42 days pass over the fetus. We say 42 days because according to the rumor of Muslim, after 42 days pass over the sperm (nutfe), Almighty Allah sends an angel to it, He gives a shape to it and He begins to form its ears and eyes. In short, after 42 days pass over the fetus, it gets into a shaping progress and so interfering in it isn’t permitted. (Halil Gönenç, Fatwas for The Current Matters II. 326.)
After that period, having an abortion isn’t permitted. Because, a fetus having partially recognizable limbs is counted as a human being. To abort such a fetus is the same as killing a living person.
Besides the permission discussed above, especially now, children can be nourished without being in the need of suck. Therefore, if the child can eat baby food and his family is able to afford these expenses, it is convenient not to commit an abortion. But if the child gets sick and becomes thinner and also has a vital danger when he is weaned, then the permission discussed above can be used of. But every family must take into account its own opportunities and conditions before making use of the judgment above.
Moreover, parents can take less dangerous precautions like removal and birth control methods till their child is weaned so that there will be no need to unwanted methods like abortion.
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