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An Islamic Discourse

The Population Research Institute has periodically presented the views of various religions on aspects of the population control movement. This issue of PRI Review will present the views of Islamic scholars on these issues for the information of our readers. An extract of a report by Azizah al-Hibri, J.D., Ph.D., relating to Islamic principle will open the article, followed by the testimony of Dr. Ahmad al-Kadi, a physician and president of the Institute of Islamic Medicine for Education and Research, presented at the Population Research Institute conference held in New York during the month of April 1994. Dr. Hassan Hathout, a particularly noted and well-respected Islamic scholar, is the author of the article on abortion. PRI Review is publishing Dr. Hathout ‘s article with his kind permission It is the intention of the Population Research Institute to reproduce the authentic words of these scholars as accurately as possible. These views are those of the authors and do not necessarily reflect the views of the Population Research Institute. The Editor.

Azizah al-Hibri, J.D., Ph.D.

During the Third PrepCom meeting at the United Nations in April 1994, the Steering Committee of the International Conference on Population and Development (ICPD) hosted a panel on “Religious and Ethical Perspectives on Population Issues.” Azizah al-Hibri, J.D., Ph.D., a professor at the University of Richmond, presented an overview of Islamic Jurisprudence on family planning and abortion. Dr. al-Hibri emphasized the importance of “correct1y analyzing arguments and factors…in light of all relevant communal…and individual factors.” She also stressed the necessity of formulating analysis “free from all forms of compulsion and coercion, whether conscious or subconscious, individual or organized, including that of targeted advertising campaigns.”

The sources of the jurisprudential principles referenced by Dr. al-Hibri are the Qur’an; for cases not explicitly addressed in the Qur’an, reference is made to the sayings of the Prophet (his “Sunnah”) and the ijtihad, which is “the ability to analyze a Qur’anic text or a problematic situation within the relevant cultural and historical context and then devise an appropriate interpretation or solution based on a thorough understanding of Qur’anic principles and the Sunnah.”

The fundamental principles of ijtihad include: “Laws change with changes in time and place; choosing the lesser of two harms; and preserving public interest.” In the section of this work which discusses abortion, Dr. al-Hibri defined personal conclusions regarding “any one of these issues” as “a matter of personal conscience” under the principles of itjihad.

Within the “total picture” the Prophet’s “exhortation to multiply” and “the Qur’anic prohibition of infanticide” do not necessarily lead to the “conclusion that contraception, or even abortion, is prohibited.” Historically, the “majority view of the Muslim scholars on contraception has been that it is permissible with the wife’s consent, though perhaps disliked (makruh) in certain cases.” The motivation of avoiding poverty through the use of contraception “does not infringe on the right to life of a born human being” but is aimed at preserving “a dignified quality of life for those already born.” Jurists have disagreed “on what constitutes makruh behavior.”

Dr. al-Hibri notes “the five major Islamic schools of thought: “the Hanafis, Malikis, Ja’faris (Imamis) and the Hanbalis permitted the practice of al-azl (withdrawal) subject to the wife’s consent .… Ja’fsris would permit al-azl without the wife’s immediate consent, if she had consented at the outset. Shaf’is permitted al-azl even without such consent, because, in their view, the wife is entitled to intercourse but not ejaculation.” Ibn Hazm, on the other hand, “adopted an extremely restrictive position arguing that it is a form of hidden infanticide and thus is forbidden by the Qur’an.”

Muslim scholars “agree that abortion, at or after the ensoulment stage is prohibited, except to save the mother’s life.” Their disagreement centers on “when this stage is reached”; some permit abortion at 40 days, other at 80 days and yet others up to 120 days. “In either case,” according to Dr. al-Hibri, “many take the view that abortion does not abruptly become prohibited at a certain stage .… Rather, abortion becomes increasingly makruh as the fetus develops, until it becomes finally prohibited.”

Yet, some Muslim scholars would prohibit “abortion the minute the semen attaches to the uterus .… This position was adopted recently by some Muslim jurists, who relied on scientific evidence in reaching their conclusion.” These scholars concluded “from a review of contemporary medical and scientific advances…that an embryo is a living organism from the moment of conception.”

Nevertheless, Dr. ah-Hibri, in her presentation at the United Nations, closed with the following advice: “If a woman is faced with an abortion decision, and if after deliberation she truly finds the reasoning of a permissive group (like the Hanafi view) convincing, then she should not be discouraged by the prior discussion on disagreements, and should feel free to take advantage of the license of her preferred view” (extract of paper, “Family Planning and Islamic Jurisprudence,” presented by Azizah al-Hibri, J.D., Ph.D., during a panel convened by the NGO Planning Committee, International Conference on Population and Development at PrepCom II).

Dr. Ahmad al-Kadi

All praise is due to God. I totally agree with pro-natal and pro-life philosophies and the biblical attitude toward this issue; not according to my personal feeling, but according to the teachings of the Koran, the Holy Scripture, Islam, and the Sunah, i.e., the teaching of the tradition of the Prophet of Islam, Mohammed.

I may apologize for being Egyptian since the big fight is coming in September in Cairo, Egypt, but I don’t have to apologize too much because that’s not the only violation that’s taking place in Egypt. It’s not only the violation of the human rights of the unborn baby but the violation of many human rights of grown-ups too that will take place in Egypt, with the blessings of the American Administration.

Islam is considered very flexible when it comes to the issue of contraception — prevention of conception which is strictly opposed and strictly different from termination of conception. But even in that issue which is considered definitely permissible in Islam — to prevent pregnancy or prevent conception — there are two basic technical qualifications. First, it has to be done for a genuine reason, whether it is a health-related reason or a hardship of some kind, it has to be genuine and sincere. Second, it should not be based on the philosophy that marriage can be only used for pleasure and just physical contact. The main philosophy in Islam, in the Koran, and The Prophet, teaches that marriage is meant for two purposes: one is procreation under God, and the other is companionship and partnership, again to serve the teachings of God. These are the two basic qualifications which have to be made very clear to any couple — and I state, it has to be a married couple — seeking contraception. These two qualifications have to be made very clear to them before they are allowed to have access to contraception, and that should be one of the basic reasons for family planning services: to give the proper education as to when to use this legal option of contraception.

There’s another general qualification for the allowance of contraception: It has to be the free choice of the couple to have this qualified contraception. By no means should it be done or practiced against the will of the mother, primarily, nor the couple in general.

As for sterilization, which is considered one form of contraception, the great, great majority of scholars agree that it is not allowed or that it is highly discouraged. These are the two legal terms which are used, unless and only if there are no other feasible means of reversible prevention of conception. Otherwise it is considered a mutilation, an act of interference with a basic function of the woman’s body. When it comes to abortion, the situation is more clear, although there is an attempt to redefine religion by some who are considered religious representatives. You should remember that most of the proponents of the population control movement are also Christians. President Clinton, I think, is considered a Christian. I haven’t heard of any other denomination or affiliation given for him…And I don’t think he dares to claim to be an atheist, because it’s not politically in his favor.

In a paper to the Second PrepCom for the ICPD, Dr. Azizah al-Hibri, a law professor of the University of Richmond Law School writes that another method of population control is abortion. Dr. al-Hibri appears to say that the majority of Muslim scholars permitted abortion although they differ on the stage of fetal development beyond which it becomes prohibited. That’s totally wrong, because all of the authentic Muslim scholars of the five different schools of thought (there are at least five of those schools of thought and legal opinion in Islam); all five agree that it is a crime at any time of pregnancy, at any stage of pregnancy. The only thing they differ about is when will the fetus or the embryo become a full human being. It goes from the age at the moment of conception to all the way to the other extreme, which is at the end of four months. A debate has been going on until recently; now there is more and more evidence to support the view of [the embryo as a full human being] from the point of conception as a result of our knowledge now of embryology, genetics, etc. However, under Islamic teaching, it would be the age of ensoulment that would be the beginning of human life — and this can be anywhere from the end of 40 days or the end of 120 days — that is the point when the act of abortion is considered murder. However, nobody disagrees that it is a crime from the moment of conception or at any stage of pregnancy. The question is the degree of the crime; that is, is it real murder or anything less than that? In the Islamic legal system, there is a specific legal penalty for interfering with fetal life at any time. The main legal evidence that an attack on fetal life at any time is prohibited is the fact that if a woman criminal is sentenced to death for a crime entailing capital punishment, the punishment is postponed not only until the baby is delivered, but until the baby finishes breast feeding. Neither a scholar nor a legally informed person would dispute this legal rule. Further, there has been no defying the Prophet of Islam until now. So there is no question in mind that there is a great respect and protection, a legal right for the unborn baby, for fetal life from the time of conception. It’s just that some consider it to be less of a crime until the first forty days, then the crime becomes more and more serious as the fetal development increases. Abortion becomes a full murder at the time of ensoulment, which is either at the end of 40 days or of 120 days. To summarize the legal Islamic opinion about the issue, simple prevention of conception with some reversible means is basically allowed with the two qualifications that it should not be based on pure fear of need or poverty. In an Islamic state, the treasury is supposed to sponsor anyone who for some reason cannot provide the means for a child; therefore couples should not have that fear because God will provide for them one way or another. Plenty of provision is available, not only for an individual family, but as we learn when we learn about economic development, the world will not suffer hunger and famine because of population, it is because of other reasons. So basically, prevention of conception with these qualifications is basically permissible using reversible means. Using irreversible means or mutilating means is prohibited or highly discouraged unless there is no other reversible way of using it for contraception and provided contraception is truly needed. Where it comes to abortion there is no disagreement anywhere that it is a crime at any stage of conception. I think the question and answer session can give us more time (Testimony of Dr. Ahmad al-Kadi at the Population Research Institute conference in New York, April 1994).

Dr. Hassan Hathout

Islam is the third of the Abrahamic monotheistic religions, following Judaism and Christianity which Islam respects and acknowledges as divine religions. The followers of Islam are called the Muslims, who currently number about one billion people belonging to various races, ethnicities and nationalities. Arabs constitute about 15 percent of Muslims. Not all Arabs, however, are Muslims; about 10 percent of them are followers of other faiths, mainly Christianity. Islam shares the moral code of the Torah and Gospel, but brings forth the outlines of a comprehensive legal system bearing on all aspects of human life, with a built-in flexibility that permits ruling and legislation for changing times and places. This system is called the Shari’a.

Historical review

One of the principal goals of the Shari’a is the preservation and protection of life. The Qur’an, the scripture that Muslims believe is God’s very words, comments on the killing of Abel, son of Adam, by his brother Cain: “On this account We decreed upon the children of Israel that whoever killed a self for no other reason than manslaughter or corruption in the land, it will be as though he killed all the people, and whoever saved it, it would be as though he saved all the people” (5:32).

The evidence from the Shari’a, as we will point out shortly, denotes that this regard for life is extended to the life of the unborn fetus. The premise in Islam is that we do not create our fetuses, but they are entrusted to us (primarily to the mother) for safe-keeping and caring for them, before and after they are born. A fetus’s life is a separate life from that of its mother’s, and it should not be violated.

Historically, however, old jurists thought that at some point along in the pregnancy, life started in the fetus. From that point onwards therefore abortion would not be permissible, but before that point, it was alright to abort the (lifeless) pregnancy. The jurists, however, differed on the definition of that point of instillation of life, and this led to the emergence of three schools of thought.

The first school put that point at 120 days from the beginning of the pregnancy, since that was the time when the pregnant woman started to feel the movements of the fetus (quickening) in her uterus, an event taken to mean the beginning of life. This view sought support from a saying of the prophet Mohammed to the effect that after three phases of 40 days each, God sends an angel to the fetus to breathe the Spirit into it (ensoulment). This breathing of the Spirit was in their opinion synonymous with the beginning of life, hence the admissibility of abortion before it.

The second school argued that the breathing of the Spirit was a metaphysical event, the Spirit being something we believe in but have no knowledge of, since the Qur’an says: “They ask you about the Spirit, say (knowledge of) the Spirit is (in the domain) of my Lord, for of knowledge it is only a little that you have been given” (17:85). They put the limit at the end of seven weeks of pregnancy, because at that date the fetus has acquired a human morphological appearance, technically called “taking shape”. There is also a saying of the prophet concerning that date, at which “God sends the angel of the womb, who asks ‘My Lord: is it a male or a female?’, and it assesses it and gives it sight, hearing….” To this school, abortion would be permissible during the first seven weeks.

The third school is that of the famous Al Ghazali some 10 centuries ago. He departed from both schools and divided fetal life into two phases: an early phase of incipient life that cannot be perceived by the mother and during which development proceeds (including taking shape), leading to the second phase of perceptible life that the mother can feel starting at the 120th day; this also happens to coincide with the phenomenon of the breathing of the Spirit that is beyond our understanding. The beginning in his opinion therefore was when “the water (element) of the woman, and the product rests in its place.” Interruption of pregnancy at any stage is therefore a crime, although he concedes that the crime is more heinous if done after the breathing of the Spirit, for the latter bestows the special honor and regard special to the human being, on top of life itself. Al Ghazali’s insights were therefore particularly penetrating, at an age long before microscopy and scientific knowledge of biology.

The above review explains the disparity of views on abortion when consulting books of jurisprudence even at the present time. The disciples of each school kept copying its view one generation after another, in total isolation from the advances in other sciences, in embryology, and reproductive biology. It is only recently that this shortcoming has been addressed.

Contemporary developments

There is no clergy institute in Islam but there are religious scholars. In earlier times those scholars were encyclopedic personalities who would excel in various branches of knowledge (medicine, mathematics, physics, etc…) besides pure religious studies. This state of affairs was impossible to maintain due to the mushrooming of knowledge and its inevitable division in various disciplines and specializations.

In Islamic jurisprudence, one of the basics is that the ruling over an issue must entail a thorough comprehension thereof; and for a long time this put the religion scholars (and the Muslim nation at large) at a great disadvantage. Over the past few decades it was realized that religious rulings could not be made in isolation from the specialists in the various walks of knowledge, to jointly discuss and rule over the issue under consideration. This is becoming the regular pattern, an example of which was the congress held by the Islamic Organization of Medical Sciences in Kuwait in 1983, under the title of “Human Reproduction in Islam.” The meeting comprised notable religious jurists and medical scholars, and when abortion was discussed it was not just a display of juridical schools of thought but also [presented] a full complement of information on fertilization and embryogenesis, including a film of the early fetus in utero taken by ultrasound imaging.

Five postulates were approved to characterize the beginning of life, viz.: It has to be a well defined event; it has to exhibit that cardinal sign of life — growth; if this growth is not interrupted it will lead to the subsequent stages of life; it has the genetic complement of the human race at large and of a unique specific individual; it is not preceded by any stage that combines the preceding features 1–4.

The recommendations of the Publ. Islamic Organization of Medical Sciences and Kuwait Foundation for Advancement of Sciences (Kuwait, 1989, Editor A. Al-Gindi, 276) on abortion was: “Going over the views expressed by earlier Figh (jurisprudence) scholars, with the keen insight and sound judgements they demonstrate, and noting that they unanimously forbid abortion after the breathing in of the spirit, i.e., after the first four months of pregnancy, and that they differ on abortion before the Spirit is breathed in, with some opting for categorical prohibition or considering it reprehensible, and others prohibiting it after the first 40 days and allowing it before that, with some difference over the necessity for justifying reasons; and benefiting from a review of contemporary medical and scientific advances as established by modem medical technology; the seminar concludes that an embryo is a living organism from the moment of conception, and its life is to be respected in all its stages, especially after the Spirit is breathed in. Aggression against it in the form of abortion is unlawful except in cases of maximum necessity. Some participants, however, disagreed and believe abortion before the 40th day, particularly when there is justification, is lawful. This is now the dominant view, and it seems it will be unanimous with education on biology, building confidence that to depart from inherited stands of one’s juridical school is neither wrong nor disrespectful; but is indeed more in harmony with the spirit of the Shari’a.

As mentioned, conditions of maximal necessity make abortion religiously permissible. A universally agreed situation is when the continuation of a pregnancy poses a threat to the life of the ill mother, for the Shari’a regards the mother as the root and the fetus as the offshoot; the latter to be sacrificed if this is the only way to save the former. Other serious conditions such as grave congenital anomalies incompatible with feasible life, and the mass rapes perpetrated against Muslim women in Bosnia-Hercegovina, have also been patronized by some scholars, but not by others who insist on the right to life of such fetuses. Mere unwantedness, pregnancy out of wedlock and minor afflictions are not accepted.

Juridical supportive evidence

The aforementioned ruling derives further juridical support if we review some of the rights of the fetus in Islamic law, viz: If a husband dies leaving a pregnant wife, other inheritors of his legacy shall not take their shares before setting aside the share of the unborn to await its birth. If a fetus is spontaneously miscarried, shows evidence of life and then dies, it inherits legal heritables who died since the beginning of pregnancy, then when it dies it is itself inherited by its legal heirs. If a woman criminal sentenced to death is proven pregnant at any stage of pregnancy, the execution of the sentence shall be postponed until she delivers and nurses the baby until it is weaned, even if her pregnancy is out of wedlock. There is a money ransom on abortion even when inadvertently caused, apart from court punishment for willful violation of the pregnancy. All these rights are obviously secondary to the primary right to life of the fetus.

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