#402: Further Clarification on the Ruling of Abortion in Islam

QUESTION

Alhamdulillāh Wa as-salaatu Wa Assalāmu alaa rasulillaah!

Assalāmu Alaykum warahmatullāh wabarakātuh

Thereafter, we answered a question three times on what has to do with abortion and the verdict of Islam on it. Some beloved ones asked more questions while others raised observations of discrepancies. What we present below is a detailed explanation of this matter.

Firstly it is important to know that Islam does bot condone the taking of an innocent soul.

The Rasūl- salallāhu alayhi wasallam – said:

ﻻ ﻳَﺤﻞُّ ﺩﻡُ ﺍﻣﺮﻯﺀٍ ﻣﺴﻠﻢ ﺇﻻّ ﺑﺈﺣﺪﻯ ﺛﻼﺙ : ﻛَﻔَﺮَ ﺑﻌﺪَ ﺇﺳﻼﻣﻪِ ، ﺃﻭ ﺯَﻧَﻰ ﺑﻌﺪ ﺇﺣﺼﺎﻧﻪِ ، ﺃﻭ ﻗَﺘَﻞَ ﻧﻔﺴﺎً ﺑﻐﻴﺮ ﻧﻔﺲ

“It is not permissible to spill the blood of any Muslim except on account of one of three:
If he becomes Kāfir after his Islam,
If he commits Zina after his marriage,
Or if he kills a soul that has not taken an innocent one.”

Recorded by Abu Dawud in his sunan #4502, Ibn Maajah in his Sunan #2533, At-Tirmidhi #2158, An-Nasa’i 7/91 and the Hadith is Sahih

This hadith shows us that to take an innocent life is abhorrent and also a reason for one’s life to be taken.

The Ulamā explained that the case is worse if the one killed is a child. And the severity of this becomes apparent when we consider that in Jihaad, though souls are taken, children are not killed.

And in the Hadith of ‘Abdullaah bn Umar – radiyallāhu anhuma – the Rasūl – salallāhu alayhi wasallam – said:

((ﺇﻥَّ ﻣﻦ ﻭﺭﻃﺎﺕ ﺍﻷﻣﻮﺭ ﺍﻟﺘﻲ ﻻ ﻣﺨﺮﺝ ﻟﻤﻦ ﺃﻭﻗﻊ ﻧﻔﺴﻪ ﻓﻴﻬﺎ ﺳﻔﻚ ﺍﻟﺪﻡ ﺍﻟﺤﺮﺍﻡ ﺑﻐﻴﺮ ﺣﻠﺔ))

“Of the indicting matters from which whosoever falls into them will not escape is the spilling of innocent blood without a justification.”

Transmitted and recorded by Imaam Al-Bukhāri in his Sahih.

Then what would be said about the one who kills an unborn child who has not committed any crimes. Who else can be more innocent than it?

Secondly, the Ulamā, regarding the ruling on aborting a pregnancy, divide the phases of the pregnancy into three.

Phase 1:

The period between coitus and the expiration of forty days. Meaning the first forty days.

The fuqahā differed slightly on the ruling of aborting a pregnancy in this period. And it should be known that within all the madhaahib, there are differences of opinion on this. The malikis have just a single legal authority to whom permissibility of abortion in this period is credited: Imaam Al-Lakhmi.

The fuqahā that viewed the permissibility of this made as evidence the following Ahādith:

1. The Hadith of Abdullah bn Mas’ud – radiyallāhu an hu – that the Rasūl – salallāhu alayhi wasallam – said:

(( ﺇﻥ ﺃﺣﺪﻛﻢ ﻳﺠﻤﻊ ﺧﻠﻘﻪ ﻓﻲ ﺑﻄﻦ ﺃﻣﻪ ﺃﺭﺑﻌﻴﻦ ﻳﻮﻣﺎ ﻧﻄﻔﺔ ، ﺛﻢ ﻳﻜﻮﻥ ﻋﻠﻘﺔ ﻣﺜﻞ ﺫﻟﻚ ، ﺛﻢ ﻳﻜﻮﻥ ﻣﻀﻐﺔ ﻣﺜﻞ ﺫﻟﻚ ، ﺛﻢ ﻳﺮﺳﻞ ﺍﻟﻠﻪ ﺇﻟﻴﻪ ﺍﻟﻤﻠﻚ ، ﻓﻴﻨﻔﺦ ﻓﻴﻪ ﺍﻟﺮﻭﺡ ﻭﻳﺆﻣﺮ ﺑﺄﺭﺑﻊ ﻛﻠﻤﺎﺕ : ﺑﻜﺘﺐ ﺭﺯﻗﻪ ﻭﻋﻤﻠﻪ ﻭﺃﺟﻠﻪ ﻭﺷﻘﻲ ﺃﻭ ﺳﻌﻴﺪ ، ﻓﻮﺍﻟﻠﻪ ﺍﻟﺬﻱ ﻻ ﺇﻟﻪ ﻏﻴﺮﻩ ﺇﻥ ﺃﺣﺪﻛﻢ ﻟﻴﻌﻤﻞ ﺑﻌﻤﻞ ﺃﻫﻞ ﺍﻟﺠﻨﺔ ﺣﺘﻰ ﻣﺎ ﻳﻜﻮﻥ ﺑﻴﻨﻪ ﻭﺑﻴﻨﻬﺎ ﺇﻻ ﺫﺭﺍﻉ ، ﻓﻴﺴﺒﻖ ﻋﻠﻴﻪ ﺍﻟﻜﺘﺎﺏ ﻓﻴﻌﻤﻞ ﺑﻌﻤﻞ ﺃﻫﻞ ﺍﻟﻨﺎﺭ ﻓﻴﺪﺧﻠﻬﺎ ، ﻭﺇﻥ ﺃﺣﺪﻛﻢ ﻟﻴﻌﻤﻞ ﺑﻌﻤﻞ ﺃﻫﻞ ﺍﻟﻨﺎﺭ ﺣﺘﻰ ﻣﺎ ﻳﻜﻮﻥ ﺑﻴﻨﻪ ﻭﺑﻴﻨﻬﺎ ﺇﻻ ﺫﺭﺍﻉ ، ﻓﻴﺴﺒﻖ ﻋﻠﻴﻪ ﺍﻟﻜﺘﺎﺏ ﻓﻴﻌﻤﻞ ﺑﻌﻤﻞ ﺃﻫﻞ ﺍﻟﺠﻨﺔ ﻓﻴﺪﺧﻠﻬﺎ))
ﺭﻭﺍﻩ ﺍﻟﺒﺨﺎﺭﻱ ﻭﻣﺴﻠﻢ

‘Verily, each of you is brought together in his mother’s abdomen for forty days in the form of a drop of fluid. Then it is a clinging object for a similar [period]. Thereafter, it is a lump looking like it has been chewed for a similar [period]. The angel is then sent to him and he breathes into him the spirit. He is also commanded to issue four decrees: to record his sustenance, his life span, his deeds and [whether he will be] unhappy [by entering Hell] or happy [by entering Paradise]. I swear by Allah, other than whom there is no God, certainly one of you will perform the deeds of the people of Paradise until there is between him and Paradise except an arm’s length, and then what has been recorded will overtake him and he shall perform the deeds of the people of Hell and enter it. And, certainly, one of you will definitely perform the acts of the people of Hell until there is not between him and Hell except an arm’s length and then what has been recorded for him will overtake him and he shall perform the deeds of the people of Paradise and enter it.”

Recorded by Imaam Al- Bukhari and Imaam Muslim

They argue that within the first forty days, the foetus is just beginning to take form and has not began to develop into a child therefore terminating it in this period cannot be referred to as murder.

2. The Hadith of Jaabir bn Abdillāh – radiyallāhu anhuma – who said:

((ﻛﻨﺎ ﻧﻌﺰﻝ ﻋﻠﻰ ﻋﻬﺪ ﺍﻟﻨﺒﻲ ﺻﻠﻰ ﺍﻟﻠﻪ ﻋﻠﻴﻪ ﻭﺳﻠﻢ ﻭﺍﻟﻘﺮﺁﻥ ﻳﻨﺰﻝ))

“We used to practice the withdrawal method in the lifetime of the Prophet – salallāhu ‘alayhi wasallam – the era in which the Qur’an was being revealed.”

Recorded by Imām Al-Bukhārinin his Sahih.

Imaam Sufyan – rahimahullāh – said:

“Had it been something forbidden, then it would have been forbidden to us by the Qur’an.”

These Ulamā make a Qiyaas (Legal comparism) between the permissibility of withdrawal and the pernissibility of flushing our the mixed sexual emissions from the womb before it begins to take form.

In our first reference to the matter of abortion and the verdict we passed, we made reference to this position as mentioned that the preponderant was the majority Maliki position that considers it Harām even at this stage.

Phase 2:

Within the first 120 days.
These Ulamā considered that in the Hadith narrated by ibn Mas’ud above, the breathing of soul into the child is after the first three phases of forty and that is 120 days.

We mentioned in the last response to this matter that the sound verdict in this regard is the verdict that also considers it harām within this phase.

Phase 3:

After the 120 days and the breathing of the soul into the foetus.

All of the Ulamā are at a consensus that aborting a pregnancy around this period is the same crime as killing a soul.

It is mentioned in ‘Al-Mawsu’atu Al-Fiqhiyya’ the following:

“On the ruling of aborting a pregnancy before the breathing in of the spirit are different verdicts and legal statements even within a single madh’hab.

Of them are those that consider it permissible without restrictions, and this is the verdict of some of the Hanafis for they mentioned that it is permissible to terminate a pregnancy after its conception as long as it has not been put into creation and what is meant by put into creation in this terminology of their is the breathing in of the spirit/soul.

Within the Maliki school, this is the isolated position taken by Al-Lakhmi who held that it were permissible before the 40th day.

Same position was taken by Abu Ishaq Al-Marwazi among the Shafi’is that it were permissible before the 40th day. Ar-Ramli said: were it to be a pregnancy from Zina, it would give the impression of permissibility before the breathing in of the soul.

For the Hanbalis, its permissibility is one of their edicts if it is within the first phase as they allowed the permissibility if a woman taking pills that flush out the nutfah and not the Alaqa. From Ibn Aqil it is narrated that he held that: As long as the soul has not been put into it, it is not yet a being. It is derived from that that he considered it permissible. The author of Al-Furu’ said: ‘and the statement of Ibn Aqil is rooted.’

And of them are those that hold that it is permissible only when there is legitimate excuse. This is the reality of the official Hanafi position. Ibn Ābidin quoted Karāhatu Al-Khaniya impermissibility unless there is an excuse… And he quoted from Ibn Wahbān that among the viable excuses is if her milk seizes to flourish after the pregnancy becomes apparent and the future father will not be wealthy enough to hire a wet nurse, and by that it is feared that he (the child) perishes by so doing. Ibn Wahbaan said: the permissibility of abortion is subject to necessity.

And those among the Malikis, the Shaafi’is and the Hanbalis who permitted it unrestrictedly permit it more deservedly in this case ( I.e. when there is necessity).

Al-Khatib Ash-Sharbini quoted Az-Zarkashi as saying:

“If necessity compels a woman to take pills that cause the termination of pregnancy, then she may and that does not require her an expiation.”

“And among them are those that consider it makruh unrestrictedly…”
This is the verdict of Ali bn Musa among the Hanafis.

And Ibn Ābidin quoted from him that he said: it is wrong to terminate the pregnancy even before the breathing of soul into the foetus because once semen gets into the womb, its going to lead to life therefore it has the same ruling as that of life just as is the case with the one in ihraam (Muhrim) breaking then egg of a fish.

This is also an opinion with the Maalikis as regards the phase before the completion of 40 days.

And a possible opinion with the Shaafi’is.

Ar-Ramli said: ‘it cannot be said that terminating pregnancy before it has been given soul is makruh (disliked) rather it should be considered forbidden and prohibited. And its impermissibility increases in strength the more it gets closer to the time when it has been given soul.”

And of them are those who hold it to be Haraam. This is the official and majority verdict of the Maalikis.
Ad-Dardir said:

“It is not permissible to flush out the semen that has already been seated in the womb even if it is before the fortieth day.”

Ad-Dasuqi said: “this is the official position.”……”

End quote.
Thereafter, due to the stresses and the stigma that will be attached to the raped mother and her family, majority of the Ulamā permit terminating the pregnancy before it possesses soul. But of course, that is if it is certain that she and her family members will not be able to cope with such stresses.

Allāhu A’alam.

Bārakallāhu Fīkum
Jazākumullāhu Khayran.

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