#537: What is done to the Fetus that died during Pregnancy

QUESTION

“Salam alekum …Please is it Islamic doctrine to bury a woman who died with pregnancy without operating d baby first?”

ANSWER

Wa alaykum Salām Warahmatullāh Wabarakātuh.

Alhamdulillāh.

If a woman passed away in pregnancy, we seek Allāh’s protection from that, the ‘Ulamā have differed on operating the baby from her womb.

Firstly, the ‘Ulamā are at agreement that if the baby is deemed alive and it is possible to remove the baby from the mother through the organ from which a woman gives birth, then it is permissible, even Wājib to remove the baby in that manner, and to not bury the mother with the baby.

However, if it is not possible to remove the baby from the regular organ from which child birth happens, then the official position in the Hanbali and Mālikī School is that this is not permissible as it is deemed a form of mutilation. It was the Fatwah of the Tābi’ī Imām and Student of Ibn ‘Abbās, ‘Ā’ishah and Ibn ‘Umar, radiyallāhu ‘anhum, ‘Atā Ibn Abī Rabāh as was quoted from him in the Musannif of Ibn Abī Shaybah.

The Hanafis and the Shāfi’īs held that it were permissible to dissect out the baby. Their position was also held by Ibn Hazm Al-Andalusī, Imām Sahnūn of the Mālikī School, and others. Their argument was that it wouldn’t be deemed a mutilation if it was done to save the soul of the baby and the baby is hoped will be brought out alive.

Shaykh ‘Abdurrahman As-Sa’adī – rahimahullāh – in his Fatāwah held that it were permissible to operate the baby out, arguing that the Hanbalis to whose School he belongs, only held that view because they had not seen the modern Medical Surgeries and Caeseran Child births prevalent now. He therefore held that this was permissible considering the Masālih and the Mafāsid…

I say, and from Allāh comes Tawfīq, that if operating the baby out of the mother was to be deemed as mutilation, and this mutilation was to be done to save the life of a baby which is alive, then this would have been a mutilation which is permissible due to the necessity of saving a living soul: a Darūrah recognized legitimately in the Sharī’ah.

What then would be said of what is customarily known and done today, where surgeries are done succesfuly to living beings and are not deemed as mutilations?

The position held by the Shāfi’ī and Hanafī Schools then is the stronger of both, and Allāh knows best.

Bārakallāhu Fīkum
Jazākumullāhu Khayran

10th Jumada athThanni 1439AH

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