THE RELIGIOUS CONSULTATION
on population, reproductive health & ethics

Family planning, Contraception and Abortion in Islam:
Undertaking Khilafah: Moral Agency, Justice and Compassion

Published in Sacred Choices: The Case for Contraception and Abortion in World Religions, ed. by D. Maguire. Oxford: Oxford University Press. (2003)

by Sa'diyya Shaikh

Page 4

Abortion
In Islamic scholarship the positions on abortion are more varied and less consensual than the approaches to contraception. Historically the Muslim legal positions range from unqualified permissibility of an abortion before 120 days into the pregnancy on the one hand to categorical prohibition of abortion altogether on the other. Even within a single legal school the majority position was often accompanied by dissenting minority positions.

Some of the key ethical and legal considerations in addressing the abortion question relate to understanding the nature of the fetus, the process of fetal development and the point at which the fetus is considered a human being. While scientific inquiry has illuminated the process of fetal development with progressively more clarity, the question of when a fetus is considered a human being is open to varying interpretations. The following Qur'anic verses are central to understanding some of the ways in which Muslim thinkers approach these issues.

He creates you in the wombs of your mothers
In stages, one after another
In three veils of darkness
Such is Allah, your Lord and Cherisher (Q 39:6).

We created the human being from a quintessence of clay
Then we placed him as semen in a firm receptacle
Then we formed the semen into a blood-like clot
Then we formed the clot into a lump of flesh
Then we made out of that lump, bones
And clothed the bones with flesh
Then we developed out of it another creation
So Blessed is Allah the Best Creator (Q 23:12- 13).

Given these scriptural teachings, Muslim scholars have understood that the fetus undergoes a series of transformations beginning as an organism and becoming a human being. An authenticated prophetic tradition provides a more detailed time frame for understanding the pace of fetal development:

Each of you in constuituted in your mothers womb for 40 days as a nutfa (semen), then it becomes an alaqa (clot) for an equal period, then a mudgha (lump of flesh) for another equal period, then the angel is sent and he breathes the ruh, (spirit) into it.

Together the Qur'anic verses and the prophetic tradition have been understood to describe a sequential process where the fetus undergoes a series of changes and finally culminates in becoming a full human being when it is "ensouled". According to the Qur'an this culmination point denotes a significant shift since the fetal organism is transformed into something substantively different from it's previous state as is reflected in the verse "then we developed out of it another creation" (i.e. a human being ). In the prophetic tradition this same point of transition into a human being is described as the point at which the angel breathes the spirit into the fetus at 120 days.

Medieval Islamic scholars also found support for the Qur'anic position and the prophetic teachings from Greek medicine which had a corresponding understanding of the stages of fetal development. Contemporary medical technology has developed such that we are able now able to detect vital signs of a fetus like brainwaves and heartbeat. While these advances in medical knowledge are informative and help to illuminate decisions, they still do not provide us with definitive criteria for determining when a fetus becomes fully "another creature" i.e. a human being. While science can contribute to a description of the fetal development, it is outside of scientific method to determine the point of spiritual transition into the full human essence. For human beings any designation of when a fetus constitutes a full human life can be contested since we are unable to know this unambiguously. Thus revelation and prophetic inspiration remain a crucial way of understanding this issue from an Islamic perspective.

The narratives from the primary Islamic sources provide Muslim thinkers with a way to generate an estimated criterion for establishing personhood during the process of fetal development. This in turn has direct implications for the ethical and legal approaches to the question of abortion in Islam.

The view that the fetus is ensouled at 120 days thereby becoming a human being and thus a legal personality was integrated into Islamic jurisprudence. Hence, for example, if someone injures a pregnant women causing her to miscarry the fetus, the amount of compensation due to her is based on the stage of fetal development. Causing the miscarriage of an ensouled or what is called a "formed" fetus, is considered a criminal and religious offence and the mother needs to be compensated for the full blood money (diya) as though it were a case of a child already born. A lesser remuneration is due if the fetus was considered "unformed". According to Islamic law only a formed fetus which is miscarried or accidentally aborted has the right to inheritance (to pass on to relatives), to be named and to have a ritual burial.

From this perspective, the abortion of a formed fetus i.e. after 120 days, is considered a criminal offense and prohibited by all Islamic legal schools. Exceptions to this prohibition however include situations where the mother's life was in danger, where the pregnancy is harming an already suckling child, or where the fetus is expected to be deformed. Relating to an abortion prior to the 120-day period, there are 4 different positions in classical Islamic have been summarized in the following way by Shaykh Jad al-Haq:

1) Unconditional permission to terminate a pregnancy without a justification or fetal defect. This view is adopted by the Zaydi school, and some Hanafi and Shafi'i scholars. The Hanbali school allows abortion through the use of oral abortifacients within 40 days of conception.
2) Conditional permission to abort because of an acceptable justification. If there is an abortion without a valid reason in this period its is considered to be disapproved (makruh) but not forbidden (haram). This is the opinion of the majority of Hanafi and Shafi'i scholars
3) Abortion is strongly disapproved (makruh). This is the view held by some Maliki jurists
4) Abortion is unconditionally prohibited (haram). This reflects the other Maliki view, as well as the Zahiri, Ibadiyya and Imamiyya legal schools.

Such diversity in perspectives characterizes the Islamic legal canon, which contains contrary positions where both permissibility and prohibition of abortion are considered legitimate. This range of positions suggests a flexibility to the way in which Muslim societies have historically approached the issue of abortion. Moreover the extensive discussions of specific types of abortifacients in medical manuals of the classical Islamic world reflect that it was a part of the social reality.

However the range of approaches in the legal canon is not to be confused with an casual approach to human life - this is evidently not the case as any perusal of the Qur'an and Islamic legal text will demonstrate. In fact the minority of classical legal scholars who forbid abortion do not differ in with other scholars on the process of fetal development but prohibit the abortion because of their religious reverence for the potentiality of human life. Islam teaches the sanctity of human life and shows a profound respect for that the potential for human life. Nonetheless, the rightful concern for a fetus needs to be situated in a larger context, juxtaposed and weighted in relation to broader wellbeing of the mother, the family as well as the society. Islam is a religion of balance and moderation that seeks to maximize the wellbeing of all elements in a society.

This type of circumspection and balanced judgement characterizes the recent statement of the Grand Shaykh of Al-Azhar, Sayed Tantawi who supported the fatwa (juristic response) that abortion was permissible in the case of rape and that the rape survivor had the rights to privacy about her experience. Last year in Iran, the Ayatollah Ali Khameni issued a fatwa in favor of abortion for fetuses under 10 weeks that were tested with a genetic blood disorder of thalassemia. Also in Iran the Grand Ayatollah Yusuf Saanei issued a fatwa which permits abortion in the first trimester and not only for reasons of the mothers health or fetal abnormalities. In an interview reported in the LA times he stated that Islam is a religion of compassion and that in the event of serious problems, abortion is permitted.

In a submission to the South African parliament, the Judicial Committee of Islamic Council of South Africa, recognized the right to terminate a pregnancy for a reasonable cause before a 120 days. This included among others the impairment of the mental capacity or the integrity of the woman as well as the ability and willingness of the woman to accept the responsibility of parenthood. Finally, contemporary legal scholar Ebrahim Moosa drawing on the legal opinions of 19th century Indian Hanafi scholar, Abd al-Hayy Al- Laknawi, illustrates how some traditional legal thinkers also permitted abortion in the case of an illicit pregnancy i.e. a pregnancy outside of wedlock. He speculates that al- Laknawi's legal reasoning was possibly informed by the fact that the future prospects of an unwed mother would be radically reduced in his society and thus the Indian jurist recommends the radical act to terminate advanced pregnancies arising from sex out of wedlock. For him it was a case of the lesser of two evils.

It is not surprising that despite the diversity characterizing Islamic legal perspectives on abortion which even include views of it's permissibility, the realities of many contemporary Muslim societies reflect a tendency to adopt a more rigid approach. Part of this motivation, rightfully, is to ensure that people do not adopt an uncritical acceptance of easy abortions since the decision to terminate a potential realization of a human life is a grave decision not be taken lightly or without circumspection. Indeed the gravity of this whole enterprise bolsters the case for a responsible approach to family planning including reliable contraceptive usage which would for the most part, preempt the need for abortion.

In fact some of the contemporary practices of abortion based on the gender of the fetus are very ethically problematic. From the 1980's there is growing practice of aborting female fetuses based on ultrasound tests in India, China and South Korea. This reflects misogyny and constitutes a direct contrast to Qur'anic ethics which strongly condemns the hatred of "femalehood". Thus I would propose that from an Islamic ethical perspective aborting a fetus on the basis of gender is unjustifiable.

For more people however, abortion is not based on the gender of the fetus, neither is it an easy or thoughtless decision - it involves much anguish and internal struggle. In the event that such a decision is deemed necessary, it is important that we remember that the God of the Qur'an is consistently described through the divine qualities of mercy and compassion. In fact these two portals of God's self revelation are constantly invoked by Muslims throughout daily activity. It is vital to move from invocation to enactment . The way in which the realities of compassion and mercy manifest in difficult situations require an awareness of and a response to the suffering and complexity of human lives.

For those that oppose abortion, a compassionate and merciful attitude would include focussing on transforming social structures so that having children does not create hardships for the mother, the family and for the society. This would be a more socially constructive use of energy than the crusade against abortion. A concern for the welfare of the fetus without a concern for the its continuing welfare as a human being reflects a limited, if not hypocritical approach.

In Islam, if an individual or a couple are considering the possibility of an abortion it is imperative that they do so with a full awareness of the gravity of such a decision. In this situation, I would present that being a khalifah or moral agent, requires a careful consideration of all the factors, weighing up the different demands and needs of the specific situation, and like in all things, intentionally keeping ones sense of taqwa or God consciousness at the forefront. Islamically, the freedom to act as the khalifah is intrinsically accompanied by accountability and responsibilities at the personal, social and religious levels. Often the specifics of a given context determine what the most responsible alternative is. Given these consideration, from within the Islamic perspective there is room for a pro-choice perspective where the individual khalifah engages all sources of Islamic guidance i.e. the Qur'an the prophetic traditions, the legal positions, as well as his or her own intellectual, moral and ethical capacities to inform a decision about abortion.

In conclusion, it is my view that a contemporary Islamic ethical perspective on family planning, contraception and abortion, requires a holistic vision of the problems of our era. We are confronted with the realities of socio-economic injustice, sexism, over population and diminishing resources, to name but a few. There is a need for Muslims to assess the needs of the time in terms of an understanding of the political, social and economic realities of their respective contexts. It is crucial that Muslims move beyond purely defensive posturing and undertake their khilafah through adopting a genuinely engaged and informed approach to the world. The Islamic legacy in its own terms, provides a rich heritage of human agency and creative socially relevant thinking. As a religion, Islam provides its adherents with multiple resources to implement progressive social visions premised on values of human freedom accompanied by responsibility, of human wellbeing with optimal spiritual development, and of justice tempered with mercy and compassion. It is in the interests of humanity that Muslims bring all these spiritual treasures to the table of discussion on family planning, contraception and abortion.

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