By Ayman Abdel Haleem (University of Cambridge, Faculty of Divinity, M.Phil. in Theology 1999/2000)

In recent years the debate surrounding abortion has become a bit of a political hot potato. This can be seen particularly in the United States, where no candidate wishing to take his place in the Senate or even in the White House can escape being questioned as to his stance on the issue: pro-life or pro-choice. While the debate is certainly at its fieriest in the States, it has also become an issue in all other countries, especially due to the advances in medical knowledge that allow the procedure to happen with almost no risk to the mother. These medical advances mean that the question now to be asked is purely an ethical one, with the debate being centred on the issue of “At what stage of the pregnancy can the foetus be considered a human being?” This question is not one that can be answered from the medical perspective alone. Medical science clearly demonstrates that biological life begins with conception, and yet the mere occurrence of biological life, does not necessarily make the foetus a person. Should the foetus therefore be accorded the same rights as a human being, and if so, at what stage of the pregnancy should it attain these rights? It is when this ethical debate commences, that people have often looked to religion for an answer, unavailable from medical knowledge alone.

Although, among others things, recent advances in medical knowledge, which have allowed the process of abortion to become much safer, have brought the abortion issue to the fore, abortion is not merely a contemporary issue in human history. Since there is evidence that the practise dates back to ancient times, it is one for which different religious traditions throughout history have turned their attention. Classical debates held within the differing religions are now finding themselves being used in modern times either as a justification for or against the practise of abortion. Among these religions, all three of the monotheistic faiths have expressed views on the subject of abortion, and the classical positions are now being restated within the contemporary debate.

Starting with Judaism, this being the oldest of the three, we find that the unborn child has the status of potential human life until the baby has emerged from the mother. As such, while it should not be terminated casually, it is not considered a human being and thus doesn’t have as much value as an already existing human until born.

The foetus in the womb is not acknowledged as a person (lav nefesh hu) until it is born. Therefore, there is no capital indebtedness for feticide. By the same dispensation, abortion cannot be considered homicide.[1]

Judaism therefore only considers the baby human when it emerges from its mother, and hence abortion is considered permissible under a wide variety of circumstances.

Christianity, on the other hand, has tended to take a position directly opposite to that found in Judaism, prohibiting abortion altogether. While there is currently some debate amongst Christians as to whether the Bible forbids abortion or not, Church organisations have classically been staunch opponents of abortion. An example of this position is found in the views expounded by the Catholic Church, for whom,

In stark opposition to the Jewish notion, the Roman Catholic Church declares that life begins at the moment of conception. In other words, the instant outcome of human fertilisation is nothing other that a human being. Anyone tampering with the fertilised ovum is liable for the murder of a human being. [2]

Islam, the last of the three monotheistic religions, has tended to take up a position on this subject different to that of its two predecessors, yet perhaps less at odds with Christianity than with Judaism. In fact what is found is that, due to Islam’s lack of a hierarchical system like that found in, for example, Catholicism, different scholars could reach differing opinions as to a particular ruling, with all these differing opinions being considered as acceptable, the only thing giving precedence to one opinion over another being the strength of its evidence. Thus we find concerning this particular question that several diverse opinions have been reached by the various classical scholars of Islamic law. In laying bear these divergent opinions I intend to keep the discussion to those opinions arrived at by the scholars of the four orthodox schools of law, namely the Hanafī, Mālikī, Shāfi‘ī, and Hanbalī schools.

The scholars of Islamic law, both classical and modern, are in complete agreement as to the proscription of abortion after the ensoulment of the foetus, at which time the foetus is believed to become a human being. Any action resulting in the abortion of the foetus after this stage requires the payment of compensation.[3] Evidence for the time at which ensoulment happens is based on the prophetic statement,

Verily the creation of each one of you is brought together in his mother’s belly for forty days in the form of seed, then he is a clot of blood for a like period, then a morsel of flesh for a like period, then there is sent to him the angel who blows the breath of life into him…[4]

Most classical scholars understood from the wording of the above tradition that ensoulment must take place at 120 days, this being the sum of three forty day periods, one for the seed form (nutfa), one for the clot of blood (‘alaqa) and one for the morsel of flesh (mudgha). Thus it was accepted by the majority of the classical scholars that the soul entered the foetus at 120 days after conception and that to abort after this stage would be an act of violence against a living creature and thus a great sin.

Although this agreement was reached regarding the foetus of 120 days, no such agreement was found regarding the permissibility or otherwise of aborting the foetus prior to this time. The classical scholars views differ and vary in the details concerning the permissibility, dislike and prohibition of abortion prior to the ensoulment of the foetus, these differing views tending to be looked at from the point of view of scholarly attachment to a particular school of law.

Starting by looking at the Hanafī school, on the whole they tended to be more permissive on this question. The Hanafī scholar Haskafī states that a woman is allowed to abort before the completion of four months of pregnancy even without her husband’s consent.[5] Ibn ‘Ābidīn, commenting on this statement, said,

Is abortion allowed after conception? Yes it is, unless an embryo is already formed and this does not happen except after one hundred and twenty days.

Against this view, which would appear to show complete allowance of abortion prior to ensoulment, Ibn ‘Ābidīn quotes Ibn Wahbān, another Hanafī scholar, as saying,

The presence of a valid excuse permits abortion before the expiry of the first four months, such as the interruption of lactation after conception and the inability of the father to hire a wet nurse, which inability may lead to the death of a child.

He is also reported to have said that if a woman wished to resort to abortion before animation then this action would be an object of disfavour, because the semen, after being ejected into the uterus, would develop into a living organism, and would thus acquire the status of a living creature. In commenting on these views, Dr. Muhammad Salām Madkūr states that they indicate that,

There is a view that abortion before the expiry of the fourth month is permissible in all cases, with or without a valid excuse. Some of these scholars maintain that abortion is an inexcusable object of disfavour. Disfavour, as is known, is only one degree removed from prohibition. These scholars restrict allowance of abortion to cases where there is an excuse. Mere feeling of weakness or inability to endure the hardships of pregnancy is considered in their view to be an acceptable excuse. [6]

The Mālikī scholars on the other hand take a much stricter position than those of the Hanafī school, most of them prohibiting abortion altogether. While they agreed that, since the soul had not yet entered the body, the foetus could not yet be classified as a human being, it should not be tampered with since its destiny is that of ensoulment. [7]

However there is a small minority of Mālikī scholars who viewed abortion prior to ensoulment as a disliked, rather than a prohibited, matter. Both views are stated in the commentary of Dasūqī on the work of the Mālikī scholar Dardīr. Dardīr states that,

It is not allowed to expel the zygote formed in the womb, even before the expiry of the first forty days. After animation takes place, abortion is prohibited in all cases.

Dasūqī then comments by saying,

This is the generally accepted view, but it is also said that abortion before the expiry of the first forty days is an object of disfavour.[8]

In explanation of Dardīr’s statement “formed in the womb”, Dr. Madkūr tries to show that this leaves open the possibility that the Mālikī school may thus permit disposing of the fertilised ovum at any stage prior to its cleaving to the wall of the womb. In defence of this position he draws on the great Malikī scholar al-Qurtubī who states that,

The sperm is not subject to any legal provision if it is discarded by the woman before it settles inside the womb. At this stage it is as though it were still part of the man in his loins.

However it is conceivable that al-Qurtubī made this statement due to the lack of medical knowledge at the time, believing that the sperm undergoes no transformation until it is fixed in the womb. Thus his statement that prior to the settling of the sperm in the womb it is as though it were still part of the man in his loins. Modern medical knowledge now tells us that this does not happen until about a week after fertilisation, during which time certain changes do in fact take place, such that in no way can it be considered the same as it was when it were in the man’s loins.

What is clear however is that the Mālikī scholars tended to take a much stricter view than their Hanafī counterparts, either forbidding abortion outright, the majority view, or at the very minimum considering it a disliked matter prior to ensoulment and forbidden thereafter.

One other point to note is that the Mālikīs considered the time at which ensoulment takes place to be some time after 40 days, as is clear from the statement of both Dasūqī and Dardīr, rather than the generally agreed upon 120 days, and I hope to return to this point later.

The question of abortion remained one upon which there seems to have been no clear ruling agreed upon by the jurists of Islamic law, whether between the different schools or even within the individual schools themselves. Views within the Hānafī and Mālikī schools formed the two extremes of allowance and proscription of abortion prior to ensoulment, with the Shāfi‘ī and Hanbalī scholars taking up varying positions between these two. B. Musallam states, with regard to the debate surrounding abortion,

Compared to the remarkable agreement on the permission of contraception, on abortion there remained important differences between the jurists. Many Shāfi‘ī and Hanbalī jurists agreed with the Hanafīs in their toleration of the practice, some putting an upper limit of forty days for a legal abortion, others eighty days or 120 days.[9]

In a note to this above statement, Musallam registers the different opinions of the scholars of the Shāfi‘ī and Hanbalī schools, some allowing the practise, others forbidding it. This just goes to show the lack of clarity on the issue of abortion prior to ensoulment. Dr. Madkūr, after analysing the differing opinions of the classical jurists, lists the differing opinions on this issue as coming under four differing opinions, recording them as follows[10],

1. Unqualified allowance without the need for an excuse, according to views already quoted from…some of the Shāfi‘ī and Hanafī scholars. It also reflects the views outlined in the quotations attributed to the Mālikī and Hanbalī scholars.

2. Conditional permissibility if there is an excuse, and disfavour if there is not. This represents the view of some Hanafī and some Shāfi‘ī scholars.

3. Unqualified disfavour in all cases, as is the view of some Mālikī scholars.

4. Prohibition, as is the authoritative view of the Mālikiyya.

Despite the apparent flexibility of the Islamic legal rulings on abortion as expounded by the classical jurists, abortion was prohibited throughout the Islamic World up until the destruction of the Ottoman Empire at the beginning of the twentieth century. Abortion has always been, and still remains, an issue which has been seen, to a large extent, as unacceptable from the perspective of social morality. It is perhaps for this reason that the stricter of the classical views was used in legislation, prohibiting abortion except for very specific reasons. After the break-up of the Ottoman Empire, each individual Muslim country found itself free to enact whatever laws it so desired, no longer feeling compelled to govern by means of the Islamic Sharī‘ah law. Thus the Muslim countries, to varying degrees, went through of a process of secularism, replacing much of the Islamic Sharī‘ah law with western secular law, or trying to synthesise between the two. One might therefore expect that all Muslim countries would have followed the lead of the West with regard to the question of allowance or prohibition of abortion.

As previously mentioned, due to advances in medical techniques, abortion operations became increasingly safe, such that the possibility of carrying out such operations at almost no risk to the mother became a reality. However, due to the attitude of the Church, mentioned above, this in itself would not have been enough to have caused legislation, in many western countries, giving the mother the right to abort her unborn child to have been enacted, were it not for the process of secularisation that also took place, and the change in moral values that accompanied it. With the receding powers of the Church, particularly in the public domain, legislation moved from the realm of the religious into the realm of the secular. This meant that instead of morality and ethics being defined by religion they began to be defined by man himself, with man’s own rationality being the yard stick for what is ethically acceptable and what is not. This began to mean that the principle that everything is acceptable as long as it doesn’t harm anybody else began to gain favour as the basic principle for morality. Under this principle, abortion for many has begun to be seen as a reasonable practise. The foetus is not considered as a complete individual, and thus is not accorded the same rights as one, particularly in the early stages of development. Since the foetus is not able to survive without the mother the rights of the mother are thus placed before that of the foetus. In addition, since pain is considered by the medical authorities as a physical impossibility, one is not looked upon as harming a living creature by performing an abortion, and thus abortion can be seen as an acceptable practise. Following this type of logic, abortion in the modern era no longer has the same sort of stigma attached to it as it did in days gone by. This has eased the way for abortion to be legalised, in many countries, such that operations can now be undergone either unconditionally or after the fulfilment of very minimal conditions.

In the Muslim World, however, history has taken a rather different course. Unlike in the West, where the process of secularisation was quite a drawn out affair, stretching over two or three centuries, in the Muslim World, the process happened much more rapidly. The exclusion of religion from the public domain, which was very much an internal matter in the West, coming as the result of a slow process of change in public attitudes, was, in the Muslim World, forced upon the people by powers trying to impose a foreign system of government copied from the West. Thus it is that those countries which underwent colonisation for a longer period tend to be further down the road to secularisation than those which remained uncolonised, or which were colonised for a lesser period.

One of the results of this imposed secularism was a lack of uniformity in the degree to which different parts of the governmental system underwent the secularising process. The secularising forces were much more interested in reforming the economic and political arenas, so as to be in line with western governments, than they were in reforming, for example, the area of family law. As a result, family law, in many Muslim countries has remained the domain of Islamic Sharī‘ah law.

What this means for our abortion question is that the abortion laws in most Muslim countries have remained unchanged from the days when they were under the complete rule of Islamic law. Consequently, most Muslim countries still today prohibit abortion except for limited reasons. One example of a country still maintaining the Islamic abortion law is Egypt, and thus,

The Egyptian Criminal Law prohibits abortion and punishes the offenders irrespective of the stage at which it is committed. The Egyptian Criminal Law considers abortion a crime, subject to certain conditions specified by the Law. For example, a punishment is inflicted on every one who participates in causing an abortion to a pregnant mother, or helps or guides her to carry it out, or conducts an operation leading to abortion. This applies even to the cases where the mother’s prior consent is obtained and irrespective of whether the other party is a doctor or a layman.[11]

Similar laws are found in other Muslim countries, with serious consequences for anyone found guilty of causing or aiding in an abortion, except under the strict circumstances allowed by the law.

The only exceptions to the continuation of the classical abortion laws up to modern times can be found in Tunisia and Turkey and those countries that were under the domination of the Soviet Union. These countries have adopted much more lenient laws on this question, allowing abortion on request, as is the situation found in many western countries and found generally throughout the countries of the old Soviet Union.[12] The reason for this lack of continuity between these countries and the rest of the Muslim World can be explained by the greater degree of secularism found in there. Islamic law was replaced by its western secular equivalent or by communist rule, in the countries of the old Soviet Union, even in the area of family law. Thus the legislation on abortion has, in the cases of Tunisia and Turkey followed the same path as it has in many western countries, and, in the cases of those Muslim countries that used to be under Soviet domination, followed the path laid down by the old communist state.

This shows us that in terms of actual legislation there has been very little change in the modern era, most countries maintaining the same abortion laws as were laid down when these countries were under the rule of Islamic Sharī‘ah law.

Let us now turn to the contemporary Islamic scholarly rather than legal debate and see whether there has been any redefining of the classical opinions regarding abortion. The scholars who have shaped the contemporary intellectual debate on the subject of abortion in Islamic law tend to fall into two categories, the traditional scholars of Islamic law, and those Muslim medical doctors who have discussed this question.

As far as the traditional scholars of Islamic law are concerned, most of those who have had spoken or written on this subject tend to follow the same arguments that were put forward by their classical counterparts. Thus it may be seen that, when any discussion on the question of abortion arises, they make the basis of their exposition of the Islamic view the conclusions of the classical debate, quoting from the classical scholars in a similar way to that given above.

One example of a modern debate on this subject can be found in the results of a declaration of the High Council for Islamic Legal Opinions in Kuwait. As the result of discussions on this subject, they issued the following statement on 29 September 1984,

It is prohibited for a medical doctor to perform on a pregnant woman who has completed 120 days after conception except to save her life from a certain danger from the pregnancy.

Abortion may be done with the consent of the two parents before the completion of 40 days from conception.

After 40 days and before 120, abortion may not be done except in the following two circumstances:

(i) If the continuation of pregnancy would cause grievous harm to the woman which she cannot bear or would continue after birth.

(ii) If it is certain that the foetus will be born with severe deformation, or physical or mental deficiency, neither of which can be cured.[13]

Here we can see the same sort of division of stages as was found in the writings of the classical scholars. The first division is made at forty days, when abortion is unconditionally permitted, the foetus not having yet been properly formed. The second stage is between 40 and 120 days, when abortion is allowed under strict circumstances, the foetus having been properly formed but without the soul being believed to have entered it. The third and final stage is after 120 days, after which time the soul is believed to have entered the body, and after which time abortion is only allowed in order to save the mother life.

As far as the contribution of Muslim members of the medical profession is concerned, what is apparent is that Muslim doctors seem to be the ones who are most actively speaking against the practise of abortion. Through looking at the problem from a scientific perspective, they are unable to see any distinctive time after which the soul can been said to have entered the body and life to have commenced. They see the whole process of life in the womb as full of activity and apparent life, science being unable to answer the question of when or even if the process of ensoulment takes place. Dr. Hassan Hathout, for example, states regarding this issue that,

“Its (the foetus’) gradual development from a cell to a full-blown infant is a smooth and continuous development, without there being any scientific dividing lines or clear boundaries separating one stage from the other.”[14]

He also states,

“I have been unable to draw a line between the foetus when human and when non-human. I have, moreover, been unable to draw a line, where I should feel concerned for the foetus and where I would feel unconcerned about it.”[15]

 Dr. Madkūr, when discussing his views as to when abortion should be permitted or not, states,

 “I maintain that it is permissible to remove the fertilising agent before it enters the womb and settles on its wall. According to jurisprudence and medicine, the zygote does not reach the womb except after about a week…

One may accept the view that abortion should be permissible until the stage when the clot begins to acquire shape, i.e. before the expiry of the fortieth day. This is in line with the verdicts of scholars of the various schools. But I do not favour the view that abortion should be permissible after this stage unless there is an urgent necessity.”[16]

One reason for the dislike of the medical doctors for the practise of abortion, especially after the passing of 40 days, if not before, is due to modern medical knowledge about the development of the foetus. Science has now come to demonstrate that the embryonic period ends at the end of the eighth week, at which time the beginnings of all the essential structures of the foetus are present. The foetal period, which extends from the ninth week until birth, is characterised by growth and elaboration of structures.[17] This causes a potential problem with the prophetic narration given earlier, which seemed to allude to this embryonic period lasting 120 days, a time period that in reality is much shorter. This in turn posses a problem for the classical views on abortion, most of which base the supposition of ensoulment taking place at 120 says on this narration. If the three stages, implied by the narration as taking 40 days each, actually all occur somewhat more rapidly, then there is no real basis for saying that ensoulment takes place at 120 days and thus there is no real basis for allowing abortion up until 120 days.

What is now known by science is that the three stages mentioned in the narration, the nutfa, ‘alaqa and mudgha stages, can all be seen to have been completed by 40 days. Sheikh Abdul-Majeed A. Azzindani, in discussing the problematic nature of this prophetic narration, reinterprets the narration, such that each stage does not last for 40 days, but that the whole period, containing the three stages, lasts for forty day, with each stage being a portion of that forty days. He states regarding the narration that it,

 …had been interpreted to mean that each of the stages took 40 days in sequence. However, there is another Hadīth which explicitly states that the stage of creation of the specific differentiated organs start after 42 days.

 “When forty-two nights have passed over the “drops” Allah sends an angel to it, who shapes it and makes its ears, eyes, skin, flesh and bones. Then he says, O Lord, is it male or female? And your Lord decides and the angel records it.”

This Hadīth indicates that the Nutfa, ‘Alaqa and Mudgha stages are completed by 42 days.[18]

This second prophetic narration therefore goes to explain the first more clearly, giving the understanding that the three critical stages are all completed by 40 days, rather than 120 days as previously believed. As evidence for his understanding, Azzindani then goes on to quote from a scholar from the seventh Islamic century, who reached the same conclusion, nearly 800 years before him. The noteworthy scholar, Ibn Azzamalkānī, states,

“Then he becomes ‘Alaqa like that” meaning that in the 40 days mentioned the conceptus will be ‘Alaqa which is completely and perfectly formed within the perfection that is possible for it. Thus they are equal in completion in its generality and not in particularities. “Then he becomes Mudgha like that” i.e. in its own share of the forty days also completely formed as the complete human being is perfectly formed. In Arabic usage, it can be said that a man changes during his life and this can be explained by saying: then he becomes an infant, then he is weaned, then he is a child, then he is a youth, then he becomes middle aged, then he becomes an old man, then He, Allah, decides that he dies after that.[19]

What this means for the question of abortion is that, accepting this understanding of the prophetic narration, ensoulment can no longer be seen as taking place at 120 days, but rather at 40 days. All those legal opinions, which therefore allowed abortion prior to 120 days but not after, must now be reconsidered with the understanding that ensoulment takes place at 40 days. If abortion is still to be seen as permissible in any way, it must only take place prior to 40 days, except if the life of the mother is endangered. It is necessary that the scholars of Islam, when looking at this question, take this into account, or else that which they were trying to avoid by the prohibition after 120 days, i.e. the killing of a human being, will clearly have occurred.

This gives us a brief look at the Islamic position on the question of abortion and recent developments to the classical opinions. We have seen how, during the classical period, the scholars of Islam gave differing rulings concerning the permissibility of abortion, some allowing it unconditionally, while others prohibited it except in extreme circumstances. We have also seen that their modern counterparts seem to base their opinions on the classical views, without much emphasis being given to the possible effects of modern medical knowledge on these views. The result being that there seem to be very few contemporary redefinitions of the Islamic abortion law. In fact, contrary to expectations, the most opposition to abortion can be found within the Muslim medical community, whose arguments have been shaped by the medical advancements of recent years. Whereas medical advances have been the cause of an easing of abortion laws in many western countries, the same medical advances have been the cause of calls for greater strictness amongst the Muslim medical community. What is no doubt needed is a greater degree of synthesis between these two groups of Muslim scholars, so as to have a proper understanding of this important issue, something likely to be of greater and greater need in the future.

NOTES

[1] M. Anees, Islam and Biological Futures (London, 1989), p.135.

[2] Ibid., p.136.

[3] M.A. Haleem, “Medical ethics in Islam” in Choices and Decisions in Health Care, ed. A. Grubb (Chichester, 1993), p.12.

[4] An-Nawawī’s Forty Hadīth, translated by E. Ibrahim and D. Johnson-Davies, (Lebanon, 1990), p.36.

[5] Kitāb al-Durr on the margin of Hāshiyat Ibn ‘Ābidīn, vol.2, p.411, cited in M. S. Madkūr, “Sterilization and Abortion from the point of view of Islam” in Islam and Family Planning (Beirut, 1974), vol.2, p.272.

[6] Ibid., p.273.

[7] Cited in B. Musallam, Sex and Society in Islam (Cambridge, 1983), p.57-58.

[8] Hāshiyat al-Dasūqī ‘alā al-Sharh al-Kabīr, vol.2, p.266, cited in Madkūr, “Sterilization and abortion”, p.274.

[9] Musallam, Sex and Society, p.58.

[10] M. S. Madkūr, “Sterilization and Abortion from the point of view of Islam” in Islam and Family Planning, vol.2, p.280.

[11] Madkūr, “Sterilization and Abortion”, p.282.

[12] A. Rahman, L. Katzive and S. K. Henshaw, “A Global Review of Laws on Induced Abortion, 1985-1997” in International Family Planning Perspectives, Volume 24, No. 2, June 1998.

[13] Cited in: Haleem, “Medical Ethics”, p.14.

[14] Hathout, “Induced Abortion”, p.315.

[15] Ibid., p.314.

[16] Madkūr, “Sterilization and Abortion”, p.281.

[17] K. L. Moore, The Developing Human, p.5.

[18] Islamic Additions to Moore, The Developing Human, p.84a.

[19] Ibid., p.84b.

BIBLIOGRAPHY

M. Anees, Islam and Biological Futures, London: Mansell Publishing Limited, 1989.

M.A. Haleem, “Medical ethics in Islam” in Choices and Decisions in Health Care, ed. A. Grubb, Chichester: John Wiley & Sons Ltd., 1993.

An-Nawawi’s Forty Hadith, translated by E. Ibrahim and D. Johnson-Davies, Lebanon: The Holy Koran Publishing House, 1990.

M.M. Pickthall, The Meaning of the Glorious Koran, New York: Mentor Books, 1974.

M.S. Madkūr, “Sterilization and Abortion from the point of view of Islam” in Islam and Family Planning, Beirut: International Planned Parenthood Federation, 1974.

B. Musallam, Sex and Society in Islam, Cambridge: Cambridge University Press, 1983.

H. Hathout, “Induced Abortion”, in Islam and Family Planning, Beirut: International Planned Parenthood Federation, 1974.

A. Rahman, L. Katzive and S.K. Henshaw, “A Global Review of Laws on Induced Abortion, 1985-1997” in International Family Planning Perspectives, Volume 24, No. 2 (http://www.agi-usa.org/pubs/journals/2405698.html)

K.L. Moore, The Developing Human with Islamic Additions, Jeddah: Dar al-Qiblah, 1983.

V. Rispler-Chaim, Islamic Medical Ethics in the Twentieth Century, Leiden: E.J. Brill, 1993.

M. Shaltūt, Al-Fatāwā, Cairo: Dar al-Shorok, 1983.

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