When is Having an Abortion Permitted?
Hanafi Fiqh
Answered by Mufti Muhammad ibn Adam al-Kawthari
Question
When is having an abortion permitted?
Answer
In the name of Allah, Most Compassionate, Most Merciful,
Abortion and the termination of pregnancy is the expulsion of a foetus from the womb of a woman. This may either be by consuming of certain drugs or by emptying the womb through the process of suction.
Life Is Sacred
Islam regards human life sacred. Allah Most High says:
“And verily we have honoured the children of Adam” [Quran, 17:70]
It does not matter where the life exists. Whether the life is extra-uterine or intra-uterine, its location has no significance on its sanctity. This sanctity applies not only to human life, but to the human body as well. Hence, according to Sharia, the physical body of a human after death is just as sacred as it was before death. The degree of sanctity of life is greater than that of the body. This is one of the reasons why it is unlawful (Haram) to consume the meat of a human, dead or alive.
The Sharia Ruling on Abortion
Abortion can be divided into two stages:
a) Abortion after the soul (Ruh) enters the foetus
b) Abortion prior to the entry of the soul into the foetus
Before mentioning the ruling on abortion with regards to these two stages, it must be remembered here, that according to Sharia the soul (Ruh) enters the foetus at 120 days (4 months) from conception.
The Jurists (Fuqaha) have based this duration upon a Quranic verse and a statement of the beloved of Allah (Allah bless him & give him peace). In the verse, Allah states the stages of development of the embryo in the womb of the mother. Allah Almighty says:
“And verily we did create man from a quintessence (of clay). Then we placed him (as a drop of sperm) in a place of rest, firmly fixed. Then we made the sperm into a clot of congealed blood. Then of that clot, we made a (foetus) lump. Then we made out of that lump bones and clothed the bones with flesh. Then we developed out of it another creature (by breathing life into it). So blessed be Allah, the most marvellous creator.” [Quran, 23:12-14]
In the Hadith recorded by the two most authentic authorities, Imam al-Bukhari and Imam Muslim in their respective Sahih collections, the Messenger of Allah (Allah bless him & give him peace) discussed in detail the periods elapsing between these stages, mentioned by the Quran.
Abdullah ibn Mas’ud (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said:
“The seed of one of you remains in the womb of the mother for forty days in the form of a Nutfa (sperm). Then it remains like a clot for another forty days, and then for a same number of days like a lump of flesh (when the formation of the limbs and the growth of the bones begin) (Sahih al-Bukhari & Sahih Muslim).
The great Hanafi Faqih Ibn ‘Abidin States in his Radd al-Muhtar:
“The soul enters the foutus at one hundred & twenty days (4 months), as established by the Hadith” [Radd al-Muhtar, 1/202]
The ruling on abortion in stage (a) i.e. after the entry of the soul into the foetus which is (as explained) 120 days, is that, it is totally impermissible and tantamount to murder, as it results in the taking out of an innocent life. All the scholars have unanimously condemned such a ghastly act.
Imam Ibn Taymiyya states in his Fatawa collection:
“Aborting a foetus has been declared unlawful (Haram) with the consensus of all the Muslim scholars. It is similar to burying an infant alive as referred to by Allah Almighty in the verse of the Quran: “And when the female infant, buried alive, will be asked as to what crime she was killed for” (Surah al-Takwir, 8 ) [Fatawa Ibn Taymiyya, 4/217]
Ibn ‘Abidin (Allah have Mercy on him) also states the prohibition of this gruesome act in his treatise ‘Radd al-Muhtar’:
“If a woman intends to abort her pregnancy, then the Fuqaha have said: If the period of the soul being blown into the foetus has elapsed, it will be impermissible” (Radd al-Muhtar, 5/276).
However, some Fuqaha and contemporary scholars have given a dispensation to abort the pregnancy after 120 days, in the situation where the life of the mother is in certain and absolute danger. This is based on the Juristic principle stated in the books of Usul al-Fiqh:
“If one is overtaken by two evils, one should choose the lesser of the two.” [al-Ashbah wa al-Nadha’ir, P.98]
They state that the mother’s life should be saved and the foetus aborted, as the mother is established in life, with duties and responsibilities, whereas the unborn child is still in the mother’s womb. But it should be remembered that the mother’s life must be in certain danger, and that this should be advised by a qualified and experienced Muslim doctor.
With regards to stage (b), i.e. prior to the entry of the soul into the foetus (120 days), the ruling is that, even in this case it is unlawful (Haram) to abort the pregnancy.
The reason why abortion prior to the soul entering the body will not be permitted is that, although there may not be life in the foetus, but the foetus is considered to be part and parcel of the mother’s body as long as it remains in the womb. Thus, just as one’s very own life and also all the limbs and organs of the human body are a trust given by the Almighty Creator, so too is the foetus also a trust given to the mother by Allah, and she will not have a right to abort it.
The only difference here is that the sin of aborting the foetus will be of a lesser degree than aborting it after 120 days. It would not be regarded as murder, rather violating the rights of a human organ entrusted to the mother by Allah Almighty.
It is stated in Radd al-Muhtar:
“It is not permissible to abort the pregnancy before and after the entry of the soul into the foetus.” [Radd al-Muhtar, 5/279]
However, in certain extreme circumstances, it would be permitted to abort the pregnancy before the entry of the soul (120 days), such as: when the woman conceives after being raped, the mother’s life or health is in danger, or repeated pregnancies severely damages her health, etc.
Imam al-Haskafi writes in Durr al-Mukhtar:
“Aborting the pregnancy will be permissible due to a valid reason, provided the soul has not yet entered the foetus”.
It should be remarked here that pregnancy due to unlawful and illegal sex is no reason or excuse for abortion. The embryonic life farm in the mother’s womb is honoured and sacred even though it is a result of adultery (Hidaya, 2/292).
In conclusion, abortion after 120 days is totally unlawful and tantamount to murder. Some Fuqaha, however, have given a dispensation only in the situation where the mothers life is in certain danger. As far as abortion before the 120 days have elapsed is concerned, it will still be unlawful, though the sin will be of a lesser degree, and it will become permissible if there is a genuine and valid reason.
And Allah knows best
Muhammad ibn Adam al-Kawthari, UK
