Abortion

Abortion is the expulsion of the products of pregnancy before the foetus is viable. Any interruption of human pregnancy prior to the 28′ week (6 months) is known as Abortion.

Types of Abortion
1.Spontaneous Abortion (Miscarriage)
This term is used for the delivery of a nonviable embryo or foetus due to foetal or maternal factors.

2.Induced Abortion
This is made by an elective decision to terminate the pregnancy through the ways and means available.

If the induced Abortion is performed to prevent the health or life of the mother, it is called
therapeutic abortion.

When the life of a foetus starts?
- Some scholars think that the inviolable life of the foetus starts after the soul is breathed in him; after 120 days according to one hadith.

* Abdullah bin Mas’ud, may Allah be pleased with him, reported: Allah’s Messenger (saw) said: Verily your creation is on this wise. The constituents of one of you are collected for forty days in his mother’s womb in the form of blood, after which it becomes a clot of blood in another period of forty days. Then it becomes a lump of flesh and forty days later Allah sends His angel to it with instructions concerning four things, so the angel writes down his livelihood, his death, his deeds, his fortune and misfortune. By Him, besides Whom there is no god, that one amongst you acts like the people deserving Paradise until between him and Paradise mere remains but the distance of a cubit, when suddenly the writing of destiny overcomes him and he begins to act like the dwellers of Hell and thus enters Hell, and another one acts in the way of the dwellers of Hell, until there remains between him and Hell a distance of a cubit that the writing of destiny overcomes him and then he begins to act like the people of Paradise and enters Paradise.” (Bukhari & Muslim)

- Some others think that the inviolable life of the embryo starts 40 days after the fuse of the sperm and the egg takes place.
Their proof is one version of the aforesaid hadith reported by ‘Abdullah bin Mas’ud, in which it is stated that the soul is breathed in the embryo’s body 40 days after fertilization takes place.
This version of hadith is supported by some other hadiths narrated by Bukhari and Muslim in which the period is said to be around 40 days.

- Some others think that the inviolable life starts once the embryo implanted itself in the lining of the womb; few days after the fuse of the sperm and the egg takes place.

- And some of them think that the inviolable life starts once the sperm fuses the egg and the product of their fuse gets ready to receive life.

Abortion: lawful or unlawful?
Before 120 days:
1-There is an opinion of few scholars from different four madhahib (the four major Islamic juristic schools of thought) that abortion can be carried out before 120 days. This opinion seems to be based on the assumption that no life exists before 120 days since the soul is breathed only after 120 days. Modem science, however, shows that there is a kind of life, even though it is not a complete life, as modern equipments enable doctors to hear foetal heartbeats by the eighth week.

2-Another opinion of few other scholars is that abortion before 120 days is reprehensible (disapproved).

3-The opinion of some other few scholars is that abortion before 40 days is permissible while it is haram after 40 days.

4-The opinion of the majority of scholars, which is the preferable one according to the four madhahib is that abortion after the beginning of pregnancy is forbidden only for some justifiable reasons such as rape and incest.
However, the offence committed against the foetus in this stage is not on the same level. The crime gets more heinous as the foetus grows up till it becomes a full crime after 120 days.

• The difference between contraception and Abortion is that contraception is to avoid pregnancy; there is no assault or crime against an existent human being. While Abortion is a direct assault against the life of an existing human being.

“O you Prophet: When, believing women come to you to give you their pledge not to associate anything with Allah in worship, that they shall not steal, that they shall not commit adultery, that they shall not kill their children, that they shall not utter slander, intentionally forge falsehood, and that they shall not disobey you in any just cause, then accept their pledge and pray to Allah for their forgiveness, for Allah is oft-forgiving most merciful.” (60:12)

The punishment of Abortion before 120 days
Majority of scholars:
-If the matter aborted is in the form of human being when the organs has started to appear or when the specialists confirm that the matter aborted is an embryo or pre-embryo, the person who caused abortion has to pay Ghurra (1/20 of diyyah — 75 dirhams. I dirham = 31 gold grams).

-If the matter aborted is still in the form of blood, the person who caused abortion will not be required to pay ghorra. There may be a punishment as imposed by law or a judge for the assault on the mother.

Imam Malik:
The person who caused abortion is required to pay ghorra even if the matter aborted is still in the form of blood.

-Abortion After 120 days:
All scholars unanimously agree that Abortion is forbidden.Deliberate abortion after the quickening takes place (when the soul is breathed in the foetus after 120 days) is a crime against a living human being. This includes the cases when the foetus is a result of unlawful sexual intercourse (zina), rape or incest. Although this foetus is the result of a crime, the foetus will not be held responsible for the crime of his parents or one of them. He is a distinct human being with full rights and his life should be respected and preserved like the life of others.

When abortion may be allowed?
Abortion would be legitimate if the mother has a health condition that makes the continuation of pregnancy a danger to her life.
When a reliable medical source gives a proof indicating that continued pregnancy, even after the confirmation of the existence of life, would definitely lead to the mother’s death, abortion would be permissible on the legal maxim: “Lesser evil is to be perpetrated.”

The punishment of Abortion after 120 days
1-If the foetus is delivered alive with any visible symptoms of life:
The case will be dealt with as an act of manslaughter. The person responsible for this abortion will be subject to the following kinds of punishment:
Religious punishment: Kaffarah (to free a slave, or to fast 2 consecutive months).
Legal responsibility: full blood money (diyyah) in addition to a punishment as imposed by law or the judge if abortion is caused by an assault on the mother.

2-If the foetus is delivered dead:
Legal responsibility: ghurrah should be paid which is equal to 1/20 (5%) of blood money
(diyyah) in addition to a punishment as imposed by law or the judge if abortion is caused by an assault on the mother.

Taken from book :
Islamic values related to different professions:
Contemporary medical isues
Biomedical issues
by : Dr. Hassan Hendaoui