Question and answer details
|As-salamu `alaykum. I have heard recently that some scholars issued a ruling that a woman who falls pregnant because of rape should abort her fetus. Please, clarify this ruling for us.|
|Muhammad Iqbal Nadvi|
|Muhammad `Ali Al-Hanooti|
Wa `alaykum as-salamu wa rahmatullahi wa barakatuh.
In the Name of Allah, Most Gracious, Most Merciful.
All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.
Dear sister in Islam, thanks you for your question which reflects your care to have a clear view of the teachings of Islam.
Dear sister, abortion is a grave and heinous crime. It is a form of murder and deserves Almighty Allah's punishment. However, it may be approved under necessity and in the first days of pregnancy.
In his response to the question, Sheikh Muhammad Iqbal Nadvi, Director and Imam of Al-Falah Islamic Center, Oakville, Ontario, Canada, states,
I am not aware of the fatwa issued by the academy in this regard; therefore, I am not in a position to judge it or give comments on its details.
However, generally speaking, the discussion among scholars with regard to abortion before 120 days of gestation, is related to when the embryo becomes a human soul after the breath of life has been blown into it. Those who allow abortion before 120 days for severe medical complications and the like argue that since the breath of life has not been blown into the embryo, it is not considered a human being, and therefore, abortion would not be tantamount to killing.
Sheikh Muhammad `Ali Al-Hanooti, Mufti of Washington Metropolitan Area, adds,
Abortion is absolutely impermissible unless there is a necessity; irrespective of the age of the fetus, because if anyone causes damage to the pregnancy by causing a miscarriage or abortion, there will be a penalty called 'ghurrah', which is 1/10 of the full diyah (compensation) for accidental killing; this amount used to be equivalent to 100 camels. So, for killing a fetus, the compensation would be 10 camels.
Given the above, abortion is considered unlawful unless it is absolutely necessary.
Certainly, if the fetus is more than 119 days old, it is haram (unlawful) to abort it because the soul joins the body and becomes a human being. The soul means life and its departure causes death. When the fetus is 120 days, there should be a study to determine whether abortion is required on the basis of the Shari`ah and medical consideration.
I consider rape cases to be an exceptional case if the fetus is in the early stages of development. Some schools of thought would only allow it if it is less than 6 weeks old. However, the hadith of Ibn Mas`ud saying the soul is implanted at 120 days provides stronger evidence that it is allowed up until 119 days.
We may also quote Sheikh Yusuf Al-Qaradawi, the eminent Muslim scholar, saying in an old fatwa:
The basic principle concerning abortion is that it is unlawful as I have clarified in previous fatwas; it is not allowed from the moment of conception when it becomes a new being and is placed in a place of safety, i.e., the womb, even if this being is the result of an unlawful relationship such as adultery. In the case of the Ghamidi woman who had confessed to adultery and thus, the punishment of stoning became obligatory, the Messenger (peace and blessings be upon him) told her to go away until after she had given birth; then after she had given birth, he told her to go away until the child was weaned.
The above is the trend I follow in my fatwas on this issue in normal cases. However, there are some jurists who think that it is permissible for a woman to have an abortion within the first forty days of pregnancy. Some of them even permit it until before the soul is breathed into the embryo.
Despite the above-mentioned view which I follow, there are some exceptional cases in which it is possible to adopt one of the latter views, and the stronger the excuse, the clearer the reason for the dispensation. If the abortion takes place within the first forty days, it means that the dispensation is more appropriate.
Undoubtedly, raping a Muslim woman by an evil enemy is a strong reason for the victim to have an abortion, for she will hate this fetus, the result of this iniquitous attack, and she will want to get rid of it. So, this dispensation is to be given because of necessity, especially in the first days of the pregnancy. However, this case of necessity should be determined by religious scholars, doctors and people of vast experience and wisdom. Otherwise, the original rule (of prohibition) should be applied.
Allah Almighty knows best.