Is it permissible to have an abortion? Is it permissible to have a two-month old fetus removed?
Submitted by on Mon, 02/01/2017 - 12:32
Dear Brother / Sister,
In terms of its religious decree, abortion means to kill the fetus in or outside the uterus through material or immaterial intervention by the mother or somebody else.
The fetus is the child in the uterus beginning from the first day of the pregnancy.
Killing the fetus, which used to be carried out primitively before the advancement in surgery, is carried out on the operation table generally by doctors today.
B- Historical background
Killing the fetus deliberately is not mentioned in the Quran and hadiths - probably because it was rarely carried out or it was not carried out at all at that time. When the scholarly science of fiqh formed and books were written about it (beginning from the end of the first century of the Migration), the issues of killing the fetus deliberately or accidentally were dealt with; afterwards (after the first four centuries when mujtahid imams lived and the activities of ijtihad were maintained in a widespread manner), the issue whether it was permissible to destroy the fetus in the uterus within a certain period of time in order to prevent birth or not was discussed.
C- Abortion in the binding resources:
"The murder of killing girls by burying them alive" described as "wa'du'l-banat" in the Quran is mentioned clearly in special verses; the issue of killing the fetus is not mentioned specifically but through general explanations. Especially the verses "that prohibit killing a person unjustly" encompass killing the fetus too.
1. It is stated in the chapter of al-Anam (6/98) that Allah produced all people from a single person and that the uterus is one of the stages of this production (that this person remained in the uterus for a while). It was forbidden to kill children and to take life by verse 151 of the same chapter. The fetus is definitely included in the concept of "nafs" (life) and probably included in the concept of walad-awlad (children).
2. In the chapter of al-Mumtahina (60/12), the Prophet (pbuh) is asked to take the oath of fealty from women that they will not commit crimes, sins and murders; "killing children" is included among those sins and murders. The fetus is included in the scope of "children" mentioned in the verse.
Removing or killing the fetus deliberately in order to prevent birth is not mentioned in hadiths. In the hadiths in which the issue of azl (coitus interruptus; withdrawal) is mentioned, the withdrawal (azl) that is carried with the intention of preventing the sperm from meeting the egg, not destroying the fetus, is defined as "secret wa'd". The hadith about "blowing spirit into", which will be explained later and which is used as evidence for the permissibility of miscarriage and abortion by fiqh scholars, has no relation at all with abortion.
D- Abortion in fiqh:
In the scholarly science of fiqh, which explains the religious decrees (fard, wajib, mandub, mubah, makruh, haram, etc) on things, deeds and relationships acting upon binding evidence and resources, the elimination of the fetus is dealt with in two aspects:
a) whether it is permissible or not,
b) the penalty to be given when the fetus is eliminated intentionally or accidentally.
1. Abortion in terms of being permissible or not:
When it is searched in fiqh whether abortion, killing the fetus and miscarriage are permissible, the determination of whether this thing (fetus) is living and human is given priority. If it is determined that the fetus is living and human, no fiqh scholar can say it is permissible to eliminate the fetus because it is known that Islam dwfinitely prohibits killing nafs, a child who was born and a human being. What makes some fiqh scholars hesitate about the issue and causes them to tend to hold the view that it is permissible for a certain period of time is lack of knowledge, deviating from the aim and misinterpretation; it is caused by the wrong information about medicine and biology.
Missing and wrong information:
Ghazali, who is an expert in Islamic sciences in general and in fiqh in particular, mentioned the issue of eliminating the fetus while explaining the issue of azl (coitus interruptus) in his book called Ihyau-Ulumi'd-Din:
"Azl does not resemble killing the fetus or killing a girl that was born by burying her alive because they involve eliminating what has formed not what will form. This thing that has formed (the fetus) has various stages. The first stage of its existence is the sperm of the man entering the uterus, meeting the water of the woman and becoming suitable for life. It is a murder to destroy and eliminate it. It becomes a bigger murder to eliminate it when it hardens and becomes a piece of flesh. The murder becomes even bigger when the spirit is blown and the creation of the person is completed. The biggest murder is killing this fetus after it leaves the uterus alive. We said the beginning of the existence of man is not the sperm leaving the man but entering the uterus and meeting the water of the woman because a child is not created from the man's water only; it is created from two partners. It is created from the liquids of both the man and the woman or the liquid of the man and the menstrual blood of the woman." (İhya ve şerhi İthaf, V, 380).
Ghazali, who died at the beginning of the Sixth Century of the Migration (505/1111), reflects the knowledge of that age and the following points mentioned in his statement are significant in terms of evaluating the decrees of the fiqh scholars about the fetus:
a) Many fiqh scholars like Ghazali call the sperm of the man and the egg of the woman water (liquid) because the contributions of the man and woman to the formation of the child are called water in religious resources.
b) The thing that forms when two waters mix, that is, when fertilization takes place is called a thing that is suitable to be a living thing instead of being called a living thing; the fertilized egg is called like that.
c) After the egg is fertilized, the stages of development the fetus passes through in the uterus are called alaqah and mudghah. According to many scholars, alaqah means "clotted blood" and mudghah means "a tiny piece of flesh". According to what medicine teaches us today the fetus is not clotted blood or a tiny piece of flesh.
d) The information that a child emerges from the water that comes from the wife and the husband as a result of the sexual intercourse or from the water of the husband and the menstrual blood of the woman does not comply with the science of contemporary medicine.
e) The incident of blowing the spirit is mentioned in the hadith below; there is no information stating what spirit and blowing the spirit meanandserving to form a basis to give a decree about what functions it has related to the creation of man and what it affects.
f) That Ghazali regards the thing occurring in the uterus beginning from the meeting in the uterus as "a phase of the creation of man" despite the missing and incomplete information mentioned above and that he describes eliminating it as a murder determine a clear truth.
The hadith about blowing the spirit:
According to a hadith narrated in the hadith books collecting sound hadiths like Bukhari and Muslim, the Prophet (pbuh) stated the following while explaining the creation of man and the determination of his destiny:
"Each one of you is put together in the womb of the mother in forty days; and then it becomes an alaqah (a clot of thick blood or something hanging) for a similar period, and then a mudghah (a piece of flesh) for a similar period. Then an angel is sent; he blows spirit into it and he is ordered to write four things: the livelihood (rizq), date of death (ajal), deeds of this creature and its situation in the hereafter, that is, whether he will be a person of Paradise or Hell." (Bukhari, Bad'u'l-Khalq, 6; Muslim, Qadar, 1-5).
Apart from this narration recorded in Bukhari and Muslim, there are significant differences between the narration above and different versions of the same hadith in Muslim:
a) The period of time up to the blowing of the spirit in the hadith above is 120 days but there are three different figures in the other narrations: 40, 45, 42.
b) In one of the narrations, it is stated that the eyes, ears, skin, flesh and bones were created after forty-two days and that the angel asked Allah, "a male or a female? and then, Allah made a decree and the angel recorded it.
Since the resources in which these hadiths exist are sound, it is not appropriate to say negative things about the chain of the narrators by saying, "they made up the hadiths, they lied," etc. However, when different statements and contradictions are determined in terms of science and facts as a result of the examination of the text, it is necessary to say," The first narrators who heard the hadith from the Prophet (pbuh) or those who reported from probably made mistakes while reporting." Otherwise, the contradictions and the explanations that are contrary to the truth need to be attributed to the Prophet (pbuh), which is impossible for a Muslim to accept it. The phases of the fetus in the uterus are explained based on the view of somebody looking from outside in the Quran (for instance, al-Muminun: 23/14) and hadiths and people are asked to take lessons from it, to use it as evidence in order to understand the existence, oneness, will and power of Allah. The narrators who reported the hadiths made mistakes in terms of reporting them using the same words as the Prophet (pbuh) used. The reason why we think like this about the hadiths and reach this conclusion is the following important contradictions and the explanations that are contrary to the known truth
a) The figures given for the days that pass up to the blowing the spirit are different as 40, 42, 45 and 120. Since the spirit is blown at the end of a certain period, it is not possible to accept all of those narrations as true.
b) The explanation that the gender of the baby is determined by the Creator after the fortieth day of the pregnancy is contrary to the facts shown by science because the gender of the baby and even some personal properties of the baby become clear on the first day of pregnancy (when fertilization takes place).
c) According to the information given by the specialists of the science of medicine, the heart starts to beat at the end of the third week, the first formations of the eyes and ears, and the buds of the arms and the legs form on the 24th to 25th days, the lenses of the eyes form on the 30th day and the grooves that separate the fingers and toes and the outlines of the ears form on the 36th to 42nd days.
What is more important in terms of our topic is that this hadith has nothing to do with "killing the fetus and doing something to the fetus". It contains explanations about the creation of man and determination of his destiny. Therefore, hadith scholars included this hadith in the chapters of "Creation" and "Destiny (Qadar)".
After these initial explanations related to the evidences based on reasoning and the hadiths on which fiqh scholars based their decrees in this subheading used in order to show whether abortion is permissible or not in terms of fiqh, we can summarize the decrees of madhhabs on abortion as follows:
In Hanafi madhhab
In this madhhab, it is unanimously agreed that it is not permissible to eliminate the fetus and to abort it after 120 days; there are two different views regarding before 120 days. The first view is that it is permissible. Those who say it is permissible base their views on the hadith mentioned above; they say that the child is not created before 120 days, the thing that exists is not a human being but something like flesh and blood and that the organs do not become apparent before 120 days. (Ibn Abidin, III, 176; Ibn al-Humam, II, 495). The second view is that it is not permissible. According to the Hanafi fiqh scholars who hold this view, it is not permissible to eliminate the fetus and to have an abortion even before 120 days unless there is an important reason and excuse. For, it is haram for a person who enters ihram for hajj to hunt an animal; it is also regarded haram for him to break a bird's egg since the egg is the essential element of the bird and the bird emerges from an egg. Similarly, it is a sin to kill the fetus and to have an abortion before 120 days but this sin is not as big as the sin of killing a person. (al-Fatawa al-Haniyya, III, 410). In this book, two examples are given for important excuses:
a) If a woman becomes pregnant when she is still breastfeeding her baby and her milk goes dry and if her husband cannot afford to hire a wet nurse and if the baby faces the risk of death, it becomes permissible to eliminate the fetus, since it is not 120 days old yet and it is regarded as blood since the organs have not become apparent yet in order to save a baby who is outside and living.
b) If the baby is stuck during the birth and if the birth is impossible, it is permissible to remove the baby by breaking it into pieces if it is dead. If the baby is alive, it is not permissible to remove the baby by breaking it into pieces in order to save the mother. For, two lives are equal here and the one that is killed has not done anything to deserve it.
As it is seen, the reason why some Hanafi fiqh scholars regard having an abortion or miscarriage before 120 days as permissible is due to the wrong information whether the thing in the uterus is a human being, clot of blood or piece of flesh. This lack of information is clarified by the following statement: "Unless the thing in the uterus moves and unless it is known that the movement comes from the fetus not due to gas, etc, it cannot be decreed that it is a baby." Nowadays, it is determined about fifteen days after the pregnancy through examination and tests whether the thing in the uterus is a baby or not. It is also known that many organs become apparent in the first forty days. When this information is taken into consideration, it is not possible to say that it is permissible to have an abortion before 120 days according to Hanafi madhhab; such a fatwa is regarded as aiding and abetting a murder.
In Maliki madhhab:
The fiqh scholars of this madhhab express clearly that it is not permissible to kill the fetus and to have an abortion even if it is before forty days. (Dardir, II,266-267).
In Shafii madhhab:
Some fiqh scholars of this madhhab say it is permissible to eliminate the fetus that has not completed forty days due to some reasons similar to those of Hanafis but other scholars like Ghazali say it is haram; it is recorded that the latter is valid. (Shabramillisi, VI, 179).
In Hanbali madhhab:
According to Hanbali fiqh scholars, it is not permissible to eliminate the fetus after the fortieth day of the pregnancy. The fiqh scholars who say it is permissible before the fortieth day base their views on the incomplete information mentioned above.
Ibn Hazm, one of Zahiriyya madhhab imams, says a woman who has the fetus eliminated before 120 days for the first time has to pay a fine and if she does it for the second time, qisas (retaliation) or diyah (blood money) becomes necessary. This statement shows that he does not regard having an abortion permissible. (Muhalla, XI, 31; Zaydan, al-Mufassal, III, 119-127).
(Prof. Dr. Hayrettin Karaman)
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