Ruling on aborting a pregnancy in the early stages
The Council of Senior Scholars issued the following statement:
1 – It is not permissible to abort a pregnancy at any stage unless there is a legitimate reason, and within very precise limits.
2 – If the pregnancy is in the first stage, which is a period of forty days, and aborting it serves a legitimate purpose or will ward off harm, then it is permissible to abort it. But aborting it at this stage for fear of the difficulty of raising children or of being unable to bear the costs of maintaining and educating them, or for fear for their future or because the couple feel that they have enough children – this is not permissible.
3 – It is not permissible to abort a pregnancy when it is an ‘alaqah (clot) or mudghah (chewed lump of flesh) (which are the second and third periods of forty days each) until a trustworthy medical committee has decided that continuing the pregnancy poses a threat to the mother’s wellbeing, in that there is the fear that she will die if the pregnancy continues. It is permissible to abort it once all means of warding off that danger have been exhausted.
4 – After the third stage, and after four months have passed, it is not permissible to abort the pregnancy unless a group of trustworthy medical specialists decide that keeping the foetus in his mother’s womb will cause her death, and that should only be done after all means of keeping the foetus alive have been exhausted. A concession is made allowing abortion in this case so as to ward off the greater of two evils and to serve the greater of two interests.
Al-Fataawa al-Jaami’ah, 3/1056
Rulings to do with abortion
With regard to the rulings following an abortion, they vary according to the time of the abortion, and fall into four categories, as follows:1 – If the pregnancy is aborted within the first two stages (the nutfah (drop) stage which results from the mixing of the “two waters” which is the first forty days after the embryo attaches itself in the womb, and the ‘alaqah (clot) stage where it turns into solid blood during the second forty days), which add up to a total of eighty days, then in this case if it is aborted as a nutfah or ‘alaqah, there are no rulings to be followed, and there is no scholarly dispute on this point. The woman should continue to fast and pray as if she had not had an abortion, but she has to do wudoo’ for each prayer if she has any bleeding, as in the case of a woman suffering from istihaadah (non-menstrual vaginal bleeding).
2 – If the pregnancy is aborted in the third stage, the mudghah (chewed piece of flesh) stage, when the embryo looks like a piece of meat with the limbs and features beginning to appear, which lasts for forty days from the eighty-first to the one hundred and twentieth day, then there are two scenarios:
(i) This embryo does not have any human features and the midwives or other attendants did not testify that this was the beginning of a human being. In this case the ruling on abortion of this mudghah is the same as the ruling on abortion in the first two stages, and there are no rulings to be followed.
(ii) The embryo has complete human features or some human features such as a hand or foot, etc, or there are features but they are indistinct, or the midwives or other attendants testified that this was the beginning of a human being. In this case the rulings on nifaas are to be followed, and this signals the end of ‘iddah (waiting period following divorce or death of the husband, if applicable).
3 – If the pregnancy is aborted in the fourth stage, i.e., after the soul has been breathed into the foetus, which is after the beginning of the fifth month or after one hundred and twenty days of pregnancy have passed. Here there are two scenarios:
(i) If the foetus did not cry after birth, then the rulings mentioned with regard to the second stage of the mudghah are to be followed, but in addition the foetus should be washed, shrouded and the funeral prayer offered for him; he should be given a name and the ‘aqeeqah offered for him.
(ii) If the foetus cried after birth, then the rulings concerning a full-term baby apply, as mentioned above; in addition the child may take possession of wealth bequeathed or inherited; he may inherit or be inherited from, etc.
Fataawa al-Lajnah al-Daa’imah, 21/434-438
Abortion of pregnancy resulting from rape
Because the Muslims have become so weak and humiliated, they, along with their lands and their honour, have become fair game for anyone; the nations call one another to attack them from all sides. Many Muslim women have often become a target for the scavenging wolves of humanity, who do not fear Allaah or any deterrent, as is the case in many countries in the Muslim world, and as has happened in Bosnia and Herzegovina, in the Philippines, in Chechnya, in Eritrea, and in the prisons of some of the contemptible systems of the Arab world. There follow some important points concerning the woman who has been raped: 1 – The raped woman who did her utmost to resist these thugs and their ilk is not guilty of any sin, because she was forced into it, and the one who is forced to do something is not guilty of sin in the case of kufr, which is worse than zinaa (unlawful sexual activity), as Allaah says (interpretation of the meaning): “except him who is forced thereto and whose heart is at rest with Faith…” [al-Nahl 16:106] The Prophet (peace and blessings of Allaah be upon him) said: “Allaah has forgiven for my ummah for their mistakes, what they forget and what they are forced to do.” (Narrated by Ibn Maajah in al-Talaaq, 2033; classed as saheeh by al-Albaani in Saheeh Sunan Ibn Maajah, 1664). The Muslim woman who has fallen prey to a rapist will be rewarded for bearing this calamity with patience, if she seeks reward with Allaah for the harm that has befallen her. The Prophet (peace and blessings of Allaah be upon him) said: “No stress or exhaustion befalls the Muslim, nor worry or distress, even a thorn which pricks him, but Allaah will expiate for his sins because of that.” (Narrated by al-Bukhaari and Muslim). 2 – Young Muslim men should hasten to marry women such as these who have been tormented, so as to reduce their suffering and console them, to compensate them for the loss of the most precious thing that they possess, which is their virginity. 3 – With regard to their having abortions – the basic principle concerning abortion is that it is haraam and is not allowed from the moment of conception when it becomes a new being and is “placed in a place of safety” [cf. al-Mursalaat 77:21], i.e., the womb, even if this being is the result of a haraam relationship such as zinaa. In the case of the Ghaamidi woman who had confessed to zina and thus the punishment of stoning became obligatory, the Messenger (peace and blessings of Allaah 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. 4 – There are some fuqahaa’ who think that it is permissible 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. The stronger the excuse, the clearer the reason for the concession is, and if that is within the first forty days it is, this means that the concession is more appropriate. 5 – Undoubtedly the rape of a Muslim woman by an evil enemy is a strong reason for the Muslim woman and for her family to have an abortion. For she will hate this foetus, the result of this iniquitous attack, and she will want to get rid of it. So this concession is to be given because of necessity, especially in the first days of the pregnancy. 6 – Nevertheless, there is nothing wrong with a Muslim woman who has suffered this disaster keeping the foetus without being forced to get rid of it. If it is decreed that it should remain in her womb for the usual term and she gives birth to it, then it will be a Muslim child, as the Prophet (peace and blessings of Allaah be upon him) said: “Every newborn is born in a state of fitrah (the natural state of man, i.e., Islam).” (Narrated by al-Bukhaari). The fitrah is the religion of Tawheed, i.e., Islam. It has been stated in fiqh that if the parents have different religions, the child should follow the parent who has the best religion. This is in cases where the father is known, but what about the child who has no father? He is a Muslim child, no doubt, and the Muslim society is obliged to take care of his upbringing, to spend on him and to bring him up well. They should not leave the burden to his poor, suffering mother. One of the basic principles of Islam is to relieve distress and hardship, so if a Muslim girl who is keen to remain chaste is exposed to bestial aggression and fears the effect that this may have on her reputation or her honour, or fears that she may be an outcast or that she may be subjected to harm such as being killed, or she fears that she may suffer psychological or nervous diseases, or that her sanity may be affected, or that shame may be brought upon her family for a matter in which she is not guilty of any sin, or that the child will not find any place of safety, then I say: that if this is the case, there is nothing wrong with her aborting the foetus before the soul is breathed into it, especially when it has become easy for a woman to find out if she is pregnant or not, with the advance of medical means of detecting pregnancy in the first week. The earlier the abortion is carried out, the more appropriate this concession is. And Allaah knows best.From Ahkaam al-Janeen fi’l-Fiqh al-Islaami by ‘Umar ibn Muhammad ibn Ibraaheem Ghaanim
Ruling on aborting a deformed foetus
Firstly: The ruling on aborting a foetus that is physically deformed, and that this is permissible before the soul is breathed into the foetus, i.e., before 120 days of pregnancy have passed. This is allowed after exhausting all possible means of treating the problem. But after the soul has been breathed into the foetus it is not permissible to abort it because of deformity.
The parents have to be patient and accept the will and decree of Allaah, and remember the words of Allaah (interpretation of the meaning): “and it may be that you dislike a thing which is good for you and that you like a thing which is bad for you. Allaah knows but you do not know” [al-Baqarah 2:216] “it may be that you dislike a thing and Allaah brings through it a great deal of good” [al-Nisa’ 4:19]And the Prophet (peace and blessings of Allaah be upon him) said: “How wonderful is the affair of the believer, for all his affairs are good, and that applies to no one but the believer. If something good happens to him he gives thanks and that is good for him, and if something bad happens to him he bears it with patience and that is good for him.” Narrated by Muslim, 2999.
Secondly: Here we will add something from a fatwa of the Standing Committee concerning this matter. The Standing Committee was asked about aborting a pregnancy in the fifth month, after scans proved that the foetus was deformed and the top of the skull was absent. They replied: It is not permissible to abort the foetus because of the deformity mentioned in the question. Allaah may heal the foetus during the remainder of the pregnancy, and it may be born normal and healthy, as has happened to many people. Fataawa al-Lajnah al-Daa’imah, 21/440.They were also asked about a pregnant woman who was treated for cancer with radiotherapy, which would affect the foetus and cause it to be born deformed – is it permissible to abort it?
They replied: It is not permissible to abort the foetus which it is feared may be deformed. Rather the matter should be left to the will of Allaah; it may be free of deformity. Fataawa al-Lajnah al-Daa’imah, 21/249.They were also asked about a woman in the fifth month of pregnancy; scans had shown the presence of several deformities in the foetus which made the doctors sure that it would die after birth. These deformities were as follows: a deformity in the heart, a severe deformity of the spinal cord and spinal column, the size of the head is very small, there is a large sac between the head and body that is bigger than the head, the intestines are outside the abdominal cavity, and there is a deformity in the brain. Is it permissible to abort it?
They replied: After studying the question, the Committee replied that it is not permissible to abort this pregnancy, because often the doctor’s reports are speculative, and the basic principle is that the foetus must be respected and it is forbidden to abort it, because Allaah may make the foetus whole during the remainder of the pregnancy, so it may be born free of the things that the doctors mentioned, even if what they said was correct. We must think positively of Allaah and ask Him to heal him and make him whole, and to cause him to be born healthy. His parents have to fear Allaah and ask Him to heal him from all ills and to delight them with a healthy child. The Prophet (peace and blessings of Allaah be upon him) said: “Allaah says: ‘I am as My slave thinks I am.’” Fataawa al-Lajnah al-Daa’imah, 21/250-251.They were also asked about a woman in the fifth month of pregnancy, whose foetus has some deformities which expose the mother’s life to danger. Is it permissible to abort it?
They replied: After studying the question, the Committee replied that if the situation is as described, and continuation of the pregnancy to full term will result in danger to the mother’s life, then there is nothing wrong with aborting the pregnancy before it reaches full term, in order to protect the mother’s life. But if the abortion is because of the deformities only, then it is not permissible to abort the pregnancy.Fataawa al-Lajnah al-Daa’imah, 21/452.
Husband forcing his wife to abort a pregnancy
Aborting a pregnancy is not permissible, whether the soul has been breathed into the embryo or not, but if that is after the soul has been breathed in, the prohibition is more emphatic. If a husband tells his wife to abort a pregnancy, it is not permissible for her to obey him. Shaykh Muhammad ibn Ibraaheem (may Allaah have mercy on him) said: Trying to abort a pregnancy is not permissible if it is not proven that the foetus has died; if that is proven then it is permissible. Majmoo’ Fataawa al-Shaykh Ibn Ibraaheem, 11/151 Shaykh Saalih al-Fawzaan (may Allaah preserve him) said: Firstly:It is not permissible to abort a pregnancy. Once pregnancy is discovered, it must be protected and it is haraam for the mother to harm the pregnancy or disturb it in any way, because it is a trust that Allaah has placed in her womb and it has rights, so it is not permissible to mistreat it, harm it or destroy it.
The shar’i evidence indicates that it is haraam to abort a pregnancy. The fact that a baby cannot be born without an operation is no excuse for abortion; many women only give birth by means of an operation (i.e., caesarian), so this is no excuse for aborting the pregnancy. Secondly: If the soul has been breathed into the foetus and it has started to move, then it is aborted after that and it dies, then (the woman) is regarded as having killed a soul and she is obliged to offer expiation by freeing a slave; if that is not possible, then she must fast for two consecutive months in repentance to Allaah. That is if four months of pregnancy have passed, because in that case the soul has been breathed into the foetus. If it is aborted after that, then kafaarah (expiation) as described must be offered. This is a serious matter which cannot be taken lightly. If a woman cannot bear a pregnancy for reasons of sickness, then she has to take medication to prevent getting pregnant in the first place; she may take contraceptive pills to delay getting pregnant for a while, until she regains her health and strength. Al-Muntaqa, 5/301-302Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) was asked about a man who said to his wife: “Abort what is in your womb and the sin will be on me.” If she does that and listens to him, what expiation will they have to offer?
He replied: If she does that, then they both have to offer expiation by freeing a believing slave; if that is not possible then they have to fast for two consecutive months and they have to give a male or female slave to the heir that did not take part in the killing, and not to the father, because the father is the one who ordered that he be killed, so he does not deserve anything. “A male or female slave” is the diyah (blood money) for the foetus, i.e., the value of a male or female slave, which the scholars stated is equivalent to one-tenth of the diyah for his mother.
Abortion of a foetus resulting from a zina relationship
The efforts and ijtihaad of the fuqaha’ have focused on abortion in general terms, and the rulings on that and the consequences that may follow. They have not gone into details concerning cases where the pregnancy results from immorality. This may be because they consider that to come under the same ruling as abortion of a pregnancy resulting from a proper marriage. If abortion of a pregnancy resulting from a proper marriage is haraam under normal circumstances, then it is even more so in cases where the pregnancy results from immorality, because permitting abortion of pregnancy which results from immorality would encourage evil actions and the spread of immorality. One of the basic principles of Islam is that it forbids immorality and all the ways that lead to it, e.g., it forbids tabarruj (wanton display of one’s charms) and free mixing (of men and women).
In addition, an innocent foetus which has committed no sin should not be sacrificed because of a sin committed by someone else. Allaah says (interpretation of the meaning): “No one laden with burdens can bear another’s burden” [al-Israa’ 17:15]
It is known that the Messenger of Allaah (peace and blessings of Allaah be upon him) sent the Ghaamidi woman who was pregnant as a result of zinaa away until she gave birth, then after the birth he sent her away until she had breastfed the child and weaned him. She came back with the child who had a piece of bread. The Prophet (peace and blessings of Allaah be upon him) gave the child to one of the Muslims, then he gave orders that she should be placed in a hole up to her chest, and commanded the people to stone her. Imaam al-Nawawi said concerning this hadeeth: “A pregnant woman should not be stoned until she gives birth, whether her pregnancy is the result of zina or otherwise. This is agreed upon, lest her foetus be killed. The same applies if her hadd punishment is flogging; a pregnant woman should not be flogged, according to consensus, until she has given birth.” (Saheeh Muslim bi Sharh al-Nawawi, 11/202)
This incident shows us the extent to which Islam is concerned with the foetus, even if it is the result of zina: the Prophet (peace and blessings of Allaah be upon him) delayed the carrying out of the hadd punishment on the mother in order to save the life of the foetus.
Can it be imagined that the Lawgiver would permit killing the foetuses by abortion in order to fulfil the wishes of those who follow their whims and desires?
Furthermore, those who say that abortion is permitted within the first forty days of a legitimate pregnancy based their ijtihaad on a concession, like not fasting in Ramadaan for those who have valid excuses, or shortening the four-rak’ah prayers whilst travelling, but it is stated in sharee’ah that concessions cannot be connected to sins.
Imaam al-Quraafi said: “With regard to sins, they cannot be taken as reasons for concessions. Hence one who is travelling for the purpose of sin cannot shorten his prayers or break his fast, because the reason for doing these is travelling, but in this case the reason for travelling is to commit sin, so the concession does not apply, because granting a concession on the basis of sin will encourage people to sin further.” (al-Furooq, 2/33)
Similarly, the basic principles of Islamic sharee’ah do not give the same concessions to a woman who is pregnant as a result of zinaa as are given to a woman who is pregnant as a result of proper marriage, lest that help her in her sin, and it does not make it easy for her to get rid of the results of her evil actions.
In addition, the foetus in the case of zinaa has no guardian, because according to sharee’ah the title of father can only be given to the one who has a child from a woman in a proper marriage. This is part of the meaning of the hadeeth: “The child goes to the owner of the bed and the adulterer gets nothing but the stones (despair, i.e. to be stoned to death).” (Narrated by al-Bukhaari and Muslim). The guardian of the foetus in such cases is the sultan or ruler – the one who is in charge of the Muslims’ affairs – for he is the guardian of those who have no guardian. The way in which the ruler disposes of people’s affairs is based on the interests of the people, and there is no interest to be served in destroying the soul of the foetus in order to preserve the mother’s interests, because that would involve encouraging her and others to persist in this evil action.
It is permissible to resort to aborting the foetus of a woman who has committed this evil action but now wants to repent sincerely, and is very afraid. This is a major principle of sharee’ah, and is subject to the condition that this be done as early in the pregnancy as possible, and that this fatwa be given only in individual cases and not be treated as a general fatwa, lest this concession becomes a means of encouraging evil in the Muslim society. And Allaah knows best.
From Ahkaam al-Janeen fi’l-Fiqh al-Islami by ‘Umar ibn Muhammad ibn Ibraaheem Ghaanim