Abortion: Difference between revisions

[[Sayyid Abd al-A'la Sabzevari]] considered the general prohibitions on killing as the reason for the prohibition of abortion;<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 112.</ref> for example, Qurʾan 6:151: "And do not kill the soul which Allah has forbidden, except by right." From Naser Makarem Shirazi's perspective, this verse can be used for the prohibition of abortion only if the creation of the fetus is complete and the soul has been breathed into it, so that killing is applicable to it legally and customarily. Therefore, the stages before that are not included in the said verse.<ref>Makarem Shirazi, *Buhuth Fiqhiyyah Hammah*, p. 286.</ref> Also, narrations from the Infallible Imams, such as the reliable narration (*muwaththaqah*) of Ishaq ibn 'Ammar from Imam al-Kazim (a), which Shaykh al-Saduq has narrated in his book *Man La Yahduruhu al-Faqih*.<ref>Al-Saduq, *Man La Yahduruhu al-Faqih*, vol. 4, p. 171.</ref>

# A group of jurists, such as [[Sayyid Abu al-Qasim Khoei]] and [[Sayyid Ruhollah Musavi Khomeini]], have specified that aborting a defective fetus is absolutely forbidden.<ref>For example: Khoei, and Tabrizi, *Fiqh al-A'dhar al-Shar'iyyah wa al-Masa'il al-Tibbiyyah*, p. 150; Khomeini, *Istifta'at*, vol. 3, p. 291; Sistani, *Al-Fatawa al-Muyassarah*, p. 432; Safi Golpayegani, *Istifta'at-i Pizishki*, p. 66; Montazeri, *Ahkam-i Pizishki*, p. 103.</ref> The authors of *Mawsu'at al-Fiqh al-Islami* have stated the reason for this fatwa to be the general applicability of the evidence prohibiting abortion, especially after the ensoulment of the soul, because it is an instance of killing a human.<ref>A group of researchers, *Mawsu'at al-Fiqh al-Islami*, vol. 5, pp. 396-397.</ref>

# Some jurists, like [[Mohammad Fazel Lankarani]], believe that aborting a defective fetus is permissible only if three conditions are met: (1) it is before the ensoulment of the soul and it has not become a complete human. (2) They are certain that the fetus is defective and flawed. (3) Maintaining it would cause severe hardship (*'usr wa haraj*) for the parents. The reason for the second opinion is the precedence of the evidence negating hardship for the parents over the evidence prohibiting abortion.<ref>Fazel Lankarani, *Jami' al-Masa'il*, vol. 2, p. 394; Makarem Shirazi, *Ahkam-i Pizishki*, p. 93; Khamenei, *Ajwibat al-Istifta'at*, p. 280.</ref>

Regarding the [[IVF children|embryo developed in a test tube]], Makarem Shirazi also specifies that its maintenance is not obligatory as long as it has not taken the form of a living human.<ref>Makarem Shirazi, *Ahkam-i Pizishki*, p. 88.</ref> The reason for this ruling has not been specified.

# According to the fatwa of most contemporary jurists, abortion of a fetus is forbidden, even if it is the result of adultery (*zina*).<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 253; Iravani, *Durus Tamhidiyyah fi al-Fiqh al-Istidlali*, vol. 3, p. 309; Khamenei, *Ajwibat al-Istifta'at*, p. 280; Hakim, *Murshid al-Mughtarib*, p. 355; Golpayegani, (if at least one of the parties to the adultery is a Muslim) *Mukhtasar al-Ahkam*; p. 137.</ref> The argument of some of these jurists is the general applicability of the evidence prohibiting abortion, such as the reliable narration of 'Ammar,<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 253.</ref> and also that it is considered an instance of killing a soul (*qatl al-nafs*).<ref>Hakim, *Murshid al-Mughtarib*, p. 355.</ref>

# [[Mirza Jawad Tabrizi|Jawad Tabrizi]] permits the abortion of an illegitimate fetus under three conditions: (1) it is the result of rape, (2) maintaining the fetus would cause severe hardship for her, (3) and the abortion is performed before the ensoulment of the soul.<ref>Tabrizi, *Sirat al-Najat*, vol. 9, p. 273.</ref> Mohammad Ishaq Fayyadh has also sided with the fatwa of permissibility, removing the first condition.<ref>Fayyadh, *Tawdih al-Masa'il*, p. 744.</ref> Although the reasoning for the fatwa of Tabrizi and Fayyadh has not been specified, according to jurisprudential principles, the implication of the precedence of the evidence negating hardship over the evidence prohibiting abortion can explain part of the reasoning for this fatwa.

Tabrizi and [[Sayyid Abd al-A'la Sabzevari|Sabzevari]] permit the abortion of an illegitimate fetus before the ensoulment of the soul only in a state of necessity for the mother, such as the fear of losing her own life. Tabrizi has introduced the fear of family dishonor and the loss of their good name as an example of necessity.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 327; Khoei and Tabrizi, *Fiqh al-A'dhar al-Shar'iyyah wa al-Masa'il al-Tibbiyyah (al-Muhashsha)*, p. 149.</ref> Sabzevari, in his reasoning, considers this issue to be a case of choosing between the more important (*ahamm*, preserving the mother's life) and the important (*muhimm*, preserving the illegitimate fetus) and considers preserving the mother's life to be precedent from a customary perspective, especially in cases where the mother has repented for her action.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 327.</ref>

Contemporary jurists have permitted the abortion of a fetus before the ensoulment of the soul in the said situation.<ref>Khoei, *Sirat al-Najat*, vol. 1, p. 344; Golpayegani, *Irshad al-Sa'il*, p. 173; Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 253; Khomeini, *Tawdih al-Masa'il*, vol. 2, p. 945; Sistani, *Al-Fatawa al-Muyassarah*, p. 432; Safi Golpayegani, *Istifta'at-i Pizishki*, p. 66; Makarem Shirazi, *Ahkam-i Pizishki*, p. 91; Khamenei, *Ajwibat al-Istifta'at*, p. 279; Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*, vol. 1, p. 64; Tabrizi, *Sirat al-Najat*, vol. 1, p. 333.</ref> This is because, based on well-known principles, the evidence of necessity (*idtirar*, the mother's necessity to abort) and the negation of harm (*la darar*, keeping the fetus is harmful to the mother) conflict with the evidence prohibiting abortion. However, the implication of the precedence of the evidence of necessity and negation of harm is the permissibility of abortion.<ref>A group of researchers, *Mawsu'at al-Fiqh al-Islami*, vol. 5, p. 399.</ref> Indeed, from the perspective of [[Mohammad Asif Mohseni Qandahari]], abortion is obligatory, and the reason for it is the necessity of prioritizing the more important (preserving the mother's life) over the important (preserving the unensouled fetus).<ref>Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*, vol. 1, p. 64.</ref>

Regarding abortion with the intervention of a third party, most contemporary jurists, like Tabataba'i Yazdi, the author of *Al-'Urwah*, and many jurists who have written commentaries on that book, consider abortion to be forbidden for the third party.<ref>Tabataba'i Yazdi, *Al-'Urwah al-Wuthqa*, vol. 2, p. 118; Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 254; Safi Golpayegani, *Istifta'at-i Pizishki*, p. 66; Sistani, *Al-Fatawa al-Muyassarah*, p. 432; Khamenei, *Ajwibat al-Istifta'at*, p. 279.</ref>

Sayyid Abd al-A'la Sabzevari, in justifying this ruling, has said that there is no religious preference for saving the mother's life over the fetus's, and vice versa, and in this situation, one must wait for the divine decree.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 254.</ref> But Mohammad Asif Mohseni Qandahari, in the said scenario, has permitted the killing of the fetus by a physician for the purpose of preserving the mother's life.<ref>Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*, vol. 1, p. 65.</ref>

Khoei's reasoning is based on "the priority of repelling harm over attracting benefit," and he believes that if a harm is directed at two people, one of them is not obligated to endure the harm so that the other does not suffer harm and remains safe, because enduring harm here is a hardship (*'usr wa haraj*), and the legally responsible person is not forced to accept it. Therefore, it is not obligatory for the mother to wait until she dies for her child to live, and the mother can strive to preserve her own life even by killing the child (fetus) in her womb.<ref>Khoei, *Mawsu'at al-Imam al-Khoei*, vol. 9, p. 318.</ref>

In the discussion of abortion, Shia jurists have also addressed the rulings for the person who commits the act and have stated the rulings of retribution (*qisas*), blood money (*diyah*), and expiation (*kaffarah*) for abortion.

===Retribution (*Qisas*)===

===Blood Money (*Diyah*)===

The obligation of blood money on the one who commits a forbidden abortion is not a matter of dispute.<ref>A group of researchers, *Mawsu'at al-Fiqh al-Islami*, vol. 5, p. 402.</ref> In intentional and quasi-intentional abortion, the blood money at all its stages is the responsibility of the killer, and in the case of accidental abortion, it is the responsibility of the *'aqilah* (male paternal relatives), and on this issue as well, there is no disagreement among Shia jurists.<ref>Fazel Lankarani, *Tafsil al-Shari'ah, al-Diyat*, p. 288.</ref>

===Expiation (*Kaffarah*)===

In most contemporary jurisprudential writings, reasons such as "the lesser of two harms" (*akhaff al-dararayn*) or "the lesser of two evils" (*ahwan al-sharrayn*) or "securing a greater benefit" (*jalb maslahah 'uzma*) have been invoked to give precedence to the mother's life over the fetus's life.<ref>Qamashi, "Intentional Abortion from the Sunni Perspective," p. 382.</ref> Therefore, when faced with the necessity of enduring one of two harms or obtaining one of two benefits, reason chooses to endure the lesser harm or obtain the greater benefit.