Encyclopedia of Contemporary Jurisprudence

Abortion

Author: Hadi Naqavi

Abortion is an ancient issue that has found new instances in the modern world. Today, the health and sickness or defect and perfection of a fetus can be identified, and we are aware of the dangers that carrying a fetus can pose to the mother. It is even possible to grow or maintain a fetus outside the mother's womb. Maintaining a fetus resulting from rape or an illicit relationship is also a matter that has been a subject of debate previously. Researchers in Islamic jurisprudence and law have given opinions on the abortion of a disabled fetus, an IVF fetus, a fetus that poses a mortal danger to the mother, and a fetus resulting from an illicit relationship, and significant research works have been written on this topic. According to the fatwas of several jurists, in cases of precise diagnosis of a fetal disease, or a conflict between preserving the fetus and preserving the mother, or the unbearable consequences of maintaining an illegitimate fetus, abortion is permissible based on the principle of prioritizing the more important over the important.

Position and Importance of Abortion

Human abortion has been a question and an affliction for society since the past. In Islam, intentional abortion is forbidden (*haram*), and Shia jurists have no disagreement on this ruling. Various situations of abortion, such as the parents' consent, direct action or causation in the abortion, and whether or not the soul has been ensouled, do not affect the aforementioned ruling. However, the population explosion, limited resources, women's rights and freedoms, human rights, interests of states, social welfare, and the high number of illegitimate or unwanted children are tangibly related to the issue of abortion. These kinds of issues and global statistics on abortion have doubled the importance of addressing this topic. The advancement of medical tools and the possibility of diagnosing fetal diseases brought forth the issue of preserving or aborting a defective fetus, and artificial insemination also presented jurists with the dilemma of aborting or maintaining a fetus developed in laboratory conditions.

Sayyid Abd al-A'la Sabzevari considered the general prohibitions on killing as the reason for the prohibition of abortion;[1] for example, verse 151 of Surah al-An'am: "And do not kill the soul which Allah has forbidden, except by right." From Ayatollah Makarem'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.[2] 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*.[3]

Defective or Sick Fetus

There are two opinions on the ruling of aborting a defective or disabled fetus;

  1. A group of jurists, such as Ayatollah Khoei and Imam Khomeini, have specified that aborting a defective fetus is absolutely forbidden.[4] 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.[5]
  2. Some jurists, like 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.[6]

Maintenance of IVF Children

Regarding the 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.[7] The reason for this ruling has not been specified.

Fetus Conceived from Adultery

Regarding the abortion of a fetus resulting from an illicit relationship, two fatwas can be found;

  1. According to the fatwa of most contemporary jurists, abortion of a fetus is forbidden, even if it is the result of adultery (*zina*).[8] The argument of some of these jurists is the general applicability of the evidence prohibiting abortion, such as the reliable narration of 'Ammar,[9] and also that it is considered an instance of killing a soul (*qatl al-nafs*).[10]
  2. Mirza 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.[11] Mohammad Ishaq Fayyadh has also sided with the fatwa of permissibility, removing the first condition.[12] 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 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.[13] 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.[14]

Threat to the Mother's Life

The opinions of jurists when the continuation of pregnancy poses a mortal danger to the mother, according to a specialized and trusted physician, differ before and after the ensoulment of the soul;

Before the Ensoulment of the Soul

Contemporary jurists have permitted the abortion of a fetus before the ensoulment of the soul in the said situation.[15] 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.[16] Indeed, from the perspective of 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).[17]

After the Ensoulment of the Soul

Regarding the abortion of a fetus after the ensoulment of the soul when the mother's life is endangered, jurists have examined the issue from two angles: the mother's duty and the duty of a third party;

Abortion with Third-Party Intervention

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.[18] 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.[19] But 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.[20]

Abortion by the Mother's Agency

If a mother wants to abort her fetus to save her own life, Sayyid Abul-Qasim Khoei and some other jurists consider this act permissible.[21] 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.[22]

Legal and Penal Consequences

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*)

A large number of contemporary jurists, including Khoei and Makarem Shirazi, are of the opinion that abortion after the ensoulment of the soul does not carry retribution.[23] Makarem Shirazi's reasoning is that the narrations on the blood money for a fetus and the narrations concerning intentional or mistaken abortion, despite their abundance and multiplicity, do not mention retribution for the perpetrator, and this itself is the reason for the lack of retribution.[24]

However, Sayyid Abd al-A'la Sabzevari has issued a fatwa for retribution for the perpetrator of abortion in such conditions.[25] Makarem Shirazi considers this opinion a rare one.[26] Sabzevari argues that when the soul has been ensouled and the creation of the fetus is complete, the requirement for retribution – the killing of a respected soul – exists, and there is no obstacle to its implementation. Therefore, the generality and applicability of the evidence that designates retribution as the punishment for a murderer[27] also includes this case.[28]

Blood Money (*Diyah*)

The obligation of blood money on the one who commits a forbidden abortion is not a matter of dispute.[29] 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.[30]

And where abortion is permissible, some, like Montazeri, Fazel Lankarani, and Fayyadh, also consider the payment of blood money to be obligatory.[31] Mohammad Ishaq Fayyadh, regarding the abortion of an illegitimate fetus by relying on the negation of hardship, says: With the falling away of the prescriptive prohibition, there is no reason for the blood money to be waived from the legally responsible person.[32] Therefore, it is included in the reliable narration of Zarif from the Commander of the Faithful (a)[33] and the generalities and applicability of the evidence establishing blood money.[34]

Expiation (*Kaffarah*)

Before the ensoulment of the soul, according to the consensus of Shia jurists, expiation is not required for the one by whose hand the abortion was performed,[35] because the title of "killing" does not apply in this state.[36]

After the ensoulment of the soul in the fetus, according to the well-known view, an expiation equivalent to the expiation for murder[37] is obligatory; because the general applicability of the evidence for the obligation of expiation in the killing of a human includes it.[38] Montazeri has stated the same opinion as an obligatory precaution.[39] But according to Khoei, in this case as well, expiation is not necessary.[40] Because in the verse and narrations, the titles "believer" and "man" are used, and these titles are conventionally understood not to apply to a fetus. Therefore, the expiation for murder is not established for abortion.[41] Given the criterion mentioned in the jurists' reasoning, it seems that the ruling on expiation does not differ in the various forms of abortion.

View of Contemporary Sunni Jurists

Past Sunni jurists unanimously forbid abortion after the ensoulment of the soul.[42] They unanimously agree that the time of ensoulment is after the completion of four months.[43] Wahbah al-Zuhayli considers the prohibition of abortion without an excuse after four months to be a matter of agreement among Sunni scholars – contemporary and past.[44] However, some contemporary Sunni jurists permit intentional abortion before forty days, even without an excuse, and after forty days, they only permit it with an excuse.[45]

Most contemporary Sunni jurists, despite accepting the prohibition of intentional abortion after the ensoulment of the soul, believe that if it is proven by medical science that the birth of the fetus will cause the mother's death, not only is abortion permissible, but according to some of them, like Yusuf al-Qaradawi, abortion becomes obligatory.[46]

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.[47] 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.

Most Important Study Resources

Numerous books, articles, and theses have been written on the topic of abortion;

  1. *Therapeutic Abortion and Fetal Reduction from Medical, Jurisprudential, Legal, and Ethical Perspectives*, by a group of authors, Tehran, SAMT, 2015. See the book's table of contents here
  2. *Al-Ijhad bayn al-Ibahah wa al-Tajrim* [Abortion between Permissibility and Criminalization], by Mayada Mustafa Muhammad al-Mahruqi, Egypt, Alexandria, Dar al-Jami'ah al-Jadidah, 2014. This book was first submitted as a doctoral dissertation in 2012 to the Faculty of Law at Mansoura University, Egypt. See the dissertation here
  3. *Mabani va Mavared-e Javaz-e Seq-e Janin dar Fiqh-e Imamiyyeh va Huquq-e Iran* [Foundations and Cases of Permissibility of Abortion in Imami Jurisprudence and Iranian Law], by Ehsan Abdoltajdini, Faculty of Literature and Humanities, Razi University, 2018. See the first 20 pages of the thesis here
  4. *Al-Ijhad wa Mawani' al-Haml fi al-Maqasid al-Shar'iyyah wa al-Majma' al-Fiqhi* [Abortion and Contraception in the Objectives of Sharia and the Fiqh Academy], by Bushra Fa'iz Sa'id Haj Hamdan, Malaysia, International Islamic University, 2019. Access the thesis here. Master's thesis.

Footnotes

  1. ↑ Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 112.
  2. ↑ Makarem Shirazi, *Buhuth Fiqhiyyah Hammah*, p. 286.
  3. ↑ Al-Saduq, *Man La Yahduruhu al-Faqih*, vol. 4, p. 171.
  4. ↑ 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.
  5. ↑ A group of researchers, *Mawsu'at al-Fiqh al-Islami*, vol. 5, pp. 396-397.
  6. ↑ Fazel Lankarani, *Jami' al-Masa'il*, vol. 2, p. 394; Makarem Shirazi, *Ahkam-i Pizishki*, p. 93; Khamenei, *Ajwibat al-Istifta'at*, p. 280.
  7. ↑ Makarem Shirazi, *Ahkam-i Pizishki*, p. 88.
  8. ↑ 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.
  9. ↑ Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 253.
  10. ↑ Hakim, *Murshid al-Mughtarib*, p. 355.
  11. ↑ Tabrizi, *Sirat al-Najat*, vol. 9, p. 273.
  12. ↑ Fayyadh, *Tawdih al-Masa'il*, p. 744.
  13. ↑ 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.
  14. ↑ Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 327.
  15. ↑ 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.
  16. ↑ A group of researchers, *Mawsu'at al-Fiqh al-Islami*, vol. 5, p. 399.
  17. ↑ Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*, vol. 1, p. 64.
  18. ↑ 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.
  19. ↑ Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 254.
  20. ↑ Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*, vol. 1, p. 65.
  21. ↑ Khoei, *Sirat al-Najat*, vol. 1, p. 332; Fazel Lankarani, *Ahkam-i Pizishkan va Bimaran*, vol. 1, pp. 114-115; Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*; vol. 1, p. 65.
  22. ↑ Khoei, *Mawsu'at al-Imam al-Khoei*, vol. 9, p. 318.
  23. ↑ Khoei, *Takmilat al-Minhaj*; p. 134; Montazeri, *Al-Ahkam al-Shar'iyyah*, p. 562; Golpayegani, *Majma' al-Masa'il*, vol. 3, p. 291; Vahid Khorasani, *Minhaj al-Salihin*, vol. 3, p. 589; Makarem Shirazi, *Buhuth Fiqhiyyah Hammah*, p. 292; Fazel Lankarani, *Ahkam-i Pizishkan va Bimaran*, p. 121.
  24. ↑ Makarem Shirazi, *Buhuth Fiqhiyyah Hammah*, p. 292.
  25. ↑ Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 112.
  26. ↑ Makarem Shirazi, *Istifta'at Jadid*, vol. 1, p. 403.
  27. ↑ Quran 17:33; Hurr al-'Amili, *Wasa'il al-Shi'a*, vol. 29, p. 52, bab 19, min abwab al-qisas fi al-nafs, h. 1.
  28. ↑ Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 112.
  29. ↑ A group of researchers, *Mawsu'at al-Fiqh al-Islami*, vol. 5, p. 402.
  30. ↑ Fazel Lankarani, *Tafsil al-Shari'ah, al-Diyat*, p. 288.
  31. ↑ Montazeri, *Ahkam-i Pizishki*, p. 106; Fazel Lankarani, *Ahkam-i Pizishkan va Bimaran*, p. 117; Fayyadh, *Minhaj al-Salihin*, vol. 3, p. 441.
  32. ↑ Fayyadh, *Minhaj al-Salihin*, vol. 3, p. 441.
  33. ↑ Hurr al-'Amili, *Wasa'il al-Shi'a*, vol. 29, abwab diyat al-a'da', bab 19, h. 1.
  34. ↑ Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 327.
  35. ↑ Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 316.
  36. ↑ Fazel Lankarani, *Tafsil al-Shari'ah, Kitab al-Diyat*, p. 280.
  37. ↑ Montazeri, *Ahkam-i Pizishki*, p. 107.
  38. ↑ Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 316.
  39. ↑ Montazeri, *Ahkam-i Pizishki*, p. 107.
  40. ↑ Khoei, *Mawsu'at al-Imam al-Khoei*, vol. 42, p. 503.
  41. ↑ Khoei, *Mawsu'at al-Imam al-Khoei*, vol. 42, p. 504.
  42. ↑ Al-Najimi, *Al-Ijhad: Ahkamuhu wa Hududuhu fi al-Shari'ah al-Islamiyyah wa al-Qanun al-Wad'i*, p. 33.
  43. ↑ Al-Najimi, *Al-Ijhad: Ahkamuhu wa Hududuhu fi al-Shari'ah al-Islamiyyah wa al-Qanun al-Wad'i*, p. 33.
  44. ↑ Al-Zuhayli, *Al-Fiqh al-Islami wa Adillatuh*, vol. 4, p. 2646.
  45. ↑ Qamashi, "Intentional Abortion from the Sunni Perspective," p. 386.
  46. ↑ Qamashi, "Intentional Abortion from the Sunni Perspective," p. 380.
  47. ↑ Qamashi, "Intentional Abortion from the Sunni Perspective," p. 382.

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