Question # 408: Actually, this query is on behalf of a muslimah who also lives in the west, but she is bit confused about this issue and doesn’t know where to go and who to ask. Hence, she sent me this Query to ask a sheikh. This sister was married to muslim brother and got pregnant but due to some health concerns at that time plus some other fear of bearing a child, she got scared and etc. (rightly or wrongly) she went ahead and had an abortion. her family supported her at that time but since then since is been living in this constant state of remorse and guilt. through some source she came to know that its equivalent of taking a life, therefore forgiveness she needs to give out some money in charity as diyaat. would you pls. provide some guidance about this question and what valid course of action should be taken? Jazak Allah Khair

bismi-llahi r-raḥmani r-raḥīm,

Assalamu ‘laikum warahmatullahi wabarakatuh,

All praise and thanks are due to Allah (سبحانه و تعالى), and peace and blessings be upon His Messenger (صلى الله عليه و سلم).

Dear questioner,

First of all, we implore Allah (سبحانه و تعالى) to help us serve His cause and render our work for His sake.

Shorter Answer:If the pregnancy was aborted within 40-42 days (or 120 days according to some scholars) or before the soul was breathed into the fetus, then no expiation is required. But what is required is repentance to Allah for this haraam action. However, if the soul has been breathed into the fetus and it has started to move, and then the woman aborts it, then she is considered to have killed a soul and she is obliged to pay diyah (blood money), according to scholarly consensus, which is slave, male or female and if she cannot find one, then one-tenth of the value of the blood money of the fetus’ mother (i.e., five camels) should be paid and according to some of the scholars. She also has to offer kafarah (expiation), which is to free a believing slave; if that is not possible then fast for two consecutive months and repent to Allah. The scholars differ concerning fasting – some say it is compulsory as it is the expiation of killing a person, while others are of the opinion that it is not compulsory since the Prophet (صلى الله عليه و سلم) did not impose it in his judgement. Lastly, diyah is required from everyone who had anything to do with the abortion of the fetus, so the doctor and the woman must both pay it if she took the medicine to help induce the abortion. The diyah should be paid to the heirs of the fetus, but its killer should not take any of it. According to Islamweb.net, the value of the diyah of the fetus is equal to 212.5 grams of gold. Also Refer Question # 328: Is Abortion Allowed in Islam?.

Long Answer: 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 Allah has placed in her womb and it has rights, so it is not permissible to mistreat it, harm it or destroy it. [Hence,] the basic principle is that it is not permissible to abort a woman’s pregnancy at any stage except for a legitimate shar’i reason. If the pregnancy is still a nutfah (drop), i.e., forty days or less, and if aborting it will serve a shar’i interest or ward off some harm that may affect the mother, it is permissible to abort it in this case. That does not include fears of hardship incurred by raising children or not being able to pay their expenses or to educate them, or being content with a certain number of children, or other excuses that are not acceptable according to shari’ah.

But if the pregnancy has lasted for more than forty days, it is haraam to abort it, because after forty days it becomes an ‘alaqah (clot) which is the beginning of a person. It is not permissible to abort it after it reaches this stage, unless a trustworthy council of doctors agrees that continuing the pregnancy poses a threat to the life of the mother, and there is the fear that she may die if the pregnancy continues.

Aborting the pregnancy [before the soul has been breathed, which is after one hundred and twenty days have passed since conception,] … means one has committed a forbidden action, [and she has to] repent sincerely from that and not do such a thing again in the future. With regard to expiation, no expiation is required of you, because expiation is only required for abortion of a fetus into whom the soul has been breathed, which is after one hundred and twenty days have passed since conception. [However,] if the soul had been breathed into the fetus that was aborted, i.e., four or more months had passed, then the diyah (blood money) must be paid according to scholarly consensus, and the kafarah (expiation) must be offered according to some of the scholars.

The diyah in this case is a slave, male or female. If that is not possible, then the diyah is five camels, because the diyah for a fetus is one-tenth of the diyah for his mother, and it well known that the diyah for a free Muslim woman is fifty camels, so the diyah for the fetus is five camels. Ibn Qudamah (may Allah have mercy on him) said: “…The value of the slave is half of one-tenth of the diyah, which is five camels. That was narrated from ‘Umar and Zayd (رضي الله عنهما). This was also the view of Malik, al-Shafi’i and ashaab al-ra’y…” (al-Mughni)

The evidence for that is the report narrated by Bukhari and Muslim from Abu Hurayrah (رضي الله عنه) who said: Two women from Hudhayl fought and one of them threw a rock at the other and killed her and the child in her womb. They referred the matter to the Prophet (صلى الله عليه و سلم) and he ruled that the diyah for her fetus was a slave, male or female.

With regard to expiation, the Shafi’is and Hanbalis are of the view that it is obligatory, and the Hanafis and Maalikis are of the view that it is mustahabb. The expiation for killing is to free a slave; if that is not possible then one must fast for two consecutive months. The scholars differ concerning fasting – some are of the opinion that it is compulsory as it is the expiation of killing a person.  Some others are of the opinion that it is not compulsory since the Prophet (صلى الله عليه و سلم) did not impose it in his judgement as mentioned above.

SCHOLARLY OPINION OVER THE NUMBER OF DAYS ALLOWED TO ABORT FROM CONCEPTION

According to Dr. Hatem al-Haj, Member of the Fatwa Committee of Assembly of Muslim Jurists in America;

“There are three different milestones regarding this issue:

conception, 40 days from conception and 120 days from conception. (Note that physicians calculate the age of pregnancy from the last period, which is two weeks prior to conception) As for the most constant and universal position in Islam regarding abortion, it is the complete ban and total prohibition after 120 days, unless the mother’s life is endangered by the pregnancy. As for the period before that, the madhahib disagreed, with the Hanafi madhab being the most lenient and the Maliki the strictest.

It is noteworthy here to say that each one of the madhahib exhibits a range of scholarly opinions within it. The dominant Hanafi position is the permissibility of abortion up until 120 days from conception. This even applies if the woman didn’t consult with the husband. The Malikis ban any measure that would even result in the expulsion of the semen after it reaches the womb.

Note, though, that coitus interruptus (al-‘azl) is approved by the majority, including the Malikis, whose majority prohibited the use of medical techniques (drinking of medicine) as a means of birth control. Between the two positions of the Hanafis and Malikis lies the Hanbali position, which is prescribed by many contemporary scholars. According to it, abortion is allowed by mutual consent between the two spouses within the first 40 days.

Between 40 and 120, abortion may be allowed in some pressing cases. Although not always true and clear in individual books, it is generally understood from the inductive examination of the Islamic fiqh that in all of those cases of permissibility, a good reason must be present for the decision to abort. Such reason may not be the fear of poverty. Some scholars embarked on listing the reasons, obviously with varying results.

The modern-day scholars, and fiqh bodies do tend to concur with the Hanbali position, albeit with emphasis on the motive for it in the first 40 days being sound and pressing. They also all agree on the impermissibility after 120 days, where it is an act of murder, unless the mother’s life is in real danger.

As for the period in the middle, they differ whether it may be permitted to abort for a very significant cause like a major fetal deformity incompatible with normal life (that certainly doesn’t include the absence of some of the limbs or senses.) Also, instances of rape may be a justification in this period.

In summary, abortion in the first forty days of pregnancy upon the mutual agreement of both parents is permissible for a legitimate cause, such as the woman’s fear of not having the capacity to raise a newborn. Having said that, it is always preferable to avoid that, and if one relies on Allah’s help and puts his/her trust in Him, He will not them down. That fetus may become their favorite child one day.”

According to Shaykh Jamaal Zarabozo, “…there is a difference of opinion concerning when the ruh is breathed into the fetus. The majority of opinion has been 120 days. However, most likely the stronger opinion, taking into consideration all of the various pieces of evidence on this point, is that it takes place at around 40 or 42 days. And Allah alone knows best…”

According to Shaykh Shaykh Waleed Basyouni PhD, “Muslim scholars have deferent of opinions in what stage abortion is forbidden, some said from the moment the women knows she is pregnant she cannot have abortion unless her life in danger, and this is the position of the majority. and other said after forty days it become forbidden and other said after 120 days because the soul will not be blown into the body before that time.”

According to Islamweb.net, “The scholars agree that this designated blood money should be paid in the case of an aborted fetus whose limbs started to take human shape, because, in that state, it is known that it is becoming a human being. However, they differed on the ruling if the abortion happened before the fetus had started forming limbs. The preponderant opinion in our view is that whenever the fetus has passed the stage of Nutfah (mixed drops of the male and female discharge) –which means having passed the first forty days and entered the second forty days –the stipulated blood money should be paid if it is aborted regardless of whether it has become a clot, a lump of flesh or any other thing. This is because, the formation of the parts of the body starts at the beginning of the second forty days of the life of the fetus. The evidence for this is that the Prophet (صلى الله عليه و سلم) said: “When 42 nights pass over the creation of a Nutfah, Allah Sends an angel to it, who gives it form, and creates its ears, eyes, skin, flesh and bones …” (Muslim)

Since the formation of the fetus is hidden and the science of recognizing that was unknown to the people of the past, then those who considered the formation of the limbs as a condition for imposing the blood money among the early scholars did not rely on that science to determine the beginning of the formation of man. But nowadays, modern equipment (like the ultrasound machine) does confirm that formation starts in the stage mentioned by the above quoted Prophetic narration. Since it is known when human formation begins (i.e. the start of the second forty days of the formation of the fetus), then in our view, the preponderant opinion is the ruling that blood money becomes obligatory on anybody who aborts a pregnancy at that stage.”

WHO SHOULD PAY DIYAH AND KAFARAH?

This diyah is required from everyone who had anything to do with the abortion of the fetus, so the doctor and the woman must both pay it if she took the medicine to help induce the abortion. The diyah should be paid to the heirs of the fetus, but his killer should not take any of it. [Hence, although the mother is among the heirs, she is not entitled to anything in the diyah because she is the one who killed the fetus (caused the abortion). The killer has no right to inherit from the diyah of the dead, as confirmed in the hadith of the Prophet (صلى الله عليه و سلم) as narrated by Abu Hurayrah (رضي الله عنه), “One who kills a man cannot inherit from him,” (Tirmidhi and Ibn Majah) Moreover,] everyone who participated has to expiate by either freeing a Muslim slave or fasting two consecutive months if he is unable to free a slave. As for those who indirectly participated, they have to repent to Allah as they helped to kill a soul. [For example, if the husband had forced to have an abortion, then he should repent to Allah, but he is not required to pay diyah as he did not directly cause the abortion.] And if the fetus has no Muslim heirs, the diyah should be spent on the general welfare of the Muslims. It should be noted that the rights of human beings, among which is the diyah, are not dropped by one’s being unable to pay it; rather, it remains a debt on him/her until he/she pays it.

Ibn Qudamah (may Allah have mercy on him) said: “…If the mother was not involved in aborting the fetus, then she will get one-third of the blood money if the fetus has no brother from the maternal side. If there are brothers, she will get one sixth of the blood money… (al-Mughni)

DIYAH AMOUNT

According to Islamweb.net, “If the mother of the fetus is a free Muslim, then the value of her diyah is 500 Dinars of gold, and the value of the diyah of the fetus is one-tenth, which is 50 Dinars of gold. One Dinar of gold equals 4.25 grams. Therefore, the value of the diyah of the fetus is 212,5 grams of gold.”

(The above reply is based on the following resources:

  • Fatawa of the Fatwa Committee of Assembly of Muslim Jurists in America
  • net, a web site belonging to the Ministry of Awqaf and Islamic Affairs in the State of Qatar
  • Various answers provided by Shaykh Muhammad Saalih al-Munajjid on similar topics)

Allahu A’lam (Allah (سبحانه و تعالى) knows best) and all Perfections belong to Allah, and all mistakes belong to me alone. May Allah (سبحانه و تعالى) forgive me, Ameen.

Wassalaam