ahmadiyyafactcheckblog

Introduction

Once the soul has been breathed into the foetus at 120 days from conception, it is a live human being. To abort the foetus after this is murder (qatl al-nafs) – of course, a major, grave sin.

The ruling of abortion before the soul is breathed into the foetus or “ensoulment” (nafkh al-rūḥ) is a matter of dispute in the Ḥanafī madhhab.

Since there was nothing explicit from Imām Abū Ḥanīfah and his students, it was the “Mashāyikh” of the Ḥanafī madhhab, i.e. those fuqahā’ capable of ijtihād that came after Imām Abū Ḥanīfah and his students, who ruled on the matter of abortion.

Ibn Nujaym (926 – 970 H), a major Ḥanafī commentator on Fiqh from Egypt, notes:

The different views on abortion pre-ensoulment will be outlined below. For good reasons (that will be explored below), the dominant opinion amongst later Ḥanafī scholars was that abortion pre-ensoulment is in principle impermissible, but, if there is an ‘udhr (extenuating circumstance, to be defined below), it will be permissible.

We find, for example, a late Ḥanafī text by the Syrian scholar, Khalīl ibn ‘Abd al-Qādir al-Naḥlāwī (d. 1350 H/1931 CE), stating:

Muḍghah and ‘alaqah refer to the third and second forty-day periods respectively in the development of the foetus, as described in a ḥadīth (more on this below).

Al-Naḥlāwī is in fact quoting this from an earlier text, al-Hadiyyat al-‘Alā’iyyah, by ‘Alā’ al-Dīn ibn ‘Ābidīn (d. 1306 H/1888 CE), the son of the famous Ibn ‘Ābidīn. [3]

The Disagreement of the Mashāyikh

Explaining the disagreement amongst the early Mashāyikh, Burhān al-Dīn Ibn Maẓah (551 – 616 H) states in his al-Dhakḥirah al-Burhāniyyah:

Burhān al-Dīn Ibn Māzah presents a somewhat similar commentary in his al-Muḥīṭ al-Burhānī.

Fatāwā Ahl Samarqand

The view of the permissibility of aborting the foetus pre-ensoulment is cited from an enigmatic collection called “Fatāwā Ahl Samarqand”. Ibn Māzah most likely received this citation from the Wāqi‘āt of his uncle, the highly-influential jurist, al-Ṣadr al-Shahīd Ḥusām al-Dīn ‘Umar ibn Māzah (483 – 536 H). In the latter work, al-Ṣadr al-Shahīd cites the Fatāwā Ahl Samarqand as transmitting the view that a woman will not be sinful for aborting the foetus if it is before it has any discernible features. [5]

The authorship of Fatāwā Ahl Samarqand and when it was written is unknown, but it probably was compiled some time in the fifth century (400s) of Hijrah, and gained popularity via the citations from it by al-Ṣadr al-Shahīd. The same ruling is cited in Yatīmat al-Dahr from “Majmū‘āt al-Samarqandī”, which appears to be a reference to the same Fatāwā Ahl Samarqand.

Fatāwā Ahl Samarqand also records the alternative view that abortion pre-ensoulment is permissible when the woman already has a breastfeeding baby and her milk has ceased, putting her baby’s life in danger. In the latter ruling, Fatāwā Ahl Samarqand equates istibānat al-khalq with ensoulment. [6]

Who Was Faqīh ‘Alī ibn Mūsā al-Qummī (d. 305)?

Faqīh ‘Alī ibn Mūsā al-Qummī, from whom the impermissibility of aborting the foetus pre-ensoulment is reported, is probably the earliest Ḥanafī jurist from whom a judgement on abortion is recorded. He was the Ḥanafī Muftī of Nishapur. Al-Sam‘ānī refers to him as

One of the Ḥanafī scholars of that time commented:

Al-Dhahabī has an entry on him in his Siyar A‘lām al-Nubalā’, in which he says:

Al-Dhahabī also praises his knowledge of Ḥādīth. Faqīh ‘Alī ibn Mūsā al-Qummī was thus an authoritative Ḥanafī jurist, only three generations after Imām Abū Ḥanīfah, who ruled that abortion pre-ensoulment is impermissible.

The Statement of QāḍīKhān

As the statement of QāḍīKhān is critical to later Ḥanafī discourse on the issue of abortion, we will quote this first before unpacking some of the further points in Ibn Māzah’s statement. Ḥasan ibn Manṣūr al-Ūzjandī, famously known as QāḍīKhān (ca. 510 – 592 H), writes:

The concluding passage is critical to understanding what QāḍīKhān and others meant by an “‘udhr”. In the example cited, if the mother carried on with the pregnancy there is a strong likelihood her breastfeeding child will die. Hence, to save the life or limb of an actual person, it is allowed to abort the foetus, as the foetus is not yet a person. Similarly, if there is a high likelihood, based on health complications, of the mother dying from the pregnancy, it will be permitted to abort the foetus. Muftī Rashīd Aḥmad Ludhiānvī (1922 – 2002 CE) thus includes amongst those things that are an ‘udhr: a religious, skilled doctor telling the woman that if her pregnancy continues, there is a strong likelihood she would lose life or limb. [10]

In short, when the embryo has embedded itself in the womb, it is regarded as potential life, which like the egg of a wild animal, will be treated as actual life. Hence, it is impermissible to terminate. But because it is not truly living, for a situation where an actual life is threatened as a direct consequence of its prolonged existence, it will then be permissible to terminate.

QāḍīKhān is not the first to mention the analogy with the egg of a wild animal, as it was recorded from Faqīh ‘Alī ibn Mūsā before him. Hence, ‘Umar ibn Nujaym (d. 1005 H), the younger brother of Ibn Nujaym, notes:

Nor is QāḍīKhān the first to mention the ‘udhr. His source is the same Fatāwā Ahl Samarqand as documented earlier. [12] But QāḍīKhān lends his authoritative voice to the view transmitted from Faqīh ‘Alī ibn Mūsā and states the exception is when there is an ‘udhr like that recorded in Fatāwā Ahl Samarqand.

Ensoulment

The notion of the soul being breathed into the foetus at 120 days is based on a well-known ḥadīth of ‘Abdullāh ibn Mas‘ūd (raḍiyAllāhu ‘anh) reported in al-Bukhārī, Muslim and other collections. In the wording of Sharḥ Mushkil al-Āthār, with an authentic chain, ‘Abdullāh ibn Mas‘ūd (raḍiyAllāhu ‘anh) narrates from the Prophet (ṣallAllāhu ‘alayhi wasallam):

After citing this ḥadīth, al-Taḥāwī (239 – 321 H) reports via his teacher, Ibn Abī ‘Imrān (ca. 200 – 280 H), from Muḥammad ibn Samā‘ah (130 – 233 H) from Imām Muḥammad ibn al-Ḥasan al-Shaybānī (132 – 189 H) that the soul is breathed into the foetus after 120 days of conception. [14]

Al-Sarakhsī says:

Hence, Imām Muḥammad (one of the founding imāms of the Ḥanafī school) and those after him agreed ensoulment occurs at 120 days from conception – which is thus the point at which the foetus is considered to be alive.

Istibānat al-Khalq/Taṣwīr/Takhlīq (The Features Being Discernible)

A ḥadīth of Ḥudhayfah ibn Asīd (raḍiyAllāhu ‘anh) recorded in Ṣaḥīḥ Muslim mentions that the foetus is shaped at 42 days. [16] Ibn Rajab al-Ḥanbalī quotes some scholars who reconciled the ḥadīth of Ḥudhayfah (raḍiyAllāhu ‘anh) with that of Ibn Mas‘ūd (raḍiyAllāhu ‘anh) as follows:

Muftī Taqī Usmani comments that there is a “less conspicuous formation” that takes place at this earlier period of 42 days, and “a conspicuous formation” that takes place upon the completion of four months. [18]

Thus, “istibānat al-khalq” could refer to when the foetus has identifiable features (fingers etc.) and it could also refer to when it has reached 120 days. We have already encountered the statement of al-Naḥlāwī above, where the term was used in both ways: for the initial physical istibānat al-khalq and the subsequent spiritual, complete istibānat al-khalq.

Abu ‘l-‘Abbās al-Nāṭifī (d. 446) states in his Wāqi‘āt:

We have also seen how in al-Dhakhīrah, istibānat al-khalq and nafkh al-rūḥ are treated the same under the discussion of abortion. Hence, in al-Nahr, ‘Umar Ibn Nujaym comments:

It is also inferred from a ruling of Imām Muḥammad that he understood istibānat al-khalq to occur at 4 months. (See the footnote for reference.) [21]

We have also seen that Fatāwā Samarqand, the very source for the ruling of the permissibility of abortion pre-ensoulment, itself specifies istibānat al-khalq as occurring at 120 days.

However, in al-Qunyah, al-Zāhidī (d. 658 H) quotes ‘Ayn al-A’immah al-Karābīsī as saying:

Ibn ‘Ābidīn also cites this in Radd al-Muḥtār. [23]

Hence, what exactly is meant by “istibānat al-khalq” in the terminology of the jurists is ambiguous. It could refer to the stage at around 6 weeks when discernible features begin to show, or it could refer to the much later stage, when it is regarded as fully human (17 weeks).

The criterion of istibānat al-khalq is also invoked in other issues (like nifās & when a slave-woman is regarded as “Umm al-Walad”). Whether the earlier period of “inconspicuous formation” is intended in these issues or the later period of “conspicuous formation” is not the topic of discussion. However, based on the reasoning found in Fatāwā Ahl Samarqand and copied in Fatāwā QāḍīKhān, that abortion is permitted for an ‘udhr because it is “not” yet “a person”, we can say that their understanding (as they state explicitly) is that istibānat al-khalq is synonymous with ensoulment in this ruling.

The text in Fatāwā Ahl Samarqand that states the alternative view: “She is not sinful for aborting the foetus before the features are discernible” (a ruling that is then reproduced by several jurists afterwards) could however refer to the earlier period or the later one. But, given the rule is found in the very same compilation, Fatāwā Ahl Samarqand, it would suggest it is referring to the 120 day period.

Other Views

According to the author of Jawāhir al-Akhlāṭī, the fatwā in his time is it is permissible to abort the foetus both before and after it takes form provided it is before ensoulment, because of the corruption prevalent in the time. [24]

That is, because the time is corrupt, and the child will grow up without proper tarbiyah and care, it is allowed to abort the child. The author of Jawāhir al-Akhlāṭī is not a known figure, and it is not known from which era he was (although he lived some time before the 11th century of Hijrah). His view was quoted in al-Fatāwā al-Hindiyyah and in Laknawī’s footnotes to al-Hidāyah. Given it is not known who he was and from what era he was, his statement doesn’t carry much weight.

It appears the author of Jawāhir al-Akhlāṭī is analogising the issue to ‘azl. The original ruling is that the man is not permitted to do ‘azl without the permission of his wife, nor is the woman allowed to take means to prevent herself from getting pregnant without the permission of her husband. The later jurists, however, allowed them to do so without the permission of their spouse because of the “corruption of the time”. But ‘azl and abortion are not analogous as pointed out by Faqīh ‘Alī ibn Mūsā al-Qummī and QāḍīKhān. Moreover the corruption that was the concern in those times is countered by a greater corruption in these times from the western influence of not wanting children at all, as noted by ‘Allāmah Ẓafar Aḥmad al-‘Uthmānī in I‘lā’ al-Sunan. [25]

The text of Fatāwā Ahl Samarqand that says: “She is not sinful for aborting the foetus before the features are discernible” is reproduced in al-Fatāwā al-Sirājiyyah, al-Ikhtiyār, Tuḥfat al-Mulūk, al-Durr al-Mukhtār amongst other texts.

In al-Qunyah, al-Zāhidī quotes from Abu ‘l-Faḍl al-Kirmānī (457 – 543), ‘Ayn al-A’immah al-Karābīsī, ‘Alā al-Dīn al-Tarjumānī (d. 645) the opposite judgement:

From the three, Abu ‘l-Faḍl (‘Abd al-Raḥmān ibn Muḥammad) al-Kirmānī is a prominent jurist, considered the leading Ḥanafī scholar of Khurāsān in his time. Ibn al-Shiḥnah (851 – 921 H), citing Qunyah, refers to the views of these three personalities in his discussion on abortion in the commentary on Manẓūmah Ibn Wahbān.

Al-Zāhidī’s personal view is that abortion is permissible before istibānat al-khalq in the sense that ‘Ayn al-A’immah al-Karābīsī defined it i.e. when the foetus gains physical features (not the later, 120 day period). [27] But it is not clear if he believed this with respect to the female slave alone, or for both the slave and freewoman.

Later Ḥanafī Commentators

Ibn Wahbān (728 – 768 H) supports the view of QāḍīKhān and attempts to reconcile the alternative view transmitted in Fatāwā Ahl Samarqand by saying:

Ibn al-Humām (790 – 861 H) writes:

Hence, Ibn al-Humām restates the passed-down verdict of permissibility from Fatāwā Ahl Samarqand, while noting that by ‘istibānat al-khalq’ they mean ‘nafkh al-rūḥ’.

Ibn Nujaym quotes the passage of Fatḥ al-Qadīr and Fatāwā QāḍīKhān and then comments:

While Ibn ‘Ābidīn (with al-Ḥaskafī’s text) quotes QāḍīKhān, Dhakhīrah, Manẓūmah Ibn Wahbān, Nahr and Qunyah, the discussion doesn’t add anything substantial to what we gather from these earlier texts. Ṭaḥṭāwī and Sindī’s commentaries on Durr also do not add anything substantial.

The Preferred Ḥanafī Stance

QāḍīKhān’s authoritative judgement presents a via media between the different views for aborting a foetus pre-ensoulment. Ibn Nujaym argues it is the view that ought to be relied upon given the strength of its evidential basis. Ibn Wahbān argues it can be reconciled with the judgement of those who say it is not sinful by understanding it to refer to the situation of ‘udhr.

Nonetheless, the view of unconditional permissibility before ensoulment is a legitimate, though weaker, view in the Ḥanafī madhhab. It is the view mentioned in Fatāwā Ahl Samarqand and reproduced in numerous texts. Hence, if there is a situation of extreme and genuine hardship (ḍarūrah), this view can be resorted to for fatwā. Muftī Maḥmūd Ḥasan Gangohī (1907 – 1996) was asked about a woman who became suicidal for the shame she would face after falling pregnant from zinā. He allowed the abortion in this situation. [31] It may be that his fatwā was based on the extreme circumstance/ḍarūrah which justified using the view of unconditional permissibility. However, in a case where the woman would not feel extreme shame, but wants to abort merely for her own comfort or ease, this would not be a ḍarūrah; for a Ḥanafī to take the dispensation of a weaker view in this instance would fall under sinful ittibā‘ al-hawā (following of desires). [32] For giving fatwā on ḍarūrah, careful deliberation and consultation is required. [33]

Other Madhhabs

The Mālikī madhhab holds the strictest stance. Qāḍī Abū Bakr Ibn al-‘Arabī (468 – 543 H) states:

Summarising the Mālikī stance, Shaykh Muḥammad ‘Illīsh (1217 – 1299 H) writes:

In the Shāfi‘ī madhhab, Ibn Ḥajar al-Haytamī (909 – 974 H) writes in his authoritative Tuḥfat al-Muḥtāj:

In another part of the same work, he reiterates this saying:

In this passage, he suggests the impermissibility of aborting the foetus is only after the first 42 days, a view similar to that of the Ḥanbalī madhhab (see below).

Al-Haytamī also says in his commentary on the Arba‘ūn al-Nawawiyyah that the view that it is unconditionally permissible before 120 days is

Al-Haytamī refers to a discussion of the Iḥyā ‘Ulūm al-Dīn of Imām al-Ghazālī (450 – 505 H) to support his stance. Al-Ghazālī said:

As part of a lengthy discussion, Shams al-Dīn Ramlī (919 – 1004 H) states in his authoritative Nihāyat al-Muḥtāj:

However, from the same discussion, it appears he inclines to abortion becoming progressively more prohibitive as it gets closer to the 120 day mark.

Hence, there is a dispute over the preferred view in the Shāfi‘ī madhhab, but it is generally believed al-Haytamī’s judgement is favoured over al-Ramlī’s when they differed. [41]

Thus, the Mawsū‘ah Fiqhiyya Kuwaytiyya presents Ibn Ḥajar’s view as the preferred Shāfi‘ī stance. [42]

According to the Ḥanbalī madhhab, abortion is permissible in the first forty-day-nuṭfah stage, but impermissible after that. [43]

Ibn Rajab al-Ḥanbalī says:

Mar‘ī ibn Yūsuf al-Karmī (d. 1033 H) states:

Conclusion

All madhhabs agree that aborting a foetus after 120 days is murder and thus completely forbidden.

The preferred view of the Ḥanafī madhhab is that aborting a foetus before 120 days is in principle forbidden. The exception is if continuing the pregnancy threatens the life or limb of the mother or any children she may have. In situations besides these, a muftī may resort to the view of permissibility only in circumstances of genuine ḍarūrah.

The preferred view of the Mālikī madhhab is of unconditional impermissibility. The preferred view of the Shāfi‘ī mahhab is disputed, with Ibn Ḥajar al-Haytamī favouring the view of impermissibility before 120 days. The preferred view of the Ḥanbalī madhhab is it is permissible in the first forty days, but forbidden after that.

As one can appreciate from the legal discussions, there is substantial commonality across the madhhabs in how they viewed the foetus in the different stages and how they regarded ‘azl to be different from abortion. The implanted zygote is prepared to take on life, while discharged semen is not.

Some people assume the dominant position across the madhhabs is that of general permissibility before ensoulment. As evident from the above discussion, the dominant position is in fact the opposite.

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