Darul Uloom Trinidad & Tobago

Q. I am very much doubtful (shubuwaat) because I read this article on abortion by a Hanafi mufti.

“Thus it is clear with the above that abortion due to unlawful sexual intercourse cannot be justified. It will remain unlawful after and prior to the soul being entered into the foetus. (Taken from my up and coming publication Insha Allah, Birth Control and Abortion- The Islamic Perspective (Revised Edition)”

But you have stated in your article:

“Answer: According to the scholars of the Mazhab of Imam Abu Hanifa, it will be permissible to do an abortion until four months of pregnancy for the following valid reasons:
When a pregnancy resulted for the following reason:
When a pregnancy resulted from rape for adultery”

Question: What is the correct strong view and the correct view in the Hanifi Madhhab?

A. In the authentic books of the Hanafi Fiqh the following are mentioned:

1) Allama Shami states, ‘The author of An Nahr says in An Nahr, ‘Is it allowed to terminate a pregnancy/ do an abortion (do an Isqaat) after a woman is pregnant? The author answers the question by saying:

Yes, it is allowed as long as nothing of the body has been created and this does not happen except after 120 days. (Raddul Mukhtar Vol.3 Pg.176 section on the law regarding abortion).

2) Allama Shami has also written, Ibn Wahban has stated, ‘The allowance for abortion will be based upon the reason/ excuses’. (Raddul Mukhtar Vol. 3 Pg. 176)

In another place, Allama Shami has recorded the statement of Ibn Wahban as saying, ‘and from among the reason for terminating the pregnancy (before 120 days) is that the milk of the mother has dried up after her pregnancy has become apparent, and the father of the nursing child does not have the means to hire a wet-nurse and he fears for the child’.

3) In Fatawa Alamgiri (Fatawa Hindiya), it is written, ‘A breast feeding woman became pregnant and consequently her milk dried up and she fears danger for the life of her nursing child. On the other hand, the father does not have the means to hire a wet-nurse for the child, then in this case it is allowed for the woman to use medication to terminate her pregnancy, as long as the pregnancy is in one of the stages of Nutfa, Mudgha or Alaqa with no defined limbs’. (Fatawa Hindiya Vol. 5 Pg. 3560.The same is in Khazanatul Muftiyeen and Fatawa Qazi Khan.

From these statements, it becomes clear that:

(1) Abortion after the soul has been breathed into the body and the limbs have started to form, is totally haram. This occurs after 120 days.

(2) Abortion/ terminating the pregnancy before 120 days, without a valid excuse, is totally haram also. This is in accordance to the other three Mazahib as well as Mazhab of Imam Abu Hanifa.

(3) Terminating the pregnancy/ abortion for a valid reason acceptable in the shariah, will be allowed when it is done before elapsing of 120 days. (That is before the soul is breathed into the body). This is clearly evident from the texts which I have quoted from Shami and Fatawa Hindiya.

With respect to those valid reasons for the allowance of terminating the pregnancy before 120 days, the Fuqaha have hinted to different reasons which fall into the following areas:

1. When there is a fear for the mother’s life if the pregnancy continues. Here, the mother’s ill health is considered, and this can be deducted from the fact that when an anticipated harm upon a nursing child can bring about the allowance to terminate the pregnancy, then to a greater extent the ill health of the mother can do the same.

Ill health also includes mental health. Rape complicated by pregnancy can be extremely distressing to the victim. It is of dire consequences to both the mother and the child in most cases.

Victims of rape may be subject to the problems of an unwanted pregnancy, on top of the grievous harm they have suffered. They may be saddled with the task of bringing up a child not in the best circumstances. These victims are usually poor or of limited resources. ‘Bad times’ and ‘fear of begetting delinquent children’ were reasons given by the Muslim Fuqaha for not having children (‘fasad az zaman wal walad as su’). (Raddul Mukhtar Vol. 3 Pg. 176). Taking this into consideration, it can be stated that a woman who is a victim of rape suffers mentally and psychologically. The physical aspect of her suffering is also to be noted, along with the fact that carrying a child can stain her character for life. Owing to these circumstances, a woman in this state will be allowed to practice upon allowance of doing an abortion, as given by the great Fuqaha, once it is before 120 days of the pregnancy.

2. The Fuqaha have also allowed the termination of a pregnancy when there is fear for the child. In the case of adultery or fornication, it is normally seen that the adulterer deserts the woman and leaves her on her own. He does not marry her, does not care for her and casts her aside. He goes on with his life by marrying someone else and neglects his duty as the father of her child. In a situation of this nature, the mother struggles to upbring her child. She often has no income, and she cannot get any provision from the father of her child. In this case, the upbringing, nourishment and welfare of the child are at risk. In cases like this, we often see that mothers abandon their children who are then left on the streets. Seeing that there is a genuine fear for that child in this case, the allowances given by the Fuqaha can also be adopted here, when it is before the 120 day period. Doing an abortion at this time is not tantamount to taking a life, and the Fuqaha have issued an allowance before the elapse of this period for valid reasons.

Terminating the pregnancy in the case of adultery/fornication can become necessary for the reasons I have mentioned, and if these exists. then a woman can practice upon the allowance within the specified period.

This allowance should not be understood as a licence to allow women to commit adultery/fornication, nor does it give them the liberty to abort their ‘would-be’ babies. Instead, it is an allowance which could be practiced at times of dire need and necessity, especially when there is a genuine fear for the nurturing, and growth of the child. As cited before, the Fuqaha (expert Jurists) have given such allowances for abortion when it is done before 120 days, hence, the above situation can also fall within this allowance.

In conclusion, I will like to re-iterate the point that abortion is not one which is encouraged in Islam since it can amount to taking the life of a human being. Islam values every type of life and it does not encourage this act. However, the shariah is one which has come to fulfill all the needs of man, and Islam has been perfected and completed in all its law and teachings. There will certainly arise situations in the life of a man/woman when allowances must be given to ease hardships and sufferings, and the beautiful religion of Islam, among all religions has recognized this. It is for this reason we find Quranic verses such as,

‘Allah desires ease for you. He does not desire difficulty for you’. (2: 184)

‘Allah does not impose on any person anymore than it can bear’. (2: 285)

‘Allah desires to make things lighter for you. Man was created weak. (4: 28)

‘He Has chosen you and Has not placed any difficulties in religion upon you’.(22: 76)

The Prophet (SAS) said, ‘There should be no harm and no harassment’. (Muwatta). He also said, ‘Islam is easy, free from hardship’. (Bukhari)

Along with these, the Fuqaha have also established certain principles in this regard. Some of these are:-

‘Harm must be removed’.

‘Harm must not be removed by a greater harm’.

‘Where it is inevitable, the lesser of the two harms should be implemented’.

‘Removing the harm comes before realizing the benefit’.

And Allah knows best.

Mufti Waseem Khan