We will start off by speaking about what the word abortion means in the arabic language.

The word ijhad (abortion) comes from the verb jahada, which means to drop or throw out the foetus before it is finished growing. People say: the camel or animal aborted its young, meaning it pushed it out before it was ready (Ibn Manzur, Lisan al-Arab).

Abortion also means when the foetus is pushed out before it is fully formed, or before the pregnancy finishes, whether it happens on its own or someone causes it (Imran, The Ruling on Aborting the Foetus in Islamic Law).

The Language Academy says ijhad is when the foetus is taken out before four months. If it happens between four and seven months, it is called isqat (miscarriage) (al-Muʿjam al-Wasit).

The word isqat comes from saqata, which means to fall. People say: the woman miscarried her baby, meaning she pushed it out before it was finished (al-Qamus al-Muhit). The word isqat in Sharia is nearly the same as in language: it means a baby comes out early, whether alive or dead.

Most scholars use ijhad and isqat in the same way. Some say ijhad is before the soul is breathed in (before four months), and isqat is after that. Some say ijhad is for humans, isqat is for animals. But really, it is just a difference in words, not in meaning. Allah knows best.

In Sharia, Abortion means to push out the foetus, alive or dead, before it can live on its own, and when some of its body has formed, either by the mother or someone else (Qasim, Rulings of Abortion).

Overview Of The Rulings

The Ruling on Abortion After the Soul is Breathed Into the Foetus

All four madhhahib agree that the soul enters the foetus after one hundred and twenty days, as stated in the authentic hadith of Ibn Masʿud.

After this stage, abortion is forbidden by unanimous agreement among all jurists from the Hanafi, Maliki, Shafiʿi, and Hanbali madhhahib. Abortion at this point is considered killing a soul. It is not allowed to kill the foetus even if the mother’s life is in danger unless death is certain and there is no other way to save her. The general rule is that fear alone is not enough to permit abortion after the soul is breathed in.

The Ruling on Abortion Before the Soul is Breathed Into the Foetus

Before the soul is breathed into the foetus, the four madhhahib have different opinions:

• Hanafi madhhab:
  Many Hanafis permit abortion if the foetus is not formed and before one hundred and twenty days. “Not formed” usually means the stage before the soul enters, and Ibn ʿAbidin allows methods to end pregnancy if it is just a clot or lump with no organs yet. Other Hanafis say abortion is only allowed with a valid reason, such as real harm or necessity. It is disliked without excuse, and abortion without reason is blameworthy.
• Maliki madhhab:
  The Malikis almost always forbid abortion, even before forty days, except for the rare view of al-Lakhmi who allows it before forty days. The relied-upon view is that it is not permitted at any stage after the sperm settles in the womb, as the womb is now preparing for life. Al-Dardir and al-Dusuqi both explain that this is the strongest and relied-upon position. Only in rare and very early cases (less than forty days) did some Malikis permit it, but the dominant view is complete prohibition.
• Shafiʿi madhhab:
  The main Shafiʿi view is that abortion is permitted before the soul is breathed in and forbidden after that. Some Shafiʿis say it is only disliked before the soul enters, but as the stages of development progress, the ruling becomes closer to prohibition. Ibn Hajar and others explain that even in early stages, harming the beginnings of life is a wrongdoing, and it gets worse the more the foetus develops. Some Shafiʿis forbid abortion altogether after the sperm settles, and the ruling leans toward prohibition as the time of soul-breathing gets closer.
• Hanbali madhhab:
  The Hanbalis share a similar position to the Shafiʿis. The main view is that abortion is allowed before one hundred and twenty days but forbidden after the soul is breathed in. Some Hanbalis only permit it at the very earliest stage and, like the Shafiʿis, treat it as prohibited or even a crime the further along the pregnancy is. After the soul is breathed in, it is strictly forbidden.

The Punishment for Abortion

All madhhahib agree that if a crime is committed against a free woman’s foetus, the punishment is a ghurrah (blood money equal to a male or female slave), based on the hadith of the Hudhayl women. This amount is half of one tenth of the full diyah (blood money). The ghurrah is due if the foetus is expelled lifeless, whether the act was deliberate or accidental, and whether by the mother, father, or another person.

Expiation (Kafarah) and Ghurrah

• Hanafi and Maliki madhhahib:
  The kafarah (expiation) is recommended but not obligatory, because the Prophet only ordered the ghurrah in his ruling. The kafarah involves freeing a believing slave, or if not possible, fasting two months. These madhhahib do not extend this ruling to abortion cases, as the foetus is only a life in some respects.
• Shafiʿi and Hanbali madhhahib:
  The kafarah is obligatory together with the ghurrah. It is a right of Allah, since the foetus is a soul for which blood money is due. If more than one person is involved, each must pay separate expiation, but there is only one ghurrah.

When Ghurrah is Due

• All madhhahib agree ghurrah (Blood money for a foetus, which is paid as the value of a male or female slave if a foetus is killed.) is due when the foetus is expelled dead after being formed. The foetus must show features like hair or fingernails, which usually happens after one hundred and twenty days. The Malikis go further and require ghurrah even if there are no features, if the expelled matter is a clot or lump that is known to be a foetus.
• The Hanafis and Malikis say the ghurrah is only due if the foetus is expelled before the mother’s death. If the mother dies first, nothing is owed for the foetus.
• The Shafiʿis and Hanbalis say the ghurrah is due whether the foetus comes out before or after the mother’s death.

Who Pays the Diyah (Blood Money) of the Foetus

If the abortion is intentional, who pays the diyah depends on intent:

• Majority view: The diyah may be paid by the perpetrator, the killer’s male relatives, or the public treasury, depending on who caused the abortion. In most cases, intent is not clear, so the diyah is usually paid by the male relatives.
• Maliki madhhab: The Malikis say if there is clear intent to kill the foetus, then the perpetrator personally must pay the diyah.

If the doctor causes abortion by mistake, there is a difference:

• Some say the doctor’s male relatives pay.
• Others say the doctor pays from his own wealth, especially in cases where abortion is widespread for social reasons, to deter people from carelessness.
• The judge can decide who should pay in each case.

Translation:

The Ruling on Abortion After the Soul is Breathed Into the Foetus

The soul is breathed into the foetus after one hundred and twenty days, as has been confirmed in the authentic hadith narrated by Ibn Masʿud from the Prophet: “Each of you is gathered in your mother’s womb for forty days as a drop of fluid, then for a similar period as a clot, then for a similar period as a lump of flesh, then the angel is sent and breathes into him the soul” (This hadith is narrated by al-Bukhari and Muslim, and is found in al-Lu’lu’ wa al-Marjan (1909). It is also the fourth hadith in al-Arbaʿin al-Nawawiyyah.).

There is no known disagreement among the jurists about the prohibition of abortion after the soul has been breathed into the foetus. They have stated clearly that when the soul enters the foetus, abortion becomes prohibited by unanimous agreement. They said this is considered killing, without any disagreement (See al-Sharh al-Kabir printed with the Hashiyat al-Dusuqi 2/267, Isa al-Halabi edition; Hashiyat al-Rahuni on Sharh al-Zurqani 3/264, 1306 edition; al-Bahr al-Ra’iq 8/233, al-ʿIlmiyyah edition; Hashiyat Ibn ʿAbidin 1/602 and 5/378, 1272 edition; Fath al-Qadir 2/195, Bulaq edition; Nihayat al-Muhtaj 8/416, Mustafa al-Halabi edition; Hashiyat al-Jamal 5/490, al-Maimaniyyah edition; Hashiyat al-Bujayrimi 3/303, Mustafa al-Halabi edition; al-Zurqani ʿala al-Tuhfah 6/248; al-Insaf 1/189; al-Furuʿ 1/191; al-Mughni 7/815, Riyadh edition; and al-Muhalla 11/3129, al-Muniriyyah edition, 1352 AH.).

Ibn ʿAbidin stated that if the foetus is alive and there is fear for the mother’s life due to its continued presence, it is not allowed to cut it into pieces because the mother’s death is only feared and not certain, and it is not permitted to kill a human being based on mere fear (See al-Durr al-Mukhtar with Hashiyat Ibn ʿAbidin 1/602; also al-Bahr al-Ra’iq 8/233; al-Majmuʿ 5/301, al-Miriyyah edition.).

The Ruling on Abortion Before the Soul is Breathed Into the Foetus

There are various opinions and directions regarding the ruling on abortion before the soul is breathed into the foetus, even within the same madhhab. Some jurists said it is permitted absolutely. This is mentioned by some of the Hanafis, who stated that abortion is permitted after pregnancy so long as no part of the foetus has developed. By “development” they meant the stage when the soul is breathed in (See Fath al-Qadir 2/415; Hashiyat Ibn ʿAbidin 2/380). Among the Malikis, al-Lakhmi alone held this view before forty days (See Hashiyat al-Rahuni on Sharh al-Zurqani 3/264, first edition), and it was also held by Abu Ishaq al-Marwazi from the Shafiʿis before forty days.

Al-Ramli said that if the sperm is from zina, then one might imagine its permissibility before the soul is breathed in (See Tuhfat al-Habib 3/303; Hashiyat al-Sharwani 6/248; Nihayat al-Muhtaj 8/416). This opinion is also found among the Hanbalis during the early stages of pregnancy, where they allowed the woman to take permitted medicine to expel a drop of fluid but not a clot. Ibn ʿAqil said that whatever the soul has not entered will not be resurrected, from which it is understood that aborting it is not forbidden. The author of al-Furuʿ said Ibn ʿAqil’s statement has merit (See al-Furuʿ 6/191; al-Insaf 1/386; Ghayat al-Muntaha 1/81; al-Rawd al-Murbiʿ 2/316, sixth edition; Kashshaf al-Qinaʿ 6/104).

Others permitted abortion only for a legitimate reason, and this is the real opinion of the Hanafis.

Ibn ʿAbidin mentioned that the al-Khaniyyah text disapproves abortion without a valid excuse, noting that even if someone broke the egg of a hunted bird, they would be liable since it is the origin of the game. So if one would be held accountable for that, then a woman who aborts without reason is at least blameworthy. Ibn Wahban mentioned as an excuse the case where a woman’s milk stops after pregnancy appears and the father cannot afford to hire a wet nurse, and the child may die. He said permission for abortion is based on necessity.

Those Malikis, Shafiʿis, and Hanbalis who allowed abortion without condition would allow it even more so in this situation. Al-Khatib al-Sharbini quoted al-Zarkashi saying that if a woman takes permitted medicine that causes abortion due to necessity, she should not be liable (See Tuhfat al-Habib 3/303; Hashiyat al-Sharwani 6/248; Nihayat al-Muhtaj 8/416).

Some jurists said it is disliked absolutely. This was the view of ʿAli ibn Musa among the Hanafis. Ibn ʿAbidin quoted him as saying that abortion is disliked before the time of soul being breathed in has passed because once the sperm has settled in the womb it is on its way to life, so it takes the ruling of life, just like the egg of game in the Haram (See Hashiyat Ibn ʿAbidin 2/380). This is also a view among the Malikis for the period before forty days (See Hashiyat al-Dusuqi 2/266–267, Isa al-Halabi edition). Among the Shafiʿis, it is a possible view.

Al-Ramli said that one should not say abortion before the soul is breathed in is merely contrary to what is better, but rather it is possibly disliked or even forbidden. The ruling leans more towards prohibition as the time of soul breathing nears, because it becomes a crime (See Nihayat al-Muhtaj 8/416).

Some scholars held it is prohibited altogether, and this is the relied-upon opinion among the Malikis. Al-Dardir said it is not permitted to remove semen that has settled in the womb, even if before forty days. Al-Dusuqi commented that this is the relied-upon opinion. Another opinion says it is disliked, which shows that al-Dardir’s words mean prohibition (See al-Sharh al-Kabir with Hashiyat al-Dusuqi 2/266–267).

Ibn Rushd reported that Malik said that anything expelled by a woman due to a wrongful act, whether a piece of flesh or a clot that is known to be a foetus, a bloodwit (ghurrah) is due for it. Malik also preferred that in addition to the ghurrah, an expiation be paid (See Bidayat al-Mujtahid 2/403, 1386 AH. The ghurrah in language is a male or female slave. Its original meaning is the white patch on a horse’s face, and it came to mean slave figuratively. Qadi ʿIyad held that the word ghurrah in the hadith “Ghurrah: a slave male or female” was stated as a definitive wording, and what follows clarifies its meaning.).

The view of prohibition is the stronger one among the Shafiʿis, since after the sperm settles in the womb it is heading toward development and prepared for the soul to be breathed in (See Tuhfat al-Habib 3/303; Hashiyat al-Sharwani 6/248; Nihayat al-Muhtaj 8/416). It is also the view of the Hanbalis without restriction, as mentioned by Ibn al-Jawzi. It is also the apparent position of Ibn ʿAqil and is suggested by the words of Ibn Qudamah and others after the sperm stage, since they imposed both expiation and bloodwit upon one who struck a pregnant woman and caused her to miscarry, and upon the pregnant woman herself if she drank a substance and miscarried (See al-Insaf 1/386; al-Mughni 7/816, Riyadh edition).

Motivations and Means of Abortion

The motives for abortion are many, including wanting to be rid of the pregnancy, whether from a valid marriage or from fornication, or for the mother’s health due to the danger of keeping the pregnancy, or fear for her nursing infant, as previously explained.

The methods of abortion are many, old and new. They are either active or passive. Among the active ones is fear or terror, like when a ruler summons a woman mentioned to him in a bad report and she aborts due to fear. Others include smelling a certain scent, starvation, severe anger or grief, as a result of distressing news or a serious offence. The differences between these causes are of no legal effect.

Among the passive means is when a woman refrains from eating, or from taking prescribed medicine to preserve the pregnancy. Al-Dusuqi mentioned that if a woman smells the aroma of food from neighbours and believes that if she does not eat it, she will miscarry, then it is obligatory for her to ask for it. If she does not ask and the neighbours do not know she is pregnant and she miscarries, she owes a ghurrah for her negligence and causing it (See Hashiyat Ibn ʿAbidin 5/377; Hashiyat al-Dusuqi 4/268; Sharh al-Khurashi 5/274; Mawahib al-Jalil 6/257; al-Iqnaʿ 1/129–130).

The Punishment for Abortion

The jurists agreed that the obligation in the case of a crime committed against the foetus of a free woman is a ghurrah, as established from the Prophet’s hadith narrated by Abu Hurayrah and others: two women from the tribe of Hudhayl fought and one struck the other and caused her to miscarry. The Prophet ruled that a ghurrah was due, a male or female slave (See Nayl al-Awtar by al-Shawkani 7/70 and the previously mentioned sources).

The jurists of the madhhahib also agreed that the amount of the ghurrah is half of one tenth of the full blood money, and that the cause for its obligation is any act that leads to the foetus being expelled from the womb lifeless, whether the act was physical, verbal, or by omission, even if by the mother herself or her husband, whether deliberate or accidental (See Hashiyat Ibn ʿAbidin 5/377; Bidayat al-Mujtahid 2/407; Umdat al-Talib and Hashiyat al-Ramli 4/89 and onwards; al-Mughni; al-Sharh al-Kabir 1/557; Muntaha al-Iradat 2/431–432, Dar al-ʿUrubah Library).

The Scholars’ Disagreement on the Obligation of Expiation Alongside the Ghurrah

There is a difference of opinion among the jurists regarding the obligation of kafarah (expiation), which is the fixed punishment legislated as a right of Allah, to be paid along with the ghurrah (blood money owed for a foetus). The kafarah here is to free a believing slave, and if that is not possible, then to fast for two consecutive months.

The Hanafis and Malikis view the kafarah as recommended, not obligatory, because the Prophet ﷺ only ruled with the ghurrah. Furthermore, the kafarah contains a meaning of punishment, since it was legislated as a deterrent, and it also includes a meaning of worship, since it can be performed through fasting.

The obligation of kafarah is known in the case of full human lives, and that ruling should not be extended, because punishments are not subject to analogical reasoning. The foetus is only considered a human life in some respects, not completely. This is why the full compensation is not required for it, and likewise kafarah is not required, just as there is no kafarah for damage to limbs. However, if one performs it as a way of seeking closeness to Allah, it is better. Based on that, it is not obligatory (See Tabyin al-Haqa’iq with Hashiyat al-Shalabi 6/141; al-Hidayah and its commentary Takmilat al-Fath 8/324–329, 1318 edition; Hashiyat al-Dusuqi 1/266–268, Isa al-Halabi edition; Sharh al-Khurashi 5/270 and 274, first edition; al-Taj wa al-Iklil; Mawahib al-Jalil 6/297).

The Shafiʿis and Hanbalis consider the kafarah obligatory alongside the ghurrah, because it is a right of Allah and not of the human being. Also, the foetus is a soul for which blood money is owed, so kafarah is also required. The fact that the Prophet ﷺ did not mention the kafarah in some narrations does not mean it is not obligatory, because he also mentioned the blood money in some places without mentioning the kafarah (See al-Mughni 7/816, Riyadh edition).

This difference of opinion applies to the foetus who is ruled to be a Muslim due to the Islam of both or one of its parents, or if it has protection under Muslim rule (dhimmah).

The Shafiʿis and Hanbalis further state that if more than one person participates in the act of abortion, then each person must pay a separate kafarah, because the aim of the kafarah is to deter. As for the ghurrah, it is only one, since it is compensation (See Asna al-Matalib with Hashiyat al-Ramli 4/15; al-Mughni 7/816).

Punishable Abortion

13. The jurists agree on the obligation of the ghurrah if the foetus dies due to an attack, and they also agree that it is a condition for the foetus to exit the womb dead, or for part of it to exit in a way that indicates its death.
14. This is because the ruling of a newborn is not established unless it emerges, and movement inside the womb could be due to wind that later settled. If it exits, its death due to the strike, or fright, or something similar becomes apparent. However, the Shafiʿis said that if the death of the foetus is known, even if no part of it has exited, then whatever exits is to be considered like the whole (See Hashiyat Ibn ʿAbidin 5/377; Tabyin al-Haqa’iq 6/137; Hashiyat al-Dusuqi 4/268; Sharh al-Khurashi 5/274; al-Taj wa al-Iklil 6/257; al-Iqnaʿ and Hashiyat al-Bujayrimi 4/121 and onwards; Asna al-Matalib with Hashiyat al-Ramli 4/89, al-Maimaniyyah edition; al-Mughni 7/801, Riyadh edition).

According to the Hanafis, the separation of most of the foetus is treated as if the whole exited. If it exits from the head, then the majority is considered the chest. If it exits from the feet, then the majority is when the navel exits (See Ibn ʿAbidin 1/595; al-Bahr al-Ra’iq 2/202).

The Hanafis and Malikis hold that this must occur before the mother’s death. Ibn ʿAbidin said that if a foetus exits dead after the mother has died, then there is nothing owed for it, because her death is the apparent cause of its death, since its life depends on hers. Therefore, its death is realised by her death, and it is not considered part of what is mentioned in the revealed text, since the possibility is less certain, and one cannot be held accountable for doubt. Moreover, the foetus is like one of her body parts, and with her death the rulings of her limbs fall away (See Hashiyat Ibn ʿAbidin 5/378).

Al-Hattab and al-Mawwaq said that the ghurrah is obligatory if the foetus dies before the mother dies (See Mawahib al-Jalil and al-Taj wa al-Iklil with its margin 6/257). Ibn Rushd said it is a condition that the foetus exits dead and that the mother does not die from the strike (See Bidayat al-Mujtahid 2/407, al-Maʿahid 1354 edition).

As for the Shafiʿis and Hanbalis, they obligate the ghurrah whether the foetus exits dead during the mother’s life or after her death. As Ibn Qudamah said, it is a foetus that perished due to an assault, and this became known by its exiting, so compensation is due for it just like if it had exited during her life. And if it had exited alive, then compensation would have been due, so the same applies if it exited dead, just like if she had expelled it during her life. (See al-Mughni 7/801–802, Riyadh edition). Qadi Zakariyya al-Ansari said that if the mother was struck and died, then expelled a dead foetus, the ghurrah is still due, just like if it had exited during her life (See Asna al-Matalib with Hashiyat al-Ramli 4/89 and onwards; al-Iqnaʿ and Hashiyat al-Bujayrimi 4/429 and onwards).

The jurists agree that the basis for imposing the penalty is when some features of the foetus appear, like a fingernail or hair. This makes the foetus have the ruling of full formation by agreement. Ibn ʿAbidin said this does not happen except after one hundred and twenty days.

The Malikis extended this further and ruled that the ghurrah is obligatory even if no features of the foetus are clear, and even if it is expelled as a ʿalaqah, which is a clot of congealed blood. Ibn Rushd reported from Imam Malik that he said: anything expelled by the woman that is known to be a child, whether a lump of flesh or clot, a ghurrah is due for it. The best position is to consider whether the soul had been breathed into it (See Hashiyat Ibn ʿAbidin 5/379; Hashiyat al-Dusuqi 4/268–269; Asna al-Matalib 4/89; al-Mughni 7/802).

The Shafiʿis also obligate the ghurrah if the woman expels flesh in the shape of a human.

Among the Hanbalis, if she expels a lump of flesh, and trustworthy midwives testify that it is the beginning of human formation, there are two views. The stronger view is that there is nothing owed. This is also the view of al-Shafiʿi when there is no human shape. As for the Hanafis, there is a hukumat ʿadl (a just assessment). Ibn ʿAbidin narrated from al-Thumani that if it is a lump not clearly formed, and reliable midwives say it is the start of human formation, then a fair financial assessment is made (See Ibn ʿAbidin 5/379; Hashiyat al-Dusuqi 4/268–269; Asna al-Matalib 4/89; al-Mughni 7/802).

Al-Mawsu’ah al-Fiqhiyyah al-Muqaranah Al-Tajrid (2/57-

The scholars agreed that abortion is forbidden without a valid excuse after the fourth month, which is after one hundred and twenty days from the start of pregnancy, and this is considered a crime that makes the payment of al-ghurrah necessary (the compensation for the unborn child, which equals five percent of the full blood money, meaning fifty dinars or five hundred dirhams) because it is the destruction of a life and the killing of a human being.

The Hanafi madhhab

(Fath Al-Qadir 2/495, Hashiyat Ibn Abidin 1/278, 2/522, 5/418, Al-Fatawa Al-Hindiyyah 5/365–367) says it is allowed to end the pregnancy after it has begun, as long as nothing has yet been formed, and that would only be before one hundred and twenty days have passed because before this the fetus is not considered a human being. This means that what they intend by “formation” is the blowing of the spirit into the fetus. It is also said in their view that it is disliked without a valid excuse, so if a woman aborts without a valid excuse, she bears sin. Among the excuses is if her milk stops after pregnancy appears, and the father does not have the means to hire a wet nurse, and there is a fear for the child’s life. This is also the view of Al-Ghazali and the Zahiri madhhab (Al-Muhalla 11/38, Imam edition).

The Shafi’i madhhab

(Bughyat Al-Mustarshidin 4/40, Hashiyat Al-Shabramalsi on Nihayat Al-Muhtaj 6/205, Tuhfat Al-Muhtaj Ibn Hajar 8/241, Nihayat Al-Muhtaj 8/239 and what follows, Sharh Muslim 16/190) says abortion is allowed with dislike if it takes place within the first forty days (forty, forty-two, or forty-five days) from the start of pregnancy, on the condition that both spouses agree and that it does not cause harm to the pregnant woman. After the forty days, abortion is forbidden in all cases. Al-Ramli preferred the view that abortion is allowed before the blowing of the spirit and forbidden after that in all cases, which makes his view similar to the Hanafis. Al-Ghazali forbade abortion in all cases, because it is an assault on an existing being (Ihya Ulum Al-Din 2/47).

The Hanbali madhhab

(Al-Furu’ by Shams Al-Din Al-Maqdisi 1/281, Al-Insaf by Ala’ Al-Din Al-Mardawi 1/386, Muntaha Al-Iradat Ibn Al-Najjar 1/286, Al-Mughni 7/816) is similar to the Hanafis: what is relied upon in their view is that abortion is allowed in the first four months, meaning within one hundred and twenty days from the beginning of pregnancy, before the blowing of the spirit. After that, meaning after the clear appearance of movement, it is absolutely forbidden.

Making a woman infertile by any treatment that permanently prevents having children: the jurists have said that it is forbidden to use anything that cuts off pregnancy from its root, because it is like burying a child alive. This is except in the case of urgent necessity, such as the transmission of a dangerous hereditary disease to children or grandchildren, because warding off harm comes before bringing benefit and the lesser harm is to be chosen. There is no problem with making the one who is afflicted infertile.

Kitāb al-Fiqh al-Islāmī wa Adillatuh li-Wahbah az-Zuḥaylī (2/2646-2648)

Abortion before the soul is breathed into the foetus

First View: Permissibility before the soul is breathed in

• Hanafis: It is permitted for a woman to abort her foetus if it is not yet formed. They differ on what is meant by “formed.” Some say it means before forty days. Others say it means before one hundred and twenty days, which is the time of soul-breathing, and this is the majority view. Ibn Abidin said it is allowed for her to use means to cause bleeding if the pregnancy is still in the stage of a clot or a lump and no organs have formed, estimating this period as one hundred and twenty days. They permitted this because the foetus is not yet considered a human being. (Ibn Abidin, Radd al-Muhtar, vol. 1, p. 302).
• Malikis: They permit abortion if the foetus is less than forty days old in the womb, since the soul has not yet been breathed into it. The Maliki jurist al-Lakhmi stated it is permissible to remove what is in the womb before forty days (al-Rahuni, Hashiyat al-Rahuni on Sharh al-Zurqani, vol. 3, p. 264).
• Shafiʿis: Their apparent view is that it is permitted before the soul is breathed in and forbidden after that. In Nihayat al-Muhtaj, it says: “The preferred view is that it is forbidden after the soul is breathed in absolutely and permitted before that” (al-Ramli, Nihayat al-Muhtaj, vol. 8, p. 443). Al-Ghazali said in Ihyaʾ Ulum al-Din: “The child comes into being through four stages: marriage, intercourse, remaining after intercourse until ejaculation, and waiting for the fluid to settle in the womb. Avoiding the last is like avoiding the previous ones. Preventing these is not like abortion or infanticide, because the latter involves harming an already existing being. Even the early stages of conception are beginnings of life, so harming them is a wrongdoing. The further along the development, the greater the sin. If the soul has been breathed in, and the body is fully formed, the sin is even more serious” (al-Ghazali, Ihyaʾ Ulum al-Din, vol. 2, p. 51).
• Hanbalis: Their view is the same as the Shafiʿis. Abortion is permitted before the soul is breathed in and forbidden after.

Second View: It is disliked to abort, before the soul is breathed in

This is a view held by some Malikis and the majority of Shafiʿis. In Hashiyat al-Dusuqi, the Malikis state: “It is not permitted to remove the semen that has settled in the womb, even before forty days” (al-Dusuqi, Hashiyat al-Dusuqi, vol. 2, p. 266). The Malikis thus do not prohibit removing the semen in the womb because the semen is not yet considered anything definite, and no ruling is attached to it unless it has settled in the womb and remained there, otherwise it is like the fluid still in the man.

The Shafiʿis: Ibn Hajar al-Haytami said: “They differed regarding causing a miscarriage before the soul is breathed in, which is after 120 days. This is different from the permissibility of coitus interruptus. The difference is clear, as the semen at ejaculation is just a lifeless fluid not yet prepared for life, unlike the semen that has settled and begun to form. This can be recognised by signs” (al-Haytami, Tuhfat al-Muhtaj, vol. 8, p. 241).

Third View: Absolute Prohibition

Some scholars from the four madhhahib held that it is prohibited entirely. These differences revolve around how they understood the evidence.

• Hanafis: In Hashiyat Ibn Abidin, it says: “I do not hold it is permissible, for just as one who breaks the egg of a hunted bird is held liable because it is the source of the bird, then similarly, there should be some liability for abortion without excuse” (Ibn Abidin, Hashiyah, vol. 4, p. 153).
• Malikis: Ibn Juzayy said in al-Qawanin al-Fiqhiyyah: “Once the womb takes hold of the semen, it is not allowed to interfere with it. It is even more severe if it has formed, and worse still if the soul has been breathed into it, for that is considered killing a soul by consensus” (Ibn Juzayy, al-Qawanin al-Fiqhiyyah, pp. 183–184).
• Shafiʿis: In Tuhfat al-Muhtaj, it says: “If the soul has been breathed in, and even before that, it cannot be said to be merely disliked. It is more correct to say it is either disliked or forbidden, and the prohibition is stronger the closer it is to the time of soul-breathing, for that would be a crime” (al-Haytami, Tuhfat al-Muhtaj, vol. 8, p. 429).
• Hanbalis: Abortion is forbidden by consensus, and it is considered part of infanticide, of which Allah said: “And when the infant girl buried alive is asked” (Surah al-Takwir, verse 8).

They used the following as evidence for prohibition:

1. Abortion resembles infanticide because both involve killing, and abortion involves killing a being that has started forming into a human, so it is prohibited (Ibn Taymiyyah, Majmuʿ al-Fatawa, vol. 34, p. 160).
2. Abu Hurayrah narrated that two women from the tribe of Hudhayl fought, and one threw a stone at the other, causing her to miscarry. The Prophet ruled that she must pay compensation with a male or female slave (Sahih Muslim,1681).
3. Umar once asked the people: “Who has heard the Prophet rule in the matter of a miscarried foetus?” Al-Mughira said: “I heard him rule compensation with a male or female slave.” Umar said: “Who will testify with you?” Ibn Maslama said: “I will” (Bukhari 6905).

The stronger view regarding abortion before soul-breathing is that it is permitted before forty days, on the condition that the pregnancy is from a valid marriage, it does not harm the mother, both spouses are aware, and a specialised doctor is consulted. After forty days, it is forbidden, as the foetus begins forming and is preparing for the soul to be breathed in.

Second: Abortion after the Soul Has Been Breathed In

All scholars from the Hanafi, Maliki, Shafiʿi, and Hanbali madhhahib agree that abortion after soul-breathing is forbidden, except in very specific cases determined by experts. This includes when there is a clear danger to the mother’s life, in which case her life is prioritised.

It may also include cases where a trustworthy group of doctors confirm that the foetus has an untreatable deformity, such as severe brain atrophy or other conditions that make survival impossible. These deformities may be genetic or caused by external factors. In such cases, abortion is allowed.

The soul is breathed into the foetus after four full months. This is well-known among the earlier Muslim scholars, who upheld this view. They based it on the hadith of Abdullah ibn Masʿud who said: The Prophet told us: “Each one of you is gathered in his mother’s womb for forty days as a drop of semen, then for another forty days as a clot, then for another forty days as a lump, then an angel is sent to breathe in the soul and is ordered to write four things: his provision, lifespan, deeds, and whether he will be happy or miserable” (Bukhari, Book of Destiny, hadith 11417; Muslim, Book of Destiny, hadith 190/6).

• Hanafis: Abortion is permitted after conception only if no part of the foetus has formed, which only occurs before one hundred and twenty days (Ibn Abidin, Hashiyah, vol. 3, p. 176).
• Malikis: It is not permitted to remove semen that has settled in the womb, and after the soul is breathed in, it is forbidden by consensus (al-Nasufi, Hashiyah, vol. 2, p. 267).
• Shafiʿis: Once the soul is breathed in, and until delivery, abortion is undoubtedly prohibited (al-Nawawi, Mughni al-Muhtaj, vol. 8, p. 442).
• Hanbalis: Abortion is forbidden by consensus and considered a form of infanticide (Ibn Taymiyyah, Majmuʿ al-Fatawa, vol. 43, p. 160).

Ibn Rajab said in Jamiʿ al-ʿUlum wa al-Hikam: “Some jurists permitted a woman to abort what is in her womb before the soul is breathed in, considering it similar to coitus interruptus. But this is a weak view, because the foetus is a child that has been formed and may already have features, unlike coitus interruptus where no child is formed at all” (Ibn Rajab, Jamiʿ al-ʿUlum wa al-Hikam, p. 157).

He was asked about coitus interruptus, and he answered: “It does not matter if you do not practice coitus interruptus, for every living being to be created, Allah will create it” (Bukhari, hadith no. 2542; Muslim, hadith no. 1438).

The Dhahiris: Ibn Hazm said in al-Muhalla: “If someone were to ask, ‘What do you say about a woman who deliberately killed her foetus after one hundred and twenty nights had passed with certainty, or someone else did so deliberately in her womb, killing the foetus?’ Our view is that qisas (retaliatory execution) is obligatory in that case without a doubt, and ghurra (blood money for a foetus) is not applicable unless pardon is granted, in which case the ghurra is due as compensation” (Ibn Hazm, al-Muhalla bi al-Athar, vol. 11, p. 31).

The scholars agreed that aborting a foetus after the soul has been breathed into it is forbidden. It is not permissible for a Muslim to do so, because it is considered a transgression against a living being with formed features and visible signs of life. Therefore, a full blood compensation (diyah) is required if the foetus is born alive and then dies. A lesser financial penalty is imposed if it is born dead (al-Qaradawi, The Lawful and the Prohibited in Islam, p. 178).

Rulings and Penalties Related to Abortion

Definition of Diyah in Language and Terminology

In language, diyah means “the right of the slain.” It is said: “I paid the diyah of the murdered person,” meaning the due compensation. Its plural is diyat (Ibn Manzur, Lisan al-Arab, vol. 15, p. 383). In legal terminology, diyah is wealth paid in compensation for a non-wealth entity, namely a life (al-Sarakhsi, al-Mabsut, vol. 26, p. 59).

The Legitimacy of Diyah

The obligation of diyah is established by the Quran, the Sunnah, and consensus:

• The Quran: “And whoever kills a believer by mistake, then the freeing of a believing slave and diyah must be paid to the family” (Surah al-Nisa, verse 92) (Surah al-Nisa, verse 92).
• The Sunnah: It is narrated by Abdullah ibn Amr that the Prophet said: “In a case of killing similar to intentional killing using a whip or stick, there is diyah of one hundred camels, forty of which are pregnant she-camels” (Ahmad, Musnad, hadith 15775; authenticated by al-Albani).
• Consensus: Ibn Abd al-Barr said: “The scholars agreed that the diyah for accidental killing is a hundred camels and that the Prophet ruled it is paid by the killer’s male relatives” (Ibn Abd al-Barr, al-Istidhkar, vol. 8, p. 53).

If the Foetus Is Aborted Dead

Whether the foetus is aborted dead, born alive before term and dies, or dies within the womb, and whether the act was done by the mother, father, doctor, or any third party, intentionally or forcibly, whether the mother lives or dies, and no matter the method used, the perpetrator bears the sin and the punishment in the Hereafter.

The worldly consequences include punishment by law and penalties to deter the individual and others. These punishments include the ghurra (compensation for a foetus), kafarah (expiation), discretionary punishment (taʿzir), deprivation of inheritance, and in some cases qisas or full diyah.

The scholars agreed that if the foetus is aborted dead while the mother is alive, then a ghurra is due (Ibn al-Mundhir, al-Ijmaʿ, p. 152). If abortion is caused by any means, even by frightening the mother into miscarrying a foetus that shows signs of formation, then compensation of a male or female slave is due. The Prophet ruled this when two women from the tribe of Hudhayl fought, and one struck the other with a rock, killing her and her unborn child. The matter was taken to the Prophet who ruled that the ghurra for the foetus is a male or female slave, and that the full diyah for the mother be paid by the killer’s male relatives (al-Bar, The Problem of Abortion, p. 46).

In al-Umm, Imam al-Shafiʿi wrote: “If a man harms a woman intentionally or unintentionally and she miscarried a dead foetus, then his male relatives must pay the ghurra of either a male or female slave, and they may choose which and of what type” (al-Shafiʿi, al-Umm, vol. 6, p. 109).

Who Is Responsible for Paying the Diyah of the Foetus

If the act was intentional and aimed at killing the foetus, then liability depends on the recognition of intent. This raises two matters:

• First Matter: The difference of opinion among scholars on the diyah in cases of intentional abortion

There are two views (al-Najimi, Abortion in the Sharia, pp. 549–550):

1. The Majority: The diyah in abortion may belong to the mother or the foetus. The diyah is borne by one of three: the perpetrator, the killer’s male relatives, or the public treasury. This depends on the nature of the act and who caused the abortion. They said intent in killing the foetus is not clearly applicable, so the diyah should be paid by the killer’s male relatives.
2. Malikis: They said intent is applicable in foetus killing, so the perpetrator must pay the diyah.

Second Matter: Is a doctor liable for mistakes in abortion and does he pay the diyah?

Scholars differed whether the doctor’s liability falls on his male relatives or from his own wealth. They agreed that if a doctor errs, he is liable for the diyah, like cutting the glans in circumcision or similar cases, as this counts as an unintentional harm. According to a narration from Malik, there is no liability if he is a qualified doctor. There is consensus that if he is unqualified, then he is liable because he acted recklessly.

The majority say that in a mistake, the diyah is paid by the male relatives. Other scholars said the diyah should be paid from the doctor’s personal wealth. The stronger opinion is that it is left to the discretion of the judge. If the judge rules the doctor or perpetrator must pay from their wealth, he may do so, especially in our time where unlawful sexual relations and abortion for social reasons have become widespread. Making the perpetrator pay from their own wealth deters them and others. If the judge sees a reason to assign it to the male relatives, due to circumstances like deception or external pressure, he may do so. This combines both opinions.