It would be futile to pretend that current discussions on abortion, in Mauritius, are devoid of religious considerations. Politicians, even the staunchest secularist, are all too aware of this and hence recourse to local religious ‘experts’ of all ilks is crucial if one is to gauge the feelings of religious communities on the topic. To prevent the debate being hijacked by home-grown Muslim ‘experts’ who write and talk on behalf of God, I shall briefly expound the treatment of abortion in the classical Islamic law manuals of the four schools of law (mazhabs). Contemporary references also used for this purpose are inter alia; The Encyclopaedia of Islamic Law (4th ed., Kuwait, Ministry of Endowments and Islamic Affairs, 1993, 40 vols.), Islamic Law and its Evidences (W. al Zuhayli, Beirut, Dar al Fikr, 1989, 8 vols.) and Islamic Criminal Law (A. ‘Awda, Cairo, 1960, 2 vols.)
JARGONBUSTER
The first point to begin with, in a discussion of this sort is that of terminology, for the tragedy of Muslim writers and spokesmen these days is the use of several terms whose legal meanings and implications they are unaware of. Hence it behoves me to begin by defining terms like abortion, infanticide, murder, foetus and child.
(i) Abortion (ijhād) in Islamic law is: the act of causing the discharge of a foetus (janīn) not fully formed or causing the discharge of a fully formed foetus before the customary period. It is immaterial whether the foetus comes out dead or alive to constitute abortion.
(ii) Foetus (janīn): an unborn offspring clearly possessing human features according to al Shāfi’i while al Nuwayri maintained that the word foetus applies to one in which ensoulment has occurred.
(iii) Child (walad): an infant, male or female, separated from the mother after birth.
(iv) Infanticide (wa’d): the act of killing a child (walad).
(v) Murder (qatl ‘amd): the deliberate act that deprives a person of his life and causes his death.
The above technical definitions should make it clear that abortion in Sharī’a jargon is a very precise and specific act. Hence the discharge of a non-foetus, that is an embyo, is not abortion; similarly abortion is not miscarriage (tarh) nor infanticide nor is it murder. But before proceeding any further, it would be pertinent to gloss over some fundamental theological presumptions that underlie the law of abortion so as to better apprehend the legal import of the discussion.
THE DOCTRINE OF ENSOULMENT (nafkh al rūh)
The theological doctrine of ensoulment is capital for an understanding of the legal status of a foetus and the concomitant offence of abortion. In the authentic collections of Muslim traditions (Bukhari no.3208 and Muslim no.2643) Prophet Muhammad said: ‘Each one of you is created in his mother’s womb for forty days as a drop, then he becomes a clot of blood for an equal period, then a piece of flesh for like period. Then an angel is sent to him who breathes life into him’.
On the basis of the above Prophetic saying, Muslim theologians and jurists have argued that from the Islamic standpoint, life in the womb begins with the angelic ensoulment of the foetus at 120 days. And it is at this stage that the foetus acquired some form of legal capacity (ahliyya) and is a ‘person’, albeit an incomplete one. Prior to this event, there is no life and the embryo, irrespective of its developmental features is merely a collection of tissues, unable to bear legal capacity.
Modern scientists have an altogether different conception of what life is. While Muslims theologians cling to the abstract notion of ensoulment to define life, scientists rely on more empirical and concrete observations to construct their notion of life. To them, movement (especially the beating of the heart) is indication of life and this happens well before the 120 days claimed by theologians. Thus the contemporary Muslim scientist and even the ordinary believer are faced with the fundamental question: Is movement a sufficient condition for life or is it simply a necessary condition rendered sufficient only by ensoulment?
It is quite obvious why the debate on abortion arouses so much passion. To many Muslims, adopting the scientists’ conception of life is simply an outright rejection of Muhammad’s teachings; worse, it is an implicit recognition that Muhammad was wrong when he claimed that life begins after 120 days. Thus the issue of abortion brings along with it the question of the infallibility of Muhammad prophecy, which is the second article of the Muslim’s faith. Theology aside, the debate touches upon some of the most fundamental philosophical questions of human existence: What is the meaning of life? What are the limits to human freedom of choice and personal liberty? Answer to these is not always clear-cut.
ISLAMIC CRIMINAL LAW (al Jināyāt)
The distinction between crime and tort becomes blurred when one approaches Islamic criminal law. A crime (jināyā) in Islamic law is any harm or injury to life, body or property. Three types of crimes are identified: (a) that which threatens life (homicide), (b) that which threatens the body (injuries) and (c) that which threatens a foetus. Abortion falls in the third category. It is interesting to note that Muslims jurists have classified abortion in a genre of its own; the reason being that they considered a foetus to be neither a complete independent person nor a totally dependent part of the mother’s body but a combination of both and hence warrants a specific category. Generally speaking, the penalties provided for homicide and injuries are retaliation (qisās) monetary compensation (diya or ‘arsh) and penance (kaffāra) for accidental injuries.
Insofar as abortion is concerned, the first point to remember is that the Quran is silent over the matter. Quranic verses, often cited by some Muslims are all irrelevant since they refer either to the crimes of murder (qatl) or to infanticide (wa’d) and as earlier stated these crimes are in a different category and their punishment is different from that of abortion. All the rules pertaining to abortion in Islamic law are essentially derived from the sayings and judgments of the Prophet.
Muslim jurists approach abortion in two stages, before ensoulment and after ensoulment. There is no disagreement among the jurists that abortion, carried out after ensoulment has occurred (i.e. after 120 days), is unlawful (harām). The reason is that abortion at this stage is a direct threat to a living being and any threat to human life is a crime in the eyes of God. However, views differ widely when it come to abortion before ensoulment; five views prevail among and within the schools of law. First, some Hanafis and Hanbali argued that abortion is lawful before ensoulment, without any conditions. Second, al Lukhami and al Marwazi claimed that it is lawful before 40 days and the reason –as Ibn ‘Aqīl puts it- is that what is not ensouled is not living and one cannot be criminally liable for a non-living part of one’s own body. Third, it is allowed for a valid reason such as when the pregnancy dries out the mother’s milk and she cannot afford a wet nurse, then she can abort. Fourth, although it is not an offence before ensuolment, yet it is a despicable act that is to be avoided. Fifth, even before ensoulment it is unlawful and this is the view of the Hanbali school.
The penalty for unlawful abortion in Islamic law is a ghurra, that is five camels or its monetary equivalent (50 dinars or 500 dirhams). This rule is based on the Prophetic judgment where a woman assaulted pregnant woman and killed her as well as her baby; the Prophet condemned the offender to pay a ghurra for the killing of her foetus and a diya (100 camels) for homicide. The payment of penalty becomes incumbent provided that the aborted child is dead when it came out, irrespective of whether the person inducing the abortion was the mother or any other party. If the woman was pregnant with more than one child, then for each child, one penalty applies.
THE RULE (‘azīma) AND THE EXCEPTION (rukhsa)
A shown above, the abortion of foetus before ensoulment takes place is widely accepted as a lawful, or rather a non-criminal practice in Islamic law. The philosophy underlying this approach is that the ultimate spirit of the law (maqāsid al sharī’a) is the procurement of wellbeing and the avoidance of harm to the subjects. This is achieved by securing five necessary values around which all legal provisions revolve; first and foremost is the protection of life, then the protection of faith, property….etc. And the protection of one’s life can only happen after life has been infused into him. After ensoulment, the law excludes all forms of interference with the foetus. However there are exceptional circumstances (darūrāt), which warrant a restrictive application of this general rule.
What if a woman becomes pregnant as a result of rape or incest? What if the foetus suffers from severe deformities or is at risk from genetic diseases or congenital defects? In such cases Islamic law allows the discharge of the foetus during the pre-ensoulment period. If one is to rely the minimal agreement among the jurists, then one has up to eight weeks or perhaps up to ten weeks to carry out a voluntary interruption of pregnancy. Advances in technology now seem to detect at a much earlier stage any forms of deformities. In the case of a woman who became pregnant as a result of unlawful sex, abortion (as defined above) is unwarranted, for the legal maxim clearly states that ‘whoever hastens a thing before its due time incurs the opposite of what he intended’.
The difficult question is: what if at a later stage, the survival foetus poses a threat to the life of the mother? Is it morally or lawfully permissible to abort a fully developed living foetus? As Ibn Abidīn said, the legality of abortion is dependent upon the validity of the reason. Early medieval Muslim physicians have acknowledged the possibility; Ibn Sīna (Avicenna, d.1037 C.E) stated:’It may be necessary at times to induce abortion…..when it is feared that childbirth would cause her death…’. More recently the Mufti of al Azhar, Sheikh Shaltūt, reasoned that on the basis of the legal doctrine ‘opting for the lesser of the two evils’ the mother’s life should be preferred to the detriment of the foetus’.
ABORTION LAW IN THE MUSLIM WORLD
The utopian tendency of local Muslims to think that there is one law of Islam that is uniformly applied throughout the Muslim world is here again a self-fulfilling myth. Abortion law, just like Muslim Personal law and other criminal laws reflect the richness and diversity of understanding of the laws of Islam by different communities. In the case of abortion, the very definition, the nature of the offence and the sentences prescribed are different.
Abortion is not an offence in Tunisia. In Turkey it is not an offence if carried out under medical supervision. In Morocco and Malaysia it is a crime except where the mother’s life is in danger where it is allowed in the first trimester. It is allowed up to four months, in Kuwait, in case of danger to the mother’s health or in case of severe foetal deformities. However, if performed after four months, it carries a sentence of up to 10 years imprisonment and a fine. In Bahrain, Qatar and Jordan it is allowed if the mother’s health is imperilled. This allowance however is restricted to the first trimester only in Bangladesh and up to the second trimester in Algeria. The Pakistani penal code (Art. 338 A-G) on the other hand, makes it an offence carrying a discretionary sentence (ta’zīr) of three to ten years prison if done without the woman’s consent. It is allowed in the first trimester if the woman’s health is endangered. Severe foetal deformity is sufficient cause for abortion in Sudan and also in Iraq and Qatar but with more restrictions. The strictest of all regimes –as expected- is Saudi Arabia where it is illegal at any stage under all circumstances except to save the mother’s life. The only places in the world where abortion is illegal even if the mother’s life is in danger are the Vatican, Chile, El Salvador and Malta.
In Egypt, abortion is illegal unless the mother’s life is in danger. Yet the law is practically made redundant by evidential procurement. In effect, the prosecution must prove (i) the pregnancy of the woman, (ii) that the pregnancy was interrupted through illegal methods and (iii) mere intention to abort is not sufficient ground for prosecution.
IN A NUTSHELL
Abortion, however understood, is a crime in Mauritius. Yet unofficial estimates put the figure of abortion at 20,000 per year, largely practiced in backyard makeshift clinics. Abortion in private clinics has been discreetly but widely practiced for decades for those who can afford. Those who cannot, have no recourse but the backyard clinics and at the risk of their life. They are the ones whom the law enforcement agencies seem to be concerned with and on whom ‘justice’ must be inflicted. The recent arrest and trial of three of those women after severe complications resulting from an alleged abortion is an example.
Mauritian Muslims who look up to the sharī’a as their frame of reference are to stress the following to the authorities concerned: (a) that the archaic abortion law was devised at a time when religious considerations was a priority rather than the welfare of the citizens; (b) it is time that the law be seen to reflect justice and that law enforcement be seen to fairly and indiscriminately operational; (c) that Islamic law overwhelmingly does not consider the voluntary interruption of pregnancy up till the tenth week (or before ensoulment), a crime; (d) that abortion during this period be decriminalised; (e) that the law of evidence for the trial of abortion be reinforced so that the onus be on the prosecution to prove pregnancy and its illegal termination; (f) that abortion from the fourth month onward be exceptionally allowed to save the mother’s life or to avoid serious health complications or in cases of severe foetal deformities; and finally that such abortion as may be warranted by the amended legal provisions be carried out in public hospitals under strict confidentiality.
Belall Maudarbux
