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Jurists Views

The accounts on abortion in books of jurisprudence are quite lengthy and it would not help to copy them all. For the sake of simplifying the matter to the reader, we will give an adequate digest of the different views .

All jurists of all sects unanimously agree that abortion after sixteen weeks is a grave and punishable sin. A small minority showed leniency before sixteen weeks, and a small minority showed leniency before seven weeks. The influence on their concepts of the presence or absence of life in the early fetus has already been alluded to.

Sheikh Mahmoud"Shaltout (late grand Imam of Al-Azhar in the 1940s), in discussing the verdict on abortion wrote: "Old scholars are agreed that after quickening takes place, abortion is prohibited to all Muslims, for it is a crime perpetrated against a living being". Therefore blood ransom is due if the fetus is delivered alive, and the 'ghorra' (one twentieth of the ransom for manslaughter) if delivered dead. The jurists were not, on the other hand, agreed whether to sanction or prohibit abortion if performed prior to the quickening phase. Some felt it was permissible on the grounds that no life existed and therefore no crime could be committed. Others held that it was unlawful, maintaining that it already had invisible life, that of growth and preparation.

Among the latter was Al-Ghazali, the great master belonging to the Shafiai school. He clarified the difference between contraception (by coitus interruptus at that time) and abortion, for abortion is an assault on an already existing life. The first grade of existance occurs when male matter falls into the womb and fuses with the female matter and gets ready to receive life. To destroy this is a crime, Al-Ghazali said. The crime grows more and more serious as this matter passes from one phase to the other. The crime is more heinous after the blowing of the spirit, and reaches its worst after the baby is born alive as was the pre-Islamic (Jahiliya) Arabs' practices of killing their children or burying their female neonates." (Shaltout: Islam-Creed and Law, Pub. Darul Qalam, 3rd ed, 1966).

Commenting on the quickening of life, Sheikh Shaltout says: "As they say, it does not occur until after the first four months.  When, on the other hand, we speak of life taking place in the fourth month, we are actually referring to the perceptible life which the mother feels through the movements of the fetus, to which the term 'instillation of life' has been given.  It is this point which enables us to conclude that the scholars' differences of opinion on the permissibility of abortiion resulted from their unawareness or lack of grasp of these technical aspects of the question, leading them to regard abortion before, as different from abortion after, formation of the fetus is complete and quickening takes place.   It may be said therefore that they are all agreed on the interdiction of abortion at any time during pregnancy."  (Shaltout: Al-Fatawa-Al-Azhar, 1959).

In his reference to 'quickening' and whether it really marked the beginning of life, Al-Ghaazali was shrewd enough to postulate that fetal life proceeded in two phases:  the phase of imperceptible life characterized by silent growth and making ready to receive the spirit, followed by perceptible life starting with the mother's perception of quickening.  Both phases are respectable and should not be violated.