Abortion after the soul has been breathed into the foetus

 

What is the ruling on abortion after the fifth month of pregnancy?

Praise be to
Allaah.

The fuqaha’ of the Sunni Islamic
madhhabs are agreed that it is haraam to kill the foetus after the soul
has been breathed into it, i.e., after 120 days have passed since conception.
It is not permissible to kill it under any circumstances except when
continuing the pregnancy would lead to the mother’s death. 

The differences among the
fuqaha’ have to do with abortion in the period before the soul is breathed
into the foetus. After the soul is breathed into it, the fuqaha’ are
agreed that the foetus has become a human being and a soul which has
dignity and is to be respected. Allaah says (interpretation of the meaning):

“And indeed We have honoured
the Children of Adam…”[al-Israa’ 17:70] 

And He says (interpretation
of the meaning): 

“… if anyone killed a person not in retaliation of
murder, or (and) to spread mischief in the land — it would be as if
he killed all mankind, and if anyone saved a life, it would be as if
he saved the life of all mankind…”[al-Maa'idah 5:32]  

The Maaliki faqeeh Ibn Jizzi narrated in al-Qawaaneen
al-Fiqhiyyah that there was scholarly consensus that it is haraam
to have an abortion after the soul has been breathed into the foetus.
He said: “When the womb has accepted the sperm it is haraam to interfere
with it. It is worse (to do so) when it has been formed; and it is worse
when the soul has been breathed into it, for that is considered to be
the killing of a soul, according to scholarly consensus.” (al-Qawaaneen
al-Fiqhiyyah, 141) 

Similarly it says in Nihaayat al-Muhtaaj:
“The prohibition becomes stronger the closer the time is for the soul
to be breathed into the foetus, because it is a crime. Then if it has
taken on a human form and the midwives can palpate it, it must be protected
fully.” (Nihaayat al-Muhtaaj, 8/442) 

The author of al-Bahr al-Raa’iq stated
that when some of the features of the foetus become distinct, it is
to be considered as a child. The author of al-Binaayah said:
“It is not permitted to interfere with the foetus once its features
have become distinct. If it can be distinguished from the ‘alaqah (clot)
and the blood, it should be considered as having become a soul, and
there is no doubt that the sanctity of the soul is protected by scholarly
consensus and by the texts of the Qur’aan.” 

Thus it is clear to us that abortion after
the soul has been breathed into the foetus is a crime which it is not
permitted to commit, except in cases of extreme and certain necessity,
not where necessity is merely imagined, i.e., where the necessity is
proven. This means cases where preserving the foetus would put the mother’s
life in danger, noting that with the advances in modern medicine and
the scientific possibilities available nowadays, abortions performed
to save the mother’s life have become very rare. 

 

Ahkaam al-Janeen fi’l-Fiqh al-Islami by ‘Umar ibn Muhammad ibn Ibraaheem ‘Aamir

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