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Is abortion permissible before 120 days?

Question:

What do the scholars and experts of shari’ah say regarding abortion? Is it permissible if the pregnancy is less than 120 days? If the mother is unwell physically and psychologically, can she have an abortion?

Answer:

As a rule, abortion is unlawful in Islam. The shari’ah has placed great emphasis on the protection of the foetus. The honour and sanctity of life has been mentioned in numerous places in the Holy Qur’an and ahadith.

Allah ﷻ says in the Holy Qur’an:

  1. “It is not lawful for them to keep secret what Allah has created in their womb if they believe in Allah and the Last Day. (Al-Baqarah: 228)
  2. “Do not kill your children due to poverty, We provide for both you and them. (Al-An’am: 151)
  3. “You shall not kill anyone since Allah has made life sacred, except for a just cause. (Al-Isra: 33)

The exception to this rule is when there is a legal necessity which could lead to harming the mother. There is a difference of opinion amongst the jurists regarding aborting a foetus which is less than 120 days. The maliki jurists have ruled this as impermissible whilst others from amongst them have ruled it as disliked. The ahnaf and the shawafi’ have ruled it permissible only if there is a valid reason.

This difference stems from the debate on when life enters the foetus. Some of the jurists have mentioned 40 or 42 days which is an opinion from the shawafi’. Others, including the ahnaf and certain shawfi’ have argued that life enters that foetus at 120 days based on different evidence. However, it is agreed that there must be a valid excuse for abortion to take place regardless of what stage the pregnancy is at as it is preserving and honouring the sanctity of life which guides this debate.

The chosen opinion is that abortion is forbidden whether the soul has entered the foetus or not except when there is a valid legal necessity. This would be when an upright and expert doctor decides that if the foetus was to remain in the womb, then this would pose a danger to the mother’s life or health. Only then, would it be permissible to abort the foetus in consideration of the mother’s life and health which is already established.

Sheikh Mahmoud Shaltut mentions in his fatwa[1] on abortion that the mother is the source of life, and the foetus is there due to her, so protecting the mother’s health takes precedence. The mother has an already established life with rights and duties as well as being the pillar of her family. It is not logical that we sacrifice her life for that of the foetus that is yet to be independent. The mother’s life is certain whereas the foetus’ is still a possibility. A possibility does not remove that which is certain. Therefore, protecting the mother comes first, as it has been mentioned in the book of abortion[2]: “If it is established that the foetus remaining will lead to the death of the mother, then the shari’ah considering its legal maxims, will rule in favour of the lesser of the two harms. If the foetus remaining will lead to the death of the mother and there is no way to save her except through abortion, then the foetus will be aborted.”

Therefore, abortion will only be allowed with conditions mentioned above. It will be the responsibility of a medical expert to confirm whether the continuation of the pregnancy will harm the mother or not as the primary aim in shari’ah is the preservation of life.

Allah ﷻ knows better

[1] Shaykh Mahmud Shaltut, Fatwahu fi Isaqat al-Haml fi Kitabihi al-Fatawa, p.290

[2] Salih Al-Fawzan, Kitab al-Ijhadh bayn al-Tib wa al-Din wa Khataruhu ‘ala al-Muslimin, p.109

This fatwa is written by Dr. Hafiz Muhammad Munir Al-Azhari