Introduction
It is a well-known fact that the Quran outlines the ethical and practical principles that were designed to be followed in 7th-century Arabia. At the same time, Islam as a global religion aims to translate a universally applicable worldview that, at least theoretically, should work in every situation and age. This fact produces an obvious issue of the 7th-century concepts and the scientific knowledge of the later ages, especially since the two may come in conflict. The issue of abortion in Islam is certainly an example of such a contrast. Although the Quran unequivocally forbids infanticide, the later scholarly interpretations of the issue have highlighted the difference between varying schools in terms of when a fetus may be considered a person. While the Maliki school posits that the fetus is destined for ensoulment from the moment of conception and, thus, cannot be violated, the Hanafi school generally allows abortion prior to 120 days of pregnancy. While each side roots their arguments in a long and esteemed tradition of Islamic thought, the modern scientific data on fetal brain development makes the Hanafi approach more applicable in contemporary society.
Abortion in the Quran and Hadiths
The Quran does not refer to abortion in the sense that is commonly understood under the term in contemporary society – the deliberate premature termination of pregnancy that results in the death of the fetus. However, it still provides ample reference data for Muslim scholars to begin formulating their position on the matter based on that. For once, the Quran unequivocally upholds the sanctity of human life (McAuliffe, 2001). Apart from that, it contains explicit provisions against the killing of infants and female infants in particular (McAuliffe, 2001). Thus, it holds that taking human life, except for certain cases, is unlawful and should not be undertaken, which constitutes the basis for Islamic discussion of the issue. The main question to answer, though, is whether an unborn fetus may be considered a full-fledged human being and, consequently, whether it enjoys the same protection as any human after birth.
Another part of the Quran that has immediate relevance to the issue of abortion is the Islamic perspective on the development of life and, in particular, human fetal development. According to the Quran, the creation of a human being includes several consecutive steps. The first one, which is forming a human out of clay, only applies to Adam as the progenitor of humankind, but the other ones are universally applied (McAuliffe, 2001). The nucleus of human life is formed by the male semen, which, after being inserted into a womb, creates a clot of blood around it (McAuliffe, 2001). After that, when the clot reaches a certain degree of density, it begins the formation of tissues, such as bones, muscles, etcetera (McAuliffe, 2001). Muslim scholars generally agree that the fetus does not possess the soul from the very moment of its inception, and it happens at some point between inception and birth (McAuliffe, 2001). Regardless, it is important that the Quran depicts human development as a gradual process and makes a distinction between a fetus and a full-fledged human, which becomes a separate being with one’s own soul.
Speaking of hadiths, one prophetic hadith is of particular importance to the issue of abortion. It refers to the case of an induced miscarriage when someone hits a pregnant woman’s belly, resulting in the delivery of a dead embryo. The due to be paid is established at 50 dinars, but different schools of Islamic legal thought derive different implications from this commandment. Maliki school posits that the fine should be understood as one-tenth of 500 dinars to be paid for the death of the mother as an adult female slave (Eich, 2009). In other words, the Maliki school interprets the value of a miscarried infant based on the value of a mother. Yet, according to the Hanafi school, this reasoning is wrong because it does not consider whether the child could have grown to become a more expensive male slave or a less expensive female slave. Thus, according to the Hanafi school, the real meaning of this hadith is not deriving the fine for a dead embryo from a mother’s worth. Rather, it means that even a prematurely delivered dead infant should be considered a separate being from their mother.
Maliki and Hanafi Schools: Basic Differences
Even as thorough and multifaceted as the Quran is, it cannot cover every conceivable problem in human society, especially since many of them did not yet exist in the 7th century. In order to interpret and adapt Islamic teachings to social issues, there emerged different schools of thought called madhhab. Along with Hanbali and Shafi’i, Hanafi and Maliki belong to the four most prominent schools of Islamic legal and ethical thinking, and focusing on their approach to abortion requires providing basic information on both.
The Hanafi school was founded in the 7th century by Abu Hanifa al-Nu_man b. Thabit b. Zurti, whose name it received. The founder of the schools was a prominent jurist and a well-known transmitter of hadith reports (Martin, 2004). Although none of the legal works by Abu Hanifa himself have survived until this day, the compilations produced by his students and adherents proved enough to create and maintain a school. Those belonging to the Hanafi schools are often called ‘followers of opinion’ in Islamic thought (Martin, 2004). It is true in the sense that it refers to the school’s tendency to stress rational judgment and logical deduction, putting them before hadiths. This label separates them from the ‘followers of hadith,’ such as the Hanbali and Shafi’I schools, which are not included in this paper. Overall, while the Hanafi thinkers pay due respect to precedent, it is arguably the school that puts the greatest emphasis on reason and logic.
In contrast, the Maliki school, named after the 8th-century thinker Malik Ibn Anas, focuses more on the role of the normative behavioral example. While Malik was as knowledgeable in terms of hadith as any good Islamic lawyer, the characteristic feature of his view was the stress on the practices of the inhabitants of Medina (Martin, 2004). As such, it puts a strong emphasis on precedent because, even more so than some other schools, it paints itself as a direct connotation of practices that originated from the Prophet Muhammad’s stay in Medina. This difference makes it a suitable choice to contrast this school’s views on abortion against those adopted in the Hanafi school to decide which of these is ultimately better suited to modern society.
Maliki and Hanafi Schools and Their Positions on Abortion
As mentioned above, the Islamic theory of fetal development is absolutely crucial to understanding the doctrinal differences between the Hanafi and Maliki perspectives on the matter. Based on the contemporary understanding of the physiological processes behind inception and birth, medieval Islamic thought identified several stages of fetal development. The first stage, referred to as nuṭfa, begins when the semen enters the womb, and the male and female contributions – namely, the sperm and the blood – begin mixing together to create life (Eich, 2009). The second stage, which is called alaqa, refers to the blood-like clot that forms the nucleus of the fetus (Eich, 2009). Finally, the third stage, called muḍgha, is the forming of flesh – that is, tissue (Eich, 2009). While both Hanafi and Maliki schools recognize these stages, they assign a different meaning to them. At the end of the day, the disagreement between the two schools is about the implications of the stages of development for the value of fetal life. Having established that, it makes sense to cover the positions that both schools hold on the matter of abortion.
Generally speaking, the view taken by the Maliki school is that abortion is a sin and should not be permitted. It rests on the prohibition against killing, and infant killing, in particular, that is stressed in no uncertain terms in Quran. Indeed, if one considers the fetus to be a human being at all stages of its development, from nuṭfa to muḍgha, there can be no moral justification for killing it under Islamic law. Admittedly, this opinion is not universally accepted, as there have been some Maliki thinkers who challenged the prevailing wisdom of their colleagues in this particular respect. For instance, Al-Qurṭubī, a 13th-century Maliki thinker, posited that a fetus has only fully established itself by the alaqa stage (Eich, 2009). This outlook on fetal development made abortion during the nuṭfa stage permissible. However, this approach was only a minority opinion, and the vast majority of Maliki scholars continue to forbid abortion (Eich, 2009). What is more interesting, though, is how the Maliki school combines this view with the acknowledgment of several stages of fetal development, during some of which the fetus barely resembles a human.
Historically speaking, the original justification for the inexcusability of abortion at any stage of pregnancy was empirical. Until the 9th century, the idea of an individual human being in Islamic thought was primarily associated with a fully developed physical body (Eich, 2009). Given the general recognition of the fact that, even during the alaqa stage, a fetus was still but a clot, it made the Maliki position potentially precarious, as it was hard to prove fetal individuality. However, the development of the body/soul dichotomy allowed the Malikis to associate the sanctity of a fetus with the soul rather than the body, thus providing a better argument. From this perspective, even though the soul does not enter a fetus immediately upon inception, the fetus, even during the nuṭfa stage, is already destined to receive one (McAuliffe, 2001). Given that, it would be utterly criminal to meddle in this process by destroying the fetus and killing a potential human being (Ali, 2019). This approach allowed the Maliki school to unite its acknowledgment of the gradual nature of fetal development and inexcusability of abortion regardless of how early the stage of pregnancy is.
In contrast, the Hanafi school takes a more lenient position on the issue and considers abortion to be permissible under certain circumstances, largely dependent on the degree of the fetus’ development. According to this school, killing a fetus only becomes a crime after the point when it was already endowed with a soul, and the Maliki determinist view holds no merit. The difficulty is, of course, defining this crucial point when the ensoulment already took place. The view most widely accepted within the Hanafi school of thought is that abortion may be permissible before the fetus reaches 120 days of age but not later (McAuliffe, 2001). Historically speaking, the threshold of 120 days was established after amassing evidence on the physical development of prematurely expelled fetuses at different stages of pregnancy (Eich, 2009). Considering this, the Hanafi school went along largely the same path that the Maliki school – from bodily to the metaphysical definition of humanity – yet arrived at a different conclusion. According to its adherents, abortion may be permissible under some conditions, as long as the fetus does not reach the presumable age of receiving a soul.
This provision does not mean that the Hanafi school allows abortion during the first 120 days for any reason imaginable, as there are strict limitations. The most acceptable reason for abortion, as viewed from the perspective of this school, is the case when the mother falls pregnant while nursing a child. Since pregnancy would stop her from lactating, and the husband may be unable to find and pay a wet nurse, the new fetus may directly threaten the life and health of a child already born (Martin, 2004). In this case, abortion becomes the least of evils because it enables saving an already fully formed human being at the expense of a fetus who has not yet received a soul. An intolerable medical risk to a mother’s life is also a solid justification for abortion during the first 120 days (Martin, 2004). In contrast, the probability of a child being born with serious physiological defects does not constitute a valid reason for pregnancy termination (Martin, 2004). Thus, while the Hanafi school is more liberal when it comes to abortion, it is far from permitting it for any reason.
Application and Evaluation
As demonstrated above, both schools underwent changes in order to remain compatible with time. For instance, they both evolved from a purely physical understanding of human uniqueness as associated with a well-developed body to linking human nature to the soul (Eich, 2009). Still, the two schools have not been equally successful in coping with the advances of medical science and adjusting their respective principles in a way that would reflect the physiological reality best. The success of this adaptation is directly relevant to which school of Islamic thought makes the most sense when it comes to abortion and, hence, which of the two schools discussed should be followed.
On the one hand, the development in the field of medical science could have benefitted the Maliki schools with its emphasis on the hide that, from the moment it emerges, a fetus is already entitled to a soul. As mentioned earlier on, the main problem with this line of thinking during the Middle Ages was the practical impossibility of proving the existence of a fetus during the first trimester (Eich, 2009). With the development of modern screening methods, it became possible to prove the existence of a fetus beyond a reasonable doubt even during the first 40 days (Eich, 2009). Based on that, one could assume that the Maliki schools would have a good foundation in the achievements of modern science.
However, there is an even better case for following the Hanafi school, as it had more scientific evidence in its favor. It was already noted that this school of thought posits that a human fetus receives its soul at some point around the 120th day of pregnancy. As of today, neonatology has demonstrated that, around 120 days after inception, the brain of the unborn infant “undergoes a decisive developmental step” (Eich, 2009, p. 336). Insofar as the Islamic debate about human development is concerned, it is nothing less than a proper scientific argument in favor of the Hanafi position. Based on that, one may safely conclude that the Hanafi school’s position regarding abortion has a better foundation in current medical knowledge and, as such, makes the most sense to follow in contemporary society.
Conclusion
As one can see, the Hanafi and Maliki schools f though differ in their approach to abortion, but the former’s position is best for contemporary society. Each school bases its assumptions regarding abortion on the Quran’s prohibitions of murder and infanticide, as well as hadiths, but arrives at different conclusions. The Maliki school holds that abortion is impermissible regardless of the stage of pregnancy. In contrast, the Hanafi school, which historically tended to view the fetus as an entity separate from the mother more than the Maliki school, presumes that abortion is permissible during the first 120 days. The rationale behind this approach is that the fetus is supposedly endowed with a human soul at that point. Considering that neonatology confirms decisive developments in the structure of the fetus’ brain around the 120th day, the Hanafi position has the best foundation in the current medical knowledge.
References
Ali, A. H. (2019). A word on Muslim attitudes toward abortion. Muslim Matters. Web.
Eich, T. (2009). Induced miscarriage in early Mālikī and Ḥanafī fiqh. Islamic Law and Society, 16(3-4),302-336. Web.
Martin, Richard C. (2004). Encyclopedia of Islam and the Muslim world. Macmillan.
McAuliffe, J, D. (Ed.) (2001). Encyclopedia of the Quran. Brill.