Islamic Classes‎ > ‎2010 Winter‎ > ‎

Contemporary Fiqh Issues Winter 2010

Contemporary Fiqh Issues I: Birth Control, Abortion, Organ Transplants / Winter 2010
Sheikh Jamaal Zarabozo

Related Readings (not “required” or “recommended” but interesting!)
  • Islamic Perception of Contraception and Abortion – Muhammad al-Jibaly
  • Abortion, Birth Control & Surrogate Parenting: An Islamic Perspective – Abul Fadl Mohsin Ebrahim
  • Organ Transplantation, Euthanasia, Cloning and Animal Experimentation: An Islamic View – Abul Fadl Mohsin Ebrahim

Basic Outline of the class
Topic 1: Birth Control
Topic 2: Abortion
Topic 3: Organ Transplants

Notes 2010-01-13

The guidance of Allah swt is meant for all of humanity until the day of judgement. When new issues come up, there must be guidance from Allah swt, what are the shareeah rulings.

Our purpose is to worship Allah swt. This ibadah comprises every aspect of our lives. And do not follow the footsteps of shaitan. We have to try to submit to Allah swt. 

There are major life issues that people face, the choices they are facing are major. A muslim has to act  upon with the guidance of Allah swt.

Case of badly deformed fetus, you can complete the term of pregnancy and who knows what kind of quality of life that child might face, or you can abort and it is taking the life of the fetus.

Relative is on life support system or in a vegetative state. Taking them off of the life support system or keeping them in a vegetative state.

Relative needing a kidney to survive. From shareeah point of view is it permissible to donate organs.

When these issues become relevant, then what are you going to do? These situations occur during emergencies and you do not have the time to research them..

People have come to the sheikh 10 years after they had taken a major action and were not sure whether what they did is correct.

In financial issues, some people get their provisions from transactions, business, investments and in reality they do not know if what they are doing is halaal.

The ulemas of the past did not see these issues. This is fard kifayah on the entire ummah to study these issues and find out what is the guidance from Allah swt. If we do not fulfill this fard, then it is a sin upon the entire ummah.

Because a lot of the technology advances come from the west, many times the people of the west that study the ethics of the technology, such as bio-medical ethics. They teach basic principles in these courses, four basic bio-medical ethics are taught throughout the world. These principles are not derived in the Islamic framework, so they do not or may not adhere to Islamic principles.

First basic principle is autonomy. The individual has the right to decide what he can do or cannot do. In general, everything is upto the patient to decide. A corollary of this principle, is that laws should not impede the principle of autonomy. 

A very popular slogan is "It's my body, keep your laws away from my body". In Islam, our body is created by Allah swt, it is given by Allah swt, but it belongs to Allah swt, and we cannot do anything that violates the shareeah of Allah swt.

Lack of qualified scholars. Unfortunately people who study deen are those who could not gain admission into engg or medical schools. Parents are concerned about wordly benefits, and do not encourage their children to study deen. Maybe the next generation would take the initiative on their own to study the deen.

Safe sex and safe abortion were almost passed as human rights. If these laws were passed, then a lot of pressure would have been put on Muslim nations. But these laws were not passed.

A lot of the feminist demands are valid demands because women are mistreated in Muslim countries. Many young muslims who are studying here, who are influenced by liberal, human rights, feminists opinions. We leave the door open for them to influence the youth. There are double standards in Muslim families, sons are allowed to do whatever they want to do either halaal or haraam, but a girl is forbidden, if she does haraam then it is considered to bring shame. This idea of honor is not based on shareeah. It should be just as shameful if the son is doing these acts. This puts doubt in the mind of girls and they are then influenced by other opinions.

Gender idiology or gender perspective as defined by the human rights: All the differences between men and women are not based on biology but is simply based on culture, and all of these should be removed if we want gender equality.
Feminists: Not just equality between genders, but women should not have to bear children. 
Some feminists say that women should not have a choice of staying at home and raising children. Because if that choice exists, then too many women will make that choice.

Birth control and abortion have many ramifications.
They want Islam and muslims to change. They are targeting the institution of the family. If we do not know the guidance of Allah swt, then it is easy for us to be fooled by them.

If you were to ask many muslims, 40 years ago, whether birth control is halaal or haraam? What about today?

Is there any evidence, that husband and wife should have children?
Some one came to the prophet and asked him if he could marry a woman, the prophet advised him to marry a woman who is loving and  child bearing and to have children, so that he could pray and bless his offspring
Hadeeth ....  part of the goals of marriage is procreation.

Quran Baqarah verse 187
After speaking about permissibility of having relationships with wives during the nights of Ramadan, ....
أُحِلَّ لَكُمْ لَيْلَةَ الصِّيَامِ الرَّفَثُ إِلَىٰ نِسَائِكُمْ ۚ هُنَّ لِبَاسٌ لَّكُمْ وَأَنتُمْ لِبَاسٌ لَّهُنَّ ۗ عَلِمَ اللَّهُ أَنَّكُمْ كُنتُمْ تَخْتَانُونَ أَنفُسَكُمْ فَتَابَ عَلَيْكُمْ وَعَفَا عَنكُمْ ۖ فَالْآنَ بَاشِرُوهُنَّ وَابْتَغُوا مَا كَتَبَ اللَّهُ لَكُمْ ۚ وَكُلُوا وَاشْرَبُوا حَتَّىٰ يَتَبَيَّنَ لَكُمُ الْخَيْطُ الْأَبْيَضُ مِنَ الْخَيْطِ الْأَسْوَدِ مِنَ الْفَجْرِ ۖ ثُمَّ أَتِمُّوا الصِّيَامَ إِلَى اللَّيْلِ ۚ وَلَا تُبَاشِرُوهُنَّ وَأَنتُمْ عَاكِفُونَ فِي الْمَسَاجِدِ ۗ تِلْكَ حُدُودُ اللَّهِ فَلَا تَقْرَبُوهَا ۗ كَذَٰلِكَ يُبَيِّنُ اللَّهُ آيَاتِهِ لِلنَّاسِ لَعَلَّهُمْ يَتَّقُونَ
Muhsin Khan: It is made lawful for you to have sexual relations with your wives on the night of As-Saum (the fasts). They are Libas [i.e. body cover, or screen, or Sakan, (i.e. you enjoy the pleasure of living with her - as in Verse 7:189) Tafsir At-Tabari], for you and you are the same for them. Allah knows that you used to deceive yourselves, so He turned to you (accepted your repentance) and forgave you. So now have sexual relations with them and seek that which Allah has ordained for you (offspring), and eat and drink until the white thread (light) of dawn appears to you distinct from the black thread (darkness of night), then complete your Saum (fast) till the nightfall. And do not have sexual relations with them (your wives) while you are in I'tikaf (i.e. confining oneself in a mosque for prayers and invocations leaving the worldly activities) in the mosques. These are the limits (set) by Allah, so approach them not. Thus does Allah make clear His Ayat (proofs, evidences, lessons, signs, revelations, verses, laws, legal and illegal things, Allah's set limits, orders, etc.) to mankind that they may become Al-Muttaqun (the pious - see V.2:2).

Are children considered a niamah or gift. Surat An-Nahl verse 72
وَاللَّهُ جَعَلَ لَكُم مِّنْ أَنفُسِكُمْ أَزْوَاجًا وَجَعَلَ لَكُم مِّنْ أَزْوَاجِكُم بَنِينَ وَحَفَدَةً وَرَزَقَكُم مِّنَ الطَّيِّبَاتِ ۚ أَفَبِالْبَاطِلِ يُؤْمِنُونَ وَبِنِعْمَتِ اللَّهِ هُمْ يَكْفُرُونَ
Muhsin Khan: And Allah has made for you wives of your own kind, and has made for you, from your wives, sons and grandsons, and has bestowed on you good provision. Do they then believe in false deities and deny the Favour of Allah (by not worshipping Allah Alone).

Every bounty is a fitnah. So that is not an evidence that we should not have children

An-Nasl is family, establishing the family, the continuance of the family. An-Nasl is protected by the Shareeah.

Part of the goal of marriage in shareeah is to establish a family and to have children.

So now if somebody says birth control is allowed, then the burden of proof is on them to show why it is allowed.

There are many different types of birth control. Morning after pill v/s abstinence. What they do is very different?

If you say in general having children is one of the goals, then does it mean you are allowed to have as many children as you want?

2010-01-20 Class Notes

Goals of shareeah are based on induction, what is shareeah trying to establish or protect?
An-Nasl - establish, protection and continuance of the family

Prophet told Jabr ...when you are travelling and when you arrive late, do not go and surprise your wife, let her take care of her hygenic needs, inform her of your arrival, when you go to her, go with al-kais (action that would lead to pregnancy)

Quran: Do not kill your children out of fear of poverty
Is this a relevant verse to emphasize that procreation is supported by the above verse? This verse is quoted by some who want to advocate procreation. It is not relevant to the issue. 

Issue:
Wife of graduate student: She is taking oral birth controls on temporary basis, they plan to have children, but now since her husband is a graduate student and would like to delay having children

Fatwa issued by scholar: It is permissible to use any kind of birth control as long as it does not have any permanent side affects

Comments:
"Using any kind of birth control" - do all forms of birth control meet the shareeah guidelines.

Another fatwa from permanent committee for fatwa
Birth control is not allowed in any case. However if there is some necessity, some harm to the wife, or they want to delay pregnancy for some concern, then there is no harm in delayed getting pregnant.

Comments:
This fatwa goes to another extreme and states that birth control is not allowed in any case. Contrast it to the first fatwa which says any kind of birth control is permissible.

We do have evidence for some kind of birth control practiced during the lifetime of the prophet.
 

The table shows different kinds of birth control during the various stages of procreation. After the union of sperm and egg, the birth control is only applicable to the woman.

Any birth control technique that is permanent is haraam: Hysterectomy and Castration
What about vasectomy? It is reversible. Not only is it reversible, they are working on techniques to make it easy to reverse.Vasectomy is only 99% effective, if the procedure is not done properly
Tying tubes or tubal ligation, is it permanent? It is possible to get pregnant and lead to ectopic pregnancy. Tubes can be untied but could lead to difficult pregnancies.

What is the basis for stating that permanent birth control is haraam? 
It is not a consensus, but a majority of the scholars agree.
There are exceptions, where if a woman were to get pregnant, it would be harmful, it is a case of necessity to remove the uterus.
Why is there a prohibition to castration?
Hadith related to castration: Ibn Masud asked whether they could castrate themselves when they were in battle and they wanted to restrict their desires, and the prophet prohibited them.
Hadith: Another sahaba asked permission to remain celibate. Prophet refused his request.
Could you say that these hadith are evidence that permanet form of birth control are haraam? 

Monasticism is not a form of worship of Allah swt.

Wisdom behind castration is that it goes against what creator has ordained for us, it would go against the purpose for which Allah swt created us. 
It will keep us from having children
It also leads to some harm, it destroys manliness, it also has other effects on the man. It is a change in the creation of Allah swt. 

Drinking intoxicates so any other intoxicant is prohibited.

So here we have a principle of illa. Illa is not specifically mentioned in the text and the illa is based on ijtihaad.

Mohamed Madkur said that he did not find any evidence that there is any direct evidence to prohibit permanent means of birth control are haraam.

Is marriage fard ain? No
Is marriage mustahab? Yes. Then if somebody does not marry then is he doing haraam by not marrying, and assuming that he is not having illegal sexual intercourse? No.  It is maqroo. Then if he gets married and then he uses permanent birth control, is he committing haraam?
 
 So if we accept that the permanent form of birth control is haraam, what about temporary uses of birth control.
 
 Temporary usage of birth control
Hadith established one practice that existed during the time of the prophet. 
Al Azal or Coitus Interruptus: Sexual act is interrupted before it is discharged. It is least effective forms of birth control due to obvious reasons.

Original forms of condoms were animal intestines.
Abstinence goes against the goals of enjoyment between husband and wife.

Can we say condoms and spermicide are analogous of Al Azal? Yes
Is Al Azal mubaha, makrooh, haraam? What category does it fall in? 

There are some hadith that showed the permissibility of Al Auzal.
Sahaba (Jaabir) said that they were practing Al Auzal during the time of the revelation. He implies that there were no ayat revealed that prohbited this act.

A man came to the prophet and said that the slave girl serves his family and he does not want her to get pregnant. Prophet told him to practice Al Azal but whatever Allah wills will occur.

Jabar says that the news that they practiced Al Azal reached the prophet and he did not prohibit it.

2010-01-27 Class Notes

Evidence: Looks like the whole class is in agreement is Al Azl is permissible. There is a narration from Jaabir. Based on this evidence the class feels it is mubaha.

Sheikh is now discussing another hadith from Abu Saeed Al Khudri recorded by Ahmad and Tirmidhi. Jews is used to say that Azl is minor infanticide. The prophet said, the jews have lied, if Allah swt wills for something to be created, then nothing can stop it from happening. This is sahih hadith. recorded by Ahmad & Tirmidhi. Albaani says it is sahih.

So the prophet said that Azl is not the same as infanticide. Female infanticide was a practice during Jahilya.

Evidence: Another hadith from Abu Saeed Al Khudri recorded by Bukhari and Muslim. News reached that some were practicing Azl with female slaves after the battle of Badr. The prophet said, there is no harm if you practice Al Azl but whatever Allah has decreed will occur.

Ibn Hazm in his "Muhalla" says: Jaabir ibn Abdillah, ibn Abbas, ibn Masud, Saad ibn Abi Waqqas and other sahaba said that Al Azl is permissible.

Another opinion of a number of sahaba that Azl is haraam. ibn Hazm, Abdullah bin Hasham, and one more sahaba are of the opinion that it is haraam. ibn Hazan was very sharp with his tongue. 

Evidence: Abu Umama, Umar (beat his son, when he heard he did that), Ali and others found this act disliked and considered it haraam.

Strongest evidence for their opinion is the following hadith from Sahih Muslim
Evidence: Ukasha's sister Judaamah bint Wahb said: The prophet said, I consider prohibiting al ghila (intercourse with breast feeding woman). Then he was asked about Azl, and he said that Azl is kind of hidden or obscured infanticide (al waat al khufi).

Some outright reject this hadith because it contradicts the hadith of Abu Saeed Al Khudri.

Principle: How can we reconcile the two reports before trying to detemine if one report abrogates the other.

Jews were saying that Azl is akin to killing a child, since you are preventing a child from being born. This the prophet denied by saying that if Allah swt decreed a child to be born then it will be born.

In the other hadith, prophet said that Azl is an obscurred infanticide. 

Shirk al asghar versus shirk al khufi. The sheikh gave an example of praying to please others and not to please Allah swt. But I did not really get the point completely. The act of beautifying one's prayer falls under Shirk al khafi and though the act is considered shirk, the sinner has not become a kafir.

Evidence: Hadith of Abu Saeed al Khudri recorded by Bukhari and Muslim
After the battle of Badr, some of them did not want to have children, so they performed Azl with the slave girls. The prophet said that you should not do that. 

The sahaba understood that this act was disliked by the prophet.

It is exactly the same hadith used by both groups. In this hadith, the prophet used double negation and hence it was used by both groups as evidence.

Somebody who is really good in balagha and find out which evidence or assumptions are correct and come to a conclusion about the hadith.

If you cannot show which evidence is stronger, ie you cannot break the tie, what should you do?
 
Azl is mubaha evidence
a. Jaabir (The prophet remained quite when informed of Azl)
b. Abu Saeed Al Khudri  (Jews compared it to infanticide and the prophet said it is not)
c. Abu Saeed Al Khudri recorded by Bukhari and Muslim  (Azl after battle of Badr)
d. Opinion of some of the sahaba

Azl is disliked evidence
a. Judaamah bin Wahab (Azl is al waat al khufi - obscured infanticide)
b. Abu Saeed Al Khudri recorded by Bukhari and Muslim (Azl after battle of Badr)
c. Opinion of some of the sahaba

Then you remove the evidence from both opinions. However the sheikh says from his readings. Then how do we reconcile Judaamah's hadith. 

Principle: Things were permissible first and then they were prohibited. So the hadith that prohbits an act abrogates the permissiblity of the act.

So hadith that Azl is disliked abrogates that Azl is permissible.

Logical conclusions cannot be used for abrogation. There has to be evidence.

Another opinion: Azl is permissible but only with the consent of free wife. 

Evidence: Reported by Umar ibn Khattab that prophet disliked Azl except with the wife with her permission.This hadith is weak and is not accepted by any scholar. recorded in ibn Majah.

If prophet was silent about something that he has declared disliked, that is makroo'. 

When would the prophet do something of that nature, that is remain silent if a report of an act which he considered to be makroo' was brought to his attention? He would remain silent, if he had previously mentioned that the act was makroo' and somebody repeated the act, he kept silent. If the act was haraam he would not remain silent either.

Is there any evidence in the hadith of Abu Saeed that Azl is permissible.

Abu Saeed Al Khudri recorded by Ahmad and Tirmidhi. Jews is used to say that Azl is minor infanticide. The prophet said, the jews have lied, if Allah swt wills for something to be created, then nothing can stop it from happening. 

There is nothing in the hadith that it is permissible.

Then the sheikh cancelled out the evidence (b) from mubaha column. So the only evidence remaining is that of Jaabir where the prophet remained silent about an act. In the disliked column, he voiced his opinion that he strongly disliked the act.

Sheikh does not force any conclusion.  However the most important part of the lecture was how to approach conflicting evidence. Don't jump to conclusions quickly. Do not jump to abrogation immediately. Find out what the hadith actually states. Cancel out opinions on the two opinions. Analyze the remaining evidence.

This lecture was amazing. The sheikh presented evidence gradually and then showed us our errors in jumping to conclusions. And showing us why the prophet would remain silent about an act that was makroo'.  I agree with your comment that this was an amazing lecture.

Views of the different madhaab about Al Azl
Hanafi: Azl is mubaha, some difference of opinion whether wife's consent is needed. Earliest opinion was that wife's permission is needed. Later opinion was that wife's permission can be bypassed if you are living under difficult conditions such as corruption. Ibn Nujaim (1562 C.E) said that it is allowed with wife's permission. Wife can use any means to block the uterus. 

Shafai: Liberally allowed even without the wife's consent. However it is makroo tanzihi without wife's consent. It is a wife's right to intercouse but not to the complete conclusion.

Maliki: cannot without the wife's consent. 
Qurtubi was quoted but I did not capture it.
Next time: Is it the husband's right or wife's right to have children.

2010-02-03 Class Notes

Qurtubi says there is no harm for the woman to take the semen out as long it is not in the uterus

If the wife consents to Al Azl then it is okay for her to ask for a compensation.

In the Hanbali madhab, al Azl is mubaha with wife's permission

In each one of this madhab there are many opinions. It is centuries of effort and some opinions are passed on. Some scholars have studied the issue in details, it is good practice to turn to these scholars. Muhakakoon scholars are those who study one aspect in detail.

Makroo tanzeehe - disliked act which is closer to being permissible than it being forbidden
Makroo tahreem is a disliked act which is closer to being forbidden

Imam Nawawee (Shafiee fiqh) Al Azl is makroo in any case irrespective of wife's permissions. He said the way to combine these hadith, that this act is disliked

Hanbali scholar (Al-Jawzi), it is permissible with slightly disliked

Al-Albani considered it makroo, it could become haraam if the intention behind it is to act like kufr, to not have children for the fear of poverty.

Review the four madhab, they also say it is mubaha. But in reality if you look into details, the scholars who are muhakakoon they say it is makroo.

How is Al Azl is related to forms of birth control practiced today?


What is analogous to Al Azl?
In old times women would insert something to block the semen or use spermicide to not allow the sperm to reach the ovary.
Use of condom is most analogous to Al Azl. Coitus interruptus is Al Azl

What about birth control pills?
It is most commonly used by Muslim women, it is also used by them to block periods during Ramadhan and Hajj. However birth pills have side affects. 

Can you go from Azl to birth control pills using logic or using fiqh?
Illa or premise is to temporarily block impregnation, hence they say it is analogous to Azl.

What about diaphragm or cervical cap?
It needs to be professionally installed, it is effective for 1-2 years. You now have to uncover the awra which most scholars consider it to be haraam.

The fatwa that allows any means of birth control that is temporary, is too extreme, since professionally installing diaphragm could lead to a haraam act of uncovering the awra.

Uncovering awra is okay in the case of necessity such as birth or life threatening issues then it is not haraam. In these cases, awra should be uncovered for the bare minimum and we cannot say since the awra is exposed, and we can utilize it as an excuse for the diaphragm installation.

Morning after pill, IUD
They take effect after the union of the sperm and egg. These are now no longer analogous to Azl. So these things need a new ruling.

Are morning after pills and IUD the same as abortion? Are all abortions haraam? A new word ensoulment, when the soul is breathed into the feutus.

Is having children the right of husband or wife?
If it is the right of husband, then he gets to decide and if the wife uses pills without permission, then she is denying the rights of the husband. Vice versa for the rights of wife.

Hadith record by Ibn Majah also recorded as statement of ibn Abbas and also of Umar: It says Al Azl cannot be made without the permission of the wife. So it  needs permission of the wife or both since the husband already has determined to practice Azl.

Al Ghazali says the right to have children is of the husband. His reasoning is that the male already has the right not to get married. (This explanation is bizarre)

Common view among hanafi is the shared right of the husband and wife. So it has to be a joint decision and a wife cannot decide on her own to take birth control pills. Later scholars say, if you are living in dire circumstances then husband can make decision without wife's permission.

Another opinion, having children are shared rights of husband and wife.

ibn Hazn and others say right of the Ummah or nation takes precedence and we cannot practice Azl.

Sometimes you find hadith in books of Fiqh (old and contemporary) that cannot be found anywhere. The hadith are baseless or rejected hadith in some of the fiqh books.

For example: Al Ghazali quotes this hadith: Whoever leaves marraige out of fear of having children is not from among us.

Another narration of the hadith is Whoever has ability to get married but does not get married is not from among us. Even this hadith is not authentic.

By changing the wording of the hadith, the illa of the second hadith implies that person who has means to get married but does not marry will now be a victim of sexual desires, etc.

Hadith from Umar ibn Khattab: You should increase the number of children because you don't know from where you will get your sustenance. This is also weak
 
 Another hadith which describes a very hard trial is having little wealth and lots of children. Also weak hadith.
 
 So the above examples are used by fuqaha when they are discussing the issue of birth control. 

Next week: Quality versus quantity of children

2010-02-10 Class Notes

If a scholar concludes something is mubaha, do you need any reason or condition or justification for performing that action? No. It is a contradiction. If we have contradiction between our principles, we have to retrace our steps, and figure out something is wrong. Shareeah will not have anything that is contradictory. Try to discover what must be the source of our mistake.

It is strange that some scholars conclude that an action is mubaha and then they continue further to discuss that the act can be practiced under the following conditions. 

Howver if an act is makroo' or haraam then you have to justify when the act is permissible. So it is moot to discuss it when an act is mubaha.

Can Al Azl become mustahab or wajib?

In Fiqh you have basic ruling, that is the default case. Under different circumstances it has different ruling.

Marriage is mustahab. Hanafi and Malikis discuss that marriage is sometimes waajib, mustahab, makroo' and even haram. 

When can marriage be haraam? When the person getting married knows that he will commit dhulm to his wife. If somebody knows that a person will commit dhulm then it is haraam for him to get married.

Marriage can become obligatory if someone fears that they will commit zina.

What happens when a person fears that he might commit zina if he gets married and also fears that he might commit dhulm if he gets married, what should he do? This person is not allowed to commit zina or commit dhulm. So he has to work on changing his behavior.

Under different circumstances Al Azl could be wajib, mustahab or haraam.
Haraam: Fear of having female child you resort to birth control. What if you live in China?

Al Ghazali starts with the premise that Al Azl is mubaha. Then he goes ahead and gives reason why Al Azl may be acceptable. It does not make sense since he already said it is mubaha.

Five reasons given by Al Ghazali why somebody would practice Al Azl
1. Out of fear that your child might become slave
2. In order for the woman to preserve her beauty and her figure - In today's culture it is done for vanity, but Ghazali was speaking in terms of remaining attractive to her husband, or that she fears divorce
3. Out of fear of hardship from having too many children and being exhausted from earning to support the children, or fear of commiting haraam to support the children. This point has also been reiterated by many scholars
4. Fear of having female child which Ghazali does not think permissible
5. Some women feared hygiene issues - post partum bleeding - which Ghazali does not think is permissible

ibn Hajjar gave the following reasons why Al Azl might be practiced
1. Out of fear that child might become slave
2. Large number of dependents
3. Avoiding risks to a nursing child from a new pregnancy

Hadith recorded by Abu Dawood.  Do not kill your children secretly....
Shuaib Al Arnaut said this hadith is weak and then he says that this hadith contradicts hadith form Sahih Muslim. ....
Act of breast feeding greatly reduces the probability of pregnancy. As a sign, shareeah indirectly points to spacing between pregnancies.

Al Azl is mubaha or mandoob (recommended) under the following conditions according to ....Sayid Sabiq in Fiqh-us-Sunnah (the untranslated part)
1. Tending to the children properly
2. Woman is weak
3. Woman has had successive pregnancies
4. Man is poor

Children have rights in Shareeah. Specially a very young child has many rights, it needs a lot more attention. This could be a reason why Al Azl could be recommended.

You need to have means to fulfill your responsibilities. You cannot get married, if you feel that you could not fulfill the responsibilities. 

If you have many children and you do not have time to look after them or raise them to be good muslims, you are responsible for your actions. Given our circumstances, this becomes mustahab, temporarily. Waajib might be a stretch.

Any kind of health risks or genetic risks. Physical and emotional affects of having too many children - speech impediments.

If you have many children inspite of you taking all precautions then it is a different matter. Decree of Allah swt.

How much is too many children? It is relative. It should only be done if the conditions are right. 

Hadith: Muslims will be weak. And they will be like the froth of an ocean wave. Large quantity but very weak
Quantity by itself is not what the Shareeah wants. Quality and capability is important.

2010-02-17 Class Notes

Timeline of birth of a human being 
t[Azl]  Preventing the sperm and ovum from uniting
         - one of the methods is Azl 
         - all the things that are comperable to Azl 
  
t[conception]  Union of sperm and ovum - formation of the zygote
        - Morning after pill is now post union of sperm and ovum

t[Nutfah] t[Mudgah] and other stages of the development of the feutus are between t[conception] and t[ruh]

t[ruh]  Soul is breathed into the feutus
     
t[full]  Full term pregnancy is 40 weeks
  

Is abortion haraam? Is there any text or ruling in the Quran about abortion? There are texts about somebody causing injury to a woman and causes death of a feutus, there are rulings about it. (Injury resulting in abortion) But there is no ruling about induced abortion

A janazah prayer is made if the baby makes a sound after child birth and then dies. This was in response to the question about miscarriage or abortion.

What is the ruling before time t[ruh] for controlling child birth? We know the ruling at rulings before conception.

Legality of abortion as a whole? Another important question is when does life begin? Is abortion completely forbidden or completely permissible or are there any conditions when it is forbidden or permissible? Is there such a thing as a right not to be born?

Western Ethics: Quote from the book Persons, Animals and Fetuses - Right not to be born if the person will not have a happy life or if the person will be a burden on caretakers.

Is it possible to abort damaged feutus? We can now determine the genetic defects of the feutus. Does shariah allow us to act upon such information? So the question of when the ruh is blown into the feutus is very important.

Roman Catholic Church believes the ensoulment takes place at the time of conception.

Estrogen pills such as RU486 or others go and destroy the zygote. And it progresses to sucking out the feutus as it progresses.

We have text about Azl and infanticide but in between we don't have any text. But we have indications from the shareaah to guide us.

Fetus is deserving of respect
There is a hadith in which one woman struck another woman and caused an abortion, there was a financial penalty for causing the death of the feutus. Shareah has some value which needs to be reimbursed. Hud punishment is delayed until the adulterous woman gives birth and breast feeds the child. Similarly, pregnant woman is allowed to break the fast if she feels the fast will cause harm to the feutus. ibn Hazm declares that if a pregnant woman dies, then it is obligatory to cut her open and take the baby out.

Majority of the scholars say there is difference between whent ruh is breathe into the fetus and after it. There is life before the ruh is breathed into the feutus. That life is vegatitive state, it does not have free will. Free will comes into existence after the ruh is breathe into the feutus.

When is ruh breathe into the feutus?
We cannot observe when the feutus is breathe into the feutus, such as by looking at the stages. So we need to have some text to determine when this occurs.

The idea of 120 days comes from the hadith. The hadith is misquoted in the 40 hadith of Nawawi. A word has been inserted into the text of hadith either by mistake or purpose, this is called Idraaj.

In this narration as quoted by Imam Nawawi recorded by Bukhari and Muslim: 40 days in the form of nutfah, then it is alaqa for a similar period and there after mudgah for similar period and then the angel is sent to breathe the ruh into him and then it is determined his life span, his rizk etc.

The word that is added is nutfah and if you take that word out then it changes the meaning. One of the meanings is surely each one of you is brought together in your mothers abdomen in 40 days, then it is alaqa during the same period and then it is mudgaah in the same period and then the angel is sent ... 

Once you take out the word nutfah then it implies that ruh is breathe after 40 days.

Surah Hajj verse 5
يَا أَيُّهَا النَّاسُ إِن كُنتُمْ فِي رَيْبٍ مِّنَ الْبَعْثِ فَإِنَّا خَلَقْنَاكُم مِّن تُرَابٍ ثُمَّ مِن نُّطْفَةٍ ثُمَّ مِنْ عَلَقَةٍ ثُمَّ مِن مُّضْغَةٍ مُّخَلَّقَةٍ وَغَيْرِ مُخَلَّقَةٍ لِّنُبَيِّنَ لَكُمْ ۚ وَنُقِرُّ فِي الْأَرْحَامِ مَا نَشَاءُ إِلَىٰ أَجَلٍ مُّسَمًّى ثُمَّ نُخْرِجُكُمْ طِفْلًا ثُمَّ لِتَبْلُغُوا أَشُدَّكُمْ ۖ وَمِنكُم مَّن يُتَوَفَّىٰ وَمِنكُم مَّن يُرَدُّ إِلَىٰ أَرْذَلِ الْعُمُرِ لِكَيْلَا يَعْلَمَ مِن بَعْدِ عِلْمٍ شَيْئًا ۚ وَتَرَى الْأَرْضَ هَامِدَةً فَإِذَا أَنزَلْنَا عَلَيْهَا الْمَاءَ اهْتَزَّتْ وَرَبَتْ وَأَنبَتَتْ مِن كُلِّ زَوْجٍ بَهِيجٍ
Sahih International: O People, if you should be in doubt about the Resurrection, then [consider that] indeed, We created you from dust, then from a sperm-drop, then from a clinging clot, and then from a lump of flesh, formed and unformed - that We may show you. And We settle in the wombs whom We will for a specified term, then We bring you out as a child, and then [We develop you] that you may reach your [time of] maturity. And among you is he who is taken in [early] death, and among you is he who is returned to the most decrepit [old] age so that he knows, after [once having] knowledge, nothing. And you see the earth barren, but when We send down upon it rain, it quivers and swells and grows [something] of every beautiful kind.

Surah Muminun verse 12-15
وَلَقَدْ خَلَقْنَا الْإِنسَانَ مِن سُلَالَةٍ مِّن طِينٍ
Sahih International: And  certainly  did  We  create  man  from  an  extract  of  clay.
ثُمَّ جَعَلْنَاهُ نُطْفَةً فِي قَرَارٍ مَّكِينٍ
Sahih International: Then  We  placed  him  as  a  sperm-drop  in  a  firm  lodging.
ثُمَّ خَلَقْنَا النُّطْفَةَ عَلَقَةً فَخَلَقْنَا الْعَلَقَةَ مُضْغَةً فَخَلَقْنَا الْمُضْغَةَ عِظَامًا فَكَسَوْنَا الْعِظَامَ لَحْمًا ثُمَّ أَنشَأْنَاهُ خَلْقًا آخَرَ ۚ فَتَبَارَكَ اللَّهُ أَحْسَنُ الْخَالِقِينَ
Sahih International: Then We made the sperm-drop into a clinging clot, and We made the clot into a lump [of flesh], and We made [from] the lump, bones, and We covered the bones with flesh; then We developed him into another creation. So blessed is Allah , the best of creators.

 عَلَقَةً clinging clot
This word has many meanings but the meaning that is most commonly used is clinging. This was the principle that was discussed in the Principles of Tafseer class.

The verse in the Quran that describes seven stages takes place in 42 days. There are other hadith that emphasize that ruh is breathe after 40 days.

2010-03-03 Class Notes

Timeline of Human Birth
t[Azl]  Preventing the sperm and ovum from uniting
         - Conclusion was preveting birth using Azl was makruh or mubah
  
t[Conception]  Union of sperm and ovum - formation of the zygote
        - Morning after pill is now post union of sperm and ovum

t[Nutfah] Still in liquid form, it is independent of the womb. It can have specific meaning or general meaning.

t[Alaqah] It means something that clings - Clinging to the womb

t[Mudhghah] A piece of flesh that looks like it has been chewed on. Initial form of feutus starts to take place and the initial stages of the backbone

t[Bones-Flesh] The feutus now has bones and flesh 

t[Ruh] or t[Ensoulment] Soul is breathed into the feutus
   - Conclusion is that this occurs after 40 or 42 or 45 days
     
t[Full]  Full term pregnancy is 40 weeks
   - Killing after this stage is definitely haraam

Important Questions
1. In the above timeline when does preventing birth become haraam
2. After how many days is the soul breathe into the feutus

What is the default ruling on abortion? After we decide then we move into special cases such as zina, rape, potential harm to the mother, etc.

We have no clear text that prohibits abortion. We have a hadith where one woman caused a feutus of another woman to die, and the prophet ordered the woman who caused this incident to pay the ghurra.

Catholics believe that the human being is at t[Conception], we have a different ruling about it.

When does ensoulment take place?

Hadith of ibn Masud is the one that is basically used as evidence that breathing of the soul takes place after 120 days.

After it is mudhghah then the ruh is breathed into it by an angel. And the angel is ordered to record four things: sustenance, lifespan, deeds, fortunate (jannah) or misfortunate (hell).

Hadith from Sahih Muslim, narration from Hudhaifah ibn Usaid: ... An angel will record whether it will be miserable of fortunate, male or female, actions, life, sustenance and then the pages will be folded and nothing will added or removed. This hadith does not talk about ruh. According to this hadith, this happens after 40 or 45 day.

Another hadith: Angel forms it and forms it hearing, sight, skin, flesh, and bones. Then male or female and then the rest of the items as above and then it says ruh is breathe into it and it says this happens after 42 days. Sahih Bukhari.

Another narration recorded by Tabari, ibn Hajr says that its isnaad is sahih. Narration from ibn Masud, angel is sent after 40 days and ruh is breathe.

Narration from ibn Abbas - ruh after 4 months and 10 days. It is not an authentic narration.

Narration from ibn Masud - nutfah in the womb for 40 days without any changes and then alaqah. However this narration is not authentic.

If we weed out the unauthentic sources, the ruh is breathe after 40-45 days. 

Due to the ambiguity of hadith of nawawi, the conclusion among the scholars and also the other preponderance of evidence, the ruh is breathe after 40 or 42 or 45 days.

Another important question:

We agree that after birth we cannot decide that the baby looks weak and we can kill it. It is haraam. The question is after the ensoulment, is the feutus a human being? When does a feutus become a human? Is it after the birth? When does the right of human being bestowed upon the feutus?

Hadith about the refusal of shaitan to prostrate: Form of human being was there and ruh is breathe into it and all were asked to prostate. Based on this evidence, we can say that it is a human being.

Some scholars says as long as the feutus is nutfah it is mubah to perform abortion. 

Some books of fiqh about birth: It is important to note what they are describing and their reasoning is correct but their timeline is incorrect. The say nutfah is 40, alaqah is 40, mudhghah is 40, and then the soul is breathe in, however we know from the authentic hadith that the ruh is after 40 days.

Basic ruling is that abortion is haraam after ensoulment or ruh.

Different rulings of abortion
1. It is forbidden to abort the feutus in all of its stages from nutfah onwards.
2. It is makrooh to abort while it is nutfah and forbidden after that stage.
3. It is permissible to abort in all three stages: nutfah, alaqah, mudhghah
4. It is permissible to abort during nutfah and alaqah and forbidden during mudhghah
5. It is permissible to abort while it is nutfah and forbidden after that stage.

Since these decisions are not based on any hadith, they will be mostly rational proofs.

Abortion of nutfah and its various rulings.

Malikis, ibn Hazn, ibn Rajb, ibn Taymiyyah, some hanafi, shafiee, hanbali - it is haraam to abort the nutfah.
Their argument is that the process has already started. There is a kind of life, it might not be human yet, it is growing. Life of vegetation. 
ibn Rajb some fuqaha allowed woman to abort as long as ruh is not breathe in, and compared it to al azl. He said this is a weak argument. The process has already started.
Saraksi is hanafi scholar gives analogy between one who is making hajj, you are not allowed to take life, you cannot take the egg of an ostrich and destroy it, it is considered equivalent to hunting. He says the ostrich egg is equivalent to the nutfah.
Counter argument; Shareeah does not distinguish between various stages of the egg. Any ostrich egg is a violation.

You must not kill any soul that Allah swt has forbidden you to kill. 
Can you consider abortion to be equivalent to killing any soul?


Comments