Aslam

Praise be to Allah.The efforts and ijtihaad of

the fuqaha’ have focused on abortion in general terms, and the rulings

on that and the consequences that may follow. They have not gone into

details concerning cases where the pregnancy results from immorality.

This may be because they consider that to come under the same ruling

as abortion of a pregnancy resulting from a proper marriage. If abortion

of a pregnancy resulting from a proper marriage is haraam under normal

circumstances, then it is even more so in cases where the pregnancy

results from immorality, because permitting abortion of pregnancy which

results from immorality would encourage evil actions and the spread

of immorality. One of the basic principles of Islam is that it forbids

immorality and all the ways that lead to it, e.g., it forbids tabarruj

(wanton display of one’s charms) and free mixing (of men and women).

In addition, an innocent foetus

which has committed no sin should not be sacrificed because of a sin

committed by someone else. Allaah says (interpretation of the meaning):

“No one laden with burdens

can bear another’s burden”

[al-Israa’ 17:15]

It is known that the Messenger

of Allaah

(peace and blessings of Allaah be upon him) sent the Ghaamidi woman

who was pregnant as a result of zinaa away until she gave birth, then

after the birth he sent her away until she had breastfed the child and

weaned him. She came back with the child who had a piece of bread. The

Prophet

(peace and blessings of Allaah be upon him) gave the child to one of

the Muslims, then he gave orders that she should be placed in a hole

up to her chest, and commanded the people to stone her. Imaam al-Nawawi

said concerning this hadeeth: “A pregnant woman should not be stoned

until she gives birth, whether her pregnancy is the result of zina or

otherwise. This is agreed upon, lest her foetus be killed. The same

applies if her hadd punishment is flogging; a pregnant woman should

not be flogged, according to consensus, until she has given birth.”

(Saheeh Muslim bi Sharh al-Nawawi, 11/202)

This incident shows us the

extent to which Islam is concerned with the foetus, even if it is the

result of zina: the Prophet

(peace and blessings of Allaah be upon him) delayed the carrying out

of the hadd punishment on the mother in order to save the life

of the foetus.

Can it be imagined that the

Lawgiver would permit killing the foetuses by abortion in order to fulfil

the wishes of those who follow their whims and desires?

Furthermore, those who say

that abortion is permitted within the first forty days of a legitimate

pregnancy based their ijtihaad on a concession, like not fasting in

Ramadaan for those who have valid excuses, or shortening the four-rak’ah

prayers whilst travelling, but it is stated in sharee’ah that concessions

cannot be connected to sins.

Imaam al-Quraafi said: “With

regard to sins, they cannot be taken as reasons for concessions. Hence

one who is travelling for the purpose of sin cannot shorten his prayers

or break his fast, because the reason for doing these is travelling,

but in this case the reason for travelling is to commit sin, so the

concession does not apply, because granting a concession on the basis

of sin will encourage people to sin further.” (al-Furooq, 2/33)

Similarly, the basic principles

of Islamic sharee’ah do not give the same concessions to a woman who

is pregnant as a result of zinaa as are given to a woman who is pregnant

as a result of proper marriage, lest that help her in her sin, and it

does not make it easy for her to get rid of the results of her evil

actions.

In addition, the foetus in the case of

zinaa has no guardian, because according to sharee’ah the title of father

can only be given to the one who has a child from a woman in a proper

marriage. This is part of the meaning of the hadeeth: “The child goes

to the owner of the bed and the adulterer gets nothing but the stones

(despair, i.e. to be stoned to death).” (Narrated by al-Bukhaari and

Muslim). The guardian of the foetus in such cases is the sultan or ruler

– the one who is in charge of the Muslims’ affairs – for he is the guardian

of those who have no guardian. The way in which the ruler disposes of

people’s affairs is based on the interests of the people, and there

is no interest to be served in destroying the soul of the foetus in

order to preserve the mother’s interests, because that would involve

encouraging her and others to persist in this evil action.