http://www.religiousconsultation.org/family_planning_&_Islamic_jurisprudence_by_al_Hibri.htm
The
Religious Consultation on Population, Reproductive Health &
Ethics
Family
Planning and Islamic Jurisprudence
Azizah Y.
al-Hibri, J.D., Ph.D.
Copyright
1993, Azizah Y. al-Hibri
The following address was
delivered on May 19, 1993 as part of the Panel on Religious and
Ethical Perspectives on Population Issues convened by the NGO
Steering Committee at Prepcom II of the International Conference
on Population and Development at the United Nations.
Note on the Text:
In this speech,
the author provides a brief overview of Islamic jurisprudence on
the subject matter and does not recommend any particular
position with respect to the debate on family planning. The
author, however, wishes to emphasize to the reader the
importance of correctly analyzing arguments and factors involved
in the particular situation under consideration, in light of all
relevant communal as well as individual factors. The author also
wishes to emphasize the importance of formulating all such
analysis free from all forms of compulsion and coercion, whether
conscious or subconscious, individual or organized, including
that of targeted advertising campaigns. For, in the final
analysis, each Muslim is personally responsible to God for her
own choices.
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I am very pleased
to have the opportunity today to address you on issues of family
planning from an Islamic jurisprudential point of view.
To understand
this point of view, we need to understand the basic framework
for such jurisprudence. First and foremost, the basic text
providing guidance on all Islamic matters is the Qur'an,
the revealed word of God. No Muslim can adopt a point of view
contrary to that of the Qur'an.
But the
Qur'an, which provides a rich variety of specific rules and
general principles, does not explicitly address every possible
situation that may face a Muslim. For cases not explicitly
addressed therein, Muslims look to the example and sayings of
the Prophet Muhammad (his "Sunnah") as a secondary
source of guidance. Often, that, too, leaves open some questions
of interpretation or application. In such cases, Muslims rely on
ijtihad, which is the ability to analyze a Qur'anic
text or a problematic situation within the relevant cultural and
historical context and then devise an appropriate interpretation
or solution based on a thorough understanding of Qur'anic
principles and the Sunnah. This approach results in a
highly flexible jurisprudence and is rooted in the Qur'anic
verse which instructs Muslims who disagree on a matter to seek
its resolution by going back to the words of God and his
Prophet.1
The flexibility
of Islamic law is not accidental. It is an essential part of
Qur'anic philosophy, because Islam was revealed for all
people and for all times. Consequently, its jurisprudence must
be capable of responding to widely diverse needs and problems.
Furthermore, Islam was revealed gradually. This fact (as well as
certain verses in the Qur'an) illustrates the divine
recognition of the human difficulty in adjusting to sudden
change.2 Hence, flexibility and evolution are
inherent characteristics of the religion. It must be noted,
however, that this flexibility has its limitations. It does not
extend to the most fundamental tenets of Islam, such as the
belief in the unity of God.
Among the
fundamental principles of ijtihad are the following:
1. Laws change
with changes in time and place;
2. Choosing the
lesser of two harms; and
3. Preserving
public interest.3
In discussing
issues of family planning, it is important to keep all of these
principles and the basic legal framework in mind.
For example, when
a Muslim scholar reaches a conclusion about contraception or
abortion, it is important for that scholar and the Muslim
community he addresses to evaluate such conclusion in light of
their public interest. If the existence or well-being of the
community is being threatened for some reason, then the scholar
and each member of the community must consider that fact, which
is subsumed under Principle (3) above, in reaching their own
final conclusions. This is one reason why laws changes with the
change of time and place.
Family
Planning in the Islamic Tradition
Like the other
two Abrahamic religions, Islam values the family and encourages
procreation. Some Muslims have concluded from these facts that
Islam does not permit family planning. Two pieces of evidence
are often cited in support of this conclusion. First, that the
Qur'an prohibited Muslims from killing their children
for fear of want.4 Second, that the Prophet exhorted
Muslims to multiply.5 But this argument does not do
justice to the complexity of the Islamic position and the
totality of its teachings. Otherwise, it would be impossible to
explain the established fact that the Prophet knew that some of
his companions, including his cousin Ali, practices al-'azl
(coitus interruptus) and yet he did not prohibit the practice.6
To understand the
fullness of the Islamic position on family planning, we need to
look more carefully at the total picture. Its departure point,
of course, is to encourage the life principle. Hence, the
Prophet's exhortation to multiply and the Qur'anic
prohibition of infanticide, a wide-spread pre-Islamic practice
involving born children which was motivated mostly by economic
and gender considerations.
But such a basic
position does not necessitate the conclusion that contraception,
or even abortion, is prohibited. Indeed, historically, the
majority view among Muslim scholars on contraception has been
that it is permissible with the wife's consent, though perhaps
disliked in certain cases. The wife's consent is required
because Islam recognizes the wife's right to sexual enjoyment
and procreation.
A leading
proponent of this view is al-Ghazali (d. 1111), who bases his
conclusions on the well-established principle that what is not
prohibited by the Qur'anic text or an authenticated
Hadith (words of the Prophet), or by analogical reasoning
with respect to either or both, is permissible.7 As
to contraception, he notes, there are no such prohibitions. In
fact, the opposite is true. His analogical logic is startling in
its simplicity. In one part of his argument, he notes that,
despite the prophetic exhortation to multiply, it is
nevertheless permissible for a Muslim to remain single. The
effect of remaining single on multiplying, he reasoned, is no
different than the effect of practicing al-'azl. Since
the one is permitted, it follows that the other, without more,
is also permitted.8
Al-Ghazali
argues, further, that although contraception is permissible, it
is makruh (adjective meaning "disliked or disfavored")
if practiced to avoid, for example, female offspring. One major
justification for this conclusion is that preference for male
offspring is frowned upon in the Qur'an.9
Al-Ghazali, however, supports contraception for other reasons
such as protecting a woman from the dangers of childbirth,
avoiding poverty, and even preserving a woman's beauty.10
In the case of
family planning through contraception, the wish to avoid poverty
does not infringe on the right to life of a born human being. To
the contrary, its goal is to preserve a dignified quality of
life for those already born. On the other hand, using
contraception to avoid having more females reflects a world view
and a value system antithetical to that of the Qur'an.
It was thus makruh and discouraged by scholars like
al-Ghazali.11
Other jurists
agreed with al-Ghazali's basic position on contraception but
disagreed on what constitutes makruh behavior. Such
disagreement may very well have been founded in their disparate
historical and cultural experiences. In other words, these are
the kind of differences anticipated and tolerated by the first
principle, and perhaps the other principles of ijtihad
listed above.
Contraception
Semen in Islam
has no special value. Alone, it is not life and whether it ever
develops into life is a matter of divine omnipotence. The
Prophet himself said "not of all the semen a child is
formed...."12 He also told his companions that if God
wanted to create a human life, God would do so anyway, whether
they practiced al-'azl or not.13 A delicate
analogy used by al-Ghazali further illustrates the same point.
Al-Ghazali likens intercourse to a contract because it consists
of an offer and an acceptance. Thus, so long as the offer has
not been accepted, it may be withdrawn.14
Ibn Hazm, who
lived in Islamic Spain (d. 1063), represents a minority view on
contraception. He adopts an extremely restrictive position
arguing that it is a form of hidden infanticide and is thus
prohibited by the Qur'an. His argument is based on a
report by Judama, a woman who heard the Prophet refer to
al-'azl as hidden infanticide.15 Al-Ghazali and
many others treat the same report differently. Focusing on the
fact that a fetus does not become a living being until it
reaches a certain stage of development, al-Ghazali concludes
that the reported saying indicates karahiyah (noun
meaning "disfavor") and not prohibition. In doing so, he relied
in part on companion Ali's rejection of the description of
al-'azl as "minor infanticide."16
Among the five
major traditional Islamic schools of thought, the majority of
Hanafis, Malikis, Ja'faris (Imamis) and Hanbalis permitted the
practice of al-'azl, subject to the wife's consent.17
In fact, some Ja'fari and Maliki scholars gave the wife the
right to monetary compensation from her husband if he were to
engage in al-'azl without her permission.18
But, Ja'faris permitted al-'azl without the wife's
immediate consent, if she had already consented at the outset.19
Some Hanafis and Hanbalis, however, differed with the majority
view of their school as to the need for the wife's consent.20
Shafi'is permitted al-'azl even without such consent,
because in their view, the wife is entitled to intercourse but
not ejaculation.21
Recently, some
Muslim scholars have returned to Ibn Hazm's minority view. Part
of the reason may be rooted in their concern for the Muslim
Ummah (something akin to a people) whom they feel has
become the intended target of population control propaganda by
the West. In such a case, however, the proper analysis is not to
go back to the controversial arguments of Ibn Hazm. Rather,
Muslim scholars should make their position clear to other
Muslims by appealing to legitimate jurisprudential principles,
such as those listed earlier. this approach would allow them to
reach their desired conclusion, while at the same time utilizing
full disclosure with other Muslims. It would also preserve the
integrity of scholarly religious analysis, relate tot he
community on a mature and principles basis, and raise the
community's consciousness while leaving room for dissenting
personal decisions by the average Muslim.
Abortion
Another major
form of population control is abortion. The majority of Muslim
scholars permit abortion, although they differ on the stage of
fetal development beyond which it becomes prohibited.22
To understand the differences in their positions, we have to
first study what the Qur'an says about this matter.
There are two
Qur'anic passages that address this issue. Both of them
describe stages of fetal development.23 These can be
summarized as follows: the semen (nutfah) develops in
the womb, together with the ovum, into a clinging clot ('alaqah),
then a chewed lump (mudghah) complete in itself yet
incomplete, then another act of creation takes place (khalqan
akhar). At this last stage of khalqan akhar,
ensoulment occurs.
Scholars agree
that abortion at or after the ensoulment stage is prohibited,
except to protect the mother's life.24 They disagree,
however, on when this stage is reached and whether abortion at
an even earlier stage is permitted. One group permits abortion
up to 120 days.25 Another prohibits it as early as 80
or even 40 days after conception.26 In either case,
many take the view that abortion does not abruptly become
prohibited at a certain stage (whether that stage is reached at
ensoulment or earlier). Rather, abortion becomes increasingly
makruh as the fetus develops, until it becomes finally
prohibited.27
On the other
hand, a minority of scholars hold a very strict view which
prohibits abortion the minute the semen attaches to the uterus,
on the theory that it is already on its way to being ensouled.28
These scholars also view abortions performed at later stages of
pregnancy as yet more serious than those performed at the
earlier stages. This position was adopted recently by some
Muslim jurists, who relied on scientific evidence in reaching
their conclusion. While saluting the various efforts of earlier
Muslim jurists on the subject, they concluded "from a review of
contemporary medical and scientific advances...that an embryo is
a living organism from the moment of conception."29
Among the major
traditional schools of thought, the majority of Hanafis and
Shafi'is permit abortion before the 120 days period.30
Among the minority of Shafi'is who oppose this view is al-Ghazali
who describes abortion as a jinayah (crime).31
Hanbalis permit abortion before 40 days (by taking medicine)
while Ja'faris and Malikis prohibit it at any time.32
Of course, all these views permit abortion for exigencies such
as saving the mother's life even after ensoulment.33
It is worth
noting that Islamic societies have lived for centuries while
these widely differing schools of thought thrived in their
midst, side by side. All these schools were generally regarded
as examples of good and honest ijtihad. How a
particular Muslim came out on any one of these issues was viewed
as a matter of personal conscience. The overall picture of this
ijtihad is that family planning through contraception
is less controversial and hence preferable to family planning
through abortion.
If a woman is
nevertheless faced with an abortion decision, and if after
deliberation she truly finds the reasoning of a permissive group
(like the majority Hanafi view) convincing, then she should not
be discouraged by the prior discussion on disagreements, and
should feel free to take advantage of the license under her
preferred view. This advice is based on the Prophet's position
of encouraging ijtihad and the Islamic scholarly
tradition of regarding differences among mujtahids
(those who engage in ijtihad) as an expression of the
mercy of God on Muslims.34
Final
Considerations
This is a very
short overview of Islamic jurisprudence on this topic. The
majority view is that a Muslim family is permitted to engage in
family planning. The actual answer, however, to today's question
of whether Muslim families ought to be encouraged by their
institutions to engage in family planning is somewhat more
complicated. The special features of this historical epoch and
its technetronic societies must be analyzed carefully so that
Muslim scholars and leaders do not lend support to policies
which, in the final analysis, turn out contrary to the Islamic
spirit or to public interest. For example, while Islam permits a
family to plan its growth rationally in order to avoid poverty,
this permission should not be distorted so as to discourage or
deny poorer people or less technologically developed countries
their right to propagation. Indeed, the Qur'an tells us
that God takes care of all creatures.35
Notes:
The research for
this article was supported by a research grant from The T.C.
Williams School of Law at the University of Richmond, and a
travel grant from the University of Richmond.
I would like to
thank Dr. Fathi Osman, Resident Scholar at The Islamic Center of
Southern California, and Drs. Hassan Hathout and Maher Hathout,
members of that Center, for their valuable comments on the
original text of the speech. This text has been revised in
response to their comments. However, I am solely responsible for
the views expressed herein. Also, I would like to thank my
research assistant, Ms. Leila Sayeh, a Tunisian attorney,
without whose help I could not have completed this work on time.
Since this speech
was given at a United Nations forum, and attended by an
international audience, I made a special effort to reference my
footnotes to reliable English-language works wherever possible.
These works provide references for those interested in further
research in original Arabic-language sources. My
English-language articles, some of which are referred to here,
also provide references to original Arabic sources.
1. Qur'an
4:59. This and other Qur'anic cites in this paper refer
first to the appropriate surah (chapter), and then to
the relevant ayah (verse). The author recommends the
translation by A. Yusuf Ali (Amana Corp., Brentwood, Maryland,
1983), although she does not abide by it here and prefers to use
her own.
2. For more on
this and other concepts discussed in this introduction, see
"Islamic Constitutionalism and the Concept of Democracy," by the
author, published in the Case Western Reserve Journal of
International Law, vol. 24, n.1 (Winter 1992), pp. 3-10.
3. Ibid., pp.
8-10. See also Subhi Mahmassani, Falsafat al-Tashri' fi
al-Islam (Dar al-'Ilm lil-Malayin, Beirut, 1961), pp.
200-207, 480.
4. Qur'an
17:31, 6:151.
5. Abu Daud
Sulayman ibn al-Ash'ah al-Sijistani, Sunan Abi Daud
(reprint, Dar 'Ihya' al-Sunnah al-Nabawiyah, Beirut, 1980), v.
2, p. 220. See also, Abdel Rahim Omran, Family Planning in
the Legacy of Islam (Routledge, London, 1992), pp. 100-101.
Omran's book is an excellent work in terms of scholarship and
knowledge of the tradition. The Hadith contained in it
has been authenticated by a committee of scholars at al-Azhar.
For those interested in a detailed analysis by the author of
this paper of the nuances of some of the arguments discussed
here or of the original Arabic texts, see an article co-authored
with other religious scholars (heretofore untitled, forthcoming)
in which al-'azl (coitus interruptus) is discussed,
Loyola of Los Angeles International and Comparative Law Journal,
v. 16, n. 1.
6. Abu Hamid M.
al-Ghazali, 'Ihya' Ulum al-Din (reprint, Mustafa al-Babi
al-Halabi wa awladuhu, Cairo, 1939), with an authentication of
the sayings of the Prophet by Hafiz al-Islam al-Iraqi in the
margin, vol. 2, p. 54; Omran, pp. 118-19.
7. The Qur'an
refers to this principle in several contexts. See, for example,
Qur'an 6:119, 5:90, 66:1, and 3:50. For al-Ghazali's
argument, see al-Ghazali, Muqaddimah fi 'Ihya' 'Ulum al-Shari'ah
(Dar al-'Ilm lil-Malayin, Beirut, 1962), 20-21. See also B.F.
Mussallam, Sex and Society in Islam (Cambridge
University Press, Cambridge, 1983), p. 17. This is another
excellent book, in the English language, on this topic. Another
short discussion of this important principle appears in Omran,
pp. 75-76.
8. Al-Ghazali,
ibid. But al-Ghazali adds here that contraception is not like
abortion which he views as a jinayah (crime) even at
the earliest stages of pregnancy. Mussallam, ibid.
9. Qur'an
16:58.
10. Al-Ghazali,
v. 2, p. 53.
11. Ibid., v. 2,
p. 53.
12. Muslim ibn
al-Hajjaj al-Qushayri, Sahih Muslim (Muhammad Ali Sabih
wa Awladuhu, Egypt, 1963?), v. 4, p.159. See also, Omran, p.
120.
13. Muslim, p.
158. See also, Omran, p. 122.
14. Al-Ghazali,
v. 2, p. 53; Mussallam, p. 18.
15. Abu Muhammad
ibn Hazm, al-Muhalla (reprint, Maktabat al-Jumhuriyah
al-Arabiyah, Cairo, 1970), v. 11, pp. 291-92; Omran, p. 136;
also mentioned in al-Ghazali, p. 54, who calls her "Juthama."
Omran contests the accuracy of the name used by al-Ghazali and
others. See Omran, p. 130. For more on Ibn Hazm's views, see
also al-Muhalla, vs. 10 and 12. In the latter volume,
he discusses appropriate awards for torts resulting in
miscarriage at various stages of pregnancy. The discussion gives
a clearer picture of Ibn Hazm's views.
16.Al-Ghazali, v.
2, p. 54; Omran, p. 133.
17. Wahbah al-Zuhaili,
Al-Fiqh al-Islami wa Addillatuh (Dar al-Fikr, Damascus,
1984), v. 7 pp. 331-332. See also Abd al-Halim Abu Shaqqah,
Tahrir al-Mar'ah fi 'Asr al-Risalah (Dar al-Qalam, Kuwait,
1992?), v. 5, pp. 196-97, and Omran's discussion of these
various positions, pp. 152-167. See also the author's
forthcoming paper, referred to in footnote 5, for further
discussion on the subject of this paragraph. Also, please note
that the Shi'i schools of ijtihad are many, and their
ijtihad tradition is very rich and varied. We shall
treat here only the Imami Ja'fari tradition.
18. Omran, pp.
155, 165; Mussallam, p. 32.
19. Omran, pp.
153-54, 162-63; Mussallam, pp. 31-32.
20. Omran, p.
159; Mussallam, p. 31-32.
21. Omran, p.
159; Mussallam, p. 31.
22. For quick
outline of the various points of view on this point, see Omran,
p. 190-193. See also Muhammad al-Bar, Mushkilat al-Ijhadh
(Al-Dar al-Saudiyah lil-Nashr wa al-Tawzi', Jeddah, 1985), pp.
5-45.
23. Qur'an
22:5 and 23:12-14.
24. Omran, p.
191.
25. Madkur,
Muhammad Salam, Al-Janin wa al-Ahkam al-Muta'allikah bihi fi
al-fiqh al-Islami (Dar al-Nahdhah al-Arabiyah, Cairo,
1969), pp. 301-302 (describing the Hanafi view which permits
abortion at that stage even without the husband's permission;
also noting that many Hanafis regard abortion during that early
period as makruh, if without good reason). Omran, p.
191; al-Bar, p. 42.
26. Omran, pp.
190-192. Dr. Osman and Drs. Hassan Hathout and Maher Hathout
hold the view that differences as to the number of days before
which abortion is permissible was a function of the state of
knowledge at the time the specific ijtihad took place.
Dr. Osman also adds that it was a function of the dominant
culture. Dr. Hassan Hathout views the controversy as based on
differences in determining the stage at which fetal life begins.
He argues that such determination should not be confused with
the determination of when ensoulment takes place, i.e. when the
ruh (soul) enters the body. For evidence, he cites the
Qur'an 7:85, which states that only God knows about the
ruh. He argues that ensoulment takes place in a living
being and that it is impermissible to perform abortion on a
living being even before ensoulment. For more on this point of
view, see endnote 29 and related text.
27. See for
example al-Ghazali, p. 53. While he views abortion as prohibited
from the moment of conception, he nevertheless argues that
abortion at a later stage is an even greater jinayah.
28. Madkur, p.
302 (describing the Maliki view). See also Omran, pp. 190-193;
al-Bar, pp. 40-41.
29. Abd El-Rahman
al-Awadhi, ed., Human Reproduction in Islam: The Full
Minutes of the Seminar on Human Reproduction in Islam, held
in Kuwait on May 24, 1983, Ahmad al-Gindi, trans. (Kuwait,
1989), p. 276. The point of view of jurists meeting in Kuwait is
both interesting and worthy of further discussion. For one, it
may have unnecessarily technologized the issue of abortion and
reduced it to a medical determination about the beginning of
life. For another, it may not have sufficiently taken into
account the controversies that exist even today, in medical as
well as non-medical circles, on the question of when life
begins. (For a preliminary discussion of the role of medicine in
Islamic jurisprudence, see Madkur, pp. 89-103.) I would like to
address the issue in greater detail in the future. Finally, it
is also worth noting that this modern view coincides in its
conclusion (though not reasoning) with the view of al-Ghazali.
(See endnotes 8 and 27.)
30. Madkur, pp.
87, 301-305 (noting that some Shafi'is disagreed on what
constitutes a good reason for abortion prior to 120 days.) Omran,
ibid., pp. 190-193.
31. Al-Ghazali,
v. 2, p. 53.
32. Madkur, p.
304-305 (noting that Hanbalis did not treat this subject in
great detail; also, noting that another Shi'i group, the Zaydi's,
have no problem with abortion up to the stage of mudghah,
the last stage before which the fetus is ensouled). See also,
Omran, pp. 191; al-Bar, p. 40. See also, Muhammad al-'Amili,
Wasa'il al-Shi'a (reprint, Beirut, n.d.), v. 19, p. 15.
Note that the Hanbali scholar, Ibn Rajab, shares al-Ghazali's
view. Al-Bar, p. 40.
33. Omran, p.
191; al-Bar, p. 44.
34. For a
discussion of this point, see my Islamic Constitutionalism
and the Concept of Democracy, pp. 5-7. See also Mahmassani,
Mukaddimah fi 'Ihya' 'Ulum al-Shari'ah, esp. pp. 13-31.
35. Qur'an
11:6.
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About the Author:
A Muslim
philosopher, jurist and author, Dr. al-Hibri has taught
philosophy and ethics at several universities and was a Visiting
Scholar at the Harvard Divinity School and the Center for the
Study of World Religions. Dr. al-Hibri is the author and editor
of many articles and books, including Women and Islam.
She is also a member of the Advisory Board of the American
Muslim Council.