Abortion (isl.)

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(Turk. Kürtaj)

The term ‘abortion’ is understood to denote the premature, post-fertilisation removal of the foetus growing in the womb together with the placenta, or the killing of the foetus in the womb. This definition encompasses every manner of inducing a termination of a pregnancy during the period between the first moment of conception and the time of natural birth. In the view of Islamic jurisprudence, human life begins upon conception. As it is not yet capable of surviving independently of its mother, the foetus is vested with only limited legal capacity. Nevertheless, as a person, it enjoys legal protections as a matter of law. The foetus’ most important right is the right to life. Various sanctions apply to actions in which an intention to jeopardise the life of the foetus is discernible. Under classic Islamic jurisprudence, there was unanimity that, from the 120th day following fertilisation, and regardless of the circumstances in which the mother’s life is in danger, no abortion was to be attempted. Some scholars even located this deadline at forty or fewer days after fertilisation. Specification of this phase dates to traditions regarding the breathing-in of the spirit (ruh), and to Qur’anic verses that discuss the developmental stages of the foetus in the womb (22:5; 23:12–14; 39:6; 71:14). The textual references were understood as indirect, legal proof (dalil). At the time, however, there was insufficient medical awareness, both of the point at which a foetus can be considered to be alive and of the duration of its developmental phases. Against this backdrop, on the one hand there was a connection seen between the breathing-in of the spirit and the coming-to-life of the foetus; legal scholars, however, who believed that the foetus was not alive prior to the breathing-in of the spirit, were of the view that an abortion could be undertaken prior to the point at which this breathing-in occurred. A lack of consensus with regard to the time window within which abortion was permissible is traceable to different indications within the traditions (riwaya). Legal scholars who were of the opinion that an abortion was permissible within a certain time window can be divided into three groups: those of the opinion that an abortion was permissible (dschaiz) in any case; those in whose view abortion was possible yet disapproved (makruh) of it; and finally those who represented the view that an abortion was to be disapproved of in the absence of compelling grounds. One also finds in classic Islamic jurisprudence the point of view – to which only a minority subscribed – that, from the moment of conception, terminating a pregnancy should not be permitted under any circumstances unless circumstances exist that could jeopardise the life of the mother. Even today, the majority of legal experts are similarly and clearly opposed to abortion. Their opinions are based on knowledge based on developments in medical science that have found that the foetus is alive throughout all phases of its development. Only as a result of advances in medical technology, on the other hand, has abortion of handicapped foetuses emerged as a topic of discussion. Some contemporary legal experts are of the opinion that even a handicapped foetus may not be aborted, regardless of whether or not it can be healed still in the womb or after birth. In this regard, they rely on an analogy with the right to life of persons who have either been born with an incurable handicap or become handicapped during the later course of their lives. Those, on the other hand, who take the view that handicapped foetuses may be aborted couple this view with the absolute prerequisite that the handicap must be proven as certain, that there are no chances for healing or treatment, and that the child’s handicap would encroach to a great extent upon its own life and upon the life of the child’s family after the birth.

Talip Türcan

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