Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > Ghurra: the fetus, abortion and expiation
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Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
This being established, whoever deliberately kills a believer without right becomes defiantly corrupt and deserves the Fire unless he repents; repentance is accepted from him according to the majority of the scholars. If he kills a Muslim and then dies before repenting, his entry into the Fire is not inevitable: he falls under the will of Allah, like the other major sins; if he enters it, he will not abide therein forever.
It is reported from Ibn Abbas, may Allah be pleased with them both, that he said: « The repentance of the killer is not accepted, because of the word of the Most High: "Whoever kills a believer deliberately, his reward is Hell, abiding therein; Allah is angry with him, has cursed him and prepared for him a tremendous punishment" (Surah an-Nisa, 93). » This verse is among the last to be revealed; Ibn Abbas, may Allah be pleased with them both, said: « Nothing abrogated it. » And because the wording of the verse is that of a report: reports admit neither abrogation nor alteration, for Allah's report can only be true.
The proof of the acceptance of his repentance is the word of the Most High:
« Those who do not invoke another deity besides Allah, and do not kill the soul that Allah has forbidden to kill, except by right »
Surah al-Furqan, 68
up to His word:
« except whoever repents »
Surah al-Furqan, 70
And the word of Allah the Most High:
« Allah does not forgive that anything be associated with Him, but He forgives what is less than that to whom He wills »
Surah an-Nisa, 48
He thereby placed him under His will. And He said, the Most High:
« Allah forgives the sins, all of them »
Surah az-Zumar, 53
And according to the hadith of Abu Sa'id al-Khudri, may Allah be pleased with him, the Prophet of Allah, may the peace and blessings of Allah be upon him, said:
« Among those who were before you there was a man who had killed ninety-nine persons. He asked who was the most learned man on earth and was directed to a monk. He came to him and said: I have killed ninety-nine persons, is there repentance for me? He said: no. He killed him and completed by him one hundred. Then he asked again who was the most learned man on earth and was directed to a man of knowledge. He said: I have killed one hundred persons, is there repentance for me? He said: yes, and who could stand between you and repentance? Go to such-and-such a land, for in it are people who worship Allah: worship Allah with them and do not return to your land, for it is a land of evil. He set out; when he was halfway, death came to him. The angels of mercy and the angels of punishment disputed over him. The angels of mercy said: he has come repentant, his heart set upon Allah. The angels of punishment said: he has never done any good at all. An angel came to them in human form, and they made him arbiter between them. He said: measure the distance between the two lands: to whichever of them he is closer, he belongs. They measured and found him closer to the land he intended, and the angels of mercy took him. »reported by al-Bukhari (3283) and Muslim (2766)
Imam an-Nawawi, may Allah have mercy on him, said: his words, may the peace and blessings of Allah be upon him, that a man killed ninety-nine persons, then killed the completion of one hundred, then the man of knowledge gave him the fatwa that repentance was available to him, represent the school of the people of knowledge and their consensus on the validity of the repentance of the intentional killer; none of them differed except Ibn Abbas. As for what is transmitted from some of the early generation to the contrary, the intent of the one saying it was deterrence from the means of repentance, not a belief that his repentance is void (Sharh Sahih Muslim 17/82).
According to Abd Allah: Ubada ibn as-Samit, may Allah be pleased with him, who had been present at Badr and was one of the twelve delegates on the night of the pledge of al-Aqaba, reported that the Messenger of Allah, may the peace and blessings of Allah be upon him, said, while a group of his Companions was around him:
« Pledge allegiance to me: that you will not associate anything with Allah, nor steal, nor commit fornication, nor kill your children, nor utter a slander you fabricate between your hands and your legs, nor disobey in what is right. Whoever among you is true to that, his reward is with Allah; whoever commits anything of that and is punished in this world, it is an expiation for him; whoever commits anything of that and Allah conceals it, his case is with Allah: if He wills, He pardons him, and if He wills, He punishes him. We pledged allegiance to him on that basis. »reported by al-Bukhari (18)
Imam an-Nawawi, may Allah have mercy on him, said: the people of truth agree that the fornicator, the thief, the killer and others among the committers of major sins other than associating partners with Allah do not thereby become disbelievers; rather they are believers whose faith is deficient. If they repent, their punishment falls away; if they die persisting in major sins, they fall under the will of Allah: if He wills, He pardons them and admits them to Paradise first; if He wills, He punishes them and then admits them to Paradise (Sharh Sahih Muslim 2/41 and 42).
...whether the separation came from a blow, a fright or the smelling of something, on condition that the testimony attest that it was from the fright or the smelling, that she kept to her bed until she miscarried, and that the testimony attest to the miscarried fetus as well. By 'alaqa is meant the clotted blood that does not dissolve when hot water is poured upon it, not the clotted blood that dissolves when hot water is poured upon it, for the latter entails nothing: nothing is assessed before examination; before it, only the mudgha is assessed, that is, even if it was not an 'alaqa but a mudgha (Sharh Mukhtasar Khalil 8/32, al-Sharh al-Kabir with al-Dusuqi's commentary 6/227, Tahbir al-Mukhtasar 5/268).
The jurists differed on the case of a woman who is struck or smells something and expels a mudgha. The mudgha is the flesh: it is the first state of the body; it is called mudgha because it is of the size of what can be chewed of flesh.
Imam Abu Hanifa held that an assessed compensation is due for it. Ibn Abidin said: « In ash-Shuniyi: even if she expels a mudgha with nothing of its form apparent, and trustworthy midwives testify that it is the beginning of a human formation that would have developed had it remained, there is no ghurra for it; according to us, an assessed compensation is due » (Hashiyat Ibn Abidin 6/590).
Imam Malik held that a ghurra is due for it. Imam ash-Shafi'i held that nothing is due for it (al-Hawi al-Kabir 12/387, al-Muhadhdhab 2/197, Bidayat al-Mujtahid 2/312).
If she expels several fetuses, their diyas are due from them in shares, and an expiation is due from each of them for each fetus: if three men strike the belly of a woman and she expels three fetuses, nine expiations are due from them, three from each (al-Mughni 8/326 and 327).
He also said: « If one strikes the belly of a woman and she expels several fetuses, a ghurra is due for each; this is the view of al-Zuhri, Malik, ash-Shafi'i, Ishaq and Ibn al-Mundhir. » He said: « I have preserved no disagreement from others against them », for it is compensation for a human being: it multiplies with their number, like the diyas. If she expels them alive at a time in which their like survive and they then die, a full diya is due for each; if some come out alive and then die and some dead, the diya is due for the living one and the ghurra for the dead one (al-Mughni 8/320).
The people of knowledge unanimously agree that if a woman is struck and expels a nutfa or an 'alaqa, nothing attaches to it: no ghurra and no expiation are due.
Imam al-Mawardi, may Allah have mercy on him, said: « The 'alaqa is the fresh blood into which the nutfa passed until it became an 'alaqa; it is called 'alaqa because it is the first state of clinging. The 'alaqa follows the rule of the nutfa in that no sanctity has become established for it and nothing of the three rulings attaches to it, by consensus of the jurists: no ghurra is due for it, it does not make the slave-girl a mother of a child, and it does not end the waiting period » (al-Hawi al-Kabir 12/387).
Imam Ibn Rushd the grandfather, may Allah have mercy on him, said: « It is established that the Messenger of Allah, may the peace and blessings of Allah be upon him, ruled, for the fetus cast from its mother's womb, a ghurra consisting of a slave or a slave-girl; the people of knowledge unanimously agree on the ruling in this, namely that for the fetus of a free Muslim or Christian woman killed by a Muslim, and for the fetus of the slave-girl conceived from her free master, a ghurra consisting of a slave or a slave-girl is due, when it comes out of its mother's womb dead while she is alive, whether male or female, fully formed or not, once it is certain that it is a fetus; and everything by which the slave-girl would become a mother of a child when she expels it, conceived from her master, entails for it, upon the offender, a ghurra consisting of a slave or a slave-girl, each according to his school in this. On all this there is no disagreement among any of the people of knowledge » (al-Muqaddimat al-Mumahhadat 3/297).
Imam Badr ad-Din al-Ayni, may Allah have mercy on him, said: « Text: "and the fetus of which part of its form has become apparent"; commentary: he restricted it by this because if nothing of its form were apparent, it would not be in the position of a child; and if it is an 'alaqa, it has no ruling with respect to these rulings, and no disagreement is known in it » (al-Binaya Sharh al-Hidaya 13/227).
However, the Malikis here made a ghurra consisting of a slave or a slave-girl due for it: they said that for the fetus, even at the 'alaqa stage, one tenth of its mother is due, even if she is a slave-girl. This means that the fetus, as such, whether from a free woman or a slave-girl, when it separates from its mother dead, that is, without a cry, while she is alive: one tenth of its mother is due for it, that is, one tenth of her diya, or of her value if she is a slave-girl; whether the fetus is male or female, struck intentionally or by mistake, the striker being the father or another.
Imam Ibn al-Mundhir, may Allah have mercy on him, said: « Mention of the obligation of the expiation together with the ghurra for the fetus a woman expels from a blow: everyone whose statements I retain, among the people of knowledge, imposes upon the striker of a woman's belly that expels a fetus the freeing of a slave together with the ghurra; this is the view of Ata', al-Zuhri, an-Nakha'i, al-Hasan al-Basri and al-Hakam. Malik, ash-Shafi'i, Ahmad and Ishaq said: the expiation is due from him » (al-Awsat 13/391).
The jurists of the four schools agree that the ghurra is inherited: it goes to the heirs of the fetus, and its ruling is that of the diya in that it is inherited.
Ibn Rushd, may Allah have mercy on him, said: « As for the one to whom it is due, Malik, ash-Shafi'i and Abu Hanifa said: it goes to the heirs of the fetus, and its ruling is that of the diya in that it is inherited. Rabi'a and al-Layth said: it belongs to the mother exclusively », for they likened her fetus to a limb of her limbs (Bidayat al-Mujtahid 2/312).
Ibn Qudama, may Allah have mercy on him, said: « The ghurra is inherited from the fetus as if it had fallen alive, for it is a diya for it and a substitute for it: its heirs inherit it, as if it had been killed after birth; this is the view of Malik, ash-Shafi'i and the partisans of reasoned opinion. Al-Layth said: it is not inherited; rather it is a substitute for it belonging to its mother, for it is like a limb of her limbs, resembling her hand. Our proof: it is the diya of a free human being: it must therefore be inherited from him, as if she had given birth to him alive and he then died. Saying that he is "a limb of her limbs" is invalid, for if he were a limb, his substitute would enter his mother's diya, like her hand; retaliation would not have been barred from his mother on his account, nor the application of the legal penalty against her because of him; the expiation would not have been obligatory for killing him; his emancipation without her, nor hers without him, would not have been valid; and his life after her death would be inconceivable. Moreover, every life secured by diya is inherited, like the diya of the living. On this basis: if she expels a dead fetus and then dies, she inherits her share of its diya, then her heirs inherit from her; if she dies before it and then expels it dead, neither inherits from the other; if it comes out alive and then dies before her, and she then dies, she inherits her share of its diya, then her heirs inherit from her; if she dies before it and then expels it dead, neither inherits from the other; if it comes out alive and she dies before it, and it then dies, or she dies and it then comes out alive and then dies, it inherits from her, then its heirs inherit from it; if their two sets of heirs differ over which of the two died first, their ruling is that of the drowned... If she expels a dead or living fetus, then it dies, then she expels another alive: for the dead one, a ghurra; for the first living one, a full diya if its expulsion occurred at a time in which its like survives; the second inherits from both, then its heirs inherit from it if it dies. If the mother died after the first and before the second, the mother and the second fetus inherit from the first's diya; then if the mother dies, the second inherits from her, then his inheritance goes to his heirs; and if the mother dies after both, she inherits from both of them » (al-Mughni 8/319 and 320, al-Bayan 11/504).
The jurists differed concerning one who causes the loss of a fetus: is an expiation (kaffara) due from him or not?
The Hanafis held that no expiation is due from him, because Allah, exalted be He, linked the obligation of the expiation to the obligation of the diya by His statement:
And whoever kills a believer by mistake, then the freeing of a believing slave and a diya delivered to his family
Surah An-Nisa, 92
and the fetus carries neither diya nor expiation (1).
The Malikis held that no expiation is due for it, but Malik considered it recommended without making it obligatory: since the expiation, in his view, is not due in the case of intentional killing while it is due in the case of accidental killing, and this case was, in his view, uncertain between the intentional and the accidental, he considered the expiation recommended without imposing it (2).
The Shafi'is held that the expiation is binding upon the offender (3).
Ibn Qudama, may Allah have mercy on him, said: upon everyone who strikes, among those I have mentioned, falls the freeing of a believing slave, whether the fetus comes out alive or dead; this is the position of the majority of the scholars, among them al-Hasan, 'Ata', al-Zuhri, al-Hakam, Malik, al-Shafi'i and Ishaq.
Ibn al-Mundhir said: everyone whose view we preserve among the scholars imposed upon one who strikes the womb of a woman so that she expels a fetus the freeing of a slave together with the ghurra, and this was reported from 'Umar, may Allah be pleased with him.
Abu Hanifa said: the expiation is not due, because the Prophet, may the peace and blessings of Allah be upon him, imposed no expiation when he imposed the ghurra.
(1) "Mukhtasar Ikhtilaf al-'Ulama" (5/176).
(2) "Bidayat al-Mujtahid" (2/312).
(3) "Sharh Sahih Muslim" (11/176) and "al-Bayan" (11/502).
Our proof is the statement of Allah, exalted be He:
And whoever kills a believer by mistake, then the freeing of a believing slave
Surah An-Nisa, 92
and His statement:
And if he belonged to a people between whom and you there is a covenant, then a diya delivered to his family and the freeing of a believing slave
Surah An-Nisa, 92
This fetus, if it is born of two believers or of one of them, is judged a believer in consequence of its parentage: the believers among its heirs inherit from it, and the disbeliever inherits nothing from it; and if it is born of dhimmis, it belongs to a people between whom and us there is a covenant. It is moreover a life protected by a diya, so the freeing of a slave is due for it as for an adult. The omission of any mention of the expiation does not prevent its being due, as in the statement of the Prophet, peace be upon him: "For the life of a believer, one hundred camels", in which he mentioned the diya in several places without mentioning the expiation although it is due; and likewise the fact that the Prophet, may the peace and blessings of Allah be upon him, judged the diya of the slain woman upon the 'aqila of the killer without mentioning an expiation although it is due: the same applies here. The reason is that the verse made it unnecessary to mention the expiation in another passage, and that was relied upon. If the woman who was struck expels several fetuses, an expiation is due for each fetus, just as a ghurra or a diya is due for each fetus. If a group of people jointly strikes a woman who expels one fetus, its diya or its ghurra falls upon them in shares, and an expiation falls upon each one of them, as when a group of people kills one man; and if she expels several fetuses, their diyas fall upon them in shares, and an expiation for each fetus falls upon each one. Thus, if three men strike the womb of a woman who expels three fetuses, nine expiations fall upon them, three upon each (1).
(1) "al-Mughni" (8/326, 327).
Aborting the fetus can only occur in one of two cases.
The scholars unanimously agreed that terminating the pregnancy after the soul is breathed into it is forbidden, unless keeping it causes the destruction of its mother.
Shaykh al-Islam Ibn Taymiyya, may Allah have mercy on him, said: terminating the pregnancy is forbidden by the consensus of the Muslims, and it belongs to the wa'd (the burying alive of infant girls) concerning which Allah said:
And when the girl buried alive is asked: for what sin was she killed?
Surah At-Takwir, 8-9
and He said:
And do not kill your children out of poverty
Surah Al-An'am, 151
(1) "Majmu' al-Fatawa" (34/160).
The jurists differed on the ruling of aborting the fetus before the soul is breathed into it: is it permissible or not?
The Hanafis, in the relied-upon view of their school, the Shafi'is in the prevailing view among them, al-Lakhmi among the Malikis and Ibn 'Aqil among the Hanbalis held that aborting the fetus is permissible before the soul is breathed into it, that is, before one hundred and twenty days.
The Hanafis said: it is permissible to terminate the pregnancy before the soul is breathed into it, that is, before four months, even without the husband's permission; and one view holds that she incurs guilt here if it is lost without any excuse on her part.
In "al-Khaniyya", in the Book of Disapproval: "I do not say that abortion is permissible unconditionally: a person in ihram, if he breaks the eggs of game, is liable for them, because they are the origin of the game; if he is held accountable for the compensation there, then all the more does guilt attach to her here if she aborts without excuse."
Ibn Nujaym, may Allah have mercy on him, said: this is what should be relied upon, for it has a sound basis upon which analogy may be built; and the apparent fact is that this question was not transmitted explicitly from Abu Hanifa, which is why they express it with the formula "they said" (1).
Ibn Abidin, may Allah have mercy on him, said: Ibn Wahban said: among the excuses is that her milk dries up after the pregnancy becomes apparent, while the child's father has nothing with which to hire a wet nurse and he fears its loss; and it is reported from "al-Dhakhira": if she wishes to bring about the expulsion before the passing of the term in which the soul is breathed into it, is that permissible for her or not? They differed over it. The jurist 'Ali ibn Musa used to say: it is disliked, for the semen, once it has settled in the womb, has life as its outcome, so it takes the ruling of life, as with the egg of the game of the sacred territory; and likewise in "al-Zahiriyya". Ibn Wahban said: the permission to abort is to be understood as applying to the case of an excuse, or else that she does not incur the sin of killing (2).
(1) "al-Bahr al-Ra'iq" (3/215) and "Sharh Fath al-Qadir" (3/401, 402).
(2) "Ibn Abidin's marginal commentary on al-Durr al-Mukhtar" (3/176).
Among the Shafi'is, Imam al-Ramli, may Allah have mercy on him, reported: al-Muhibb al-Tabari said: the scholars differed over the nutfa (the fertilized drop of semen) before the completion of forty days, over two views. One view: it carries neither the ruling of miscarriage nor that of wa'd. The other: it has sanctity, and it is not permissible to destroy it or to cause its expulsion after it has settled in the womb, unlike 'azl (coitus interruptus), which occurs before it gets there.
Al-Zarkashi said: in the notes of some of the eminent scholars: al-Karabisi said: I asked Abu Bakr ibn Abi Sa'id al-Furati about a man who gave his slave girl a potion to drink so that she would expel her child, and he said: as long as it is a nutfa or an 'alaqa (clinging clot), that is ample for him to do, if Allah, exalted be He, wills.
Al-Ghazali alluded to this question in the "Ihya'": after establishing that 'azl is contrary to what is preferable, he said, in sum: this is not like abortion and wa'd, for that is an aggression against an existing being; the first degree of existence is the falling of the nutfa into the womb, where it mixes with the woman's fluid: to destroy it is an aggression; if it becomes an 'alaqa or a mudgha (lump of flesh), the aggression is graver; if the soul is breathed into it and the formation is settled, the aggression becomes most grave. He then said: it is far-fetched to judge that it is not forbidden.
It may also be said: as for the time of the ensoulment and what follows it up to delivery, there is no doubt about the prohibition; as for before it, one cannot say that it is "contrary to what is preferable": it is open to being either disliked or forbidden, and the prohibition grows stronger as the time of the ensoulment draws near, because it is a crime. Then, if it takes shape in human form and the midwives discern it, the ghurra becomes due. Indeed, if the nutfa results from fornication, permissibility might be imagined; but if it is left until the soul is breathed into it, there is no doubt about the prohibition; and if the intercourse was fornication and the woman one of the enemy at war, there is no doubt that it is not forbidden from either standpoint.
Ibn al-Labban was asked about a Muslim who had committed fornication with a dhimmi woman: what is the ruling of the child in Islam? He gave no answer on it. The questioner said to him: Ibn Hazm mentioned, in the Book of Jihad, that the child is a Muslim by consideration of the abode; given this, there is no doubt about his sanctity, all the more so since, if the intercourse was intended to compel her, he then owns her, as Judge al-Husayn and others stated. This is what al-Zarkashi said.
Al-Damiri said: it is no secret that the woman may do this with a pregnancy of fornication or otherwise; she is either a slave who did it with the permission of her master who had intercourse with her, which is the question put to al-Furati, or with the permission of a master who was not the one who had intercourse with her, a clear case whose transmission is scarce yet well known in the school of Abu Hanifa: in "Fatawa Qadi Khan" and other works this is permitted. Al-Ghazali discussed it in the "Ihya'" with solid words, except that he did not explicitly declare it forbidden.
Al-Ramli said: the prevailing view is that it is forbidden after the soul is breathed into it without exception, and permissible before that (1).
Shihab al-Din al-Qalyubi, may Allah have mercy on him, said: yes, it is permissible to expel it, even with a medicine, before the soul is breathed into it, contrary to al-Ghazali (2).
(1) "Nihayat al-Muhtaj" (8/523).
(2) "Al-Qalyubi's marginal commentary" (4/389).
In the relied-upon view of the Malikis, aborting the fetus is forbidden absolutely, whether before forty days or after.
Al-Dardir, may Allah have mercy on him, said: it is not permissible to extract the semen once formed in the womb, even before forty days, and once the soul is breathed into it, it is forbidden by consensus.
Al-Dusuqi, may Allah have mercy on him, said: his words "even before forty days" are the relied-upon view; and one view says that extracting it before forty days is disliked (1).
(1) "Al-Dusuqi's marginal commentary with al-Sharh al-Kabir" (3/86) and "Al-Sawi's marginal commentary" (5/64).
Abu al-'Abbas Ahmad ibn Yahya al-Wansharisi, may Allah have mercy on him, said: the explicit doctrine of our imams, may Allah be pleased with them, is to forbid the use of what cools the womb and of what extracts from the womb the semen that is in it; such is the position of the compilers and the theorists. Judge Abu Bakr Ibn al-'Arabi, may Allah have mercy on him, said: "The child has three states. A state before existence, in which it is cut off through 'azl, and that is permissible. A state after the womb has grasped the semen: it is not permissible for anyone then to meddle with it to cut off offspring, as some base merchants do who give their servants, when they retain their menses, medicines that make the flow run, so that the semen flows out with it and childbearing ceases. And the third state, after it has taken form and before the soul is breathed into it: it is stricter than the first two in prohibition and unlawfulness, because of the transmitted report:
Indeed the miscarried child will remain sulking at the gate of Paradise, saying: I shall not enter Paradise until my parents enter it.
Transmitted report cited by Judge Abu Bakr Ibn al-'Arabi
As for after the soul is breathed into it, it is the killing of a soul, without disagreement."
Al-Lakhmi alone allowed the extraction of what is inside the womb of the semen before forty days, and he agreed with the group beyond that term. When you stand upon this verification, brought earlier from the words of the verifying judge Abu Bakr, may Allah have mercy on him, you will know for certain that the agreement of the husband and the wife upon aborting the fetus during the period I mentioned, and their collusion in that, is forbidden and prohibited, in no way lawful or permitted; and upon the mother, for aborting it, fall the ghurra and a disciplinary punishment, unless the husband waives his right to the ghurra after the abortion.
Of the same pattern and meaning is what 'Izz al-Din ibn 'Abd al-Salam, the Shafi'i, may Allah have mercy on him, was asked: is it allowable for the woman to use medicines to prevent pregnancy or not? He answered: it is not for the woman to use what corrupts the faculty through which pregnancy becomes possible (1).
Imam al-Hattab, may Allah have mercy on him, reported: Ibn Naji said in his commentary on the "Mudawna", in the division between the wives: as for causing the expulsion of the semen before forty days from the intercourse, al-Lakhmi said: permissible; and Ibn al-'Arabi said in "al-Qabas": not permissible by agreement; and 'Iyad related in "al-Ikmal" two views of the scholars on it, the apparent sense of which is that they lie outside the [Maliki] school. End of quote.
Al-Burzuli said, in the questions of suckling: as for using what cuts off the semen or blocks the womb, Ibn al-'Arabi has explicitly stated that it is not permissible; as for extracting the semen that has settled in the womb, the doctrine of the majority is absolute prohibition; and I recall from al-Lakhmi that he permits it before forty days as long as it is a nutfa, just as 'azl is permissible at the outset; the former is the more evident, for some have claimed that it is the maw'uda, the girl buried alive. End of al-Burzuli's words (1).
(1) "al-Mi'yar al-Mu'rib wal-Jami' al-Maghrib" (1/449) and "Mawahib al-Jalil" (5/127).
In the view of their school, it is permissible to abort the fetus when it is a nutfa, and not permissible when it is an 'alaqa; that is, permissible before forty days and not permissible after.
Imam al-Mirdawi, may Allah have mercy on him, said: it is permissible to drink a medicine to expel a nutfa; this is stated in "al-Wajiz" and given precedence in "al-Furu'"; and Ibn al-Jawzi said in "Ahkam al-Nisa'": forbidden.
He said in "al-Furu'": and the apparent sense of the words of Ibn 'Aqil in "al-Funun" is that it is permissible to expel it before the soul is breathed into it; he said: and this has a basis. End of quote (1).
Ibn Rajab, may Allah have mercy on him, said: a group of jurists granted the woman leave to expel what is in her womb as long as the soul has not been breathed into it, and they made it like 'azl; this is a weak view, for the fetus is a child already formed, which may well take shape, whereas in 'azl no child exists at all: one has merely contributed to preventing its formation; and its formation may well not be prevented by 'azl if Allah wills to create it, as the Prophet, may the peace and blessings of Allah be upon him, said when he was asked about 'azl:
There is no blame upon you if you do not practice withdrawal: there is no soul that is to come into being but that Allah is its Creator.
Cited by Ibn Rajab in "Jami' al-'Ulum wal-Hikam"
Our companions have explicitly stated that when the child becomes an 'alaqa, it is not permissible for the woman to expel it, because it is a child already formed, unlike the nutfa, which is not yet formed and may never become one (1).
(1) "al-Insaf" (1/386) and "Jami' al-'Ulum wal-Hikam", p. 49.
Imam al-Buhuti, may Allah have mercy on him, said: "It is permissible to drink a medicine to expel a nutfa"; and in "Ahkam al-Nisa'" by Ibn al-Jawzi: forbidden. And in "al-Furu'" from "al-Funun": the maw'uda occurs only after the seven stages, and he recited:
And We certainly created man from an extract of clay
Surah Al-Mu'minun, 12
up to His statement:
then We produced him as another creation
Surah Al-Mu'minun, 14
He said: this is when the soul has entered it, for what the soul has not entered is not resurrected; it may therefore be derived from this that expelling it is not forbidden, and this has a basis (1).
(1) "Kashshaf al-Qina'" (1/258).
Shaykh al-Islam Ibn Taymiyya, may Allah have mercy on him, was asked about a pregnant woman who deliberately brought about the expulsion of the fetus, either by striking herself or by drinking a medicine: what is due upon her?
He answered: there is due upon her, by the sunna of the Messenger of Allah, may the peace and blessings of Allah be upon him, and the agreement of the imams, a ghurra: a slave or a slave girl; this ghurra goes to the heirs of the fetus to the exclusion of its mother; if it has a father, the ghurra goes to its father, and if he wishes to waive it for the woman, that is up to him; the value of the ghurra is a tenth of the diya, that is, fifty dinars; and upon her, according to the majority of the scholars, there also falls the freeing of a slave; if she cannot find one, she fasts two consecutive months; and if she is unable, she feeds sixty poor persons (1).
(1) "Majmu' al-Fatawa" (34/161).
Ibn al-Mundhir, may Allah have mercy on him, said: the value of the ghurra according to al-Shafi'i is five camels; in the view of the people of Kufa, five hundred dirhams; in the view of the people of Medina, six hundred dirhams, their intention therein being half a tenth of the father's diya, which is a tenth of the mother's diya (1).
(1) "al-Ishraf" (4/363).
The jurists differed over the ghurra once it has become due: does it fall upon the offender or upon his 'aqila (his liable paternal kin)?
The Hanafis and the Shafi'is held that once the ghurra is due it falls upon the 'aqila, not upon the offender, because it is an accidental injury, so it falls upon the 'aqila; and also because of what was likewise reported from Jabir ibn 'Abdallah, may Allah be pleased with them both:
The Prophet, may the peace and blessings of Allah be upon him, imposed for the fetus a ghurra upon the 'aqila of the [guilty] woman, and he declared her husband and her son clear of it.
Reported by Ibn Abi Shayba in his "Musannaf" (27289)
(1) "Ahkam al-Qur'an" by al-Jassas (3/194) and "Mukhtasar Ikhtilaf al-'Ulama" (5/176).
The Malikis held that it falls upon the offender.
Imam al-Nawawi, may Allah have mercy on him, said: whenever the ghurra is due, it falls upon the 'aqila, not upon the offender; this is the position of al-Shafi'i, Abu Hanifa and the rest of the Kufans, may Allah be pleased with them; Malik and the Basrans said: it falls upon the offender (1).
(1) "Sharh Sahih Muslim" (11/176) and "al-Bayan" (11/502).
Imam Ibn 'Abd al-Barr, may Allah have mercy on him, said: they differed over upon whom the ghurra falls in this: a group among them, including Malik and al-Hasan ibn Hayy, said: it is from the property of the offender; this is the view of al-Hasan al-Basri and al-Sha'bi. Others said: it falls upon the 'aqila; among those who said this were al-Thawri, Abu Hanifa, al-Shafi'i and their companions; it is the view of Ibrahim and Ibn Sirin (1).
(1) "al-Istidhkar" (8/74) and "Bidayat al-Mujtahid" (2/312).
Imam Ibn Qudama, may Allah have mercy on him, said: the 'aqila bears the diya of the fetus when it dies together with its mother; this is an explicit text from Ahmad when the injury committed against her was accidental or quasi-intentional, because of the hadith reported by al-Mughira ibn Shu'ba:
The Messenger of Allah, may the peace and blessings of Allah be upon him, judged for the fetus a ghurra, a slave or a slave girl, upon the 'aqila of the [guilty] woman.
Reported by Muslim (1682)
If he killed the mother intentionally, or the fetus died on its own, the 'aqila does not bear it. Al-Shafi'i said: the 'aqila bears it in every case, built upon his position that the 'aqila bears the small and the great alike; and the injury against the fetus is not intentional, because its existence is not verified so as to be intended by the striking.
Our proof: the 'aqila does not bear what is less than a third, as we have mentioned, and this is less than a third; and when it dies on its own or from an intentional injury, its diya is upon its killer like its mother's, for there is no injury part of whose diya is borne by the offender and part by another: the whole of it is therefore upon the killer, as if he had amputated intentionally and the injury had extended to the life (1).
(1) "al-Mughni" (8/320).
The Hanbalis held that if she expels a mudgha in which there is no form, no compensation is due for it, because it is not known to be a fetus; if trustworthy midwives testify that it contained a hidden form, then the ghurra is due for it, because it is a fetus; and if they testify that it was the beginning of the creation of a human being which would have taken form had it remained, there are two positions:
Ibn Qudama, may Allah have mercy on him, said: the more correct of them: nothing is due for it, because it did not take form, so nothing is required for it, as with the 'alaqa; and the principle is freedom from obligation, so it is not imposed upon doubt. The second: the ghurra is due for it, because it is the beginning of the creation of a human being, resembling what has taken form; and this is invalidated by the nutfa and the 'alaqa (1).
(1) "al-Mughni" (8/318), "al-Kafi" (4/86), "al-Mubdi'" (8/357, 358), "al-Insaf" (10/69) and "Kashshaf al-Qina'" (6/27, 28).
Ibn Rushd, may Allah have mercy on him, said: they differed, in this chapter, over the formation that obligates the ghurra: Malik said: everything she expels of a mudgha or an 'alaqa, of what is known to be a child, carries the ghurra; and al-Shafi'i said: nothing is due for it until the formation becomes clear. The better view is that the breathing of the soul into it be taken into account, I mean that the ghurra be obligatory when it is known that life had existed in it (1).
(1) "Bidayat al-Mujtahid" (2/312).
The jurists of the four schools agreed that the value of the ghurra is half a tenth of the diya, which is five camels, or a tenth of the mother's diya, which is five camels, because that is the least that the Law has assessed in injuries, namely the compensation for the wound laying bare the bone and the diya of a tooth, and we referred it back to that (1).
(1) "al-Mughni" (8/319).
Imam al-Shafi'i, may Allah have mercy on him, reported from Abu Hurayra:
The Prophet, may the peace and blessings of Allah be upon him, judged, for the fetus of a woman of Banu Lahyan expelled dead, a ghurra, a slave or a slave girl; then the woman against whom he had judged the ghurra died, and the Messenger of Allah, may the peace and blessings of Allah be upon him, judged that her estate went to her sons and her husband, and that the diya was upon her 'aqila.
Cited by Imam al-Shafi'i in "al-Umm"
Al-Shafi'i said: it is clear, in the judgment of the Messenger of Allah, when he judged against a woman who had injured a fetus a ghurra, and judged against her 'aqila that they bore what she had caused, that the estate of the woman goes to her child and her husband, that the diya is upon the 'aqila even though they do not inherit, and that the estate goes to the one to whom Allah, Mighty and Majestic, assigned it. It is equally clear that he judged against her 'aqila for the diya of the fetus, while there is nothing in it but a ghurra: no one differs over the fact that its value is five camels; and in the view of others than us: "fifty dinars upon the people of gold, and six hundred dirhams upon the people of silver"; the 'aqila, in the sunna of the Prophet, bears half a tenth of the diya, for five camels are half a tenth of a man's diya (1).
(1) "al-Umm" (6/103).
Imam al-Tahawi, may Allah have mercy on him, said: there is a consensus of the scholars on the amount of the ghurra due for the fetus from the diya, that it is half a tenth of it. We found, on this, the mention by the Messenger of Allah, may the peace and blessings of Allah be upon him, that the ghurra is a slave or a slave girl: this was the informing of the people of what the ghurra is; he then followed that with his words: "or one hundred sheep"; that was not any part of the ghurra, but it is the portion that is the amount of the ghurra from the diya when the diya is in sheep: the diya in sheep, according to those who make sheep one of the categories of diyas, is two thousand sheep, of which one hundred is half a tenth. Among those who set the diya in sheep at this amount were Abu Yusuf and Muhammad ibn al-Hasan; as for Abu Hanifa, he only recognized the diya in camels and in dirhams and dinars specifically; Malik recognized it in camels, dinars and dirhams; as for al-Shafi'i, he recognized it in camels alone to the exclusion of all else; and what was reported from the Messenger of Allah on this matter is preferable (1).
(1) "Sharh Mushkil al-Athar" (11/414).
Imam al-Sarkhasi, may Allah have mercy on him, said: the diya is assessed at ten thousand, because the compensation for the fetus is, by agreement, half a tenth of the diya, and that was assessed at five hundred, so we know that the entire diya is ten thousand (1).
Imam al-Zayla'i, may Allah have mercy on him, said: this is why a tenth of her diya is due, by consensus, for the fetus of a free woman, and that is the ghurra (2).
(1) "al-Mabsut" (26/87).
(2) "Tabyin al-Haqa'iq" (6/140).
Imam Malik, may Allah have mercy on him, reported from Rabi'a ibn Abi 'Abd al-Rahman that he used to say: "The ghurra is valued at fifty dinars or six hundred dirhams, and the diya of the free Muslim woman at five hundred dinars or six thousand dirhams." Malik said: the diya of the fetus of a free woman is a tenth of her diya, and the tenth is fifty dinars or six hundred dirhams. Malik said: I heard no one disagree that the fetus carries no ghurra until it departs the womb of its mother and is expelled from her womb dead. Malik said: I heard that when the fetus leaves the womb of its mother alive and then dies, the full diya is due for it. Malik said: there is no life for the fetus except by the cry at birth: if it leaves the womb of its mother, cries out and then dies, the full diya is due for it; and we hold that for the fetus of a slave woman, a tenth of her price is due (1).
(1) "al-Muwatta'" (2/855).
Ibn Battal, may Allah have mercy on him, said: Malik said: the diya of the fetus of a free woman is a tenth of her diya, and the tenth is fifty dinars or six hundred dirhams, because the diya of the free Muslim woman is five hundred dinars or six thousand dirhams, and upon this is the majority of the scholars. Al-Thawri and Abu Hanifa differed from this and said: the value of the ghurra is five hundred dirhams, because the diya of a woman, in their view, is five thousand dirhams, according to what is reported from 'Umar ibn al-Khattab, who set the diya for the people of silver at ten thousand dirhams, and this is the doctrine of Ibn Mas'ud. The proof of Malik and those who agreed with him is that when the Prophet, may the peace and blessings of Allah be upon him, ruled for the fetus a ghurra, a slave or a slave girl, the Companions of the Messenger of Allah set its value at five camels, which is a tenth of its mother's diya, and that is fifty dinars or six hundred dirhams; and the transmission of the people of the Hijaz, that they assessed the diya at twelve thousand dirhams, is more authentic from 'Umar, and it is the doctrine of 'Uthman, 'Ali and Ibn 'Abbas (1).
(1) "Sharh Sahih al-Bukhari" (8/550, 551) and "al-Istidhkar" (8/126).
Al-Mawardi, may Allah have mercy on him, said: there is no difference, for the fetus, between male and female in the obligation of the ghurra; its value is five camels; in silver, when the diya for life is assessed in silver, six hundred dirhams; in gold, fifty dinars; and that is a tenth of its mother's diya. Abu Hanifa differentiated, for the fetus, between male and female: he imposed for it, if it is male, half a tenth of the diya it would have had if it had lived, and if it is female, a tenth of the diya she would have had if she had lived; though this agrees in outcome, it differs in the legal cause, and his difference, while it has no effect on a free fetus, does affect an enslaved fetus (1).
(1) "al-Hawi al-Kabir" (12/389) and "al-Bayan" (11/502).
Imam Ibn Qudama, may Allah have mercy on him, said: the ghurra, its value is half a tenth of the diya, which is five camels; this was reported from 'Umar and Zayd, may Allah be pleased with them both, and it is the view of al-Nakha'i, al-Sha'bi, Rabi'a, Qatada, Malik, al-Shafi'i, Ishaq and the companions of personal opinion; and because that is the least that the Law has assessed in injuries, namely the compensation for the wound laying bare the bone and the diya of a tooth, and we referred it back to that.
If it is said: three camels and a third are due for a fingertip, and that is less than what you have mentioned, we reply: what the Lawgiver explicitly stated is a ghurra whose value is the compensation for the wound laying bare the bone, which is five camels.
When the two parents of the fetus are People of the Book, a ghurra is due for it whose value is half the value of the ghurra due for a Muslim; and for the fetus of a Magian woman there is a ghurra whose value is forty dirhams; and when no ghurra can be found for these dirhams, the dirhams become due, because it is a place of need.
When half a tenth of the diya coincides across all the root categories, in that its value is five camels and fifty dinars or six hundred dirhams, there is nothing to discuss; if the value of the camels differs, then half a tenth of the diya is taken from the other categories, for instance if the value of the camels is forty dinars or four hundred dirhams. According to the apparent sense of al-Kharqi's words, it is valued in camels, because they are the origin; according to the view of others among our companions, it is valued in gold or silver, its value being set at fifty dinars or six hundred dirhams; if the two differ, it is valued among the people of gold in gold and among the people of silver in silver; if it belongs to both the people of gold and of silver, the one upon whom it is due values it in whichever of the two he wishes, because the choice belongs to the offender as to which of the root categories he pays; and it may also be that it is always valued at the lesser of the two for that reason; and if the ghurra cannot be found, one moves to five camels according to al-Kharqi's view, and to fifty dinars or six hundred dirhams according to the view of the others (1).
(1) "al-Mughni" (8/319).