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.
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 Who_are_we,
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.
About the Author:
A Muslim philosopher, jurist and author, Dr. al-Hibri has taught Who_are_we 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.
Publications and Papers Main Menu
Riffat
Hassan: "Members,
One of Another:
Gender Equality and Justice in Islam”
Maguire: Contraception and Abortion in Islam
Ammar: On Being a Muslim Woman
