Source : ShafiiFiqh / 22 Aug 2014

Question:

As salamu alaikum, would you mind answering about an abortion? Is it permissible before 120 days of pregnancy? Can you give information about the mu’tamad position of the Shafi school and what Ibn Hajar said about it in his “Tuhfah” about it?

Answer:

As salamu alaykum wa rahmatuLlah wa barakatuHu,

The issue of when a pregnancy may be aborted is a topic on which the ulama differed. In regards to the documented mu’tamad position of the Shafi’i School, the case generally discussed seems to be a woman using an abortifacient.

There is a difference of opinion between Ibn Hajar al-Haytami and Shams al-Din al-Ramli:

In Tuhfah v. 7, p. 186, Ibn Hajar assessed that after the nutfah has made istiqrar it is unlawful.

In Nihayah v. 8, p. 442-43, Ramli assessed that it is only unlawful after the ruh is blown into the fetus; additionally, before that point it is permissible. He stated, “al-rajih tahrimuhu ba’da nafkh al-ruh mutlaqan wa jawazuhu qablahu.”

In his Hashiyah on Nihayah v. 6, p. 182, Shabramallisi observed Ramli’s presentation of the passages and stated, “wa haka al-sharih khilafan fi kitab ummahat al-awlad wa atala fihi wa zahir kalamihi thamma i’timad ‘adam al-hurmah.” In Ianat al-Talibin v. 4, p. 247, Abu Bakr Shata related this difference of opinion too; furthermore, he mentioned the passage in which Ramli stated his preferred opinion as, “al-rajih tahrimuhu ba’da nafkh al-ruh mutlaqan wa jawazuhu qablahu.” Regarding the passage, “amma halat nafkh al-ruh fa ma ba’dahu ila al-wad’…,” which Ramli mentioned after “yuqalu,” it is weak.

The 120-day timeline would be on account of the ruh being blown into the fetus at that time, as Ramli stated above.

In Nihayah’s text, the citations from Zarkashi and Furati indicate to the discussion covering the oral use of an abortifacient. In his Hashiyah v. 8, p. 442, Rashidi further emphasized that Furati’s discussion is on the topic of using an abortifacient. The citation from Abu Ishaq al-Marwazi is as well on that topic as related by Ibn Hajar in Tuhfah v. 9, p. 41.

Perhaps one might infer that these statements could by extension be applied to a surgical abortion. However, it should be noted that in Sharh al-Rawd v. 1, p. 327, Shaykh al-Islam stated that aborting the nutfah [note, the earliest stage of pregnancy] is not permitted; furthermore, he expressly mentions the case of an abortifacient and other methods too. He stated, “la yajuzu ilqa’ al-nutfah bi dawa’in aw ghayri hi.” Shaykh al-Islam’s view here aligns better with Ibn Hajar’s in Tuhfah.

Allah knows best.