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From:
Tony Cisse <[log in to unmask]>
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The Gambia and related-issues mailing list <[log in to unmask]>
Date:
Thu, 25 Nov 1999 19:04:21 +0000
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Jaajef wa G-L

Just wanted to share some more different Islamic views on Fankanta
(Family Planning), from those put forward by Iman Fatty.

"Allah knows best and may He, Jalla wa Ala, guide all of us to worship
Him in the best manner. Allahumma a'inna ala dhikrika wa shukrika wa
husni ibaadatika".

Yeenduleen ak jaama

Tony

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


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.



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.



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.

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