Rights of the Fetus in Islam

29/04/2024| IslamWeb

Every now and then, self-styled proponents of human rights raise an outcry accusing Muslims of not respecting human rights. This is a lie fabricated against Allah, His Messenger, Islam, Muslims and all humanity. Hence, we have to initiate a positive defense of our pure religion by clarifying the established facts in terms of the rights of living beings under Islamic Sharee'ah (Islamic law). Islam grants rights to plants, animals, human beings and even inanimate objects. With the permission of Allah The Almighty, we will shed light on these rights, starting with the right of the fetus under Islamic Sharee'ah. 

1-      The right of having an established documented lineage: Islam legislated for the fetus the right to have an established single origin by legislating marriage and making it the sole way to have offspring. Allah The Almighty Says (what means): {Your wives are a place of sowing of seed for you.} [Quran 2:223] Thus, Allah The Almighty likened the womb to the place of planting and likened sperm to the seed.

 

Having witnesses is one of the conditions of the marital contract in Islam. In this way, the right of the fetus to have two known established documented parents is guaranteed.

 

Islam also considers announcing the marriage as a distinguishing factor between marriage and fornication. This lets everyone know about the marriage and the source of the fetus and offspring. Moreover, Islam legislates ‘Iddah (waiting period) to make sure that there is no fetus in the womb at the time of divorce or death of the husband. Accordingly, the fetus’ right of having a clear and known lineage is preserved and this will not be a subject of dispute between the former husband and the new husband.

 

There is decisive prohibition for unlawful sexual intercourse. Allah The Almighty Says (what means): {The fornicator does not marry except a [female] fornicator or polytheist, and none marries her except a fornicator or a polytheist, and that has been made unlawful to the believers.} [Quran 24:3]

 

Islam decreed corporal punishment for fornicators and adulterers (in public) to be witnessed by a group of believers. Allah The Almighty Says (what means): {And let a group of the believers witness their punishment.} [Quran 24:2] Thus, the right of the fetus to have known lineage and paternity is well guaranteed.

 

This right is lost in societies which allow friendship between a man and a woman, adultery, unfaithfulness, the right to experiment and pregnancy out of wedlock.

 

2-      The right to a pure prenatal environment: The uterus is the first environment where the fetus grows. Islam protects this environment and surrounds it with a great barrier and a solemn covenant between man and woman and no one can enter the boundary of this environment and plant except the husband. Islam prohibits adultery which leads to polluting this environment with sexual diseases. Islam protects the woman from intoxication, drugs and harmful food. Allah The Almighty Says (what means): {O you who have believed, eat from the good things which We have provided for you.} [Quran 2:172] It is forbidden under Islamic Sharee'ah to eat dead animals, blood, pork and unlawful food. Avoiding these things ensures a clean uterine environment, free from pollution and corruptive elements. In order to preserve the woman’s body and her private parts, it is forbidden for her to intermix with non-Mahram (marriageable) men in order to be away from mixing with immoral people. All this protects the fetus and maintains a pure prenatal environment.

 

3-      The right to have a strong genetic constitution: It is scientifically proven that the fetus is formed from the integration of the husband and wife's chromosomes which carry the genes that control the hereditary characteristics. It is known that marrying non-relatives is better than marrying relatives. The Prophet, , said: “Marry non-relative women so that your offspring will not be weak.” The Prophet, , ordered the suitor to look at the woman whom he proposes to before marriage. In this way, he guarantees for the fetus that his mother is free from hereditary defects. He also once commanded one of his Companions to look at the eyes of the girl whom he wanted to marry because there was a defect in the eyes of her family. Hence, the fetus is protected from hereditary diseases.

 

 

4-      The right to have a sound creed: Islam instructs both man and woman to choose a righteous partner and to shun an immoral and polytheist spouse. Allah The Almighty Says (what means): {And do not marry polytheistic women until they believe. And a believing slave woman is better than a polytheist, even though she might please you.} [Quran 2:221] Accordingly, this guarantees for the fetus before its birth a sound creed and religion which cannot be spoiled by the unsound creed of the father or the mother.

 

5-      The right to enter Paradise: Islam keeps for the fetus its right to enter Paradise and be far from Hell. Allah The Almighty Says (what means): {O you who have believed, protect yourselves and your families from a Fire whose fuel is people and stones.} [Quran 66:6] A pious and religious father brings up his children according to religious teachings and keeps them away from the ways of Satan. This ensures a righteous, believing family and a social upbringing among believers.

 

6-      The right to equality: Islam decrees that it is Allah The Almighty Who grants male or female children. Hence, the fetus whether it is a male or female is one of the favors of Allah. Accordingly, both of male and female are equal and they are not responsible for their gender.

 

7-      The right to have a proper social life: Islamic Sharee'ah adopts the principle of social equality among the fetuses. This guarantees a socially harmonious family for every child where there is no haughtiness of any member over the other. Accordingly, the social and familial breakdown and disunity will decrease and the family’s social and psychological structure will be strengthened. Hence, the fetus will be protected and nurtured in a proper social environment.

 

8-      The right of preserving the fetus’ life: Islamic Sharee'ah decrees the right to life for the fetus. It is impermissible under Sharee'ah to kill the fetus or to abort it without a Sharee'ah- approved reason stated by the scholars of Fiqh (Islamic jurisprudence), doctors and social experts. This right is guaranteed by the Sharee'ah whether the aggressor is the mother or the father or any other person. Islamic Sharee'ah excludes the killer from having a share in the inheritance of the fetus which is killed with the intention of taking over its inheritance. Accordingly, the right of life of the vulnerable fetus is preserved.

 

The majority of scholars are of the opinion that it is unlawful to abort the fetus and no one has the right to take away its life. The fetus’ right to life is owned by the Granter of life, Allah The Almighty. Doctors and experts in embryology support this opinion because the embryo is a living being since it was a sperm-drop mixture. Therefore, it is impermissible to kill it or transgress against its life.

 

9-      The right of a healthy uterine environment: Islam obliges the parents to take care of their fetus because they are responsible for it and they will be asked about their subjects (on the Day of Judgment). Islam also stipulates financial maintenance and social protection for the pregnant woman. This implicitly guards the fetus’ right for food, warmth and security. Allah The Almighty Says (what means): {Lodge them [in a section] of where you dwell out of your means and do not harm them in order to oppress them. And if they should be pregnant, then spend on them until they give birth.} [Quran 65:6] Hence, the husband must financially support the woman if she is pregnant when he divorces her. This includes food, housing, clothing, social protection, medicine, and so on. All of this protects the fetus from nutritional or psychological disorders. Islam also protects the woman from working outside the home unless there is a valid necessity under Sharee'ah.

 

10- Keenness on safeguarding the fetus’ interest: Out of preserving the interest of the fetus, Islamic Sharee'ah permits the pregnant woman to break her fast during Ramadan. According to a Hadeeth (narration), “The Messenger of Allah permitted the pregnant and suckling woman to break her fast.” [At-Tirmithi]

 

11- Postponing corporal punishment of a pregnant woman for the interest of the fetus: Islamic Sharee'ah defers the application of punishment on the woman who became pregnant from adultery until she delivers. The Prophet, , said to the Ghaamidiyyah, a woman who confessed to committing adultery and sought the application of corporal punishment upon her: “Go until you deliver your pregnancy and then come back!” Hence, the fetus is protected and does not bear the sin of its mother.

 

12- Preserving the fetus’s financial rights: Islam preserves the fetus’ right to inheritance if it is born alive. Scholars of Fiqh state that the expected baby is one of the heirs and its right should be preserved until delivery. If it is born alive, then, it takes its share and the inheritance is distributed on the basis of retaining the largest possible portion for this expected baby. In other words, what is more beneficial for the baby is taken into consideration. It is also valid (in Islam) to bequeath property to the fetus.

 

The pioneering position of Islam in recognizing human rights

 

The above stated rights are only a small sample of the fetus’ rights in Islam. Such rights were not known by modern civilization until 1959 C.E. when the United Nations declared the rights of the child which stated that the child and his mother should have the necessary care and protection before delivering him. In 1966 C.E., the United Nations agreed to special care before and after delivery and to grant the pregnant woman paid leave.