Furu' of Abortion:
Down Syndrome abortion
at the last minute?

By Shaykh Muhammad Afifi al-Akiti

“There is a woman who is four months pregnant. The baby has been tested and has Downs Syndrome. The woman would like to get an abortion. Sidi, it is so easy to say "tawakkul `ala llah" here.

I am very sorry to make this urgent, but I think the case warrants it.”

Alhamdulillahi alladhi amarana li-tawakkuli 'ala Allah innahu yuhibbu l-mutawakkilin wa amaddana bi-ma'unatihi al-mutawaliyah wa-s-salatu wa-s-salamu 'ala sayyidina Muhammad bin 'Abdullah wa-'ala alihi wa-sahbihi wa-man walah wa-la hawla wa-la quwwata illa bi-Llahi!

Allahumma hidayatan li-s-sawab!

I just got back from the University and am reading your message as I type. There is unfortunately one flaw in your question, and that is, you did not specify whether "four months" refer to the Hijri or Gregorian months, and what is worse is that considerations of mas'ala of this nature do not use months as the unit of measurement but rather days or weeks! I will therefore try my best to convert the "four months" to days/weeks.

Assuming that tonight in England (and only in England following the local hilal here), Thursday the 7th of Dhu l-Hijja, is the fourth Hijri month of her pregnancy, then she will have been pregnant for 117 days (29 + 29 + 30 + 29). What is more likely in today's world, however, is that the "four months" will refer to the Gregorian one, and if that is so, then tonight in England is Wednesday the 28th January, four month ago today means that she will have been pregnant for 122 days (30 + 31 + 30 + 31).

(For future reference, it would have been easier if we all know the exact number of weeks or preferably days of the pregnancy, rather than using months because of the ambiguity it undoubtedly causes.)

It goes without saying here, that if the woman has been pregnant for 122 days today, it will, without doubt, according to our school be Haram for her to abort the child because she will have passed the Nafkh point of 120 days. In any case, even if we were to allow her some leeway with the number of days (by substracting one, two or even three days, for example), I am afraid that the legal ruling in this particular case will still be Haram for her to carry out an abortion owing to the following legal reasons:

(1) The most impotant factor in this particular case and one important consideration to be taken into account for those wishing to carry out an abortion is that the woman must know with certainty [yaqin] the first day of her pregnancy. In other words, in order to consider abortion in the first place, the woman must be sure exactly how many days she has been pregnant (i.e., the number of days that have passed since the day of conception, meaning the night/day that she is able to trace back to when the sexual intercourse took place, not the biological knowledge of when the sperm comes into contact with the ovum). This consideration becomes especially critical if she has been "four months" pregnant, which means that by today, she is either very near (in my estimation, 2 days before) the 120th day mark when abortion will be unqualifiedly Haram or she will have passed it by today. It seems to me that the wording "four months" from the question is an indication that she does not know the exact length (in days or weeks) of her pregnancy and that her knowledge of this is based on an estimate [zann].

!!!Tanbih for students!!! The reason why a woman must know with yaqin is to safeguard against the risk of any uncertainty and shubuhat of killing a 'living' [ruhi] child, especially in cases such as this when the decision to abort is about to be taken very near the 120th day of pregnancy when on that day the angel responsible for the womb [al-Muwakkal bi-l-rahim] 'blows the breath of life' [Nafkh al-Ruh] into the lifeless foetus. For after the Nafkh al-Ruh, the child will be legally 'alive' and that there will be further details [tafsil] for the jurist to consider. One might be liable to serious legal consequences if the abortion is carried out after the 120th day; depending on whether the child is born dead or alive, whether it is a girl or a boy and along with other details, it will determine whether this will constitue a crime [jinaya], and if so, whether any reparation [diya] and the resulting compensation [ghurra] has to be paid or only expiation for killing [kaffara al-qatl] is required, how much for, and who will be liable for this, and even whether a janaza prayer has to be performed for the child and so on and so forth.

If, on the other hand, the decision to abort were to be taken on the 90th day of pregnancy, for example, then the consideration of knowing the length of one's pregnancy will obviuosly be less pronounced.

Furthermore, when practical considerations are taken into account, if we suppose the woman is in England, for example, it will take her a minimum of seven to ten days from the day she decides to carry out the abortion for the state hospital to admit her for the operation, and if that is so, it would certainly have been too late for her today, whether after having been pregnant for four Islamic or Christian months.

(2) I have been advised by a medical expert that at "four months" (assuming that she is following the Gregorian calender), she will be at the mid-stage of pregnancy (technically, the pregnancy is in the second trimester), and there is an increase risk to the mother, either surgically or psychologically, if abortion is performed.

(3) There are degrees of Down Syndrome: from the milder to the extreme type. (The point being, the milder type might not constitute an emergency or Darura in this case and thus lacking the 'udhr [legal excuse] for abortion.) According to this medical expert, we will only know the severity of the Syndrome once the baby is born (or in certain cases, when the pregnancy is in its very late stage (i.e., in the third trimester), in which case, it will have been irrelevant for us since it will have passed the 120th day mark.

Otherwise, barring all of the above legal considerations, and if, with yaqin, the pregnancy is still less than 120 days (i.e., exactly 120 days after the day of conception), and if the abortion can be carried out before the 120th day since conception, then, even when the abortion is done on the 119th day, for instance, the ruling would be, according to the Shafi'i school, Makruh Tahrim, following the Qawl of Imam al-Ramli (may Allah be pleased with him!; and even so, this is taking a rukhsa [dispensation]). (And the hukm is Makruh Tahrim (and not Makruh Tanzih, for example) because of its proximity to the Haram point. The ruling on abortion according to this position is an accumulative one: the closer one gets to the 120th mark the more "Haram" it becomes, so to speak.) ['ibara in al-Ramli, Nihaya, 8:442-3].

Wallahu a'lam bi-l-sawab wa-l-ahkam.

I am very sorry if I have been in any way unhelpful to the lady.

Hasbiyallahu wa-ni'ma l-wakil, wa la hawla wa la quwwata illa bi-Llahi l-'aliyyi l-'azim!

al-'abd al-faqir,

M. Afifi al-Akiti ©,
Oxford
Thursday night, 7 Dhu l-Hijja 1424 or
Wednesday evening, 28 I 2004.



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