Abortion in Different Islamic Jurisprudence

Abortion in Different Islamic Jurisprudence Alireza Bagheri et al. CASE COMMENTARIES Abortion in Different Islamic Jurisprudence: Case Commentaries ALIREZA BAGHERI AND LEILA AFSHAR The Case Fatemeh, a 15 weeks’ pregnant woman, was diagnosed as a carrier of thalassaemia minor, incidentally during an anaemia follow up. She had recently moved to Tehran with her family from her rural hometown in the northern part of the country because her husband Mohsin found a new job in Tehran. The news was terrible for the whole family as her husband was a carrier too. The compulsory thalassaemia test taken before their marriage had shown that Mohsin is a carrier but it was negative for Fatemeh. After having consulted with a clinical geneticist, they agreed to go for an Amniocentesis test to see if the foetus was affected. The consultant advised them to test their two children, Atena their seven-year-old daughter, and Reza their four-yearold son. The tests revealed that Atena is a carrier (thalassaemia minor) and Reza is healthy. The Amniocentesis test showed her foetus with thalessaemia major. After discussing with Mohsin, the couple decided to ask for abortion. Fatemeh and Mohsin are both practising Muslims and are concerned about the Shari’a law on abortion. They consulted with her doctor, who is also a Muslim, on whether they can apply for a legal abortion. • Thalassaemia syndromes are a heterogeneous group of inherited anaemia’s characterised by defects in the synthesis of one or more of the globin chain subunits of the haemoglobin tetramer. Clinical manifestations are diverse, ranging from asymptomatic hypochromia and microcytosis to profound anaemia, which can be fatal in the uterus or in early childhood if untreated. Skeletal changes, hepatomegaly, cardiac dilation, small airway obstruction, enlargement of the kidneys, pigmentory gallstones, and growth retardation are reported to result from the disease (Bernard 2000). © 2 0 1 1 T h e A u t h o r s . A s i a n B i o e t h i c s R e v i e w D e c e m b e r 2 0 1 1 Vo l u m e 3 , I s s u e 4 351–3 65 351 A s i a n B i o e t h i c s R e v i e w D e c e m b e r 2 0 1 1 Vo l u m e 3 , I s s u e 4 • Abortion is the spontaneous or induced termination of pregnancy before foetal viability. The National Center for Health Statistics, the Centers for Disease Control and Prevention (CDC), and the World Health Organization (WHO) define abortion as pregnancy termination prior to 20 weeks’ gestation or a foetus born weighing less than 500g. Despite this, definitions vary widely according to state laws (Williams 2008). Introduction: Abor tion in Islamic Shariʼa For many Muslims, religious beliefs are a major determinant in healthcare decisions and a fundamental part of both personal and social existence in daily life. In Islamic teachings, the importance of inter-humans as well as humandivine relations has been emphasised and Muslims look to these teachings to shape their relationship with others and the Almighty God. Abortion is a very good example to see how these teachings have influenced Muslims’ attitudes and decision-making processes in healthcare. Abortion is a controversial and challenging issue in all societies in the world and all religions have their own perspectives on it. In Islamic jurisprudence, regarding abortion, the main ruling is that abortion is not permitted, except if the mother’s life is in danger and the foetus is in the pre-ensoulment stage. The linkage of abortion to the health of the mother in ruling whether abortion is permissible or forbidden has been accepted in all Islamic jurisdictions. Therefore, most schools in Islam turn to the onset of ensoulment for ruling on abortion and hence, there are disagreements about the onset of ensoulment among Islamic schools; in practice there are different fatwas on abortion. Abortion after ensoulment is not permitted in major Islamic fatwas. However, there is a minority opinion that permits abortion if the mother’s life is in danger, regardless of the date of pregnancy, even after ensoulment. For instance, Hanafi Sunni scholars do not regard abortion as forbidden if the mother’s life is in danger at any stage of gestation, including the last days before the child is born (Sachedina 2009). It should be noted that in the Islamic approach, abortion rulings are not a rights-based approach; in other words, they do not look at the issue as a conflict of rights between a pregnant mother and her foetus. It noteworthy to mention that abortion as a method of population control has not been recognised by any schools in Islam. The issue of birth control and the methods to prevent pregnancy have been discussed in detail by Muslim legal scholars and there is a consensus regarding the permissibility to use these preventive methods for population control. However, like the existing 352 Abortion in Different Islamic Jurisprudence Alireza Bagheri et al. disagreement among Islamic scholars on abortion, there is controversy and disagreement on the permissibility of different types of pregnancy prevention methods. In fact, there are some methods in pregnancy prevention which have been allowed by Islamic Shari’a. These have been emphasised by the Islamic Juridical Council of the Organization of Islamic Conference (OIC), which states: “It is permissible to decide temporarily to postpone having children for the sake of putting distance between pregnancies or preventing conception for a short period. However, all these methods are allowed as long as there is nothing in it that can be construed as aggression toward an existent pregnancy” (1998). When it comes to a foetus with a congenital abnormality or a genetic disease (our case), the opinions are more divided. As Sachedina says, “… in the Islamic tradition, there is no blanket permission to abort a defective foetus. The possibility of discarding a foetus because of physical defects seems to dispense with any notion of even minimal dignity for the zygote, even when there is only a remote potential of life”. Regarding the justification to abort a disabled foetus, he says, “… any deliberate suppression of the life of an embryo poses problems for Muslims, even given the likelihood that a mother will give birth to a diseased or disabled child” (Sachedina 2009). However, as expressed in the commentaries, different schools in Islam hold different views on abortion, from permission to abort a 15-weeks-old foetus with thalassaemia major, to prohibition of abortion in the same case. In some perspectives, the main issue in ruling about such cases would be whether the genetic abnormality is treatable or not, and also what treatment means for a foetus with congenital abnormality. This article presents different major Islamic traditions, namely four Sunni schools of Shafei, Hanafi, Maliki, Hanbali, as well as the Shiite school, from five Muslim countries — Iran, Egypt, Malaysia, Saudi Arabia, and Turkey — on abortion rulings. Perspectives on Abor tion and the Thalassaemia Case In Iran, Shari’a laws based on the Shiite school govern reproductive health and rulings on abortion. This also has a great influence on public attitudes and practice regarding pregnancy, birth control and abortion. After the Islamic revolution in 1979, discussions on abortion can be divided into three major phases. First, based on the Islamic Punishment Act (1983), abortion was limited to the condition in which the mother’s life was in danger and only if the foetus was less than 120 days old. This ruling was referred 353 A s i a n B i o e t h i c s R e v i e w D e c e m b e r 2 0 1 1 Vo l u m e 3 , I s s u e 4 to the onset of ensoulment which is considered 120 days from conception. Whatever be the cause of abortion, the law insisted that the payment of blood money (dieh) is incumbent (Eslami 2005). However, after the time of ensoulment (120 days), termination of pregnancy is prohibited (harām) in all cases, even if the mother’s life is in danger. It should be noted that in minority perspective among Shiite scholars, termination of pregnancy is allowed in certain, very restricted conditions (Gheblei 1998). In the second phase, in 2003, based on the approval of the head of judiciary system, an initiative by the Legal Medicine Organization (LMO) provided a list of 51 maternal and foetal medical conditions, in which therapeutic abortion was permitted. These conditions include 22 maternal disorders listed as medical indications, such as: sever cardiopulmonary disease, oesophageal varices, autoimmune hepatitis, renal failure, uncontrollable hypertension, AIDS, uncontrollable autoimmune diseases which involved major organs, central nervous system tumours, sever dermatological diseases and epilepsy resistant to treatment. The list continues with 29 foetal profoundly debilitating or incompatible with life conditions, such as: haematological disease, i.e., thalassaemia major, oestrogenic disorders, i.e., osteogenesis imperfecta, genetic anomalies, and renal agenesis and CNS malformations. In the third phase, which is a new development on the abortion debate, the Iranian Parliament ratified the “Therapeutic Abortion Act” in 2005, which has been approved by the Guardian Council. This Act authorises therapeutic abortion based on the definite diagnosis of three specialist physicians and approval of the Legal Medicine Organization. The act reads: Therapeutic Abortion is permissible with definite diagnosis of three specialist physicians and approval of the Legal Medicine Organization for cases in which foetus suffers from anomalies or (mental) retardations that causes hardship to mother and also for cases in which mother suffers from a life threatening disease, before ensoulment (four months of pregnancy) with consent of mother and there is no penalty for consulting physician. Violators of this act would be punished based on Islamic Punishment Act. It should be noted that before the Act was ratified, because of the high prevalence of thalassaemia in Iran, a group of physicians requested religious leaders to issue a fatwa permitting abortion in cases of genetic anomalies such as thalassaemia major. Following that request, religious permission, fatwa, was issued by Ayattolah Khamenei, which approved abortion for such anomalies 354 Abortion in Different Islamic Jurisprudence Alireza Bagheri et al. before ensoulment, if the growing foetus or birth of the child caused unbearable hardship (haraj ) for the parents (Khamenei n.d.). In Iran, thalassaemia is a common genetic disease and there are currently almost 20,000 thalassaemia major patients out of a population of 75 million. There is a national programme to control thalassaemia major, in effect since 1997. Part of the national programme is to provide a test for the diagnosis of thalassaemic carriers. According to this programme, men and women who want to get married should go for a series of tests including thalassaemia to see if they are healthy or carriers of this disease (Samavat and Modell 2004). However, if a man and a woman are both carriers, they get advice about their health situation, especially on the possibility of having babies with thalessaemia and a recommendation not to marry each other, but it does not necessarily mean that they cannot get married if they still wish to. Regarding the case of Fatemeh and Mohsin, they have the right to sue the laboratory if they can prove its mistake. As Fatemeh is in Week 15 of her pregnancy and the foetus has not reached 120 days of gestation, according to the new law, based on the existence of two conditions — foetus abnormality (thalassaemia major) and the hardship of having such a baby — Fatemeh can apply for an abortion. It is noteworthy that according to the Act, Fatemeh herself can apply and she does not need her husband’s consent for abortion. She needs to get an approval from three specialist physicians (based on these two existing conditions) and then apply to the legal Medicine Organization of Iran to confirm the diagnosis made by the three specialist physicians. After receiving an approval letter from the Legal Medicine Organization of Iran, she can go to a hospital for an abortion. Commentar y from Egypt Mohamed A. Shahin In Egypt, there are no reliable national data on the incidence of abortion. Some minor local studies, however, suggest that abortion is just as common in Egypt as in countries where abortion is legal, but it is more clandestine and unsafe. One study of 1,300 Egyptian women by the Cairo Demographic Center showed that one-third had tried to terminate their pregnancy (Population and Council 2004). This statistic is comparable with abortion in some developed countries. Restrictive laws make it difficult for researchers to collect data or study the incidence, circumstances, and the impact of abortion on women. In a country 355 A s i a n B i o e t h i c s R e v i e w D e c e m b e r 2 0 1 1 Vo l u m e 3 , I s s u e 4 where abortion is restricted, lack of data is a major challenge to determine whether abortion rates are increasing or declining. Current Ruling on Abortion It can be said that abortion is one of the most controversial issues in Egypt. If it is confirmed in the early period of pregnancy that a foetus suffers from a defect that cannot be treated and that will cause great suffering to the child, a few physician scholars would agree that it is permissible to abort the foetus, provided that the pregnancy is less than 120 days along. However, the majority of scholars do not agree with the abovementioned opinion and hold that abortion is not permitted in such cases. There is almost another opinion that after 120 days, an abortion is not permissible unless the defect or abnormality in the embryo puts the mother’s life in danger. In terms of religious fatwas, a widely quoted fatwa is a resolution of the Islamic jurisprudence council of Mecca Al Mukaramah (the Islamic World League) that issued a fatwa in its 12th session held in February 1990. This allowed abortion if the foetus is grossly malformed with an untreatable severe condition proved by medical tests and decided upon by a committee formed by competent trustworthy physicians, and provided that abortion is requested by the parents, and the foetus is less than 120 days computed from moment of conception. In this regard, the Islamic Code of Medical and Health Ethics Article Sixty-Three states that: “A physician should not cause a pregnant woman to abort, unless when medical considerations call for it, when the mother’s health and life are being threatened. Abortion, however, is permissible before the end of the fourth month of pregnancy when it is definitely established that continued pregnancy involves a risk of a serious harm to the mother. This, however, should be confirmed by a medical committee of specialists of no less than three members, one of whom familiar with the disease for which the termination of pregnancy is recommended”. The committee members should prepare a report in which they specify the definite risk that threatens the mother’s health if the pregnancy continues. When abortion is recommended, the mother and her husband or guardian should be advised of the fact and their written consent should be obtained. All other exceptional cases, including pregnancy resulting from rape, should be referred to the authorities of Islamic fatwa and legislation, and to the laws and regulations in force. However, in Egypt, scholars differ on the permissibility of aborting a foetus less than 120 days’ old: the established opinion of the Malikis and Zahirites maintain its prohibition. Others maintain that it is offensive regardless of the 356 Abortion in Different Islamic Jurisprudence Alireza Bagheri et al. circumstances, and this is the opinion of some Maliki scholars. The opinion of some of the Hanafi and Shafii scholars is that it is permissible if there is an excuse for abortion. It should be noted that the preponderant opinion for fatwa is that abortion is incontrovertibly prohibited whether it is conducted before or after the ensoulment except for a legal necessity. In a different case of abortion, with the existence of advanced biomedical technology which makes it possible to monitor the condition of the foetus in mother’s womb hence the deformities in the growing foetus can also be detected almost accurately, the question is whether it is permissible for a mother to abort her foetus if there is a possibility for the foetus to be born with severe deformities, or inherits chronic disease or genetic disease. Sometimes, decision-making is not easy; for example, there are several conditions of the foetus which classify an unwanted pregnancy, such as mental retardation, Down’s Syndrome, AIDS or thalassaemia major. Abortion is incriminated in the Egyptian law. To answer whether Fatemeh can abort her foetus, there are two relevant fatwa issues by Dar-Al-Ifta Al-Messriyah (an authority in Egypt who is in a position to issue fatwa). These two fatwas are issued by Mofti Al Deyar AlMassriyyah, Dr. Ali Goma Mohamed. First is the fatwa No. 336 with the subject of: the abortion due to foetal deformities in 2004: “The ruling is: Any deformities that may be detected in the foetus are not considered a legal excuse for terminating the pregnancy. This is the case regardless of the degree of deformities, and whether or not it is possible to treat them with medication a surgery or if for any reason, a cure is impossible, except if they pose a risk to the mother’s life. Allah Almighty knows best” (Mohammed 2004). The second is the fatwa No. 387 with the subject of: termination of pregnancy to congenital defects in the foetus which are harmful to the mother, in 2008: “The presence of congenital defects affecting the foetus does not justify abortion, and the life of the unborn foetus is as sacred as that of the newborn who is living in this world among us — they are both alive and they both breathe, move, and are nourished. Likewise, it is prohibited to terminate the life of a retarded child or that of a child born with congenital malformations, as it is also prohibited to terminate the life of a child which medical tests have determined to be malformed. Allah Almighty knows best” (Mohammed 2008). The physicians’ opinion about this case in Egypt also is not in favour of abortion: a large number of scholars believe that it is not permissible to abort a foetus, even if it was proved to have the genetic blood disorder like 357 A s i a n B i o e t h i c s R e v i e w D e c e m b e r 2 0 1 1 Vo l u m e 3 , I s s u e 4 thalassaemia. Physicians in this group believe that foetuses with thalassaemia should not be aborted. They say “… although this puts the family and the children into lots of suffering, but still this is God’s will. Even if other doctors say that the child will live for only 15 years, this is not a proof as many children have lived for more than this age and many of them get married and have their own families”. Commentar y from Malaysia Majdah Zawawi Malaysia is a multicultural and multi-religious country. The legal system is based on the English system where legislations are made in the Parliament and the courts are bound by the system of stare decisis (Alam, Hamzah et al. 2003). This general law is applicable to all citizens. Meanwhile, Islamic laws and Islamic Courts are also present to cater to the personal needs of the Muslims in the country (BadrolAfendi 2007). Abortion in itself is a crime in Malaysia. The main law governing abortion is the Penal Code (Act 574), whereby section 312 makes abortion an offence unless it was to save the life of the mother. The section reads: Whoever voluntarily causes a woman with child to miscarry shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both; and if the woman is quick with child, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine. Explanation — a woman who causes herself to miscarry is within the meaning of this section. In 1989, this section was amended by adding an exception to section 312 which mentions: Exception — This section does not extend to a medical practitioner registered under the Medical Act 1971 [Act 50] who terminates the pregnancy of a woman if such medical practitioner is of the opinion, formed in good faith, that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or injury to the mental or physical health of the pregnant woman, greater than if the pregnancy were terminated. This exception allows abortion if a medical practitioner was of the opinion, formed in good faith that the continuance of the pregnancy would risk the life of the pregnant woman or cause injury to the mental or physical health of the pregnant woman, greater than if the pregnancy was terminated. This 358 Abortion in Different Islamic Jurisprudence Alireza Bagheri et al. would mean that abortion would be allowed if the medical practitioner can show that without an abortion, the life of the mother is imperilled, or that the abortion was necessary to preserve her physical or mental health. Punishments for violating section 312 depend on the existence of consent of the woman and the stage of the pregnancy. The table below summarises the types of punishments provided under the Code. STATUS STAGE OF PREGNANCY PUNISHMENT 1. Woman consented — Section 312 Not “quick” with child (below 120 days) 3 years’ imprisonment and/or fine 2. Woman consented — Section 312 “Quick” with child (more than 120 days) 7 years’ imprisonment and/or fine 3. Doctor performing on consenting woman — Section 312 Not “quick” with child (below 120 days) 3 years’ imprisonment and/or fine 4. Doctor performing on consenting woman — Section 312 “Quick” with child (more than 120 days) 7 years’ imprisonment and/or fine 5. Doctor performing on nonconsenting woman — Section 313 Either “quick” with child or not 20 years’ imprisonment and fine 6. Doctor performing on nonconsenting woman resulting in death — Section 314 Either “quick” with child or not 20 years’ imprisonment 7. Doctor performing on consenting woman but resulted in death — Section 315 Either “quick” with child or not 10 years’ imprisonment This position is applicable to all Malaysians. For Muslims in particular, the National Fatwa Committee of Malaysia has issued several fatwas relating to termination of pregnancy due to a defect in the foetus and termination of pregnancy due to the foetus being diagnosed with thalassaemia major. According to the 26th Conference of the Malaysian National Fatwa Committee of the Islamic Religious Affairs of Malaysia held from 7–8 March 1990, Muslims are prohibited from terminating a pregnancy if there is a genetic or birth defect in the foetus unless the defect is so severe that it may harm the life of the mother. Meanwhile, the other fatwa issued by the National Fatwa Committee in its 52nd Conference held on 1 July 2002 decided that in cases where the foetus is found to have thalassaemia major, the following are the options given to the couple: 359 A s i a n B i o e t h i c s R e v i e w D e c e m b e r 2 0 1 1 Vo l u m e 3 , I s s u e 4 1. It is makruh (disliked) to terminate the pregnancy before the pregnancy reaches 40 days if the pregnancy does not harm the mother and it is consented to by both the husband and the wife; 2. Termination of a pregnancy is permissible if the foetus is suffering from a defect and can harm the life of the mother and if it is done before 120 days after the pregnancy has been established; 3. Termination of a pregnancy is prohibited after 120 days unless it is done to protect the life of the mother due to severe deformity of the foetus. The Malaysian National Fatwa Committee seems to adopt the majority view of the jurists that prescribes to the view that ensoulment occurs 120 days after pregnancy is established (Hussain 2003). In Fatemeh’s case, she only discovered the situation during her 15th week of pregnancy. However, if she abided by section 312 of the Malaysian Penal Code, and obtained the doctor’s verification that an abortion was necessary to protect her mental and physical well-being, then she could have a legal abortion. From the Islamic perspective, she would need to ensure that the termination is done before 120 days and obtain verification that the foetus is disfigured or ill and can harm her life if born. Commentar y from Saudi Arabia Mohammed Albar In Saudi Arabia, abortion is allowed only if the continuation of pregnancy would endanger the life or health of the expectant mother, or if there is a proven serious congenital anomaly in the embryo or foetus. The performance of abortion should be done prior to the elapse of 120 days from the start of conception, which is considered the time of ensoulment according to the Hadith of the Prophet. However, according to the fatwa issued by the Islamic Council of Jurists of Mecca in 1990, if the life of the expectant mother is endangered, abortion or preterm delivery can be performed at any time of pregnancy. The decision with clear medical indication for abortion should be agreed upon by three specialist physicians (1990; Shaltoot 1998). It should be noted that before the fatwa of the Council of Islamic Jurists of Mecca which extended the time for abortion prior to 120 days, the official fatwa in Saudi Arabia allowed abortion only in the first 40 days of conception. However, many Islamic jurists are still more stringent and would allow abortion only prior to 40 days. More conservative jurists like the Maliki School and Imam Gazali (from the Shafei school of jurisprudence) do not 360 Abortion in Different Islamic Jurisprudence Alireza Bagheri et al. allow abortion at any time of pregnancy except to save the life of the expectant mother (AlBar 1985; AlGhazali n.d.). As for this hypothetical case of Fatemeh, the premarital testing for Fatemeh first showed she was not a carrier of the thalassaemia gene, and she hence married a carrier. Later it was found that she was really a carrier, and her foetus was already affected with thalassaemia major. The laboratory or physician should take the responsibility for this horrendous mistake by compensating the family, and even pay for the treatment which may include bone marrow transplantation. According to the principle of “no harm or harassment should be inflicted” (la dharar wa la dhirar), Islamic teachings imply compensation for tort or any harm inflicted to an individual, therefore the medical laboratory should compensate Fatemeh and her affected child for their false negative test of thalassaemia. They should provide any available treatment of thalassaemia for her children. Moreover, there is no question of abortion because thalassaemia can be treated and there is available therapeutic modality for the patients. In fact, in cases of abortion on demand for a foetus with congenital abnormalities or genetic disease, the fatwa requires that no treatment should be available in order to allow abortion. Based on the fatwa issued by the Council of Islamic Jurists of Mecca 1990, it allows abortion of serious congenital malformations provided that it has been agreed by a medical committee of specialist doctors, and prior to 120 days computed from conception (134 days from the woman’s last menstrual period) only if there is no available treatment for the foetus or baby. Therefore, as thalassaemia is a treatable disease, Fatemeh will not have a valid case for abortion. However, some opinions may differ, according the gravity and seriousness of the case. Commentar y from Turkey Sahin Aksoy Abortion is one of the most popular ethical problems as well as common medical practices in Turkey. According to the law, pregnancies earlier than 10 weeks can be terminated by a gynaecologist or a trained general practitioner upon the potential parents’ request, provided that the termination of pregnancy does not pose any medical risk to the health of the woman. According to the law, “Pregnancies later than 10 weeks cannot be terminated” and reads: “In this situation, if foetus suffers from one of the diseases 361 A s i a n B i o e t h i c s R e v i e w D e c e m b e r 2 0 1 1 Vo l u m e 3 , I s s u e 4 listed in Form-2, pregnancy can be terminated by a gynaecologist. The medical condition shall be reported by a gynaecologist and a medical specialist of the related disease and laboratory results shall be attached to the report”. Referring to the Form-2, thalassaemia syndromes fall under the title of blood diseases, which means the law allows the termination of pregnancy in cases of thalassaemia major. Although this is the case medically and legally in Turkey, due to the deep roots of religion, namely Islam, in public minds, individuals seek religious opinion on abortion in Turkey. The great majority of Muslims in Turkey are Sunni, which comprise 85–90% of the population and most of them are from the Hanafi branch of Sunni school. As a secular country by Constitution, Turkey has a governmental institution called The Presidency of Religious Affairs of the Republic of Turkey (PRA) which issues decrees on various issues, including medical ones. This is open to criticism but the ruling fatwa in Turkey is mostly influenced by Hanafi branch of Sunni school, though it came to be changed in recent years and Shiite views are also considered. According to the PRA, abortion is makruh (disliked) at any time after conception. However, it can be allowed until Day 120 (around 17 weeks) by the decision of a specialist physician and the consent of the potential parents, if the continuation of pregnancy poses any risk to the life and health of the woman or if the baby has a medical condition which is “not compatible” with life. After 17 weeks, namely Day 120, it is equated to killing a human being, which is declared as haram (forbidden). The decision of religious authorities in Turkey is based on the assumption of the time of the ensoulment of embryo. From the verses of Qur’an and the ahadith (saying of Prophet Muhammad) (Al-Bukhari n.d.), it was interpreted that ensoulment takes place on Day 120 after conception, and the foetus morally acquires full human status. Although this is the “official” religious opinion on ensoulment, the authors’ opinion is that: going back to the verses and ahadith mentioned above, ensoulment takes place around 50 days (8 weeks) rather than 120 days after conception (Aksoy 2005). Although this interpretation by the author was made under the light of the Hanafi branch, that ensoulment takes place in around 50 days is not “categorically” supported by any of the branches in the Sunni school of Islam. All in all, if this case were to take place in Turkey, the couple would first of all sue the clinic or the laboratory which gave the false negative result for Fatemeh. Later, they would most probably be advised by the physician to terminate the pregnancy. If they were concerning Muslims, those were mentioned as such, they would consult the possibility of abortion with a clergyman (imam — a Muslim priest) besides a physician. Depending on the 362 Abortion in Different Islamic Jurisprudence Alireza Bagheri et al. imam’s advice, which might vary from a very liberal to a very conservative one, Fatemeh and Mohsin would make a decision. However, based on personal experiences and observation, it could be said that an average “practising Muslim couple” in Turkey would not terminate this pregnancy. Conclusion The study shows a diversity of opinions on abortion among Islamic traditions in these five Islamic countries. The commentaries elaborate how different schools in Islam hold different views on abortion, from permission to abort a 15-weeks-old foetus with thalassaemia major to prohibition of abortion in the same case. However, the main ruling on abortion, in Islamic jurisprudence, is that abortion is generally forbidden, except if the mother’s life is in danger and if the foetus is in the pre-ensoulment stage. All Islamic schools have accepted the linkage between abortion and the health of the mother in ruling fatwa. However, different jurisdictions put different conditions for exceptional cases in which abortion is allowed. In a jurisdiction, the mother’s life is an important factor to permit abortion; in another one, the mother’s life along with the presence of foetus’ congenital disease justify abortion; and another perspective focuses on whether the congenital disease is treatable or not to decide whether abortion is allowed. In a country like Iran, another factor such as the hardship which could be imposed on the pregnant woman is also a determinant factor to allow abortion. In Egypt, according to a fatwa, the presence of a congenital disorder affecting the foetus does not justify abortion, regardless of the degree of abnormality, and whether or not it is treatable with medication or surgery or if for any reason, the congenital disease is not treatable. The only exception in which abortion is allowed is the risk to the mother’s life. In both countries, Iran and Saudi Arabia, although abortion is allowed if the foetus is under 120 days’ old and suffers a serious congenital disease and the mother’s life is in danger, in Saudi Arabia, however, it is limited to cases in which there is no treatment for the foetus’ congenital disease. The Iranian law lacks this condition and that is why the thalassaemia case presented here can be aborted in Iran but not in Saudi Arabia. Similar to Iran, in Malaysia, Fatemeh can also apply for a legal abortion according to the Malaysian Penal Code. In Turkey, according to the law, pregnancies earlier than 10 weeks can be terminated by a gynaecologist or a trained general practitioner upon the parents’ request, but pregnancies older than 10 weeks cannot be terminated, 363 A s i a n B i o e t h i c s R e v i e w D e c e m b e r 2 0 1 1 Vo l u m e 3 , I s s u e 4 unless the foetus suffers from one of the diseases specified by the authority. However, the commentary suggests that an average “practising Muslim couple” in Turkey would not terminate the pregnancy with thalassaemia major. References Aksoy, S. (2005) Making Regulations and Drawing Up Legislation in Islamic Countries under Conditions of Uncertainty, with Special Reference of Embryonic Stem Cell Research, Journal of Medical Ethics, 31, 399–403. Alam, S., A. Hamzah, et al. (2003) An Introduction to the Malaysian Legal System, Fajar Bakti Sdn. Bhd. AlBar, M. (1985) Mushketal Al Ijhadh (The Problem of Abortion), Saudia Publishing House, Jeddah. Al-Bukhari (n.d.) al-Sahih, Kitab Bad’ al-Khalq. AlGhazali, M (n.d.). Ihya Oloom Al Dein, Dar Al Maarif, Beirut. Badrol Afendi, N.H.M. (2007) Pemakaian Doktrin Ikatan Duluan, Dewan Bahasa dan Pustaka. Bernard, G., ed. (2000) Thalassemia Syndromes, Hematology Basic Principles and Practice, Churchill Livingstone, Philadelphia. Eslami, S.H. (2005) Ethical Approaches to Abortion: A Case Study, Journal of Reproduction and Infertility, 6 (4), 321–42. Hussain, N. (2003) Abortion and Causing Miscarriage (al-Ijhad: An Islamic Perspective), Harun M. Hashim Law Centre. Iranian Blood Transfusion Organization (2011) Available at http://www.ibto.ir [accessed 14 August 2011]. Islamic Jurist Council of Islamic World Leaque (1990) The 14th Resolution on Aborting a Congenital Malformed Fetus, Makkah Al Mukaramah. Gheblei, K. (1998) The Conderation of Jurisprodence and Legal Rules in Case of the Abortion, Quarterly Journal of Legal Views, 9, 5–45. Khamenei, A. (n.d.) Fatwas. Available at http://www.leader.ir/ [accessed 14 August 2011]. Mohammed, A.G. (2004) Fatwa No. 336, Subject of: The Abortion Due to Fetal Deformities, Dar Al-Ifta Al-Messriyah. (2008) Fatwa No. 387, Subject: Termination of Pregnancy to Congenital Defects in the Fetus Which are Harmful to the Mother, D.-A.-I. Al-Messriyah. Organization of Islamic Conference (1998) The Islamic Juridical Council of the Organization of Islamic Conference, Fifth Session, Kuwait. Population Council (2004) Lessons From Introducing Post-Abortion Care in Egypt, Population Briefs, 10 (3). Sachedina, A. (2009) Islamic Biomedical Ethics, Principles and Application, Oxford University Press, New York, 126. (2009) Islamic Biomedical Ethics, Principles and Application, Oxford University Press, New York, 125. Samavat, A. and B. Modell (2004) Iranian National Thalassaemia Screening Programme, BMJ (Clinical Research Ed), 329 (7475), 1134–7. 364 Abortion in Different Islamic Jurisprudence Alireza Bagheri et al. Schorge, J.O., J.I. Schaffer, L.M. Halvorson, B.L. Hoffman, K.D. Bradshaw, and F.G. Cunningham, eds. (2008) Section 1, Benign General Gynecology, Chapter 6. First-Trimester Abortion, Williams Gynecology, The McGraw-Hill Companies, Inc., New York. Shaltoot, M. (1998) Al Fatwa, Dar Al Shorooq, Cairo. The Malaysian Penal Code, Act 574. The Noble Qur’an Al-Mu’minun; 23 : 12–14. The Noble Qur’an As-Sajdah; 32 : 7–9. 365