Quote from Quwamdeen Durojaiye on January 7, 2023, 2:55 pm

Question: Is it permissible if the woman's life is at risk to abort the baby (post-ensoulment stage)?

 

Hanafi scholar say that you cannot invoke the law of necessity in this case.

Ibn Abideen's argument is that the death of the mother is probable (different levels) but it is not certain. If you abort the child then the death of the baby is certain.

You cannot resort to law of necessity. There are no lesser or greater harms, the harms are equal.

If you take a look at all four madhabs, they do not allow for the idea of saving the mother by taking the life of feutus after ensoulment. Sheikh Ibn Uthaymien was also of this opinion.

There is evidence to show that we can distinguish the two, may be we can give preference to the mother over the feutus.

Analogy: You have two children who are starving to death and you have food enough to feed only one of them, what would you do? If you give half, you will not have enough sustenance for one of them? It would be a hard decision to pick one?

It is not exactly analogous to the woman who is pregnant. In cases like this you look for evidence that would give preference to one over the other?

Evidence: The feutus is not a fully formed individual like the mother

Evidence: Mother is already established, she is somebody's mother, somebody's wife, somebody's child, if you allow her to die, you are going to bring harm to many more individuals, then if you simply allow the feutus to die.

Evidence: Parents have some rights over children. They have precedence over the children. The child cannot get precedence over the parents. If for some reason, a father kills his son, there is no death penalty. So we could give preference to the mother over the feutus.

Hadith of the prophet: A man came to the prophet and said my father wants to take my wealth, the prophet said, you and your wealth belong to the father.

If two individuals are not related then you cannot have preference for one over the other. But in case of relationships, parents have preference over the children.

 

These evidences are given by scholars to allow mother to abort feutus after the ensoulment in case of high risk factors.

Hayat kabarul Iman of Saudi Arabia: Abortion is haraam unless specialized and trustworthy doctors agree that leaving the feutus in the womb would cause her death then it becomes permissible to abort. This can only be done after all other steps have been done to protect her life. And this is done in concordance with the principle of avoiding the greater harm.

ibn Uthaymeen, contemporary scholar, was of the opinion that you cannot abort the feutus even in the problematic cases.

Case: In the fifth month of pregnancy, the amniotic fluid leaked and the woman became sick. If the feutus is left inside, it would die and decompose, which would poison the mother and put her at risk. Should abortion be done in this case?

The feutus is not going to survive but leaving the feutus is going to cause harm to the mother.

If the feutus is going to die and cause harm to the mother, then it is permissible to abort the feutus.

Case: Woman just finished chemotherapy and she was in remission. She was advised not to get pregnant for three years because of the risk of relapse. Hormones produced during pregnancy could cause the cancer to relapse and the treatment would need to be severe. Today she discovered she is pregnant for more than 40 days. And very likely the drugs she takes for cancer have deformed the feutus.