Pregnancy

Islam allows the preventing of pregnancy, but does not allow its termination. However, the problem arises in defining the beginning of pergnancy from the shari'ah point of view. Before we look at various methods of birth control, we must first define the beginning of pregnancy; and only then will we be able to say which method is permissible and which is not. My research has failed to find a discussion in the classical fiqhi books on the shari'ah definition of pregnancy. Even the present mujtahids have not discussed it. I intend, by putting my trust in Allah, to briefly study the issue in light of the scientific explanations and try to arrive at a shar'i definition of pregnancy.

Before I proceed further, it is necessary to explain the criteria of defining various things and issues in Islamic laws. There are three possible criteria for definitions of things and concepts in fiqh: shar'i, 'urfi and 'ilmi. (1) If something is clearly defined in the shari'ah, then it is known as the shar'i definition; for example, the definition of the word "salat" as the ritual prayer consisting of specific actions and recitations. (2) 'Urf means conventional, common tradition. 'Urfi definition means a definition acceptable to the common people without any scientific or shar'i precision. (3) 'Ilmi definition means a definition presented by science; for example, the definition of pure water as H2o, a liquid compound consisting of 2 part of hydrogen and 16 of oxygen, or the definition of the beginning of day as day as the astronomical twilight.1

If the shari'ah defines something, then we must follow the shar'i defintion. But if it is silent on definition of certain things, then should we follow the 'ilmi definition or the 'urfi definition? Anyone who is familiar with the shari'ah will agree with me that in absence of a shar'i definition, one has to follow the 'urfi definition. One has to go by the common perception of things, not the scientific perception. For example, when the shari'ah says that the water for ritual ablution must be pure (mutlaq), does it mean scientifically pure? Certainly not! Otherwise, the running water in this part of the world is not scientifically pure, it has some purifying chemicals in it, for example, flouride. The shari'ah says that such water will still be classified as pure unless the common people can sense (without the help of a scientific lab) the difference in its colour, taste or smell.

However, there is one case where the 'ilmi definition will prevail: in cases where the common people have no way of defining the issu. So in cases where the shari'ah is silent and the 'urf has no opinion, one has no choice but to follow the 'ilmi (scientific) definition.

The definition of the beginning of pregnancy is one of such cases where the 'ilmi definition would prevail; this is so because the shari'ah is silent, and it is beyong the common people to define when pregnancy begins. Therefore, in this case, we will first see how science describes the beginning of pregnancy and then attempt to find secondary proofs from shari'ah sources to arrive at a conclusion.

The process of conception and pregnancy according to modern science is as follows: After the semen is ejaculated into the vagina, the sperms move into the uterus, cross the uterus and enter the fallopian tube. The woman's ovum is in the fallopian tube. The sperm travel into the fallopian tube in search of the ovum. When th sperms reach the ovum, normally only one of them succeeds in penetrating the ovum. This coming together of man's sperm and woman's ovum is known as fertilization. After fertilization, the ovum starts to travel towards the uterus; and after coming into the uterus, it gets implanted on to the wall of the uterus. The process is known as implantation of the fertilized ovum in the womb.

To determine the shar'i pregnancy, one has to answer the following question: From the shari'ah's point of view, does pregnancy begin (1) with the entering of semen into the uterus or (2) with the fertilization of an ovum by a sperm in the fallopian tube or (3) with the implanation of a fertilized ovum in the uterus?

It is my contention that the combination of three things from the shar'i pregnancy: the sperm, the ovum and the uterus. If any two of these things combine without the third, then it is not a shar'i pregnancy. As I shall prove below, the shar'i pregnancy begins when the fertilized ovum implants itself onto the wall of the uterus.

In my search for a shar'i definition, the only closest issue I could come to was the discussion under the indemnity for abortion. In Shi'ah fiqh, the indemnity for abortion differs according to the various stages of pregnancy. However, what is relevant to our discussion is the indemnity for the first our months of pregnancy. During these four months, the child in its mother's womb is known as jinin. The jinin (embryo) itself goes through five stages gradually with distinctive names:

nutfah, when it is a sperm;

'alaqah, when it is a blood-like clot;

muzgah, when it is a lump of flesh;

'azm, when it is a lump of bones;

yaksu lahman, when it is clothed with flesh.2

The first stage is very crucial in our search for the beginning of pregnancy. Most ahadith simply say that the lowest indemnity is for aborting "a nutfah -sperm."3 Atthe first look it would seem that according to these ahadith, pregnancy starts as soon as the sperm enters into the uterus. This would mean that preventing the semen from entering into the uterus is allowed but once it has entered the uterus, then it is forbidden to abort it. But this is not so. This would have been correct if the word "nutfah" is taken only in its literal sense in which it means "a sperm". However, in fiqh and hadith, the word "nutfah" is used both for a sperm as well as for a fertilized ovum. Fortunately this extended meaning of the word "nutfah" has been clarified in the following hadith by Imam Zaynu 'l-Abidin (a.s.).

Sa'id bin al-Musayyab asked Imam 'Ali Zaynu 'l-Abidin about a person who hits a pregnant woman with his leg and, as a result, she lost what she had in her womb. The Imam said, "If it is a (nutfah) sperm, then he must pay her 20 dinars." Sa'id asked, "What is the definition of nutfah?" The Imam said, "It is a substance which, when placed in the womb, settles down in it for forty days."4 The Imam has used two words to describe the nutfah: (1) wuzi'at fi 'r-rahm -it is placed in the uterus, and (2) fastaqarrat fihi -it settles down in it. It seems the is emphasizing that the earliest stage of abortion is not when the sperm enters the unterus for the first time and just passes through it, rather when it settles down in it. Obviously, the "setting down of the sperm in the uters" and "Implanation of a fertilized ovum in the uterus" are one and the same thing.

It is needless to say that the distinction between the entrance of sperm into the womb, then the fertilization of ovum in the fallopian tube and finally its implanation was not clearly known to the scholars of fiqh and the scientists till a century ago. But the word "istiqrar=setting down" shows that our 'ulama' were not completely unaware of the fact that the sperm goes through various stages before "setting down" in the uterus. If they had been completely unaware, then they would not have used the word istiqrar, instead they would have said "the entering of the sperm into the uterus." This difference becomes more clear in the writing of the 'ulama' of post seventh Islamic century. Before the seventh century, we find the expression such as "ilqa'u 'n-nutfah" (the entering of the sperm into the uterus).5 But after the seventh century, the 'ulama' consistently began using the expression of "istiqraru 'n-nutfa" (the settling down of the sperm in the uterus).6 Even the present mujtahids describe the earliest stage of abortion as follows: "aborting a sperm after its settling down in the womb (ba'd istiqraru 'n-nutfah fi 'r-rahm)."

Moreover, the Qur'an has always used the word "haml" to describe pregnancy.7 "Haml" means to carry, and it is obvious that a woman carries the child in her uterus and not in her fallopian tube.8 And haml starts with implanation and not before it.

In conclusion, I can say that the beginning of pregnancy from the shari'ah point of view is the stage when the fertilized ovum is implanted (istiqrar) onto the lining of the uterus. And, therefore, whatever prevents implantation is allowed but whatever aborts an implanted ovum is haram. A year after reaching my decision in 1986, I wrote to Ayatullah al-Khu'i asking for his opinion on this issue:

"From medical point of view, after the sperm enters the vagina, it crosses the uterus and enters the fallopian tube. In this tube, the sperm joins the ovum. Then the fertilized ovum enters the uterus and implants itslef onto its wall. (Apparently, the expression 'istiqraru 'n-nutfa fi 'r-rahm' in the writings of Islamic jurists refers to this implanation of the ferrtilized ovum onto the wall of the uterus.)

"By keeping in mind what has been said above, is it permissible to use a medicine or a device which prevents the fertilized ovum from implanting itself onto the wall of the uterus?"

Ayatullah al-Khu'i replied that:

"What is forbidden is to abor the sperm after its settling down, whereas [to prevent pregnancy] before that is alright. However, to specify the minor and major premises of both these issues is upon the individual himself."9

I think the answe of the Ayatullah needs some explanation for those not familiar with the fuqaha's style. In the first part of his answer, the Ayatullah agreed that what is forbidden in relation to birth control is the act of aborting the sperm after it had settled down in the womb. In the second part of his answer, he declined to take it upon himself to specify when does "the settling down of the sperm" occur: soon after the sperm enters into the uterus or after its return from the fallopian tube? He further says that classifying any particualr contraceptive method (whether it prevents fertilization or implanation) is also upon the individual.

Based on the scientific explanation given earlier and the use of the word istiqrar in the hadith in relation to the nutfah and the writings of our 'ulama' on the earliest stage of abortion, I consider the implanation of a fertilized ovum onto the wall of the uterus as the beginning of pregnancy from the shari'ah point of view. Once this is settled, it becomes easy to decide which method of birth control is allowed and which is not allowed. Any method that prevents pregnancy before the implanation of the fertilized ovum is allowed, and any method that terminates pregnancy after the implanation is not allowed and will be considered as abortion. It is in the light of this criterion that we should look at the various methods of birth control that are presently available.

It was interesting to know that two years after I reached my conclusion on the shari'ah basis, Dr. Clifford Grobstein, a leading embryologist of America, published the same conclusion on basis of his scientific research. Dr. Grobstein, whose evenhanded apporach has won him places on the ethics committees of both the American Fertility Society and the Catholic Health Association, published his Science and the Unborn in 1988. He writes, "In the last several decades, chiefly as the result of extensive studies of mouse development, it has become clear that in the earliest stages of each new generation, mammals (including humans) go through a prelimnary preembryonic phase before they become embryos in the usual scientific sense ...

"In mammalian development, which normally occurs within the body of the mother (internal gestation), it is now evident that the early changes undergone by the zygote first establish multicellularity and, second, prepare for penetration into the maternal utering wall, or implanation. The second step, as we have noted, is the true beginning of gestation or pregnancy."10

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1. I have used the term "shar'i definition," "'urfi (common) definition," and "'ilmi (scientific) definition" to simplify the matter for the non-specialist readers; however, in the terminology of fiqh, the three definitions or preceptions are known as "al-'urfi 'sh-shar'i", "al-'urfi 'l-'amm", and "al-'urfu 'l-khass" respectively. The specialist reader may refer to Shaykh Murtaza al-Ansari's al-Makasib, p.193 for further details on definitions and perceptions in the shari'ah.

2. This is based on the Qur'an, see 23:12-14.

3. Wasa'il, vol.19, pp.169, 237-240.

4. Wasa'il, vol.19, p.240.

5. Sharaya'u 'l-Islam, p.1042; an-Nihayah, p.778.

6. Tabsirah, p.216; Sharh Lum'a, vol.2, p.444; Tahrir, vol.2, p.597.

7. See the Qur'an, 19:22; 31:14; 46:15.

8. A close physician friend of mine pointed out to me that pregnancy in the follopian tube (known as tubal pregnancy) is possible. However, this information does not affect our argument because tubal pregnancy is not a normal pregnancy. In matter of definitions, the abnormal possibilities are not taken into consideration. More so in abnormalities like tubal pregnancy: the fallopian tube is not big enough for development of a foetus, and tubal pregnancy has to be surgically aborted otherwise the mother might und up loosing her life.

9. Personal correspondence dated 24 Rabi' II, 1407 (1987).

10. Grobstein, Science and the Unborn, p.58-9.

Adapted from: "Marriage & Morals in Islam" by: "Sayyid Muhammad Rizvi"