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Organ Donation: Something to think about?

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Recently, the UK PM, Gordon Brown, proposed that in order to tackle the problem of organ donor shortages, the current “opt-in” system should be replaced with an “opt-out” one, whereby all British citizens would automatically be placed on the donor register, unless they objected during their lifetime, or their family members refused permission after death. The “presumed consent” proposal has been welcomed by some, and rejected by others, including several patient groups.

I’d almost forgotten about the issue, until I came across this comment by Lord Sheikh, in a House of Lords debate on the Kidney Transplant Bill:

To my knowledge, the five major faiths in the United Kingdom do not object to the principle of organ donation. Christians, Jews, Muslims, Hindus and Sikhs have all endorsed organ donation and transplantation… My understanding is as follows.

A Christian who chooses to donate an organ is following the example set by Jesus of demonstrating love. Sacrifice and helping others form a key part of Christianity and, in the Bible, Christians are invited by St Matthew to “freely give”.

Jews are required to obtain consent from a competent rabbinic authority before any organ donation procedure can commence, but nothing in principle in Judaism conflicts with organ donation in order to save lives. Jewish law prevents the unnecessary interference with the body after death and requires immediate burial of the complete body.

In Islam, violating the human body is normally forbidden, but it is permitted to save another person’s life. Indeed, the Holy Koran states in chapter five that, “whosoever saves the life of one person it would be as if he saved the life of all mankind”.

“Daan” is a word in Sanskrit for donation, which means selflessly giving to a Hindu. That is the third of the 10 niyamas, which are virtuous acts of the faith. Actions that sustain life are accepted and promoted as dharma, which means righteous living. Hindus believe that the soul is invisible, and that it is wrong to grieve for the body.

A key feature of Sikhism is the requirement to put the needs of others ahead of one’s own requirements. As with most of the other religions, the soul of an individual is separate from the physical body, and Guru Nanak taught, in the Guru Granth Sahib, that: “The dead sustain their bond with the living through virtuous deeds”.

Discovering this “common ground” between five very different religions, made me realise that, as a Muslim, I’ve never really thought much about the idea of becoming an organ donor before. I had some inkling that it was permissible in Islam, but had not yet embarked upon a serious quest to decide whether or not I should carry a donor card. In light of this recent debate, and the fact that I don’t know how long I have left on this Earth, I think it is about time that I did.

So, what does Islam really have to say about organ donation? Referring to Sheikh Google, I discovered a leaflet published by the NHS Transplant website titled “Islam and organ donation“, which states:

One of the basic aims of the Muslim faith is the saving of life. This is a fundamental aim of the Shariah and Allah greatly rewards those who save others from death.

Violating the human body, whether living or dead, is normally forbidden in Islam. The Shariah, however, waives this prohibition in a number of instances: firstly in cases of necessity; and secondly in saving another person’s life. It is this Islamic legal maxim al-darurat tubih al-mahzurat (necessities overrule prohibition) that has great relevance to organ donation.

Whosoever saves the life of one person it would be as if he saved the life of all mankind. Holy Qur’an, chapter 5 vs. 32

[…]

Muslim scholars of the most prestigious academies are unanimous in declaring that organ donation is an act of merit and in certain circumstances can be an obligation.
These institutes all call upon Muslims to donate organs for transplantation:

  • the Shariah Academy of the Organisation of Islamic Conference (representing all Muslim countries)
  • the Grand Ulema Council of Saudi Arabia.
  • the Iranian Religious Authority
  • the Al-Azhar Academy of Egypt

In addition, according to a fatwa on Islamonline.net:

“Organ donation is permitted in Islam if it is done within the permissible limits prescribed by the Shari`ah.

The following are the conditions scholars have stipulated for donation:

Conditions associated with a living donor:

1. He/she must be a person who is in full possession of his/her faculties so that he/she is able to make a sound decision by himself/herself;

2. He/she must be an adult and, preferably, at least twenty-one years old;

3. It should be done on his/her own free will without any external pressure exerted on him/ her;

4. The organ he/she is donating must not be a vital organ on which his/her survival or sound health is dependent upon;

5. No transplantation of sexual organs is allowed.

Conditions associated with deceased donors:

1. It must be done after having ascertained the free consent of the donor prior to his /her death. It can be through a will to that effect, or signing the donor card, etc.

2. In a case where organ donation consent was not given prior to a donor’s death, the consent may be granted by the deceased’s closest relatives who are in a position to make such decisions on his/her behalf.

3. It must be an organ or tissue that is medically determined to be able to save the life or maintain the quality of life of another human being.

4. The organ must be removed only from the deceased person after the death has been ascertained through reliable medical procedures.

5. Organs can also be harvested from the victims of traffic accidents if their identities are unknown, but it must be done only following the valid decree of a judge.”

But what about the permissibility of donating organs to non-Muslims? Islamonline.net says:

Islam is a universal message of love, mercy and compassion towards all the inhabitants of this globe. It is because of this that it permits a Muslim to donate an organ to a non-Muslim in case he/she is in need. Of course, priority is given to a Muslim in case the donating Muslim is offered the choice.

So, thus far, it seems that there is little stopping me from adding my name to the organ donor register. In fact, another answer suggests that I might be dumb not to:

“Organ donation to save the life of another or to help another lead a better life is considered a meritorious act that entails great rewards. This has been the view of the Islamic jurists who have discussed this issue. The Prophet (peace and blessings be upon him) told us: “Whosoever of you can render any benefit to his brother should do so.” It is not hard to imagine that no benefit is greater than saving someone’s life by giving him the gift of an organ or tissue donation. Therefore, this would fall under the category of a most charitable act.

Organ donation is also reckoned as a sadaqah jariyah (ongoing charity) from which the donor will continue to reap rewards after his/her own death, so long as the organ he/she has thus donated continues to function in the body of another human being.”

After reading all this, and especially considering that my own ethnic group is in dire need of more donors, I strongly suspect that it becomes my Islamic duty to register asap.

I encourage everyone to think deeply about becoming an organ donor; discuss the issue with trusted knowledgeable people, and most importantly, with your next of kin, because, in UK law at least, organs cannot be harvested if any close family member objects, in spite of any consent given by the deceased during their lifetime.

To find out more about what it means to be a registered organ donor in the UK, please refer to the NHS FAQ. If you have already made your decision, you can even sign up online. I invite readers from other countries to deposit the relevant info for how to become a donor in their locality, in the comments section below.

Finally, I ask Allah to forgive me for any errors I have made in writing this entry, and ask for guidance on this crucial topic, which has the potential to earn such great rewards. Ameen.

Dr Mehzabeen b. Ibrahim joined MuslimMatters as a blogger in late 2007 under the handle 'iMuslim', whilst still a struggling grad student. Since then, she has attained a PhD in Molecular Biology and a subsequent Masters in Bioinformatics, and now works as a specialist in this field for a well-known British, medical charity, masha'Allah. Somewhere in between she found the time to get married, alhamdulillah. She likes to dabble in photo and videography, a sample of which can be found on her personal blog: iMuslim.tv.

23 Comments

23 Comments

  1. Avatar

    Yasir Qadhi

    January 20, 2008 at 4:51 PM

    Salaam Alaikum

    Great issue to highlight, and one that we need to discuss openly.
    My main concerns would be:

    1) How do we know or control what will be done to those organs after we die? Can we guarantee that it will be used in a patient for a life-threatening situation?

    2) Is it true that cadavers that are used in med schools are also supplied from the very same pool of people who ‘donate their organs’ to science? If this is the case then one really needs to ask himself/herself: do you want a group of inexperienced med students gawking and groping your dead body, sawing bits and pieces off for there mid-term homework?

    3) Our eschatological beliefs of the after-life tells us that angels question us at the point of burial, and then the souls experience pleasure or punishment in the grave itself. No doubt those bodies that are somehow deprived of a burial due to circumstances beyond their control (e.g., drowning) will be an exception that God will deal with in His power, but the question is: should a person willingly ‘give up’ his body and a shot at a decent burial? The Shareeah places an obligation upon us to respect a dead body, for a hadeeth states, “Breaking the bones of a Muslim’s corpse is as if one broke them while alive.”

    I’m not saying that organ donation is prohibited; it is clearly not. My concerns are with the Islamic conditions coupled with the reality of the medical systems around us.

    Allah knows best…

    • Avatar

      Afia Baig

      September 15, 2014 at 1:18 AM

      Walaikumassalam wr
      By law at least in the western world an organ can only be used for the purpose it is donated to Also donors can place any condition they want on their donation after death for example the condition of only women doctors looking at or handling a Muslim women cadaver ,and by law the conditions have to be met .At the moment these conditions can be written in the will or mentioned to family members as by law organs are not taken witIhout having a conversation with the family. i have personally asked all these questions to the relevant people Thus the organs are not donated to science but to save life of another in need of it Further a person is listed for a transplant only when his/ her survival depends on it i know these facts by having a medical background and being a mother of a child waiting for a transplant
      jazakallahukhiarn

  2. Avatar

    iMuslim

    January 20, 2008 at 5:20 PM

    Wa ‘alaykum salam wa rahmatullah

    Great questions. I think it is best to consult your own transplant authority to answer some of them.

    For those in the UK, the NHS website says:

    Can I agree to donate some organs or tissue and not others?

    Yes. You can specify which organs you would wish to donate. Simply tick the appropriate boxes on the NHS Organ Donor Register form or on the donor card, and let those close to you know what you have decided.


    Will organs or tissue that are removed for transplant be used for research purposes?

    Organs and tissue that cannot be used for transplant will only be used for medical or scientific research purposes if specific permission has been obtained from your family.


    Does being a donor cause delays to funeral arrangements?

    No. The donation operation is performed as soon as possible after death.

    So it seems that donating your body for organ transplantation does not automatically mean it will be used for scientific research, and that the body will be returned for burial soon after the operation, insha’Allah.

    One point i have just read about in the FAQ, that needs to be addressed:

    Can I agree to donate to some people and not to others?

    No. Organs and tissue cannot be accepted unless they are freely donated. No conditions can be attached in terms of potential recipients. The only restriction allowed is which organs or tissue are to be donated.

    […]

    Patients entitled to treatment on the NHS are always given priority for donated organs. These include UK citizens, members of Her Majesty’s forces serving abroad and patients covered by a reciprocal health agreement with the UK.

    Although we are allowed to donate organs to non-Muslims, I have read a clause that says organs cannot be given to anyone fighting against the Muslims. So i would think “members of Her Majesty’s forces serving abroad” would be a big no-no, right?

  3. Pingback: Organ Donation: Something to think about? « iMuslim

  4. Avatar

    Shahrzad

    January 20, 2008 at 7:02 PM

    Organ donation in Iran is very common. I wrote an article about it here:
    http://shahrzaad.wordpress.com/2007/11/05/when-brain-dies/

    I am also member of the organ donation institute. Mean if i get brain death, they’re allowed to use my organs. Anyway there is this condition that parents must accept it after brain death.

    I think it is good act. Based on :
    “And if any one saved a life, it would be as if he saved the life of the whole people.(5:33)”

  5. Avatar

    mcpagal

    January 20, 2008 at 7:12 PM

    “2) Is it true that cadavers that are used in med schools are also supplied from the very same pool of people who ‘donate their organs’ to science? If this is the case then one really needs to ask himself/herself: do you want a group of inexperienced med students gawking and groping your dead body, sawing bits and pieces off for there mid-term homework?”

    I understand that in the UK (or in Scotland at least) donors for medical school etc have to opt into a system and actually volunteer themselves to be used for teaching after they die. Plus I wouldn’t underestimate the benefits: yes the students are inexperienced but I’d rather they got their experience dissecting cadavers than starting with surgery – apparently a lot of the donors feel (well, felt) positively about helping train the next generation of doctors.

    We had a talk from the organ donation service when in school, I think they said that donors have to have died a brainstem death, like if you’re in a car accident and get turned into a vegetable? I’m not sure on that though.

    The thing about donating to some people and not others… I would hate to think of my liver going to some alcoholic who’ll probably just go ruin it. There’s no way around it though really, is there?

    Anyways, I think this was a great topic to bring up. Loads of Muslims would be perfectly happy to accept donated organs that would save their lives, but don’t even consider donating. Same goes for blood.

    Give blood!

  6. Avatar

    Irum Sarfaraz

    January 20, 2008 at 9:40 PM

    With due respect to the opinion of all those who have written the post and the ones commenting on it, my personal stand is that our body is the amanah of Allah and not ours to ‘give’ away at our discretion. Whatever a Muslim can do whilst still alive to save the life of others, he or she should do but after the soul has been taken, he or she has no right to further use his or her body or its organs according to their desire or wish. Wallahu Alam.

  7. Avatar

    Organic Muslimah

    January 21, 2008 at 12:28 AM

    Great post! I agree with you, so long as my body won’t be used to experiment on. I will donate my organs for a good cause. It wouldn’t matter to me anymore, I will surely be in a better place, God-willing!

  8. Avatar

    Dawud Israel

    January 21, 2008 at 1:42 AM

    Great post…

    There is a book that I would encourage you to read, if I remembered the name of it…regarding donating your body to “science” (not necessarily organ donation) since it is related.

    In short it’s research about how donating your body to medical science doesn’t mean it will be used to save lives. Some end up being used for hair stylist school or worse in cosmetology (cosmetics!). Other bodies end up being used for military uses in testing firearms and practice (i think) for soldiers.

    Yeah, desensitization sucks.

  9. Avatar

    Dawud Israel

    January 21, 2008 at 1:50 AM

    The book is called Stiff by Mary Roach! I haven’t read it but a friend was telling me all this. Wow can’t believe I remembered the name after so long!

    Google it and you can get a preview of it. There’s something in there about also using corpses for reenacting the crucifixion… :S

    La howla wa la quwatta illah billah

  10. Avatar

    H. Ahmed

    January 21, 2008 at 3:53 AM

    Asalaamualaykum wr wb,

    In response to:

    “2) Is it true that cadavers that are used in med schools are also supplied from the very same pool of people who ‘donate their organs’ to science? If this is the case then one really needs to ask himself/herself: do you want a group of inexperienced med students gawking and groping your dead body, sawing bits and pieces off for there mid-term homework? ”

    Gross Anatomy Labs and the dissection of cadavers is crucial to medical education. Moreover, medical students hold the bodies that we dissect and study with great respect. At the end of each first year anatomy class my school (along with many others) holds a ceremony in respect of those bodies we dissected all year. Many family members of the cadavers (of those who volunteered that their bodies be used for education) attend the ceremony. So to address your question, yes, many people in fact, are proud of the fact that their bodies helped in the education of future physicians.

  11. Avatar

    mcpagal

    January 21, 2008 at 4:34 PM

    H. Ahmed, despite having done dissection I would still think twice about donating my body for it, it’s horrible to think about even for the least squeamish. We did the head & neck… sawing the face in half was probably the worst bit.

    Did get us all thinking of our own mortality though.

  12. Avatar

    iMuslim

    January 21, 2008 at 11:37 PM

    Assalamu ‘alaykum wa rahmatullah all

    Methinks the thread has got a little sidetracked. There is obviously a big difference between donating one’s organs for transplantation, and donating one’s body for medical research. My entry was about the former… and i don’t have a clue about what the scholars say about the latter!

    Irum, I also respect your personal opinion, though I hope you understand that my entry wasn’t about expressing my own opinion on organ donation, but rather trying to investigate the position of some of the ulema; i’m not sure if there is a complete consensus on the issue.

    However, if i were to give a personal opinion from the perspective of the body being an amanah from Allah, i would add that one’s wealth is also amanah from Allah. After death, we have no claim to it anymore, and it should be distributed to the heirs as Allah has commanded, because wealth was never ours to own, but rather ours to manage for a short time.

    However, Allah has allowed the believer some control over his wealth, even after death, whereby up to one third of the estate can be given away to a non-heir of their choosing, via the will. They don’t have to – it’s a voluntary act of sadaqah, and in fact, sometimes it’s best not to so that the true heirs receive a greater share.

    The heir of the body is the grave. However, if we choose, we can donate a part of this wealth (and what is the best form of “wealth” other than good health itself?) to non-heirs, in the form of organ donation. You don’t have to, just as you don’t have to bequeath your estate to anyone other than your heirs – it’s a voluntary act of sadaqah.

    That is my personal opinion. Wa Allahu ‘alam.

    Islam doesn’t seem to forbid organ donation – though obviously it is a matter of ijtihad, as it is a modern day advancement in Medicine, not directly covered by the Qur’an & Sunnah. However it seems that there are some conditions placed on who can receive the organs, which i would like clarified, especially the point about not being allowed to donate to enemies of Islam/Muslims. Something slightly hard to define when you’re living as a minority in a non-Muslim land, whose soldiers happened to be stationed in Muslim-majority countries…

    May Allah guide us.

  13. Avatar

    Bilal

    January 22, 2008 at 12:28 AM

    Assalamu Alaykum,

    Also in response to:

    “2) Is it true that cadavers that are used in med schools are also supplied from the very same pool of people who ‘donate their organs’ to science? If this is the case then one really needs to ask himself/herself: do you want a group of inexperienced med students gawking and groping your dead body, sawing bits and pieces off for there mid-term homework? ”

    For your body to be used in the gross labs of medical schools you have to specifically donate your body to science which is different from being an organ donor. If someone wants to donate their body to science (i.e. having medical students dissecting it), they have quite an extensive amount of paperwork to fill out (versus just having it labeled on their drivers licence). Actually, the person wanting to donate their body to science has to personally pay for their body to be transported to the medical school at which it will be dissected. (This is the case for the state of Florida. Every state has its own rules). The people who donate their bodies to science are generally very committed as its quite a hassle to donate your body for medical education.

    I have to admit after having gone thru Gross Anatomy last semester, I don’t think I could donate my body to science (yes, sawing off a leg was quite disturbing). I think there’s definitely less than 1,000 people who do such a thing here in Florida every year.

    However, it should be noted that there is a huge difference between donating your body to science (and having medical students study it) versus being someone who is an organ donor (and it’s not very hard to become one, that’s for sure).

    Does anyone know what Shaykh-ul-Islamqa says about this matter.?

    Wa Allahu Alim.

  14. Avatar

    Anonymous

    January 22, 2008 at 12:59 AM

  15. Avatar

    mcpagal

    January 22, 2008 at 1:47 PM

    Sis Irum: “… my personal stand is that our body is the amanah of Allah and not ours to ‘give’ away at our discretion. Whatever a Muslim can do whilst still alive to save the life of others, he or she should do but after the soul has been taken, he or she has no right to further use his or her body or its organs according to their desire or wish. Wallahu Alam.”

    Thing is, if you or a loved one were in the position of accepting an organ donation or dying, which would you choose? If you deny it, it’s like choosing death. If you accept it, it would be somewhat hypocritical and selfish since you’re taking from the pool but not contributing to it. Some parents even have to make this decision for their child.

    • Avatar

      Btru2u

      April 14, 2012 at 7:11 PM

      i would like to know your situation in the Grave. i read in a hadith somewhere that beaking the bones of a deceased person will be as if you broke them while he/she was alive. Some are of the opinion that the body still feels pain after it is dead. I think this is another factor lingering in the back of muslims minds before they decide to donate

  16. Avatar

    Suhail

    January 23, 2008 at 7:02 PM

  17. Avatar

    nurjannah

    February 24, 2008 at 7:39 AM

    Assalamu’alaikum w.b.t

    firstly, i would like to express my gratitude to iMuslim and others for helping me to understand more about organ donation from islamic point of view..
    i am a medical student and now i had already do the dissection to the cadaver for the hand..i still have to dissect the leg and need to complete the task before this saturday.. at my place, we only had non-muslim as the cadavers, i do not know that in other country, they use muslim body as cadaver.. can we actually do that as a muslim? use another muslim’s body? is there any hadith related to that? there’s still a lot of things that i do not know, i really appreciate if any of you would like to help explain it to me… syukran…wassalam..

  18. Avatar

    Kaneta

    January 28, 2013 at 3:11 PM

    Came across this oooold thread, searching for clarification with the upcoming legislation in Wales which will assume consent for organ transplantation after death. I’m a registered organ donor, however my parents have both decided that they will be opting out from the donor register.
    The rationale being that organs may be harvested from a brain dead individual, however brain dead is not equivalent to cardiac dead. Furthermore, they also have concerns regarding the sanctity of the human body.

    Re. the point raised by Brother Qadhi (love your book the Etiquette of Dua btw :-)_Organ donation does not mean that you are donating your body .

    My

  19. Avatar

    Salma

    March 12, 2015 at 12:25 AM

    To be able to use vital organs, the human body is kept alive in order to keep oxygen flowing through the organs so the organs remain viable, ie alive. The doctor may pronounce the person “brain dead”, but there is no absolute certainty – it is left to “expert OPINION” of other human beings (doctors). If the organs are then harvested while the person is allegedly “brain dead”, perhaps with the body kept alive using life support, then once the vital organs are harvested that person will well & truly die.

    1. Only Allah knows when the brain is truly “dead”. Sometimes people in a coma suddenly “wake up” years later.

    2. When organs are harvested from a body that is not dead – even on life support – removing those vital organs will cause that person’s death, rather than Allah determining that person should die.

    There is also the issue of financial and other incentives for declaring one “brain dead” in order to harvest the organs!

    These are serious ethical concerns surrounding organ donation.

    Here are a couple interesting webpages, though I can’t attest to the reputation of these websites:

    “Brain Death” – The new “pretend death” is not real death
    and
    Organ removal is done while (live) patient given only paralyzing agent but no anesthetic
    http://www.truthaboutorgandonation.com/factsaboutbeinganorgandonor.html

    Brain Death as Criteria for Organ Donation is Deception
    https://www.lifesitenews.com/news/brain-death-as-criteria-for-organ-donation-is-a-deception-bereaved-mother

  20. Avatar

    Salma

    March 12, 2015 at 12:43 AM

    See also this article from New England Journal of Medicine

    Written by pro-organ donation doctors, questioning the definitions of brain death for organ transplants
    http://www.nejm.org/doi/full/10.1056/NEJMp0804474?query=TOC&

  21. Avatar

    Ateeb Ahmad

    September 26, 2017 at 11:15 PM

    Assalamoalaekum,

    Great topic; I actually just came across this leaflet which came in mail with my drivers license renewal about organ donation. To Shaikh Yasir Qadhi point in the form I have from province of Ontario, Canada you can opt for your organs to be only used for transplant and not for research. Also you can choose if you wish to donate all of the organs or you can take an exception that you don’t want your kidneys or heart or eyes etc. to not be used for transplant. Ontario residents for further information please go to ServiceOntario.ca/BeADonor or BeaDonor.ca/about-donation.

    General information for all Canadian residents could be found in the following link
    https://www.canada.ca/en/public-health/services/diseases/blood-organ-tissue-donation.html

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#Current Affairs

The Duplicity of American Muslim Influencers And The ‘So-called Muslim Ban’

Dr Joseph Kaminski

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As we approach the beginning of another painful year of the full enforcement of Presidential Proclamation 9645 (a.k.a. ‘the Muslim ban’) that effectively bars citizens of several Muslim majority countries from entering into the United States, the silence remains deafening. As I expected, most of the world has conveniently forgotten about this policy, which thus far has separated over 3,000 American families from their spouses and other immediate relatives. In June 2019, the Brennan Center of Justice notes that: The ban has also kept at least 1,545 children from their American parents and 3,460 parents from their American sons and daughters. While silence and apathy from the general public on this matter is to be expected— after all, it is not their families who are impacted— what is particularly troubling is the response that is beginning to emerge from some corners of the American Muslim social landscape.

While most Muslims and Muslim groups have been vocal in their condemnation of Presidential Proclamation 9645, other prominent voices have not. Shadi Hamid sought to rationalize the executive order on technical grounds arguing that it was a legally plausible interpretation. Perhaps this is true, but some of the other points made by Hamid are quite questionable. For example, he curiously contends that:

The decision does not turn American Muslims like myself into “second-class citizens,” and to insist that it does will make it impossible for us to claim that we have actually become second-class citizens, if such a thing ever happens.

I don’t know— being forced to choose exile in order to remain with one’s family certainly does sound like being turned into a ‘second-class citizen’ to me. Perhaps the executive order does not turn Muslims like himself, as he notes, into second-class citizens, but it definitely does others, unless it is possible in Hamid’s mind to remain a first-class citizen barred from living with his own spouse and children for completely arbitrary reasons, like me. To be fair to Hamid, in the same article he does comment that the executive order is a morally questionable decision, noting that he is “still deeply uncomfortable with the Supreme Court’s ruling” and that “It contributes to the legitimization and mainstreaming of anti-Muslim bigotry.”

On the other hand, more recently others have shown open disdain for those who are angered about the ‘so-called Muslim ban.’ On June 6th, 2019, Abdullah bin Hamid Ali, a Senior Faculty Member at Zaytuna College, Islamic scholar and the founder of the Lamppost Education Initiative, rationalized the ban on spurious security grounds. He commented that,

The so-called Muslim ban, of course, has us on edge about his potential. But, to be fair, a real Muslim ban would mean that no Muslim from any country should be allowed in the US. There are about 50 Muslim majority countries. Trump singled out only 7 of them, most of which are war torn and problem countries. So, it is unfair to claim that he was only motivated by a hatred for Islam and Muslims.

First, despite how redundant and unnecessary this point is to make again, one ought to be reminded that between 1975 and 2015, zero foreigners from the seven nations initially placed on the banned list (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen) killed any Americans in terrorist attacks on U.S. soil and zero Libyans or Syrians have ever even been convicted of planning a terrorist attack on U.S. soil during that same time period. I do not think these numbers have changed over the last 4 years either. If policy decisions are supposed to be made on sound empirical evidence and data, then there is even less justification for the ban.

Second, Bin Hamid Ali comments that ‘the so-called Muslim ban, of course, has us on edge about his [Trump’s] potential.’ Whoa… hold on; on edge about his potential? For the millions of people banned from entering the United States and the thousands of Muslim families connected to these millions of people, this ‘potential’ has been more than realized. To reduce the ‘so-called Muslim ban’ to just targeting ‘war torn and problem countries’ is to reduce our family members—our husbands, wives, and children—to (inaccurate) statistics and gross stereotypes. Are spouses from Syria or Yemen seeking to reunite with their legally recognized spouses or children any less deserving to be with their immediate family members because they hail from ‘problem countries’? How can one be concerned with stereotypes while saying something like this? Is this not the exact thing that Abdullah bin Hamid Ali seeks to avoid? Surely the Professor would not invoke such stereotypes to justify the racial profiling of black American citizens. What makes black non-Americans, Arabs, and Iranians any different when it comes to draconian immigration profiling? From a purely Islamic perspective, the answer is absolutely nothing.

More recently, Sherman Jackson, a leading Islamic intellectual figure at the University of Southern California, King Faisal Chair in Islamic Thought and Culture and Professor of Religion and American Studies and Ethnicity, also waded into this discussion. In his essay, he reframed the Muslim ban as a question of identity politics rather than basic human right, pitting Muslim immigrants against what he calls ‘blackamericans’ drawing some incredibly questionable, nativist, and bigoted conclusions. Jackson in a recent blog responding to critiques by Ali al-Arian about his own questionable affiliations with authoritarian Arab regimes comments:

Al-Arian mentions that,

“the Muslim American community seemed united at least in its opposition to the Trump administration.”  He and those who make up this alleged consensus are apparently offended by Trump’s so-called Muslim ban.  But a Blackamerican sister in Chicago once asked me rhetorically why she should support having Muslims come to this country who are only going to treat her like crap.

These are baffling comments to make about ‘Trump’s so-called Muslim ban.’ Jackson creates a strawman by bringing up an anecdotal story that offers a gross generalization that clearly has prejudiced undertones of certain Muslim immigrants. Most interesting, however is how self-defeating Jackson’s invocation of identity politics is considering the fact that a large number of the ‘blackamerican’ Muslims that he is concerned about themselves have relatives from Somalia and other countries impacted by the travel ban. As of 2017, there were just over 52,000 Americans with Somali ancestry in the state of Minnesota alone. Are Somali-Americans only worth our sympathy so long as they do not have Somali spouses? What Jackson and Bin Hamid Ali do not seem to understand is that these Muslim immigrants they speak disparagingly of, by in large, are coming on family unification related visas.

Other people with large online followings have praised the comments offered by Abdullah bin Hamid Ali and Sherman Jackson. The controversial administrator of the popular The Muslim Skeptic website, Daniel Haqiqatjou, in defense of Jackson’s comments, stated:

This is the first time I have seen a prominent figure downplay the issue. And I think Jackson’s assessment is exactly right: The average American Muslim doesn’t really care about this. There is no evidence to indicate that this policy has had a significant impact on the community as a whole. Travel to the US from those four countries affected by the ban was already extremely difficult in the Obama era.

What Haqiqatjou seems to not realize is that while travel from these countries was difficult, it was not as ‘extremely difficult’ as he erroneously claims it was. The US issued 7,727 visas to Iranian passport holders in 2016 prior to the ban. After the ban in 2018, that number dropped to 1,449. My own wife was issued a B1/B2 Tourist visa to meet my family in 2016 after approximately 40 days of administrative processing which is standard for US visa seekers who hold Iranian passports. On the other hand, she was rejected for the same B1/B2 Tourist visa in 2018 after a grueling 60+ day wait due to Presidential Proclamation 9645. At the behest of the Counselor Officer where we currently live, she was told to just finish the immigration process since this would put her in a better position to receive one of these nearly impossible to get waivers. She had her interview on November 19, 2018, and we are still awaiting the results of whatever these epic, non-transparent ‘extreme vetting’ procedures yield. Somehow despite my wife being perfectly fine to enter in 2016, three years later, we are entering the 10th month of waiting for one of these elusive waivers with no end time in sight, nor any guarantee that things will work out. Tell me how this is pretty much the same as things have always been?

What these commentators seem to not realize is that the United States immigration system is incredibly rigid. One cannot hop on a plane and say they want to immigrate with an empty wallet to start of Kebab shop in Queens. It seems as if many of these people that take umbrage at the prospects of legal immigration believe that the immigration rules of 2019 are the same as they were in 1819. In the end, it is important to once again reiterate that the Muslim immigrants Jackson, Bin Hamid Ali and others are disparaging are those who most likely are the family members of American Muslim citizens; by belittling the spouses and children of American Muslims, these people are belittling American Muslims themselves.

Neo-nationalism, tribalism, and identity politics of this sort are wholly antithetical to the Islamic enterprise. We have now reached the point where people who are considered authority figures within the American Islamic community are promoting nativism and identity politics at the expense of American Muslim families. Instead of trying to rationalize the ‘so-called Muslim Ban’ via appeals to nativist and nationalist rhetoric, influential Muslim leaders and internet influencers need to demonstrate empathy and compassion for the thousands of US Muslim families being torn apart by this indefinite Muslim ban that we all know will never end so long as Donald Trump remains president. In reality, they should be willing to fight tooth-and-nail for American Muslim families. These are the same people who regularly critique the decline of the family unit and the rise of single-parent households. Do they not see the hypocrisy in their positions of not defending those Muslim families that seek to stay together?

If these people are not willing to advocate on behalf of those of us suffering— some of us living in self-imposed exile in third party countries to remain with our spouses and children— the least they can do is to not downplay our suffering or even worse, turn it into a political football (Social Justice Warrior politics vs. traditional ‘real’ Islam). It seems clear that if liberal Muslim activists were not as outspoken on this matter, these more conservative voices would take a different perspective. With the exception of Shadi Hamid, the other aforementioned names have made efforts to constrain themselves firmly to the ‘traditional’ Muslim camp. There is no reason that this issue, which obviously transcends petty partisan Muslim politics, ought to symbolize one’s allegiance to any particular social movement or camp within contemporary Islamic civil society.

If these people want a ‘traditional’ justification for why Muslim families should not be separated, they ought to be reminded that one of al-Ghazali’s 5 essential principles of the Shari’a was related to the protection of lineage/family and honor (ḥifẓ al-nasl). Our spouses are not cannon fodder for such childish partisan politics. We will continue to protect our families and their honor regardless of how hostile the environment may become for us and regardless of who we have to name and shame in the process.

When I got married over a year prior to Donald Trump being elected President, I vowed that only Allah would separate me from my spouse. I intend on keeping that vow regardless of what consequences that decision may have.

Photo courtesy: Adam Cairns / The Columbus Dispatch

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Obituary of (Mawlana) Yusuf Sulayman Motala (1366/1946 – 1441/2019)

Monday, September 9, turned out to be a day of profound anguish and sorrow for many around the world. In the early morning hours, news of the death of Mawlana* Yusuf Sulayman Motala, fondly known as “Hazrat” (his eminence) to those who were acquainted with him, spread. He had passed away on Sunday at 8:20 pm EST in Toronto, after suffering a heart attack two weeks earlier.

Dr. Mufti Abdur Rahman ibn Yusuf Mangera

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Dar Al Uloom Bury, Yusuf Sulayman Motala

A master of hadith and Qur’an. A sufi, spiritual guide and teacher to thousands. A pioneer in the establishment of a religious education system. His death reverberated through hearts and across oceans. We are all mourning the loss of a luminary who guided us through increasingly difficult times.

Monday, September 9, turned out to be a day of profound anguish and sorrow for many around the world. In the early morning hours, news of the death of Mawlana* Yusuf Sulayman Motala, fondly known as “Hazrat” (his eminence) to those who were acquainted with him, spread. He had passed away on Sunday at 8:20 pm EST in Toronto, after suffering a heart attack two weeks earlier. (May the Almighty envelope him in His mercy)

His journey in this world had begun more than 70 years ago in the small village of Nani Naroli in Gujarat, India, where he was born on November 25, 1946 (1 Muharram 1366) into a family known for their piety.

His early studies were largely completed at Jami’a Husayniyya, one of the early seminaries of Gujarat, after which he travelled to Mazahir Ulum, the second oldest seminary of the Indian Sub-Continent, in Saharanpur, India, to complete his ‘alimiyya studies. What drew him to this seminary was the presence of one of the most influential and well-known contemporary spiritual guides, Mawlana Muhammad Zakariyya Kandhlawi (d. 1402/1982), better known as “Hazrat Shaykh.” He had seen Mawlana Zakariyya only briefly at a train stop, but it was enough for him to understand the magnitude of his presence.

Mawlana Yusuf remained in Saharanpur for two years. Despite being younger than many of the other students of Shaykh Zakariya, the shaykh took a great liking to him. Shaykh Zakariya showered him with great attention and even deferred his retirement from teaching Sahih al-Bukhari so that Mawlana Yusuf could study it under his instruction. While in Saharanpur, Mawlana Yusuf also studied under a number of other great scholars, such as Mawlana Muhammad ‘Aqil (author of Al-Durr al-Mandud, an Urdu commentary of Sunan Abi Dawud and current head lecturer of Hadith at the same seminary), Shaykh Yunus Jownpuri (d. 1438/2017) the previous head lecturer of Hadith there), Mawlana As‘adullah Rampuri (d. 1399/1979) and Mufti Muzaffar Husayn (d. 1424/2003).

Upon completion of his studies, Mawlana Yusuf’s marriage was arranged to marry a young woman from the Limbada family that had migrated to the United Kingdom from Gujarat. In 1968, he relocated to the UK and accepted the position of imam at Masjid Zakariya, in Bolton. Although he longed to be in the company of his shaykh, he had explicit instructions to remain in the UK and focus his efforts on establishing a seminary for memorization of Qur’an and teaching of the ‘alimiyya program. The vision being set in motion was to train a generation of Muslims scholars that would educate and guide the growing Muslim community.

Establishing the first Muslim seminary, in the absence of any precedent, was a daunting task. The lack of support from the Muslim community, the lack of integration into the wider British community, and the lack of funds made it seem an impossible endeavour. And yet, Mawlana Yusuf never wavered in his commitment and diligently worked to make the dream of his teacher a reality. In 1973 he purchased the derelict Aitken Sanatorium in the village of Holcombe, near Bury, Lancashire. What had once been a hospice for people suffering from tuberculosis, would become one of the first fully-fledged higher-education Islamic institutes outside of the Indian-Subcontinent teaching the adapted-Nizami syllabus.

The years of struggle by Maulana Yusuf to fulfil this vision paid off handsomely. Today, after four decades, Darul Uloom Al Arabiyya Al Islamiyya, along with its several sister institutes, also founded by Mawlana Yusuf, such as the Jamiatul Imam Muhammad Zakariya seminary in Bradford for girls, have produced well over 2,000 British born (and other international students) male and female ‘alimiyya graduates – many of whom are working as scholars and serving communities across the UK, France, Belgium, Holland, Portugal, the US, Canada, Barbados, Trinidad, Panama, Saudi Arabia, India and New Zealand. Besides these graduates, a countless number of individuals have memorized the Qur’an at these institutes. Moreover, many of the graduates of the Darul Uloom and its sister institutes have set up their own institutes, such as Jamiatul Ilm Wal Huda in Blackburn, Islamic Dawah Academy in Leicester, Jami’ah al-Kawthar in Lancaster, UK, and Darul Uloom Palmela in Portugal, to just mention a few of the larger ones. Within his lifetime, Mawlana Yusuf saw first-hand the fruit of his labours – witnessing his grand students (graduates from his students’ institutes) providing religious instruction and services to communities around the world in their local languages. What started as a relationship of love between a student and teacher, manifested into the transmission of knowledge across continents. In some countries, such as the UK and Portugal, one would be hard-pressed to find a Muslim who had not directly or indirectly benefited from him.

Mawlana Yusuf was a man with deep insights into the needs of Western contemporary society, one that was very different from the one he had grown up and trained in. With a view to contributing to mainstream society, Mawlana Yusuf encouraged his graduates to enter into further education both in post-graduate Islamic courses and western academia, and to diversify their fields of learning through courses at mainstream UK universities. As a result, many ‘alimiyya graduates of his institutes are trained in law, mainstream medicine, natural medicine and homeopathy, mental health, child protection, finance, IT, education, chaplaincy, psychology, philosophy, pharmacy, physics, journalism, engineering, architecture, calligraphy, typography, graphic design, optometry, social services, public health, even British Sign Language. His students also include several who have completed PhDs and lecture at universities. His vision was to train British-born (or other) Muslim scholars who would be well versed in contemporary thought and discipline along with their advanced Islamic learning, equipping them to better contribute to society.

Despite his commitment to the establishment of a public good, the shaykh was an immensely private person and avoided seeking accolade or attention. For many decades he refused invitations to attend conferences or talks around the country, choosing to focus on his students and his family, teaching the academic syllabus and infusing the hearts of many aspirants with the love of Allah through regular gatherings of remembrance (dhikr) and spiritual retreats (i’tikaf) in the way of his shaykh’s Chishti Sufi order.

During my entire stay with him at Darul Uloom (1985–1997), I can say with honesty that I did not come across a single student who spoke ill of him. He commanded such awe and respect that people would find it difficult to speak with him casually. And yet, for those who had the opportunity to converse with him, knew that he was the most compassionate, humble, and loving individual.

He was full of affection for his students and colleagues and had immense concern for the Muslim Ummah, especially in the West. He possessed unparalleled forbearance and self-composure. When he taught or gave a talk, he spoke in a subdued and measured tone, as though he was weighing every word, knowing the import it carried. He would sit, barely moving and without shifting his posture. Even after a surgical procedure for piles, he sat gracefully teaching us Sahih al-Bukhari. Despite the obvious pain, he never made an unpleasant expression or winced from the pain.

Anyone who has listened to his talks or read his books can bear testimony to two things: his immense love for the Messenger of Allah ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him) and his love for Shaykh Mawlana Muhammad Zakariya Kandhlawi (may Allah have mercy on him). It is probably hard to find a talk in which he did not speak of the two. His shaykh was no doubt his link to the Messenger of Allah (Allah bless him and give him peace) in both his hadith and spiritual transmissions.

Over the last decade, he had retired from most of his teaching commitments (except Sahih al-Bukhari) and had reduced meeting with people other than his weekly dhikr gatherings. His time was spent with his family and young children and writing books. His written legacy comprises over 20 titles, mostly in Urdu but also a partial tafsir of the Qur’an in classical Arabic.

After the news of his heart attack on Sunday, August 25, and the subsequent effects to his brain, his well-wishers around the world completed hundreds of recitals of the Qur’an, several readings of the entire Sahih al-Bukhari, thousands of litanies and wirds of the formula of faith (kalima tayyiba), and gave charity in his name. However, Allah Most High willed otherwise and intended for him to depart this lowly abode to begin his journey to the next. He passed away two weeks later and reports state that approximately 4,000 people attended his funeral. Had his funeral been in the UK, the number of attendees would have multiplied several folds. But he had always shied away from large crowds and gatherings and maybe this was Allah Most High’s gift to him after his death. He was 75 (in Hijra years, and 72 in Gregorian) at the time of his death and leaves behind eight children and several grandchildren.

Mawlana Yusuf educated, inspired and nourished the minds and hearts of countless across the UK and beyond. May Allah Almighty bless him with the loftiest of abodes in the Gardens of Firdaws in the company of Allah’s beloved Messenger (Allah bless him and give him peace) and grant all his family, students, and cherishers around the world beautiful patience.

Dr Mufti Abdur-Rahman Mangera
Whitethread Institute, London
(A fortunate graduate of Darul Uloom Bury, 1996–97)

*a learned Muslim scholar especially in India often used as a form of address

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Reflections on Muslim Approaches to the Abortion Debate: The Problem of Narrow Conceptualization

American Muslims must go beyond simplistic and emotionally-charged approaches to the abortion question.

Shaykh Salman Younas

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Abortion

“Islam is the golden mean between all ethical extremes’ is what certain Muslims would assert… This moral assumption isn’t far from the truth.”

Shaykh Abdullah Hamid Ali in A Word on Muslim Attitudes Toward Abortion

“The golden mean is kind of a summit, and it is a struggle to get there. The ego does not want balance because you have to think and make sacrifices.”

Shaykh Abdal Hakim Murad in Paradigms of Leadership (6)

A few months ago, Governor Kay Ivey signed into law House Bill 134, or the Human Life Protection Act, which prohibited all abortion in the state of Alabama except in cases where it was deemed necessary to prevent a serious health risk to the mother. The bill additionally criminalized abortion or any attempt to carry it out in situations deemed non-necessary. A motion to exempt rape and incest victims from this law was defeated in the Alabama state senate, which give the state the (dubious) distinction of possessing one of the most restrictive abortion laws in America. This move by Alabama to place extreme restrictions on abortion followed a spate of similar legislative moves by other states, such as Georgia, Kentucky, and Mississippi.

This escalation in anti-abortion legislation occasioned intense debate within the Muslim community.[1] Muslims who self-identify as progressives chanted the familiar mantra of “my body, my choice” to affirm a notion of personal rights and bodily autonomy in defending a woman’s right to choose. The ideological underpinnings of this view are extremely problematic from a theological perspective, and the practical policies arising from it that sanction even late-term abortions contravene the near-consensus position of classical jurists and is rightly seen as an assault on inviolable human life. For this reason, this essay will not pay any particular attention to this view.

Several people pushed back against this permissive attitude by arguing that abortion is essentially prohibited in Islam in all but the direst of situations, such as when the life of the mother is at genuine risk. This opinion has a sound precedent in the legal tradition and is the mainstream view of some of the legal schools, but it has often been presented in a manner that fails to acknowledge the normative pluralism that exists on the matter in the shariah and rather perniciously presents these alternative opinions as ‘liberal’ or ‘progressive’. Similarly, those who favour the more lenient view found in other legal schools are often seen characterizing the stricter opinion as ‘right-wing’ or reflective of the Christianization of Islamic law. Despite having legal precedent on their side, both groups engaged the abortion question in a manner that was rather superficial and fundamentally problematic.

Abortion

Did Jurists Only Permit Abortion in ‘Dire’ Circumstances?

I will begin this essay by offering a corrective to the mistaken notion that classical jurists only permitted abortions in cases of necessity, an assertion that has become very common in current Muslim discourse on abortion in America. One need not look much further than the Ḥanafī school to realize that this claim is incorrect. Though there are opinions within the school that only permit abortion before 120 days with the existence of a valid excuse, the view of several early leading authorities was that abortion was unconditionally permissible (mubāḥ) before this period and/or prior to the physical form and features of a fetus becoming clearly discernible.[2] In his encyclopaedic work al-Muḥīṭ al-Burhānī, Burhān al-Dīn ibn Māza (d. 616/1219) presents two main opinions on abortion in the school:

(i) It is permitted “as long as some physical human features are not clearly discernible because if these features are not discernible, the fetus is not a child (walad)” as per Fatāwā Ahl al-Samarqand. Some scholars asserted that this occurs at 120 days,[3] while others stated that this assertion, though incorrect, indicated that by discernibility jurists intended ensoulment.[4]

(ii) It is disliked because once conception occurs, the natural prognostication is life and so the fetus is granted this ruling at the moment of conception itself. This was the view of ʿAlī ibn Mūsā al-Qummī (d. 305/917-18).[5]

The first opinion of unconditional permissibility was not a solitary one in the school. It was forwarded by many of the foremost Ḥanafī authorities, such as Ḥussām al-Dīn ibn Māza (d. 536/1141),[6] Raḍī al-Dīn al-Sarakhsī (d. 575/1175),[7] Jamāl al-Dīn al-Ghaznawī (d. 593/1196),[8] Zayn al-Dīn al-Rāzī (d. 666/1267),[9] ʿAbd Allāh ibn Maḥmūd al-Mawṣilī (d. 683/1284),[10] Fakhr al-Dīn al-Zaylaʿī (d. 743/1343),[11] Qiwām al-Dīn al-Kākī (749/1348),[12] Jalāl al-Dīn al-Khawārizmī (d. 767/1365),[13] Kamāl ibn al-Humām (d. 861/1457),[14] Muḥyī al-Dīn Jawīzāda (d. 954/1547),[15] Muḥammad ibn ʿAlī al-Ḥaṣkafī (d. 1088/1677),[16] and several others.[17] The reasoning underlying this view was that prior to a specific period (whether defined by days or by fetal development), a fetus is not a ‘child’ or ‘person’.[18] Therefore, no ruling is attached to it at this stage.[19]

Another opinion in the school, and one that has gained wide acceptance amongst contemporary Ḥanafī jurists, argued that abortion prior to 120 days was disliked and sinful unless carried out with a valid excuse. This view was most famously expressed by Fakhr al-Dīn Qāḍīkhān (d. 592/1196) in his Fatāwā and subsequently supported by the likes of Ibn Wahbān (d. 768/1367),[20] Ibn Nujaym (d. 970/1563),[21] and Ibn ʿĀbidīn (d. 1252/1836).[22] These sources, however, do not define or fully flesh out what constitutes an excuse, sufficing mainly with a single example as illustrative of a case where abortion would be permitted, namely when a woman ceases to produce milk on account of pregnancy and her husband is unable to provide an alternative source of sustenance for their child and fears his or her perishing. Cases of rape, incest, adultery, and other possible excuses are not discussed by most of these authors, and it is not clear whether they would have deemed these valid excuses or not.[23]

The Ḥanafī school, therefore, had three main opinions on the issue: unconditionally permissible prior to a specific time period; unconditionally disliked; and conditionally permissible prior to a specific time period. Of the three, the first view seems to have been the dominant one in the school and held by multiple authorities in virtually every century. The view of conditional permissibility was also a strong one and notably adopted by several later jurists. It is also the view that has gained currency among modern Ḥanafī scholars who are generally not seen forwarding the view of unconditional permissibility.

Some Contemporary Views on Abortion

A wide range of opinions is also found in the discourse of contemporary jurists. Shaykh Muṣṭafā Zarqā (d. 1999) presented a gradated scheme where abortion prior to 40 days was permitted without a “severe excuse”, which included “undertaking necessary travel where pregnancy and giving birth would prove a hindrance, such as for education or for work that requires a couple to move.”[24] He also considered financial strain arising from a child as a valid excuse during this limited time period. According to him, the threshold for a valid excuse would become higher as the pregnancy proceeded beyond 40 days.

Muftī Maḥmūd Ḥasan Gangohī (d. 1996), one of the foremost scholars of the Deobandī school, permitted abortions when conception occurred out of wedlock (zinā).[25]

Muftī Salmān Manṣurpūrī states emphatically that the basis is that abortion is impermissible unless there is a valid excuse before 120 days, such as the life of the mother being at risk, serious consequences to her general health, an actual inability to bear pregnancy, clear harm or danger to one’s current children, and adultery, but not fear of economic difficulty nor the decision not to have children.[26]

In Fatāwā Dār al-ʿUlūm Zakariyya, Muftī Raḍā’ al-Ḥaqq states that a fetus diagnosed by medical professionals with an incurable and serious disorder that will prove to be an extreme burden on the child and its family is permitted to abort prior to 120 days as per the Islamic Fiqh Academy in Mecca.[27] Elsewhere, he divides pregnancy into three stages. The first stage is when the general form and facial features of the fetus take shape but prior to the formation of its limbs. At this stage, it is permitted to carry out on abortion with a valid and established excuse, such as the fetus suffering from a “dangerous hereditary disease”, “physical abnormality/deformity”, the life of the mother being at risk, or reasonably-established fear of the mother’s “physical and mental health” being impacted. The second stage is when the limbs of the fetus are clearly formed and discernible, and the third stage is after 120 days. In both these stages, the respected Muftī rules that abortion is not permitted except in cases of necessity, such as saving the life of the mother.[28] The permission to abort the fetus is also extended to cases of rape.[29]

Mawlānā Zubayr Aḥmad Qāsmī (d. 2019), a founding member of the Islamic Fiqh Academy, India, argued that the permission to carry out an abortion before ensoulment (even after discernibility) is not simply restricted to cases of necessity (ḍarūra) but includes cases of need (ḥāja), which broadly includes “any situation that entails bodily or psychological harm for the parents or the child and is a cause for continual distress.”[30] Examples of valid excuses include “danger to the general health, mental health, or life of the mother”, pregnancy resulting from rape or fornication (so long as it is not someone who has engaged in the latter habitually), the strong possibility that the child will be born with serious physical abnormalities or defects as determined by a medical professional, and the genuine inability of the parents to raise and maintain/sustain more than one child without it negatively impacting their current children.[31]

Mawlānā Khālid Sayf Allāh Raḥmānī states, “Essentially, abortion is impermissible in Islam, and there is no time period in which it is acceptable to abort a fetus. However, this impermissibly has degrees. In the first scenario (i.e. post-ensoulment) it is a grievous sin and categorically prohibited; in the second scenario (i.e. pre-ensoulment but post-discernment of limbs) it is lesser than this; in the third scenario (i.e. before features/limbs become discernible) it is relatively less severe than the previous two.” He then goes on to rule that abortion is not permitted for the following reasons: not desiring more children; conception out of wedlock; or being physically or mentally unable to care for a child, since others may be able to do so. Excuses that permit abortion before ensoulment include a doctor concluding with reasonable-surety that the child will suffer from a dangerous hereditary disease, physical abnormalities, and deformities, and the life of the mother is at serious risk.[32]

There are stricter views than some of those mentioned above, especially from non-Ḥanafī scholars. Shaykh Hamza Yusuf, taking the Mālikī school as his basis,[33] has argued that abortion before 40 days is prohibited “with rare exception.”[34] This view of impermissibility is also held by Shaykh Yūsuf al-Qaraḍāwī although he allows for a dispensation to be given to victims of rape.[35]

Shaykh ʿAbd Allāh ibn Bayya also deems abortion at all stages of pregnancy to be sinful to varying degrees except in situations where the life of the mother is at risk.[36]

Shaykh Wahba al-Zuhaylī (d. 2015) ruled that abortion was impermissible from the moment of conception “except in cases of necessity” such as being afflicted with cancer or an incurable disease.[37]

Framing the Problem: Basic Levels of Engaging the Law

The discussion so far makes one point quite evident: there are an array of opinions on the issue of abortion ranging from the extremely restrictive to the more permissive. Though ‘difference of opinion’ (ikhtilāf) has generally been viewed as one of the outstanding and unique features of Islamic legal discourse, it is precisely the range of views that exist in the tradition on abortion that partly plays a role in the problematic approaches to the issue seen amongst certain Muslims. It is not so much the differences themselves that are the issue, but the manner in which particular opinions are selected by individuals who subsequently propagate them to the community as binding doctrine.

To better understand this, one can broadly identify four basic levels of engagement with religious law applicable to Muslim leaders and scholars in the West in the context of the abortion issue,[38] which often overlap with one another: (a) personal, (b) academic, (c) fatwā, public preaching, and irshād, and (d) political.

(a) The Personal

The ‘personal’ level concerns an individual’s own practice where he or she can follow the legal school (or trusted scholar) of their choosing or decide on the rulings that govern their lives when possessing the ability to do so. This level does not directly concern anyone but the individual himself.

(b) The Academic

The ‘academic’ level in the current context refers primarily to a process of study, reflection and deduction, and research to arrive at a personal conclusion regarding some aspect of the law that is undertaken in conversation with a guild of peers and not the general population. Such academic activity is often theoretical, abstract, and conceptual, and even when it addresses more practical concerns, it constitutes a general articulation of an opinion, not an individualized responsa, that others engage with as members of a scholarly class. This scholarly class includes the ʿulamā’ and others whose input is relevant to a particular issue.

(c) Fatwā, Irshād, and Public Preaching

The realm of fatwā is exclusively for a qualified scholar. Here, the scholar enters most directly into the practical implementation of a legal ruling. Fatwā does involve an academic process, and it is often conveyed by a jurist as a universal ruling in accordance with his academic conclusions. However, the practice of fatwā is commonly understood as an answer directed by a qualified jurisconsult (muftī) to an individual (mustaftī) who requires guidance on a particular religious matter. The jurisconsult providing said individual with an answer is now tasked with translating the abstract, theoretical, and academic into a practical solution, which requires taking into account the circumstances of the questioner.[39]

The delicateness of this matter has led some scholars to compare the relationship of a jurisconsult with the questioner to that of a doctor and his patient.[40] Indeed, the answer that a scholar provides a questioner may not be fully in accordance with the theoretical and abstract conclusions the former has reached in an academic setting, it may disregard an opinion that the jurisconsult otherwise deems a valid legal interpretation because its application is not appropriate in the specific case at hand, it may be strict or lenient, in accordance with the legal school of the scholar or a dispensation from another, and it may be inapplicable to anyone but the questioner. Further, a fatwā is non-binding (unlike a judicial court ruling) and does not negate other valid opinions or peoples’ choice to follow them. This is important to note in contexts where a fatwā is issued to communicate a universal rule.

In many cases, the answer that is provided to a person is not presented as a fatwā but merely a form of religious advice or irshād. Though there is presumably a difference between these two concepts, they are sometimes indistinguishable in a Western context. Irshād has a seemingly less formal quality to it, and it can be offered by a non-scholar though the prerequisite of sound knowledge still remains. Like fatwā, the proffering of religious advice and guidance can assume a more public form and have an academic flavour to it. The articles written by non-scholars on the blogosphere, lectures and speeches delivered by speakers, and religious counsel extended to others falls within this general category of irshād. For those in leadership roles, the public nature of their work means that high standards are required even here when it comes to addressing and conveying religious issues of a complex or delicate nature.

(d) The Political

If the issuance of a fatwā and providing religious advice is a delicate matter, the process of forming, advocating for, and/or enacting laws on the political level is far greater in this regard. Such laws are made in the context of human societies and affect large swaths of people who objectively vary in their circumstances – individual, social, religious/ideological, and economic. Unlike a fatwā or irshād, once a law has been settled upon by the state, it becomes binding upon an entire population and any reasonable alternative ceases to hold validity in practice at least until the law is reviewed and amended. Exemptions are only tolerated when affirmed by the law itself. Further, law interacts with and influences society in complex ways. This is true for all forms of law, not just ones that are state-enacted.

A core question in legal philosophy is what the law ought to be or what makes a law good. The ‘good’ is a moral concept and might be described as one that is essentially contested in so far as people differ over its conception and the criteria for its application. Some emphasize the consequences of a rule (consequentialism), while others favour a deontological moral ethic or one that is virtue-centred. Each of these families of theories subsume within them further particular theories that differ with one another. There are also considerations of fairness, equity, distributive justice, enforceability, practicality, and/or efficiency that those evaluating the law might assign significant value to. These notions of morality and the good influence policy-making and legal systems.

How do Muslims approach this issue? Islam is viewed by Muslims as a comprehensive moral and philosophical system where the moral value of an act is determined by the divine will. It is the commands and prohibitions of God that render an action good or evil, and under this divine command theory, revelation is the primary source for moral knowledge.[41] However, this legal notion of moral value is not as straightforward as it sounds since a significant number of legal rulings are probabilistic in nature and differed upon. Consequently, the moral value attached to these rulings lack a decisive character, which engenders a plurality of moral outlooks. This pluralism is an indelible feature of the tradition itself creating a paradox whereby Muslims can affirm that good and evil are known through revelation, while recognizing that differences concerning moral judgments are part of the moral vision of revelation itself.

This raises important questions regarding the political approach a minority Muslim population in the West might take regarding the abortion issue. Should Muslims seek to accommodate a pluralism justified by tradition and avoid commandeering the state to coercively impose laws that negate the right of people to follow an acceptable and mainstream Islamic legal opinion?

Should Muslims simply support restrictions on abortion practices that contravene the consensus position of Islam? Or should Muslims seek to promote an opinion, or some combination of opinions, among those found in the legal schools on the basis of a reasonably defined criteria that assesses the issue holistically from the perspective of the theological, legal, ethical, and the public good?

Indeed, there are many classical opinions whose validity scholars did not accept, others that were prima facie valid but not put into practice, and classical jurists themselves erected systems to keep a check on legal chaos resulting from people being allowed to arbitrarily follow any opinion with a basis in precedent. Yet, Muslim societies always tolerated differences of opinion, and for most of its history, people living in these societies had recourse to various scholars from multiple legal schools. Unlike the centralizing and homogenizing tendencies of the modern nation-state, Islamic law was centrifugal and operated on a grass-roots level to produce self-governing societies. In many periods, this diversity was even found in judicial settings where courts were established for each of the legal schools. This was extended to non-Muslim populations living under Islamic governments as well who were accorded a high degree of autonomy. While this might strike some as a thing of the past, a nostalgic yearning for a bygone era, there are many lessons the community can draw from the attitudes and approaches of past societies.

In a political context, the notion of the ‘public good’ (maṣlaha) is particularly relevant given the scope and consequences of legislative actions, but it is a notoriously complicated one to pin down and, like the ‘good’, might be described as essentially contested. Even the basic question “who will this law or opinion impact, and in what manner” takes one into a complex maze of considerations and perspectives that demand careful attention and thought. It is hard to imagine any informed answer to this question without the input of a variety of experts. While Muslims are not quite in a position to craft legislation, influential religious activists and scholars who advocate for specific legislation and/or discourse on it to the wider community should keep the above points in made for any advocacy that proceeds in the name of religion is one that must be approached with care and seriousness.

Abortion

Identifying the Problem: Beyond Personal Preferences, Emotions, and Selective Madhhab Picking

With this framework in mind, it is now possible to identify a major problem in current American Muslim discourse on abortion, which is that it does not meaningfully engage any of the levels described above save the personal. The distinction between these various engagement contexts is hardly recognized. Most public discourse on abortion promotes one traditional opinion over another based not on a rigorous standard that is grounded in revelation, theology, legal theory, ethics, the public good, and a keen awareness of human nature, the individual, political, social, and ideological currents and factors, historical trends, and the challenges of the contemporary world, but seemingly on personal opinions based on little more than a reaction to a perceived ideological threat, individual proclivities, or pure taqlīd. The mainstream opinions of the legal school simply act as tools of legitimation for one’s personal view.

The Problem of Imposition

On a personal level, this is not a problem per se, and people have their reasons to select certain views as opposed to others and even vociferously promote them in some limited capacity to friends, colleagues, or family over a session of tea or a short-lived social media feud with random individuals. However, for those in positions of leadership and influence, this cannot be the basis for a fatwā, general communal irshād, or public advocacy impacting millions of people. The imposition of the personal onto these areas in this manner is both ill-advised and potentially harmful. Even the conclusions reached by a scholar on the basis of sound academic research may be put aside in these contexts, i.e. fatwā and political activism/legislation, when the scholar feels that competing considerations and interests demand so. Thus, a scholar may believe in a reading of revelation that is extremely restrictive on abortion but recognizing the probabilistic nature of his interpretation and the variety of individual circumstances, the ethical norms of ease and warding off hardship, profound societal and economic changes, complex and strained community and family structures, the advice of other experts, and the general public good chooses not to advocate for this view as a matter of policy to be implemented as law or provided to a specific individual as a legal edict.

The Sunna Imperative for Leniency, The Lack of Depth of the Lenient

It is often forgotten that a peculiar response by some classical jurists to the degenerated state of society was not in toughening up legal prescriptions but relaxing them: “Our time is not one of avoiding the doubtful (shubuhāt), meaning if a person only avoids the impermissible, it is sufficient.”[42] This was an ethical consideration influencing the judgment of the jurist who saw it not as compromising religion nor a dereliction of his duty but part of the guidance of the sunna itself where facilitating the affairs of people was deemed important.[43] As Shaykh Abdal Hakim Murad states commenting on the instruction of al-Birgivī (d. 981/1573) not to give the laity the more difficult opinion on an issue validly differed upon:

This, of course, is a Prophetic counsel. The ego doesn’t always like giving people easy options because we assume it is because of our laziness or some kind of liberal Islam. For al-Birgivī it is taqwā to give the ordinary Muslims the easier interpretations… but nowadays, we tend to assume that the narrower you are, the less compromises you make, the more the West will be angry and, therefore, the better the Muslim you must be.[44]

The Prophetic counsel that Shaykh Abdal Hakim refers to is known to many: “Make things easy and do not make them difficult.” This attitude of facilitating matters for people, granting them leniency, and not repulsing them with harshness and difficulty is a part of Islam. As Imām al-Shāṭibī stated, the removal of hardship (rafʿ al-ḥaraj) is a decisively established foundational principle in the shariah.[45] From this foundational principle arises some of the most important legal and ethical principles in the Islamic tradition, such as hardship necessitates ease, there is no harm nor reciprocating harm, harm is lifted, the lesser of two evils, taking into account the consequences of an act, custom as a source of law, and more. In fact, some jurists opined that when the evidence for an issue was contradictory or conflicting, the more lenient opinion was to be given preference due to the generality of revelatory texts affirming ease in the shariah.[46]

But there is a problem. Many of those who promote and relay the lenient Ḥanafī opinion of unconditional permissibility approach it in a manner that lacks substance. On the academic plane, even basic questions regarding this position are not addressed or understood, much less entertained. Take, for example, the difference between the statement of Ḥanafī jurists that abortion is impermissible after the physical features of the fetus become discernible and the statement of others in the school that this impermissibility comes into effect after a 120-day period. Are these the same? Who in the madhhab held these positions? Is there a clear preference for one or the other? How was discernibility understood? What features needed to be discernible? Did discernibility refer to what is normally observable by humans or to what is discernible by modern embryogenesis? How have contemporary jurists addressed this issue? Then there is the matter that one is hard-pressed to find a single contemporary Ḥanafī jurist who favours the view of unconditional permissibility. What does this reveal about this opinion and the possibility of critically evaluating past opinions that fall within the scope of differences of opinion?[47]

These questions largely fall within the parameters of an intra-school discussion and do not even begin to address the broader social and political considerations mentioned earlier.

Here, the sheer fact that there were over six-hundred thousand abortions reported in America in 2015, the latest year for which statistics exist from the CDC, should be alarming to people and cannot be callously dismissed.

Though the overwhelming majority of these occurred well within a 120-day period (≤13 weeks’ gestation, which is measured from the first day of the woman’s last menstruation and not from the day of conception), most of those who obtained these abortions were unmarried women who did so in non-dire circumstances.[48] The culture of sexual freedom out of which the abortion movement emerged and its ideological grounding in notions of bodily autonomy and personal choice cannot be ignored in this discussion.[49] Nor can the devaluing of family and motherhood,[50] the practice of female foeticide, the increasingly materialistic outlook of society, and its mechanistic view of human beings.

Additionally, some Muslims seem largely oblivious to the fact that abortion politics link to many other issues that have little do with abortion itself, such as assisted suicide or end-of-life care. In a famous district court case on assisted suicide, Compassion in Dying vs. Washington, it was Planned Parenthood vs. Casey that was cited as an important precedent to rule that a ban on physician-aided suicide was unconstitutional.[51] Clearly, it is not sufficient to make simplistic appeals to leniency to justify promulgating an opinion that leads to such wider consequences. Abortion, in other words, cannot be treated as a ‘stand-alone’ issue with little or no relation to a broader philosophical outlook that downplays a sanctity of life ethic.[52]

Thou Shalt Make No Exceptions, But Should We?

Many of the issues highlighted in the previous paragraph raise serious theological and ethical concerns for Muslims and should push them to reflect on the type of society they wish to create and sustain in America. Is the abortion movement today in line with the moral vision envisioned for society by God and His Prophet (blessings upon him)? Clearly not. But while the seriousness of this crisis cannot be understated, a core question, at least in the context of this debate, is often missed: if it is misplaced and dangerous to forward the most lenient opinion in this context, in what way does the strictest possible position on abortion where exemptions are not even extended to victims of rape and incest ameliorate the current situation? Or to put it differently, how do these social and ideological problems make the strictest possible opinion on abortion the most appropriate one to adopt for the individual and society?

The answer to this question is not usually satisfactorily provided. Generally, such a view returns to a genuine moral belief one holds regarding a fetus being an inviolable living person. This moral belief may be grounded in a preferred reading of revelation, simple adherence to a specific legal school, a reaction to a perceived ideological battle framed in the language of pro-life vs. pro-choice, personal inclinations, or, as is usually the case, some combination of these factors. But the no-exception view is at least initially a personal view one holds, which is then forwarded as a broad religious and political solution. One may wonder why this is an issue. After all, why shouldn’t a person forward what he or she personally believes to be the Islamic ruling on an issue?

Certainly, this is expected especially when it concerns human life, but as stated earlier, it is problematic when that personal view, which it should be noted in this case lacks a decisive legal/moral character from a religious perspective, moves into the realm of fatwā and public advocacy without taking into account the many considerations required to make an informed decision in these areas. This is in addition to the fact that those who hold this view feel perfectly within their rights to tell others to set aside their personal moral views permitting abortions precisely in view to a broader context.

Here, it is worth sharing the response given by Shaykh Yūsuf al-Qaraḍāwī when he was asked about abortions for Bosnian Muslim women who were raped during war. After mentioning that his basic view is that abortions are impermissible “from the moment of conception” and “this is what we give preference to”, he states:

However, in cases of need, there is no harm in taking one of the two alternative views (i.e. permissibility before 40 or 120 days), and whenever the excuse is more severe, the dispensation will be more established and manifest, and whenever it is before the first 40 days, it is closer to dispensation.

We know that there are jurists who are very strict on this matter and do not permit abortion even a day after conception… but what is most preferable is a middle path between those who are expansive in granting permission and those who are excessively strict in prohibition.[53]

This is, of course, how knowledge and fiqh operate. They do not merely float around in the world of the abstract but address a complex world of real people, which in the context of fatwā, irshād, and politics often requires setting aside individual feelings and personal adherences to particular legal opinions: “Know that this ikhtilāf [between scholars] may be a reason to provide facilitation and ease, which is one of the higher aims of the shariah affirmed by the unequivocal text of the Qur’an and sunna.”[54]

Too often, many of those who vociferously promote the strictest view on abortion address the issue on the level of the abstract and then transfer it to the practical realm with little further thought. Take, for example, the argument that Muslims should oppose the legalization of abortion because a majority of abortions are due to economic anxiety or a feeling of unreadiness, which in turn return to the increasingly materialistic outlook of society and crumbling family structures.

This materialistic outlook and erosion of the family must be remedied. However, no justification is ever furnished as to why a no-exception abortion stance is the best method to address this social problem, and there is almost no focus on the individual. It never crosses the mind of the proponents of this view that it is the very fact that society is materialistic to its core and the family lay in ruins that causes economic anxiety and feelings of unreadiness to be felt much more palpably and intensely by young, unmarried, pregnant women.

Web MD

By largely confining their analysis and presentation of the issue to ‘materialism’, ‘decay of family’, ‘feminism’, etc., proponents of the restrictive view (inadvertently) divert attention away from the lived realities of people. This leads to neglecting the more concrete conditions and circumstances people are subject to, such as poverty, unemployment, drug abuse, poor health, psychological issues, sexual abuse, incarceration, social inequality and stratification, and the varying abilities of people to cope with life pressures and struggles. This focus away from the individual produces an unsympathetic, even antagonistic attitude, where the solution favoured is uncompromising and rigid. The ethical is erroneously conflated with strictness even though it might entail leniency in recognition of individual and social conditions.

To take one example where these broader considerations come into play, take the issue of pregnancy resulting from rape. Though statistics regarding rape are inconsistent because the crime is so underreported, it is safe to say that hundreds of thousands of women are victims of rape every year with tens of thousands of these rapes resulting in pregnancy (approximately five percent).[55] A significantly high number of rape victims are under eighteen with many actually being under the age of twelve.[56] Victims of rape spend many weeks simply recovering from physical injuries and managing mental health symptoms, which can remain with them for years. Beyond the physical and psychological symptoms common after rape, if a rape victim decides to carry her child to term, she is forced to go through a lengthy and exhausting process to prosecute her rapist in a criminal court and contest custody in a family or dependency court.

The political and legislative context makes matters even more difficult. Not every state has legislation in place allowing for parental rights to be terminated for a rapist. Most states that do have such legislation in place require a criminal conviction of rape beyond a reasonable doubt, which is the highest standard of evidence possible, with several also requiring a civil court conviction by clear and convincing evidence that conception resulted from rape.

Some states require the rape to be of the first-degree, which is varyingly defined.[57] Generally, the chances of obtaining a conviction of first-degree rape are slim. Not only do rape crimes go unreported in a majority of cases,[58] there are numerous hurdles in the criminal justice system that disadvantage rape victims at every stage of the process, such as ‘rape myths’ that influence police, investigative officers, jurors, and judges.[59]

In most cases, a rapist will plead guilty to lesser crimes in order to avoid prolonged jail time, which would potentially allow him to gain parental rights in states requiring first or second-degree rape convictions for such rights to be terminated.[60] In view of this, one can state that the suggestion by some Muslims that abortion should not be permitted even in such contexts because a woman can simply put her child up for adoption is seriously misinformed and potentially harmful.[61] Is the correct solution in this context to support the most restrictive view on abortion?

Conclusion: Refining our Conceptualization & The Bigger Picture

American Muslims must go beyond simplistic and emotionally-charged approaches to the abortion question. This issue, like many others, cannot be properly addressed through a narrowly defined law, politics, or clash of ideologies narrative, especially at the level of individual fatwā, communal irshād, or political activism, advocacy, and legislation.

Nor can the wider community be shown direction on this issue, or have a course charted for them, merely on the basis of narrowly-informed personal opinions and proclivities neatly presented in the classical opinions of our choosing. Our approach must address the issue through real fiqh, namely deep understanding, where the question of abortion is tackled with an academic rigor that is cognizant of lived realities and is grounded in the ethics and guidance of revelation.

Today in America, a crisis we face is of an activism not based in, or guided by, real scholarship, and a scholarship that is wanting, uninspiring, and disconnected from those it seeks to guide. The first step scholars must take on this issue is to gain a proper and thorough conceptualization of the issue. No sound and effective conclusion can arise without such a conceptualization. This is true for any issue we find ourselves dealing with.

On the level of addressing the broader community, this is not an issue to be decided by an individual but a collectivity of minds coming together to exchange ideas and opinions. The laity should understand that American Muslims will not reach an agreement on this matter, and nor should we demand that they do. People will continue to forward different opinions and solutions. The progression of time will likely result in a plurality of acceptable views emerging within our context. This should not be met with confusion.

Muslims once lived in an age of ambiguity where opinions were confidently held but differences embraced. Today, we live in an age of anxiety, people with confused identities, threatened by modernity and various ideologies, so much so that “the only form of Islam [we] can regard as legitimate is a totalitarian, monolithic one” as Shaykh Abdal Hakim once remarked. Let us avoid this, allow for different perspectives, but demand higher standards from those who seek to guide us and speak on our behalf especially when the matter veers into a space that impacts people and communities in a very real way.

Finally, and most importantly, Muslims must break out of the mindset that social problems can simply be legislated away or solved through polemical battles waged on the internet against pernicious ideologies. The political and social are intimately intertwined, but it is all too common to see many Muslims neglecting the latter while imagining that the activities they are engaged in to address the political are actually meaningful and impactful. In fact, it is often detached from the real world, a mouthing of clichés and idle moralizing on social media platforms that elicits rage and fails to yield actual solutions on the ground. If television altered the meaning of being informed as Neil Postmann asserted, social media has undoubtedly taken things a step further by altering the meaning of ‘taking action’.

The erosion of family, the decay of morality, the rise of materialistic outlooks, the loss of higher purpose and meaning, and the devaluing of life must be addressed more directly through education, the creation of a real community, the nurturing and training of leaders who embody knowledge and wisdom, and the erection of structures that support peoples’ faith and anchor them in times of crisis. It should not be forgotten that these non-legal institutions play an important role in shaping behaviours and promoting social mores.

Muslims should learn from the many conservative Christian activists who, contrary to popular stereotypes, demonstrate an acute awareness of the struggles and anguish that many women contemplating abortion experience. As the prominent pro-life activist Frederica Mathewes-Green states:

This issue gets presented as if it’s a tug of war between the woman and the baby. We see them as mortal enemies, locked in a fight to the death. But that’s a strange idea, isn’t it? It must be the first time in history when mothers and their own children have been assumed to be at war. We’re supposed to picture the child attacking her, trying to destroy her hopes and plans, and picture the woman grateful for the abortion, since it rescued her from the clutches of her child.

If you were in charge of a nature preserve and you noticed that the pregnant female mammals were trying to miscarry their pregnancies, eating poisonous plants or injuring themselves, what would you do? Would you think of it as a battle between the pregnant female and her unborn and find ways to help those pregnant animals miscarry? No, of course not. You would immediately think, “Something must be really wrong in this environment.” Something is creating intolerable stress, so much so that animals would rather destroy their own offspring than bring them into the world. You would strive to identify and correct whatever factors were causing this stress in the animals.[62]

It is this realization, which arises from a perspective that looks beyond abortion as simply an ideological battle between ‘the feminist’ or ‘the liberal’, that generates a sense of empathy within many conservative Christian activists who are then motivated to assist women in concrete ways.

Take the example of Embrace Grace, a Texas-based non-profit organization, which describes its purpose as “providing emotional, practical and spiritual support for single, young women and their families who find themselves in an unintended pregnancy” and to “empower churches across the nation to be a safe and non-judging place for the girls to run to when they find out they are pregnant, instead of the last place they are welcomed because of shame and guilt.” Christians have set up hundreds of pregnancy care centers across the United States, which, despite issues of concern, provide resources and services to pregnant women. Various churches have set up support groups for single mothers and mothers-to-be, while the Christian Community Development Association (CCDA) has set out to confront systemic injustices in society that lead women to seek out abortions, such as poverty.[63]

Shaykh Abdal Hakim Murad said reaching the golden mean requires that we think and make sacrifices. It is time for leaders, thinkers, and scholars in our community to begin thinking more deeply and contemplatively about the issue of abortion in its various contexts, and it is time for our community to sacrifice their time, wealth, and energies in providing concrete solutions and remedies that demonstrate a true concern for both the unborn and the women who carry them.

God alone is our sufficiency.

[1] References to Muslims in this article should be primarily understood as referring to people in positions of leadership and influence. In this article, I discuss some of the technical aspects surrounding the legal debate over abortion, but my intent is to simply provide a brief overview of this aspect of the debate in order for a general audience to appreciate some of the complexities of the topic.

[2] Though the term fetus technically refers to the unborn after 8 weeks of gestation, many use it to refer to the unborn throughout the period of pregnancy. I will be using the latter convention for the sake of simplicity.

[3] al-Ḥasan ibn Manṣūr al-Farghānī, Fatāwā Qāḍīkhān, on the margins of Fatāwā Hindiyya (Bulāq: al-Maṭbaʿa al-Amīriyya, 1310 A.H.), 3:410.

[4] Ibn Māza himself framed the ruling in terms of ensoulment. He stated that jurists differed on the permissibility of abortion pre-ensoulment with some permitting it. He then cited the text of Fatāwā Ahl al-Samarqand, which only speaks of discernibility. Qāḍīkhān mentioned how the discernibility of physical features and limbs was “determined” by some as occurring at 120 days. Kamāl ibn al-Humām and others correctly pointed out that observation proves otherwise but proceed to state that the connection made between discernibility and ensoulment shows that scholars intended the latter when expressing the former. Ibn ʿĀbidīn, however, questioned this. I agree for several reasons: firstly, many jurists make no reference to 120 days or ensoulment when presenting this ruling; secondly, discernibility and ensoulment are clearly different stages during the pregnancy, a fact that was known to classical scholars who sometimes applied different terms to these two stages, such as taṣwīr/ṣūra and takhlīq/khalq; and, thirdly, most Ḥanafī rulings premised on determining personhood rely on the discernibility criterion. Given this, there are two possible views in the Ḥanafī school regarding the period before which abortion is permissible: before some of the physical features of the fetus become discernible or prior to ensoulment at 120 days. Additionally, there was discussion in the Ḥanafī school on the features that were to be given consideration when assessing whether a fetus was a ‘person’. These discussions are highly significant in modern debates for if the criterion for personhood is discerning a particular physical form on the basis of observation, this potentially broadens the scope for modern Ḥanafī understandings of the concept of personhood and how/when it is established. I hope to address these issues in a separate paper. See Maḥmūd ibn Aḥmad ibn Māza, al-Muḥīṭ al-Burhānī fī al-fiqh al-Nuʿmānī, ed. Nuʿaym Ashraf Nūr Aḥmad (Karachi: Idārat al-Qur’ān wa’l-ʿUlūm al-Islāmiyya, 2004), 8:83-84; al-Farghānī, Fatāwā Qāḍīkhān, 3:410; Muḥammad Amīn ibn ʿĀbidīn, Radd al-Muḥtār (Būlāq: al-Maṭbaʿa al-Kubrā al-Amīriyya, 1323 A.H.), 1:201.

[5] Ibn Māza, al-Muḥīṭ al-Burhānī, 8:83-84. It is worth noting that al-Qummī did not say fetus is a life at conception but that it has begun a process that concludes with life.

[6] Ḥussām al-Dīn ʿUmar ibn Māza, al-Fatāwā al-Kubrā (Istanbul: Rāghib Bāshā #619), ff. 96b.

[7] Raḍī al-Dīn al-Sarakhsī, al-Wajīz (Istanbul: Koprulu #684), ff. 116a.

[8] Jamāl al-Dīn Aḥmad ibn Muḥammad, al-Ḥāwī al-Qudsī, ed. Ṣāliḥ al-ʿAlī (Lebanon: Dār al-Nawādir, 2011), 2:326.

[9] Zayn al-Dīn Muḥammad ibn Abī Bakr al-Rāzī, Tuḥfat al-Mulūk, ed. Ṣalāḥ Abū al-Ḥajj (Amman: Dār al-Fārūq, 2006), 290.

[10] ʿAbd Allāh ibn Maḥmūd al-Mawṣilī, al-Ikthiyār, ed. Shuʿayb Arna’ūṭ (Damascus: Dār al-Risāla 2009), 4:153.

[11] ʿUthmān ibn ʿAlī al-Zaylaʿī, Tabyīn al-Ḥaqā’iq Sharḥ Kanz al-Daqā’iq (Multan: Maktaba Imdādiyya, n.d.), 2:166.

[12] Amīr Muḥammad ibn Muḥammad al-Kākī, Miʿrāj al-Dirāya (Istanbul: Koprulu #619), ff. 395b.

[13] Jalāl al-Dīn ibn Shams al-Dīn al-Khawārizmī, al-Kifāya Sharḥ al-Hidāya, on the margins of Fatḥ al-Qadīr (Cairo: Maṭbaʻat al-Maymaniyya, 1901; reprint Dār al-Kutub al-ʿIlmiyya, n.d.), 3:373.

[14] Kamāl ibn al-Humām, Fatḥ al-Qadīr (Cairo: Maṭbaʻat al-Maymaniyya, 1901; reprint Dār al-Kutub al-ʿIlmiyya, n.d.), 3:372-73.

[15] Muḥyī al-Dīn ibn Ilyās Jawīzāda, al-Īthār li-Ḥall al-Mukhtār, ed. Ilyās Qablān (Istanbul: Maktabat al-Irshād, 2016), 4:98.

[16] Muḥammad ibn ʿAlī al-Ḥaṣkafī, al-Durr al-Mukhtār (Lebanon: Dār al-Kutub al-ʿIlmiyya, 2002) 197.

[17] I am usually disinclined to list names of jurists in this manner when relating who held a specific legal opinion. One reason for this is that it creates the mistaken illusion that every one of these jurists came to this conclusion on the basis of their individual ijtihād when it may in fact simply be an exercise in taqlīd. Thus, one finds that most of these authors merely relate verbatim those who preceded them without any additional comments. However, it still indicates that these jurists accepted the ruling in question as the position of the school without qualms.

[18] When does a fetus qualify as a ‘person’ or a ‘human’? What are the necessary and sufficient features for personhood? Does personhood correspond to the beginning of life? If not, when does life begin? How is this connected to ensoulment? When does ensoulment occur? When does a fetus have moral standing? What is the nature of this moral standing over the course of a pregnancy? These are central questions in classical and modern debates on abortion. Sometimes, one finds that ‘person’, ‘human’, ‘life’, and related terms, are not properly defined, which is a problem given that conclusions regarding abortion are often premised on their proper conceptualization. Further, when attempts at proper definition are undertaken, people naturally come to different conclusions. For example, some modern pro-life philosophers argue that ‘persons’ are individuals of a rational nature and a fetus has no capacity for sentience, at least not until mid-gestation. Conception, therefore, cannot mark the beginning of a person. Yet even here, some scholars note that the fetus is a potential person. Therefore, it has some moral value and standing, but others counter with a “person-affecting restriction” that argues that merely potential people possess no moral claims. Some people work under material assumptions regarding the nature of the mind and opine that a moral person must be a ‘self’ and a necessary condition for something to be a self is some form of electrical brain activity. The bioethicist, Baruch Brody (d. 2018), also relied on this criterion of brain waves in his conception of personhood. Jane English presents a range of features or ‘factors’ that she views as being found in typical conceptions of a person: biological, psychological, rationality, social, and legal. There are religious conservative thinkers who define being human on the basis of genetics. John T. Noonan stated, “The positive argument for conception as the decisive moment of humanization is that at conception the new being receives the genetic code. It is this genetic information which determines his characteristics, which is the biological carrier of the possibility of human wisdom, which makes him a self-evolving being. A being with a human genetic code is man.” Many religious conservatives also maintain that there is no moment during pregnancy that can be identified as conferring moral significance on the unborn, i.e. it possesses moral standing before birth and after. Thus, brain waves, sentience, quickening, viability, physical human form, etc., are given no consideration as points at which moral standing is affirmed for the fetus and prior to which it is denied. For important early works on this topic see John T. Noonan, The Morality of Abortion: Legal and Historical Perspectives (Cambridge, MA: Harvard University Press, 1970); Jane English, “Abortion and the Concept of a Person,” Canadian Journal of Philosophy 5, no. 2 (1975): 233-43; Baruch Brody, Abortion and the Sanctity of Life (Cambridge, MA: The MIT Press, 1975); Stephen Buckle, “Arguing From Potential,” Bioethics 2, no. 3 (1988): 226–253; Mary Anne Warren, Moral Status: Obligations to Persons and Other Living Things (New York: Oxford University Press, 2000); Michael Tooley, Abortion and Infanticide (Oxford: Clarendon Press, 1983); Richard Warner, “Abortion: The Ontological and Moral Status of the Unborn,” Social Theory and Practice 3 (1974). The literature on this is vast.

Classical jurists of Islam were guided fundamentally by revelation in their answers to these questions, but they still had substantial disagreements. Some identified a fetus as a person from the moment of conception, others as potentially so, yet others as a person only when its physical features became discernible, while some seemingly assigned no status to it at any fetal stage prior to ensoulment. When it came to ensoulment, the majority said this occurred at 120 days, while others said 40 days. Some equated ensoulment with personhood, while others distinguished between them. There were other conceptual frames utilized in discussions concerning the fetus as well, such as dhimma and ḥuqūq, being ‘animate’ or ‘inanimate’, a constituent part (juz’) of the mother or a separate self (nafs), and so forth. This occasioned a degree of ambiguity regarding the moral standing of the fetus at various stages of pregnancy. For example, Imām al-Ghazālī prohibited abortion at all stages of pregnancy but stated that the sin of doing so is less severe in earlier stages than later ones. Some jurists deemed it permissible to undergo an abortion due to a minor excuse in the first 40 days, requiring a more serious excuse from that point up until 120 days, and impermissible in all but the direst of situations following ensoulment. The fetus, therefore, seems to have a diminished moral standing at the beginning of the pregnancy and full moral standing post-ensoulment even in the eyes of jurists who affirmed personhood from conception. This is also reflected in rulings concerning financial compensation (ghurra) and expiation (kaffāra) owed by someone who causes a woman to miscarry. Meanwhile, many Ḥanafīs seemed to have assigned no moral status to the fetus before it had a discernible human form. The moral standing of the fetus was also influenced by the manner of conception with some jurists suggesting that a fetus conceived out of wedlock was not similar to a fetus that was conceived through a religiously sanctioned relationship. Besides revelation, observation played an important role in these determinations, as did the specific legal traditions jurists operated within. Today, science and embryology have guided the conclusions of many scholars, which has raised questions regarding the epistemological and interpretive value of the former. There is arguably a need to go beyond limited legal conceptions of personhood and life and engage in deeper theological and philosophical discussions on this matter.

[19] This ruling was consistent with several others in the school regarding whether a miscarried fetus is named, shrouded, and washed, whether a miscarriage concludes the waiting-period of a pregnant woman, and even whether a fetus is resurrected in the next-life. These rulings, among others, returned to whether the miscarried or stillborn fetus was actually considered a child/person, which in turn related to the formation and discernibility of its physical features. I believe this strengthens the view that discernibility of physical features was the main criterion for personhood in the Ḥanafī school. For some of these rulings see Muḥammad ibn al-Ḥasan al-Shaybānī, al-Aṣl, ed. Mehmet Boynūkālin (Beirut: Dār Ibn Ḥazm, 2012), 1:296, 4:415, 481, 5:144. This interconnectedness of legal doctrine, or its organic unity, is expressed in a famous aphorism, “The law is a seamless web.” These discussions are also present in the other three legal schools.

[20] Abū Muḥammad ʿAbd al-Wahhāb ibn Wahbān, ʿIqd al-Qalā’id wa-Qayd al-Sharā’id, ed. ʿAbd al-Jalīl al-ʿAṭā (Damascus: Maktabat al-Fajr, 2000), 195.

[21] Zayn al-Dīn ibn Nujaym, al-Baḥr al-Rā’iq (Cairo: al-Maṭbaʿa al-ʿIlmiyya, 1893; reprint by H.M. Saeed, n.d.), 3:215.

[22] Muḥammad Amīn ibn ʿĀbidīn, Radd al-Muḥtār (Būlāq: al-Maṭbaʿa al-Kubrā al-Amīriyya, 1323 A.H.), 2:388-89.

[23] The Hidāya mentions that a child conceived out of wedlock is still muḥtaram and so cannot be aborted. Imām ʿAbd al-Ḥayy al-Lakhnawī mentions that this only applies to a fetus that has reached the stage of post-discernibility. He then goes onto state that the fatwā position in his time is that it would be permissible pre-discernibility and post-discernibility. See Burhān al-Dīn al-Marghinānī, al-Hidāya Sharḥ Bidāyat al-Mubtadī maʿa Sharḥ al-ʿAllāma ʿAbd al-Ḥayy al-Lakhnawī, ed. Naʿīm Ashraf Nūr Aḥmad (Karachi: Idārat al-Qur’ān wa’l-ʿUlūm al-Islāmiyya, 1417 A.H.), 3:25.

[24] Muṣṭafā Zarqā, Fatāwā (Damascus: Dār al-Qalam, 2010), 285.

[25] Maḥmūd Ḥasan Gangohī, Fatāwā Maḥmūdiyya (Karachi: Idārat al-Fārūq, 2009), 18:321.

[26] Sayyid Muḥammad Salmān Manṣurpūrī, Kitāb al-Nawāzil (Muradabad: al-Markaz al-ʿIlmī lil-Nashr wa’l-Taḥqīq, 2016), 16:248-81.

[27] Muftī Raḍā’ al-Ḥaqq, Fatāwā Dār al-ʿUlūm Zakariyya (Karachi: Zam Zam Publishers, 2015), 6:756.

[28] Ibid., 6:755.

[29] Ibid., 6:763.

[30] Zubayr Aḥmad Qāsmī, “Khāndānī Manṣūbabandī,” in Jadīd Fiqhī Mabāḥith (Karachi: Idārat al-Qur’ān, 2009), 1:332.

[31] Ibid., 1:331-32.

[32] Khālid Sayf Allāh Raḥmānī, Kitāb al-Fatāwā (Karachi: Zam Zam Publishers, 2008), 6:218-226

[33] The relied-upon position in the Mālikī school prohibits abortions almost entirely even if done prior to ensoulment, which Mālikī jurists opine as occurring at 40 days.

[34] https://renovatio.zaytuna.edu/article/when-does-a-human-fetus-become-human

[35] Yūsuf al-Qaraḍāwī, Fatāwa al-Muʿaṣara (Cairo: Dār al-Qalam, 2005), 2:541-50.

[36] ʿAbd Allāh ibn Bayya, Ṣināʿ at al-Fatwā wa-Fiqh al-Aqaliyyāt (UAE: Masār lil-Tibāʿa wa’l-Nashr, 2018), 577-78.

[37] Wahba al-Zuhaylī, al-Fiqh al-Islāmī wa-Adillatuhu (Damascus: Dār al-Fikr, 1985), 3:557.

[38] The delineation and explanation I have presented here should not be seen as a comprehensive exposition of the concepts being discussed. Rather, it should be seen as a basic explanatory framework to understand the problem I wish to highlight in the next section. I have intentionally left out many details surrounding fatwā, siyāsa, taqlīd, etc., for the sake of the average reader.

[39] Muḥammad Kamāl al-Dīn al-Rāshidī, al-Miṣbāḥ fī Rasm al-Muftī wa-Manāhij al-Iftā’ (Deoband: Ittiḥād Book Depot, n.d.), 61-62 in the Takmila; Ibn Bayya, Ṣināʿ at al-Fatwā, 28-29, 230.

[40] al-Rāshidī, al-Miṣbāḥ, 28.

[41] ʿ Abd al-Malik ibn Yūsuf al-Juwaynī, Kitāb al-Irshād ilā Qawāṭiʿ al-Adilla fī Uṣūl al-Iʿtiqād, ed. Aḥmad ʿAbd al-Raḥīm (Cairo: Maktabat al-Thaqāfa al-Dīniyya, 2009), 210-11. This is admittedly a simplification of a very complex debate on the role of reason, its meaning and limitations, its relationship to revelation, deontological vs teleological theories of Islamic normative ethics, and more. These were issues of fundamental debate between the great theological schools, namely the Ashʿarīs, Māturīdis, and the Muʿtazila.

[42] Ibrāhīm ibn Ḥusayn Bīrīzāda, ʿUmdat Dhawī al-Baṣā’ir li-Ḥall Muhimmāt al-Ashbāh wa’l-Naẓā’ir, ed. Ilyās Qablān & Ṣafwat Kawsa (Istanbul: Maktabat al-Rushd, 2016), 2:415.

[43] This is also seen in the tradition of rukhas, or dispensations, and ḥiyal, or legal stratagems/loopholes.

[44] From his Paradigms of Leadership (6) lecture series.

[45] Ibrāhīm ibn Mūsā al-Shāṭibī, al-Muwāfaqāt, ed. Mashhūr Ḥasan (Cairo: Dār Ibn ʿ Affān, 1997), 1:520.

[46] For reference to this see Ibn Bayya, Ṣināʿ at al-Fatwā, 273-75.

[47] One might state that these people are simply engaging in a form of taqlid. This is fair, but there is still a level of diligence and rigor expected from anyone who wishes to publicly opine on a matter of such nature.

[48] https://www.cdc.gov/mmwr/volumes/67/ss/ss6713a1.htm

[49] Take the following statements made by Judith Thomson in her well-known defence of abortion, which continues to be loudly echoed by the pro-choice movement: “My own view is that if a human being has any just, prior claim to anything at all, he has a just, prior claim to his own body” and “No doubt the mother has a right to decide what shall happen in and to her body.” The violinist analogy she forwards, among others, expresses this point quite clearly. See Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy & Public Affairs 1, no. 1 (1971): 48, 54.

[50] The sociologist Kristen Luker noted over three decades ago that pro-life and pro-choice activists were mainly divided due to their differing views on the meaning of sexuality, motherhood, and the role of women. See Kristin Luker, Abortion and the Politics of Motherhood. Berkeley (California: University of California Press, 1984), especially Ch 7.

[51] Compassion in Dying v. Washington, 850 F. Supp. 1454 (WD Wash. 1994). This was unanimously overturned by the Supreme Court in 1997.

[52] The phrase ‘sanctity-of-life’ has featured prominently in theological, political, and biomedical ethical discussions related to abortion and end-of-life questions. Some members of congress, for example, have tried repeatedly to introduce a ‘Sanctity-of-Life Act’ to protect the unborn. However, the origins, meaning, and application of the phrase remain unclear and heavily debated. For a basic overview see the edited volume Sanctity of Life and Human Dignity (Boston: Springer Dordrecht, 1996).

[53] al-Qaraḍāwī, Fatāwa al-Muʿaṣara, 2:609-13.

[54] Ibn Bayya, Ṣināʿ at al-Fatwā, 273.

[55] The Federal House Bill 1257 that passed in 2015 as the Rape Survivor Child Custody Act cites between 25,000 and 32,000 pregnancies from rape annually but this is almost certainly an underestimate.

[56] For details on these and other related statistics see https://www.cdc.gov/violenceprevention/pdf/2015data-brief508.pdf.

[57] For detailed information regarding state statutes and provisions on the termination of pregnancy in contexts of children born as a result of sexual assault see http://www.ncsl.org/research/human-services/parental-rights-and-sexual-assault.aspx

[58] For statistics on this see the Department of Justice Criminal Victimization analysis (revised, 2018) at https://www.bjs.gov/content/pub/pdf/cv16.pdf. There are several reasons why women choose not to report such crimes, which include fear of retaliation, shame and guilt, and a belief that police will not be able to help them.

[59] For a brief discussion on existing research around rape myths see Olivia Smith & Tina Skinner, “How Rape Myths Are Used and Challenged in Rape and Sexual Assault Trials,” Social & Legal Studies 26, no. 4 (2017): 442-45.

[60] Rachael Kessler, “Due Process and Legislation Designed to Restrict the Rights of Rapist Fathers,” Northwestern Journal of Law and Social Policy, no. 10, vol 1 (2015): 199-229.

[61] There is a sensitive discussion surrounding the definition of rape in Islamic law specifically as it relates to intimate married partners. I have ignored this issue because it would distract from the main purpose of this article.

[62] https://www.nationalreview.com/2016/01/abortion-roe-v-wade-unborn-children-women-feminism-march-life/

[63] There have been initiatives in the Muslim community directed at addressing these pressing issues, such as the work of Dr. Aasim Padela of the University of Chicago and his Initiative on Islam and Medicine, Dr. Rafaqat Rashid and the work of al-Balagh Academy, Dr. Mansur Ali of Cardiff University and his research on bioethics, and several others. This is not to mention the many individuals who have tried to create practical spaces to assist people who may find themselves in difficult life circumstances. While there is much more to do, the efforts of these people should not go unnoticed.

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