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Moving Forward: Three Possible Alternatives

Posted: Jun 19, 2015 at 1:00 am   /   by   /   comments (0)

There are at least three options that may be considered by the woman who is pregnant as a result of having been raped.

 

1.      The Option Of Abortion Before The Lapse Of 4 Months (Or 120 Days)

In the 1990’s in Algeria, about 200 women who were raped by members of a violent extremist sect became pregnant. The prominent Saudi scholar Sheikh Muhammad bin Salih bin al-Uthaimeen was asked about the options available for the women under Islamic jurisprudence. In his fatwah (religious verdict), he responded that abortion was permissible if done before the end of the first 120 days. (See Saleem bin Eid Al-Hilai, Qurat al-Uyun, Maktabat al-Furqan, Ajman, 1422AH, p.234-235).

This fatwah is based on an interpretation of an authentic hadith of the Prophet (pbuh) reported in Bukhari and Muslim which indicates that while the foetus is a living being, the soul or spirit (ruh) is breathed into it only after the end of this period. Scholars of the Hanafi School of Islamic Jurisprudence (madhhab) along with a few others have therefore regarded abortion before the 120 days period as not prohibited by any clear explicit text of the Qur’an or Sunnah.

This also so because the foetus at that very early stage of pregnancy has not yet reached the age of being referred to in the terminology of the Qur’an and Sunnah, as a “child” (walad) whose life is sacred. (See

Alah al-Deen al-Kasani,  Badai’ al-Sannai’ fi Tartib al-Sharai’, Dar al-Kitab al-Arabi, Beirut, 1982, Vol.7, p.325)

There is a general consensus among Muslim scholars on the prohibition of abortion after this 120 day period – except for reasons such as a threat to the life of the mother. Scholars however have differed in their opinions about the permissibility of abortion before the end of 120 days. (See al-Mawsu’ah al-Fiqhiyyah, Dar Salasil, Kuwait, 1414AH, Vol.2, p.57)

Sanity or the “preservation of the mind” (hifz al-‘aql) is one of the fundamental objectives (maqasid) of Islamic law. The difference of opinion on the matter of abortion is presented here also because the mental and emotional health of the pregnant mother is of vital importance to Shari’ah and all concerned. A woman who has been a survivor of rape could go insane or into deep depression if forced to keep a pregnancy from a rapist.

In the opinion of some scholars it is therefore entirely up to the pregnant mother to decide whether or not to terminate her pregnancy before the lapse of 120 days. (See Ibn ‘Abideen, Hashiyah Radi al-Mukhtar, Vol. 3, p.192, cited in Al-Maktabah  al-Shamilah, 3.13)

The very existence of a legitimate difference of opinions among reputable scholars on an issue is itself a reason for leniency and for issuing a verdict or ruling that facilitates ease for the victim of hardship or suffering (mashaqqah/ haraj/ haajah/ darurah/ etc.).

Giving concessions for such victims when distinguished jurists (mujtahids) or their Schools of Jurisprudence (madhahib) differ is a basic principle in the application of concessions and licenses (rukhsa) in the field of the Principles of Jurisprudence (Usulal-Fiqh) and the maxims of jurisprudence (Qawa’id al-Fiqhhiyyah).

Choosing the more appropriate or easier option (taysir) from alternative scholarly opinions (talfiq) so as to facilitate the living conditions or circumstances of someone in a situation of dire necessity, suffering, difficulty or hardship is itself based on numerous texts of the Qur’an and Sunnah. These include:

“God intends for you ease and He does not intend to put you in hardship.” (Qur’an 2:185); “God does not intend to inflict hardship on you.” (Qur’an 5:6); A’isha the blessed wife of the Prophet (pbuh) is reported to have said: “Whenever the Messenger of Allah was given a choice between two things, he chose the easier one unless it was a sin.” (Sahih al-Bukhari and Muslim); “You have been sent to make things easy (for the people) and you have not been sent to make things difficult for them.” (Bukhari). The Prophet (pbuh) also once said to his Companions, “You have not been sent as those who have been given hardship. Rather, you have been sent as those who have been given ease or facility.” (Sahih al-Bukhari and Muslim)

(On the application of these principles see Ibn Qayyim al-Jawziyyah, I’lam al-Muwaqqi’in ‘an Rabbi al-‘Alamin, Egypt: Maktabah al-Kulliyyat al-Azhariyyah, 1968, vol.3, p.164; al-Qarafi, al-Furuq, vol.2, p.33;

Abdullah bin Mahfuz bin Bayyah, Sina’at al-Fatwa wa Fiqh al-Aqalliyyat, Dar al-Minhaj, Beirut, 2007, p.193-231; Muhammad Abu Zahrah, Ibn Hanbal: Hayatuhu wa ‘Asruhu, Arauhu wa Fiqhuhu, Dar al-Fiqr al-Arabi, Beirut, p.370.)

 

2.      The Option Of Foster Care

If the pregnancy is more than 120 days old, or the woman chooses not to abort the pregnancy before the 120 days have elapsed, she can decide to send the child into foster care or to be raised by someone ready to take on the responsibilities of a child who is effectively an orphan.

This is especially so if the woman cannot or does not want to bear the psychological or social challenges associated with raising the child.

The decision regarding an alternative home for such a child must be based on what is in the best interest of the child, as the child did not choose to be in that situation.

The prophet Muhammad (pbuh) said: “I and whoever takes charge of an orphan, whether his own or of others shall be in paradise like this (pointing with his four fingers and the middle finger)” (Sahih al-Bukhari).

The prophet Muhammad (pbuh) also said: “The best house of the Muslims is the house in which there is an orphan who is treated in the best manner; and the worst house of the Muslims is the house in which an orphan is badly treated” (Ibn Majah).

 

3. The Option Of Motherhood And Child-Upbringing

The mother may choose to keep the pregnancy and raise the child to the best of her ability. In the absence of the father, the hadith in Bukhari regarding caring for orphans also applies to this situation – “I and whoever takes charge of an orphan, whether his own or of others shall be in paradise…”

 

Social, Emotional And Economic Support, Empowerment And Counseling

The decision of what to do about the pregnancy is primarily that of  the woman in question. Each of the three options mentioned in this paper has challenges that are peculiar to it. None of the three choices is an easy one to make. The effect of each choice will be felt primarily by one person – the woman concerned. More than anyone else, she will bear the difficulty of undergoing an abortion, or carrying to term a baby conceived in circumstances that are traumatic to her, giving birth to that child and, if she chooses, raising the child.

Should she choose to give it up for fostering or adoption, she would still feel the effect of such a choice. Therefore, it would be insensitive to force any choice upon her, or deny her an option which may be the lesser evil as far as she is concerned. Human beings are all different and respond to trauma in diverse ways. It would be wrong to dictate how all the rape victims should handle the resulting pregnancy.

Whatever option the women may choose, the role of their families, care-givers, the community, leaders and the government is to provide necessary counseling, social, emotional and economic support and empowerment opportunities. She should be shown empathy and compassion.

If social stigmatization is unavoidable in a particular community, the option of relocation of the family to a friendlier environment should be considered and facilitated, while efforts at preventing and eliminating stigmatization continue.

When the children are born, they should receive the same treatment as any other child and should not suffer any form of discrimination or ill-treatment – they will be born blameless as all human beings are.

Allah’s Messenger said “The Merciful One shows mercy to those who are themselves merciful (to others). So show mercy to whatever is on earth, then He Who is in the heavens will show mercy to you”. (Abu Dawud and Tirmidhi)

He is also reported to have said in a hadith narrated by Bukhari and Muslim that “Allah is not be merciful to he who is not merciful to people”.

Islamic organizations and other concerned groups and institutions should be foremost in showing greater compassion, sensitivity and empathy to the victims and their families. They could consider proactively preparing to welcome and care for the soon-to-be-born members of the society.

Better networking and greater online presence would help those from distant places give their support. Some of the apex Islamic organisations in the country and especially in the region could circulate a list of credible organisations that donors could work with. Concerned telecom service providers could also play a more significant and deliberate role by facilitating fund raising and transfer as is done in raising funds for political parties.

 

Protection Of Human Dignity And Honor (‘IRD)

One of the major objectives of Islamic law is the protection of human dignity and honor (‘ird). With this in mind, all those offering support and care should show respect for the survivors’ privacy, dignity and safety. They should also show sensitivity to the religious and cultural preferences and norms of the victims. This is particularly important for politicians and people working with the media.

 

The Challenge To Our Humanity, Compassion And Faith

The litmus test and criteria for true piety and faith in Allah is the extent to which we show sincere compassion towards others. The challenges facing all the survivors of the Boko Haram atrocities are a challenge to us all.

It is our prayer that though the government and national leadership were unable to stop the tragedy from befalling our sisters, civil organisations, the government and Muslim leadership will be able and willing to bring an end to their ordeal. We pray that Allah continues

to support all those striving to end the Boko Haram tragedy; that He gives strength and faith to all the survivors; that He blesses and protects all their care-givers; and that He continues to guide and forgive us all where we go wrong.