The rights of children before birth
By Ahmed Raissouni
When do children’s Rights begin?
The Convention on the Rights of the Child adopted by the United Nations General Assembly in 1989 (30 years ago) set the end of childhood at the age of 18, but did not specify its beginning, although it seems that it is assumed that it begins upon birth. Nothing is said about the rights of the child fetus, even if he/she is eight or nine months!
Article VI of the Convention states: “States Parties recognize that every child has the inherent right to life and States Parties shall ensure to the maximum extent possible the survival and development of the child.” Very good, but it is not defined when this inherent right to life is due? When is it recognized and guaranteed?
Are we to expect the United Nations, or UNICEF, to remedy this shortcoming and fill this gap?
The continuing development of the human rights system makes it desirable, even imperative, to issue a new document on “Rights of the Child before Birth”.
Pending our ascent to such human rights heights, here is a brief overview of the prenatal rights of a child in Islam and Islamic jurisprudence.
Based on the hadiths and the rules of the Sharia, it was established among the jurists of Islam that:
Since the shaping of his/her creation and emergence of his/her initial features, the fetus is considered to be fully human in his moral personality, although he/she is still fully linked to his/her mother physically. Accordingly, this “fetus/human” must have all possible care and maintenance, especially for his/her life. He/she shall not be exposed to any form of harm to and violation of his life and safety.
Consequently, aborting or deliberately causing the abortion a fetus entails the obligation to pay wergild (blood money) on the one who did so, even if he is the father or mother. Shaykh Khalil said in his brief: “And as for the fetus, even when a leech, it is a tenth of his mother’s wergild (ie: his wergild is one tenth of hers…). Alnafrawi (النفراوي) said in his ‘Low-hanging fruits’ (الفواكه الدواني): whomever causes the abortion of a fetus from his mother’s womb is bound to pay one tenth of his mother’s wergild to his heirs.
The prohibition of abortion in the Maliki jurisprudence school begins from the beginning of pregnancy. However, the majority of jurists are of the view that the prohibition begins after the fetus had completed forty days, and they authorize abortion it before that. The evidence they advance is the hadith of the Prophet (peace be upon him) where he says: “When forty-two nights pass after the semen gets into the womb, Allah sends the angel and gives it shape, creates its sense of hearing, sense of sight, skin, flesh, bones, and then says: My Lord, would it be male or female? In addition, your Lord decides as He desires and the angel then puts down that also and then says: My Lord, what about the age? Moreover, your Lord decides as He likes it and the angel puts it down. Then he says: My Lord, what about his/her livelihood? And then the Lord decides as He likes and the angel writes it down, and then the angel gets out with his scroll of destiny in his hand and nothing is added to it and nothing is subtracted from it.” The Hadith is reported in Sahih Muslim.
The prohibition on abortion aggravates – without controversy among scholars – after the fetus had completed four months, where the soul is blown in him/her as stated in the valid hadith, and then deliberate abortion becomes a full-fledged murder.
This child fetus becomes also financial rights holder and acquires civil personality in its first level, called “passive legal capacity”, ie, he acquires rights without obligations. Saad Eddine Taftazani said in (التلويح): “the fetus before separating from the mother is part of her, moves when she moves and stand still when she does. He/she independent in terms of being endowed with his/her own life and readiness to separation. He/she has a legal standing that translates into a passive legal capacity to receive rights, such as inheritance, wills and parentage attribution, not active legal capacity. If the guardian buys him something, he does not owe the price. However, after separation from the mother, his/her legal standing becomes complete as he/she becomes an independent soul in every aspect and becomes eligible to enjoy rights and contract obligations.” Accordingly, the fetus has the right to inherit, like all other heirs, so the apportionment of the estate shall be suspended until his/her birth to determine his/her share and then preserve it for him/her and on his/her behalf until reaching legal adulthood. In the prescribed charity paid at the end of Ramadan (zakaat al-fitr), it is desirable to count him/her among the persons for whom it is paid, especially if he/she has completed four months. One of the most beautiful medical technological advancement today is that people see their fetus, know his/her features, listen to his/her heartbeat, even keep his/her pictures and get to know him/her, while still in the womb. Should the fetus be aborted due to a miscarriage or a deliberate act, after it had completed four months, he/she is to be washed the ritual washing, shrouded and the funeral prayer be held for him/her, as every adult who passes away. This is as a sign of welcome of and respect for the fetus alive as well as dead. One of the masterpieces of Islamic jurisprudence is that it equalized between breastfeeding and pregnancy women in the permissibility of breaking the fast during Ramadan, for fear of harming the infant or fetus. Shaykh Alish said in (مِنَح الجليل شرح مختصر خليل): "If a pregnant or breastfeeding woman ascertained or thought that fasting may harm her child: it is permissible for to break the fasting if she feared minor harm and she must if she feared his/her perdition or severe harm."
The right of the infant and of the fetus is actual and upheld.
If a pregnant woman has to absolve herself from the prescribed fasting and break it, to uphold the right and interest of the fetus, and that breaking of her fasting may become obligatory, how on earth can she afflict on him/her a certain harm by smoking, drinking alcohol, abusing drugs or other similar behaviors? And what about those who kill and dismember him/her and those who help in such endeavor?
“Indeed we belong to Allah, and indeed to Him we will return.”