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Beginning of Pregnancy from Fiqh’s Point of View

Islam allows the preventing of pregnancy, but does not allow its termination. However, the problem arises in defining the beginning of pregnancy from the Islamic law point of view.

by Ayatollah Sayyed Muhammad Rizvi

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

            Before I proceed further, it is necessary to explain the criteria of defining various things and issues in Islamic laws. There are three possible criteria for definitions of things and concepts in fiqh: Shar’i, Urfi and Ilmi.

(1) If something is clearly defined in the shariah, then it is known as the shar’i definition; for example, the definition of the word salat as the ritual prayer consisting of specific actions and recitations.
(2) Urfi means conventional, common tradition. Urfi definition means a definition acceptable to the common people without any scientific or shari precision.
(3) Ilmi definition means a definition presented by science; for example, the definition of pure water as H2O, a liquid compound consisting of 2 part of hydrogen and 16 of oxygen, or the definition of the beginning of day as the astronomical twilight.

            If the shariah defines something, then we must follow the shared definition. But if it is silent on definition of certain things, then should we follow the Ilmi definition or the Urfi definition? Anyone who is familiar with the shariah will agree with me that in absence of a shari definition, one has to follow the Urfi definition. One has to go by the common perception of things, not the scientific perception. For example, when the shariah says that the water for ritual ablution must be pure (natlaq), does it mean scientifically pure? Certainly not! Otherwise, the running water in this part of the world is not scientifically pure, it has some purifying chemicals in it, for example, flouride. The shariah says that such water will still be classified as pure unless the common people can sense (without the help of a scientific lab) the difference in its colour, taste or smell. However, there is one case where the Ilmi definition will prevail: in cases where the common people have no way of defining the issue. So in cases where the shariah is silent and the Urf has no opinion, one has no choice but to follow the Ilmi (scientific) definition. The definition of the beginning of pregnancy is one of such cases where The Ilmi definition would prevail; this is so because the shariah is silent, and it is beyond the common people to define when pregnancy begins. Therefore, in this case, we will first see how science describes the beginning of pregnancy and then attempt to find secondary proofs from shariah sources to arrive at a conclusion.

            The process of conception and pregnancy according to modern science is as follows: After the semen is ejaculated into the vagina, the sperms move into the uterus, cross the uterus and enter the fallopian tube. The woman’s ovum is in the fallopian tube. The sperms travel into the fallopian tube in search of the ovum. When the sperms reach the ovum, normally only one of them succeeds in penetrating the ovum. This coming together of man’s sperm and woman’s ovum is known as fertilization. After fertilization, the ovum starts to travel towards the uterus; and after coming into the uterus, it gets implanted on to the wall of the uterus. This process is known as implantation of the fertilized ovum in the womb.
To determine the sharia pregnancy, one has to answer the following question. From the shariah’s point of view, does pregnancy begin

(1) with the entering of semen into the uterus or
(2) with the fertilization of an ovum by a sperm in the fallopian tube or
(3) with the implantation of a fertilized ovum in the uterus?

            It is my contention that the combination of three things form the shari pregnancy: the sperm the ovum and the uterus. If any two of these things combine without the thing then it is not a shari pregnancy. As I shall prove below, the shari pregnancy begins when the fertilized ovum implants itself onto the wall of the uterus. In my search for a shari definition, the only closest issue I could come to was the discussion under the indemnity for abortion. In Shiah fiqh, the indemnity for abortion differs according to the various stages of pregnancy. However, what is relevant to our discussion is the indemnity for the first four months of pregnancy. During these four months, the child in its mother’s womb is known as jinin. The jinin (embryo) itself goes through five stages gradually with distinctive names: nutfah, when it is a sperm; alaqah, when it is a blood-like clot; muzgah, when it is a lump of flesh; azm, when it is a lump of bones; yaksu lahman, when it is dothed with flesh This is based on the Qur’an, see 23:12 14

            The first stage is very crucial in our search for the beginning of pregnancy. Most ahadith simply say that the lowest indemnity is for aborting “a nufta sperm”. At the first look it would seem that according to these ahadith, pregnancy starts as soon as the sperm enters into the uterus. This would mean that preventing the semen from entering into the uterus is allowed but once it has entered the uterus, then it is forbidden to abort it. But this is not so. This would have been correct if the word “nutfah” is taken only in its literal sense in which it means “a sperm”. However, in fiqh and hadith, the word “nutfah” is used both for a sperm as well as for a fertilized ovum. Fortunately this extended meaning of the word “nutfah” has been clarified in the following hadith by Imam Zainul – Abidin (as). Saidd bin al-Musayyab asked Imam ‘Ali Zainul- ‘Abidin about a person who hits a pregnant woman with his leg and, as a result, she lost what she had in her womb. The Imam said, “If it is a (nutfah) sperm, then he must pay her 20 dinars.” Sa’id asked, “What is the definition of nutfah” The Imam said, “It is a substance which, when placed in the womb, settles down in it for forty days. The Imam has used two words to describe the nutfah:

(1) “wuzi’at fi ‘r r-rahm” – it is placed in the uterus,
(2) “fastaqarrat fihi – it settles down in it.

            and It seems the Imam is emphasizing that the earliest stage of abortion is not when the sperm enters the uterus for the first time and just passes through it, rather when it settles down in it. Obviously, the “settling down of the sperm in the uterus “and”implantation of a fertilized ovum in the uterus” are one and the same thing. It is needless to say that the distinction between the entrance of sperm into the womb, then the fertilization of ovum in the fallopian tube and finally its implantation was not clearly known to the scholars of fiqh and the scientists till a century ago. But the word “istiqrar = setting down” shows that our ‘ulama’ were not completely unaware of the fact that the sperm goes through various stages before settling down” in the uterus. If they had been completely unaware, then they would not have used the word istiqrar, instead they would have said “the entering of the sperm into the uterus.” This difference becomes more clear in the writing of the Ulama’ of post seventh Islamic century. Before the seventh century, we find the expression such as “ilqa’u n-nutfah (the entering of the sperm into the uterus). But after the seventh century, the Ulama consistently began using the expression of “istiqraru ‘n-nutfa” (the settling down of the sperm in the uterus). Even the present mujtahids describe the earliest stage of abortion as follows: “aborting a sperm after its settling down in the womb (ba’d istiqraru ‘n-nutfah fi ‘r-rahm).”

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

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

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

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

            Ayatollah al-Khu’i replied that “What is forbidden is to abort the sperm after its settling down, whereas to prevent pregnancy before that is alright. However, to specify the minor and major premises of both these issues is upon the individual himself.”‘ I think the answer of the Ayatullah needs some explanation for those not familiar with the fuqahas style. In the first part of his answer, the Ayatullah agreed that what is forbidden in relation to birth control is the act of aborting the sperm after it had settled down in the womb. In the second part of his answer, he declined to take it upon himself to specify when does “the settling down of the sperm” occur soon after the sperm enters into the uterus or after its return from the fallopian tube? He further says that classifying any particular contraceptive method (whether it prevents fertilization or implantation) is also upon the individual.

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

            It was interesting to know that two years after I reached my conclusion on the shariah basis, Dr.Clifford Grobstein, a leading embryologist of America, published the same conclusion on basis of his scientific research. Dr. Grobstein, whose even handed approach has won him places on the ethics committees of both the American Fertility Society and the Catholic Health Association, published his Science and the Unborn in 1988. He writes, “In the last several decades, chiefly as the result of extensive studies of mouse development, it has become clear that in the earliest stages of each new generation, mammals (including humans) go through a preliminary preembryonic phase before they become embryos in the usual scientific sense In mammalian development, which normally occurs within the body of the mother (internal gestation), it is now evident that the early changes undergone by the zygote first establish multicellularity, and second, preparation for penetration into the maternal uterine wall, or implantation. The second step,as we have noted, is the true beginning of gestation or pregnancy.

Selection Taken from “Marriage and Moral in Islam” by Sayyed Muhammad Rizvi.

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