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A. INTRODUCTION
The question of birth control has created much debate in the Western world.
This question is related to the basic view of sex. On one hand, if you relate
sex to the original sin and equate it with evil, and allow sexual intercourse
only for the purpose of procreation then, obviously, you will be totally
opposed to birth control. Allowing birth control would mean allowing sex
for pleasure. On the other hand, if you consider sex to be a natural act
whose purpose is two-fold: procreation and/or fulfillment of sexual desire,
then you would allow birth control. The debate on the use of birth control,
moreover, is intertwined with the issue of abortion.
On the whole, there are three opinions on birth control and abortion. On
the one extreme, the Roman Catholic Church (See Instruction on Respect
for Human Life in Its Origin and the Dignity of Procreation: Replies to
Certain Questions of the Day, Vatican City, 1987.) forbids birth control
as well as abortion; ('Allamah Rizvi comments on the Catholic view as follows:
"The Vatican seems oblivious of [the] simple difference between underlying
reason of a law and the law itself. That is why it has totally prohibited
use of contraceptives, on the plea that it goes against the philosophy of
marriage. But does Vatican have the conviction of courage to take this 'argument'
to its logical end? Is it prepared to forbid intercourse with a pregnant
wife, or ban marriage of infertile men or women? They should have banned
these and other examples...because they too cannot produce pregnancy. The
prelates of the Roman Catholic Church all unmarried men are perhaps unaware
that lawful satisfaction of sexual urge is in itself a valid underlying
reason of marriage." See the footnote in al-Mizan, vol. 8 (English
translation) p. 104.) and on the other extreme, the libertarians and feminists
consider birth control and abortion as the basic rights of women. In between
these two extremes, Islam allows birth control but forbids abortion.
According to the Shi 'ah fiqh, family planning as a private measure
to space or regulate the family size for health or economic reasons is permissible.
Neither is there any Qur'anic verse or hadith against birth control,
nor is it wajib to have children in marriage. So basically, birth control
would come under the category of ja'iz, lawful acts. Moreover, we
have some ahadith (especially on the issue of 'azl, coitus interruptus)
which categorically prove that birth control is permissible. Imam 'Ali once
said, "One of the two (means) of affluence is to have few dependents.''
(Nahju'l-Balaghah, saying No., 141; Tuhaf, p. 214) Imam Ja'far
as-Sadiq said that, "[Imam] 'Ali ibnul Husayn (peace be upon him) saw
no problem in coitus interruptus and he used to recite the verse
that 'When your Lord brought forth from the children of Adam (i.e., from
their loins) their seed...'[7:172] So from whatsoever [seed] Allah has taken
a covenant, it is sure to be born even if it is [spilled] on a hard rock."
(Wasa'il, vol. 14, p. 105) The Imam is saying that the creation is
in the hand of Allah alone. Whether or not we practice birth control, if
Allah wills, the child will be conceived. In effect, these ahadith
are a positive proof that birth control is allowed in Islam.
* * *
However, sometimes the issue of birth control is politicized by the imperialists
and racist regimes; and in such cases, the supreme mujtahid has the right
to temporarily forbid the use of birth control on the basis of secondary
reasons (hukm thanawi). For example, if the Russian communist government
plans to impose or promote birth control in its Muslim provinces not because
of health reasons but because it fears that the high birth rate among the
Muslims might offshoot their minority status, then the mujtahid can issue
a fatwa saying that to practice birth control in Soviet Russia (without
any health reasons) would be haram. Or if the Israeli government,
for example, promotes birth control among the Muslims inside the occupied
Palestine, then the mufti can prohibit it. Similarly, if the Indian government
or the Maronite government of Lebanon intends to promote birth control among
their Muslim citizens, then the supreme mujtahid can prohibit the use of
birth control. Such fatwas will just be of a temporary nature; once
the issue is depoliticized, the primary law will be applied again.
B. WHEN DOES
PREGNANCY BEGIN?
Islam allows the preventing of pregnancy, but does not allow its termination.
However, the problem arises in defining the beginning of pregnancy from
the shari'ah point of view. Before we look at various methods of
birth control, we must first define the beginning of pregnancy; and only
then will we be able to say which method is permissible and which is not.
My research has failed to find a discussion in the classical fiqhi
books on the shari'ah definition of pregnancy. Even the present mujtahids
have not discussed it. I intend, by putting my trust in Allah, to briefly
study the issue in light of the scientific explanations and try to arrive
at a shar'i definition of pregnancy.
A few words on the criteria of shar'i definitions is necessary in
order to understand the purely legal discussion on the definition of pregnancy.
1. CRITERIA
OF SHAR'I DEFINITIONS
There are three possible criteria for definitions of things and concepts
in fiqh: shar'i, 'urfi and 'ilmi.
(1) If something is clearly defined in the shari'ah,
then it is known as the shar'i definition; for example, the definition
of the word "salat" as the ritual prayer consisting of
specific actions and recitations.
(2) 'Urf means conventional, common tradition. 'Urfi definition
means a definition acceptable to the common people without any scientific
or shar'i precision.
(3) 'Ilmi definition means a definition presented by science; for
example, the definition of pure water as H20, a liquid compound consisting
of 2 parts of hydrogen and 1 of oxygen, or the definition of the beginning
of day as the astronomical twilight. (I have used the terms "shar'i
definition," "'urfi (common) definition," and
"'ilmi (scientific) definition" to simplify the matter
for the non-specialist readers, however, in the terminology of fiqh,
the three definitions or perceptives are known as "al-'urfu 'sh-shari',"
"al-'urfu 'l-'amm," and "al-'urfu 'l-khass"
respectively. The specialist reader may refer to Shaykh Murtaza al-Ansari's
al-Makasib, p. 193 for further details on definitions and perceptions
in the shari'ah.)
If the shari'ah defines something, then we must follow the shar'i
definition. But if it is silent on the definition of certain things, then
should we follow the 'ilmi definition or the 'urfi definition?
Anyone who is familiar with the shari'ah will agree with me that
in the absence of a shar'i definition, one has to follow the 'urfi
definition. One has to go by the common perception of things, not the scientific
perception. For example, when the shari'ah says that the water for
ritual ablution must be pure (mutlaq) does it mean scientifically
pure? Certainly not! Otherwise, the running water in this part of the world
is not scientifically pure, it has some purifying chemicals in it, for example,
fluoride. The shari'ah says that such water will still be classified
as pure unless the common people can sense (without the help of a scientific
lab) the difference in its color, taste or smell.
However, there is one case where the ilm definition will prevail:
in cases where the common people have no way of defining the issue. So in
cases where the shari'ah is silent and the 'urf has no opinion,
one has no choice but to follow the 'ilmi (scientific) definition.
The definition of the beginning of pregnancy is one such case where the
'ilmi definition would prevail; this is so because the shari'ah
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 shari'ah
sources to arrive at a conclusion.
2. THE SHAR'I
PREGNANCY
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 shar'i pregnancy, one has to answer the following
question: From the shari'ah's point of view, does pregnancy begin
(1) with the entering of semen into the uterus or
(2) with the fertilization of an ovum by a sperm in the fallopian tube or
(3) with the implantation of a fertilized ovum in the uterus?
It is my contention that the combination of three things form the shar'i
pregnancy: the sperm, the ovum and the uterus. If any two of these things
combine without the third, then it is not a shar'i pregnancy. As
I shall prove below, the shar'i pregnancy begins when the fertilized
ovum implants itself onto the wall of the uterus.
* * *
In my search for a shar'i definition, the closest issue I could come
to was the discussion under the indemnity for abortion. In Shi'ah fiqh,
the indemnity for abortion differs according to the various stages of pregnancy.
However, what is relevant to our discussion is the indemnity for the first
four months of pregnancy. The child in its mother's womb during this time
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 bones are formed,
yaksu lahman, when bones are clothed 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 nutfah sperm." (Wasa'il,
vol. 19, pp. 169, 237-240) 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 hadith; for example, the following hadith
by Imam Zaynu 'l-'Abidin (a.s.).
Sa'id bin al-Musayyab asked Imam 'Ali Zaynu
'l-'Abidin about a person who hits a pregnant woman with his leg and, as
a result, she lost what she had in her womb. The Imam said, "If it
is a (nutfah) sperm, then he must pay her 20 dinars." Sa'id
asked, "What is the definition of nutfah?" The Imam said,
"It is a substance which, when placed in the womb, settles down in
it for forty days."
(Wasa'il, vol. 19, p. 240. Also see
p. 238, 242)
The Imam has used two words to describe the
nutfah: (1) wuzi'at fi'r-rahm it is placed in the uterus,
and (2)fastaqarrat fihi it settles down in it (i.e., the womb). 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
= settling 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 just
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).(Sharaya'u 'l-Islam, p. 1042; an-Nihayah, p. 778.
) 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). (Tabsirah, p. 216; Sharh Lum'a, vol.
2, p. 444; Tahrir, vol. 2. p. 597.)
Even the present mujtahids describe the earliest stage of abortion as follows:
"aborting a sperm after its settling down in the womb (ba'd istiqrari
'n-nutfah fi 'r-rahm)." (After publication of the first edition
of this book. it was my great pleasure to see in the late Ayatullah al-Khu'i's
lecture a statement which completely concurs with my definition of pregnancy.
He said. "The criterion in applying the [word] 'pregnant' for a woman
is correct only after the settling down (istiqrar) of the sperm in
her womb because just the entering of the sperm in her womb does not make
her pregnant." See al-Gharawi, Mirza 'Ali, at-Tanqih fi Sharhi 'l-'Urwati
'l-Wuthqa (notes of the fiqh lectures of al-Khu'i), vol. 7 (Najaf:
al-Adab Press, 1988) p. 206.)
Moreover, the Qur'an has always used the word "haml" to
describe pregnancy. (See the Qur'an, 19:22; 31:14; 46:15) "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. (A close physician friend of mine pointed out to me that
pregnancy in the fallopian tube (known as tubal pregnancy) is possible.
However, this information does not affect our argument because tubal pregnancy
is not a normal pregnancy. In the matter of definitions, abnormal possibilities
are not taken into consideration. More so in abnormalities like tubal pregnancy:
the fallopian tube is not big enough for development of a fetus, and the
tubal pregnancy has to be surgically aborted otherwise the mother might
end up loosing her own life.)
In conclusion, I can say that the beginning of pregnancy from the shari'ah
point of view is the stage when the fertilized ovum is implanted (istiqrar)
onto the lining of the uterus. And, therefore, whatever prevents implantation
is all owed but whatever aborts an implanted ovum is haram.
A year after reaching my decision in 1986, I wrote to Ayatullah al-Khu'i
asking for his opinion on this issue: "From medical point of view,
after the sperm enters the vagina, it crosses the uterus and enters the
fallopian tube. In this tube, the sperm joins the ovum. Then the fertilized
ovum enters the uterus and implants 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?" Ayatullah
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.'' (Personal correspondence dated 24 Rabs' II,
1407 (1987). )
I think the answer of the Ayatullah needs some explanation for those not
familiar with the fuqaha's style. In the first part of his answer,
the Ayatullah agreed that what is forbidden in relation to birth control
is the act of aborting the sperm after it had settled down in the womb.
In the second part of his answer, he declined to take it upon himself to
specify when does "the settling down of the sperm" occur: soon
after the sperm enters into the uterus or after its return from the fallopian
tube? (In light of the statement of the late Ayatullah al-Khu'i quoted on
p. 116 of this edition, he also believed that the settling down of the sperm
occurs after its return from the fallopian tube.)
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 shari'ah point of view. Now
we can easily decide on the permissible means of birth control. 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 shari'ah basis, Dr. Clifford Grobstein, a leading embryologist
of America, published the same conclusion on the basis of his scientific
research. Dr. Grobstein, whose evenhanded 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 pre-embryonic phase before they become
embryos in the usual scientific sense...
"In mammalian development, which normally
occurs within the body of the mother (internal gestation), it is now evident
that the early changes undergone by the zygote first establish multicellularity
and, second, prepare for penetration into the maternal uterine wall, or
implantation. The second step, as we have noted, is the true beginning
of gestation or pregnancy."
(Grobstein, Science and the Unborn, p. 58-9.)
C. THE CONTRACEPTIVE
METHODS
The contraceptive methods during our time work in different ways. We shall
examine some of the most commonly used contraceptive methods and determine
whether they are permissible in Islam or not. It must be mentioned that
we are studying the permissibility of these methods from the shari'ah
point of view only. For the medical opinion about the reliability or any
side-effects of these methods, the reader must consult his or her physician.
1. Oral Contraceptives:
Birth control pills prevent conception by inhibiting ovulation. The pills
alter hormonal levels and suppress the hormonal signal from the gland for
the ovaries to release an ovum. These pills are taken orally on a precise
schedule for 20 or more days during each menstrual cycle. Since all such
pills inhibit ovulation, there is absolutely no problem in using them. However,
the individual must consult the physician about possible side-effects.
There are some pills which work after the intercourse has taken place, for
example, the 'morning-after pill' or the recently developed RU486 pill.
Since in our definition, pregnancy begins at implantation, use of any pill
which may prevent implantation is alright. Therefore, the pills like the
'morning-after' and RU486 may be taken after the intercourse BUT not after
feeling or knowing that pregnancy has already occurred.
2. Depo-Provera:
Depo-Provera works exactly like the pills, but instead of taking it orally
it is injected once every three months. This and other similar contraceptive
methods by injection are also permissible.
3. Intrauterine Devices (IUD):
IUDs are plastic or metal objects, in a variety of shapes, that are implanted
inside the uterus. The medical experts do not exactly know how IUD works.
Presently there are two opinions: one says that IUD prevents fertilization;
and the other says that it prevents the fertilized ovum from implantation
onto the uterus. Since the shari' pregnancy begins at implantation,
there is no problem in using IUD as a birth control device irrespective
of the above differences among the medical experts.
4. Barrier Devices:
All barrier devices prevent the sperm from entering the uterus. This is
done by sheathing the penis with a condom, or by covering the cervix with
a diaphragm, cervical cap, or vaginal sponge. The use of spermicidal substances
which kill the sperm before reaching the ovum is also a barrier device.
There is absolutely no problem in using these contraceptives either.
5. Abstinence During Fertile Period:
There are three basic procedures to predict ovulation so that sexual intercourse
can be avoided during the approximately six days of a woman's most fertile
monthly phase. These three methods are as follows:-
(a) Ovulation Method: A woman learns to recognize the fertile time by checking
the difference in the constitution of the cervical mucus discharge. The
cervical mucus discharge signals the highly fertile period; and thus avoiding
sex during the fertile days prevents pregnancy.
(b) Rhythm Method: A method similar to the first, but it depends on observing
the monthly cycles for a whole year to determine the fertile days.
(c) Temperature: In this method, besides keeping a calendar record of her
cycle, a woman also takes her temperature daily to detect ovulation. She
can know her ovulation whenever her basal body temperature increases.
6. Withdrawal (Coitus Interruptus):
Coitus interruptus means withdrawing the penis just before ejaculation.
This was the most common method of birth control before the invention of
modern devices.
Muhammad bin Muslim and 'Abdur Rahman bin Abi 'Abdillah Maymun asked Imam
Ja'far as-Sadiq about withdrawal. The Imam said, "It is up to the man;
he may spill it wherever he wants." (Wasa'il, vol. 14, p. 105)
However, in another hadith, Muhammad bin Muslim quotes the fifth
or the sixth Imam as follows: "In case of a slave-girl, it is allowed,
however, in case of a free woman, I dislike it unless it had been so stipulated
at the time of marriage." (Wasa'il, vol. 14, p. 106)
Based on this hadith, the majority of our mujtahids believe that
coitus interruptus is allowed but makruh without the wife's consent.
(Sharh Lum'a, vol. 2, p. 28; al-'Urwah, p. 628; Minhaj,
vol. 2, p. 267)
All methods mentioned above do not involve surgical operation and they are
also reversible. A woman (or man) using these methods can stop using them
at anytime in order to have a child.
7. Sterilization:
Sterilization involves surgical operation.
Sterilization in men, known as vasectomy, means the severing or blocking
of the tube in the male reproductive tract. This tube or duct passes sperm
from the testes to the prostate and other reproductive organs.
Sterilization in women, known as tubal ligation, involves the blocking or
severing of the fallopian tubes which transport the ovum.
The permissibility of sterilization depends on whether or not it is reversible.
At present, the rate of reversibility (40%) is not good enough to make sterilization
permissible. Greater success may be achieved with improved micro surgical
techniques. And until we achieve at least 80 percent reversibility, it is
difficult to permit sterilization.
Can a woman practice birth control without the consent of her husband?
The wife has full right to the use of contraceptives even without the approval
of her husband. (Minhaj, vol. 2, p. 276) However, she should not
use a method which may come in the way of her husband's conjugal rights.
For example, she cannot force him to use condom or practice coitus interruptus.
This rule is based upon the principle that the extent of the husband's conjugal
rights over his wife is just that she should be sexually available, responsive,
and cooperative. This right does not extend to that of bearing children
for him. Bearing children or not is a personal decision of the woman; and
therefore, she may use contraceptives provided they do not come in the way
of her husband's conjugal rights.
This was the legal aspect of the shari'ah. But on a practical level,
such decisions are best made with mutual consultation between the husband
and the wife; otherwise, it could lead to misunderstanding and mistrust.
The legal aspect is to protect the basic rights of women; but in the real
world, man and woman must base their life on love, mercy and cooperation
as the Qur'an says, "And We have created between you love and mercy."
D. ABORTION
Islam's approach to the issue of birth control and abortion is very balanced.
It allows women to prevent pregnancy but forbids them to terminate it. Abortion
after the implantation of the fertilized ovum in the womb is absolutely
forbidden and is considered a crime against the law of God, and the fetus.
From the Islamic point of view, the illegitimacy of aborting a fetus does
not depend on the issue of whether the fetus has the status of a human being
or not. Although Islam does not recognize the fetus as a human being, it
still gives to it the right of a possible life.
Abortion has become common in the Western world for various reasons
1. sometimes it is a matter of choice between a child and a career;
2. sometimes it is a matter of choice between a child and a luxurious life-style;
3. sometimes it is because of the child's illegitimacy;
4. sometimes it is because of the wrong sex of the child;
5. sometimes it is because of rape.
All these justifications are unacceptable from the Islamic point of view.
The first two excuses reflect the selfish nature of this materialistic society.
Allah says, "Do not kill your children because of (fear of) poverty.
We will provide for you and them." (6: 152) "Do not kill
your children for fear of poverty; We will provide for them and you. Surely
the killing (of children) is a great error." (17:31) The third
excuse is a by-product of illicit sexual relations which Islam strongly
condemns. The fourth reason is no less evil and cruel than the pre-Islamic
Arab custom of burying baby girls alive.
As for the fifth case involving rape, the lady should use the morning after
pill or RU486 immediately after the sexual assault in order to prevent the
possible implantation of a fertilized ovum. But if pregnancy is established,
then Islam does not allow abortion. In such cases, Islam says that why abort
the child for the crime of the father? As for the reputation of the woman,
Islam strongly condemns the people who look down upon the rape victim; instead
of reviling her, they should be sympathetic to her.
Modern technology (like ultra sound scan) has made it possible to know whether
or not a child has a defect long before he is born. Some people justify
the abortion of a defective fetus. The present mujtahids do not allow such
abortions; they say that the parents should pray and hope for a normal and
healthy child. There are many examples where the prediction of the doctors
have been proven wrong! In other words, what our mujtahids are saying is
that take preventative measures before going for pregnancy; but once pregnancy
has taken place, you are not allowed to abort a fetus even if it is defective.
The shari'ah allows abortion only when doctors declare with reasonable
certainty that the continuation of pregnancy will endanger the woman's life.
This permission is based on the principle of the lesser of the two evils
known in Islamic legal terminology as the principle of al-ahamm wa 'l-muhimm
(the more important and the less important). The Prophet said, "When
two forbidden things come [upon a person] together, then the lesser will
be sacrificed for the greater." In the present case, one is faced with
two forbidden things: either abort the unborn child or let a living woman
die. Obviously, the latter is greater than the former; therefore, abortion
is allowed to save the live person.
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