Praise be to Allaah.
The fuqaha’ differed concerning the ruling on abortion before
forty days of pregnancy and before the soul has been breathed into the
foetus. A number of Hanafis and Shaafa’is, and some Hanbalis, are of the
view that it is permissible. Ibn al-Humaam said in Fath al-Qadeer (3/401):
Is it permissible to abort after becoming pregnant? It is permissible so
long as it has not yet taken on a shape. Elsewhere they said: And that can
only be after one hundred and twenty days, which implies that what they
meant by taking on a shape was the breathing in of the soul, otherwise it is
does not make sense, because the taking on a shape visibly occurs before
that. End quote.
Al-Ramli said in Nihaayat al-Muhtaaj (8/443): The
correct view is that it is haraam after the soul has been breathed in in all
cases, and it is permissible before that.
In Haashiyat al-Qalyoobi (4/160) it says: yes, it is
permissible to abort it even by using medicine before the soul is breathed
into it, contrary to the opinion of al-Ghazaali.
Al-Mardaawi said in al-Insaaf (1/386): It is
permissible to take medicine to abort the nutfah. This was stated in
al-Wajeez, and before that in al-Furoo’. Ibn al-Jawzi said in
Ahkaam al-Nisa’: It is haraam. It says in al-Furoo’: The apparent
meaning of the words of Ibn ‘Aqeel in al-Funoon is that it is
permissible to abort it before the soul is breathed into it and he said: He
has a point. End quote.
The Maalikis are of the view that it is not permissible at
all, and this is the view of some of the Hanafis and some of the Shaafa’is
and some of the Hanbalis. Al-Dardeer said in al-Sharh al-Kabeer
(2/266): It is not permissible to expel maniy (semen) that has settled in
the uterus even before forty days, and once the soul has been breathed into
it, it is haraam according to consensus.
This view was favoured by the Council of Senior Scholars. It
says in a statement issued by the Council:
It is not permissible to abort
pregnancy at any stage except for a legitimate shar’i reason within very
If the pregnancy is in the
first stage, which is forty days, and aborting it will serve a shar’i
interest or ward off harm, it is permissible to abort it. As for aborting it
at this stage for fear of hardship in raising children or for fear of being
unable to afford their maintenance and education, or because of fears
concerning their future or because the couple feel that they have enough
children, that is not permissible. End quote.
According to both views – that it is permissible or that it
is haraam – this wife has done something haraam because she did that without
her husband’s permission or approval. So she has to repent to Allaah and
regret what she has done, but she does not have to offer any expiation.
And Allaah knows best.