Family Planning and Islamic Jurisprudence

Azizah Y. al-Hibri, J.D., Ph.D.

This is a slightly edited version of a statement delivered at a panel on Religious and Ethical Perspectives, convened by the NGO Steering Committee, International Conference on Population and Development, PREPCOM II, May, 1993, at the United Nations.

I am very pleased to have the opportunity today to address you on issues of family planning from an Islamic jurisprudential point of view.
    To understand this point of view, we need to understand the basic framework for such jurisprudence. First and foremost, the basic text providing guidance on all Islamic matters is the Qur'an the revealed word of God. No Muslim can adopt a point of view contrary to that of the Qur'an.
    But the Qur'an, which provides a rich variety of specific rules and general principles, does not explicitly address every possible situation that may face a Muslim. For cases not explicitly addressed therein, Muslims look to the example and sayings of the Prophet Muhammad (his "Sunnah") as a secondary source of guidance. Often, that, too, leaves open some questions of interpretation or application. In such cases, Muslims rely on ijtihad, which is the ability to analyze a Qur'anic text or a problematic situation within the relevant cultural and historical context and then devise an appropriate interpretation or solution based on a thorough understanding of Qur'anic principles and the Sunnah. This approach results in a highly flexible jurisprudence and is rooted in the Qur'anic verse which instructs Muslims who disagree on a matter to seek its resolution by going back to the words of God and his Prophet.<1>
    The flexibility of Islamic law is not accidental. It is an essential part of Qur'anic philosophy, because Islam was revealed for all people and for all times. Consequently, its jurisprudence must be capable of responding to widely diverse needs and problems. Furthermore, Islam was revealed gradually. This fact (as well as certain verses in the Qur'an) illustrates the divine recognition of the human difficulty in adjusting to sudden change.<2> Hence, flexibility and evolution are inherent characteristics of the religion. It must be noted, however, that this flexibility has its limitations. It does not extend to the most fundamental tenets of Islam, such as the belief in the unity of God.

Among the fundamental principles of ijtihad are the following:

1. Laws change with changes in time and place;
2. Choosing the lesser of two harms; and
3. Preserving public interest.<3>

In discussing issues of family planning, it is important to keep all of these principles and the basic legal framework in mind.
    For example, when a Muslim scholar reaches a conclusion about contraception or abortion, it is important for that scholar and the Muslim community he addresses to evaluate such conclusion in light of their public interest. If the existence or well-being of the community is being threatened for some reason, then the scholar and each member of the community must consider that fact, which is subsumed under Principle (3) above, in reaching their own final conclusions. This is one reason why laws change with the change of time and place.

Family Planning in the Islamic Tradition
Like the other two Abrahamic religions, Islam values the family and encourages procreation. Some Muslims have concluded from these facts that Islam does not permit family planning. Two pieces of evidence are often cited in support of this conclusion. First, that the Qur'an prohibited Muslims from killing their children for fear of want.<4> Second, that the Prophet exhorted Muslims to multiply.<5> But this argument does not do justice to the complexity of the Islamic position and the totality of its teachings. Otherwise, it would be impossible to explain the established fact that the Prophet knew that some of his companions, including his cousin Ali, practiced al-'azl (coitus interruptus) and yet he did not prohibit the practice.<6>
    To understand the fullness of the Islamic position on family planning, we need to look more carefully at the total picture. Its departure point, of course, is to encourage the life principle. This position is emphasized in the Qur'anic prohibition of infanticide, a wide-spread pre-Islamic practice involving born children and motivated mostly by economic and gender considerations. It is also exemplified by the Prophet's exhortation to multiply.
    But such a basic position does not necessitate the conclusion that contraception, or even abortion, is prohibited. Indeed, historically, the majority view among Muslims scholars on contraception has been that it is permissible with the wife's consent, though perhaps disliked in certain cases. The wife's consent is required because Islam recognizes the wife's right to sexual enjoyment and procreation.
    A leading proponent of this view is al-Ghazali (d. 1111), who based his conclusions on the well-established principle that what is not prohibited by Quranic text or an authenticated Hadith (words of the Prophet), or by analogical reasoning with respect to either or both, is permissible.<7> As to contraception, he notes, there are no such prohibitions. In fact, the opposite is true. His analogical logic is startling in its simplicity. In one part of his argument, he notes that, despite the prophetic exhortation to multiply, it is nevertheless permissible for a Muslim to remain single. The effect of remaining single on multiplying, he reasoned, is no different than the effect of practicing al-'azl. Since the one is permitted, it follows that the other, without more, is also permitted.<8>
    Al-Ghazali argues further that although contraception is permissible, it is makruh (disliked or disfavored) if practiced to avoid, for example, female offspring. One major justification for this conclusion is that preference for male offspring is frowned upon in the Qur'an.<9> Al-Ghazali, however, views contraception as permissible for other reasons such as protecting a woman from the dangers of childbirth, avoiding poverty, and even preserving a woman's beauty.<10>
    In the case of family planning through contraception, the wish to avoid poverty does not infringe on the right to life of a born human being. To the contrary, it goal is to preserve a dignified quality of life for those already born. On the other hand, using contraception to avoid having more females reflects a world view and a value system antithetical to that of the Qur'an. It was thus makruh and discouraged by scholars like al-Ghazali.<11>
    Other jurists agreed with al-Ghazali's basic position on contraception but disagreed on what constitutes makruh behavior. Such disagreement may very well have been founded on their disparate historical and cultural experiences. In other words, these are the kind of differences anticipated and tolerated by the first principle, and perhaps the other principles of ijtihad listed above.

Contraception
Semen in Islam has no special value. Alone, it is not life and whether it ever develops into life is a matter of divine omnipotence. The Prophet himself said "not of all the semen a child is formed..."<12> He also told his companions that if God wanted to create a human life, God would do so anyway, whether they practiced al-'azl or not.<13> A delicate analogy used by al-Ghazali further illustrates the same point. Al-Ghazali likens intercourse to a contract because it consists of an offer and an acceptance. Thus, so long as the offer has not been accepted, it may be withdrawn.<14>

Ibn Hazm, who lived in Islamic Spain (d. 1063), represents a minority view on contraception. He adopts an extremely restrictive position arguing that it is a form of hidden infanticide and is thus prohibited by the Qur'an. His argument is based on a report by Judama, a woman who reportedly heard the Prophet refer to al-'azl as hidden infanticide.<15> Al-Ghazali and many others treat the same report differently. Focusing on the fact that a fetus does not become a living being until it reaches a certain stage of development, al-Ghazali concludes that the reported saying indicates karahiyah (disfavor) and not prohibition. In doing so, he relied in part on companion Ali's rejection of the description of al-'azl as "minor infanticide."<16>
    Among the five major traditional Islamic schools of thought, the majority of Hanafis, Malikis, Ja'faris (Imamis) and Hanbalis permitted the practice of al-'azl, subject to the wife's consent.<17> In fact, some Ja'fari and Maliki scholars gave the wife the right to monetary compensation from her husband if he were to engage in al-'azl without her permission.<18> But, Ja'faris permitted al-'azl without the wife's consent for each particular occurrence, if she had given a general consent at the outset.<19> Some Hanafis and Hanbalis, however, differed with the majority view of their respective schools as to the need for the wife's consent.<20> Shafi'is permitted al-'azl even without such consent, because in their view, the wife is entitled to intercourse but not ejaculation.<21>
    Recently, some Muslim scholars have returned to Ibn Hazm's minority view. Part of the reason may be rooted in their concern for the Muslim Ummah (community) whom they feel has become the intended target of population control propaganda by the West. In such a case, however, the proper analysis is not to go back to the controversial arguments of Ibn Hazm. Rather, Muslim scholars should make their position clear to other Muslims by appealing to legitimate jurisprudential principles, such as that of public interest. This approach would allow them to reach their desired conclusion, while at the same time utilizing full disclosure with other Muslims. It would also preserve the integrity of scholarly religious analysis, relate to the community on a mature and principled basis, and raise the community's consciousness while leaving room for dissenting personal decisions by the average Muslim.

Abortion
Another major form of population control is abortion. The majority of Muslim scholars permit abortion, although they differ on the stage of fetal development beyond which it becomes prohibited.<22> To understand the differences in their positions, we have to first study what the Qur'an says about this matter.
    There are two Qur'anic passages that address this issue. Both of them describe stages of fetal development.<23> These can be summarized as follows: the semen (nutfah) develops in the womb, together with the ovum, into a clinging clot ('alaqah), then a chewed lump (mudghah) complete in itself yet incomplete, then another act of creation takes place (khalqan akhar). At this last stage, ensoulment occurs.
    Scholars agree that abortion at or after the ensoulment stage is prohibited, except to protect the mother's life.<24> They disagree, however, on when this stage is reached and whether abortion at an even earlier stage is permitted. One group permits abortion up to 120 days.<25> Another prohibits it as early as 80 or even 40 days after conception.<26> In either case, many hold the view that abortion does not abruptly become prohibited at a certain stage (whether that stage is reached at ensoulment or earlier). Rather, abortion becomes increasingly makruh as the fetus develops, until it becomes finally prohibited.<27>
    On the other hand, a minority of scholars hold a very strict view which prohibits abortion the minute the semen attaches to the uterus. They argue that the attached semen is already on its way to being ensouled.<28> These scholars also view abortions performed at later stages of pregnancy as yet more serious than those performed at the earlier stages. This position was adopted recently by some Muslim jurists, who relied on scientific evidence in reaching their conclusion. While saluting the various efforts of earlier Muslim jurists on the subject, they concluded "from a review of contemporary medical and scientific advances. . . that an embryo is a living organism from the moment of conception."<29>
    Among the major traditional schools of thought, the majority of Hanafis and Shafi’is permit abortion before the 120 days period.<30> Among the minority of Shafi’is who oppose this view is al-Ghazali who describes abortion as a jinayah (crime).<31> Hanbalis permit abortion before 40 days (by taking medicine) while Ja'faris and Malikis prohibit it at any time.<32> Of course, all these views permit abortion for exigencies such as saving the mother's life even after the ensoulment stage.<33>

It is worth noting that for centuries Muslim societies made room for these widely differing schools of thought, allowing them to thrive in their midst, side by side. The schools were generally regarded as examples of good and honest ijtihad. How a particular Muslim came out on any one of these issues was viewed as a matter of personal conscience. One conclusion that can be drawn, however, from the various ijtihads is that family planning through contraception is less controversial and hence preferable to family planning through abortion.
    If a woman is nevertheless faced with an abortion decision, and if after deliberation she truly finds the reasoning of a permissive group (like the majority Hanafi view) convincing, then she should not be discouraged by the prior discussion on disagreements, and should feel free to take advantage of the license under her preferred view. This advice is based on the Prophet's position of encouraging ijtihad and on the Islamic scholarly tradition of regarding differences among mujtahids (those who engage in ijtihad) as an expression of the mercy of God upon Muslims.<34>

Final Considerations
This is a very short overview of Islamic jurisprudence on this topic. The majority view is that a Muslim family is permitted to engage in family planning. The actual answer, however, to today's question of whether Muslim families ought to be encouraged by their institutions to engage in family planning is somewhat more complicated. The special features of this historical epoch and its technetronic societies must be analyzed carefully so that Muslim scholars and leaders do not lend support to policies which, in the final analysis, turn out to be contrary to the Islamic spirit or to public interest. For example, while Islam permits a family to plan its growth rationally in order to avoid poverty, this permission should not be distorted so as to discourage or deny poorer people or less technologically developed countries their right to propagation. Indeed, the Qur'an tells us that God takes care of all creatures.<35>

* In this article, the author provided a brief overview of Islamic jurisprudence on the subject matter but did not recommend any particular position with respect to the debate on family planning. The author, however, wishes to emphasize to the reader the importance of correctly analyzing arguments and factors involved in the particular situation under consideration, in light of all relevant communal as well as individual factors. The author also wishes to emphasize the importance of formulating such analysis free from all forms of compulsion and coercion, whether conscious or subconscious, individual or organized, including that of targeted advertising campaigns. For, in the final analysis, each Muslim is personally responsible towards God for her own choices.

* I would like to thank Drs. Fathi Osman, Hassan Hathout and Maher Hathout, members of The Islamic Center of Southern California Center, for their valuable comments on the original text of this article. This text has been revised in response to their comments. However, the author is solely responsible for the views expressed herein.

* Since this article was first given as a speech at a United Nations forum, and attended by an international audience, I made a special effort to reference my footnotes to reliable English- language works whenever possible. These works provide references for those interested in further research in original Arabic-language sources. The author’s English-language articles, some of which are referred to here, also provide references to original Arabic sources.