Home 
Contact 
Profile 
Videos 
Paper by Prof Omar Hasan Kasule
ABSTRACT
The issue of ‘unwanted pregnancy’ is a recent concept in human history and is associated with social stresses of modern life. The purposes of the law, maqasid al shari’at, and its principles, qawa’id a shari’at, focus on preventing ‘unwanted pregnancy’, protecting the rights of the fetus and infant, and mitigating the adverse effects of ‘unwanted pregnancy’ by social measures. ‘Unwanted pregnancy’ is associated with general social determinants (hedonistic life styles, sexual transgression, addiction to drugs, fear of poverty, and low female status) and specific antecedent causes (sexual crimes, egoistic greed, maternal/fetal disease, and gender discrimination). It is prevented by sexual hygiene, marriage, contraception, deterring sexual crimes, and raising the status of women.. The adverse sequelae of ‘unwanted pregnancy’ (feticide, infanticide, or child abuse and neglect) can be prevented by defending the basic human right of the fetus and infant to life, promoting social institutions for child welfare (nuclear family, extended family, foster care, and open adoption). Closed adoption is forbidden by law but care in a foster home is allowed and is encouraged if the nuclear and extended families are unwilling or are unable to care for children. Abortion at any stage of pregnancy is a crime against humanity. It is not a solution to the problem but is part of the problem. It will encourage more ‘unwanted pregnancies’.
1.0 CONCEPTUAL ISSUES
1.1 from inevitable to ‘unwanted pregnancy’
The dissociation between sexual activity and pregnancy is recent in human history being attributed to contraceptive technology. Humans from time immemorial knew that pregnancy was an inevitable consequence of coitus. They understood that sexual pleasure came with the responsibility of pregnancy and child rearing. Child bearing and child rearing were not only burdens but were also desired pleasures of life. The issue of ‘unplanned’, ‘unintended’, or ‘unwanted’ pregnancy did not arise. Those who for religious or other purposes did not want pregnancy or child rearing opted for abstinence from sex and lived a life of hermits as monks and nuns. Eunuchs did not engage in sexual activity because their libido was destroyed by surgical castration. All human societies have had some forms of simple and largely ineffective contraception but could accept the pregnancy if it occurred. With availability of more effective contraceptive technology, it became possible to have sexual enjoyment without thinking about the consequence of pregnancy. However if contraception failed, resulting in an ‘unwanted’ pregnancy, the fetus was aborted or the infant was given up for adoption. Abortion as a solution to contraceptive failure encourages sexual promiscuity by using contraceptives in the knowledge that if contraception fails legal abortion was available.
1.2 ‘unwanted pregnancy’ is unnatural
The purposes of the human reproductive function can be considered at the individual, family, community, and human levels. Reproduction at an individual level fulfils a deeply felt human desire for self-perpetuation. Parents are proud of their children, al tafakhur bi al awlaad[1] and naturally desire to have many, al takathur bi al awlaad[2]. Children help cement and strengthen the marital bond. As regards the community level, the Prophet Muhammad (Peace be upon him) encouraged Muslims to have as many offspring as possible to give glory to the community so that it may be the largest of communities. When righteous people have many children and bring them up to be righteous, they will be spreading light and truth in the next generation in a very effective demographic strategy. At the level of the human species, reproduction is necessary to ensure survival of the human race. Therefore ‘unwanted pregnancy’ is unnatural and runs contrary to the objective of human reproduction mentioned above especially the human survival instinct. It is against basic human nature. It occurs only in socially and morally adverse conditions.
1.3 ‘Unwanted pregnancy’ and purposes of the law
The 5 purposes of the Law (maqasid al shari’at), also called necessities (dharurat); general fundamentals (usuul kulliyat) or axioms of the Law (kulliyat al sharia), are permanent and are unchangeable axioms (kulliyat abadiyat). The Law was revealed to achieve 5 purposes: morality, diin; life, nafs; progeny, nasl; intellect, ‘aql; and wealth, maal. Protection of diin, hifdh al din, ensures a basic moral order. Protection of life, hifdh al nafs, ensures respect for life and maintenance of good health. Protection of progeny, hifdh al nasl, ensures reproduction and biological survival of the human species. Protection of the mind, hifdh al ‘aql, ensures mental health. Protection of wealth, hifdh al mal, ensures property rights. All consequences of ‘unwanted pregnancy’ violate the purposes of the Law. Pregnancy outside the bond of marriage violates the purpose of morality. Abortion, child abuse and neglect violate the purpose of life. A general principle of the Law is that life is sacred, hurmat al nafs. ‘Unwanted pregnancy’ and ‘unwanted birth’ violate the purpose of progeny. Mental consequences for children and parents involved in ‘unwanted pregnancy’ violate the purpose of intellect. Adverse economic consequences on the mothers and children involved in ‘unwanted pregnancy’ violate the purpose of preserving wealth.
1.4 Principles of the law and ‘unwanted pregnancy’
The five major principles, al qawaid al kulliyat al khamsat, are: Intention, qasd; certainty, yaqeen; injury, dharar, difficulty; mashaqqat and custom or precedent, urf. The principles of the Law, qawa’id al shari’at, resolve conflicts that arise in the application of the purposes of the Law, maqasid al shari’at. The principle of intention states that each action is judged by the intention behind it and means are judged with the same criteria as the intentions. If the intention is wrong the means is also wrong. The principle of certainty states that a certainty cannot be changed by doubt. Existing assertions continue until compelling evidence changes them. The principle of injury states that injury should be relieved or prevented as much as is possible but cannot be relieved by an injury of the same degree. The principle of hardship states that necessity, dharuurat, legalizes the prohibited. The principle of custom/precedent states that custom or precedent is a legal ruling and is a source of law unless contradicted specifically by text. The principle of intention applies to ‘unwanted pregnancy’ that results from sexual promiscuity whose intention was enjoyment without responsibility. Escaping the consequences of irresponsible coitus by abortion violates the legal principle that the end does not justify the means. Under the principle of certainty, the original state is that of wanting to procreate and there are doubts whether ‘unwanted pregnancy’ is voluntary. My thinking is that the social stresses of modern life force persons to hate pregnancy and later regret the actions of abortion or giving up for adoption. Under the principle of injury we cannot remove the harm of ‘unwanted pregnancy’ by creating an even bigger harm of abortion. Under the principle of necessity, ‘unwanted pregnancy’ is not a dharurat that legalizes taking life. ‘Unwanted pregnancy’ violates the customary desire for children that is found in all natural human societies.
2.0 DETERMINANTS AND CAUSES OF ‘UNWANTED PREGNANCY’
2.1 Social determinants of ‘unwanted pregnancy’
Hedonistic lifestyle: Islam is a religion of the middle. Muslims are encouraged to enjoy the good things of the world[3]. They are however warned against excesses[4]. Humans are free to enjoy the good life of the permitted, halaal, but must maintain balance and equilibrium. A hedonistic lifestyle is a failing lifestyle seeking only passionate pleasure and manifesting as addiction to bad habits and sins, social incompetence, laziness in basic responsibilities in the family and society, lack of seriousness and neglect of duties. The ultimate form of failure is loss of self-control and ending up being under the control of the base human desires, ghalabat al shahawaat[5]. In such a lifestyle sexual transgressions will be committed without regard to consequent social responsibilities and a situation of ‘unwanted pregnancy’ arises.
Sexual transgression: Adultery, zina, is the commonest sexual perversion and is the commonest cause of ‘unwanted pregnancy’. It is preceded and facilitated by pornography, absence of ghiira (concern for chastity), violating the privacy of the home, trans-sexual dressing and behavior, free mixing of both genders, ikhtilat; seclusion of unrelated males and females in secrecy, khalwat; failure to lower the gaze, ghadh al basar; indecent and sexually provocative exposure, tabarruj; exposing nakedness, kashf al ‘awrat; and violating the regulations of decent dress, hijab. Abnormal marital arrangements (temporary marriage, mut’at; marriage with intention to divorce, zawaj bi niyyat al talaq; and legally invalid marriage, nikaah baatil) can result in illegal sexual intercourse and ‘unwanted pregnancy’.
Addiction to drugs: Sexual activity under intoxication is a cause of ‘unwanted pregnancy’. Khamr is defined in the Law as any substance that causes intoxication, al khamr ma khaamar al ‘aql wa kullu muskirin khamr[6]. Khamr violates the purpose of the law relating to protection of human intellect. Every intoxicant is prohibited[7]. What intoxicates in large amounts is haram in small amounts, ma askara kathiruhu fa qaliluhu haram. Thus the term khamr covers alcohol, illicit drugs, and all other psychoactive substances.
Fear of poverty: Shaitan uses fear of poverty to frighten and control people[8]. Humans fear poverty[9]. If childbirth is perceived as a cause of future poverty, the pregnancy can be unwanted. Poverty is relative and is a perception. An individual with a lot of material assets may feel poorer than who has less. ‘Unwanted pregnancy’ is felt as a problem more among the well to do than the poor.
Low female status:
When women are respected, they will be proud of their femininity and will value their reproductive roles and will want pregnancy if they are in good health. Low status of women is a cause of ‘unwanted pregnancy’. Women in industrial society look at pregnancy as an obstacle to their ability to compete with men at the workplace. Prejudice against females has existed in the past and continues to exist today. The status of women was very bad in pre-Islamic Arabia, jahiliyyat [10]. Females were despised, idhlaal al nisa. There was preference for male births and hatred for females[11]. Parents were sad on birth of a daughter[12]. Infant daughters were considered a blemish, aar[13] and were buried alive, wa'ad al banaat[14]. Women were inherited as goods[15] and were denied the good things of life[16]. Some Christian groups blame women for the original sin of Adam and Hawa on the basis that it was Hawa who persuaded Adam to eat the fruit. The contemporary European secular society treats the woman's body as a sexual object to be exploited in the commercial advertisement and entertainment industries. The woman is required to behave, act, work, and be treated like a man. This will in the end remove the social legal protection for the woman that is necessary because of her different biology and her functions as a mother and a wife. This violates the obvious principle that treating the dissimilar in an equal way is a gross injustice.
2.2 specific causes of ‘unwanted pregnancy’
Sexual Crimes: Pregnancy conceived as a result of illegal sexual intercourse, zina; rape, and incest may be undesirable the parents may consider feticide or infanticide as a way out of social embarrassment or as an escape from physical, psychological, and financial responsibilities of child rearing.
Egoistic greed: It is a paradox that both extremes of the scale of wealth are causes of ‘unwanted pregnancy’ because of the materialistic greed of fearing sharing with the offspring. Poverty may push indigent parents to hate pregnancy. The wealthy want to enjoy their hedonistic life style without sharing their time and wealth children.
Maternal or fetal disease: A pregnancy may be undesired because of genetic diseases of the infant, serious disease in the mother, or serious disease in the fetus.
Gender discrimination: A pregnancy may be undesired in societies that systematically practice gender preference and gender discrimination. Often parents prefer males. Pregnancy with a female is therefore considered an ‘unwanted pregnancy’.
3.0 PREVENTION OF ‘UNWANTED PREGNANCY’
3.1 Sexual hygiene
Expression of human sexuality is as normal as is the desire for food or shelter. Allah created sexual desire, shahwat[17] as a powerful instinct that can overwhelm weak humans[18]. The Law forbids complete rejection and suppression of the sexual instinct[19]. It has regulations for proper conduct of sexual relations by decreasing sexual stimulation or preventing getting near adultery, qurb al zina[20]. Under normal circumstances, it is the family and the community that regulate sexual behavior. The state intervenes when sexual promiscuity becomes public and severe deterrent measures become necessary. Among social measures for regulating sexual expression are: fasting, saum[21], protection of chastity, ghiirat[22], intolerance of sexual misbehavior in the family[23], not broadcasting sexual misbehavior[24], sexual self restraint by men and women[25], covering nakedness, satr al awrat[26]; lowering the gaze, ghadh al basar[27]; seriousness in male-female communication, jidiyyat al takhatub[28] in an atmosphere of solemnity, wiqaar[29]; prohibition of seclusion of unrelated males and females, khalwat[30]; prohibition of free male-female mixing, ikhtilat; prohibition of provocative sexual display, tabarruj[31]; and respecting the privacy of the home, hurmat al bayt, such that strangers cannot enter the home without permission[32]. Both genders must have modesty, haya[33]. Haya is the morality of Islam[34], a characteristic attribute of all messengers[35], an inner spiritual protective device that makes a person shun sin, and is part of faith, iman[36]. The Qur’an described haya of the daughters of Shuaib in their meeting with Musa (PBUH)[37].
3.2 Early marriage
Delay of marriage for economic or other reasons encourages pre-marital sex that often results in ‘unwanted pregnancy’. Marriage is the only institution that allows full expression of human sexuality in a responsible way. It is, according to the Qur'an, a deep and serious relationship[38]. The spouses give good company to one another, mu'asharat[39]. Islam encourages marriage for all[40]. Marriage is protection against sexual immorality[41]. If a man sees an attractive woman he should go to his wife immediately because that protects him from potential sin[42]. Desire for sexual satisfaction is a major reason for marriage. It is considered offensive by the Law for a person who has no sexual desire at all to get married. A person who has desire for sexual satisfaction but has impediments like poverty or physical disability (disease, impotence) should control the desire by fasting. It is forbidden for a spouse to withhold sexual favors without a valid reason[43] because that may lead to sexual transgression. Marriage is a permanent institution, abadiyyat al zawaaj, and cannot be a temporary sexual relationship. The following temporary sexual relations are forbidden by the Law: temporary marriage, mut'at[44]; prostitution, bighaa[45]; adultery between consenting adults, zina; and marriage with the hidden intention to divorce after a time, zawaaj bi niyyat al talaq. Pregnancy out of wedlock following divorce is usually an ‘unwanted pregnancy’.
3.3 Maintenance of marriage
The Law has prescribed provisions for successful marriage starting from the marriage contract, description of rights and obligations, and mutual good treatment. Desirable characteristics in a spouse are religion, beauty, pedigree, lineage, wealth, social compatibility, and professional status. No person is to be married without his or her free consent irrespective of gender, age, or previous marital status. Conditions in the marriage contract have to be respected. Examples are stipulations about monogamy and stipulations about country of residence. A balance must exist between mutual rights and obligations. Spouses are a source of comfort, sakiinat, for each other. Mutual kind and tolerant treatment between the spouses is needed in marriage. Ill-treatment of the spouse is forbidden.. Divorce is permitted, halaal, but is hated by Allah. Mutual good treatment, kindness, and tolerance prevent divorce. It is offensive for the husband to divorce for no reason. It is also offensive for the wife to ask for divorce for no reason. Divorce is a not a solution to marital problems but an escape. It creates more problems than it seeks to evade. It is resorted to when all avenues to marital reconciliation have failed and it is feared that continuation of the marital relation will lead to acts of disobedience, ma'asiyat, by either spouse.
3.4 Contraception
Use ogf contraception by a sexually active couple that has a valid reason for delaying child birth prevents ‘unwanted pregnancy’. There is a basic permissibility of contraception as is clear from the hadith of the prophet on coitus interruptus, tarkhis fi al ‘azal[46]. It is however considered offensive, karahiyat al ‘azal[47]nahyu al ‘azal ma’a al hurrat illa bi idhniha[48]. Since child-bearing is one of the purposes of marriage, any decisions on contraception require mutual agreement between the two spouses otherwise one can claim denial of parenthood rights in marriage. In cases in which contraception is a necessity, dharuurat, for preserving the life of the mother, the agreement of the husband is not required but he has the option of recourse to divorce. Choice of the method of contraception must be based on the purposes and principles of the Law. It should not encourage immorality or in any way be conducive to spread of evil, fasaad, in violation of the purpose of preserving religion, hifdh al ddiin. It should not be harmful to the life and health of any of the parents under the purpose of preserving life, hifdh al nafs. It should also not destroy life of the zygote or fetus because it is life preserved under the purpose of hifdh al nafs. It should not be a cause of stress that can lead to severe psychological disturbance in violation of the purpose of preservation of intellect, hifdh al ‘aql. It should not permanent and irreversible because it would violate the principle of preservation of progeny, hifdh al nasl. and is prohibited without the wife’s permission,
3.5 Deterrence of sexual crimes
Adultery, zina: The Law prescribes several measures to prevent adultery: prohibition of seclusion of a man with a marriageable female, khalwat; prohibition of looking with desire, al nadhar bi shahwat; prohibition of looking at nakedness of another person, awrat; and prohibition of display of beauty and ornamentation, tabarruj. The Law of adultery remains a final deterrent in situations in which immorality becomes so widespread that it is done openly in the public. The primary objective of the Law of adultery is to protect public morals from the commitment of illegal sexual activity in public where everybody including children can see the crime. Its strict conditions on evidence needed for conviction make it impossible to convict mutually consenting adults engaging in discreet illegal sexual activity. Islam relies on the family, the community, and tarbiyat to prevent such situations.
Rape is a severe crime that involves violence and violation of honor and modesty. The death penalty is applied on conviction.
Pornography and sexual exhibitionism are a prelude to and an encouragement of more serious sexual crimes. It is prohibited under the rule of the Law that states that whatever leads to the prohibited is itself prohibited.
3.6 Raising the status of women
Islam protected the rights of the woman. It raised the woman’s status[49]. Killing the woman was forbidden[50]. Good treatment of women was ordained[51]. Making fun of women was prohibited[52]. Islam has emphasized gender identity while rejecting all forms of discrimination against the woman on the basis of her gender. The Qur'an makes it clear that both Adam and Hawa were misled[53]. They both sought forgiveness from Allah and were forgiven[54]. In 2 verses it is Adam and not Hawa who is mentioned as seeking forgiveness[55]. Human sexuality could be a cause of corruption. Women because of their sexual attractiveness can be a source of fitnat[56]. This has been misunderstood as derogatory to the moral standards of women. In practice it is men who are more often the active or aggressive party in sexual corruption and should take the blame. Any situation of corruption involves both a man and a woman and both are morally guilty. The law equalizes their guilt and their punishment[57] as it equalizes their reward for good work[58]. Men can also be a sexual attraction as the Qur'an tells us in the story of Yusuf (PBUH). His beauty was a temptation, fitnat, for women[59].
4.0 LEGAL PROVISIONS FOR ADVERSE CONSQUENCES OF ‘UNWANTED PREGNANCY’
4.1 The right to life
Prenatal care
Fetii and infants have inalienable rights health protection and health promotion. This includes health care and nutrition in pregnancy and post-natally. The Law prescribes measures to ensure that the pregnant mother is in the best physical and mental health for a healthy infant outcome. A pregnant woman is excused from fasting, saum. A woman in advanced pregnancy has limited ability to do physical work, at home or outside the home, and has to be excused. Legal punishments, huduud, cannot be carried out in pregnancy until after delivery and breast-feeding the baby for 2 years.
Postnatal care:
The following rights of the mother must be respected to ensure infant welfare: the right to health care and nutrition, the right to shelter, and payment for breast-feeding if divorced. The infants have a right to be breast-fed. The Qur'an set the statutory period of breast-feeding as 2 full years, muddat al ridha'a[60]. No maximum period was set. The father has to give financial compensation to a divorced wife who is breast-feeding the infant[61]. Breast-feeding is not merely nutrition. It involves a more intimate biological and psychological interaction between the infant and the lactating woman. On the basis of necessity, dharurat, the Law permits collecting milk from several lactating mothers in a milk bank and using it to feed premature babies or those who have no natural mothers. In order to ensure success of breast-feeding the Law has provided leeway to the nursing woman. A nursing mother is allowed to combine 2 prayers. A nursing mother may not fast and make up later. Breast-feeding is allowed in pregnancy. Maternity leave for lactating woman is allowed for. Since the Law sets 2 years as the minimum period of breast-feeding legislation is needed to make maternity leave 24 months.
Prohibition of Feticide
All lives have equal worth whether in uteri or in terminal illness. Taking the life of any one person without legal justification is like killing the whole human race[62]. According to the Law abortion is criminal homicide because life is considered to start at conception. Islam forbids any form of harm to others is forbidden[63] either spilling blood[64] or other forms of physical harm such as beating[65]. Killing a human without valid reason is forbidden[66] and homicide is a major sin being among the 7 worst sins[67]. The Law has allowed abortion in situations in which the life of the mother is threatened by continuation of the pregnancy. This is not a situation of preferring or valuing one life over another. If the pregnancy is allowed to continue, the life of the mother is endangered. Death of the mother also means death of the fetus because of the close dependence of the fetus on the mother. The actual choice is between saving one life and losing two lives. The Shari’ at guideline is to choose the lesser of two evils, abortion of the fetus, instead of losing both mother and fetus. The Law does not allow abortion of a fetus known to have congenital deformities, al janin al mushawah. Also illegal is abortion prompted by poverty, rape, incest, or adultery. The Law prescribes severe punitive measures for causing abortion of a fetus. The physician or any other accessory to abortion is guilty of the offense of causing abortion even if either or both parents consented to the procedures.
Besides considerations of taking life in abortion, abortion is immoral because it encourages sexual immorality and promiscuity. With easy accessibility and affordability of abortion services, people can have illegal sexual intercourse without fear of pregnancy and the legal responsibilities of parenthood. Legalizing abortion encourages violence in society by disrespect to human life and making it of little or no value. Soicety then develops moral tolerance to violence and can readily commit acts of violence against an ‘unwanted pregnancy’ or any other innocent human.
Prohibition of Infanticide. Killing of children is forbidden[68]. Infanticide in the form of abuse and neglect is common today. Newborns from unplanned and undesired pregnancy are abandoned to die on the street. Many are killed and their bodies are buried secretly. Parents neglect feeding and taking care of their infants until they die of malnutrition or disease.
4.2 Social rights
Rights of the newborn:
The newborn has social rights that cannot be fulfilled if the pregnancy is unwanted. The Law guaranteed the right to inheritance for fetii. The newborn has a right to a good name, nutrition, and health care. The following have to be done for the newborn: adhan and iqamat at birth; naming, tasmiyat, with choice of a good name that will not embarrass him or her; circumcision, khitaan; shaving the hair, halq al sha’r, and 'aqiiqah, that is a community welcome for the newborn.
The right to paternity and lineage:
The aim of the Law is to protect the child by making sure that each child has a set of parents to take care of him or her. Parenthood cannot be abolished or denied. If a wife gives birth to a baby while legally married to a man, the child belongs to the legal husband. This position holds even if the marriage was not valid, ie did not fulfil all the criteria. A child born through adultery belongs to the legal husband[69]. Paternity cannot be denied on the basis of suspicions. It is prohibited to deny paternity of a child who resembles the father[70]. A child cannot be disowned for not resembling the father[71].
Inheritance rights:
Children cannot be deprived of inheritance. If children of unwanted pregnancy are disinherited, they will have no resources to support them in their childhood.
The right to equal treatment:
All children are entitled to equal treatment. Children from ‘unwanted pregnancy’ have as much right to equal treatment as other children.
4.3 Child custody, khadhanat
In cases of unwanted pregnancy, the father and mother do not live together as a family. The Law of custody regulates care for the child. The father always has legal custody. Physical custody can be awarded to the mother or the father. The conditions of the custodian are upright character, sanity, and Islam. Mothers who fulfill the conditions of custody automatically have the right of physical custody for all children aged below 7 years of age. If the mother is chosen as custodian, the father must have access to the child during the day. Either parent can lose physical custody if any of the conditions of the custodian is violated.
4.4 Physical/financial support, nafaqat
The father, whether he is the custodial or no-custodial parent, is obliged to provide child support. If the mother borrows to support the child, the father is liable to settle the debt. The father is obliged to provide financial support to the divorced pregnant wife until delivery[72]. This support continues during the period of breast-feeding[73]. The minimum legal period of breast-feeding is 2 years[74].
5.0 INSTITUTIONS THAT CARE FOR ‘UNWANTED CHILDREN’
5.1 The nuclear family
The best place for a child is the nuclear family. The family has a duty to take care of the child even if the pregnancy was ‘unwanted’. Islamic Law encourages all men and women to be in wedlock irrespective of age or social circumstances. It tolerates batchelors and spinsters for a temporary period during which they search for a mate. ‘Unwanted pregnancy’ may occur in wedlock or outside wedlock. If the mother and father of the ‘unwanted’ child are still married, the Law obliges them to take care of the child even if one of them or both did not want the pregnancy. If out of wedlock, the mother may marry a man who becomes a step father. The father may marry a woman who becomes a step mother. The mother may marry into a polygynous family as a second wife, third, or forth wife. In all these situations the child is able to receive the care and love due in a family atmosphere.
The law has set out guidelines for proper functioning of the family so that it can fulfill its responsibilities. The family is both a social and biological unit. The members of the family must have a biological relation either by marriage or parentage. The family has sexual, reproductive, social, psychological, and economic functions. Each member of the family husband wife, or child, has both rights and responsibilities. In a healthy family, members fulfill their obligations and responsibilities before demanding their rights. Both parents are jointly responsible for the upbringing of their children (religious, emotional, physical, psychological, and social), both can undertake any responsibility but division of labor is more efficient such that each parent does what they are best at. Each of the spouses has rights and responsibilities to the other. The husband is the legal and customary head of the family. His position of leadership, qawamat al rajul[75] is based on having more responsibilities. He should partake of domestic work. He must be directly involved in the happiness and sorrow of the family. He is should provide financial security for his family within reasonable limits. He also has the duty to protect his family both physically and emotionally. There are many aspects of the family's life in which the wife's leadership must be recognized because she is the specialist[76]. In order for members of the family to interact and develop the necessary bonds, they need time together isolated from the rest of the community. This is ensured by maintaining a certain degree of privacy in home. All members of the family must feel secure in their home both emotionally and psychologically.
Factors of family destruction are internal (zina and its antecedents) or external (socio-economic and political stresses such as working couples). Social controls against zina have already been discussed. Family destruction is also prevented by a right social environment (controlling immorality, controlling the media, respect for the natural family and motherhood), socio-economic improvement (reduction of poverty, forbidding forced labor of children and women, full employment for husbands to be able to support the family keeps the family together), and respect for human rights (both men and women get protection from physical and psychological violations of their honor).
5.2 The extended family
The extended family is supposed to be an association for mutual material and psychological support. Good relations within this association ensure that help will be available at the time of need. The adverse consequences of ‘unwanted pregnancy’ were felt less in the pre-modern era when the extended family was still strong. The extended family could take care of children unwanted by their natural parents. Parents who know that the extended family would take care of their ‘unwanted pregnancy’ would not resort to desperate measures like abortion. They would also have milder hatred for the pregnancy.
The Law has given guidelines on the integrity of the extended family. These involve good treatment of grandgrandparents and other distant relatives. This keeps the extended family together as one unit that will take up the challenge of looking after ‘unwanted’ children. The Qur'an has in many verses enjoined good treatment of grandparents, birr al waalidayn[77]. Good treatment covers both the grandfather and the grandmother, birr al walidayn, includes doing good for them[78], honoring them[79], and praying for them[80]. Grandparents must be respected and never shown any contempt whatever their behavior. Grandparents must be obeyed as long as they do not order committing a sin[81]. Cursing or mistreating, uquuq, grandparents is considered one of the major sins, kabair, and leads to severe punishment[82]. The Qur’an enjoins good treatment of the near kindred[83]. This includes feeding them[84], giving them financial support[85], joining kindred relations[86], and loving them[87]. They have definite rights that should not be violated[88] and these include rights of inheritance as enunciated in the law of inheritance[89]. There is great reward for joining kindred relations[90] [91]. It is sin to cut off kindred relations[92]. Doing good for relations is expiation from sins[93].
5.3 Foster care and adoption
Legal adoption that suppressed information and links to natural parents is forbidden[94]. Children can be adopted for purposes of upbringing provided they are told whom their biological parents are and care is taken to avoid consanguineous marriage. It is prohibited for a child to attribute to himself or herself a lineage other than that of the father.
* Paper presented at the Commonwealth Medico-legal Conference on ‘Perspectives in Tackling Medico-legal Controversies’ organized by the Malaysian Medical Association in Kuala Lumpur, Malaysia 17th – 19th January 2003 and published as a supplement to the Malaysian Medical Journal Vol No of 2003.
** Faculty of Medicine, IIUM Kuantan
[1] Qur’an 9:55, 9:85
[2] Qur’an 9:69, 18:39, 19:77, 34:35, 57:20
[3] Qur’an 5:5 & 16:72
[4] Qur’an 5:87
[5] Qur’an 23:106
[6] Bukhari K64 B60
[7] Bukhari K64 B60
[8] Qur’an 2:268
[9] Qur’an 9:28
[10] Bukhari K77 B31
[11] Qur’an 6:137, 6:140, 6:151, 17:31, 60:12, 81:8-9, 16:58-59
[12] Qur’an 16:58-59, 43:17
[13] Qur’an 16:58-59, 43:17
[14] Qur’an 6:137, 6:140, 6:151, 16:58-59, 17:31, 60:12, 81:8-9
[15] Qur’an 4:19
[16] Qur’an 6:139
[17] Qur’an 3:14, 7:81, 27:55
[18] Qur’an 23:106
[19] Bukhari 7:1,
[20] Qur’an 6:151, 17:32
[21] Bukhari 1:732
[22] Bukhari 7:133)
[23] Ahmad 2:69
[24] Qur’an 4:148, 24:19
[25] Qur’an 4:24-25, 5:5, 24:4, 24:23
[26] Qur’an 24:31
[27] Qur’an 24:31
[28] Qur’an 33:32
[29] Qur’an 24:31
[30] Bukhari K67 B111
[31] Qur’an 24:31
[32] Bukhari 8:258)
[33] Qur’an 28: 23-25
[34] Ibn Majah K37 B17
[35] Tirmidhi K9 B1
[36] Bukhari K2 B3
[37] Qur’an 28:23-28
[38] Qur’an 4:21
[39] Qur’an 4:19
[40] Bukhari K67 B1
[41] Abudaud K12 B42
[42] Muslim K16 H9 & H10
[43] Bukhari K67 B85
[44] Bukhari 7:52
[45] Qur’an 24:33
[46] Bukhari K67 B96
[47] Muslim K17 H31
[48] Ahmad 1:31
[49] Qur’an 16:58-59
[50] Qur’an 6:140 & 81:8-9
[51] Bukhari K60 B1
[52] Qur’an 49:11
[53] Qur’an 2:36, 7:22, 20:121
[54] Qur’an 7:23
[55] Qur’an 2:37, 20:122
[56] Bukhari 7:33; Qur'an 64:14
[57] Qur’an 24:2
[58] Qur’an 3:195, 4:124, 16:97, 40:40, 33:35
[59] Qur’an 12:26
[60] Qur’an 2:233, 31:14, 46:15)
[61] Qur’an 65:6
[62] Qur’an 5:22
[63] Qur’an 2:231 & 9:107
[64] Qur’an 2:30 & 2:84
[65] Qur’an 4:34
[66] Qur’an 2:30 & 60:12
[67] Bukhari K55 B23
[68] Qur’an 17:31, 81:8-9, 60:12
[69] BG963 Bukhari and Muslim
[70] BG942 Abudaud, Nisai, Ibn Majah
[71] BG944 Bukhari and Muslim
[72] Qur’an 65:6
[73] Qur’an 65:6; 2:233
[74] Qur’an 2:233
[75] Qur’an 4:34
[76] Bukhari K43 B20
[77] Qur’an 2:83 & 46:15-18
[78] Qur’an 2:83 & 46:15
[79] Qur’an 12:99-100
[80] Qur’an 9:114 & 60:4
[81] Qur’an 37:101-102
[82] Muslim K35 H43
[83] Qur’an 20:83 & 4:36
[84] Qur’an 90:14-15
[85] Qur’an 2:177 & 59:7
[86] Qur’an 16:90
[87] Qur’an 42:23
[88] Qur’an 16:90 & 30:38
[89] Qur’an 4:7-8 & 4:33
[90] Bukhari K78 B12
[91] Bukhari K78 B12
[92] Bukhari K78 B11
[93] Ahmad 2:13
[94] Qur’an 33:4-5, 33:37-38, 33:40