Research Methodologies In LAw
Students choose and design research methodology (or methodologies) for a project on any self-chosen research topic in law, and present and explain the chosen research topic.
This research study focuses upon the concept of abortion and the issues related to such laws in the Islamic Jurisprudence. Several researches reveal that thousands of women residing in countries that have restricted laws related to the practice of abortion often undergo unsafe and concealed abortions, thus, jeopardizing their lives. The incline in the unsafe and concealed abortions has taken the shape of a substantial public health issue. The concept of abortion laws in the Islamic jurisprudence has become a major concern in the religious domain and with the development in the scientific progress; the issue has entered into the sphere of medical societies as well. This research study deals with the view of the various schools of Islamic law on the practice of abortion and its related laws.
Background Of The Study:
Under the Islamic laws, the concept of traditional family is given utmost importance, as it is believed that a traditional family encourages procreation. Marriage and children are viewed as a gift from the Almighty and are depicted as ‘decoration of life’ in the Quran, the holy book of Islam. Since the Quran does not directly provide redressal for every possible moral situation, entailing the laws related to adoption, the Muslims act in compliance with the teachings of the Prophet Muhammad (Hadiths). Further, in case, the Hadith provides varying interpretations the Muslims follow the principles of ijtihad.
The practice of abortion in Islam is considered as a moral sin and lawfully restricted provided such abortion poses a threat to the life of the mother. The mother is allowed to undergo abortion if the pregnancy endangers her life or causes severe harm to her. According to the Quranic verses, one is prohibited from transgressing on the life of another person at any stage of life but if such abortion causes death of the life of the mother, the mother is permitted to abort the fetus. The rationale for the exception is based on the fact that the fetus owes its existence to the mother, hence the fetus cannot cause death to the mother. Moreover, the life of the mother is stable therefore, it must be given greater priority over the life of the fetus, which is uncertain. In other words, allowing abortion to save the life of the mother is based on the fact that it is better to repel greater harm and tolerate a lesser harm.
Background Of The Islamic Schools
There is a disagreement among the various schools of contemporary scholars regarding the laws relating to abortion. The Hanfite jurisprudence permits abortion before the expiry of 120 days from conception. In other words, this school of Islamic law allows the mother to undergo abortion before the inspiration of soul. The teachings of this school are flexible in nature with respect to the abortion laws. However, this school of law permits abortion within the 120 days of conception only if such pregnancy causes death or any severe harm to the mother.
The Maliki School prohibits the practice of abortion, as they do not allow the exclusion of zygote, not even within the fortieth day from the day of conception. This school of law does not provide any exception under which abortion is acceptable and valid.
The Hanbalite School of Law prevents the practice of abortion after the fortieth day of pregnancy. The Zahirites School of law prohibits the practice of abortion completely and do not approve any form of exceptions even if such abortion endangers the life of the mother.
The Islamic schools in the past must believe that abortion was prohibited (haram) after 120 days even if such pregnancy causes death of the mother. This is because the jurists believed that the fetus is alive and killing it would be unlawful as it is uncertain and only presumed that the pregnancy would cause death of the mother. Therefore, it is unlawful to kill a human being based on assumptions. However, in the event the death of the mother is certain if the pregnancy is continued, the mother shall be allowed to undergo abortion giving the life of the mother priority to the life of the fetus.
Moreover, all the schools of law permits abortion before the inspiration of soul provided both the parents/couple give their consent to the abortion. The council of religious scholars of the Islamic Fiqh Academy of the Muslim World League is of the opinion that abortion cannot be permitted after the expiry of 120 days of pregnancy irrespective of the fact that the fetus is medically reported to be deformed and would cause harm to the life of the mother.
Rationale Of The Study
The validity and the permissibility of abortion depend greatly on gestational period and the specific circumstances of the mother undergoing the abortion. The diversity with respect to the abortion related laws in any country depends largely on the variability of the Islamic position and the legal system followed in the country that is whether the country follows the Islamic law or whether the country follows Islamic law combined with the common or civil law. In Egypt, a Muslim-majority country, abortion is prohibited under all circumstances in accordance with the Egyptian Penal Code 1937. However, the criminal law is comparatively flexible on the ground that the abortion is permitted of it is necessary to save the life of the mother or the medical experts have confirmed the deformation. However, the medical committee must confirm that the abortion is mandatory and it is conducted according to the law of the land.
Several religious scholars view the increasing practice of abortion and its acceptability in the Muslim predominant counties as an indication of how much people have shifted from the teachings of the religion. Some of the religious leaders have introduced fatwa according to which any person who undergoes an abortion shall have to pay allowance for the same under certain circumstances. In Egypt, a fatwa is issued in case abortion is necessary under the circumstances where the fetus has occurred through rape. However, the issuing of fatwa has been subject to criticisms, as some scholars believed that it was against the teachings of their holy book, which prohibits killing of innocent souls.
Since fatwa prohibits abortion, it encourages the killing of the innocent souls, hence, should be banned. Despite, the legal and religious restrictions against the practice of abortion in Muslim predominant countries, the change in the social and economic values have enhanced the abortion rate that takes place in these countries. The research study intends to analyze the influence of the Islamic religion on abortion laws and the justification of human rights with respect to the right to life of the fetus.
Sharia Law On Legalization Of Abortion
In the Islamic jurisprudence, human life is regarded as sacred and no one is allowed to end the life or kill any person. The right to life of a fetus has become a major concern under the sharia law all over the world. Abortion implies termination the life of the fetus in the womb that is in the process of development, which is directly related to the rights of the child to life. Moreover, the according to the teachings of the Islamic laws, abortion implies killing of a human being that is only in the process of development. However, several jurists are not unanimous with respect to the stage and the conditions under which a woman is permitted to undergo abortion and terminate the life of the fetus.
As per the teachings of sharia law, the protection of life of man extends to the embryo and is not just confined to the post-natal life. Consequently, the practice of abortion, which implies killing of an embryo, is considered as a sin. In accordance to the Quranic verses humankind comes into existence with the union of two primary cells and destroying either of the cells at any stage would imply deprivation of the humankind of life. Islam does not permit abortion as a measure to control birth rate except under exceptional circumstances. However, this does not mean that the Islamic law is not in favor of birth control measures but once a woman becomes pregnant, the parents of the child is not allowed to terminate the life of the fetus except such pregnancy poses a threat to the life of the mother.
In the Islamic jurisprudence, to permit the fetus to develop and born alive shall imply respect for the right to life. Nevertheless, some scholars are of the opinion that if the pregnancy endangers the life of the mother, abortion is permitted and considered valid. Since laws related to abortion are not specified in the Quran, the rulings of the Prophet are considered as the second primary source of Islamic law. Therefore, the Muslim scholars often rely on the rulings of the Prophet at the time of passing any verdicts or developing any opinion related to abortion in the Islamic jurisprudence.
Human Rights On Abortion Laws
The Human Rights law considers the right to life as one of the fundamental rights that is conferred upon individuals at the time of birth. Every individual is entitled to enjoy this fundamental right to life and the state parties to the International human rights treaties must ensure that no person is deprived of the right to life. The practice of abortion is is considered as a major concern as well due to the increase in the rate of abortion and the unavailability of contraceptive pills, being one of the reasons for the same.
The international and regional human rights bodies including the courts have unequivocally established the fact the prenatal protections must comply with the human rights of women. The emerging concern surrounding the right to life before birth, especially, from conception signifies a significant threat to the human rights that has been conferred upon the women. These attempts entrenched in religious motivations usually denies women, an adequate reproductive health services that are considered as fundamental to safeguard the health, life, dignity and equality among other human rights.
These measures grant a life to the fetus before it is born and this right to life to the embryo is considered as equal to the rights of the women. At times, these attempts tend to outlaw any procedure that terminates the pregnancy and in other cases, these attempts often results in denial of the ability of women to make independent decisions relating to fertility, thus, disregarding the human rights of women.
Influence Of Religious Beliefs On Abortion
The laws related to abortion are often influenced by the different religions that lack unanimity and have different viewpoints on the validity or permissibility of abortion. I believe that religion is a belief that certain individuals hold on to and therefore, one does not have the right to thrust the religious beliefs on other individuals. Although abortion is considered immoral, all across the world, but it should be permitted under circumstances where the life of the mother of the child is endangered due to the continuation of pregnancy. Religion has a significant influence on the decisions related to abortion as it places individuals in a dilemma between the religious and medical beliefs. Consequently, women resort to unsafe abortion in order to maintain their allegiance with their religious beliefs and escape from social stigma.
According to the teachings of Sharia Law, after 120 days from conception or the ensoulment of soul, the termination of life of the fetus is regarded as a sin, hence prohibited. However, the Shafi jurist allows the mother to undergo abortion within 80 days and the Hanabli School of law validates abortion if it is done within 40 days.
Human Rights And Sharia Law On Abortion
Since there is no definite description or evidence regarding the commencement of life, the international and regional human rights treaties protect the right to life. The International Human Rights that aims at safeguarding the rights to life are enumerated as below:
Universal Declaration of Human Rights- Under Article 1 of the Universal Declaration of Human Rights ( UNDHR)all human beings are born free and are equal in dignity and rights. The principle signifies that the rights conferred by the Declarations are inherent from the moment of birth.
International Covenant on Civil and Political Rights (ICCPR)- the covenant rejects the proposition that the right to life extends its protection to the prenatal life. The Human Rights Committee that acts in compliance with the ICCPR reasserts that the right to life is an inherent right that is conferred upon the human being from the time of conception and the law extends protection to such right. In the event, the restrictive abortion laws forces a pregnant woman to resort to unsafe abortion causing danger to the life of the pregnant woman, it shall amount to contravention of the provision of the treaty.
Covenant on the Elimination of All Forms of Discrimination against women (CEDAW) -This Convention states that the fundamental principles of non-discrimination and equality requires that the rights of a pregnant woman prevail over the interest of the unborn fetus. The Convention asserted that the restrictive abortion laws might infringe the right to health and life of women.
On the other hand, in the Islamic jurisprudence, since the right to life of the child commences prior to the birth of the child, the parents of the child are strictly prohibited from committing abortion or any act that causes death of the child. The Islamic law recognizes the fetus as a human being and accords a special status and protection. This legal recognition is derived from the concept of dhimmah. The parents of the child can undergo abortion if they both assent to it, as abortion cannot be performed in the absence of either of the parents of the child. In the event the mother undergoes abortion without the consent of the father of the child, she shall be entitled to pay fine and be held as a wrongdoer. Similarly, the father of the child cannot force the mother to undergo abortion if she refuses to give consent to the same and shall be held liable for committing such wrong.
In my opinion, the assertion made by the International Human Rights Conventions and the Human Rights Committee with respect to the priority of the Mother’s interest over the interest of the baby is just and rational. This is because the mother bore the child therefore, if the pregnancy jeopardizes the life of the mother itself, it is only fair that the pregnancy is terminated. The interest of the unborn fetus shall not prevail over the rights of the mother especially when the outcome of such pregnancy causes death or serious harm to the mental and the physical health of the mother.
From the above discussion, it can be said that in the contemporary world, it is very simple to ascertain the state of pregnancy at the initial stage itself. Although the Islamic or the sharia law validates abortion if it endangers the life of the mother but there is no unanimity with respect to the abortion laws as they differ in different countries. Therefore, in my opinion, the Islamic jurisprudence must adopt liberal laws with respect to abortion giving priority to the welfare of the mother instead of prohibiting her from terminating a pregnancy that would jeopardize her life.
Research Method Outline
The outline of the research includes descriptive research purpose and I have chosen secondary data from various journals, books, etc.
Purpose Of The Research
The purpose of the research can be of three types- descriptive, exploratory and explanatory purpose. The descriptive purpose has been chosen as the purpose of this research as this form of purpose enables to provide more explanation and exploration to the research by providing detailed information on the research topic. It also enables the researcher to incorporate additional information relating to the research topic.
Strategy Of The Research
The researcher has used various books and journals including online books in order to collect the necessary data and investigating this entire research study.
Sources Of Data
There are two sources of data, primary and secondary sources of data that the researcher uses for their research study. For this research study, the researcher has used secondary source of data that has been collected from various books and journal articles.
Data Analysis Techniques
Data analysis technique can be quantitative and qualitative data analysis techniques. For this research study, the researcher has selected qualitative data analysis technique for conducting the research on the chosen topic.
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