The Abortion for Victims of Rape

E. The Abortion for Victims of Rape

Abortion is an act undertaken to solve the unwanted pregnancy. Such pregnancy can be experienced by married or unmarried women. A woman can experience unwanted pregnancy because of various reasons such as health and economics reason and rape. For example, a woman may be sick and her pregnancy can endanger her life, or she has already had many children while she has only limited resources to feed the children, or even because she is pregnant after being raped.

There seem to be more married women than unmarried ones who commit abortion. This is because married women have more access to permissible sexual relationship. Every sexual relationship is potentially causes pregnancy, while not every sexual relationship wanted by husband and wife is expected to end with pregnancy. If every sexual relationship between husband and wife always end with pregnancy, then every husband and wife who are reproductively productive will experience the cycle of having sexual relationship, being pregnant, giving birth, parturition, breastfeeding and after finishing breast feeding, the woman will be pregnant again after having sexual relationship and this cycle continuous throughout their marriage life.

The high risk of pregnancy as explained above is one of the causes for unwanted pregnancy by married couple. Unwanted pregnancy can also be caused by women who are sick, poor but they have already had many children and other causes. Contraception is to prevent pregnancy after having sexual relationship by preventing sperm from entering ovum. Contraception is to prevent unwanted pregnancy. If this pregnancy cannot be prevented, abortion is undertaken to solve this problem [of unwanted pregnancy]. Thus, the main difference between using contraception and having abortion The high risk of pregnancy as explained above is one of the causes for unwanted pregnancy by married couple. Unwanted pregnancy can also be caused by women who are sick, poor but they have already had many children and other causes. Contraception is to prevent pregnancy after having sexual relationship by preventing sperm from entering ovum. Contraception is to prevent unwanted pregnancy. If this pregnancy cannot be prevented, abortion is undertaken to solve this problem [of unwanted pregnancy]. Thus, the main difference between using contraception and having abortion

Muslim scholars have different opinion either on using contraception or having abortion. This different opinion is based on their different way of seeing the two cases. The two main reasons are whether or not using contraception and having abortion are acts against the destiny of God; and whether or not these acts are the acts of killing the children. The scholars who prohibit using contraception and having abortion see that these two acts are against the destiny of God and at the same time are killing the children, which are prohibited in the Qur’an, Qur’anic verses al-An’am/6:151 and al- Isra/17:31. In contrast, the scholars who allow using contraception see that using contraception is not an act against the destiny of God. The fact that pregnancy can be prevented and be aborted shows that this matter is part of human efforts (choices). Some of the human choices are permitted and others are prohibited depending on the circumstances, but this act is not against the destiny of God. Using contraception is not an act of killing the children because the sperm does not enter the ovum yet so that it is not in the form of children yet. The case of abortion will depend on the age of fetus, whether or not it can be regarded as child (human) so that abortion can be categorised as an act of killing.

In Islam, the well-known method of contraception is azl, to release the sperm outside the vagina to prevent pregnancy. In modern term it is called coitus interruptus. Muslim scholars have different opinion on azl which reflects the different opinion on using contraception in general with the following reasons:

1. The School of Syafi’i: allows ( mubah) azl but consider it to be unethical because the sperm is not being used well. It is permitted to protect the life of a wife from the risk of giving birth or to prevent too much burden (katsrah al-haraj) because of having too many children or economic difficulty. 234

2. The School of Hanafi: regards azl as reprehensible (makruh) without the permission of the wife because sexual relationship ended with ejaculation

234 Al-Ghazali, Ihya Ulumuddin, j. 2, h.52 234 Al-Ghazali, Ihya Ulumuddin, j. 2, h.52

3. The School of Maliki: a man does not have the right to practise ‘ azl without his wife’s consent. 236

4. The School of Hambali: ‘ azl without any reason is reprehensible but it is not prohibited. 237 ‘Azl cannot be practised without the wife’s permission.

Muslim scholars have different opinion on when the fetus is regarded as human which is rooted from the different ways of understanding the verse on the creation of human stated among others in Qur’anic verse al- Mu’minun, 23:12-14.

And certainly did We create human from an extract of clay. Then We placed him as a sperm-drop in a firm lodging. Then We made the sperm-drop into a clinging clot, and We made the clot into a lump [of flesh], and We made [from] the lump, bones, and We covered the bones with flesh; then We developed him into another creation. So blessed is Allah, the best of creators.

In explaining the following verse, Muslim scholars refer to the rellevant hadith.

235 ‘Alau ad-din Abi Bakar bin Mas’ud al-Kasani, Badai’ asSanai’ fi at-Tartibi asy-Syara’i (Beirut: Dar al-Fikr, 1996), v. 2, p. 334.

236 Malik bin Anas, Al-Muwattha’ (Beirut: Dar al-Fikr, v.2, p. 77. 237 Ibnu Qudamah, Al-Mughni, v. 7, p. 23 .

From Abdillah who stated that the Messenger pbuh told us: Actually each of you is being combined in the womb of your mother for 40 days and then you become a clot in the same period of time and then you become a lump of flesh in the same period of time and then the angel would generate you with the spirit (HR. Muslim). 238

The above verse and hadith show four stages of the creation of human being in the womb of a woman: in the form of sperm and ovum for 40 days, in the form of a clot for 40 days, and in the form of a lump of flesh for 40 days, and the generating spirit after 120 days. The decision about abortion which is being debated by Muslim scholars is rooted on when it can be undertaken during these four stages.

1. The school of Hanafi allows abortion before the stage of generating the spirit (before 120 days) on condition that the pregnancy can cause the stop of breast milk needed by the baby, while the father is unable to provide the replacement of breast milk for the baby, or the pregnant woman is sick so that she is threatened to death if she is pregnant as happened in her previous pregnancy.

2. The school of Maliki prohibits abortion before 40 days of pregnancy except to save the life of the pregnant woman.

3. The school of Hanafi allows abortion before 40 days of pregnancy, and some other Hanafi scholars allow abortion before 120 days of pregnancy.

4. The school of Syafi’i prohibit abortion before 120 days of pregnancy, but there are some other Syafi`i scholars who allow abortion when the baby

238 Muslim, Shahih Muslim, j. 13, p. 100 .

is still in the form of a clot and a lump of flesh (80 days), and some other scholars allow abortion before 120 days of pregnancy. 239

The different opinion on abortion is only applicable for married women, not for women who are pregnant out of wedlock because the scholars agreed that sexual relationship out of wedlock is zina, which is prohibited. The problem is whether the women who are pregnant because of being raped are regarded to be the same with women who are pregnant because of committing zina.

When there was mass rape experienced by Bosnian Muslim women by Serbian armies, there was a debate on whether the victims of rape can have abortion. According to Yusuf al-Qaradlawi:

1. Originally, abortion is prohibited since the fetus has been generated with the spirit in the womb even though the pregnancy is caused by zina.

2. Some ulama allow abortion before the fetus is 40 days, some other ulama allow abortion before the fetus is being generated with the spirit (120 days). However, if there are more disadvantages if the abortion is undertaken before 120 days, then it is better to do so before 40 days of pregnancy.

3. There is no doubt that the rape of free Muslim women committed by the cruel enemies is the strong reason for Muslim women and their families to have abortion because of the hatred to the fetus so that abortion is permitted soon after the rape due to emergency reason.

4. Muslim women who are raped can also continue their pregnancy by choice and the baby born from this pregnancy is Muslim or to have abortion if they choose to do so. 240 The above Yusuf al-Qaradlawi’s opinion ( fatwa) is similar with the fatwa

of Majlis Ulama Indonesia/MUI (Indonesia Council of Muslim Scholars) No. 4 Tahun 2005 on abortion. According to this fatwa, abortion is

239 Maria Ulfah Anshor dan Abadullah Ghalib, Fiqh Aborsi: Review Kitab Klasik dan Kontemporer (Jakarta: Mitra Inti, FF, FNU, 2004), p. 33-46.

240 Yusuf al-Qaradlawi, Fatawa Mu’ashirah (t.tp.: Dar al-Wafa, 1994), j.2, p. 611-612.

prohibited ( haram) since the implantation of the blastosis in the wall of the uterus. Abortion is permitted only because there is reason, either emergency (if abortion is not undertaken the pregnant woman would die or about to die) or urgent need (without abortion, there will be many difficulties. Emergency abortion is when a pregnant woman has serious illnesses such as cancer, tuberculosis/TBC and other serious illnesses which threaten the life of the pregnant woman identified by medical doctor team. The abortion undertaken because of urgent need for example is when the fetus is detected to have genetic defect which would be difficult to be recovered after being born, or pregnancy because of rape which is decided by the relevant authorities such as the victim’s family, medical doctor and the ulama. Abortion because of the urgent need should be undertaken before the fetus is 40 days. The fatwa of MUI emphasizes that abortion because of zina is prohibited.

This MUI fatwa is used to draft the Republic Indonesia Government Regulation ( Peraturan Pemerintah Republik Indonesia) No. 61 Year 2014 on Reproductive Health. On abortion, this Regulation Article 31 (1 and 2) states that abortion can be undertaken based on the indication of medical emergency or pregnancy because of rape. Abortion because of rape can only

be undertaken before the 40 days of pregnancy.

1. The above MUI fatwa and Government Regulation on Reproductive Health show that:

2. Sexual relationship experienced by female victims of rape is not regarded as zina.

3. Pregnancy of female victims of rape is not the same with the pregnancy because of zina.

4. The provision for abortion undertaken by female victim of rape is not the same with the provision of abortion for pregnancy caused by zina.