UNBORN CHILD Group 1: SPECIAL CASES OF A CHILD

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CHAPTER V SPECIAL CASES ON ISLAMIC INHERITANCE

5.1 Introduction

This Chapter expounds the Special Cases on Islamic Inheritance. Under the Muslim Code of the Philippines, there are only Five 5 Special Cases that are included in the Book III of Succession, namely: The Case of Unborn Child, The Case of Illegitimate Child, The Case of Acknowledging Person, The Case of Divorced Spouses, and The case of a Missing Person. In this chapter, the researcher subdivided the Special Cases into 3 Groups as follows: First, Group 1 is composed of Special Cases of a Child; Second, Group 2 is composed of Special Cases of Brothers and Sisters and Finally, Group 3 is composed of Special Cases due to Certain Circumstances.

5.2 Group 1: SPECIAL CASES OF A CHILD

5.2.1 UNBORN CHILD

Under the Muslim Code of the Philippines, a child conceived at the time of the death of the decedent shall be considered an heir provided it will be born later in accordance with Article 10; its corresponding share shall be reserved before the estate is distributed. Under the Muslim Code of the Philippines, Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it will be born alive, however, briefly, at the time it is completely delivered from the mothers womb. 265 General rule is that unborn child is only eligible to inherit if he is born alive. If the child is born alive but die subsequently, then shares are distributed amongst hisher heirs. 265 Muslim Code of the Philippines, Article 97 193 The Islamic Inheritance Law, as a comprehensive system, protects the rights of the unborn child and ensures justice to them. With regards to the inheritance rights for a foetus, the fuqaha agrees that a foetus is entitled to the inheritance of a deceased benefactor together with the other beneficiaries. 266 However, the inheritance rights for the foetus are subject to two conditions namely: i The foetus is already present in its mother’s womb at the time of death of the benefactor. ii The foetus is born alive even for a few seconds. The Islamic Inheritance Law identifies several signs that indicate that the foetus is born alive such as crying, feeding, breathing, moving its limbs and so forth. The fuqaha has different opinions whether the whole body of the foetus has to be born alive or just partially. The Syafii, Maliki and Hanbali sects require that the foetus be born alive as a whole. If only some parts of the foetus are born alive and then it passes away, the foetus is not entitled to inherit the inheritance even though the birth was followed by tears. 267 After fulfilling the conditions above, the foetus has the rights to the inheritance and the portions of the inheritance should be kept for it until its birth. According to the majority of fuqaha, the inheritance can be distributed before the birth of the foetus, but the portion that should be kept for it is the maximum whether it is a male or 266 Awang, Op. Cit., p. 21 267 Ibid. 194 female. For the Maliki sect, the inheritance cannot be distributed until the baby is born and his sex is determined. 268

5.2.2 TEST TUBE BABY