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.
25.4.2 DETERMINANTS AND CAUSES OF ‘UNWANTED PREGNANCY’
‘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).
25.4.3 THE LAW ON FETICIDE and INFANTICIDE
Life is sacred. All lives have equal worth whether in utero or in terminal illness. Taking the life
of any one person without legal justification is like killing the whole human race (). Illegal feticide and infanticide are committed for various reasons: avoiding
consequences of sexual immorality, poverty, rape, gender preference, and serious disease of the mother and child. Abortion
is criminal homicide because life is considered to start at conception and not as claimed at ensoulment. Abortion is immoral
because it encourages sexual immorality and promiscuity without fear of pregnancy. Abortion is the lesser of two evils in
cases of serious maternal disease because one life is lost instead of two. In all forms of abortion whether legal or illegal,
the aborted fetus must be treated with respect. It must be washed, shrouded, and buried properly. The Law prescribes severe
punitive measures for causing abortion of a fetus. Diya is paid if the fetus
comes out with signs of life and dies thereafter. Ghurrat, which is less
than diya, is paid if the fetus comes out dead. 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.
Infanticide can be in the form of child neglect and child abuse. Social injustice manifesting as poverty is responsible for
a lot of feticide and infanticide.Poor mothers who do not get adequate nutrition
and medical care have a higher rate of fetal loss and poor pregnancy outcomes. Their children are born pre-mature of small
for gestation age and succumb easily to disease and die. Children born in poor families and communities have higher morbidity
25.4.4 PREVENTION OF ‘UNWANTED PREGNANCY’
It is prevented by sexual hygiene, marriage, contraception, deterring sexual crimes, and raising the
status of women.
25.4.5 THE LAW and ADVERSE CONSEQUENCES OF ‘UNWANTED PREGNANCY’
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’.