When Does a Human Fetus Become Human? -Hamza Yusuf

Do not sever the bonds of the womb.
– Qur’an 4:1

Do not kill your children from fear of poverty.
– Qur’an 17:31

On the Day when the one buried alive will be asked for what sin was she killed.
– Qur’an 81:8–9

Marry and be fruitful, for I will be proud of the multitudes of my community of believers on the Day of Judgment.
– Prophet Muĥammad ﷺ

To die by other hands more merciless than mine.
No; I who gave them life will give them death.
Oh, now no cowardice, no thought how young they are,
How dear they are, how when they first were born;
Not that; I will forget they are my sons
One moment, one short moment—then forever sorrow.
– Euripides’ Medea

In English, the term we define ourselves with, human being, emphasizes “being” over doing. It is not our actions that mark us as humans but our mere being. When, then, do we come to be? When does that being we identify as human first become human? The answer is consequential for many reasons, not the least of which is that our nation’s foundational document states that all human beings are “endowed by their Creator with certain unalienable rights” that include the rights of “life, liberty, and the pursuit of happiness.” The question of when human life begins stubbornly remains a central point of contention in the debate, now raging for half a century, regarding the ethics of abortion. The Supreme Court made its decision, but for many, it is far from a settled matter.
Beyond our borders, meanwhile, induced abortion rates are increasing in developing nations, despite declining slightly in developed nations; an estimated one-quarter of all pregnancies worldwide end in abortion.¹ The debate over abortion still rages across parts of Europe and remains contentious in North Africa, the Middle East, Asia, as well as Central and South America. While the Catholic Church continues to prioritize abortion as an egregious social ill, for many, abortion has become an acceptable option for dealing with unwanted pregnancies. Increasingly, some Muslims are adding their voices to the conversation—some even supporting legalization in areas where abortion remains illegal.
Given this global trend, it becomes all the more urgent to re-examine the normative view of infanticide and abortion in the Islamic legal tradition, which relies on the Qur’an, prophetic tradition, and scholastic authority for its proofs.
Abortion derives from the Latin word aboriri,² meaning “to perish, disappear, miscarry.”³ The verb to abort is both intransitive (meaning to “miscarry” or “suffer an abortion”) and transitive (“to effect the abortion of a fetus”).⁴ In standard English, we also use the word to connote the failure of something, as “an aborted mission”—something that ends fruitlessly. As a noun, abortion means “the expulsion of a fetus (naturally or esp. by medical induction) from the womb before it is able to survive independently, esp. in the first 28 weeks of a human pregnancy.”⁵
Historically, civilizations and religious traditions often grouped abortion with infanticide—defined as “the killing of an infant soon after birth” by the Oxford Modern English Dictionary. Indeed, even some modern philosophers link abortion and infanticide by arguing for what they euphemistically term “after-birth abortions.”⁶ Reviewing the sordid history of infanticide since the Axial Age⁷ and how the different faith traditions inspired a change in attitudes about both practices helps sets the stage for understanding the Islamic ethical vision toward abortion, which depends ultimately, as we’ll see, on the central question of when human life begins. The Mālikī legal school—or the Way of Medina,⁸ as it was known—offers modern Muslims a definitive response rooted in the soundest Islamic methodology to a seemingly intractable problem vexing our world today.

“Abrahamic religious sentiment—and religious sentiment alone—shifted the attitudes of large numbers of peoples and inspired laws to prohibit infanticide and abortion.”

Infanticide and Abortion in Premodern Civilizations

Arguably, the justifications proffered for infanticide approximate those proposed for abortions, although significant differences remain. A striking aspect of both infanticide and abortion, however, is their apparent historical universality. Historian Anne-Marie Kilday⁹ quotes Michelle Oberman, author of When Mothers Kill: “Infanticide was common among early people, particularly insofar as it enabled them to control population growth and to minimize the strain placed on society by sickly newborns.”¹⁰ Kilday continues,

In the main, therefore, there have been two contexts for child murder throughout history: first, the killing of what were considered to be “defective” offspring, and, second, the killing of “normal” but unwanted children. The exposure and/or infanticide of sickly or disabled infants was an accepted feature of ancient Greco-Roman cultures, as is evident from various contemporary literary sources such as Plato, Aristotle, Seneca and Pliny. In the city-state of Sparta, for instance, only children expected to make good soldiers or healthy citizens were allowed to survive past infancy. In Ancient Egypt, in China, India and throughout the Orient, a similar approach was adopted toward “defective” infants.¹¹

The ancient Greeks apparently had few qualms about infanticide and would leave deformed or unwanted children exposed to the elements to perish. Such a cold act of exposure was perhaps less heinous, in their minds, than the hot act of forcefully murdering the child; it was a sin of omission that mitigated the savagery of a sin of commission. In Plato’s Republic, Socrates, in describing how the guardians will be raised, tells Glaucon:

Then the children as they are born will be taken in charge by the officers appointed for the purpose, whether these are men or women, or both.… The children of good parents, I suppose, they will put into the rearing pen, handing them over to nurses who will live apart in a particular portion of the city; but the children of inferior parents and all defective children that are born to the others they will put out of sight in secrecy and mystery, as is befitting.¹²

In The Politics, Aristotle echoed a similar sentiment:

As to the exposure and rearing of children, let there be a law that no deformed child shall live, but where there are too many (for in our state population has a limit), when couples have children in excess, and the state of feeling is averse to the exposure of offspring, let abortion be procured before sense and life have begun; what may or may not be lawfully done in these cases depends on the question of life and sensation.¹³

Classics scholar Jerry Toner, using a fictitious Roman nobleman speaking of the “occupational hazard” of getting slave girls pregnant, writes:

I like to treat these offspring with greater indulgence than I would normal slaves, and give them slightly better rations and easier work…. Obviously I cannot be expected to treat all my illegitimate offspring in such a way. So if when born they look sickly, or if I already have enough in my household, I order the mothers to expose the infants by leaving them at the dump.¹⁴

Merciless as those views may seem, the “right” to kill one’s children can be found in Rome’s earliest recorded law code, the Law of the Twelve Tables (Leges Duodecim Tabularum). Table VI legislated “that terribly deformed children shall be killed quickly.” Roman law also permitted a father to kill any newborn female.¹⁵ Among Stoic philosophers of Rome were those who did not consider a fetus human, thereby legitimizing abortion as an acceptable personal choice. It was only Christianity’s powerful influence within Roman society that would eventually radically alter these views.¹⁶
As the religious traditions of the Axial Age penetrated large regions of the earth, they condemned infanticide as an affront to the sanctity of life. Abrahamic religious sentiment—and religious sentiment alone—shifted the attitudes of large numbers of peoples and inspired laws to prohibit infanticide and abortion. Child sacrifice, for instance, was thought to appease Molech, the god of the Ammonites, making infanticide a common practice in Phoenicia and other surrounding countries. But Leviticus 18:21 commands the Israelites, “Do not give any of your children to be sacrificed to Molech.”¹⁷ Due to the enormity of child sacrifice, the Mosaic law prescribed stoning as a suitable punishment.¹⁸

Genesis 9:6 further states, “Whoever sheds the blood of man, by man shall his blood be shed; for in the image of God has God made man.”¹⁹ An alternate reading of this text renders “whoever sheds the blood of man in man,” which some rabbis argued referred to a fetus. For example, Tractate Sanhedrin of the Babylonian Talmud offers a rabbinical opinion concerning abortion:

In the name of Rabbi Yishmael²⁰ they said: “[A Noahide receives capital punishment] even for [destroying] a fetus.” What is the reason of Rabbi Yishmael? It is the verse “he who sheds the blood of man in man (adam bādam) shall his blood be shed” (Genesis 9:6). What is the meaning of “man in man?” This can be said to refer to a fetus in its mother’s womb.²¹

Josephus,²² a first-century Jewish historian, wrote, “The law orders all the offspring to be brought up, and forbids women either to cause abortion or to make away with the fetus.”²³ Jewish rabbinical tradition prohibits abortion unless the pregnancy threatens the mother’s life. Undeniably, Judaism’s strong stance against both infanticide and abortion informed early Christianity and the doctrine of the Church that emerged. An early Christian handbook for Church doctrine, the Didache (c. 85–110), states, “Thou shalt not murder a child by abortion nor kill them when born.”²⁴ Some biblical scholars have even argued that the absence of abortion from the New Testament can be explained by its inconceivability to early Christians. In fact, according to C. Ben Mitchell,

Early Christians did not just condemn abortion and infanticide; Christian communities were at the forefront of providing alternatives, including adopting children who were destined to be abandoned by their parents. Callistus (died c. 223) provided refuge to abandoned children by placing them in Christian homes. Benignus of Dijon (third century) offered nourishment and protection to abandoned children, including some with disabilities caused by failed abortions.²⁵

Strong prohibitions against infanticide and abortion also exist in Hindu and Buddhist literature. India, despite Hinduism’s condemnation of abortion, currently suffers from an epidemic of female feticide and even infanticide.²⁶ Buddhism, much to the chagrin of Western pro-choice advocates who view the faith as meshing with a progressive ethos, clearly condemns abortion in its earliest scriptures. The Dhammapada, an early collection of sayings of the Buddha, states, “Considering others as yourself, do not kill or promote killing. Whoever hurts living beings ... will not attain felicity after death.”²⁷ Professor of religion and Zen teacher David R. Loy writes,

Abortion [in Buddhist tradition] is killing. According to the Pali Canon, the Buddha said that it breaks the first precept to avoid killing or harming any sentient being. Any monastic who encourages a woman to have an abortion has committed a serious offense that requires expiation.... This absolute rule in early Buddhism is a source of discomfort and embarrassment to many Western Buddhists, and is often ignored by those who are aware of it.²⁸

Concerning the sanctity of life, including the sanctity of life within the womb, tomes from the world’s religious traditions could be written, but it remains safe to say that the normative premodern traditions of the world’s religions have universally condemned abortion and infanticide. Islam, the last of the Abrahamic faiths, is no exception, for its primary source, the Qur’an, presents its teachings as an extension of previous dispensations.

The Qur’anic Ban on Infanticide

The great prophets of Judaism and Christianity find constant mention as early messengers in the Qur’an, and God reminds the Prophet Muĥammad ﷺ, “Say, ‘I am not an innovator among the messengers’” (Qur’an 46:9). Pre-Islamic Arabs of the Arabian Peninsula practiced infanticide but employed a different, if no less brutal, method than the Greco-Roman culture’s practice of death-by-exposure: the Arabs buried their children alive. They did it usually as a form of birth control, for reasons of poverty, or else out of shame at the birth of a girl. (The killing of male infants, driven by the scarcity of sustenance in the arid desert climate, was less common, though still practiced.) Commenting on the Qur’anic verse “Do not kill your children from poverty” (6:151), Imam al-Qurţubī²⁹ (d. 671/1273) states, “Among [the Arabs] were those who also killed both their female and male children for fear of poverty.”³⁰
Several verses in the Qur’an prohibit infanticide. The sixth chapter states, “And thus their [belief in] false gods made the killing of their children appear good and led them to destruction while confusing them about true faith. If God willed, they would not have done that; so leave them and their lies” (6:137). Shortly after those verses, the Qur’an lays out what are considered by Muslim scholars to be the first principles of Abrahamic morality:

Say: Come, I will recite to you what your Lord has forbidden you. You should not associate anything with Him; and be good to your parents, and do not kill your children on account of poverty—We provide for you and for them—and do not approach sexual indecencies, open or secret, and do not kill the soul—which God has made sacred. (6:151)

Another verse addresses this topic with the subtle nuance of fear of poverty as opposed to the previous verse, which prohibits killing the child on account of poverty—in other words, an actual impoverished state. The pronouns in the above verse (for you and for them) emphasize that God provides for the parents first and then the children in the case of actual poverty to alleviate their fears. In the following verse, the pronouns are reversed (them and you), for the parents are afraid the addition of new children will reduce them to poverty despite their current well-being: “And do not kill your children out of fear of poverty—We provide for them and you. Indeed, killing them is an enormous sin. And do not approach fornication: surely it is an obscenity and leads to an evil end. And kill not the soul which God has forbidden, except for just cause” (17:31–33). Commenting on this verse, Qāđī Abū Bakr³¹ (d. 543/1148) relates a hadith where the Prophet ﷺ said killing a child from fear of poverty was the second gravest sin next to setting up “partners with God.” Then Abū Bakr mentions that infanticide “is the greatest of sins because it is an assault on the entire species,” and also because it “involves men taking on the qualities of predatory beasts.”³²

“Scripture and science, taken together, can lead believers to rethink our understanding of when life begins, of the miracle of revelation, and most certainly of abortion.”

Similarly, another verse also prohibits infanticide and pairs it with censure of sexual deviance: “O Prophet, when believing women come to you to pledge allegiance to you that they will not associate anything with God, and will not steal, nor commit adultery, nor kill their children, nor bring a calumny which they have forged of themselves, nor disobey what is good, then accept their pledge and ask God to pardon them, for surely God is most forgiving, most merciful” (60:12).
Regarding the practice of killing female infants, the Qur’an states, “And when news of the birth of a daughter is given to one of them, his face darkens, and he grieves within. He hides himself from the people out of distress at the news he’s given. Shall he keep it, in spite of ignominy, or shall he bury it (alive) in the dust? Oh, what an evil decision they make!” (16:58–59).
The Qur’an thus unequivocally prohibits infanticide; scholars, by consensus, hold this position based upon the Qur’an, the prophetic tradition, and the consensus of the companions. In the history of Islam, there has never been debate about this issue.
So what of abortion in Islam? In order to address that question, it will help to examine the surprisingly numerous verses in the Qur’anic discourse on embryology and the accompanying traditions attributed to the Prophet ﷺ.

The Birth of Humans in the Qur’an and Hadith

Ibn ¢Abbās³³ (d. 67/687), the Prophet’s companion and cousin, stated that the passage of time will continue to explain the Qur’an. We can appreciate the wisdom of that statement when we consider the Qur’anic verses and hadith that relate to how and when human life begins, especially in light of what today’s science has discovered about the process of birth. Scripture and science, taken together, can lead believers to rethink our understanding of when life begins, of the miracle of revelation, and most certainly of abortion.
Unfortunately, commentaries on such Qur’anic verses and hadith contain many mistakes due to the difficulty in understanding the premodern, nontechnical terms used and the reality that the commentators of yore simply lacked the sound knowledge of embryology that we now possess through scientific discovery.

More than a Clot
Arabic words are notoriously difficult to translate due to the nuances involved in the root system of Arabic that cannot be replicated in other languages. In the first verses revealed to the Prophet Muĥammad ﷺ, the Qur’an declares, “Read, in the name of your Lord, who created: created man from an ¢alaq” (96:1–2). The word ¢alaq was traditionally understood as simply a “blood clot.” The root ¢aliqa, however, means “to become pregnant”; according to Ibn Manżūr’s³⁴ (d. 711/1311) Lisān al-¢Arab, an authoritative Arabic dictionary, ¢alaq also means “the desire of spouses for one another,” due to its root meaning “to cling to.”³⁵ Other meanings are “anything attached to something, something that imbeds itself into another, such as a mountain or earth, blood of any type, or a portion of it, the cord of a bucket, any cord that holds something, a leech, a clot.”³⁶ The most appropriate connotation is “something that imbeds itself into something else,” as in the imbedding of an embryo, or blastocyst, into the woman’s uterine wall. Another possible meaning is a clot, as in “a small compact group of individuals,” given the blastocyst is a collection of rapidly dividing individual cells. The classical understanding and subsequent translation of ¢alaq as “blood clot” is simply wrong, though understandable given that a miscarriage often reveals congealed lumps that appear to be blood clots from the prematurely formed fetus.
Also, regarding the creation of human beings, the Qur’an clearly states, in many verses, that we originate from the earth: “God has caused you to grow as a growth from the earth, and afterwards, He will make you return there. He will bring you forth again anew” (20:55). “God created you from the earth” (53:32). “God created you from clay” (32:7). “We began the creation of the human being (insān) from clay” (37:11). Another verse states that man was created from water: “He is the One who created from water man and established bonds of kinship and marriage” (25:54). These verses, according to exegetes, refer to the creation of Adam, peace be upon him, from earth and water, but they equally apply to all men, as earth and water are the sole components of our physical being.
Interestingly, the Qur’an also states that man was created from a nuţfah: “God fashioned man from a nuţfah” (16:4). Again, we are confronted with the problem of translation. The meanings of nuţfah are “a minute quantity of fluid,” “a drop,” “a tiny drop left in a container,” “a flowing drop,” “drop of sperm,” “female drop [ovum].”³⁷ What is striking about these Qur’anic verses is the accuracy with which they describe what we now know to be the male spermatozoon and the female ovum, both of which are shaped like a drop of water. The male reproductive cell, the spermatozoon, represents one of billions in the overall sperm ejected into a woman’s womb. These tiny spermatozoa, each containing a unique genetic code, race to reach the released ovum, which also contains a unique code, but only a few complete the journey, and only one or two actually penetrate the female’s ovum. The hadiths regarding this reproductive process reveal strikingly accurate details that premodern commentators misinterpreted due to their lack of the scientific knowledge necessary to understand them properly.

“The hadiths regarding the reproductive process reveal strikingly accurate details that premodern commentators misinterpreted due to their lack of the scientific knowledge necessary to understand them properly.”

For instance, according to one hadith, a Jewish man came to the Prophet ﷺ and asked a question that, according to him, only a prophet could answer: “From what is a man created?” The Prophet ﷺ replied, “It’s determined by both [the male and the female], from the nuţfah of the man and from the nuţfah of a woman.”³⁸
In a different narration of the same hadith, the man asked what determines the sex. He was told, “A man’s fluid is coarse white, and a woman’s is translucent yellow (aśfar raqīq). When they meet, if a male sperm (maniyy) (y chromosome) is dominant (¢alā), then it is a boy. But if the female sperm (maniyy) (x chromosome) is dominant, then it is a girl.” The Prophet ﷺ clearly distinguishes between the ovum (female nuţfah) and the spermatozoon (male nuţfah) and the sperm (maniyy), which he described as being both male and female (x and y chromosomes that a man receives from his mother and father).

Translucent yellow human ovum emerging from ovary; image: Jacques Donnez

An astonishing part of this hadith is the description of the woman’s contribution to conception: aśfar raqīq, a precise translation of which is “translucent yellow.” Only recently has technology enabled us to actually photograph, in color, the release of an ovum from the ovaries; as it emerges, it is clearly a tiny egg in the shape of a drop, and its color, due to the cumulus oocyte complex that surrounds the ovum, is described in the literature as “translucent yellow.” In short, the nuţfah in the Qur’anic verses and the above hadith refers to both the male “drop” of sperm and the female “drop” of the ovum, described elsewhere in the Qur’an and the hadith³⁹ as the woman’s “water” and the man’s “water,” both relatively accurate terms, given that more than seventy-five percent of the material is water.

What Begins Life?
Another meaning of nuţfah in modern technical terminology is “zygote” and the subsequent embryological stages during the first nine days. A zygote is formed by a fertilization of two gametes, male and female, before cleavage occurs. On the tenth day, embryogenesis results, and the ¢alaq phase begins in which the newly formed life imbeds (ta¢allaq) in the uterine wall. The proof that nuţfah also means zygote and embryo is in chapter seventy-six of the Qur’an, appropriately entitled “The Human Being” (al-Insān). The first two verses state, “Hasn’t there been a time when man was nothing worth mention, for We made man from a mixed drop” (76:1–2).

DNA Double Helix, National Human Genome Research Institute

The words “mixed drop” are a translation of nuţfah amshāj, an Arabic phrase that caused much confusion among commentators because the noun nuţfah is in singular form while amshāj, its adjective, is plural; in Arabic grammar, the adjective, in a case like this, should agree with the noun in number. Al-Zamakhsharī ⁴⁰(d. 538/1144), in his attempt to solve this vexing grammatical dilemma, goes as far as saying amshāj is singular despite its clear plural form. It could also be an appositive of nuţfah. The point, however, is the two nuţfahs of the male and the female (i.e., the spermatozoon and ovum) become one nuţfah mixed (amshāj) with the genetic material of the two parents. Setting aside whether it is an adjective or an appositive, the word amshāj, according to Lisān al-¢Arab, can mean “the mixing of two colors” and “the mixing of a man’s water (spermatozoon) and a woman’s water (ovum), then it goes from stage to stage.”⁴¹ In modern Arabic, mashīj, the singular of amshāj, is “gamete.”⁴² This appears to be an excellent description, given that each human cell contains twenty-three pairs of chromosomes, and each chromosome is formed by the joining of two nucleotides, which make up the strand of DNA. Scientists have color-coded the strands of nucleotides to better visualize the DNA. The model of “joining of two colors” in each strand is now universally used in teaching about the genetic code of life.
In a well-known hadith narrated by Ibn Mas¢ūd⁴³ (d. 32/653), the Prophet ﷺ begins describing the process of human creation by saying, “Verily, the creation of one of you is brought together in the mother’s womb for forty days.”⁴⁴ Commenting on this hadith, Mullah ¢Alī al-Qārī⁴⁵ (d. 1014/1605) states, “The material of his creation (māddat khalqihi) is gathered and then protected.”⁴⁶ He then explains the meaning of the “gathering” (jam¢) using a tradition from Imam al-Ţabarī⁴⁷(d. 310/923) and Ibn Mandah⁴⁸ (d. 395/1005), in which the Prophet ﷺ was reported to have said,

If God desires to create a servant, He does so through the man having intercourse with the woman in which his “water” penetrates every root and part of her [“water”](¢irq wa ¢uđw), and on the seventh day, He gathers it, and then produces [a new life] from every “genetic disposition” (¢irq) back to Adam. [And then the Prophet ﷺ recited the verse,] “In whatever form He wishes to assemble you from various components (rakkabak).” (82:8)⁴⁹

The word the Qur’an uses for assemble (rakkaba) means “to assemble from various parts” or “put together,” “to make, prepare out of several components or ingredients.”⁵⁰ Mullah ¢Alī then says, “This meaning is confirmed by the Prophet’s words when a light-skinned Arab woman gave birth to a black boy and her husband accused her of infidelity. The Prophet ﷺ said, ‘Perhaps it is from a distant root (naz¢ahu ¢irq).’”⁵¹ Today we would call this a recessive gene. The hadith implies the vast genetic variations that happen with each individual spermatozoon and ovum. Each contains a unique combination (tarkībah) that will provide an entirely new individual never before existent.

“Far too often today, the positions favoring the permissibility of abortions are presented in articles and fatwas, without the nuance that one finds in the original texts.”

Rethinking the Stage of Ensoulment
At what stage during the creation of the human being does ensoulment occur? Clearly, the Qur’an describes each stage of growth within the womb as one we passed through as a human being: “Surely We created the human being from a quintessence of clay, and then We made him [man] a fertilized egg (nuţfah) in a safe place, and then We made him [man] a clot, and then We made the clot an embryo, and then We made the embryo bones and clothed the bones in flesh, and then We originated another creation” (23:12–14). Commenting on this verse, the eminent Malaysian scholar and metaphysician Syed Naquib al-Attas writes,

From the fusion of the two gametes God created (khalaqa) a new individual organism; and from this organism He created (khalaqa) an embryo; and from the embryo He created (khalaqa) a foetus. Thus we see from this that the whole process in the various stages of the emergence of the animal being into definite shape and construction complete with organs is not something natural; i.e. it is not something due to the workings of nature, but that at every stage it is God’s act of creation setting the created thing in conformity with its constitution in the womb (i.e. its fiţrah). Then from this final foetal stage, God originated (ansha’a) another creature. This refers to the introduction of the spirit (al-rūĥ) that God breathed into the animal being after He had fashioned it in due proportion.⁵²

One of the derivations of the word originate (ansha’a) in Arabic means “to elevate.” It is the introduction of the immaterial aeviternal soul that elevates the new creation to a spiritual human being that exists as body and soul. The partially quoted aforementioned hadith of Ibn Mas¢ūd says, “Verily, the creation of one of you is brought together in the mother’s womb for forty days in the form of a drop (nuţfah), then he becomes a clot (¢alaqah) for a like period, then a lump for a like period, then there is sent an angel who blows the soul into him.”⁵³ Based on this hadith, the majority of scholars in the past claimed ensoulment was on the 120th day after conception.
A second interpretation argued that the words “a like period” (mithla dhālik) refer back to the first forty, and thus all the stages occur during a forty-day period. Another hadith in Imam Muslim’s⁵⁴ (d. 261/875) collection (Śaĥīĥ Muslim) clarifies the ambiguity of the number of days in the above hadith by saying the angel comes at six weeks to blow the soul into the fetus. Scholars have been in agreement that the ensoulment occurs immediately after the “lump” phase, when the fetus takes on a form: modern science has confirmed this occurs around six weeks; the hadith related by both Muslim and Abū Dāwūd⁵⁵ (d. 275/889) concurs with modern science.
The argument that ensoulment occurs soon after 40 days ultimately proves far stronger than the traditional majority view that it occurs after 120 days, given what we know of embryogenesis today. The basis for 120 days, if taken from the hadith in its standard interpretation, would mean that the hadith contradicts today’s medical views that are based upon unshakeable biological evidence. The well-known criterion among hadith scholars is that a hadith cannot contradict something known by reason with proofs beyond reasonable doubt. Thus, should a hadith contradict agreed-upon factual knowledge, scholars either reject it or, if possible, reinterpret it if the language allows for other possibilities, as can be done in this case. As mentioned earlier, one alternate view among early scholars was that the three 40-day periods are not consequential but concurrent; the three stages occur in the same forty days based upon the ambiguity of the phrase “a like period.” This interpretation, which the Arabic allows for, and given the soundness of its chain, remains the only acceptable one.

Does Human Life Begin Before Ensoulment?

In the view of Imam Mālik b. Anas⁵⁶ (d. 179/795) and the Mālikī scholars of the Way of Medina, a child (walad) is created at inception, when the exchange of genetic material occurs and the requisites for the formation of a unique human being exist. Were it not so, argue the jurists of this school, the Prophet ﷺ would not have made blood compensation necessary if a person caused a woman to miscarry.
The hadith related by Ibn Mājah⁵⁷ (d. 273/887) quotes the Prophet ﷺ as saying, “A miscarried fetus will fumble about the door of paradise saying, ‘I won’t enter until my two parents enter.’”⁵⁸ Khaţīb al-Tabrīzī⁵⁹ (d. 741/1340) relates a similar version: “Surely the miscarried fetus will dispute with its Lord if its parents end up in Hell, and it will be said, ‘O miscarried one, bring your parents to paradise.’”⁶⁰ When a woman from the Hudhayl tribe struck another pregnant woman from her clan, causing her to miscarry, the Prophet ﷺ told the woman’s agnates that blood money was owed. When one of her clan members asked, “Do we compensate for what never ate, nor drank, nor sighed, nor cried; can such a one be said to have been killed and died,” the Prophet ﷺ replied, “Are these the rhymes of the days of ignorance? Pay the blood money of the child.”⁶¹
The Mālikī scholars point out that the Prophet’s ruling was not based on the stage of the pregnancy. They argue that the embryo is considered a child even at the earliest stages of pregnancy, and blood money would be owed. Moreover, the Prophet ﷺ called the miscarried fetus “a child” (śabiyy), and so the matter falls under the prohibition of the Qur’anic verses that prohibit killing children. Ibn Abī Zayd al-Qayrawānī⁶² (d. 386/996), an authoritative voice in the Mālikī school and in the Islamic tradition, writes:

Mālik says, “If a pregnant woman is struck, causing her to lose her child, whether still in lump phase (muđghah) or even an imbedded embryo (¢alaqah), and nothing is discernible from its creation—neither eye nor finger nor anything else—if the women who know about such things determine that it was a child [i.e., that she was actually pregnant], then financial compensation is owed….” Ibn Shihāb [d. 124/742] said, “Whether the fetus was formed or not [money is owed]. If there were twins or triplets, each demands compensation.”⁶³

Imam al-Rajrājī⁶⁴ (d. 633/1236), in his commentary on Imam Mālik’s position on abortion, also concurs, and adds that a fetus at any stage is considered a child.⁶⁵
The term the Qur’an uses for a life within the womb is janīn, which means what is hidden from the eye or concealed; the greater the concealment, the more applicable the name. Thus, a zygote, embryo, blastocyst, and fetus are all called janīn in Arabic. Rāghib al-Iśfahānī⁶⁶ (d. 502/1108) defines the janīn as “a child (walad) as long as it is in the womb of its mother.”⁶⁷ Other Qur’anic verses affirm that God considers all stages of fetal development to be a human life: “Does the human being think he’ll be left for naught? Was he not an embryo from male and female fluid released?” (75:36–37).⁶⁸ The verse could have said, “Was he not created from an embryo,” but instead it states unambiguously, “Was he not an embryo.” Another verse states, “Surely We created the human being from a quintessence of clay, and then We made him into an embryo in a safe place” (23:12–13). Again, it says clearly that “We made him into an embryo.” The Qur’anic narrative ineluctably defines our creation at each stage of our individual journeys within our respective wombs as a unique human being.
The ensoulment most likely relates to and initiates human brain activity that will eventually develop into the capacity for human thought, which, according to traditional Islamic metaphysics, is immaterial by nature and only occurs through the vehicle of, but is not synonymous with, the brain—hence, our distinction in English between mind and brain, and in Arabic between ¢aql and dimāgh. Michael Gazzaniga,⁶⁹ a leading researcher in cognitive neuroscience, writes that from the time of fertilization of the human sperm and egg, “the embryo begins its mission: divide and differentiate.” Within hours, it develops layers of cells that then become the endoderm, mesoderm, and ectoderm, the layers that will give rise to every organ in the human body. Within weeks, the neural tube of the embryo spawns the central nervous system, the ventricles of the brain, and the central canal of the spinal cord. By the fourth week, he explains, the neural tube develops bulges that become the major divisions of the brain. He continues, “Even though the fetus is now developing areas that will become specific sections of the brain, not until the end of week 5 and into week 6 (usually around 40–43 days) does the first electrical brain activity begin to occur.”⁷⁰
This description of the development of the brain, and the timing of the start of brain activity, correspond quite precisely to the prophetic tradition of ensoulment within six weeks.
Still, the infusion of the soul (nafkh al-rūĥ), its nature, and its exact time remain a mystery. In Imam Muslim’s collection, in a chapter entitled “The Jew’s Question to the Prophet About the Soul (rūĥ),” the Prophet ﷺ was asked by a Jew about the nature of the soul. The Prophet ﷺ was silent, and the narrator said, “I knew something was being revealed to him.” When the revelation came, the Prophet ﷺ replied from the Qur’an, “They ask you about the soul. Say, ‘The soul is from the command of my Lord; and you are given but a little knowledge’” (17:85).⁷¹

The Islamic Consensus on Abortion

The position of the scholars of the Way of Medina, that the fetus in all its stages is a living child, continues down to the present day without any dissenting voices. Qāđī Abū Bakr b. al-¢Arabī, a formidable Mālikī mujtahid (one who is capable of independent juridical reasoning, or ijtihād), says in his commentary of Mālik’s Muwaţţa’,

Three states exist concerning child-bearing: the state before conception when coitus interruptus is used to prevent pregnancy, and that is permissible; the second state occurs once semen has been received by the womb, at which point it is impermissible for anyone to attempt to sever the process of procreation as is done by some of the contemptible merchants who sell abortifacients to servant girls when their periods stop; the third situation is after the formation of the fetus and the ensoulment, and this third state is even more severe than the first two in its proscription and prohibition.⁷²

This view is affirmed by other Mālikī scholars, with some minor dissensions. For instance, Qāđī ¢Iyāđ⁷³ (d. 544/1149) says, “Some opined that the embryo has no sanctity for the first forty days nor the legal stature of a child (walad); others argued that it is not permissible to disrupt conception or cause an abortion once conception has occurred in any way whatsoever! However, coitus interruptus differs in that it has not reached the womb.”⁷⁴ Most Mālikī scholars clearly believed in the sanctity of life from inception onward. Imam al-Khirshī⁷⁵ (d. 1101/1690) says, “It is not permissible for a woman to do anything that would lead to an abortion causing the fetus to miscarry, nor is it permissible for the husband to do so, even if it is before forty days.”⁷⁶ Imam Ibn Juzayy al-Kalbī⁷⁷ (d. 741/1340) says, “If the womb receives the sperm, it is not permissible to attempt to thwart [conception] or harm it. Even worse involves an attempt once conception occurs, or worse yet after ensoulment, which, by consensus, is murder.”⁷⁸ Finally, in the authoritative collection of legal responsa of the Mālikī school, Imam al-Wansharīsī⁷⁹ (d. 914/1508) writes, “Our imams have prohibited using any drugs that cause infertility or that remove semen from the womb; this is the opinion of the masters and experts.”⁸⁰ Then, after quoting the statement above from al-Qabas of Qāđī Abū Bakr, he continues,

If you have contemplated the conclusion of what was presented from the master jurist Qāđī Abū Bakr, you should realize without any doubt that an agreement between the husband and the wife to abort their child or any attempt to do that is absolutely prohibited—forbidden! It is not permitted from any perspective. And if the mother should do so, she owes blood money and should be punished according to the discretion of the judge…. Along the same lines, ¢Izz b. ¢Abd al-Salām⁸¹[d. 660/1262] was asked, “Is it permissible to give a woman drugs that would prevent pregnancy?” He replied, “It is not permitted for a woman to use medicine that would eliminate her capacity to become pregnant.”⁸²

“God created the womb as the sacred space where the greatest creative act of the divine occurs: the creation of a sentient and sapiential being with the potential to know the divine.”

The references to induced abortion in early Islam are scarce and generally occur in books of jurisprudence, in sections on blood compensation (diyah), which examine situations where someone caused a woman to lose her child. The permissibility of abortion was inconceivable to early Muslims even though abortifacients were readily available.
The Persian polymath Avicenna⁸³ (d. 428/1037) records more than forty abortifacients in his magisterial medical compendium al-Shifā’. In the only section dealing with abortion entitled “On Situations Requiring an Abortion,” he writes: “There may be a situation in which you need to abort a fetus from the uterus in order to save the mother’s life.”⁸⁴ He lists three conditions where a pregnancy threatens a woman’s life and then lists several ways to induce an abortion in cases where those conditions exist. He gives no other reasons for aborting a fetus.⁸⁵
The sole exception among Mālikī scholars regarding abortions was Imam al-Lakhmī⁸⁶ (d. 478/1085), who permitted abortion of an “embryo” (nuţfah) before forty days. Arguably, he would recant his position if he knew what we know today about fetal development. Nevertheless, his position was never taken up for serious discussion by any Mālikī scholar and remains a mere mention as a sole dissenting voice in books of legal responsa.
Far too often today, the positions favoring the permissibility of abortions in other schools of jurisprudence are presented in articles and fatwas, without the nuance that one finds in the original texts. This results from either disingenuousness or shoddy scholarship. For instance, Imam al-Ramlī⁸⁷ (d. 1004/1596), held in high esteem in the Shāfi¢ī school, is invariably quoted as permitting abortion, but he clearly qualifies his position. He states, for instance, “If the embryo results from fornication, [abortion’s] permissibility could be conceivable (yutakhayyal) before ensoulment.”⁸⁸ He also believed that the stages of nuţfah, ¢alaqah, and muđghah, occurred during the first 120 days, but we now know they occur in the first 40 days; the question remains whether he would alter his position had he known this. Mistakenly, he also claims that Imam al-Ghazālī, perhaps the most important legal philosopher in the history of Islam, did not categorically prohibit abortion. In The Revival of Religious Sciences, Imam al-Ghazālī⁸⁹ discusses various positions of scholars on birth control and then states,

It should not be viewed like abortion or infanticide, because that involves a crime against something that already exists, although the creative process has degrees: the first degree of existence is the male sperm reaching the female egg in preparation for the beginning of life. To disrupt that is criminal (jināyah). If it becomes a clot or a lump, the crime is even more heinous. And should ensoulment occur and the form completed, the crime is even more enormous; the most extreme crime, however, is to kill it once it has come out alive.⁹⁰

Clearly in this passage, Imam al-Ghazālī prohibits abortion, in no uncertain terms, during each stage of fetal development but opined that as the fetus developed within the womb, the severity of the crime increased by degrees.
Even regarding coitus interruptus, according to a sound tradition from Śaĥīĥ Muslim, the Prophet ﷺ stated, “That is a hidden type of infanticide (al-wa’d al-khafiyy).”⁹¹ Scholars interpret that to mean it is disliked, but the Prophet’s strong language concerning birth control by likening it to a hidden form of infanticide indicates that aborting a fetus would surely be considered infanticide. And this is the position of the jurist Imam Ibn Taymiyyah⁹² (d. 728 AH/1328 CE), who asserts that abortion is prohibited by consensus: “To abort a pregnancy is prohibited (ĥarām) by consensus (ijmā¢) of all the Muslims. It is a type of infanticide about which God said, ‘And when the buried alive is asked for what sin was she killed,’ and God says, ‘Do not kill your children out of fear of poverty.’”⁹³

The overwhelming majority of Muslim scholars have prohibited abortion unless the mother’s life is at stake, in which case they all permitted it if the danger was imminent with some difference of opinion if the threat to the mother’s life was only probable. A handful of later scholars permitted abortion without that condition; however, each voiced severe reservations. Moreover, none of them achieved the level of independent jurist (mujtahid). To present their opinions on this subject as representative of the normative Islamic ruling on abortion is a clear misrepresentation of the tradition. Those scholars permitted abortion only prior to ensoulment, which they thought occurred either within 40 days or 120 days. Further, these opinions were based on misinformation about embryology and a failure to understand the nuances of the Qur’anic verses and hadiths relating to embryogenesis. Modern genetics shows that the blueprint for the entire human being is fully present at inception, and thus we must conclude once the spermatozoon penetrates the ovum, the miracle of life clearly begins. Ensoulment occurs after the physical or animal life has begun. Given that twenty percent of fertilized eggs spontaneously abort in the first six weeks after inception, the immaterial aspect of the human being, referred to as “ensoulment” (nafkh al-rūĥ), would logically occur after that precarious period for the fertilized egg at around forty-two days; but God knows best.
Abortions, especially those performed after forty days of fetal development, also violate a different teaching of the Islamic tradition: the prohibition of mutilation. A six-week-old fetus clearly has the form of a child, with budding arms and legs, a head, the beginning of eyes and ears. Imagery of actual abortions performed is pervasive in its depictions of ripped arms and legs from the bodies of fetuses. Ibn ¢Abd al-Barr⁹⁴ (d. 463/1071) said, “There is no disagreement on the prohibition of mutilation.”⁹⁵
The Qur’an states that God created us in stages (71:14). Each of these stages—the zygote, the embryo, the clot of cells, the lump formed and unformed, and finally the growing fetus—is a stage every human being experiences. The Prophet ﷺ said, “God says, ‘I derived the womb (raĥim) from My own Name, the Merciful (al-Raĥmān), so whoever severs the womb bond, I will sever him from My mercy.’”⁹⁶ What constitutes a greater severance of the womb bond than aborting a fetus bonded to the womb? The act of abortion surely “severs the womb bond,” and the womb is a place the Qur’an calls “a protected space” (23:13), meaning God is its protector. Any act of aggression on that sacred space aggresses on a place made sacred by the Creator of life itself.
The Arabic word for “womb” (raĥim) has an etymological relation to the word for “sanctity” (ĥurmah) in what Arabic linguists call “the greater derivation.” The womb has a divine sanctity. God created it as the sacred space where the greatest creative act of the divine occurs: the creation of a sentient and sapiential being with the potential to know the divine. The miraculous inevitability of a fertilized egg occurs only by the providential care of its Creator. Each forebear—from the two parents to their four grandparents to their eight, exponentially back to a point where they eventually invert back to only two people—had to survive wars, famines, childhood sicknesses, natural disasters, accidents, and every other obstacle to the miracle that stands as the myriad number of people alive today. We are each a part of an unbroken chain back to the first parents.
Extreme poverty and the desire for independence from children in a world that has devalued motherhood through intense individualistic social pressures related to meritocracy, psychology, and even the misuse of praiseworthy gender egalitarianism are the primary reasons people in the West today choose abortions. No doubt, many women are genuinely challenged and feel inadequate and unprepared as mothers. The largest demographic among the poor in America remains single mothers. Abortions motivated by knowing, through the miracle of ultrasound technology, that the offspring will be female, as is the case in China and India, can be seen as an “advanced” form of the infanticide that was practiced in ancient times after birth. Arguably, if the pre-Islamic Arabs had possessed ultrasound and modern methods of abortion, they would not have waited for the female child to come to term; rather, they would have aborted the infant in the early stages of pregnancy. Genetic testing can also now predict (not always reliably) any number of serious disabilities a child may be born with. Absent any religious injunctions on the sanctity of life, abortion is arguably a “valid” way of dealing with unwanted pregnancies and overpopulation, not to mention the promotion of eugenics.
When the angels inquired as to why God would place in the earth “those who shed blood and sow corruption,” God replied, “I know what you do not” (Qur’an 2:30). God knew there would be righteous people who would refuse to shed blood. Abortions are noted for the blood that flows during and after them. For anyone who believes in a merciful Creator who created the human being with purpose and providence, abortion, with rare exception, must be seen for what it is: an assault on a sanctified life, in a sacred space, by a profane hand.
https://renovatio.zaytuna.edu/article/when-does-a-human-fetus-become-human