الإجهاض بين الفقه و القانون
Date
2010-09-16
Authors
سائده عز محمد سالم
Saida Izz Mohammad Salem
Journal Title
Journal ISSN
Volume Title
Publisher
AL-Quds University
جامعة القدس
جامعة القدس
Abstract
This study includes two chapters preceded by preliminary. In the
preliminary, we have tackled the meaning of fetus linguistically and
idiomatically in the first requirement, developmental stages, creation
of fetus in the second requirement .Moreover, in the first chapter, I
have focused on abortion in the first chapter in Islamic fiqh, I have
presented a historical summary about abortion before and after Islam.
I have clarified types of abortion, pillars and its rule in Islamic fiqh .At
the end of the first chapter; I have clarified the punishment of Islamic
fiqh through six subjects.
I have concluded in my thesis to the transcendence of Islamic Sharia
and its superiority on other legislations particularly concerning
phenomena of shari care to fetus .In the field of punishments the
Islamic fiqh has postponed implementing Islamic penalties on the
pregnant woman except after getting birth on contrary to secular laws
in Arab and Western countries particularly –Palestinian Law draft –the
compulsory order is to postpone implementing sentence penalty on
pregnant woman .However, if penalty is not sentence to death ,
postponing is a permittable order approved or not approved by the
judge.
It has been clarified to us that causing a problem for a fetus after
inserting life in him is considered a killing for a believing member
without a right and that there are some illness cases that elicit
sacrificing in a fetus to conserve mother's life provided that these
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cases are specified by a Muslim physician who is honest and trusted
within the conditions and restrictions of Islamic sharia .These cases
represented in abortion of pregnant woman resulted from adultery or
practicing raping by force although there are differences in opinions of
religious scholars concerning these.
The second chapter has tackled abortion in secular law in some Arab
and Western countries –Palestine is a model-as I have tackled
particularly the Palestinian law draft concerning abortion, where in the
first subject I have tackled the legal concept of abortion and I have
distinguished between abortion and other similar actions similar to it.
The second subject, I have clarified the pillars of abortion crime have
displayed types and forms of abortion crime in the third and second
subject. In the fifth subject, I have tackled the crime of abortion in
some Arab and Western laws –Palestine is a model .At the end of the
second chapter, I have discussed penalties resulted from abortion
crime in secular law.
The thesis has reached general rules in law that matches with Islamic
fiqh in allowing abortion for fetus and saving mother's ;life from
certain danger. Abortion can be described as misdemeanor if it occurs
with the pennant's approval and it may be considered as a crime if it
occurs forcibly and it may be accompanied by certain circumstances
that emphasize or lessen the penalty.
It has been shown to us that the penalty of abortion according to
Muslims is a financial penalty (Deya (financial compensation ) if a
fetus is born alive , then killed by a criminal and Al-Gharra if born
dead) . Except some of religious scholars who tended to say that if the
fetus was born alive because of bad misbehavior against a fetus is
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retribution if the aggression occurred deliberately , while the abortion
penalty based on secular law is imprisonment is the [penalty
misdemeanor. A legislator has considered abortion to crime level and
considered penalty is firm imprisonment in certain cases.
This study has revealed the fiqhi and legal concept of abortion; it has
reviewed the opinions of religious scholars and lawyers in the subject
of abortion. This study has distinguished between the views of fiqh
and law in this subject, it has also reviewed some statistics listed
within this subject and risks resulted from it in the life of the Western,
Arabic and Palestinian communities.
We appeal through this study to legislator the necessity of issuing a
law to protect the fetus in order to him to be a subject of playfulness or
trials of others. We also request not to tolerate in legislating penalties
on crime of abortion and to cancel any legal article that states not to
punish for implementing abortion as a fetus at the end is a human soul
who needs legislations that conserve this human soul and to punish
everyone tries to cause problems for this creature
Description
Keywords
الدراسات الاسلامية المعاصرة , Contemporary Islamic Studies
Citation
سالم، سائده عز. (2010). الإجهاض بين الفقه و القانون [رسالة ماجستير منشورة، جامعة القدس، فلسطين].
المستودع الرقمي لجامعة القدس. https://arab-scholars.com/d594aa