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Preservation of Progeny:
Issues from the Shari’a Perspective
by Muhammad ‘Uthman El-Muhammady [View Writer's Profile]
The learned writer of the paper "Preservation of Progeny: Issues From the
Shari'a Perspective", in his lucid and important paper has dwelt on a number
of key issues dealing with this topic. They involve the definition of nasab, (pp
2-4), issues of illegitimate children as discussed by the classical jurists (pp
4-60, abandoned children (pp 6-10), religious status of the foundling (pp 10-11),
doubts about the foundling, maintenance and care, (pp 11-12), the maintenance
of the abandoned child with or without property or money (pp12-16), then part
II on illegitimate children (pp 16-17), their religious status (pp17-19), their
progeny (pp 19-20), their maintenance and care 20-24), blood wit and inheritance
(pp24-25), their marriage and leadership in prayer (pp24-25) and finally the prayer
of the dead (pp28-29), and finally the conclusion.
The conclusion mentions the attitude of the classical jurists wanting to protect
foundlings, presuming them to be free, where able possible, taking them as Muslims,
and having gone out of their way within the legal construct to ensure their well-being
and upbringing, preserving the progeny of the child, so that the child has the
right of maintenance and care from the responsible party. The writer asserts that
the procedure adopted by the jurists regarding the relationship between the state
and the foster family was that it was the duty of the finder to bring the child
to the authorities, then the authorities are to find someone to look after the
foundling, usually the finder, though not necessarily always the case. And the
authorities are to ensure that the person would be the appropriated one ready
to look after the foundling. And then the financing of the maintenance of the
child could be taken over by the foster-father, and this was recommended, particularly
as an act of charity.
The writer asserts in the conclusion that provided the foster father made it clear
from the beginning that he would expect to be reimbursed in the matter of the
costs of the maintenance, and care of the foundling, when the foundling attains
to age of maturity, and when the child has become an adult, he could reclaim,
at the appropriate time, provided they could actually be repaid. However, he asserts
that it is the state's responsibility to provide the foster-father with the means
to provide for the foundling. He says that the state seems to have retained the
wala' of the foundling, though this is not necessarily so in all cases. Thus,
it was the state that would normally be responsible for the bloodwit of the foundling.
Also, it would be the state, through the person of the qadi who would act as the
wali in the case of the marriage of the female foundling.
The state then would be entitled to inherit from the foundling, when the foster-father
receives the wala' of the foundling, the same would apply to him and his family
as it did to the state. This relationship, is legally, says the writer, not adoption;
the relationship between the foundling and the family is not governed by the same
rules as the relationship would be if the foundling had been a legitimate natural
child of the family. Thus, the foundling has not rights of inheritance or impediments
to marriage. There was one means by which the foster -father or any of the foster
family who had grown to love and care for their foster child, could make provision
for the child to inherit and that was by wasiyyah, namely, up to a third of the
total property left could be bequeathed to the foster child so that the assigned
shares of inheritance would be somewhat reduced. The classical jurists working
on the basic Islamic texts have laid down a legal construct, which, with improvements
suitable with the present conditions, enables the foundling to be brought up in
a civilized and sensible Islamic way.
The writer further asserts that in the paper he has highlighted the point, in
case the illegitimate child is established beyond contradiction as the result
of zina, then the child derives his nasab from the mother. It is the illegitimate
child's family who are required, theoretically, by law, to provide for the child,
and the person who acts as the wali will be the child's wali in terms of diyyah
and marriage, if the child is a girl. He states that there will be reciprocity
between the child and the mother's family in terms of inheritance. Wallahu a'lam.
The following are my additional statements relating to the topic of the preservation
of the human progeny with the attending implications which should be considered
and actualized in our society at a time of erosion of values as this.
In discussing the five necessities in human life which are considered as the five
aims preserved by the sacred law are termed as the al-kulliyat al-khamsah or also
termed as the daruriyyat al-Shatibi mentions religion, self, intellect, progeny,
wealth.In the al-Muwafaqat (I.38,II.10, IV.27) the author mentions the necessities
in the following order: religion, life (nafs), progeny, wealth, and intellect.
In the al-I'tisam (II.179 and al-Muwafaqat II.299) the mention is in the following
order: religion, life, progeny, wealth, and intellect. Al-Zarkashi mentions these
in the following order: life, wealth, progeny, religion, and intellect. Al-Ghazali
in the al-Mustashfa, I.258 mentions these in the order: religion, life, intellect,
progeny, and wealth. Al-Ghazali's opinion seems to be more acceptable. Whatever
the order is, the issue of progeny and its importance is accepted by scholars
of Islamic jurisprudence. Abdullah Darraz in his commentary of the al-Muwafaqat
II.153 mentions that the view of al-Ghazali is adopted by most scholars. Hence,
in the matter of these daruriyyat the matter of religion is the first, then life,
then the intellect, then progeny, then wealth.
In discussing the issue of progeny, we can observe that Islam pays a special attention
to the reproduction of mankind and the maintenance of the human race on earth.
Mankind is entrusted with the guardianship of the entire earth and the promulgation
of divine wisdom serving the role of the vicegerent of the Almighty Allah on earth
and also His servant. Therefore, according to Islam, in this order of meaning,
stopping the reproduction process by any means, causing it to cease in any form
or tampering with it in any way or causing to reduce it, for no legitimate reason,
is an unlawful practice. The Almighty Allah states in the Glorious Qur'ân
Sura Baqara [The Cow], 205 to the effect:" When he turns his back, his aim
everywhere is to spread mischief through the earth and destroy crops and cattle.
But Allah loves not those who practice mischief.
Islam, for instance, prohibits abortion after the fourth month of pregnancy. Muslims
believe that the soul will be breathed into the foetus at the fourth month of
pregnancy. However, if there is a grave situation, which endangers the life of
mother, there is no harm in performing abortion. This is based on the statement
of Allah's Messenger (peace and blessings of Allah be upon him): " …A
foetus will be constructed in the shape of sperm for forty days. Then, it will
be a clinking clot [to the internal side of the mother's womb] for another forty
days. Then, the angel will be sent down to the foetus to blow the soul in it.
The angel [is further] commanded to write the following four items [concerning
the future life of the foetus on the earth] as follows: the [pre-determined] provision
of the foetus, his/her term [life duration on earth], and whether he/she is fortunate
or unfortunate [while alive on earth and in the hereafter]"[1].
In fact, Islam considers it a premeditated killing when a pregnant mother performs
abortion after the soul is blown in the foetus [after four months of pregnancy].
Such a killing entitles a punishment for both parents. Unintentional abortion,
however, requires a blood-money substitution for the aborted fetus. This issue
may be reviewed in the books on Islamic jurisprudence.
Many statements of Allah's Messenger (peace and blessings of Allah be upon him)
are reported in this regard concerning the urge to have a normal reproduction
of the human race, the maintenance of the human race and to increase the rate
of reproduction, if possible. Allah's Messenger (peace and blessings of Allah
be upon him) says: " Marry a loving, kind and reproducing female as I will
take a special pride by you on the Day of Judgement" [2]
Lineage Preservation
Islam capitalizes on the value of the nucleus family and the broader sense of
family as well. The nucleus family is the basis and the foundation of the society.
In order to protect this family against breaking and disintegrating, Islam pays
every attention to this unit of the society. Lineage is one of the essential
bonds of the family. A relative will recognize the rights of his kin and kith
and consequently, will pay his due right to that relative in an appropriate
fashion. Allah (subhanahu wa ta'ala) laid down certain rules, and regulations
that consolidate the foundations of kinship rights on every individual member
of the family. Moreover, Islam protects the family against interactions that
may lead to its disintegration.
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