Contingent Liabilities And Assets Are Essay-worthy Topics.

Definition of Contingent Liabilities

Discuss about the Contingent Liabilities and Contingent Assets.

In Islam, the concept of traditional family is considered valuable and it encourages procreation. Marriage and children are perceived as a gift from God and are depicted as ‘decoration of life’ in the Quran, the holy and the central book of the Islamic religion. However, the Quran does not address every possible moral situation directly, including the moral situation surrounding adoption. Moreover, since there is no central authority unlike Catholic Pope in Christianity, who would frame definite statements, therefore there is a mixture of beliefs. In the absence of any definitive statements regarding any particular matter or such statements are unclear, Muslims will abide by the examples and sayings of the Prophet Muhammad (Hadiths). Further, in the event that the Hadith is subject to varying interpretations the Muslims shall follow the principles of ijtihad. It refers to the ability to determine the most reasonable and the best solution to any existing problem by assessing the Quranic text based on the historical and cultural context after comprehending the Hadith and the Quranic principles thoroughly[1].

In Islam, abortion is morally considered as a sin and legally, it is strictly prohibited except under a condition where it is necessary to do so in order to save the life of the mother. Abortion is permitted if the life of the mother is in jeopardy or if abortion is not done, it would cause her severe harm and endanger her life. Although as per the verses in Quran, on is prohibited from transgressing on the life of another person in any stage of life but abortion is allowed for the sake of saving the life of the mother[2]. It is evident from the fact that the fetus owes its existence to the mother therefore it cannot cause her death. Moreover, the life of the mother is real and stable; hence, it must be preferred over the life of the fetus, which is uncertain. The rationale behind this concept is that in order to repel a greater harm it is better to tolerate a lesser harm.

There is a disagreement on this issue among various schools of contemporary scholars in Islam.

In the textbooks of Hanafite jurisprudents it has been stated that abortion is permitted prior to the end of the fourth month of pregnancy that is, before the inspiration of soul. However, the jurisprudents of this have not prohibited abortion before the inspiration of soul in to the body of the mother. The Hanafi School of law is considered the most flexible with respect to rules related to abortion. It permits abortion before the fourth month of pregnancy under such circumstances where such pregnancy poses a threat to the life of the infant that already exists.

Types of Contingent Liabilities

From the point of view of the Maliki School, abortion is prohibited as they do not permit the exclusion of the zygote not even before the fortieth day of pregnancy and there are no exceptions to this rule in the Maliki School of law.

The Shafi School of Law asserts two opinions with respect to abortion. Firstly, some followers of this School prohibit abortion after the conception of the child and do not allow abortion even prior to the fortieth day of pregnancy. Secondly, some followers referred to the Abou-Hanifa’s thesis and accepted legal pleas for abortion[3]. They permit the act of abortion at the blood clot and zygotic stages even although Imam Mohammad Gazelli prohibits abortion of zygotes in any stage.

The Hanbali School of Law prohibits the act of abortion of zygotes after the fortieth day of pregnancy. The Zahirites School Law asserts that abortion shall not be allowed under any circumstances and do not approve any form of exceptions or excuses with respect to abortions[4].

The schools of the past jurisprudence believed that abortion was prohibited (haram) after 120 days even under circumstances if the pregnancy put the life of the mother at jeopardy[5]. The jurists believed that if the fetus is alive then abortion is not permitted since the death of the mother is not real and is merely assumed, permission cannot be granted to kill a human being based on mere assumptions. However, in case the death of the mother is certain then her life shall be given priority over the fetus. Some of the Hanafis, Shafis, Hanbalis and Malikis permitted abortion before the inspiration of the soul in case both the parents assent to such abortion.

According to the point of view of the majority of the jurists, harming the embryo is not permitted even before the inspiration of the soul. The council of religious scholars of the Islamic Fiqh Academy of the Muslim World League after consulting with the specialist medical experts were of the opinion that after 120 days of pregnancy, abortion cannot be granted irrespective of the fact that medical analysis reveals that the fetus is deformed[6]. This rule is subject to the only exception that in the event a medical panel including specialist and reliable experts is able to establish that if the pregnancy is continued it is going to jeopardize the life of the mother for sure, then under such circumstances abortion may be permitted. Permission shall be granted to perform abortion whether or not the fetus is deformed, in order to deter the greater of the two dangers[7].

Accounting Treatment of Contingent Liabilities

The religious scholars further asserted that if prior to the completion of 120 days of pregnancy, a medical panel including specialist and reliable experts succeeds in establishing that the fetus is incurable and dangerously deformed and that if the pregnancy is continued and the fetus is born, it will not have good life, abortion shall be permitted. Further, the medical panel must prove using instrument-based monitoring that if the fetus is born, it shall cause pain and suffering to the family, abortion shall be allowed. Under such circumstances, the Academy advises the doctors and the parents to take every possible step and be cautious in this matter.

A lack of proper accessibility to safe and secure abortions has become a major cause of maternal mortality all over the world. Although an induced abortion is considered as one of the safest and the simplest abortion procedures today, most of the abortions that take place all over the world are neither safe nor secure[8]. An unsafe abortion leads to maternal mortality; as per the reports of World Health Organization (WHO) in 2011, the consequence of unsafe abortions is death of approximately 47,000 women every year. Since, under Islamic laws, abortion is not allowed except under certain circumstances, women often take resort to illegal and unsafe abortion and these women are usually young women or women who are unmarried. Consequently, an unsafe abortion leads to death of the mother.  Further, women who survive an unsafe and insecure procedure of abortion are likely to experience medical complications resulting in temporary or permanent disability such as infection, sepsis, trauma and hemorrhage. 

An abortion may take place spontaneously which is termed as miscarriage or it may be done deliberately, in which case it is known as induced abortion. An induced abortion is considered as one of the oldest measures that are adopted to control birth and the measure is performed worldwide, especially, in developing countries or in highly industrialized countries. The fact that abortion is prohibited has never been adequate and effective to prevent the practice of abortion. People resort to hidden abortions repeatedly and the adverse effects of abortions mainly affect the low-income classes of the community. The issues related to abortion are extensive by nature and may be discussed from various medical, social, philosophical and moral perspectives. Some jurists are of the opinion that abortion cannot be equated to the act of killing a human being but the issues related to abortion must be given due importance as the practice of abortion is directly connected with the right to life[9].

Definition of Contingent Assets

Under the Islamic laws, the moment an egg is fertilized in the mother’s womb, the egg is conferred with certain rights. To allow the fetus to develop and born alive implies respect for the right to life. The Sharia law believers state that if any Muslim causes or undertakes abortion voluntarily, he or she shall have to face God’s fury and punishment for the same. Several Muslim scholars believe that if the pregnancy poses a threat to the life of the mother or adversely affects the mental health of the mother, under such circumstances, abortion shall be considered justified in Islamic laws as well as before the court of law.

In order to avert such unsafe abortion procedures, it is highly imperative to enshrine effective statutory provisions related to rights of abortions in the legal framework of every country all over the world. From the point of view of Islamic jurisprudence on the rights of abortion, there are several Muslim countries that are, at present, under substantial pressure to ease up their respective abortion policies. The countries that are primarily Muslim such as the Middle East and North Africa (MENA) where the laws regarding abortion is restrictive and is only permitted if it endangers the life of the mother.

The role played by Islamic laws with respect to abortion signifies that although the Islamic sources do not support abortion, there is no direct restriction or prohibition on abortion in the Sunnah and Quran, which is regarded as the two most authoritative biblical sources. Instead of providing a specified discussion on the rights of a Muslim woman to seek abortion, the Quran focuses on infanticide and the unwanted (live) children[10]. Seven Muslim nations do not permit abortion within 120 days in the case of fetus deformity. The countries include Burkina Faso, Guinea, Kuwait, Qatar, Chad, Benin and Iran, though Iran has recently allowed abortion within 120 days of conception on the ground of fetal deformation and has passed the Therapeutic Abortion Act 2005. However, Tunisia and turkey are the two Muslim countries that have liberal abortion laws, as the dominant law school in the countries is the Hanafi School that allows abortion within 120 days after conception.

Furthermore, a central passage in the Quran entails about the fur stages of in the development from a fetus to a child. The passage is essential in order to comprehend the Islamic rulings on abortion made by the schools of Islamic law at different gestational periods[11]. For instance, the Hanafites who comprise the majority of conventional Muslims in later centuries allow a Muslim woman to abort her child until the end of the four month of pregnancy. On the other hand, most Malikites absolutely prohibit abortion. Despite the probability for lenient elucidation of the Quran, fatwas that is, the Islamic legal rulings do not encourages abortion altogether[12]. Moreover, all the muftis that is, the authoritative persons who render legal opinions restrict the procedure of abortion, for they fear an ethical mudslide. However, some fatwa have been lenient, especially under circumstances when such pregnancy poses a threat to the life or health of the mother or in case there is a probability of deformation of the fetus[13]. Further, other correlated Islamic principles in both modern and classical ethical reasoning have been used to encourage rights related to abortions with respect to equity that is, solution or istihsan and centrality of utility that is, public interest or istislah.

Types of Contingent Assets

The position of abortion is variable and the permissibility of abortion depends on the specific circumstances and stages of gestational period[14]. The diversity pertaining to the rights of abortion or abortion related laws found in Muslim-majority countries is likely in part owing to the variability of the Islamic position and other essential factors such as whether the legal system followed in the country is based on sharia law exclusively like in Iran[15]. It also includes legal factors including whether the country follows a combination of civil or common law along with sharia law like Saudi Arabia or whether the legal system is not based on sharia law as in Turkey.

As per the Egyptian Penal Code of 1937, abortion is prohibited under all circumstances however, the criminal law is flexible on the ground of necessity that is, if such pregnancy poses a threat to the life and health of the mother or the medical professional have confirmed deformation of the child, abortion is permitted under such circumstances. However, in order to permit abortion under such medical circumstances, the medical committee must agree that such abortion is necessary and the abortion procedure is conducted within the ambit of law.

Some scholars view the increasing practice off abortion and its acceptability in the Muslim country as a sign of “how much people are wandering away from the teachings of Islam. At times religious leaders have passed fatwas that is, non-binding religious edicts that required the people undergoing abortion to make allowances under certain specified circumstances[16]. In Egypt, if a fatwa is issued in case of abortion to be performed under circumstances where the fetus occurred through rape, the decision was criticized on the ground that it violated the command of Quran.  The Quran forbids the parents from killing innocent souls and by issuing fatwa abortion is permitted which implies killing of an innocent soul.

Nevertheless, the liberalization in attitude can be regarded as one of the aspect of understanding the teachings of Islamic laws, which believes in reconciling religion with personal desire and cultural preference[17].  The different Islamic schools have different views on abortion. Some schools permit abortion within 120 days of conception and some restricts abortion even when the fetus is in a deformed stage. Due to the restrictive laws, a woman often conceal their pregnancy, undergo unsafe abortions to prevent themselves and their families from social stigma, and respects the religious teachings. However, fatwa that permitted abortion in cases of rape signified a liberalized view towards progressive Islamic teachings that believes that conscience or itjihad is the only way to unite cultural preferences and personal desires with religion.

Accounting Treatment of Contingent Assets

 In Iran, abortion has been illegal since the Islamic revolution in 1979. Although the Iranian laws do not explicitly provide any exception to the prohibition of abortion however, the laws permit acts that are usually performed in order to save the life of any person. Hence, it is evident from this fact, that in Iran, the laws do not permit abortion unless such pregnancy endangers the life of the pregnant woman[18]. In the year 2005, the Iranian Parliament passed a measure that permits abortion to take place within the first four months of pregnancy in the event the deformation of the fetus shall cause economic and social burden on the family in future. However, the Iranian Guardian Council has ultimately blocked the measure introduced by the Iranian Parliament.

In Israel in the year 1977, the legal framework of the Muslim predominant country made the procedure of abortion legal with the sole objective to save the life of the pregnant women whose life would be jeopardized if she continues with such pregnancy[19]. The law aims at saving the health as well as the mental condition of the pregnant women or the mother of the fetus. The Israeli laws permit abortion in cases of rape, deformation of the fetus or incest as well as under circumstances where there are several social difficulties associated with the pregnancy and would adversely affect the pregnant woman if abortion does not take place. However, in 1979, the social circumstances were repudiated as explicit reasons for abortion but the country’s regime did not prohibit abortion absolutely, it did allow leniency with respect to the rights of abortion to certain extent. For instance, the country permitted abortion to take place if the woman is below the age of 17 years or above 40 years of age or is unmarried as these factors amounts to social circumstances and hence, validates the procedure of abortion[20]. Further, the procedure of abortion, be it under any circumstances, must be authorized by the medical committee comprising the medical professionals including two physicians and a social worker.

In 1983, the legal framework of Turkey legalized abortion however, under all circumstances; abortion shall be legalized until the 10 weeks of pregnancy. After the expiry of the 10^th week, abortion is valid only if the continuation of pregnancy jeopardizes the life of the mother. It shall be valid if the pregnancy affects the mental and physical health of the mother or if the continuation of the pregnancy shall result in deformation or impairment of the fetus[21]. For the abortion to take place, it is mandatory that both the parents and spouse give their consent to the procedure but if the mother possess imminent danger the consent may be waived and the abortion procedure shall be performed in order to save the life of the pregnant woman. During the weeks, abortion is also valid if the conception occurred through incest, rape or any other social or economic reasons[22]. In order to carry out the procedure, the consent of the pregnant woman is mandatory. In case, the woman is below the age of 18 years, the consent of the parents of the girl is mandatory. In case, the pregnant woman is married it is important that her husband give his consent to the abortion but if the woman is above the age of 18 years and is single, then the woman is free to make her own decision relating to the abortion.

Importance of Contingent Liabilities and Contingent Assets

Although there is a nationalized health care system in Turkey and the abortion related laws are comparatively progressive, the abortion services and its related procedures are confined to the obstetricians[23]. The shortage of obstetricians, particularly in the rural areas restricts the accessibility of the women to safe and secure abortion services in time. Moreover, the women undergoing the abortion procedure are not provided detailed and proper information about the abortion procedure.

Before the legalization of the abortion procedure, women would undergo abortions secretly and as a result of which most of the abortions were done in harmful and following unsafe ways. Consequently, there was an increase in the maternal mortality rate. However, in the year 1983, Turkey validated abortion and Turkey and Tunisia are the only two countries in Middle East region that permits pregnant women to undergo abortion under any circumstances during the first trimester[24]. The other Muslim countries usually permit to carry out the abortion procedure only if such pregnancy affects the physical health and mental health of the mother or if the continuation of the pregnancy would result in deformation or impairment of the fetus.

From the Shariah or Islamic law point of view, if the fetal is at a stage where the inspiration of soul has not taken place before the end of the fourth month of pregnancy, abortion is permissible[25]. However, some scholars believe consider the fetus as a complete human after the fourth month of pregnancy, hence if abortion takes place during that period of time it shall amount to a crime committed against a fully-grown up human being[26].

On the other hand, some contemporary Islamic jurisprudents asserts that the fetus is in the form of a pure fluid, a clot of blood or a mixture of meat loaves, therefore, if the pregnant woman undergoes the procedure of abortion, it would not amount to any crime committed against a human being. However, the conservative scholars affirms that if it is scientifically proven that the fetus in the womb of its mother has abnormality or serious impairment and it is confirmed and apparent that such anomalistic nature of the fetus is likely to cause problems or torments for himself as well as for the family, the abortion shall be permitted.  Abortion may be permitted under such circumstances based on the principle that one must repel or ward of any loss as much as possible to prevent himself/herself from the consequences of such loss[27].

Conclusion

From the point of view of the sharia law, since mother is the source of the life for the fetus, under any situation that jeopardizes the health or life of the mother, the life of the mother shall be given more priority than the life of the fetus. Under such unavoidable circumstances, the essential principle of sharia law shall come into effect according to which the lesser evil shall be followed. In the case where the fetus endangers the life of the mother who is the source of life of the fetus, abortion is regarded as the lesser evil and hence, the least damaging option available must be selected that is, (the lesser of the two evils) must be followed even though such option may be undesirable[28].

The lack of clarity in the Quran regarding family planning and abortion and the availability of diverse opinion on its permissibility result in lack of uniformity in the application of the abortion laws. In classical Islamic law, eight of the nine legal schools permit the use of contraception only with the consent of the wife. However, medieval jurists and theologians are of the opinion that contraception is not permissible as it amounts to a form of hidden infanticide. The Quran prohibits parent from killing their children under the ‘fear of poverty’ and has prompted to apply this principle with respect to family planning methods. However, the Muslim opponents of family planning contradict with the belief of the medieval jurists. The opponents believe that such principle signifies lack of faith and trust in the divine intervention of God and that the same has been cited in the Quran itself[29]. It is stipulated in the Quran that God provides for all his creatures and that there is no creature on earth whose provision does God not guarantee. Further, several other scholars are of the opinion that even Prophet Muhammad permitted the practice of al-‘azl that is, withdrawal or coitus interruptus and other mechanical contraceptive methods[30]. All the other schools of Islamic law allows al-‘azl among which four of the schools insist that the contraceptive methods or the practice of al-‘azl must be adopted with the consent of the wife.

As per the reports of the International Planned Parenthood Foundation (IPPF) despite both the religious and legal restrictions against abortion in majority of the Muslim countries, both the economic and social values have changed which has enhanced the rate of abortion that takes place in the Middle East and North Africa (MENA) region[31]. The statistics report revealing the increase in the abortion rate signifies that there has been a significant change in the acceptability of the practice of adoption as compared to how it was observed 10 to 15 years ago. Abortion has become much less than a taboo as the medical professionals talk about it; the women are well aware of the practice and its consequence, it has become more visible with the change in the moral values of the people. However, the conservative or the medieval Muslims still consider the practice of adoption as illegal because of which it has become unfeasible to calculate how many illegal abortions take place as the abortions that are performed illegally or in the unsafe way are hardly documented[32].

References

It is essential to understand that with the trend of liberalization, the laws in the Muslim countries are comparatively more strict and rigid than the laws prevalent in the Western Europe and the United States of America. In Western Europe, Germany, although the law in 1995 makes abortion illegal but if the mother is a rape victim, neither the doctor nor the mother are prosecuted for undergoing abortion. The abortion procedure must be performed within 12 weeks of conception. The ultimate decision regarding the termination of pregnancy or abortion lies with the women though the law prescribes that such woman shall be provided with medical and social counseling in order to help her overcome the circumstances that are compelling her to take the decision of abortion[33]. Even after such consultation, the woman persist to undergo abortion or to terminate her pregnancy, a six-day waiting period is provided wherein the medical personnel are entitled the right to conscientiously object to the termination of pregnancy. However, the final decision to terminate the pregnancy is left to the sole discretion of the pregnant woman and the confirmation of her physician.

There is a constant clash between the Europe and Islam relating to the cultural conflicts on abortion. The abortion debate involves the beliefs of the Western Europe’s religious majority while the largest religious minority follows Islam at present[34]. A compromise based constitutional process that is modeled after the abortion must be tested as a part of the debate on the cultural conflicts and controversies pertaining to the practice of abortion over the Islamic place in the European Public sphere. The attempt to harmonize the interests of the Muslims with the common concern of the majority may act as a promise for a more culturally and inclusive serene future of Western Europe[35].

The analysis of the Islamic discourse and the present practice of abortion in the Muslim and non-Muslim countries reveal that more lenient laws may be framed if the individuals are prohibited from misinterpreting the teachings and rulings of the Quran and the Sunnah. The individuals must be prohibited from making false assumptions that both the religious sources clearly opposes abortion, instead lenient interpretations must be outlined that are followed by most of the Islamic schools of law. In other words, if the Islamic laws are uniformly applied without misinterpreting the teachings, it is possible to frame more lenient and liberalized laws relating to the practice of abortion.

Under the Islamic Law, human life is considered to be sacred and no one is permitted to terminate the life or kill any other person except otherwise in accordance with the law. Whether a fetus is entitled to enjoy the right to life has become the most debated subject under the Muslim Law[36]. Abortion is directly associated with eh right of a child to life because with the procedure of abortion, the life of the child is terminated in the womb that is in the process of development. As per the teachings and rulings of the Islamic laws, abortion is prohibited as it amounts to killing of a human being that has not even fully developed. However, the Muslim scholars or jurists are not unanimous regarding the conditions and stage that permits a woman to terminate her pregnancy, thus ending the life of the fetus[37].

In Islam, the protection of the life of man is not only restricted to the post-natal life, it also extends to the protection of the life of the embryo[38]. The sharia law prescribes protection of the embryo even before the embryo is formed and depriving such embryo of life by terminating pregnancy not only amounts to a crime, it is equal to committing a sin. According to the rulings of the Quran, humankind comes into existence since the amalgamation of two primary cells and the destruction of it at any stage would deprive humankind of life[39]. Hence, the person committing such crime or sin is entitled to punishment[40]. Islam does not permit the practice of abortion as a measure to control birth rate except under certain exceptional circumstances. This does not imply that Islam is against birth control measures, but once a woman becomes pregnant, the parents of the child are prohibited from terminating the life of the child.

However, the Muslim jurists have given religious verdicts on issues pertaining to abortion and embryological development and have strived to construe new rulings and methods on new issues arising out of abortion. Since abortion as a subject is not specified in any part of the Quran, the teachings of the Prophet is considered as second primary source of Islamic law[41]. The Muslim Scholars usually rely on the teachings or rulings of the Prophet while passing any verdicts or developing opinion related to abortion under the Islamic law.

From the medical perspective, abortion is observed as a major concern in the present day as the frequency of abortion is high in several parts of the world to some extent due to the unavailability of contraceptive pills and the practice of abortion as an effective measure of birth control. Various experts and bodies have defined the term abortion. The World Health Organization (WHO) has defined abortion as the extraction or expulsion of an embryo or a fetus weighing 500 grams or less from the mother[42]. The term implies termination of pregnancy intentionally or the killing of the embryo or fetus. The underlying meaning of the term abortion is similar from the perspective of medical science and under the sharia law.

The International Human Rights law recognizes the right to life as a basic right that is accrued to individuals at birth. The right to life is considered as a fundamental human right and is essential to the enjoyment of all other human rights[43]. The international and regional human right bodies as well as the courts all over the world have explicitly established the fact that any prenatal protections must be in accordance with the human rights of women. The rising trend to extend a right to life before birth, in particular, from conception indicates significant threat to the human rights conferred to women, both in theory and in practice[44]. These attempts are embedded in religious and ideological motivations and usually tend to deny women the complete range of reproductive health services that are fundamental in order to protect her health, dignity, life, autonomy and equality among other rights[45].

These measures grant a right to life before birth and bestow rights on fetus or an embryo that would be considered as superior or equal to the rights of women. In several cases, these measures purport to outlaw any procedure that ends the pregnancy. In other cases, these attempts substantiate the restrictions on access to in vitro contraception and fertilization. These strategies result in denial of the ability of women to make independent decisions pertaining to fertility, thus, completely disregarding the basic human rights of women[46]. There is no unanimity across various disciplines including religion regarding at what stage human life begins. Different religious beliefs have different viewpoints on this particular issue. The sharia law believes that the after 120 days that is, ensoulment the fetus is regarded as a child and undertaking abortion at this stage is prohibited. The shafi jurists’ permits abortion up to 80 days and the Hanbali School permits abortion up to 40 days[47].

The regional and international human rights treaties safeguard the right to life in the absence of a proper description about the commencement of life[48]. The International Human Rights that aims at protecting the rights to life are enumerated as below:

Universal Declaration of Human Rights- Under Article 1 of the Universal Declaration of Human Rights (UNDHR) it is stipulated that all human beings are born free and equal in dignity and rights[49]. Here, the word’ born’ indicates that it was used intentionally in order to exclude prenatal application of the rights that are safeguarded in the Declaration. Hence, the principle signifies that the rights conferred by the Declaration are inherent from the moment of birth[50].

Convention on the Rights of the Child- the preamble of the convention states that the child, owing to its mental and physical immaturity, requires special care and protection including proper legal protection, before and after the birth of the child. The language used in the Conventions does not imply that the Convention extends its protection to the right to life of the child, prenatally[51].

International Covenant on Civil and Political Rights (ICCPR)- The covenant rejects the proposition that the right to life safeguarded under Article 6(1) extends its protection to prenatal life. The drafters of the covenant reject the proposal that the right to life is inherent in the human being from the moment of conception and the law safeguards such right[52]. The Human Rights Committee that interprets in compliance with the ICCPR further asserts that the protection extended by the covenant to right to life shall be considered as infringed if the restrictive abortion laws compels the pregnant women to resort to unsafe abortion and the unsafe abortion process poses a threat to the life of the pregnant women[53].

Convention on the Elimination of All Forms of Discrimination against women (CEDAW)- This Convention stipulates that the fundamental principles of non-discrimination and equality mandates that the rights of a pregnant woman must be given more priority over an interest in prenatal life[54]. The CEDAW Committee has further asserted that the right to life and health of the women may be violated as a result of the restrictive abortion laws[55].

On the other hand, under the Islamic law, the right of the child to life commences even before the birth of the child[56]. This implies that the parents of the child are strictly prohibited to commit abortion or any other act that may cause or is likely to cause any damage to the child or jeopardizes the life of the child. After the child is conceived, the sharia law recognizes the fetus as a human being that has not fully developed into a fully-grown human being. The fetus accords a special protection and status and this legal status accorded by the fetus is introduced from the concept of dhimmah, which implies that a person is fit for what the person entitles as well as what such person is subject to. The concept enables the fetus to become a recipient of rights and obligations known as receptive legal capacity[57].

Since the Quran forbids the killing of innocents and prohibits the parents and spouses from committing abortion, the Muslim scholars derive their beliefs from these religious sources that a fetus comes to life 120 days after conception. This implies that the inspiration of soul into the fetus not after the egg is fertilized but forty-two nights after the fetus is settled down in the womb of the mother. Under the sharia laws, a person who has committed an abortion shall be entitled to punishment but the crime shall not amount to murder. The person terminating the pregnancy shall be entitled to pay blood money or diyyah in the event the fetus was alive when it was bon but died subsequently as a result of such abortion. However, in case the fetus was not fully formed, then the wrongdoer shall be liable to pay a lesser fine. In Islam, under any circumstances, be it reasonable or not, an abortion cannot be carried out without the consent of the parents-and –the spouses of the child[58].  In case, the mother undergoes an abortion without the consent of the father of the child, she shall be entitled to same punishment, as any wrongdoer is entitled under similar circumstances.

The Human Rights Committee and the International Human Rights Conventions considers that the interest of the mother must prevail over the interest of the unborn child in the event such child jeopardizes the physical as well as the mental health of the mother. Similarly, under the Islamic laws there are certain circumstances, which would justify the abortion.

One of the most essential exception or ground on which abortion is permitted is that if the mother is jeopardized with the continuation of pregnancy abortion is justified. This exception or justification is mentioned in the Quran according to which a mother must not suffer because of her child. This Quranic provision implies permissibility of abortion on any reasonable or justified grounds as long as such abortion procedure takes place before 120 days of conception.

Although the reasons or grounds that would, permit the performance of abortion may differ and the stage of pregnancy when the abortion may be carried out is the principle determinant factor in this regard.

The Council of Islamist Jurists of Mecca issued a fatwa in the year 1990 that permitted abortion under circumstances where there is an existence of some severe congenital malfunctions in the pregnancy[59]. However, the medical committee comprising specialist doctors agree that there are some serious complications in the pregnancy and that it poses a threat to the life of the mother. Further, the medical committee must confirm that there are no available treatments for the fetus or the unborn baby and abortion is the last resort in order to save the life of the mother.

In Egypt, another fatwa was issued in June 2004 that supported abortion under circumstances where the mother is a rape victim. However, this non-binding legal ruling became subject to several criticism. The then Mufti of Egypt opined that the legal ruing was against the commands or teachings of the Quran. Besides, such ruling was also contrary to the teachings of the Prophet and his companions, which are strictly against the notion of killing innocent souls[60]. The Quran forbids the parents from killing their child and since abortion implies killing of the fetus it is a crime. The person committing such crime shall have to pay blood money and would face God’s fury and punishment. The ground of rape that justifies abortion was further criticized where it was stated that since technology has become so advanced, any rape victim could simply use the “morning-after pill” that is, the morning after the incident, as long as it can be reasonably assumed that fertilized egg has not yet been implanted on the all of the uterus.

Further, another circumstance where abortion is considered as valid is the ground of congenital abnormalities. However, several Muslim Scholars have also objected this reasonable ground by stating that such congenital abnormalities cannot be detected in the uterus, in particular, before 4 months of gestation with accuracy[61]. Almost 90% of the cases where there is a probability that the mother suffers from nervous system defects, the same cannot be detected before 24 weeks of gestation. On the other hand, the cut-off date for abortion under the sharia law is 4 months or 4 months and a maximum of 10 days in addition[62]. These challenges and criticisms make it difficult for the medical committee to ascertain congenital abnormalities during the initial stage of pregnancy. It is clearly understood that the Muslim Scholars or jurist do not consensually agree on the ground or circumstances that validates abortion and permits the mother to terminate the pregnancy. The only exception that is acceptable by all the Muslims under the Islamic laws is that an abortion is permissible and valid only when the continuation of the pregnancy shall cause or is likely to cause any damage to the mother of the child or is likely to affect mental health of the woman. However, the abortion under such circumstances must be carried out with the consent of both the parents and spouse. In case, the woman is below the age of 18 years, the abortion shall be carried out with the consent of the parents of such woman.

The promotion of the reproductive rights of women have gained popularity worldwide owing to the International Conference on Population and Development (ICPD) in 1994 that was held in Cairo and the Fourth World UN Conference on Women that was held in Beijing in 1995. These two conferences have aimed at recognizing the essence of sexual and reproductive health of women and that the same must be safeguarded as it is fundamental to social justice[63]. These conferences signified that the health related issues of women may be addressed through the implementation of the human rights incorporated in the existing regional and international human covenants and national constitutions. The statements passed in the conferences consensually assert that women’s right to abortion is a part of the women’s right to reproductive rights[64]. The UN treaty-monitoring system ensures that the states are acting in compliance with the International Human Right Treaties.

Egypt has been signatory to the CEDAW and has confirmed upon ratification with respect to Article 9 according to which women must be granted equal rights with men in respect of nationality of the children without prejudicing the nationality of the father that the child acquires of a marriage. According to Article 16 of the CEDAW, it grants equal status to both men and women in matters related to marriage without prejudicing the provisions laid down under the Sharia laws. Israel has made its reservation with respect to Article 16 of the CEDAW Convention to the extent that the laws related to personal status do not conform to the provisions of Article 16. However, these provisions of the convention aimed at granting equal rights to women with the men in marriage related matters, which signifies that the women had equal right to decide whether to undergo abortion. Since Egypt has, restrictive laws related to abortion, this provision might be construed as a liberal movement towards the rights of women.

The European law is considered as a primary source of law in Ireland and in the event of conflict between the domestic law and international law, the EU law shall prevail. If an international agreement is not incorporated into the domestic law, the law shall still bound Ireland.  In Mellet v Ireland [2016], Ms Mellet as prohibited from accessing abortion services and the Committee held that Ireland had infringed Article 7, 17, 26 of the ICCPR that is, the violation of the right to privacy and her right to be free from cruel and inhuman treatment.

Several high courts have addressed the issue related to the right to life in the context of abortion. The courts have held concluded that the constitutional rights including the right to life is accrued to a human being only at birth and that the law does not extends its protection of right to life prenatally. The US Constitution does not consider ‘fetus’ as a person within the meaning and language of the US Constitution.  From the Human Rights perspective, a fetus does not have a separate existence and can only come into existence within the womb of the mother.         Therefore, if the fetus causes or is likely to cause any damage or harm to the physical or mental health of the mother, the interest of the mother shall prevail over the interest of the fetus. The constitutional value of an unborn human life can be safeguarded to such extent that such protection does not result in an interference with the fundamental nature of a woman’s right to privacy and right to freedom. In European Court of Human Rights, VO v France [2004], it was held that the rights and interests of the women implicitly restrict the right to life of the unborn. The ECHR acting in the compliance with the European Convention asserted that an unborn child is not considered as a ‘person’ directly and that it is upon the rights and interests of the mother to decide whether an unborn child has a right to life. The rights and interests of the mother shall include her rights to privacy, health and life as well. In other words, the court is of the opinion that prohibiting abortion to safeguard the life of the unborn child is not justified under the Convention and that any restrictions related to abortion must be consistent with the fundamental rights of the women.

The several efforts made to promote a right to life prior to the birth of the fetus often purports to confine the access to both abortion and contraception[65]. The rationale behind such efforts is to understand and accept the value of life but unfortunately, these attempts often serve the exact opposite purpose, enhancing the rates of maternal mortality[66]. Evidence establishes that if abortion is legalized, it would not result in an enhanced incidence of induced abortions. On the other hand, if the abortion laws were made restrictive, it would result in higher rates of unsafe abortion. In addition, such unsafe abortion poses risk to the health and life of the pregnant woman. Further, lack of access to contraceptives often leads to higher rates of unwanted pregnancies and, in turn, leads to higher rates of induced abortion[67].

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