The Duration of Pregnancy in Contemporary Islamic Jurisprudence (fiqh) and Legislation: Tradition, Adaptation to Modern Medicine and (In)consequences

367 DOI: 10.1111/muwo.12442 The Duration of Pregnancy in Contemporary Islamic Jurisprudence (fiqh) and Legislation: Tradition, Adaptation to Modern Medicine and (In)consequences Delfina SerranoRuano ILC, CSIC, Madrid, Spain Abstract This article deals with assessments by a number of contemporary Sunni fiqh experts on the legal duration of pregnancy. Most of them strive to demonstrate that classical jurisprudence (fiqh) and modern medicine are perfectly compatible, despite the fact that the former contemplates gestational periods far longer than nine months. Also, they make proposals for national legislative bodies to best accommodate medical evidence to shari`a’s ethical and legal standards. In this way, they legitimize the drastic shortening of the legal duration of pregnancy that had already taken place in the family codes of most Muslim majority countries in order to adapt the Islamic jurisprudence on which these codes are avowedly based to modern medical knowledge. In this specific legal change casestudy, legislation appears to have drawn jurisprudence rather than the reverse. The adoption of the medical duration of pregnancy affects such extremely sensitive issues like the criminalization of nonmarital sexual intercourse and the denial of paternal filiation to the resulting offspring. As long as the latter two fields are not revised accordingly, the contemporary fiqh and legislation on the matter will seem flawed since their implementation leaves women and their children deprived from legal protections they used to have under the corresponding classical jurisprudence in the premodern period. In classical Islamic jurisprudence (fiqh) the duration of pregnancy is relevant to determine paternal filiation (nasab), the time a repudiated or widowed woman must wait before remarrying (`idda), maintenance (nafaqa), inheritance rights, unborn children’s eligibility for bequests and liability for unlawful sexual intercourse (zinà). This article focuses on the first and the last mentioned implications, i.e. filiation and zinà. The agreed upon minimum duration of pregnancy is six months whereas the maximum length was subject to strong disagreement given the lack of any relevant instruction in the Qur’an and the Prophetic tradition. The dominant positions were not ruled by medical or pseudomedical criteria but rather by the practical consideration to guarantee the stability © 2022 The Author. The Muslim World published by John Wiley & Sons Ltd on behalf of Hartford Seminary. This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no modifications or adaptations are made. The MusliM World • VoluMe 112 • suMMer 2022 © 2022 The Author. The Muslim World published by John Wiley & Sons Ltd on behalf of Hartford Seminary. 368 of the Islamic social order and its fundamental pillar, the family. Thus the fixed maximum lengths far exceeded the average nine months, spanning from two to seven or even ten years. Yet long before the 20th century the view that pregnancy should be considered according to attested experience and the observation of nature entered the Sunni law schools to argue both for and against the reality of extended durations. Like other disciplines, classical fiqh received the impact of the Greek works on medicine and biology that were translated into Arabic. Medical knowledge entered legal discussions and gave way, by means of legal interpretation (ijtihad), to innovative views about issues like the formation and development of the human fetus. These views did not become majority but challenged established opinions within the Sunni legal schools (Ghaly 2014; Ghaly2015: 289292). Fiqh experts conceptualized extended pregnancies in connection with the belief that a child may ‘fall asleep’ in its mother’s womb and remain so for an indefinite period of time until it is awakened by a sudden traumatic experience in the life of the mother, the return of her menstrual blood, or sexual intercourse. The child may be then born or fall asleep again for another indefinite period of time. This idea is known as the “sleeping fetus” (raqid) and is still prevalent in Maghrebi societies and in areas historically under the influence of the Maliki school of law (Gilson Miller2006; Colin1998; Jansen2000). Premodern fiqh manuals - collections of fatwàs very much in particularshow that the admission of extended legal durations of pregnancy was rather effective to protect widowed, repudiated and deserted women against an accusation of adultery (zinà). Yet when patrimonial rights like maintenance (nafaqa) and the inheritance rights of the unborn were at stake the relevant doctrines were not always applied literally. Once the accustomed nine months – two years at mosthad passed since a woman declared herself pregnant, she might be pressed to give up her claim or obliged to undergo a physical examination. In those circumstances, knowledge about the admitted maximum limits was essential for her to resist pressure (Ibn `Iyad1990: 269, 27780/Serrano Ruano 1998: 44748, 45761; alWansharisi 1981, 4: 492493, 9: 227; Marín2000: 294, 508510; Colin2003: 114115, Moulin2013: 2021). Meanwhile from the first quarter of the 20th century onwards, legislators in the MENA and most GCC countries submitted the legal duration of pregnancy to the authority of medical science. Among other consequences, this process has meant the elimination of the doctrine of the “sleeping fetus” as a valid defense to adultery.1 Scientific knowledge on medicine, mostly produced in the West, arrived in law and theology faculties in the Islamic world by the second half of the 19th century (Colin2003: 116; Moulin2013: 1819, 21). During the colonial period popular perceptions about modern medicine were also changed by the spread of hospitals and clinics in the countryside and their success in treating disease. The authority of traditional practices was undermined, especially among the younger generations. The doctrine of the "sleeping fetus" created a dichotomy between physiology and the law that could no longer be admitted without creating intolerable intellectual dissonance. Clinging to the old legal opinions about extended pregnancies 1 Outside court, however, the doctrine continues to protect vulnerable pregnant women from social exclusion (Colin2003: 117118; Gilson Miller2006: 424; Fisher2008: 245247). The duraTion of pregnancy in conTemporary islamic jurisprudence (fiqh) and legislaTion: TradiTion, adapTaTion To modern medicine and (in)consequences © 2022 The Author. The Muslim World published by John Wiley & Sons Ltd on behalf of Hartford Seminary. 369 thus put religious scholars at risk of looking ridiculous and of losing their credibility (Gilson Miller2006: 421422; Colin2003: 116117, 119). In the specific case of pregnancy duration, religious scholars and national legislative bodies had sound reasons to keep pace with the societal transformations brought about by technological advance. However, as Mohamad Ghaly has observed, systematic and organized consultation with biomedical scientists has not been part of the deliberations of Muslim jurists on legal issues with bioethical implications (2015: 292). By the beginning of the 1980s, discussions about the impact of biomedicine in Islamic ethics adopted a collective form and received contributions from both Muslim religious scholars and biomedical scientists. Besides presenting technical information, the latter also put forward their own perspectives on how Islamic sacred texts should be interpreted. In this way biomedical scientis have evolved from mere “informants” to “comuftis” (Ghaly2015). This situation is in sharp contrast with premodern Muslim jurists’ discursive practices and the slow and gradual processes whereby change was operated in Islamic legal doctrine and judicial practice (Abou El Fadl, 2001: 100161). All these facts make the case of contemporary Islamic law on the maximum length of pregnancy all the more exceptional and worthy of attention to approach issues like legal change and the relationship between law, religion and science in contemporary Islamic societies. On the other hand, the rules preventing the establishment of paternity outside of wedlock - whatever the evidence of genetic testsand criminalizing extramarital relationships remain in force (SerranoRuano 2018). Legal change regarding the length of pregnancy provides a telling instance that the implementation of certain medical advances may harm Muslim women and increase gender disparities in contemporary Islamic societies.2 According to French social anthropologist Joël Colin, the doctrine of the “sleeping fetus” has traditionally provided women with a device to curb the role assigned to them by the law and a space for the social game (2003: 110). In systems where men still make most of the rules, the notion of the “sleeping fetus” offers marginal demonstration of women’s power and protects women against "the harsher injustices of a social order that places limits on their personhood". The notion has also been described as some kind of female “revenge” against their vulnerability to the punishment of adultery that testifies to the alliance between jurists and the female gender (Jansen2000; Gilson Miller2006: 424; Moulin2013:20). 3 Contemporary legislation on pregnancy seriously reduces women’s capacity to negotiate their discrimination, with consequences that may turn dramatic for them. This is well illustrated by the case of a woman in Libya who gave birth to a child 29 months after divorce. She took recourse to the doctrine of the "sleeping fetus" to attribute the child to her exhusband, but her 2 For a recent treatment of this problem focusing premarital genetic testing and fetal sex selection see Shabana2017. 3 See an amazing testimony of the kind of alliance described by Jansen in alWansharisi 1981, 4: 492493. The case occurred in Fez in 748/1347. The MusliM World • VoluMe 112 • suMMer 2022 © 2022 The Author. The Muslim World published by John Wiley & Sons Ltd on behalf of Hartford Seminary. 370 claim was rejected by the court. Instead she was judged for illicit sex on the grounds of a medical report denying that pregnancy can last that long (Benomran1995: 7578). This article deals with assessments of the accommodation of modern medical knowledge on pregnancy in contemporary fiqh and legislation. The assessments belong to contemporary Sunni fiqh experts from Saudi Arabia, Egypt, Algeria and the United States like `Abd al- `Aziz b. `Ali alGhamidi, Muhammad Sulayman alNur, Hatim alHajj, Hisham Al Shaykh and `Isà Am`iza. Some of these thinkers are also physicians like the Saudi based Muhammad Ali Albar (or alBar). Their assessments present the fiqhi norms relevant to pregnancy in the Sunni law schools followed by a research in their methodological foundations, a personal evaluation of the soundest legal view in terms of methodology and compliance with the evidence of modern medicine, and finally, a proposal for national legislative bodies to best accommodate that evidence to shari`a’s ethical and legal standards. Most of them strive to demonstrate that classical fiqh and modern medicine are perfectly compatible. They emphasize that, despite the occasional flaws in their methodologies, certain premodern fuqaha’ were particularly accurate in their estimates of either the real duration of pregnancy or the causes for the belief in extended durations. In their view, modern medical computations and findings have quite naturally come to replace the old reliance on shared experience and women’s testimony. The transition has been made easier by the lack of any specific indication in the sources of the shari`a. From the above list, the name of Hatim alHajj, an assistant professor at the Faculty of Shari`a of the Islamic American University stands out. Both he and Muhammad Sulayman alNur, question the idea of a total agreement on the minimum duration of pregnancy among premodern Muslim jurists. More interestingly, alHajj is the only author of those I have examined who makes explicit the connection between scientific evidence on embryology and genetics on the one hand and on the other, the Islamic prohibition to “mix filiations (ikhtilat alansab).” This notion has provided Muslim scholars with the main argument to explain why extramarital relationships (zinà) are forbidden, why they are subject to such harsh punishments as one hundred lashes or stoning to death and why legal paternity is not established for children born as a result. For limitations of space I leave the discussion of this part of his assessment for another occasion. Bibliography on the anthropological and ethnographical aspects of the "sleeping fetus" notion is relatively abundant. Yet, to the best of my knowledge, research on pregnancy duration from a legal historical perspective is almost lacking, especially in Western scholarship. The aim of this article is to fill that gap. I show that the examined proposals to accommodate the legal duration of pregnancy to modern medical computations are inconsistent with classical fiqh for they do not take into account that the criminalization of adultery and the denial of paternity rights for children born out of wedlock are also implied therein. As long as the latter two fields are not revised accordingly and convincingly, the contemporary fiqh and legislation on the matter will remain flawed since it has deprived women from legal protections they used to have in the premodern period. Furthermore, contemporary Islamic jurisprudence on pregnancy duration is politically motivated. Most of the abovementioned authors aim at lending religious legitimacy to the legislation adopted by their respective countries of origin. They thus provide a telling The duraTion of pregnancy in conTemporary islamic jurisprudence (fiqh) and legislaTion: TradiTion, adapTaTion To modern medicine and (in)consequences © 2022 The Author. The Muslim World published by John Wiley & Sons Ltd on behalf of Hartford Seminary. 371 example of the nationalization undergone by the shari`a in modern contexts at the level of codification, implementation and reinterpretation. The minimum duration of pregnancy according to contemporary fiqh experts `Abd al- `Aziz b. `Ali alGhamidi, associate professor at Riyadh’s Faculty of Shari`a, stresses the agreement between classical fiqh and modern medicine as regards the minimum duration of pregnancy. Premodern fuqaha’, he states, agreed on fixing the minimum duration of pregnancy at six months on the grounds of Qur’an, II 233 and XLVI, 15. They read these two verses jointly, and deducted the twenty four months, mentioned in the first verse “Mothers may breastfeed their children two complete years for whoever wishes to complete the nursing [period]…” from the thirty months mentioned in the second “…His mother carried him with hardship and gave birth to him with hardship, and his gestation and weaning [period] is thirty months…” In support of this view, al-Ghamidi mentions that the Hanbali Ibn Qayyim alJawziyya (d. 1349) wrote a monograph about the legal status of the new born baby titled Tuhfat al-mawdud biahkam almawlud in which he stated that prior to the six months, the fetus cannot survive. This fact, according to Ibn alQayyim, is proved by the evidence provided by both the Companions’ criteria – which Ibn alQayyim identifies with the shari`a– and by nature (al-tabi`a). From Ibn alQayyim’s Tuhfa alGhamidi highlights Galen’s statement that after careful observation of pregnancy, he could attest only one successful case of premature delivery at 184 nights. AlGhamidi points also to the premature birth of the Umayyad caliph `Abd alMalik b. Marwan.4 Curiously, he does not use these cases to argue for the admission of shorter durations. The six months count to decide whether the child must be attributed to the mother’s husband starts from the conclusion of marriage or from the moment the wife declares to be pregnant (alGhamidi 2009: 207209). Muhammad Sulayman alNur, an assistant professor at the Faculty of Shari`a and Islamic Studies at the University of Sharja (UAE), weighs the different arguments and counterarguments avowedly following the principles of Islamic legal methodology with the aim to undermine the said consensus. His proposal has the added advantage to discuss the matter in connection with actual legislative developments. Drawing on the Musannaf by `Abd alRazzaq (d. 827), alNur tries to reconcile all the variant traditions relevant to premature delivery. He identifies the caliphate of `Uthman as the departure point of both Muslim scholar’s consensus and the stabilization of judicial practice on the minimum gestational period (2007: 811 & n. 20). 4 Further on classical Muslim jurists’ approach to human embryology, including the relevant contribution by Ibn Qayyim alJawziyya, in Ghaly2014. The MusliM World • VoluMe 112 • suMMer 2022 © 2022 The Author. The Muslim World published by John Wiley & Sons Ltd on behalf of Hartford Seminary. 372 Al-Nur refutes the claim made by alSarakhsi (d. 1090) in his Mabsut that a hadith by Ibn Mas’ud (d. 653) on the formation and ensoulment of the embryo supports the six months minimum duration. According to alSarakhsi, ensoulment takes place at the fourth gestational month and two months later, the creation of the fetus is complete so that if it is pulled off the womb at that stage, it is considered like a fully formed human creature. For alNur, however, the hadith exclusively concerns the doctrine of the infusion of the soul at the fourth gestational month (2007: 816). To the already known historical cases of successful births at the sixth gestational month, alNur adds that the Prophet’s grandson, alHusayn, was born six months after his brother alHasan (2007: 816, & n. 22) and specifies that the Maliki Ibn `Abd alBarr (d. 1071) admitted that children born three or even five days before the completion of the sixth month should be attributed to the mother’s husband on consideration of the varying lengths of the calendar months (alNur2007: 12, n. 3336; alHajj2012: 310, n. 1).5 AlNur closes his assessment by noting that none of the adduced Qur’anic pieces of evidence provides a conclusive indication (dalala qat`iyya) that the minimum duration of pregnancy is six months; they only do so when they are read together. Likewise, none of those verses prohibits extending the breastfeeding period beyond two years. In his view, the consensus (ijma`) refers to the possibility that the minimum gestational period lasts six months rather than establishing the prohibition to affiliate a child born less than six months after marriage to the husband. The consequence is that a child born before the first six months of marriage may still be attributed to the husband. AlNur adds that none of the traditions adduced in connection with the minimum duration of pregnancy removes the possibility of a shorter length; moreover, the ijma` is tacit (sukuti) whereas some `ulama’ disagreed as to whether this kind of ijma` represents a real consensus and hence whether it amounts to a legal argument (hujja). AlGhazali (d. 1111), for example, rejected that the absence of disagreement implies agreement, arguing that more specific evidence was required to determine the views of those who remained silent; for others, the tacit consensus was a mere indication (dalil) whereas alNawawi (d. 1277) held that the minimum duration of pregnancy is an issue that has to be submitted to women’s experience (al-Nur2007: 1316; Albar1986: 436; alHajj 2012: 310). Likewise, Hatim alHajj argues that the consensus reached by the Companions did not establish that survival in case of delivery before the sixth month was impossible. The consensus endorsed rather the enhanced possibilities of survival from the sixth gestational month onwards. The confirmatory (iqrari) consensus of the Muslim jurists of subsequent generations, he adds, does not provide conclusive but only conjectural (zanniyya) evidence and may be replaced by a sounder argument. The object of their agreement is the obligation to affiliate a child born after six months of pregnancy to the mother’s husband. Obviously one can legitimately claim that a child born before that period should not be attributed to the mother’s husband in case 5 Yet other influential Malikis like `Iyad b. Musà (d. 1149) refused to accept a default of several days in the minimum six months limit and rejected attribution of the child to the mother’s husband in this case. See alWansharisi 1981, 4: 493. The duraTion of pregnancy in conTemporary islamic jurisprudence (fiqh) and legislaTion: TradiTion, adapTaTion To modern medicine and (in)consequences © 2022 The Author. The Muslim World published by John Wiley & Sons Ltd on behalf of Hartford Seminary. 373 of survival. However, it is important to keep in mind, he remarks, that the main implication of their claim is that the child born before the sixth month was not likely to survive, or lived only for a very short time, because of premature birth (naqs alkhilqa) (2012: 307311). To strengthen his point, alHajj makes reference to the opinion of Ibn Hazm (d. 1064), whose authority he accepts like that of the Sunni legal scholars. In case of preterm deliveries, the Cordoban Zahiri advised to take the shape of the baby, or the expelled fetus, into account and determine on these grounds its age, its filiation with the mother’s husband or exhusband and the validity of the most recent marriage. In this connection, alHajj reminds that survival of a premature baby for one or several days creates inheritance rights (2012: 311313). The maximum duration of pregnancy according to contemporary fiqh experts The maximum duration of pregnancy is subject to strong disagreement in classical fiqh given the lack of any relevant instruction in the Qur’an and the Prophetic tradition (alGhamidi2009: 211; Albar1986: 439; alHajj 2012: 309311). Some jurists argue on the grounds of Qur’an LXV, 4 & 6. These verses are taken as reference for deriving the legal norms on the waiting period and maintenance: “And those who no longer expect menstruation among your women - if you doubt, then their waiting period is three months, and [also for] those who have not menstruated. And for those who are pregnant, the waiting period is until they give birth…” “… And if they were pregnant, then spend on them until they give birth. And if they breastfeed for you, then give them their payment and confer among yourselves in the acceptable way; but if you are in discord, then another woman may breastfeed for the father.” Yet, alGhamidi observes, the legal opinions relevant to the maximum duration of pregnancy are basically drawn from common experience, including rare and unusual cases. He classifies those opinions into two groups: 1) those against fixing any temporal limit to pregnancy and for deciding the matter by means of interpretive effort (ijtihad) and 2) those for fixing a maximum duration. AlGhamidi connects the first point of view to an isolated transmission from Malik b. Anas (d. 795) that was accepted by a number of scholars whom he qualifies as verifiers and truthseekers (muhaqqiqin). This positive characterization anticipates alGhamidi’s own position on the subject. In the first group he includes the opinions of Abu `Ubayd alQasim b. Sallam (d. 838), Ibn Qayyim alJawziyya, and some contemporary scholars like the Shaykh Muhammad b. Ibrahim (d. 1969), the Shaykh `Abd al- `Aziz b. Baz (d. 1999) and the Shaykh Muhammad al- `Uthaymin (d. 2001) (alGhamidi2009: 211). The partisans of the first position, always according to alGhamidi, point to the lack of specific textual indications providing a readymade solution to the question. The second group encompasses divergent maximum limits: The MusliM World • VoluMe 112 • suMMer 2022 © 2022 The Author. The Muslim World published by John Wiley & Sons Ltd on behalf of Hartford Seminary. 374 Two years: This is the proposal of the Hanafis, Ibn Hanbal (d. 855) according to one of the opinions attributed to him, and Sufyan alThawri (d. 777). This position draws on the hadith of Jamila bint Sa`d who recounted that according to `A’isha (d. 678), pregnancy does not last more than two years. This view was vehemently rejected by Malik. The second argument mentioned by this group is the experience of alDahhak b. alMuzahim (d. 723) and Harm b. Hibban (d. 965) whose mothers gave birth to them after two years of pregnancy. Their third argument is a story transmitted by Sa`id b. Mansur (d. 842) according to which in times of `Umar b. alKhattab a man who had left his wife for two years reported her to the caliph because upon his return she was pregnant. When `Umar sentenced her to stoning, Mu`adh (d. 639) advised him to wait until she gave birth. Then `Umar confined her and she gave birth to a child who had already started teething. When the man saw the child he claimed him as his son. Four years: This is the Shafi’is’ opinion as well as the most widespread (mashhur) one attributed to Malik b. Anas and Ahmad Ibn Hanbal. Their argument is that in the lack of a specific textual basis, the matter is subject to occurrence (alwujud), cases of pregnancies that lasted four years having been reported. Another argument used in support of this position is `Umar b. alKhattab’s order to flog the pregnant wife of a man who had been lost for four years, implying that his decision was due to her having exceeded the four years pregnancy limit. A similar course of action was also transmitted from `Uthman, `Ali and other authorities (alGhamidi 2009: 212213; Albar1986: 436437, 439). Other durations (three, five, six, seven years; one year; nine months): Some fuqaha’ disagree with the aforementioned two and four years limit, like alLayth b. Sa`d (d. 791). He held for a maximum three years duration drawing on the case of a client of `Umar b. `Abd Allah (d. 763) who gave birth after three years of pregnancy. According to the second opinion transmitted from Malik on the matter, the limit is five years whereas some of his companions extended the duration to seven years and Abu `Umar [alShaybani] transmitted that they were six years. Both durations were acceptable for the Medinese Qur’an and hadith expert alZuhri (d. 742), whereas the Egyptian Maliki Ibn `Abd alHakam (d. 871) departed from his school in this matter and proposed one complete year at longest. The latter position was close to Ibn Hazm’s view that pregnancy cannot last more than nine months. Ibn Rushd alHafid (better known in the Latin West as Averroes (d. 1198)) commented in his Bidayat almujtahid that the relevant legal norm should rely on common experience rather than on exceptional cases (alnadir) and that Ibn `Abd alHakam and the Zahiris were closer to such criteria than the rest (alGhamidi2009: 212214; Albar1986: 438). After the above review of relevant opinions and their arguments, alGhamidi states that refusing to fix a maximum limit is the most solid (rajih) option. The rest, he claims, draw on mere stories and individual cases from which no pattern can be derived (2009: 214215). Subsequently alGhamidi rejects Ibn Hazm’s nine months limit because he finds that the Qur’an verses he adduced in his support (II, 233 and XLVI, 15) are relevant for both the minimum duration of pregnancy and breastfeeding but say nothing about the maximum duration. Eventually he calls for ascertaining the physicians’ view on the duration The duraTion of pregnancy in conTemporary islamic jurisprudence (fiqh) and legislaTion: TradiTion, adapTaTion To modern medicine and (in)consequences © 2022 The Author. The Muslim World published by John Wiley & Sons Ltd on behalf of Hartford Seminary. 375 of pregnancy before establishing the legal norms relative to the fetus (alGhamidi2009: 215216). AlNur includes the famous Qur’an exegete alQurtubi (d. 1273) in the list of proponents of the no limit position, noting the latter’s reliance on Ibn Khuwayzmindad (d. 1000). This legal opinion is identified by alNur as the first, that is to say, the best or most authoritative on the matter given the lack of a Qur’anic and a solid Prophetic textual base. He sides with the view that the maximum length of pregnancy should be determined according to common experience among women. He says this opinion was also subscribed by Ibn `Abd alBarr, alMawardi (d. 1058), Averrroes and alNawawi. For example, alMawardi argued that issues which need to be fixed and determined but have not been specified by the sacred law (alshar`) or by language must be assessed according to custom (al- `urf) and occurrence (alwujud) (alNur2007: 2030, 3637). AlNur’s mention of the relevant premodern authorities who endorse the one or the other opinion is also accompanied by that of their contemporary supporters, e.g. Muhammad alAmin alShinqiti (d. 1972) who considers the unlimited option the most solid one. Subsequently, alNur discusses the already known fixed limits specifying that today, the four years option is followed by scholars like Salih b. Fawzan alFawzan. Be that as it may, alNur emphasizes that these positions are grounded by Muslim scholars on attested experience (al-Nur 2007: 21-23). In some traditions, the four years pregnancy is described as a genetic trait shared by kin groups like the bani `Ajlan, the women of the Majishun family and even `Ali’s descendants.6 The Hanafi jurist Ibn alHumam (d. 1457) suggested that these extraordinary lengths could be explained by women’s miscalculations since absence of menstruation and delivery after four years do not mean a woman has been pregnant all this time, neither is the feeling of movement in her belly a conclusive indication of pregnancy; the movement may be due to other factors like fluid retention. Similar events are not contradicted by the known traditions (alNur2007: 2123; alHajj2012: 323). Two and three years: the Hanafis’ claim that `A’isha’s opinion relied on that of the Prophet was invalidated by Ibn Hazm (alNur2007: 2124). One year: Contemporary scholars like Mustafa Ahmad alZarqa (d. 1999), Muhammad Yusuf Musà and Yahyà `Abd alRahman alKhatib subscribe to this view, attributed to Ibn `Abd alHakam, in the conviction that one year is closer to frequent occurrence than the remaining opinions. AlKhatib holds that if a pregnant woman becomes widowed while pregnant and her pregnancy lasts until ten months or one year after his death, she must swear in order to affiliate her child to her deceased husband (alNur2007: 2426). Nine months: alNur takes special care in commenting this opinion. He refers to Abu Bakr Ibn al- `Arabi’s (d. 1148) testimony that this view had entered the Maliki school because of the influence of the “partisans of natures” (altaba'i`iyun) for whom the development of pregnancy in the womb is controlled by the seven planets. To the criticisms against Ibn Hazm’s nine months view alNur adds those of alTahawi as well as those of 6 On the belief in certain families’ genetic predisposition to extended pregnancies also see Gilson Miller2006: 421. The MusliM World • VoluMe 112 • suMMer 2022 © 2022 The Author. The Muslim World published by John Wiley & Sons Ltd on behalf of Hartford Seminary. 382 legislators have at their disposal for legal reforms to preserve a distinctive Islamic personality. As far as pregnancy duration is concerned, however, the result has been disappointing. Contemporary Islamic jurisprudence and legislation on pregnancy are avowedly inspired by classical fiqh from which they derive their main source of legitimacy. However, they are not consistent with the premodern interpretive framework in which admission of pregnancy as evidence of zinà, and the rules governing paternity were conceived and legitimized. The maximum duration of pregnancy has been shortened to one year whereas in most family codes, the minimum limit hasn’t been modified despite the evidence that survival of the fetus is possible before the sixth gestational month. Indeed, some isolated classical opinions did already point to that very same possibility. Meanwhile, nonmarital relationships remain generally considered a punishable crime that can be established, among other means, by pregnancy. The capacity to establish biological paternity with full accuracy by means of genetic testing has not lead to a change in either the majority fiqh position, or family legislation, on filiation: nonmarital children continue to be deprived of paternity rights and their care, upbringing and maintenance continue to fall on their mothers’ backs, not to mention the social stigma they all have to carry. Last, but not least, full adoption of parentless children continues to be forbidden. For certain groups of people like women and their children, the flexible chronological umbrella that once covered pregnancy has now turned towards increased exposure to illegitimacy, social stigmatization, and conviction for zinà. Contemporary Islamic law and legal systems have the capacity to curb the cases of injustice, inequity and discrimination brought about by contemporary social, economic and legal conditions. A new and consequential evaluation of classical Islamic law on filiation, nonmarital relationships, and adoption is called for. However antiintellectual Al Shaykh’s position may look, it seems to be the only one capturing the essence of the contradiction inherent in submitting the duration of pregnancy to medical computations on the one hand and keeping the pretension to respect the logic of classical fiqh on filiation, on the other. Yet this congruence is at the cost of the evident apology for the current Saudi position, where both gestational periods but also the punishment of zinà are still subject to classical fiqh, with flogging and stoning applied with certain frequency (Peters2005: 148153). If alNur, alHajj and Albar hold for reducing the minimum legal duration of pregnancy it is to submit the ascertainment of a premature baby’s age to modern medicine even if this means ignoring the mother’s word or her husband’s readiness to acknowledge the baby as his. Albar’s resentment against a combination of Islamic and allegedly nonIslamic Western laws judged too advantageous for women, does not give much hope that his call for a transnational standardization of the laws governing the duration of pregnancy is meant to benefit women in any significant way. AlHajj’s(2012: 325335) insinuation that prospective experimental tests will demonstrate that, from a biological point of view, the premodern notion of ikhtilat alansab and the belief in multiple fecundation were not completely unfounded is so obvious a tactic to evade the task as it is an unconvincing argument. The duraTion of pregnancy in conTemporary islamic jurisprudence (fiqh) and legislaTion: TradiTion, adapTaTion To modern medicine and (in)consequences © 2022 The Author. The Muslim World published by John Wiley & Sons Ltd on behalf of Hartford Seminary. 383 Some creative and more promising attempts to fill this gap regarding filiation are already under way at various jurisprudential, legislative and judicial levels9. Until the criminalization of nonmarital intercourse is not reviewed, however, the above mentioned inconsistencies will legitimately continue to foster claims that contemporary family legislation reinforces the gender bias already present in classical fiqh and sounds too conspicuously to selecting only those parts of the legal tradition and of modern medicine that are most detrimental for them. Acknowledgments This publication was made possible by National Priorities Research Program grant NPRP814786053 from the Qatar National Research Fund (a member of the Qatar Foundation). The statements made herein, and any errors, are solely my responsibility. I wish to thank Ayman Shabana and Mohammed Fadel for their suggestions and comments to earlier drafts. The legal assessments examined are drawn from a number of studies (see the bibliography below) selected by means of the Islamic Medical and Scientific Ethics Database of the Islamic Bioethics Project (https://ibp.qatar.georgetown.edu/imse-database-and-collection/) led by Ayman Shabana at the Georgetown University School of Foreign Service in Qatar. I wish to thank Hibaq Nur, Research Assistant and Translator in the Islamic Bioethics Project at the Georgetown University School of Foreign Service in Qatar, for her help in navigating the database and her bibliographical suggestions. Bibliography Abou El Fadl, Khaled (2001). Rebellion & Violence in Islamic Law. Cambridge: Cambridge University Press. AbuSahlieh, Sami Awad Aldeeb (2008). Religion et droit dans les pays arabes. Bordeaux: Presses Universitaires de Bordeaux. AbuSahlieh, Sami Awad Aldeeb (2015). “Violence et nonviolence chez les musulmans,” 36 pages. Online at http://samialdeeb.com/frenc hviole nceetnonviole ncechezlesmusul mans2008/ downloaded on August 10 2017. Al Shaykh, Hisham bin ʻAbd alMalik bin ʻAbd Allah bin Muhammad (2010). Athar altaqaniyya alhaditha fi lkhilaf alfiqhi. Riyadh: Maktabat alRushd. Albar, Mohammed Ali (1407/1986). The Duration of Pregnancy in Medicine, Law and Shari`ah. In Bulletin of Islamic Medicine, vol. 4: Proceeding of the Fourth International Conference on Islamic Medicine No. V, Islam and Psychiatry and AlFiqh alTibbi, pp. 436441. Kuwait: Islamic Organization for Medical ScienceKuwait Foundation for Advancement of Sciences. Am`iza, `Isà (20052006). AlHaml, irthuhu, ahkamuhu wasuwaruhu almu`asira bayna lshari`a walqanun, Mudhakkira muqaddama linayl shahadat alMajistir fi l- `ulum alislamiyya. Algiers: Jami`at alJaza’ir, Kulliyat al- `ulum alislamiyya, qism alshari`a. Benomran, Fawzi (1995). Sleeping foetus? Medicolegal consideration of an incredibly prolonged gestational period. Medicine, Science and the Law, 35(1): 7578. Claus, Gilbert J.M. (1997). “Grossesse, naissance et enfance. Us et coutumes chez les Bédouins Ghrib du Sahara Tunisien”. In Conception, naissance et petite enfance au Maghreb, pp. 181208. AixenProvençe: 9 See the examples from Algeria, Tunisia and Morocco reviewed in SerranoRuano 2018. Also see Mohammed Fadel’s contribution to this issue. The MusliM World • VoluMe 112 • suMMer 2022 © 2022 The Author. The Muslim World published by John Wiley & Sons Ltd on behalf of Hartford Seminary. 384 Institut de recherches et d’études sur le monde arabe et musulman. Online at http://books.opene dition. org/irema m/2872. Colin, Joël (1998). L’enfant endormi dans le ventre de sa mere. Étude ethnologique et juridique d’une croyance au Maghreb. Perpignan: Presses Universitaires. Colin, Joël (2003). Au Maghreb un contrepouvoir du côté des femmes: l’enfant endormi dans le ventre de sa mère. L’Année sociologique, 53(1): 109122. Dhiyabi, Badis (2010). Hujjiyat alturuq alshari`iyya wal- `ilmiyya fi da`awi alnasab `ala daw’ qanun alusra aljaza’iriyya, Iqrar, bayyina, talqih istina’i, albasma alwirathiyya (AND), nizam tahlil aldam (ABO). `Ayn Malila (Algeria): Dar alhuda. Fisher, Nils (2008). Review of Bossaller, Anke (2004). ‘Schlafende Schwangerschaft’ in islamischen Gesellschaften. Würzburg: Ergon Verlag. Die Welt des Islams 48(2): 245247. Fortier, Corinne (2007). Blood, Sperm and the Embryo in Sunni Islam and in Mauritania: Milk Kinship, Descent and Medically Assisted Procreation. Body & Society 13(3): 1536. Ghaly, Mohammed (2014). Human Embryology in the Islamic Tradition. The Jurists of the Postformative Era in Focus. Islamic Law and Society 21: 157208. Ghaly, Mohammed (2015). Biomedical Scientists as CoMuftis: Their Contribution to Contemporary Islamic Bioethics. Die Welt des Islams, 55: 286311. AlGhamidi, Abd al- `Aziz b `Ali (1430/2009). Aqall muddat alhaml waaktharuhu bayna alfiqh waltibb waathar dhalik fi mirathihi. Majallat al- `Adl 43 (Rajab/JuneJuly): 199224 Gilson Miller, Susan (2006). “Sleeping Fetus”. In Joseph, Suad (Ed.), Encyclopedia of Women & Islamic Cultures, Family, Body, Sexuality and Health. Vol. 2, pp. 421424. Leiden: Brill. AlHajj, Hatim (2012). Athar altatawwur altibbi ʻala taghyir al-fatwà walqaḍaʼ. Cairo: Dar Bilal b. RabahDar Ibn Hazm. Ibn `Iyad, Muhammad (1990). Madhahib alhukkam fi nawazil alahkam lilqadi `Iyad wawaladihi Muhammad, ed. Mohammed Bencherifa. Beirut: Dar alGharb alIslami. Jansen, Willy (2000). Sleeping in the womb: Protracted pregnancies in the Maghreb. The Muslim World 1 & 2: 218237. Marín, Manuela (2000). Mujeres en alAndalus, Madrid: CSIC. Moulin, Anne Marie, ed. (2013). Islam et révolutions médicales. Le Labyrinthe du corps. MarseilleParis: IRD et Karthala. AlNur, Muhammad Sulayman (2007). Muddat alhaml bayna lfiqh waltibb waba`d qawanin alahwal alshakhsiyya almu`asira. Majallat alShari`a walDirasat alIslamiyya, year 22, issue 70 (September): 271344. Pagination in the online pdf version of this article I have used does not coincide with that in the printed version. Peters, Rudolph (2005). Crime and Punishment in Islamic Law: Theory and Practice from the 16th to the 21st century, Cambridge: Cambridge University Press. SerranoRuano, Delfina (1998). La actuación de los jueces en los procesos judiciales, Spanish translation and study of Muhammad Ibn `Iyad, Madhahib alhukkam fi nawazil alahkam. Madrid: CSICAECID. SerranoRuano, Delfina (2018). Redefining Paternal Filiation through DNA Testing: Law and the Children of Unmarried Mothers in the Maghreb. Journal of Middle East Women’s Studies, 14(3): 292313. Shabana, Ayman (2017). Empowerment of Women Between Law and Science. Role of Biomedical Technology in Enhancing Equitable Gender Relations in the Muslim World. Hawwa 15: 193218. AlWansharisi, Ahmad (1981). AlMi‘yar almu‘rib waljami‘ almughrib ‘an fatawi ahl Ifriqiya walAndalus walMaghrib, ed. Muhammad Hajji. Rabat: Wizarat alawqaf walshu’un alislamiyya, 13 vols.