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

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 case-study, 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 non-marital 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 pre-modern period.