Paying Diyah of aborted fetus
Fatwa No: 327433

Question

I made the premature and ignorant decision to have an abortion. I am so disgusted with myself that I cannot even stomach food. Both my husband and myself made the stupid decision. The fetus was aborted around 40-45 days. I took a medication that killed the fetus before it came out. Then a few days later I took a different medication that passed the fetus. It was both my and my husband's ignorant decision to abort it. We have both repented for it, and we will continue to repent Allaah willing. We know that we have to pay Diyyah (blood money), and we know that it is 1/10 of the mother's Diyyah and that I will not receive anything since it is my fault.
1. Do both I and my husband split the payment of the Diyyah given that we both made the decision?
2. My entire family (maternal side) is non-Muslim except for one sister. So if my mother and brother are not Muslim, do they still receive the Diyyah? And if not, then who receives it?
3. Do we still have to do the expiation after we pay the diyyah or not? If yes, are we to fast for two months or feed sixty needy person or both? This is the biggest regret of our lives, and we just want to make it right. We want to perfectly repent for this huge haram mistake. Please help us by making this clear for us.

Answer

All perfect praise be to Allaah, The Lord of the worlds. I testify that there is none worthy of worship except Allaah and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

According to the view that we consider to be the most preponderant at Islamweb, aborting the fetus is not permissible, even if the fetus is at the Nutfah stage (mixed drop of the male and female water).

Ad-Dardeer  may  Allaah  have  mercy  upon  him said in his commentary on Khaleel, “It is not permissible to remove the semen from the womb, even before forty days. If the soul is breathed into the fetus, then it is prohibited by the consensus of the scholars.

Therefore, if you did not have a valid excuse for carrying out this abortion, then both you and your husband must hasten to repent. To learn about the conditions of repentance, please refer to fatwa 86527.

If you are the one who carried out the abortion without your husband, then you are the one obliged to pay the Diyah of the fetus, and your husband, though he is sinful for sharing in the decision, is not obliged to pay part of the Diyah as he is not the one who carried out the abortion.

The Fiqh Encyclopedia reads:

There is no difference of opinion among the scholars that directly transgressing against others is one of the strongest causes that renders one a guarantor (i.e. responsible for paying the Diyah). They also agreed that, in general, if the one who carried out the action and the one who caused it both agreed (to take the action), then the ruling applies to the one who carried out the action, though they (the scholars) differed on some details. The rule is: If the cause and the actual undertaking are combined, or deceit and undertaking are combined, then the undertaking comes first.

There is a difference of opinion among scholars regarding the obligation of expiation, but in order to be on the safe side, it is better to expiate, as we have already highlighted in fatwa 128722.

Your non-Muslim relatives have no share in this Diyah, as there is no inheritance between a Muslim and a non-Muslim due to the hadeeth by Usaamah ibn Zayd  may  Allaah  be  pleased  with  him in which the Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) said, “A Muslim does not inherit from a non-Muslim, and a non-Muslim does not inherit from a Muslim.” [Al-Bukhari and Muslim]

Your Muslim sister is the maternal aunt for your child, so she is one of its Thawul Arhaam (relatives who are related to it through one or more female links); and Thawul Arhaam – according to the scholars who are of the view that they inherit – do not inherit except if there is no other heir who has an allotted share or who inherits by Ta’seeb (by virtue of having a paternal relation with the deceased and not having an allotted share, so they get what is left after the allotted shares have been distributed).

For more benefit, please refer to fataawa 85558 and 102388.

Allaah knows best.

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