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Abortion in Islamic Law and Its Intersection with Human Rights

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Abortion in Islamic Law and Its Intersection with Human Rights Journal of Islamic Law Studies Volume 3 Number 2 Article 1 9-30-2020 ABORTION IN ISLAMIC LAW AND ITS INTERSECTION WITH HUMAN RIGHTS Andini Naulina Rahajeng Universitas Indonesia, [email protected] Follow this and additional works at: https://scholarhub.ui.ac.id/jils Part of the Islamic Studies Commons, and the Religion Law Commons Recommended Citation Rahajeng, Andini Naulina (2020) "ABORTION IN ISLAMIC LAW AND ITS INTERSECTION WITH HUMAN RIGHTS," Journal of Islamic Law Studies: Vol. 3 : No. 2 , Article 1. Available at: https://scholarhub.ui.ac.id/jils/vol3/iss2/1 This Article is brought to you for free and open access by the Faculty of Law at UI Scholars Hub. It has been accepted for inclusion in Journal of Islamic Law Studies by an authorized editor of UI Scholars Hub. Journal of Islamic Law Studies (JILS) Volume 3 No. 2 (2020) ABORTION IN ISLAMIC LAW AND ITS INTERSECTION WITH HUMAN RIGHTS Andini Naulina Rahajeng Fakultas Hukum Universitas Indonesia Jl. Prof. Mr Djokosoetono, Pondok Cina, Beji, Depok, Jawa Barat 16424 [email protected] Abstract: Abortion was legally restricted in almost every country by the end of the nineteenth century. Abortion is a controversial topic due to its involving with fundamental morals, ethics, and religious concerns. Legal restrictions on abortio n do exist throughout Islam jurisprudence, though allowed only with emergency circumstances. Nowadays, people become more aware of abortion as a part of human rights, as it is considered female autonomy over her body and part of reproductive rights. Abortion considered should be legally allowed and accessible to women. This paper will describe the construction of abortion in Islamic Law and the awareness of abortion as human rights. Keywords: Abortion, Islamic Law, Human Rights. Abstrak: Aborsi dibatasi oleh hukum di hampir setiap negara pada akhir abad ke-19. Aborsi adalah sebuah topik kontroversial karena melibatkan moral, etika, dan masalah keagamaan yang mendasar. Pembatasan hukum tentang aborsi memang ada di seluruh yurisprudensi Islam, walaupun hanya diizinkan dalam keadaan darurat. Saat ini, masyarakat menjadi lebih sadar tentang aborsi sebagai bagian dari hak asasi manusia, karena dianggap sebagai suatu otonomi perempuan atas tubuhnya dan bagian dari hak reproduksi. Aborsi dianggap harus diizinkan secara hukum dan dapat diakses oleh wanita. Makalah ini akan menggambarkan konstruksi aborsi dalam Hukum Islam dan kesadaran aborsi sebagai hak asasi manusia. Kata Kunci : Aborsi, Hukum Islam, Hak Asasi Manusia. A. Introduction 1. Issue Background For some individuals, abortion is a controversial topic. Abortion involving fundamental moral, ethics, and religious concerns. The failure of many countries to confront the abortion issue may be primarily because religious and moral obstacles prevent discussion of the question. Talking about abortion considered as something taboo. Nowadays, the act abortion is not merely a medical or public health problem, but rather a social problem associated with the understanding of freedom (freedom or liberalism) adopted by a society.1 There’s an endless debate about whether abortion is considered as murder and amenable to governmental intervention and 1 Nelly Yusra, “Aborsi Dalam Perspektif Hukum Islam” Marwah: Jurnal Perempuan, Agama dan Jender Vol 11 No 1 (2012), pg 2 Centre of Islam and Islamic Law Studies Lembaga Kajian Islam dan Hukum Islam Faculty of Law, Universitas Indonesia 1 Journal of Islamic Law Studies (JILS) Volume 3 No. 2 (2020) criminalization. The party whom against it, claim a superior right of privacy and/or equality exists under the Constitution, vesting in a woman the right to decide activities and actions that affect her physical corpus.2 The decriminalization of abortion also one of the point, which removing specific criminal sanctions against abortion from the law, and changing the law and related policies and regulations to achieve (1) not punishing anyone for providing safe abortion, (2) not punishing anyone for having an abortion, (3) not involving the police in investigating or prosecuting safe abortion provision or practice, (4) not involving the courts in deciding whether to allow an abortion, and (5) treating abortion like every other form of health care.3 While on the other hand, the claimed interest of a State to protect the fetus is impliedly based on the concept of “morality” or “natural law,” specifically on the premise that feticide is violative of the basic code of conduct of societal norms. During 2010–2014, an estimated 56 million induced abortions occurred each year worldwide. This number represents an increase from 50 million annually during 1990–1994, mainly because of population growth. As of 2010–2014, the global annual rate of abortion for all women of reproductive age (15–44) is estimated to be 35 per 1,000, which is a reduction from the 1990–1994 rate of 40 per 1,000. The estimated global abortion rate as of 2010–2014 is 35 per 1,000 for married women and 26 per 1,000 for unmarried women.4 Islam is the second-largest religion in the world. 57 countries are official members of the Organisation of the Islamic Conference (OIC). Muslims comprise close to half of all Africans, one-fourth of Asians and growing numbers of Europeans and Americans, and represent great variation across racial, ethnic, linguistic and geographic lines. While all Muslims share certain core beliefs, official and practised Islam manifests itself are held in different ways as it intersects with local cultures, traditions, histories and politics. The diversity can be seen in 2 Barbara Pfeffer Billauer, “Abortion, Moral Law, And The First Amendment: The Conflict Between Fetal Rights & Freedom of Religion” William and Mary Journal of Women and the Law Vol 23 Issue 2 (Winter, 2017), pg 1 3 Merge Berer, “Abortion Law and Policy Around the World: In Search of Decriminalization” Health and Human Rights , Vol. 19, No. 1 (June 2017), pg 14 4 Guttmacher Institute, “Induced Abortion Worldwide” https://www.guttmacher.org/fact- sheet/induced-abortion-worldwide accessed November 26th 2019. Centre of Islam and Islamic Law Studies Lembaga Kajian Islam dan Hukum Islam Faculty of Law, Universitas Indonesia 2 Journal of Islamic Law Studies (JILS) Volume 3 No. 2 (2020) different countries’ abortion laws and practices. Tunisia, for example, reformed its abortion law before France and the USA, is socially acceptable with provided free services through the public healthcare system and pregnancy. Legal restrictions on abortion do exist throughout the Muslim world which most are not due to Shariah, but to antiquated colonial texts which are the basis for abortion laws in the majority of countries. Islamic law, or Qur'anic law, is called Shariah, and generally governs family law in Muslim countries. The Holy Qur'an is the primary authority for Muslims. Basically, Islam is a way of life. Other aspects of life are governed by the civil laws of the various Islamic states. Islam looking abortion as a crime, the commission of which is prohibited to the Muslim because it constitutes an offense against a complete, live human being. Almost all of Muslim scholars and authorities regard ethical dilemmas surrounding abortion as jurisprudential topics.5 But with the spread of liberalism, capitalism, and/or individualism ideology, people become aware and see abortion as one of human rights or women right. Safe abortion should be legal and be accessible, which in most country likely not happen due to the law. Restricting access to safe abortion countries violate women’s rights, especially the Article 25 of the United Nations' Universal Declaration of Human Rights states that "Everyone has the right to a standard of living adequate for the health and well- being of himself and of his family, including food, clothing, housing and medical care and necessary social services." 2. Problem Identification, Research Limitation, and Research Method This research focus on discussing how abortion is constructed in Islamic Law and the awareness of abortion as a human rights. Initial problem that is popped up and will be assessed through the research is the perspective gap between the morality and allowance of abortion that triggered endless dialectical discourse among diverse layers of community around the world. In order to set a clear border of research limitation, this research will only analyze abortion in Islamic Law and 5 Kathleen A. Portuán Miller, “The Other Side Of The Coin: A Look At Islamic Law As Compared To Anglo-American Law—Do Muslim Women Really Have Fewer Rights Than American Women?” New York International Law Review Vol. 16 (2003), pg 1 Centre of Islam and Islamic Law Studies Lembaga Kajian Islam dan Hukum Islam Faculty of Law, Universitas Indonesia 3 Journal of Islamic Law Studies (JILS) Volume 3 No. 2 (2020) abortion as human rights. Conduct of this research is based on literature and press- based sources research. This research will provide an explanation abortion in Islamic Law perspective, abortion as a form of human rights, and how abortion is ruled. This research aims to provide an alternative perspective by providing analysis of abortion from Islamic Law perspective and abortion as human rights. It is hoped that this research, with the synthesis of the debate, would produce theoretical basis to bridge the gap between each of the perspectives. B. Discussion 1. Abortion in Islamic Law Perspective For both women and physicians who know abortion can be legally performed, stigma was a notable barrier to accessing and providing safe care. In Ghana, abortion is stigmatized for a number of reasons, including the high value placed on motherhood and social sanctions against premarital sexual relationships. Importantly, influential Christian and Muslim communities serve as drivers of societal opinion on such matters. Conservative interpretations within both religious groups consider abortion immoral. Although, particularly within Islam, a wide range beliefs regarding the permissibility of abortion early in pregnancy exists.
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