Women’s Reproductive Rights in the Islamic Jurisprudence

Women’s Reproductive Rights in the Islamic Jurisprudence

By Dewanti Lakhsmi Sari
Melahirkan merupakan salah satu penyebab kematian nomor satu bagi wanita, dan dalam kasus ini Indonesia menempati peringkat tertinggi, yaitu nomor satu di antara negara-negara di Asia Tenggara, dan nomor empat di
Asia Pasifik. Penulis mencoba melihat hak menolak bagi wanita untuk melahirkan dari sudut pandang hukum Islam.

Islam exists to protect and free women from a life of torture. The Koran gives both females and males the same rights.
Since the beginning, the Koran has had the intention of treating parents well, especially our mothers. The added emphasis of respect towards our mothers is a result of their experience of pregnancy and childbirth. This is similar to that mentioned in the Koran:“And we have enjoined on man (to be good) to his parents: in travail upon travail did his mother bear him, and in years twain was his weaning: (hear the command), “Show gratitude to Me and to thy parents: to Me is (thy final) goal” (Luqman, 31:14).The verse above is associated with the reproductive health of women, which also forms a part of women’s rights. As we all know women’s rights are a part of human rights. From here, we can see the importance in the need for discussion within the wider community of the problems associated with reproductive health and women’s reproduction rights. Discussing issues like these, also means working on humanitarian problems. What is ironic, is, that there are many cases where women have not received the same rights, or, are able to carry out the same behaviors, as those enjoyed by men. Women tend to still be pushed aside and considered second-class citizens to men. But, at the same time, they must carry out duties and support their households (husband and children). This fact can be witnessed everywhere, especially in villages and kampungs (traditional Indonesian village/quarter). Social events and activities are also evidence to the large number of cruelly treated women in
Indonesia.
Violence against women continues to this day and is carried out everywhere, in a variety of ways including physical, mental and sexual violence. Situations of violence like these increase the seriousness and endanger the reproductive functions and bodies of females. An international report states that every year more than 500,000 women die as a result of pregnancy or childbirth, and 70,000 women die as a result of abortion or miscarriage. Seven million babies die every year, as a result of the mother being physically unable, or, as a result of a shortage in obstetric check ups (see Women’s rights, A guide to UN Conventions Concerning Women’s Rights, from the Organisation Jurnal Perempuan, 2001).This data explains how very brittle the susceptibility of women’s reproductive health is, and is thus closely intertwined with the reproductive rights of women. The core of all female problems is the struggle for women’s rights, which, at present is unequal. On a social level, the position of women is generally not considered to be useful, while characteristics such as power and strength tend to be equated with males (patriarchic). Now to look at the association between the reproductive rights of women and Islam, the author will try to explain the view of the holy Koran. This will be done methodologically with the use of fiqh, using the comparison of interpretations by Islamic Ulama and kaidah ushul fiqh, in an attempt to consider the problems associated with female reproduction.

The right to enjoy a sexual relationship

Human beings, aside from being intelligent creatures, are also sexual creatures. Sexual activity is a natural instinct of every human being. Within the teachings of Islam, all instincts of mankind are valued and respected. Sexual instinct should thus be channeled and not curbed. The curbing of ones instincts will increase negative effects, not only concerning a person’s body, but also ones mind and soul.Marriage usually includes a sexual relationship. The definition of marriage varies in accordance with trends and the respective couples view on it. Some people say that marriage is the unification of a male and female and validated by the law. In fiqh, the majority of fiqh experts define marriage as a male’s right over the female’s body for sexual enjoyment. Although the language can vary, there is an agreement among the majority of Ulama that the covenant of marriage gives ownership to the male to obtain enjoyment from the body of his wife. This is because there is a general agreement that the male is the owner of sexual happiness .Islam exists to protect and free women from a life of torture. The Koran gives both females and males the same rights. Women have the right to treat men with nothing but goodness. We can thus use this view as a starting point, to formulate marriage as a legal promise, that gives both males and females equal sexual rights.The right to reject sexual relationsBased on equality and justice for both men and women, the problem of a sexual relationship can occur when the husband refuses to serve the sexual needs of his wife. Ibnu Abbas has said “ I like to dress up for my wife just as she likes to dress up for me” . This expression has the meaning that a husband and wife need to respectively give and receive, in a peaceful and loving atmosphere.

 

The right to reject pregnancy

Pregnancy on the one hand can form happiness for the wife, but on the other hand, it may also be something that has not been wished for. Aside from whether a pregnancy has been wished for or not, the Koran says that women who are pregnant are always in a condition of weakness. The level of weakness becomes greater at the time of childbirth. Professor Ida bagus Gde Manuaba, asserts that women experience many problems that can disrupt their health during pregnancy, among them are, morning sickness, leg cramps, varicose veins, fainting, and leg swelling .It must be understood that childbirth forms a very critical point in a woman’s life. Risks of fatality exist and can be caused by a variety of factors. The risks women undergo during pregnancy and childbirth, can only be felt by women themselves, as is only women who possess these reproductive organs. The two risks most commonly heard of are bleeding and miscarriage. How wise the prophet was when he said: “there are seven possibilities to achieve martyrdom aside from dying in a war, these include, people that die as a result of poisoning, those that drown in water, those that fall ill with a virus, those that have leprosy, those that are burnt in a fire, those that are buried by scaffolding and those that die in childbirth” (hadith narrated by Abu Dawud, an-Nasai, Ibn Majah and Ibn Hibban, see al-Mundziri, at-Targhib wa at-Tarhib min al-Hadits asy-Syarif, II/335).The prophet thus gives women who die in childbirth a guarantee into heaven. Their position in the face of God, is the same as that of soldiers in fields of war, fighting against their enemies. The prophet’s statement mentioned above is no different from the high value placed upon women who die as a result of childbirth. But, because many people still see dying a martyr as gaining a great amount of merit and the guarantee into heaven, those who are pregnant tend not to feel like they must give wholehearted care to their pregnancy. This is clearly a foolish idea. Results of expert research show that the position and reproductive health of women during pregnancy is very complicated and thus childbirth is a primary killer of all fertile women. The situation of maternal mortality places Indonesia as the highest ranking country among countries of
Southeast Asia, and fourth highest in the Asia Pacific.
The increase in this problem means we need a deeper knowledge and a greater balance between men and women, so that women are able to reject pregnancy. What’s more, women also have the right to make the decision of how many children they wish to have. No person can deny that inside the stomach of a pregnant woman is where a child grows and develops and while males do play a role in the fertilization process, it is the female who must experience the problems associated with childbirth. There is a controversy concerning who has the right over the child. The majority of Fiqh experts believe that children are the responsibility of both the father and the mother; as a child is the product of both parents. Because of this, to decide when to have children and how many children to have should become the right of the wife, but must be discussed by both parents. From here, we see the possibility to increase the decision-making capacity for wives and mothers, meaning their susceptibility to illness or maternal mortality at the time of pregnancy or childbirth, can be reduced.The prevention of a woman becoming pregnant can be carried out in a number of ways and by use of a number of instruments, regulated by the family planning program. This can be by way of periodic prohibition or with other forms of contraception. With regards to the use of contraception, the wife has the right to decide what form of contraception she will use, in accordance with her health condition. It is thus logical that she also has the right to obtain information and an honest explanation from medical experts concerning her condition and choice of contraception. When she does not have any knowledge concerning contraception devices the doctor has an obligation. 

The Right To Abortion

The use of contraception and other methods to prevent pregnancy, cannot guarantee a woman that she will not fall pregnant. The choice for life (to become pregnant) or not, lays in the hands of God. An unwanted pregnancy (due to a variety of factors) can happen and these days happens on a regular basis. In regards to this situation then, can a woman cause a disruption/miscarriage to her pregnancy?As a principle, Islam prohibits in all forms, the act of damaging, injuring or killing other human beings. The Prophet has said:“Do not cause damage (endanger) upon ones self or others”. In a verse of the Koran a similar statement has also been made. Yet, still in our lives we are faced with difficult choices. The issue of abortion is indeed one of these difficult choices. To abort a fetus in the womb can mean killing a living spirit, but to neglect the continuation of life inside ones uterus for whatever reason, can result in suffering or worse, still death to the mother.In regards to this problem, fiqh offers a number of choices. Firstly Fiqh Ulama agree that abortion cannot take place after the fetus is 120 days (4 months). A fetus that is 120 days old, in their view, is already a full human being. Many views concerning abortion of the fetus (before 120 days) do not consider this abortion but murder. While on the contrary, Islamic experts hold a very pluralistic view concerning abortion, before the time mentioned above. Ulama concerning this issue base their view on al Mukminun verse 12-14:Man we did create from a quintessence (of clay); Then we placed him as (a drop) sperm in a place of rest, firmly fixed; then We made the sperm into a clot of congealed blood; then of that clot we made a (fetus) lump; then We made out of that lump bones and clothed the bones with flesh; then We developed out of it another creature. So blessed be God, the Best to Create!”.This verse positions the formation of mankind into three categories: nutfah, ‘alaqah, and mudghah. A more lax stance on this issue has been put forward by al Hashkafi bermazhab Hanafi. Abortion in his opinion can be carried out before 120 days, whether there is a valid reason or not. Al Karabisi from Mazhab Syafi’l, like that noted by al Ramli in Nihayah al Muhtaj, only agrees with abortion when it is still in the shape of when the sperm first meets the egg (before fetus has begun to develop). A more strict view can be found by al-Ghazali from mazhab Syafi’i. He forbids abortion from the time of fertilization. This opinion is also that of the majority of mazhab Maliki followers (school of thought concerning Islamic law), ibnu Hazm al Zhahiri and a portion of Syi’ah. For as long as abortion has been investigated through fiqh literature, there tends to be an agreement of behalf of the Ulama, without looking at the age of the fetus, that abortion can be carried out if the fetus during pregnancy dangers or threatens the life of the mother, and of course that this also has been assured by a doctor or medical expert. This view shows that the safety of the mother is put in front of the safety of the unborn fetus. Fiqh views the death of the fetus as a smaller risk, than that of the death of the mother, because the mother is the originator of the baby or fetus; the mother is already in existence. The mother also has a number of obligations. While the fetus or baby is inside the womb, although it does already exist, it does not represent an obligation to other humans “so if a dilemma occurs, it (the fetus/unborn baby) is considered the victim with the smaller risks.” The view of the fiqh experts above, concerning the motives of abortion, appears to be limited by health and medical indicators. Other motives like social indicators including economic, political and psychological have not yet been given an extensive explanation. But, it is interesting when we monitor that Ulama from the Mazhab Hanafi train of thought, allow abortion without requiring any specific reasoning.Finally, one issue that needs to be emphasized in the relationship between humans is the importance of a relationship based upon gender equality. Islam is a just religion, a religion that rejects all forms of discrimination and all forms of violence. We are born to build and uphold the supreme principles of mankind. All of the prior constructed thinking, concepts and rules in life, should be formulated by the Muslim community intelligently and then applied and monitored to their respective social lives. 

2 Responses

  1. i am writing my project on a critical appraisal of marriage and divorce in islamic jurisprudence but short of materials. pls i need your help by providing me with materials

  2. thanks for the ones already supplied

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