THE LEGAL FRAMEWORKS OF ISLAM AND PAKISTAN

COMPARE AND CONTRAST WITH THE

INTERNATIONAL HUMAN RIGHTS INSTRUMENTS
REGARDING THE RIGHTS OF THE UNBORN CHILD

By
MUHAMMAD FAIZAN RAZA
2019-GCUF-03128

Thesis submitted in partial fulfillment of

The requirements for the degree of

Bachelor of Laws
(LL.B)

DEPARTMENT OF COLLEGE OF LAW

GOVERNMENT COLLEGE UNIVERSITY, FAISALABAD

2024

1
2
 DEDICATION
This thesis is dedicated to my parents, family and teachers.
For their endless love, support and encouragement

3
 DECLARATION
The work reported in this thesis was carried out by me under the supervision of
Dr. Fozia Naseem, Assistant Professor, Department of College of Law, Government
College University Faisalabad, Pakistan.
I hereby declare that the title of thesis “THE LEGAL FRAMEWORKS OF
ISLAM AND PAKISTAN COMPARE AND CONTRAST WITH THE
INTERNATIONAL HUMAN RIGHTS INSTRUMENTS REGARDING THE
RIGHTS OF THE UNBORN CHILD” and the contents of thesis are the product of my
own research, and no part has been copied from any published source (except the
references, standard of genetic models / protocols etc). I further declare that this work has
not been submitted for award of any other degree/diploma. The University may take
action if the information provided is found inaccurate at any stage.

___________________
Muhammad Faizan Raza
2019-GCUF-03128

4
 CERTIFICATE BY THE RESEARCH SUPERVISORY
COMMITTEE
It is certified that the contents and form of thesis submitted by Muhammad Faizan Raza,

Registration No. 2019-GCUF-03128 has been found satisfactory and in accordance with
the prescribed format. We recommend it to be processed for the evaluation by the
External Examiner for the award of degree.

Name:…………………………………….

Signature of Supervisor ………………….

Designation with stamp…………………..

Member of Supervisory Committee

Name:…………………………………….

Signature…………………………………

Designation with stamp………………….

Member of Supervisory Committee

Name:…………………………………….

Signature…………………………………

Designation with stamp…………………

Chairperson

Signature with stamp…………………..

Dean / Academic Coordinator

Signature with stamp…………………..

5
 Contents
DEDICATION...................................................................................................................iii

DECLARATION...............................................................................................................iv

CERTIFICATE BY THE RESEARCH SUPERVISORY COMMITTEE...................v

ABSTRACT.......................................................................................................................vii

CHAPTER 1.........................................................................................................................1

INTRODUCTION................................................................................................................1

1.1 Introduction and the problem.....................................................................................1

1.2 Review of literature....................................................................................................2

1.3 Aims of the research...................................................................................................4

1.4 Methodology and Sources..........................................................................................4

1.5 Significance of study..................................................................................................4

CHAPTER 2.........................................................................................................................5

RIGHTS OF UNBORN CHILDREN UNDER ISLAMIC LAW........................................5

1.1 Introduction................................................................................................................5

1.2 Definitions:.................................................................................................................5

2.3 Rights of the unborn child before birth....................................................................17

2.4 The rights of the unborn child upon his father.........................................................17

2.5 The rights of the unborn child upon the mother.......................................................17

2.6 Ruling on abortion by the ancient scholars..............................................................17

2.7 The rights of the unborn child upon others..............................................................18

CHAPTER 3.......................................................................................................................20

RIGHTS OF UNBORN CHILDREN UNDER INTERNATIONAL LAW......................20

3.1 Introduction..............................................................................................................20

3.2 The Convention on the Rights of the Child (CRC)..................................................21

3.3 International Covenant on Civil and Political Rights (ICCPR) 1966......................22

3.4 The European Court of Human Rights and Article 2...............................................23

6
 3.5 The Majority’s Decision...........................................................................................24

3.6 Separate Opinions.....................................................................................................26

3.7 Critical Discussion...................................................................................................27

3.8 American Convention on Human Rights (ACHR) 1969..........................................31

3.9 African Charter on the Rights and Welfare of the Child and its approach to unborn
children's rights:.............................................................................................................32

3.10 The United Nations Declaration on the Rights of the Unborn child (1959)..........33

CHAPTER 4.......................................................................................................................36

RIGHTS OF THE UNBORN CHILD IN PAKISTAN......................................................36

CHAPTER 5.......................................................................................................................37

COMPARATIVE BETWEEN RIGHTS OF UNBORN CHILDREN IN

INTERNATIONAL LAW AND ISLAMIC LAW............................................................37

5.1 Introduction..............................................................................................................37

5.2 Timing of When Rights Attach:...............................................................................37

5.3 Regulating Abortion:................................................................................................38

5.4 Legal Underpinnings:...............................................................................................39

5.5 The rights of the unborn child before birth in international conventions and Sharia
........................................................................................................................................40

5.6 Limiting legitimate relationship between men and women in marriage..................40

5.7 The right of the unborn child upon his father prior to birth.....................................40

5.8 Overview of abortion laws in international conventions and Sharia........................41

CHAPTER 6.......................................................................................................................44

CONCLUSIONS AND RECOMMENDATIONS.............................................................44

6.1 Conclusion................................................................................................................44

6.2 Recommendations....................................................................................................45

REFERENCES...................................................................................................................46

7
 ABSTRACT
This thesis examines and compares the legal frameworks surrounding the rights of the
unborn child in Islam, Pakistani law and international human rights instruments. It firstly
outlines the rights granted to the foetus in Islamic law based on references in the Quran
and Hadith. The various stages of fetal development mentioned are defined, and the
actions prohibited that would violate the foetus' rights are discussed. Pakistani law is then
analyzed in light of the country's constitutional objective to establish an Islamic social
order. The laws pertaining to abortion and other topics impacting unborn rights are
explored. International human rights conventions and treaties are also surveyed to identify
how they address or fail to address the rights of the unborn. A contrast is drawn between
the perspectives of Western societies that tend to be more permissive of abortion versus
the Islamic stance of protecting fetal life. By conducting this comparative legal study, the
thesis aims to demonstrate differing philosophical underpinnings between Islamic
jurisprudence, Pakistani law inspired by Islam, and secular international human rights
norms regarding when human life and innate rights begin. It argues the importance of
recognizing and safeguarding the rights of the unborn from the earliest stages of
development.

CHAPTER 1

INTRODUCTION

1.1 Introduction and the problem

The rights of the unborn child present an important issue with philosophical, ethical and
legal dimensions. Both international law and Islamic jurisprudence recognise the innate
right to life of every human, including those in the embryonic and foetal stages of
development. However, there exist divergences in how international conventions and
Islamic legal sources comprehensively define and safeguard the rights of the unborn.
This study presents a comparative analysis of the international law framework concerning
unborn children's rights, derived primarily from key conventions, and Islamic law as
elucidated by Quranic verses and hadith. The objective is to determine areas of
compatibility as well as divergence between these two legal paradigms. Clarifying
perceptions of when human life commences and the consequent rights and protections

8
afforded at various stages of development can help address misunderstandings and uphold
the shared goal of upholding the unborn's welfare.
Several international conventions imply a right to life from conception through provisions
recognising every human's inherent right to life. Regional instruments in Europe and the
Americas have also interpreted application of this right to the unborn in certain
circumstances. However, the specific rights of the unborn are not comprehensively
defined. Interpretation and enforcement of conventions vary between countries based on
domestic laws and traditions.
Islamic jurisprudence considers the unborn as equally deserving of protection as human
beings. Sources outline pre-birth rights regarding custody, guardianship and fosterage
once parentage is established. The unborn are viewed as divine gifts whose intrinsic
worth supersedes utilitarian priorities. Specific guidance is provided on ethical treatment
at various developmental stages.
The most paramount right of a unborn child under the Law of Islam is found in parentage.
Once this is established, some specific rights and duties follows, the major areas are
fosterage, custody, maintenance and guardianship. No child should be denied custody
from the point of birth. It is a form of guardianship which jurist classified into three and
they are guardianship of the infant (hadhana), which Islamic law places on women, to
look after the unborn child during the unborn child’s early life; guardianship of education
(al wilayat at Tarbiya), which in respect to sharia is the responsibility of the man; and
guardianship of property (al wilaya alal maal), which entrusts the management of any
property of the child to the man.
In a nutshell, this study will basically focus on International law and Islamic law, putting
them side by side to comparatively explore them. This brings us to the aims of the study
1.2 Review of literature
Islamic Law Perspectives on Unborn Children's Rights
There is extensive precedent set in classical Islamic legal texts regarding the rights and
protections afforded to the unborn from the time of conception according to Sharia.
Several prominent jurists from history provide foundational discussions on this issue
based on evidence from the Quran and hadith.
Ibn Abidin's Radd al-Muhtar (1884) elaborates on the personal rights, social rights, and
property rights vested in the fetus under Hanafi fiqh from the earliest stages of pregnancy.
These include the rights to life nullifying permissibility of abortion post-120 days,

9
lineage/family through legitimate marriage, inheritance/bequest vesting from conception,
and maintenance of the pregnant mother.
Ibn Taimiyah's Majmu al-Fatawa (2007) also examines the rights of the unborn child
before birth as established in Islamic sources, such as the rights upon the father to choose
a righteous partner and provide sustenance. He discusses limitations on intergender
relationships to protect prenatal wellbeing, and bans on violence that could cause
miscarriage or defects.
More contemporary analyses supplement these classical edicts. Saeed's The rights of the
unborn child in the family (1984) provides a comparative study. Düzbakar's Abortion in
the Islamic-Ottoman Legal Systems (2006) explores the historical stances. Assim and
Sloth-Nielsen's Kafalah as alternative care (2014) links sponsorship to prenatal welfare.
Nuryanto's Hadhanah in Islamic family law (2014) assesses child custody implications.
These evaluate fetal safeguards through modern specialized lenses.
Overall, Islamic jurisprudence attributes full humanhood and attendant entitlements to the
unborn from fertilization based on the Quran's scientifically consonant fetal development
descriptions. Rights strengthen with developmental milestones like ensoulment at 120
days, yet termination remains tightly regulated according to religious directives balancing
reproductive roles. Continuous exegesis links timeless textual injunctions to advancing
biomedicine through welfare-oriented interpretative frameworks.
International Law Perspectives on Unborn Children's Rights
A growing body of international treaties, declarations, and associated jurisprudence has
also incrementally addressed the issue of fetal rights and personhood over recent decades
from secular vantage points.
The 1959 UN Declaration on the Rights of the Child laid welfare-based premises that
indirectly uphold prenatal interests through maternal health entitlements recognizing
childhood's developmental stages. The 1989 Convention on the Rights of the Child built
on this, with its monitoring Committee advising “protective interpretation” encompassing
fetal interests.
Regionally, the 1969 American Convention on Human Rights stood apart by granting
rights unambigiously “from conception”. Its Inter-American Court strengthened this view
ruling member states could not permit abortion under any human rights obligations.
More recent non-binding instruments like the 1990 Cairo Declaration on Human Rights in
Islam and 1993 Islamic Conference Declaration on Unborn Children's Rights also
affirmed protections according to their perspectives, though their scope remains limited.
10
Scholarly analyses have evaluated these frameworks both independently and
comparatively. Van Bueren's The international law on the rights of the unborn child
(1998) examines key provisions and precedent. Mir-Hosseini and Hamzić propose
calibrated hybrid regulatory models (2015) that uphold religious sensitivities through
adaptive jurisprudential rulings on bioethical frontiers.
Overall, international instruments have gradually established an implicit recognition of
prenatal interests through maternal entitlements, with some conferring direct safeguards
later in gestation. Their approaches diverge methodologically from Islam's definitive
religious foundations, necessitating ongoing calibrated dialog to balance cultural diversity
and shared goals of dignity.
Both Islamic jurisprudence and international law aim to foster welfare across life's
developmental continuum according to their distinctive philosophical underpinnings.
While granting protections from divergent vantage points and timeframes, areas of
alignment still substantively uphold inherent human worth attributes to the prenatal phase.
Continuous interdisciplinary exchange can help realize shared objectives of upholding
dignity for humanity's earliest and most dependent members through appreciation of
diverse traditions. Evaluating strengths and limitations reciprocally supports nuanced
progress towards realizing all beings' baseline entitlement to life advocated universally.
1.3 Aims of the research
As noted above, this study will build up its aim around the provisions of the International
and Islamic law that protects and cement their rights. The following below highlights the
major aim of the study:
1. To highlight the principles of international and Islamic laws towards unborn
children;
2. To identify the rights entrenched in both laws;
3. To comparatively study both laws with respect to their similarities and differences
1.4 Methodology and Sources
The mythology used in this study is the direct approach on the subject from the
International Conventions and Islamic Laws. There were no case studies and assessment
of legal codes in respect to unborn children as this is not the motive of this study. This
study will dwell highly on the International Conventions and Declarations of Unborn
child’s Rights, Islamic Covenants, works of Islamic Scholars and literatures for the
purpose of identifying the rights of unborn children.

11
1.5 Significance of study
Unborn children’s rights are laid down on the International, Regional and sub-regional
level but in the context of this study, the rights shall be dwelled on the frameworks of the
International Laws and Islamic laws. International law has been a product of development
in the past years since the inception of the United Nations when rules and standards
regulating the actions executed beyond legal confines of States. So also is the Islamic law
which can be said to be religious framework for the protection of unborn children. It
constructs the natural rights of unborn child that every adult, parents and guardians must
accord to unborn children with maximum level of respect, honour and dignity. This major
significant of this study reveals the legal and Islamic fundamental rights of unborn
children which are stipulated in International laws and Islamic laws and can be enforced
by National courts and Islamic Judicial court of law.

CHAPTER 2

RIGHTS OF UNBORN CHILDREN UNDER ISLAMIC LAW

1.1 Introduction
The rights of human-being are the burning issue of the present era. Most of the debates in
the modern age are concerning the protection of rights and different charters are
announced and laws are formulated for protection of rights.

Similarly, most of the disputes among different countries are arise due to violation of
human rights. These may relate to their properties or their social rights or personal rights.

Disputes among the people arise when some powerful person usurps the property of a
comparatively week individual in violation of the victim’s right. So the rights are the
basic issue for this society. Majority of the cases in the courts
are related to the rights and these rights may be related to protection of Divine education,
protection of life, protection of family, protection of intellect or protection of wealth.

If rights of mankind are not violated, there will not be any disputes among the people and
among different countries and people would be living together peacefully and this
purpose of all laws in general and the Islamic law in particular.

12
Islamic law gives great importance to human rights, particularly the rights of children and
also grants several rights to foetus. It is the first and last divine order enjoining its faithful
to protect the rights of foetus as well as the rights of children.

It is surprising that there is neither any charter of U.N.O nor any provision of general law
in which the West protects the rights of foetus and children before their birth.

Islamic law commands its followers to protect the rights of foetus and prohibits the
violation of foetus rights even when it is in the womb of mother or in the sperm of the
father.

1.2 Definitions:
The above discussion requires definition of the human rights in the beginning, along with
the definition of foetus and the definition of Islamic law. Therefore, the definition of these
terms as follows:

Definition of ‘right:’
There are two meanings of right {haqq}.

 Literal meaning and

 Technical meaning.
 Literal meaning: Literally, right means; moral or legal authority, ownership,
authority, acquired property or proved thing.

Technical meaning: There are different definitions of right regarding to different theories
of scholars such as objective theory of rights, subjective theory of rights and compound
theory of rights. But here only two definitions of right are mentioned and these have been
by contemporary Muslim scholar.

a- Dr Fathi al Dareni defined right {Haqq} as: {‫هواختصاص يقّربه الشرع سلطة على شيئ‬

1
.‫}أواقتضاء أداء من أخرتحقيقا لمصلحة معينة‬

It is specification of anything with other through which Sharia acknowledges the

authority to exercise it, to demand other for the payment of anything or to achieve
personal benefit from it.

Illustration:
13
{‫ }اختصاص‬means specification with a particular person. If there is no specification, it is
not called individual right but it is public right or permissibility and permissibility is not
the right of any individual because the government or concerned authority can stop the
people at any time from using a thing.

{‫}يقّربه الشرع‬. It means: the specification is acknowledged by Islamic law otherwise such
specification is null and void like the usurped property in the hand and possession of the
usurper.

{‫ }سلطة على شيئ‬.It means the concerned person has authority to dispose of this thing by
utilizing it, by selling it or by gifting it to someone or by demanding his barrowed
property and it covers both rights: haqq Aini [ ‫ ]الحق العيني‬and haqq Ma’nvi [‫ق‬z‫الح‬

‫ ]المعنوي‬in Arabic language.

{‫ }اقتضاء أداء من أخر‬It means the concerned person, on the basis of his right can demand
payment from other party. Such as a creditor can demand his debt from debtor as a matter
of right and it is called haqq shakhsi [ ‫ ]الحق الشخصي‬in Arabic language and these three
types of rights are property rights. e- {‫}تحقيقا لمصلحة معينة‬. It means: to achieve the
personal or specific benefit and the concerned person can dispose of his thing or demand
it from the other for his personal use.
Al Shaikh Mustafa Ahmad al Zarqa has defined right {haqq} as;

{‫ }هواختصاص يقربه الشرع سلطة أوتكليفا‬the right is specification through which Shariah
has acknowledged the authority of an individual over any entity, which may be a thing or
a person to perform a duty.

Illustration:
This definition is similar to the first one given in part [a] but it is different from first
definition in fifth parts of definition mentioned in definition of right made by Dr Fathi
while it is not mentioned in the definition of right by Mustafa al Zarqa, and it is to achieve
the specific benefit {‫}تحقيقا لمصلحة معينة‬

Preference:
The last definition of right is preferable as against the first one for the following reasons;
The second definition is precise, and it is the basic requirement of a definition that it
should be to the point and avoid illustration and interpretation.
14
The last words in the definition of Fathi al Dareni explain the objective of right, w
objectives of a thing are neither a part of that thing nor its definition because objectives
are the purposes achieved after obtaining the thing. Therefore the last part of first
definition of right is not only unnecessary but also objectionable.

Definition Of Foetus {Janin}.

Since this article aims at explaining the rights of foetus, it is appropriate to define foetus
{janin} for the clarification of the subject. There are two meanings of janin;

Literal Meaning Of Janin }‫{جنين‬:

Janin is singular word and its plural is ajjinnah as dalil { ‫ }دليل‬and its plural is adillah {

‫ } أدلة‬and it is jam ul Qillah} [‫ ]جمع القلة‬from jamul Mukassar [‫]الجمع المكسر‬. This word
has another plural which is Ajnan. Janin literally means hidden thing and when foetus is
hidden in the womb of the mother, it is called janin because it is hidden from the public
eyes and whatever is hidden from the eyes of people is called jinn such as jinni, night
which are also hidden and a deceased person buried in the grave is also called janin.

Technical Meaning Of Janin:

Many definitions of foetus have been given by Muslim jurists in Islamic jurisprudence
and the jurists are divided into two groups in this respect, as under: 1- Malki and Hanbli
jurists hold that: The foetus is whatever in the womb of woman whether it is in the shape
of } or in the form of clot of blood and embryonic lump ‫علقة‬leach { } {Pictured ‫}غيرمخلقة‬
or not pictured {‫}مخلقة‬, it is pictured {‫ {مضغة‬means: there is sign of any limb and or not
pictured means there is no sign of any organ of body}.This definition is derived from the

‫ يا أيها الناس ان كنتم في ريب من البعث ف انا خلقناكم من‬Quranic verse given below: ‫تر اب‬

‫الى‬. 6
‫اء‬z‫ا نش‬z‫ام م‬z‫رفي ا لرح‬z‫ثم من نطفة ثم من علقة ثم من مضغة مخلقة أوغيرمخلقة لنبين لكم ونق‬

‫أجل مسمى ثم نخرجكم طفال ثم لتبلغوا أشدكم‬

O Men! if you are in doubt as to the [truth of] resurrection,[remember that,] verily we
have created [every one of] you out of dust, then out of a drop of sperm, then out of a
germ-cell, then out of an embryonic lump complete [in itself] and yet incomplete, so that

15
we might make [your origin] clear unto you. And whatever we will [to be born] we cause
to rest in the [mothers’] wombsfor a term set [by Us] and the we bring you forth as infants
and [allow you to live] so that [some of] you might attain to maturity.

2- Hanfi and Shafei jurists on the other hand, hold that: Foetus is pictured clot of blood
and embryonic lump in the womb of woman. It means: When sperm is develops and gets
the shape of finger or eye or picture of hand then it is considered foetus {janin} but if it is
not pictured such as clot of blood having no picture then it is not foetus. Similarly leach is
also not foetus and it is not given any rule of foetus

{janin} according to this view point.

Difference between Both Points Of View:

The difference between the two viewpoints is as follows:
The first point of view covers leach and clot of blood whether it is pictured or not while
the second point of view hold that the foetus is a clot of blood which is pictured and this
definition does not cover clot of blood having no picture or leach.

The Process of Development Of Foetus In The Womb: Mother

We will explain that foetus has deficient capacity for acquisition of ‫ ولقد خلقنا‬rights which
are protected by Islamic law. The Quran says: { ‫ام‬ ‫لنضغسةا فخن لقنمنا السماللضةغ ة‬

‫عمن ظطاما ين فثكم سوجناع اللنعاهظ ناطم فلحة ما في ثقرم ا أنرمش‬ ‫أكناه ين خثلقم ا‬

‫أخلخقرنفات ابالنرطكف ة اللهع ل قة فخلقنا العلقة أحسن الخالقين‬.

“Now, INDEED, we create man out of essence of clay, and then we cause him to remain
as drop of sperm in [the womb’s] firm keeping.

And then we create out of the germ-cell and then we create out of the germ-cell an
embryonic lump, and then we cloth the bones with flesh and then we bring [all] this into
being as a new creation: hallowed, therefore, is God, the Best of artisans!’10
This verse of Holy Quran portrays how Almighty Allah arranges the development of janin
and protects mankind at different initial stages before birth and the duration of these
different stages is mentioned in the tradition of Prophet {blessing of Allah and peace be
upon him} The hadith explains the duration of these different phases as follows: ‫ان‬

16
‫ أحدكم يجمع‬Prophet {blessing of Allah and peace be upon him] said: { ‫خ لقه في بطن أمه‬
‫} أربعين يوما ثم يكون علقة مثل ذلك ثم يكون مضغة مثل ذلك‬...{ ‫الملك فينفخ فيه الروح‬.11 ‫ثم يرسل‬
No doubt that creation of any one of you has not remained in the womb of his mother but
for forty days, then it becomes leach for forty days then it becomes clot of blood for forty
days then an a Engel is sent and he puffs soul in it.

This period is one hundred and twenty days. The above verse of Holy Quran and hadith
are evidence of the protection of sperm from destruction in any way because it is first
stage of foetus.

Definition Of Islamic Law:

Since this article aims at highlighting the rights of foetus in the purview of Islamic law, it
is appropriate to define Islamic law at the beginning. Islamic law has been defined by
Muslim scholars as the communication of Almighty Allah related to acts of pubescent
persons through demands, option or declaration.

Rights Of Foetus {Janin} In Islamic Law:

There are many rights given to children in Islamic law, some of these are for the children
before their birth and some are given after their birth until the age of seven years while
some rights are available for the children after seven years of age until the age of puberty.
This article explains the rights of child before birth when, it is called foetus. The foetus
has many rights in Islamic law and these rights are

of three types;

 Personal rights,
 Social rights,
 Property rights.

Personal Rights Of Foetus:

Personal right means the right of life. This right is enjoyed by the foetus as well as whole
mankind and no one can usurp the right of life from foetus, not even the parents because
the protection of this right is obligatory on each person and its violation is prohibited.

Abortion is unanimously prohibited in Islamic law after one hundred and twenty days age
even though the pregnant woman is sick because it is time the soul is transferred into the

17
body of foetus. Ibn Abidin said: { ‫ل وكان الجنين حيا ويخشى على حياة ا‬ ‫لم من بقائه ف‬

‫انه ليجوزتقطيعه‬ ‫لن موت ا‬ ‫به فاليجوزقتل أ دمي‬.13 ‫لم موهوم‬ ‫لمرموهوم‬

If foetus is alive and there is apprehension about mother’s life due to the foetus remaining
in her ovary, abortion is still not allowed because the death of mother is only a threat
while the life of foetus is definitive and the murder of a person is not allowed because of a
presumed.
It means: The definitive is predominant on probable. 14 It is supported by three
evidences as follows:

Hadith:

A hadith about a Ghamdiyyah woman as narrated below:

‫ د يا رسول هللا أطهرني فقال ويحك ارجعي‬:‫أة من غامد من لزأد رفاقاك لتريت‬ ‫ثم جاءته ام‬
‫ وماذاك انها حبلى من‬:‫}فاستغفري هللا وتوبي اليه فقالت أن ترّد ني كما رددت ماعزبن مالك قال‬
‫ ف‬:‫الزني فقالت نعم فقال لها حتى تضعي ما في بطنك قال فكفلها رجل من ا لنصارحتى وضعت قال‬
‫ قد وضعت الغامدية فقال اذا لنرجمها وندع ولدها صغيرا ليس‬:‫أتى النبي صلى هللا عليه وسلم فقال‬

‫ فارجمها‬:‫له من يرضعه فقام رجل من ا لنصارفقال الّي رضاعه يا نبي هللا قال‬

A woman from the tribe of Ghamid came to the Prophet {blessing of Allah and peace be
upon him} and said: O Messenger of Allah purify me, Prophet {Blessing of Allah and
peace be upon him} said: sorry for you. Go back and beg from Allah Almighty salvation
and repent to Him. She said: I think you want to send me back as you did with Maiz bin
Malik. Prophet said; What is with you? Is she pregnant due to adultery? She said yes, The
Prophet said: Wait till the delivery of what is in your womb. The narrator said: A person
from Ansar had taken her in his care till the delivery. The narrator said: The gurantor
came to Prophet {blessing of Almighty Allah and peace be upon him} and said:
Ghamadiyyah has delivered a child, Prophet {blessing of Allah and peace be upon him}
said: Now we cannot punish her with stone and leave her little child having no one to feed
him. A man from Ansar stood up, and said: O Prophet I shall look after for his foster, then
Prophet {blessing of Allah and peace be upon him} said: punish her with stone.

18
This hadith proves the right of foetus in the womb of the mother, and his life is as
important as the life of anybody else and it is to be protected. Accordingly, abortion is
prohibited in Islamic law after it attains soul, and it is agreed upon among all Muslim
jurists.

Hadith: It is hadith related to the woman of Huazail tribe as

‫ { أن امر أتين من هذيل رمت احداهما ا لخرى فطرحت جنينها قضى فيه رسول هللا صلى‬:follows

.‫هللا عليه وسلم بغّرة عبد أووليدة‬

Two women from the tribe of Bani se of them thrashed the other due to which her foetus
dropped. Prophet {blessing of Allah and peace be upon him} decided the payment of
Ghurrah as compensation which is seven year old slave boy or girl. It is equal to half of
1/10 of the full compensation {Diyyah} and it is 5% of full compensation which is equal
to five camels provided the foetus dropped without cry and any sound otherwise full
compensation will be payable by the offender to the legal heirs of foetus.18
Analogy: A question may arise that expiation is similar to compensation and when
compensation is obligatory, expiation should also be obligatory. This is the view point of
Shafei and Hanbli jurists. They hold that compensation is obligatory for the violation of
the right of individual whereas expiation is obligatory for the violation of Almighty
Allah’s right, so it is similar to compensation and when compensation is obligatory,
expiation will also be obligatory.
However, Hanfi and Malki jurists are of the view that payment of expiation is not
obligatory because the hadith has made the payment of compensation obligatory but it did
not mention expiation, so it is not obligatory but is recommended and if somebody pays
the expiation, it is also valid.
When compensation is to be made to a victim who is only one, the compensation will also
be one though the offenders are more than one. However, if there is and when expiation
due to the violation of right of Almighty Allah, each one of offenders who violates the
divine rights is required to pay expiation separately.

Objection: Hanfi and Malki jurists object to the view point of Shafei and Hanbli jurists
that expiation is a form of worship and analogy is not applicable in worship matters as it
is analyzed in Usool al Fiqh,19 so the obligation of expiation cannot be analogy on
obligation of compensation.

19
Social Rights Of Foetus:
It implies right of lineage genealogy and it means: Foetus has the ‫ادعوهم‬law. The Quran
says: { right of family, parentage in Islamic

.‫لبائهم هو أقسط عند الله‬

[As for your adopted children] call them by their [real] fathers’

names: this more equitable in the sight of God.

Prophet {blessing of Almighty Allah and peace be upon him} said:

.‫أنه غير أبيه فالجّنة عليه حرام‬ ‫من ادعى الى غير أبيه وهو يعلم‬
this If someone surnamed himself to a person who is not his father and he knows
him. The on prohibited is heaven then fact,
right of parent-hood is not given to him without marriage contract concluded between his
father and mother and marriage contract is defined that: as conjunction of offer and
acceptance resulting in the lawful copulation for gaining legitimate offspring.23 The Holy
:Quran says

.‫} ومن أياته أن خلق لكم أزواجا لتسكنوا اليها وجعل بينكم مودة ورحمة‬
And among His wonders is this; He creates for you mates out your own kind, so that you
might incline towards them, and He engenders love and tenderness between you: in this,
behold, there are messages indeed for people who think.

It means in other words; ‘It is from His signs that He created your couple for your
satisfaction with them and created love and affection between you.’

This verse of Holy Quran explains the benefits of marriage contract.

‫ وهللا جعل لكم من أنفسكم أزواجا وجعل لكم من أزواجكم‬:Another verse of Holy Quran says
.‫بنين وحفدة‬
And God has given you mates of your own kinds and has given through your mates,
children and children’s children, and has provided for you sustenance out of good things
of life.27

This verse of Holy Quran explains the purpose of marriage contract and establishes the
right of lineage attached with the marriage contract otherwise it is cohabitation.

20
The Prophet {blessing of Allah and peace be upon him} said:

}‫{وعلى الناكح المهروعلى العاهرالحجر‬

‘The male contracting marring is liable to pay the dower and adulterer is punishable with
stones’. It means: intercourse with a woman without marriage is punishable offence.

There is a legal maxim supporting the rule mentioned above:

}‫{الجريمة لتفيد صاحبها‬.

‘The offence does not benefit the offender’. The unlawful copulation with woman is sin
and major crime in Islamic law and the male committing this offence is not given the
benefit of child because the crime does not benefit the criminal.

Fiqh Hanfi Supports This Right Of Foetus More Than Other Schools Of Thought:
The maximum period of pregnancy is disputed among the Muslim jurists while minimum
period of pregnancy is agreed upon and it is six months on the basis of the hadith of the
Prophet {blessing of Allah and peace be upon him} narrated by Abi al Aswad {may Allah
be pleased with him
‫{ أنه رفع الى عمررضي هللا عنه أن امر أة ولدت لستة أشهرفهّم عمربرجمها فقال له على رضي‬
‫ وحمله وفصاله ثالثون‬:‫ والوالدات يرضعن حولين كاملين وقال تعالى‬:‫هللا عنه ليس لك ذلك قال تعالى‬

.‫شهرا فحولن وستة أشهرثالثون شهرا لرجم عليها فخلى عمرسبيلها‬

A case is submitted to Omar {may Allah be pleased with him} that a woman has given
birth to child after six months of marriage and Omar {may Allah be pleased with him}
thought it was a case of stoning to death but Ali {may Allah be pleased with him} said;
You cannot do that because Almighty Allah said: the mothers should feed two complete
years and Almighty Allah also said: the period of pregnancy and feeding is thirty months
and two years plus six months are thirty months. Upon this Omar {may Allah be pleased
with him} let the woman go. This proves that six months is the minimum period of
pregnancy.

Another example: Suppose If a man living in the west marries a woman living in the east
through agents and newly married woman is living at such a distance from her husband
that it will take at least six months to be with his wife. Now, this married woman has
given birth to a child after exact six months of marriage contract. Is this child legitimate
or not?

21
Hanfi jurists hold that this child is legitimate unless the husband refuses the legitimacy of
this child. This is only to protect the right of lineage genealogy of child and it is according
to Hanfi school of thought while majority considers this child as illegitimate.
EVIDENCE: Hanfi jurists base their view point on the hadith: Prophet {blessing of
Allah and peace be upon him} said: { ‫ }الولد للفراش‬The child of the woman is considered
from the man having marriage contract with her provided the husband disowns it.
Objection: The majority of jurists have object to this evidence arguing that: mere
possibility of the couple sleeping to gather is not sufficient for the legitimacy of child but
it should be occurred in fact. Answer: Hanfi scholars have answered this questionsaying
that: a- Intercourse is a hidden matter while marriage contract is a public matter. b-
Intercourse is probable matter while marriage contract is definitive matter watched by eye
witnesses and there is legal maxim: {‫}المظنة تقوم مقام المئنة‬

The probable matter which is intercourse takes the place of definitive matter which is
marriage contract and it is Frash { ‫ }الولد للفراش‬which means: If married woman comes
with a child, this is considered the child of her husband.
Objuction: There is an objection from Shaikh Ibn Taimiyyah that it is not possible for
man to travel so long distance within few seconds, so according to him such child is not
legitimate.

Answer: It is answered that: it is possible for a person to travel such long distance within
seconds on the basis of miracle {Karamah} and it is supported by Holy Quran as Asif bin
Burkhiyyah put the thrown of Bilqees in the front of Suleiman {peace be upon him}
before blinking of an eyes though the thrown had been fifteen hundred miles away from
Ceria or more than it. The Quran says:

‫أن ي أتوني مسلمين قال عفريت من‬ ‫أيكم ي أتيني بعرشها قبل‬ ‫قال ي أيها الملْو‬

‫اني عليه لقوي أمين قال الذي عنده علم‬ ‫أتيك به قبل } أن تقوم من مقامك و‬ ‫أنا‬ ‫الجن‬

‫أتيك به قبل ان يرتد اليك طرفك فلما ر أه مستقرا عنده قال هذا من فضل‬ ‫أنا‬ ‫من الكتاب‬

‫انما‬ ‫أكفرومن شكرف‬ ‫ربي ليبلوني ء أشكر أم‬

‫{يشكرلنفسه ومن كفرف ان ربي غني كريم‬

22
When Soloman learned that the Quaeen of Sheba was coming, he said; [to this council] O
you nobles! which of you can bring me her throne ere she and her followers come unto
me in willing surrender to God? Said a bold one of the invisible beings [subject to
Soloman] I shall bring it ti thee ere thou rise from thy council-seat – for, behold, I am
powerful enough to do it, [and] worthy of trust!’ Answered he who was illuminated
revelation; [Nay] as for me I shall bring it to thee ere the twinkling of thy eye ceases! And
when he saw it truly before him, he exclaimed: This is [an outcome] of my sustainer’s
bounty to test me as to whether I am grateful or ungrateful! However, he who is
ungrateful [to God} is but grateful for his own good; and he who is ungrateful [should
know that], verily, my sustainer is self-sufficient, most generous in giving!’

Property Rights Of Foetus:

Islamic law grants property rights to the foetus as follows:

Right Of Inheritance:
The foetus in the womb of his/her mother is given the right of inheritance in Islamic law
from the very first day, and pregnancy means: Whatever is in the womb of mother though
it is male or female. The foetus is entitled to inheritance from parents, grandparents,
brothers, and sisters and other relative as a shareholder, residuary and distant kindred. His
/ her portion of share is decided after he / she is born and it is on the basis of saying of the
Holy Prophet {blessing of Allah and peace be upon him}:

When }34 .‫{ اذا استهل المولود ورث‬

foetus cries at the time of birth he/she inherits. It is narrated by Abu Hurairah {may Allah
.be pleased with him}

Another hadith narrated by Abdullah bin Jabir {may Allah be pleased with him} says:

‫وليرث‬ ‫الطفل ليصلى عليه‬ :‫عليه وسلم‬ ‫هللا‬ ‫قال النبي صلى‬
35
.‫وليورث حتى يستهل‬
Prophet {blessing of Allah and peace be upon him} said: funeral prayer is not to be
performed for child on birth and he does not inherit from anybody nor does any body
inherit to him unless he/she cries at the time of birth.

23
RIGHT OF BEQUEST: It means: If anybody bequeathed for foetus which is still in the
womb of his/her mother, he/she is entitled to bequest in the Islamic law and one third of
legacy of legato is given to foetus being a legatee.
Right Of Endowment: If someone makes an endowment for foetus which is still in the
womb of his/her mother, then he/she is entitled to such endowment and such
empowerment is valid.
2.3 Rights of the unborn child before birth
There are a vast number of treaties that safeguards the life of an unborn baby and such
treaties are embodied in human rights treaties. Before the full development of the unborn
child which in this regard is called a fetus, immaturity and mental limitations are the main
characteristics that surround the so called unborn child in the mother’s womb. This
justifies its rights to protection before birth., The Convention on the Rights of the Unborn
child (1990) and the U.N Declaration of the Rights of the Unborn child (1959) have
significant strides to clarify and reinforce measures to protect the rights of an unborn
babies. A major hindrance that poses threats to the Rights of the unborn child before birth
is therefore chiefly regarded as being abortion.
2.4 The rights of the unborn child upon his father
Right to alimony
The right to alimony also encompasses the need to take care of pregnant women or spend
on them till they deliver or divorce. This has been reinforced by many scholars including
Ibni Abbas and a range of predecessor and successor groups that pregnant women be
maintained properly.
2.5 The rights of the unborn child upon the mother
Select the good father: This basic notion is that a good man is able to save his unborn
children and is responsible for their upbringing.
Unborn child care and taking care of him since inception up until the birth. The
Islamic Sharia has put rules and foundations protecting the unborn child since its
composition in mother’s womb until it becomes a complete life structure. One of the most
important bases and foundations that protect the unborn child related to his mother is
outlawing abortion. A lot of laws such as Islamic laws also prohibit abortion and provide
for the right of the unborn child to life while the unborn child is in his mother's womb.
Abortion can be defined as that act of women dropping their foetuses induced by
medication or otherwise, or a similar act of other on those women.
24
2.6 Ruling on abortion by the ancient scholars
The first which prohibits abortion was represented by Maliki Fiqh, Ghazali and
some Hanfi Scholars. Their argument is that during the beginning of ontogenesis the
embryo is an inviolable human being. The other scholar goes into supporting abortion and
is represented by Shaafa'is and Hanbalia. Their argument is that the product of
pregnancy before ontogenetic creation is piece of meat that may not be a foetus, and is
threatened by spontaneous abortion and becoming of that creation a human is still not
certain.
Secondly, some others set of scholars noted that after ontogenetic and before breathing of
the soul, in particular, during the period between forty days and fourth months of
pregnancy, abortion was considered closer to haram, and becomes closer and closer to
haram as pregnancy advances., At the end of the fourth month, it is closer to haram and
entails an earthly and a hereafter penalty, but abortion is allowed for if the need that
may arise of an imminent threat to the life of the mother as determined by medical
personnel which may include cases like: a relaxed heart and renal, breast cancer etc.
Third: after the soul has been breathed into, then abortion is forbidden by the agreement
of scholars. In fact it is a misdemeanour that was penalized by Addiyah and Alkaffar.
Abortion according to contemporary scholars
Based on what the doctors have agreed on, scientific facts indicate the presence of life in
the foetus not only from the first confluence of sperm with the egg but found life right
before fertilization. The meaning of life here is biological life and is not the spirit life. ,,
Evidence has it that any life is associated with plant organisms but not any soul., For that,
more medical scientists and contemporary Sharia scholars outlaws abortion in all stages
of the foetus and only if it may cause maternal death that cannot be avoided except by
abortion. It then becomes permissible to avoid the death of the mother, otherwise it is
prohibited whatever the motives and reasons. They, in this opinion, agree with the Maliki,
Hanafi, and Imam al- Ghazali.
2.7 The rights of the unborn child upon others
The right of the unborn child to others while in his mother's womb must be protected
always. It was narrated by Abu Hurayrah that two women from Huthail quarrelled. “One
of them stroked the other with a stone and killed her along with the embryo contained in
her womb. The quarrel was presented to the Messenger of Allah peace be upon him. He
judge that the Diyah of both the killed women and the embryo should be paid to the killed

25
women heirs by the tribe of the offender.” This follows from a felony committed to a
foetus, in case of wilful act, some scholars went to say retribution should be imposed on
the aggressor, in contrast to the majority of scholars which did not see retribution as
killing a foetus., Islam care of unborn children amounted to the limit of preventing
intimidation of pregnant women that might lead to miscarriage, and even arranged a
financial penalty of intimidating a pregnant woman if this intimidation led to miscarriage.

26
CHAPTER 3

RIGHTS OF UNBORN CHILDREN UNDER

INTERNATIONAL LAW

3.1 Introduction
The issue of unborn children's rights has been an evolving topic within international
human rights law. There exist differing views on when human life commences and the
related moral and legal status of the fetus. As a result, international conventions have
taken varying approaches in addressing protections for unborn life when balancing
maternal autonomy. This essay aims to analyze the approaches of key conventions and
assess the degree of recognition for fetal rights under international law.
The Convention on the Rights of the Child, International Covenant on Civil and Political
Rights, European Convention on Human Rights, American Convention on Human Rights
and African Charter on the Rights and Welfare of the Child will be examined. These
instruments represent both United Nations and regional agreements, allowing for
comparison between universal and region-specific instruments. By tracing the evolution
of their provisions and relevant jurisprudence over time, insights can be gleaned on
developments in international thinking.
An overview of each convention's provisions relating to the right to life and other
protections will be provided. Their implications for restricting or regulating abortion will
also be discussed. Comparisons will then be made between the divergent level of
recognition for fetal rights and obligations placed on states. The paper will conclude by
summarizing the current status of international law and any continued conceptual
differences.
This analysis aims to further the discussion on balancing competing human rights
concerns regarding abortion. It also sheds light on the growing personhood of the fetus in
international conventions, with implications for future harmonization efforts on this issue.
Overall, the essay seeks to provide valuable insights into an emerging domain of human
rights.

27
3.2 The Convention on the Rights of the Child (CRC)
Is the most universally embraced international human rights treaty, having been ratified
by all UN member states except the United States. While its primary focus is
safeguarding children after birth, the CRC makes an implicit yet important contribution
towards recognizing fetal rights through its interpretations of Article 6. This article
establishes "every child's inherent right to life" without age qualifications.
The CRC's monitoring committee, the Committee on the Rights of the Child, has
provided guidance that helps realize the full potential of Article 6's provisions for unborn
children. In its General Comment No. 17, the Committee urged states to adopt broader
interpretations that encompass newborns and older infants as well as "children prior to
birth." It noted states should construe the right to life clause "in a way which is most
conducive to the child's development and humanity."
To balance these obligations, the Committee avoided making direct recommendations
about highly sensitive abortion policies. However, it advised states factor in the child's
dignity and best interests, particularly for late term pregnancies where late access to
abortion raises ethical issues.Overall, the Committee's clarification creates a rhetorical
and conceptual framework encouraging increased protection for fetal well-being that is
fully aligned with scientific evidence of the fetus as a rights-bearing human entity.
This guidance set the stage for domestic fetal personhood arguments citing the CRC. For
example, the Colombian Constitutional Court referenced the Committee's remarks in a
2006 decision restricting abortion and asserting fetal rights. Rulings in other abortion-
restrictive countries like Chile, Dominican Republic and Nicaragua have also drawn on
the CRC's guidance. At an international level, pro-life advocates cite its General
Comment to bolster their ethical case for legally recognizing fetal personhood.
However, the CRC stops short of technically establishing a universal "right to life from
conception." Given strong pro-choice views among some members, the treaty wording
did not assume a stance that could deter ratification. Still, by implying nascent rights prior
to birth, the CRC serves as foundation for the evolving international legal status of the
human fetus. It presents a cautious yet significant step towards granting fetuses formal
protection under the umbrella of children's inherent rights.

28
In conclusion, within its politically mandated limits, the CRC has contributed
significantly to establishing fetal rights through principles of protective interpretation.
While flexible to varying national contexts, its framework supports recognizing
humanity's earliest members as rights-holders. The Committee's guidance strengthens
scientific, ethical and legal bases for new understandings of personhood across
international law. Overall, the CRC expands the boundaries of human rights to safeguard
life from its earliest stages of existence.
3.3 International Covenant on Civil and Political Rights (ICCPR) 1966
The International Covenant on Civil and Political Rights (ICCPR) is a pivotal
international treaty that protects fundamental human rights and liberties. Its Article 6
provision guaranteeing "the inherent right to life of every human being" provides scope
for recognizing unborn life. In 2018, the UN Human Rights Committee issued General
Comment No. 36 to clarify interpretation of this right.
The Comment emphasized Article 6 should not be read restrictively but encompass fetal
life "as soon as they are formed." It noted biologically, human life begins at fertilization,
and internationally there is no consensus on when precisely human personhood or right to
life begins. However, the Committee stopped short of definitively recognizing a "right to
life from conception," avoiding prescribing abortion policies.
Nonetheless, this clarification represented an evolution from previous interpretations
favoring states' authority over potential life. It established a contemporary understanding
that the right to life applies before birth, constrained only by lack of consensus on its
origins. The Committee recognized scientific evidence demonstrating humans are entities
with rights from early stages of life, deserving legal acknowledgment and protection.
While refraining from mandating specific legislation, the Comment demonstrated will to
consistently apply Article 6 to the unborn through pragmatic interpretations. It noted
protection should strengthen as gestation progresses, applying most robustly near
viability. This graduated approach balances fetal rights and maternal autonomy,
supporting regulation of late abortions.
The ICCPR's provisions, in conjunction with the Committee's guidance, imply an
emerging protection for fetal life under international law. They establish a foundation,
albeit limited, for asserting unborn persons' right to life which some states have cited
domestically. For example, the Colombian Constitutional Court drew upon the Comment
and ICCPR in restricting non-therapeutic abortion.

29
In summary, General Comment No. 36 represented a milestone by clarifying the ICCPR
recognizes humanity's earliest members and their entitlement to life's safeguards. While
not outright conferring international legal personhood, its pragmatic framework supports
ethical regulations respecting both maternal interests and fetal rights strengthening with
gestation. Overall, it stimulates an important discussion acknowledging science of the
unborn through a human rights lens.
3.4 The European Court of Human Rights and Article 2
In addition to the universal treaties, the European Convention on Human Rights has
played a pivotal role in advancing recognition of fetal rights through its interpretations of
Article 2's right to life provisions. A landmark case in this area was Vo v. France, decided
by the European Court of Human Rights (ECtHR) in 2004. The case concerned a medical
error during pregnancy that resulted in the loss of the applicant's fetus.
In the July 8, 2004 case of Vo v. France, the European Court of Human Rights
(”ECtHR”) dealt with the question of whether the embryo/fetus (”the fetus”) enjoys the
protection of the right to life provided by Article 2 of the European Convention on
Human Rights (”the Convention”). Below, a pregnant woman lost her fetus due to an
error made by the attending doctor, and the Cour de Cassation, the French court of last
instance, acquitted the doctor of involuntary homicide on the grounds that a fetus is not a
person within the meaning of the French Criminal Code. Claiming a violation of her
child's right to life within the meaning of the Convention, the woman appealed to the
ECtHR. The ECtHR left open the question whether or not a fetus falls within the scope of
Article 2; declaring that, even assuming Article 2 was applicable to a fetus, there had
been no failure by France to comply with its obligations under Article 2, because the
ECtHR deemed the institution of criminal proceedings unnecessary. Rather, it considered
the possibility for the applicant to bring an action for damages as sufficient and therefore
found that there had been no violation of the fetus's right to life.
The case concerned an application made by Mrs. Thi-Nho Vo, who in November 1991
visited the General Hospital of Lyon for a medical examination scheduled during the
sixth month of pregnancy. On the same day and at the same hospital another woman,
Mrs. Thi Thanh Van Vo, was due to have a coil removed. Due to a mix-up caused by the
fact that both women shared the same surname and that Mrs. Thi-Nho Vo was unable to
communicate in French, the gynecologist pierced the applicant's amniotic sac, making a
therapeutic abortion of the fetus unavoidable.

30
Following a criminal complaint lodged by the applicant in 1991, the doctor was charged
with involuntary homicide. In June 1996 the Criminal Court of Lyon acquitted the doctor,
declaring that there was no legal rule determining that a fetus is already a person in the
sense of the French Criminal Code. In view of this lack of a legal definition the Criminal
Court found it necessary to return to the “known scientific facts”. In the opinion of the
Criminal Court it had been scientifically established that a fetus becomes viable at six
months. As the Criminal Court felt itself obliged to show some respect for that fact
(viability at six months) it declared that it could not create law on an issue which the
legislators had not yet succeeded in defining. Consequently on no account could a fetus
not be considered a human being at 20 or 21 weeks.
In March 1997 the Lyon Court of Appeal overturned this judgment, declaring that the
issue of viability at birth is scientifically uncertain and consequently devoid of all legal
effect. Considering a viable fetus as a person, the Court of Appeal convicted the doctor of
involuntary homicide, arguing that it would have been classified, without any hesitation,
as an offence of unintentionally causing injuries if the assault on the child concerned had
inflicted a non-fatal wound. A fortiori, an assault leading to the child’s death must be
classified as involuntary homicide. In June 1999 the Cour de Cassation reversed the
judgment of the Court of Appeal, refusing to consider the fetus as a human being entitled
to protection under criminal law. According to the Cour de Cassation, the rule that
criminal statutes must be construed strictly pleads against extending the scope of the
relevant provision of the French Criminal Code - which makes involuntary homicide an
offence - to cover unborn children whose legal status is governed by special provisions
concerning embryos and fetuses. Mrs. Vo appealed to the European Court of Human
Rights in December 1999. In May 2003 the Chamber transferred jurisdiction to the Grand
Chamber.
3.5 The Majority’s Decision
In the first part of the judgment the Court confines itself to relevant existing case law,
including cases decided by the Commission. Thus the Commission, having initially found
it unnecessary to decide whether the unborn child is protected by Article 2, considered
that the term “everyone” in several Articles of the Convention could not ordinarily apply
prenatally, but observed that such application in a rare case, specifically in regard to
Article 2, cannot be excluded.2 However, this opinion necessarily leads to the objection
that abortion does not constitute one of the exceptions expressly listed in Article 2, para.

31
2 and would therefore consequently have to be forbidden if Article 2 applies to the fetus.
To this argument the Commission answered that abortion is compatible with Article 2,
para. 1, sentence 1 in the interests of protecting the mother’s life and health because this
provision – assuming the applicability of Article 2 at the initial stage of the pregnancy -
contains an implied limitation on the fetus’s right to life, to protect the life and health of
the woman at that stage. However, the Commission ruled out an absolute right to life of
the fetus, having regard for the need to protect the mother’s life. According to the
Commission, giving priority to the protection of the fetus would mean the life of the fetus
was regarded as being of a higher value than the life of the pregnant woman. As to the
question when life begins, the Commission noted diverging viewpoints and conceded
some discretion in this area to the Contracting States.
In the rare cases that the ECtHR has had occasion to consider the application of Article 2
to the fetus, using the “even assuming” formula, it did not consider it relevant to
determine whether the fetus is covered by the right to life. Taking existing caselaw into
consideration, the Court declared that the issue of when life begins comes within the
States' margin of discretion for two reasons. First, because the issue has not been decided
within the majority of the Contracting States; thus, French caselaw and an inconclusive
parliamentary debate on the question of creating an offence of unintentional termination
of pregnancy clearly showed that the manner in which the fetus was to be protected
would be determined in different ways by different elements of French society. Second,
because there is no European consensus on the scientific and legal definition of the
beginning of life.
Regarding these considerations, the ECtHR was convinced that it is neither desirable, nor
possible, to answer in the abstract the question whether an unborn child is covered by the
concept ”everyone” for the purposes of Article 2 of the Convention. Even assuming
Article 2 to be applicable, the ECtHR held that France had not failed in its positive
obligation to protect life within the meaning of Article 2. The Court found that the
positive obligation imposed by Article 2 to set up an effective judicial system does not
necessarily require the provision of a criminal-law remedy. Thus, if the infringement of
the right to life is not caused intentionally, the obligation may also be satisfied by
remedies in the civil courts or even by disciplinary measures. According to the ECtHR
the applicant in this case could have brought an action for damages in the administrative
courts which would have had a reasonable prospect of success. The unborn child was
consequently not deprived of all protection under French law; there had therefore been no
32
need to institute criminal proceedings. The ECtHR accordingly found by 14 votes to 3
that, even assuming that Article 2 was applicable in the case before it, there had been no
violation of that provision.
3.6 Separate Opinions
As part of a separate opinion Judge Rozakis, joined by Judges Caflisch, Fischbach,
Lorenzen and Thomassen, declared that Article 2 does not apply to the fetus. According
to Judge Rozakis, unborn life is considered to be worthy of protection. This protection,
however, is distinct from that given to a child after birth. Judge Rozakis criticized the fact
that the majority's procedure, in applying repeatedly the “even assuming” formula,
presupposes the prima facie applicability of Article 2 to a fetus.
This concern was taken up by another separate opinion, that of Judge Costa joined by
Judge Traja, who declared Article 2 applicable to the fetus. Judge Costa explained that if
Article 2 had been considered to be entirely inapplicable, it would not have been
necessary to examine the possible violation of Article 2 in any of the decisions of
Commission and the ECtHR that used the “even assuming” formula. To any objections
that the right to abortion is under threat, he referred to courts in Germany, Norway and
Spain that recognize the right to life of the fetus while holding the national legislation on
voluntary termination of pregnancy to be consistent with the relevant domestic
Constitution, and even with Article 2 of the Convention. In addition, Judge Costa
declared that the present inability to reach a consensus on what is a person does not
prevent the law from defining these terms, for it is the task of judges to identify the
notions that correspond to the words in the relevant legal instruments.
In a dissenting opinion Judge Ress first rejected the majority's opinion that an action for
damages in the administrative courts is equivalent to criminal proceedings. According to
Judge Ress, it is not retribution that makes protection by the criminal law desirable, but
deterrence. He confirmed his opinion relying on the fact that hospitals and doctors are
usually insured against such risks, so that the “pressure” placed on them by an action for
damages is reduced. Beyond that, he approved the applicability of Article 2 to the fetus.
In addition to Judge Costa’s argument with regard to the “even assuming” formula, Judge
Ress explained that specific laws on voluntary abortion, as they exist in all the
Contracting States, would not have been necessary if the fetus did not have a life to
protect. This argument was also supported by the other dissenting opinion of Judge
Mularoni. Finally, Judge Ress criticized the majority's opinion that the issue of when life

33
begins comes within the margin of discretion. In Judge Ress' opinion, the question of the
applicability of Article 2, an absolute right, cannot be dependent on a margin of discretion
that may at best exist to determine the measures that should be taken to discharge the
positive obligation that arises because Article 2 is applicable.
Also dissenting, Judge Mularoni, joined by Judge Stráznická, accepted that the fetus has
the right to life. This opinion was based on the ECtHR's view of the necessity of an
evolutive interpretation of the Convention as a living instrument which is to be
interpreted in light of presentday conditions. With regard to the Vo-Case, according to
Judge Mularoni, the interpretation of Article 2 must evolve so that the great dangers
currently facing human life, such as genetic manipulation and the risk that scientific
results will be used for a purpose undermining the dignity and identity of the human
being, can be confronted. In addition, Judge Mularoni argued that the French legal system
did not afford the applicant any “effective” remedy. She referred to the ECtHR's caselaw
which declared that where there is a choice of remedies open to the applicant, the
applicant must have made only normal use of domestic remedies which are likely to be
effective and sufficient. When a remedy has been pursued, use of another remedy which
has essentially the same objective is not required. Since, according to Judge Mularoni, the
criminal remedy was not obviously ineffective, as the decision of the Court of Appeal
shows, it followed for her that there was no more need to have recourse to action in the
administrative courts.
3.7 Critical Discussion
The case raises many issues regarding the protection afforded by Article 2 of the
Convention to unborn life. By way of comment, three questions only shall be addressed
here, namely: whether the fetus is covered by ”everyone” within the meaning of Article
2; what effect the application of Article 2 to the fetus will have on European laws on
abortion; and whether France has satisfied its positive obligations pursuant to Article 2.

Is the Fetus Covered by the Term ”Everyone” Within the Meaning of Article 2 of the
Convention?
Since the European Convention, unlike the American Convention on Human Rights, does
not expand explicitly on the scope of Article 2 as applied to unborn children, this question
is certainly one of the most disputed among the 46 Contracting States. The ECtHR did

34
not answer the question in the abstract. Assuming that Article 2 was applicable, it
declared that there had been no violation of the right to life. The ECtHR did not give
satisfactory reasons for its decision to stay silent on this point and avoided making a
desirable decision.
On the contrary, none of the separate and dissenting opinions which represent 10 of 17
judges, left open the question of applicability and there are strong arguments that the
fetus, at least a viable one, is in fact covered by ”everyone” within the meaning of Article
2. First, neither the ECtHR nor the former Commission have ever completely excluded
the possibility of application of Article 2 to the fetus. Instead, the ECtHR has repeatedly
applied the “even assuming” formula which would not have been necessary if Article 2
had been considered to be entirely inapplicable. Second, there is no crucial difference
between a fetus and a child already born, because both are similarly dependent upon their
mother. The mere fact that the fetus does not have an independent existence from its
mother does not lead to a different result and, as this case illustrates very well, separate
protection is needed at least for the viable fetus and its mother. On the same tenor,
specific laws on voluntary abortion existing in all the Contracting States would not have
been necessary if the fetus did not have a life to be protected . Third, today new dangers
threaten both human life itself and the legal concept of its protection. So it is not possible
to ignore the major debate that has taken place on the national and international level in
recent years on the subject of bioethics and the desirability of introducing or reforming
legislation on medically assisted procreation and prenatal diagnosis, in order to prohibit
techniques such as the reproductive cloning of human beings and provide a strict
framework for techniques with a proven medical interest. Consequently the interpretation
of Article 2 must evolve with these new developments, requiring now the inclusion of the
right to life of the fetus.

35
Would the Application of Article 2 to the Fetus Call Into Question All European Laws on
Abortion?
This argument, in regard to para. 2, is underscored by the fact that nearly all Contracting
States already had legislation permitting abortion before ratifying the Convention, and did
not make any reservation under Article 64 of the Convention with respect to Article 2.
Nevertheless, Judge Costa's remarks demonstrated that the application of Article 2 to the
fetus would not necessarily threaten this domestic legislation. In addition, one can look to the
Commission's decision in H v. Norway; there the Commission, while explicitly not excluding
the possibility that a fetus falls within the scope of Article 2, declared that an abortion made
in the 14th week of pregnancy did not violate the Convention. Both the national courts and
the Commission specifically referred to the serious conflict between the mother's rights and
those of the unborn child, which led to the duty to balance the interests of mother and fetus.
According to the courts and the Commission, in this delicate area the Contracting State
legislature must have some discretion that, in the cases in question, had not been exceeded.
Like all international conventions, the Convention has to be interpreted in accordance with
the Vienna Convention on the Law of Treaties (“Vienna Convention”), especially Article 31,
which requires treaties to be interpreted in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in the light of its object and purpose. In this
respect it should be noted that a number of recent conventions and the prohibition on the
reproductive cloning of ”human beings” under the Charter of Fundamental Rights of the
European Union show that the protection of life extends to the initial phase of human life.
Consequently, the ECtHR must take such a development into account in order to define the
ordinary meaning of the right to life.
Has France Failed its Positive Obligation Pursuant to Article 2?
Human rights are - because of their negative formulation - in their original meaning,
protective shields against state intrusion through negative obligations; 51 thus, the notion of a
”positive obligation”, used by the ECtHR in the context of human rights, might seem
unusual.
In contrast to the US Supreme Court, which refuses, in cases similar to the Judgment, to
recognize positive obligations, the ECtHR has been developing positive obligations with
regard to human rights since 1968. In 1968 the Court decided that the right to education also

36
implied certain positive obligations. Having confirmed this tendency with regard to a number
of other rights, including Article 2, which refer to the need for positive obligations for
effective protection of human rights, the ECtHR has in the meantime undisputedly
recognized positive obligations. The duty to make criminal remedies generally available
constitutes such a positive obligation. According to the Court, in the instant case, there was
no need to make criminal proceedings available.
See Eur. Court. H.R., Case relating to certain aspects of the laws on the use of languages in
education in Belgium, Judgement of 23 July 1968, Series A, No. 6-A, 31, para. 3.
This opinion, however, must be rejected for several reasons. First, financial liability to pay
compensation does not have the same effect on the victims as a conviction in a criminal case.
In this context it should be mentioned that the ECtHR itself has repeatedly declared that an
effective protection of the individual in its relations with other private persons requires the
state to impose criminal law sanctions, for example, in X and Y v. the Netherlands this
obligation concerned Article 8. If this can be said about the right to respect for private and
family life, it holds true even more forcefully for the right to life. It is true that the reasoning
of the ECtHR only concerned serious infringements of Article 8, but Article 2 may be the
main right protected by the Convention and therefore of higher standing than Article 8. Thus,
even less serious infringements of Article 2 may require criminal law sanctions. Furthermore,
if the involuntary homicide of a child already born is punished by the means of criminal law,
the same must go for the unborn child.
In addition, in this case, an action in the administrative courts was no longer possible because
the statute of limitations had expired by the time the criminal proceedings ended. Above that,
even if the applicant had tried to bring such an action against the authorities, it is doubtful
that her action would have been successful; in December 1991, when the applicant lodged
her criminal complaint, the French Conseil d'Etat still took the view that a hospital
department could incur liability only in cases of gross negligence. Thus, by choosing the
criminal remedy the applicant had done everything that one could expect of her, even
assuming that in this case a criminal law remedy was not available.
A fetus falls, notwithstanding the existence of the Contracting States’ laws on abortion, into
the scope of Art. 2 of the Convention. Art. 2 implies – like other rights of the Convention –

37
positive obligations. In the Vo case, France, by not making possible a criminal prosecution of
the doctor, has failed its positive obligation pursuant to Art. 2.
Evaluation
At first glance the judgment seems like a wise act of judicial self-restraint in a politically
controversial question. So it is on the one hand certainly comprehensible that the ECtHR
should avoid a decision in this difficult domain if possible. Who could hold this against the
ECtHR in view of the difficult moral task which the judges are charged with on this issue?
On the other hand, 10 of 17 judges expressed explicitly their opinions on the applicability of
Art. 2 on a fetus. This shows that the delicate circumstances did not keep the majority from
deciding this question. Above that, the attitude of the ECtHR in Vo v. France does not
correspond to the principle of interpreting the Convention as a living instrument. On the
contrary the ECtHR has once again held on to the status quo, which has been established by
the ECtHR since the 1970s. This status quo, however, leaves the Contracting States in the
dark about the dealings with fetuses. Only a clear decision of the ECtHR in this area would
bring legal certainty into this situation, which is the more desirable given current
developments in the field of genetic manipulation.
3.8 American Convention on Human Rights (ACHR) 1969
The American Convention on Human Rights (ACHR) adopted a notably stronger stance
towards fetal rights compared to other international agreements through its recognition of
fetal rights from conception. This provision, found in Article 4, states that "in general, from
the moment of conception, a child is considered as having rights."
This language leaves little ambiguity in establishing the right to life of the unborn under the
ACHR. By utilizing the definitive phrase "from the moment of conception," it grants legal
protection to the unborn from their earliest stages of biological development. Unlike
conventions employing more equivocal terms, the ACHR sets the gestational threshold for
rights at fertilization.
Member states of the Organization of American States that are party to the ACHR have
incorporated this standard into their domestic legal frameworks and abortion laws. For
example, countries with highly restrictive abortion policies like Chile, Dominican Republic
and El Salvador cite the ACHR as a key justification for prohibiting termination in all
circumstances on the basis that fetal life holds inherent rights from conception.

38
The Inter-American Court of Human Rights, established to interpret the ACHR, has bolstered
this view in landmark jurisprudence. In its Advisory Opinion OC-17/2002, the Court
interpreted the Article 4 right to life as "appl[ying] to every human being from the moment of
conception." It ruled member states could not permit abortion under any circumstance
without violating the Convention.
This advisory opinion established an authoritative precedent that legally binds OAS countries
to follow the Court's interpretation of the ACHR provisions. It left no ambiguity around the
need to recognize and protect the life and rights of the unborn from their earliest
developmental stages. While not technically establishing "personhood," it set a high
threshold for protection of fetal dignity.
By presenting the clearest, least equivocal language among international agreements
regarding when life begins, the ACHR has served as a model for the pro-life movement
globally. The Inter-American Court's jurisprudence has strengthened this standard, leaving
signatory states with little flexibility on the abortion issue under their human rights
obligations.
Overall, the ACHR stands apart internationally for its upfront, unequivocal conferral of
inherent rights on the unborn "from the moment of conception." This has reshaped abortion
laws and policy debates across Latin America by establishing a firm foundation for legally
upholding fetal dignity on par with born persons. Its greater definitional clarity leaves less
room for moral relativism around unborn children's basic right to life.
3.9 African Charter on the Rights and Welfare of the Child and its
approach to unborn children's rights:
While not as explicit in its language as other instruments, the 1990 African Charter on the
Rights and Welfare of the Child makes an important implicit recognition of fetal rights.
Adopted under the auspices of the African Union, the Charter aims to protect the vulnerable
through a holistic child welfare framework.
Notably, Article 4 emphasizes the duty of states parties to "ensure special protection" for
expectant mothers during pregnancy and postnatal periods. The inclusion of pregnancy as a
distinct phase requiring focused safeguards points implicitly to the dependent, in utero life
deserving similar consideration. By singling out pregnant women for added rights
protections, the Charter recognizes the unborn as part of the maternal-fetal dyad. Reinforcing

39
this interpretation, Article 4 goes on to assert under section 2 that children's rights include
receiving "care, health services and nutrition." While not explicit, the Charter's overall
context of guarding children's wellbeing suggests it intends this parental obligation to
commence prenatally when nourishment, healthcare access and living conditions have
outsized impacts on fetal development.
Other articles prohibiting torture, inhuman treatment or experimentation on children without
informed consent could likewise extend protection to the most vulnerable pre-birth lives
dependent on maternal health and lifestyle factors. Overall, the Charter adopts a holistic,
health-focused framework aimed at shielding both maternal and fetal stakeholders during
pregnancy as an interconnected period.
While not legally defined as rights-bearing "persons" per se, by implication the unborn
emerge as entitled to indirect safeguards under this protective mandate. As the sole treaty of
its kind on the continent, it sets an imperative notably distinct from a strictly post-birth
approach that offers guidance to African nations.
The Charter's implicit inclusion of fetal interests when defining children as a class
acknowledges the latest medical and scientific understandings. It recognizes the intertwined
maternal-fetal relationship necessitating simultaneous safeguarding from conception. Though
scope for incremental clarity remains, overall the African instrument makes a commendable
effort uplifting fetal welfare consonant with their inherent human dignity.
In conclusion, despite its relatively brief and indirect wording, the African Charter makes a
thoughtful attempt to holistically balance fetal wellbeing and maternal rights through its
implications. It represents an encouraging example of an effectivescientific, rights-based
approach that respects humanity's earliest and most vulnerable forms.
3.10 The United Nations Declaration on the Rights of the Unborn child
(1959)
The 1959 Declaration of the Rights of the Child, adopted by the United Nations General
Assembly, represented a milestone in establishing a universally agreed upon framework for
upholding children's welfare needs. Comprising 10 core principles aimed at fostering
children’s development, it played an important role in laying the groundwork for a children’s
rights-based approach internationally.

40
While the 1959 Declaration did not explicitly address or define the status of children prior to
birth, it helped establish premises that have contributed to growing recognition of fetal rights
over time. Crucially, it was the first international instrument to identify certain inherent
needs, vulnerabilities and dependencies requiring state safeguards where children are
concerned.

By outlining principles like entitlement to special care, shelter, nutrition and medical services
- all intrinsically connected to prenatal development - the Declaration helped emphasize
children’s interests from a welfare-focused lens. It recognized various life stages through
growth each demand protections attuned to unique needs in order to become functioning
persons.
This framework, emphasizing duties to fulfill children’s welfare needs attuned to their
dependent status, has supported arguments for extending basic safeguards throughout
pregnancy. As future born persons uniquely dependent on maternal wellbeing, indirect fetal
interests are served by upholding maternal health and access to prenatal care.
While neonatal morality was a primary driver, the Declaration’s focus on promoting healthy
childhood development also dovetailed with acknowledgment that pre-birth factors
profoundly impact later life outcomes. This aligns with an evolving scientific recognition that
early childhood commences from conception and warrants attendant protections.
Therefore, though unborn children’s situation remained undefined, the 1959 Declaration
crucially laid groundwork for eventually acknowledging their intrauterine life stage as
inherently rights-relevant due to utter dependence and formative impacts on personhood. It
established welfare as inextricably linked to protecting fetal interests through upholding
maternal health and duties of care.
In summary, while not directly dealing with the unborn, the 1959 Declaration contributed
significantly to the incremental conceptual development recognizing unborn children as
deserving rights-based consideration. This occurred through establishing scientific and
ethical foundations emphasizing dependencies and duties that have relevance throughout a
child’s continuum of life, existence and development.
Overview of Most declarations after the Convention on the rights of the unborn child While
no comprehensive international convention solely focuses on unborn children's rights, several

41
declarations have complemented the key human rights treaties by recognizing various aspects
of fetal rights and welfare. These declarations include:

 The 1990 Cairo Declaration on Human Rights in Islam issued by the Organisation of
Islamic Cooperation. Article 7 affirms the need to protect unborn children's rights and
states' obligations to those rights.
 The 1993 Declaration on the Rights of the Unborn Child in Islam adopted by the
Islamic Conference recognizes fetal rights corresponding to developmental phases in
utero.
 The 1983 Arab League Charter on the Rights of the Arab Unborn Child comprising 51
articles outlining civil, political, economic, social and cultural rights for fetal protection.
 The 1990 World Summit for Children Declaration on the Survival, Protection and
Development of Children emphasized upholding child welfare beginning in earliest
stages of life and development.
However, these declarations are non-binding and their scope remains constrained compared
to core treaties like the CRC, ICCPR, ECHR and ACHR discussed earlier. While valuable in
elucidating related regional or religious perspectives, the key internationally enforceable
legal standards stem from authoritative interpretations of fetal rights implications within
binding UN and regional human rights conventions.
No single declaration or convention offers a comprehensive codification devoted solely to
unborn children's rights. But together, these instruments have played a role in building
understanding around states' duties concerning fetal interests as an aspect of developing
international human rights norms.

42
CHAPTER 4

RIGHTS OF THE UNBORN CHILD IN PAKISTAN

As previously discussed, Islamic legal philosophy as embodied in the major schools of
jurisprudence like Hanafi fiqh grants substantial personhood rights to the unborn child from
the stage of conception. The key rights established under Islamic law include the right to life
nullifying permissibility of abortion except to save the mother's life, right to lineage and
family through legitimate marriage, rights of inheritance and bequest vesting from
conception if live birth occurs, right to maintenance and proper care of the pregnant mother,
and rights against harm, violence or negligence from others that may endanger normal fetal
development.
While Pakistan's constitution is silent on defining when life begins legally, as a self-
proclaimed Islamic republic its statutory laws and judicial interpretations adhere closely to
these overarching Islamic principles regarding prenatal rights. Statutes like the Pakistan
Penal Code and laws on willful murder, inheritance, child protection etc. incorporate
protections for the unborn implied or directly stemming from Islamic jurisprudential edicts.
The courts have reinforced this standpoint through rulings recognizing the fetal "right to life"
from any stage and conferring legal personhood enabling murder charges for violence
causing fetal death. This reflects the Islamic position upheld by Pakistan's legal framework
that attributes full humanhood, and attendant civil entitlements to an unborn child, from the
point of fertilization

43
CHAPTER 5

COMPARATIVE BETWEEN RIGHTS OF UNBORN

CHILDREN IN INTERNATIONAL LAW AND ISLAMIC LAW

5.1 Introduction
By comparing the rights of the unborn child in international charters and Islam, we find that
the most fundamental rights are consistent among both Sharia and international charters.
International unborn child’s rights are mostly in agreement with Islamic law and
consistent with the objective of proper unborn child rearing. The rights granted by the
Sharia laws date back fifteen centuries ago and are granted by Allah almighty to realize the
full interest of the individual, and restricts actions only to prevent harm to the unborn child,
other individuals and the community.
This chapter compares how unborn children's rights are addressed in key international human
rights instruments and principles derived from Islamic criminal and family law. Both seek to
uphold certain protections for the unborn, though approach limitations and duties in
somewhat divergent ways (Geneva Declaration, 1924; Turki, 1980).
The international covenants discussed include the 1959 Declaration on the Rights of the
Child, 1989 Convention on the Rights of the Child, and European Convention on Human
Rights. Principles of Islamic law are based on interpretations of Quran, hadith and legal
doctrines of major madhhabs.
While both recognize some shared aims of safeguarding prenatal wellbeing, differences exist
regarding the timing of when legal personhood commences, types of rights acknowledged,
and appropriate limits on reproductive liberties. This chapter analyzes similiarities and
differences between the approaches which are as follow
5.2 Timing of When Rights Attach:
Islamic law attributes legal personality and inherent rights to the fetus from the moment of
conception. This stems from Quranic verses that describe the stages of fetal development
from sperm, leech, embryo and fully developed fetus. References to God creating humans
from "a clinging clot" and "a lump of flesh" prompt scholars to recognize the fetus as a
rights-bearing entity from the beginnings of its formation.
44
Major schools of Islamic jurisprudence concur that the soul is breathed into the fetus at
around 120 days. Before this stage, abortion is permissible only to save the mother's life.
After 120 days, termination is prohibited except in extremely rare circumstances. This shows
Islamic law confers basic human rights on the fetus aligned with its biological development
as articulated in the Quran.
In contrast, international instruments take a more incremental approach to fetal rights. The
1959 Declaration and 1989 CRC reference fetal interests indirectly through provisions on
maternal healthcare. Neither definitively recognize distinct rights of the prenatal entity.
Regional charters imply certain safeguards based on changing social understandings, not
inherent rights as inferred by Islamic law.
The gradual inclusion of fetal considerations globally reflects a non-religious methodology of
cautiously balancing evolving medical knowledge with other rights. For example, the ECtHR
acknowledges conventional order issues an "evolutive interpretation" based on Council of
Europe understanding at any given time.
This diverges from the Islamic legal standpoint anchored directly in divine revelation. Sharia
sets a firm and consistent benchmarks regarding personhood and abortion limits from the
start of fetal existence based on scriptural description, compared to the incremental and
discretionary stances of international covenants.
5.3 Regulating Abortion:
The disparity in timing of rights recognition cascades into dissimilar stances on terminating
pregnancies. Islamic jurisprudence allows abortion strictly before 120 days only when
continuation gravely endangers the mother's physical survival as understood at the time,
reflecting the Quran's emphasis on balancing reproductive roles. Comparatively, international
provisions afford member states flexible gestation limits and array of health-based
justifications responsive to shifting social mores.
This reflects the diverse cultural and political contexts modern laws emerge from versus
religion-based Islamic rulings subjected to continuous exegesis yet anchored in original
textual directives. Divergent degrees of restriction versus discretion in each legal order stems
from these textual-interpretive versus pragmatic-adaptive methodologies in approaching fetal
existence.

45
5.4 Legal Underpinnings:
Islamic law is derived from definitive primary sources of the Quran and sunnah of the
Prophet. As the verbatim word of God, the Quran provides unequivocal guidance on matters
of human existence and conduct. It articulates physical stages of fetal development from
conception in profound detail.
Sunnah narrations supplement this by classifying fetal rights and abortion limits. Together,
they form an objective and absolute measure of accountability beyond temporal cultural
influences. No other consideration aside from divine edicts factor into Islamic rulings.
Reliance on immutable sacred texts anchors fetal rights philosophically rather than subjecting
them to fluctuating understandings. It ensures global consistency of application across
Muslims regardless of location or era. However, some argue this prevents organic evolution
with scientific progress.
International law lacks religion-based foundations. Treaties emerge through pragmatic
consensus-building to balance individual/state interests. Provisions have narrower scopes
tailored to threats faced during drafting rather than holistic comprehensive worldviews.
Fetal rights receive indirect rather than direct codification contingent on maternal wellbeing
considerations and viability parameters. Continuous revisiting fosters accommodation of new
contexts but yields heterogeneity in state-level implementation and occasional incoherence.
Islamic law and international law have different ways of looking at rights for unborn children
in the womb. They come to different conclusions about when rights start, what rights there
are, and how decisions are made.
Islamic law sees rights starting at conception based on the holy Quran. It sees abortion as
only allowed to save the mother's life most of the time. International law talks more about the
mother's health and waits until the unborn child is more formed to give rights.
Islamic law follows what the Quran and hadith directly say. International law balances
different countries' views and changes with new knowledge. Islamic law stays the same but
some say it can't change.
International law protects unborn children indirectly by protecting mothers. Islamic law
protects unborn children directly and also looks at fathers' duties and family issues too.

46
Both try to protect unborn children in the womb. But they have different ways of thinking
because Islamic law follows religion while international law follows agreements between
countries. Looking at the differences helps understand each approach better.
5.5 The rights of the unborn child before birth in international conventions
and Sharia
The Geneva Declaration of 1924 did not address prenatal rights. However, Article 4 of the
1959 Declaration on the Rights of the Child stipulated that maternal healthcare should be
ensured before and after birth to benefit the unborn child. This was reaffirmed in the
preamble of the 1959 Declaration.
While international law focuses on indirect protections through maternal health rights,
Islamic jurisprudence directly recognizes the fetus' right to life from conception based on
Quranic references to fetal development. Sharia also protects the fetus from harm even in
earlier stages as a foetus, as this influences its future wellbeing after birth.
Compared to international law, Islamic law attributes a greater scope of inherent rights and
interest to the fetus from its earliest existence in utero based on religious foundations of
jurisprudence rather than incremental recognition of entitlements.
5.6 Limiting legitimate relationship between men and women in marriage
Sharia law limits the relationship between a man and a woman to marriage in order to protect
and provide a healthy environment for the unborn child. The international conventions do not
directly address this right to a healthy environment prior to unborn childbirth. While this
limitation on relationships may seem unrelated to unborn children’s rights, it is in fact
directly related to preserving the health of the unborn child and the mother. Relationships
outside of the bond of marriage may lead to sexually transmitted diseases, such as AIDS,
which would both harm the unborn child and the mother.
5.7 The right of the unborn child upon his father prior to birth
According to Sharia, a father must choose a righteous mother fit for marriage who is both
religious and in good health. This sharia law, as well as the previous one, grant Islam the
right to intervene in the interests of the unborn child even before birth. Under the
international rights, unborn children are not granted such rights as no rights of its kind exist
prior the formation of a foetus.

47
5.8 Overview of abortion laws in international conventions and Sharia
The problem of abortion is not a newcomer but is facing societies since ancient times
between permissive and blocker parties. In this respect, laws of modern societies are divided
into three views:
Prevention of miscarriage
In Sharia law, under certain conditions abortion may be granted if it saves the life of the
mother. Although the conventions do not discuss this issue, some nations have established
their own rules surrounding this issue. Among those nations who holds this view is Austria
where the Austrian law permits an abortion conducted by a doctor when necessary. It further
grants permission to perform the act without the consent of the mother should it be required
in order to save her life. Other nations who take this position include Cambodia, Senegal,
Pakistan, Turkey, Tanzania, Hong Kong, much of the United States, and almost all the
Commonwealth states.
Restrict abortion with pregnant consent
Another midway position has not permitted abortion with pregnant consent, but at the same
time expanded on the reasons that allow abortion to save the mother's life to include the
preservation of mother's life to physical and psychological reasons such as Ghana,
Malawi, and Mauritius, Tunisia, Canada, Argentina and Honduras, and some of the United
States.306 Under the Islamic law, aborting the baby before it has been changed into an
individual with a spirit in the womb is not named or seen as killing a person and along this
perspective, it is not prohibited (haram). In any case, in the event that this act is not done with
the consent of the father and mother, then it becomes an act of mistreatment to them two or to
one of them.
Punishment
Abortion is not punishable by law, however there are restrictions in place to prevent and
discourage clandestine abortions. Such procedures, often performed in illegal clinics, are
more dangerous and pose greater health risks. Among the States which adopt this position
are Scandinavia, United Kingdom, Switzerland, United States, Japan, and France. These
States have been leading the path to sanction abortion; such sanctions include that of 1979
which declared pregnant women must decide to perform the abortion prior to the first ten

48
weeks of pregnancy with the consent of a doctor or legal representative at a hospital. As the
conflict between opinions rages on, with one side permitting abortion and the other
prohibiting it, a few
States remain firm on their stance to prevent or limit abortions such as Germany, Italy, Spain,
Sweden, Netherlands, Belgium, Greece, and most of the Latin American countries. It should
be noted that the states that legalized abortion did so in order to reduce criminal
abortions.
In Japan, for example, the number increased to millions of criminal abortions after
legalizing of abortion. Not only Japan, according to the Intensive Therapy Unit statistics, it
was recorded that there was an estimate of around 30 million abortions annually. This is one
of the most important reasons for mortalities among women; women who have
abortions, usually girls under the twenty-fifth year, are estimated to be approximately 61%.
However, the main motivation for abortions in all societies is the illegal pregnancy.
Generally, through the world there are about 46 million abortions annually, 20 million
abortions are carried out in those countries in which abortion without reason is
prohibited such as Arabic countries in general except for Tunisia. 26 million abortions
are carried out in those countries in which abortion is allowed legally such as Canada,
Mexico, Salvador and Colombia, Spain, Poland, Russia, France, Finland, Japan, Chine,
Vietnam, German, France, Sweden.
According to the World Health Organization (WHO), every 8 minutes a woman in a
developing nation will die of complications arising from an unsafe abortion. 314 Women who
have undergone one, two or three abortions are prone to risk of preterm birth. Also, women
who have undergone abortion several times, are prone to the risk of late delivery, or ectopic
pregnancy, which is kind of unusual pregnancy, threatening the lives of mother and the
foetus together.
However, man-made legislation differed between permitting and prevention. Abortion was
denied in all religions only if leaving the pregnancy threatens the mother's life. The Islamic
Shariah permitted abortion in the case of fetal deformity if confirmed by medical scientists
accurately and if not curable. In order to avoid unwanted pregnancy, governments should
legislate and facilitate the access of women to family planning services.

49
This is the reality in the regions where family connections are destroyed by the laws
permitting sexual freedom, which led to widespread abortion of corruption as well as
the proliferation of illegitimate births. The issue of abortion in these countries is
associated mainly as a way to get rid of pregnancy when the outcome of sexual relationships
leads to pregnancy while, in Islam, the relationship between the two sexes is characterized
by purity and cleanliness in marriage.

50
CHAPTER 6

CONCLUSIONS AND RECOMMENDATIONS

6.1 Conclusion
In conclusion, this comparative study has examined the rights of the unborn child under
Islamic jurisprudence and international law, revealing significant differences and some
similarities in their approaches to fetal rights and protections.
Islamic law, rooted in religious texts and interpretations by jurists, recognizes the fetus as
having rights from conception. These rights are gradually expanded as the fetus develops,
with significant milestones such as the puffing of the soul at 120 days, which marks the fetus
as a legal person with a right to life. Islamic law affords the fetus social rights through the
rights of the parents, property rights through inheritance, bequest, and endowment, and
strictly limits abortion, allowing it only to save the mother's life. Compensation and expiation
are mandated if the fetus is harmed due to an offense, underscoring the value placed on fetal
life.
Conversely, international law, represented by documents like the Geneva Conventions and
various Western legal systems, tends to grant specific safeguards to the fetus later in the
gestational period, focusing more on viability and balancing fetal rights with maternal
autonomy. While there are implied protections for the fetus, international law generally does
not confer legal personhood from conception, nor does it grant explicit social or property
rights to the fetus. Abortion laws in these contexts are more flexible, adapting to evolving
social and health considerations rather than adhering to fixed religious doctrines.
The key divergence lies in the timing and nature of legal personhood and rights recognition.
Islamic law's conception-based framework contrasts with the international law's viability-
based approach, reflecting differing cultural, religious, and philosophical underpinnings.
Despite these differences, both systems aim to uphold the inherent worth of the developing
human, albeit through distinct methodologies and scopes of protection.
This analysis highlights the broader implications of cultural and legal paradigms in shaping
fetal rights. It underscores the importance of considering diverse perspectives in international

51
discourse on prenatal protections, fostering a more inclusive understanding that respects
various legal traditions and moral convictions.
6.2 Recommendations
In light of the analysis of the rights of unborn children from both international organizations
and Islamic texts, it is recommended that the international community develop a cohesive
framework to protect unborn children. Below are recommendations for implementing these
rights:
Dissemination of Knowledge
Information about the rights of unborn children from both international declarations and
Islamic law should be widely disseminated through print and visual media. Educating the
public, particularly through primary education, about these rights will ensure that individuals
are aware of the protections granted to unborn children. This increased awareness can foster a
global culture that respects and upholds the rights of the unborn.
Regulation of Abortion Clinics
Abortion remains a contentious issue; however, it is crucial to provide expectant mothers
with access to safe and standardized medical facilities. Abortion clinics should adhere to the
health guidelines outlined by international organizations, and where applicable, align with
Islamic laws. Nations should retain the authority to implement specific abortion laws, but
clinics should universally follow international health standards to ensure the safety and well-
being of women.
Legal and Policy Harmonization
Encourage nations to harmonize their legal frameworks with international standards and
Islamic principles where applicable. This alignment can help create a unified approach to the
rights of unborn children, ensuring consistency and protection across different legal systems.
Advocacy and Support Programs
Develop advocacy programs to support the rights of unborn children, involving civil society
organizations, healthcare providers, and educational institutions. These programs can raise
awareness, provide support to expectant mothers, and promote policies that protect fetal
rights.
Research and Data Collection

52
Invest in research and data collection on the status of unborn children's rights globally. This
information can inform policy decisions, identify gaps in protection, and track progress over
time, ensuring that the rights of unborn children are continuously upheld and improved.

REFERENCES

Article
Arbone, J. (2014). Legal Applications of the "Best Interest of the Unborn child" Standard:
Judicial Rationalization or a Measure of Institutional
Competence?. PEDIATRICS, 134(Supplement), S111-S120.
http://dx.doi.org/10.1542/peds.2014-1394g
Assembly, U. G. (2014). Convention on the Rights of the Unborn child.
Assim, U. M., & Sloth-Nielsen, J. (2014). Islamic kafalah as an alternative care option for
unborn children deprived of a family environment. African Human Rights Law
Journal, 14(2), 322-345.
Bankole, A., Singh, S., & Haas, T. (1998). Reasons why women have induced abortions:
evidence from 27 countries. International Family Planning Perspectives.
Bennett Jr, W. H. (1987). Critique of the Emerging Convention on the Rights of the Unborn
child, A. Cornell Int'l LJ, 20, 1.
Cairo Declaration on Human Rights in Islam: Done at Cairo, 5 August 1990. (2008). Refugee
Survey Quarterly, 27(2), 81-86. http://dx.doi.org/10.1093/rsq/hdn020
Cleaver, H., Unell, I., & Aldgate, J. (2011).Unborn children's Needs-Parenting Capacity:
Unborn child Abuse-Parental Mental Illness, Learning Disability, Substance Misuse
and Domestic Violence. The Stationery Office.
Commitment, Yokohama Global (2001). Adopted at the Second World Congress against
Commercial Sexual Exploitation of Unborn children. Yokohama, Japan, 17-20.
Daly, A. (2016). “Article 33: Protection from Narcotic Drugs and Psychotropic Substances”,
in A. Alen, J. Vande Lanotte, E. Verhellen, F. Ang, E. Berghmans, M. Verheyde and
B. Abramson (eds), written by D. Barrett and P. Veerman. The International Journal
of Unborn children's Rights, 24(1), 231-234.
Donohue, J., & Levitt, S. (2000). The impact of legalized abortion on crime(No. w8004).
National Bureau of Economic Research.

53
Düzbakar, Ö. (2006). Abortion in the Islamic-Ottoman Legal Systems. JISHIM, 5.
Advocates, Imams, and Communities. Peaceful Families Project, Asian & Pacific
Islander Institute on Domestic Violence, and Battered Women’s Justice Project.
El Fadl, K. A. (1999). The rules of killing at war: An inquiry into classical sources. The
Muslim World, 89(2), 144.
Fischer, C., & Kasper, J. (2013). Access to Contraception. Geo. J. Gender & L., 15, 37.
Fleming, D. J. I., & Hains, D. M. G. (1997). What Rights, If Any, Do The Unborn Have
Under International Law?. Australian Bar Review, 16(2), 181-198.
General Assembly Security Council (2006).
Geneva Declaration on the Rights of the Unborn child (1923)
Ginsburg, K. R. (2007). The importance of play in promoting healthy unborn child
development and maintaining strong parent-unborn child bonds. Pediatrics,119(1),
182-191.
Haddad, L. B., & Nour, N. M. (2009). Unsafe abortion: unnecessary maternal mortality.
Reviews in obstetrics and gynecology, 2(2), 122.
Henshaw, S. K., Singh, S., & Haas, T. (1999). The incidence of abortion worldwide.
International family planning perspectives, S30-S38.
ICRC (2009). Unborn children at war. International Committee of the Red Cross 19, avenue
de la Paix 1202 Geneva, Switzerland.
Irving, D. N. (1999). When do human beings begin? scientific myths and scientific
facts.International journal of sociology and social policy,19(3/4), 22-46.
Karimova, T., Giacca, G., & Casey-Maslen, S. (2013). United Nations human rights
mechanisms and the right to education in insecurity and armed conflict. Geneva
Academy of International Humanitarian Law and Human Rights
Kent, G. (2006). Unborn child feeding and human rights.International breastfeeding journal,
1(1), 1.
Krill, F. (1985). The protection of women in international humanitarian law.International
Review of the Red Cross, 25(249), 337-363.
Lee, Y., & Svevo-Cianci, K. (2011). General Comment no. 13 to the Convention on the
Rights of the Unborn child: the right of the unborn child to freedom from all forms of
violence. Unborn child abuse & neglect,35(12), 967-969.

54
Lester, S., & Russell, W. (2010). Unborn children's Right to Play: An Examination of the
Importance of Play in the Lives of Unborn children Worldwide. Working Papers in
Early Unborn childhood Development, No. 57. Bernard van Leer Foundation. PO
Box 82334, 2508 EH, The Hague, The Netherlands.
Lindsey, D., & Sarri, R. (1992). What Hillary Rodham Clinton really said about unborn
children's rights and unborn child policy. Unborn children and youth services review,
14(6), 473-483.
Merin, Y. (2005). The right to family life and civil marriage under international law and its
implementation in the State of Israel. Boston College International and comparative
law review,28.
No, CRC General Comment. 6 (2005): Treatment of Unaccompanied and Separated Unborn
children Outside their Country of Origin. above note 103.
No, General Comment 14 (2013) on the right of the unborn child to have his or her best
interests taken as a primary consideration (art. 3, para. 1). Committee on the Rights of
the Unborn child.
Nuryanto, N. (2014). Hadhanahdalam Perspektif Hukum Keluarga Islam. Jurnal Tapis, 14(2).
Plan of Action for Implementing the World Declaration on the Survival, Protection and
Development of Unborn children in the 1990s. (1990). Asia-Pacific Journal Of Public
Health, 4(2-3), 102-110. http://dx.doi.org/10.1177/101053959000400304
Plattner, D. (1984). Protection of unborn children in international humanitarian law.
International Review of the Red Cross, 24(240), 140-152.
Poland submitted a draft resolution to be recommended for adoption by the UN Economic
and Social Council. The resolution contained a draft text for the Convention on the
Rights of the Unborn child. Cf. Detrick (1999:14f.).
Powell, F. M. (2008). "The Rights of the Unborn child, the Rights of Parents, and the Role of
the State in Relation to Education-Freedom of Education and the Cultural Right to
Education." Retrieved 18 June 2016 from Academia.edu.
Puppinck G (2015). Abortion In European Law: Human Rights, Social Rights And The New
Cultural Trend. Ave Maria International Law Journal.
Revaz, C. R. (2001). The Optional Protocols to the UN Convention on the Rights of the
Unborn child on Sex Trafficking and Unborn child Soldiers. Hum. Rts. Br., 9, 13-30.

55
Rowan A. (2015). Prosecuting Women for Self-Inducing Abortion: Counterproductive and
Lacking Compassion. Policy Review Summer 2015 | Vol. 18, No. 3.
Saeed, L. A. (1984). The rights of the unborn child in the family: A comparative study.
Journal of Rights.
Stephan Dahlgren and Roxana Stere (2010). The Right Of Unborn children To Be Protected
From
Narcotic Drugs And Psychotropic Substances A Human Right/International Law Perspective.
UNICEF. (1989). Convention on the Rights of the Unborn child: Adopted and opened for
signature, ratification and accession by General Assembly resolution 44/25 of 20
November 1989: Entry into force 2 September 1990, in accordance with article 49
UNICEF. (2006). Alternative care for unborn children without primary caregivers in
Tsunamiaffected countries: Indonesia, Malaysia, Myanmar and Thailand.
UNICEF. (2008). Rights under the Convention on the Rights of the Unborn child.
UNICEF. (2008). What you can do about alternative care in South Asia–an advocacy tool kit.
Nepal: UNICEF.
UNICEF. (2013). The Stockholm declaration and agenda for action.
UNICEF. The Convention on the Rights of the Unborn child. Guiding principles: general
requirements for all rights.
United Nation General Assembly (2014). Convention on the Rights of the Unborn child.
United Nations. (2009). Convention on the Rights of the Unborn child.
United Nations.,. (2005). Human Rights and Prisons: A Manual on Human Rights Training
for Prison Officials (Professional training series, 1020-1688 ; no. 11). United Nations.
Van Bueren, G. (1998). The international law on the rights of the unborn child (Vol. 35).
Martinus Nijhoff Publishers.
Venice Commission. (2010). Blasphemy, insult and hatred: finding answers in a democratic
society. Science and Technique of Democracy, (47), 1-306.
Weissbrodt, D., Hansen, J. C., & Nesbitt, N. H. (2011). Role of the Committee on the Rights
of the Unborn child in Interpreting and Developing International Humanitarian Law,
The. Harv. Hum. Rts. J., 24, 115

56