Browsing by Author "Muhammad Nur bin Daud"

This research focuses on describing the property rights and the criminal provisions and rulings related to a fetus. Specific rulings related to the lineage of a fetus after its birth would also be touched. Consequently, a comparison between Islamic Jurisprudence and Malaysian Common Law would be conducted in terms of rulings related to a fetus. The researcher uses three methods, i.e. analytical method, deductive method and comparative method. The first method is used for analyzing the legal texts in Islamic Jurisprudence (al-Kutub al-Fiqhiyyah) and opinions of Muslim jurists and their legal proves for deducing rulings of the Shari‘ah, which are related to the topic. An analysis of the fetus’ rights under the Malaysian Law is also done. The second method is used to collect and combine the views of classical and contemporary scholars with regard to the laws of a fetus. The third method is used to achieve two objectives: to compare the opinions of Muslim jurists and to choose the strongest (rajih); and to compare between the provisions of Malaysian Common Law on a fetus and rulings of Islamic Law in this regard. This research has discovered many findings. Firstly, there is no major difference of opinions among linguists, Muslim jurists, and Malaysian legal practitioners with regard to the meaning of “fetus.” They are unanimous in defining “fetus” in general as a “child as long as it remains in the mother’s womb”. According to the view of the majority of the jurists (jumhur), a man’s life begins after the fetus’s quickening and that takes place 120 days following fertilization. In addition, Muslim jurists have diverse opinions with regard to a fetus’s property rights, which include right of inheritance, right of will, right to gift, etc. Abortion is defined as “the termination of pregnancy by a woman herself or other parties by way of medication or other ways from the earliest stage of the pregnancy until its end. Another finding contends that Muslim jurists unanimously agree that abortion is prohibited (haram) after the fetus’s quickening (nafkh al-ruh) except in emergency, i.e. saving the mother’s life, if the existence of the fetus threatens her life. Moreover, according to Islamic Law and Malaysian Common Law, the lineage of an illegitimate child (walad al-zina) is established to its mother. According to the strongest view (rajih) in Islamic Law and Malaysian Common Law, the use of DNA is not permissible in denying or establishing the lineage of an illegitimate child. Finally, in order to decide the lineage of a child, both Malaysian Common Law and Islamic Law have divided surrogate mothers into two types: married and unmarried.