ميراث الحمل بين القدماء والمعاصرين من الفقهاء وتطبيقه في ترنجانو : دراسة مقارنة

Abstract

This research aims to explain the inheritance provisions related to pregnancy, compare pregnancy inheritance across the four schools of thought, explain the impact of modern medical developments, and examine how these provisions are applied in Malaysia, particularly in the state of Terengganu. In this research, the researcher adopts four approaches: First, the inductive approach, which is used to trace and collect both classical and modern opinions found in heritage books or contemporary scholars' works that address the issue, as well as decisions made by various jurisprudence academies and conferences. This includes books, articles, and encyclopedias related to contemporary medical developments that affect pregnancy inheritance. Second, the analytical approach, which involves examining jurisprudential texts in classical and contemporary jurisprudential books, to understand scholars' opinions. This also includes their evidence on the topic of pregnancy inheritance, the procedures for executing pregnancy inheritance cases in Terengganu and the impact of modern medical developments such cases. Third, the comparative approach, which aims to compare the opinions of scholars from the four schools of thought regarding pregnancy inheritance, as found in the jurisprudential books, university research, journals, and articles, with the views of contemporary scholars concerning the impact of modern medical developments on pregnancy inheritance. Fourth, the field study, which constitutes an important part of this research, as interviews will be conducted with key stakeholders involved in the management and implementation of inheritance laws in Malaysia. These interviews will be held with representatives from the Syariah Court in Terengganu and Amanah Raya Berhad, who play vital role s in overseeing inheritance cases. The researcher concludes the research with a set of findings: Islamic jurists agree that a fetus in the mother’s womb is entitled to inheritance under two main conditions: it must be present in the womb at the time of the deceased’s death and be born alive. However, classical and contemporary scholars have differed in determining the maximum duration of pregnancy. Classical jurists considered it to range between six months and four years, whereas contemporary scholars, relying on modern medical science, limit it to 330 days. In Terengganu, Syariah courts adopt systematic procedures to preserve fetal inheritance rights. The research highlights the necessity of strengthening collaboration between scholars and medical professionals, alongside developing more precise judicial mechanisms, to ensure the consistent protection of fetal inheritance rights in modern legal practice.