Is a Foetus a Person in Imami Fiqh? by Dr Mohammad Rasekh

Dr Mohammad Rasekh (Shahid Beheshti University and Institute of Ismaili Studies)

Under Imami fiqh (Muslim jurisprudence), various rules are applicable to foetus. Among them, this research focuses on the rules on blood money (dīyya) and inheritance (irth), as applicable to foetus, in order to examine the underlying personhood picture of the entity. That is to say, a question may be raised on whether the said rules share similar understanding of foetus as person. In this regard, taking into account the relevant rulings on the two topics embedded in the major fiqhi (jurisprudential) corpuses authored by Imami jurisprudents, such as those compiled by Ṭūsī , Muḥaqqiq Ḥillī, Ibn ‘Idrīs, Khānsārī and Khu’ī, it can be said that the rules on blood money, to be paid as compensation for the harm inflicted on foetus, consider the entity as a person. The least reason is that, according to them, the money would be inherited by the heirs to the foetus, rather than by the mother alone. Heirs are certainly heirs to a person. In comparison, those rules on the right of a foetus to inheritance make it conditional on the foetus being born alive, even for one second. It means that when it comes to the issue of inheriting, foetus is not regarded as a person at any stage of pregnancy period. In other words, foetus does not turn into a person, i.e., an entity that bears rights and responsibilities, unless and until it is born alive.

Therefore, the answer to the question stated in the title of this research is both in the affirmative and the negative. On the other hand, the said rules and rulings on the two status are undoubtedly reasoned for. However, they do not seem to embody a consistent personhood picture of foetus. Can the inconsistency be countered by the existing reasoning and rule inference method of the prevalent Imami jurisprudential tradition? If not, what can be offered as a way out of the conundrum?