Ibrahim, Suliman and Biggs, Hazel and Fovargue, Sara (2008) The moral and legal status of the human foetus : a critical analysis from an Islamic perspective. PhD thesis, Lancaster University.
Abstract
This thesis aims to ascertain what the status of the human foetus should be in Libyan law where it is currently inadequately determined. Specifically, is the foetus a person, a type of property, or something else, and is humanity significant for such a determination? Additionally, is moral status related to legal status, and if so, how? Also, what implications does this have for foetus-related dilemmas such as abortion and foetal research? These questions will be addressed by examining relevant Western moral and legal arguments and theories from an Islamic perspective, which will provide an assessment of their compatibility with the Shari’a based Libyan legal system. This will also help to assess the capability of Shari’a to meet challenges posed by new reproductive technologies. The thesis argues that legal personality, moral personality, and humanity are identical and find their foundations in moral agency, which is understood in Shari’a as an attribute residing in the soul. It claims that the foetus acquires ultimate moral agency along with an active potentiality for actualising it, at the twentieth week of gestation, which, according to this analysis, is when ensoulment occurs. At this point the foetus is held to have the attributes of a person, but prior to this the foetus is considered to have a passive potentiality for moral agency, entitling it to respect proportional to its proximity to having ultimate moral agency. Accordingly it is argued that, while non-therapeutic applications harmful to the foetus should be absolutely prohibited after ensoulment, they can be legitimate prior to that if the benefits outweigh the harm. These conclusions demonstrate that Shari’a is capable of tackling the challenges of modern reproductive technologies. They also provide a plausible basis for reforming Libyan law on the status of the foetus, and show that Western moral and legal arguments can be compatible with Shari’a. This may pave the way for further studies that incorporate principles from both the West and Islam.