Blood Money for a Miscarried Dead Fetus: Slave or Bondwoman
Written by: Imran Ayub Lahori
❖ Ruling from Hadith
If a child comes out of the womb dead, the blood money (diyah) is the payment of one slave (male or female).
Ghurrah: Literally refers to the whiteness on a horse’s face. Imam Jawhari (رحمه الله) explained that here it refers to the whole body, i.e., a full slave.
(Nayl al-Awtar, 4/512; Mukhtar al-Sihah; Ghurar)
① Narrated Abu Hurairah (رضي الله عنه):
The Messenger of Allah (ﷺ) judged regarding the fetus of a woman from Banu Lahyan, which had been miscarried dead:
بغرة عبد أو أمة
“…for it is to be paid as one slave or bondwoman.”
(Bukhari: 5758, 5759; Muwatta: 2/855; Tirmidhi: 1410; Abu Dawud: 4576; Nasai: 8/47)
② Another narration mentions:
Two women from the tribe of Hudhayl fought, and one threw a stone at the other, causing both her and her unborn child to die. The case was brought before the Prophet (ﷺ), who ruled:
أن دية جنينها غرة عبد أو وليدة
“The blood money for her fetus is a slave or bondwoman.”
(Bukhari: 5759; Muslim: 1681; Nasai: 8/48; Ahmad: 2/236)
❖ Conditions for Diyah According to Scholars
- Hanafi view: Diyah is due if any part of the child is formed, such as nails or hair.
(Al-Fatawa al-Hindiyyah, 6/34; Hashiyat Ibn ‘Abidin, 6/587) - Maliki view: Diyah is due only if the fetus is complete, or at least has become a lump of flesh.
(Mawahib al-Jalil, 6/257; Al-Khurashi, 8/38; Hashiyat al-Dusuqi, 4/268) - Shafi‘i and Hanbali view: Diyah is due once the fetus becomes a lump of flesh, and this must be proven by testimony.
- Shafi‘is: Testimony of four women.
- Hanbalis: Testimony of some trustworthy women.
(Al-Muhadhdhab, 2/198; Al-Mughni, 8/406)
- Ibn Hajar (رحمه الله):
The fuqaha agreed that ghurrah (slave or bondwoman) is due only when the fetus comes out dead. If it comes out alive and dies later, then qisas or full diyah becomes obligatory.
(Fath al-Bari, 14/247)
❖ If the Fetus Dies After the Mother’s Death
- Hanafi & Maliki view: If the fetus dies after the mother’s death, only the mother’s diyah is due; nothing further for the fetus except discretionary punishment (ta‘zīr).
(Bada’i‘ al-Sana’i‘, 7/326; Al-Sharh al-Kabir, 4/269; Bidayat al-Mujtahid, 2/408; Al-Qawanin al-Fiqhiyyah, p. 347) - Shafi‘i & Hanbali view: Both the mother’s diyah and ghurrah for the fetus are due, whether the fetus died during the mother’s life or after her death.
(Al-Mughni, 7/802; Kashshaf al-Qina‘, 6/22; Mughni al-Muhtaj, 4/103)
❖ Preferred Opinion (راجح)
The view of the Shafi‘is and Hanbalis appears stronger and closer to the Ahadith:
- The diyah for the mother, and
- Ghurrah (slave or bondwoman) for the fetus,
whether the fetus dies during her life or after her death.
