Chapter on the Inheritance of the Fetus and the Ambiguous Intersex Person

If a deceased person leaves heirs among whom there is a fetus, and they request a division of the estate, the larger of the shares of two males or two females is reserved for the fetus, …………

By this heading, the author—may Allah have mercy on him—indicates that a fetus may inherit, but subject to the condition that its existence at the time of its benefactor’s death is known. If this is not known, it does not inherit. This applies where it is born six months or more after its benefactor’s death while its mother is sexually accessible: in that case, it cannot be known whether the mother conceived it before or after the benefactor’s death. Therefore, it must be said that the fetus’s existence at the time of its benefactor’s death must be known. This is established if she delivers it alive less than six months after her benefactor’s death. This is the first case, because a fetus cannot be born alive before six months.

The second case is where she gives birth to it after four years. It does not inherit, based on the jurists’ view that the maximum term of pregnancy is four years—may Allah have mercy on them.

The third case is what falls between these two: that she gives birth to it six months or more after her benefactor’s death. If she is not sexually accessible, we know with certainty that it existed at that time; but if she is sexually accessible, we do not know, because it is possible that she conceived it after the benefactor’s death. Otherwise, it does not inherit.

As is known, the fetus may be male or female; or there may be a male and a female, two males, or two females. It may also emerge alive or be delivered dead. All of these are possibilities; therefore, certainty is applied in determining its inheritance.

His statement, “If a deceased person leaves heirs among whom there is a fetus, and they request a division of the estate,” indicates to us