inherit, because the birth was not completed. Thus, he must give a cry after birth—after separating from his mother and coming out; otherwise, he does not inherit. The inheritance of a fetus therefore has a prior condition and a subsequent condition. The prior condition is that its existence at the time of its testator’s death be known. If this is not known—for example, if she gives birth to it after six months or more while she has been having intercourse—then it does not inherit, because we do not know whether its mother conceived it before the testator’s death or afterward.

For this reason, we sometimes prevent a man from having intercourse with his wife when her pregnancy would inherit from the deceased. For example, if a man marries a woman who has children from a previous husband, and one of her children dies, we say: Do not have intercourse with her, for if he does, the child in her womb will become a maternal sibling and will inherit. So we say: Do not have intercourse with her until she menstruates. Once she menstruates, it is known that there is no fetus in her womb.

The subsequent condition is that it gives a cry at birth. If both conditions are not fulfilled, it has no share of inheritance.

“If it is not known which of the twins gave a cry at birth, and their respective shares differ, it is determined by drawing lots. The intersex person whose sex is indeterminate inherits half the share of a male and half the share of a female.”

His statement, “If it is not known which of the twins gave a cry at birth, and their respective shares differ, it is determined by drawing lots,” means: if it is unknown which of the twins gave a cry at birth, then, if their shares are the same, there is no need to draw lots, because it makes no difference whether it is this one or that one. But if their shares differ—for example, if one is male and the other female—then one of them must be identified by drawing lots, because drawing lots is a means of determining what is indeterminate when no other means is available.

Drawing lots is mentioned in two places in the Noble Quran and in six instances in the sunnah. It is a legislated means of determining what is indeterminate. In the Noble Quran, it occurs in Surah Al Imran: “You were not with them when they cast their pens to decide which of them should be entrusted with Mary, nor were you with them when they disputed.” [44]