Chapter: Rulings Regarding Mothers of Children

If a free man fathers a child by his slave woman, or by a slave woman jointly owned by him and another, or by his son’s slave woman, and the child is born free—whether alive or dead, provided that the human form has become discernible, rather than being a mere clot of flesh or an unformed body—she becomes his mother of a child. She is emancipated upon his death from all of his estate, ..........

His statement, “mothers of children”: the term ummahāt is used for human beings, while ummāt is used for animals. Thus, one says, “the mothers of the lambs,” using ummāt, and not ummahāt. The term ummahāt is used only for human beings. Allah the Exalted says: “Prohibited to you are your mothers” [al-Nisāʾ 4:23].

His statement, “mothers of children,” refers to women who bear a child to their master—as will follow—but subject to certain conditions.

His statement, “If a free man fathers a child by his slave woman,” means that she becomes a mother of a child when the conditions mentioned are met.

His statement, “a free man,” excludes a slave. A slave cannot own property; even if ownership is conferred upon him, he does not own it according to the well-known position of the school. It also excludes a mukātab (a slave contracted to purchase his freedom), for the mukātab is a slave. Therefore, if he fathers a child by a slave woman whom he bought to earn income through her—assuming it is valid for him to have intercourse with her—she does not become a mother of a child. Rather, this applies only when a free man fathers a child by his slave woman.

His statement, “or by a slave woman jointly owned by him and another”: as for his own slave woman, this is clear. As for a slave woman owned by him and another—that is, jointly owned—it is not permissible for a partner to have intercourse with her, neither by virtue of ownership, since he does not possess her exclusively, nor through marriage, since an owner may not marry his own slave woman, and he has ownership in her. Yet this may occur through intercourse under a mistaken assumption: for example, he finds a woman asleep in his wife’s bed and has intercourse with her, only to discover that she is the jointly owned slave woman.

His statement, “or by his son’s slave woman”: if he fathers a child by his son’s slave woman, she becomes a mother of a child. The author states this without qualification, which implies that there is no difference between whether the son had intercourse with her or