His statement, “a pregnant slave woman, even if he excludes her unborn child”: emancipating a pregnant slave woman is valid, even though she has something that prevents work and clearly impairs her ability to work, because this is temporary and customary.

If someone were to ask, “Does he emancipate her together with the child she carries?” We say: That is not necessary. If he excludes her unborn child, there is no problem. Thus, he may say, “You are free, except for what is in your womb.” This is permissible, and the unborn child remains a slave.

If it is said, “The unborn child is unknown,” we reply: This is not an exchange transaction. An unknown item is impermissible in exchange transactions because the one offering compensation is taking a risk: his affair lies between gain and loss. As for that in which no compensation is involved, it is permissible even if unknown. It was previously mentioned in the chapter on sales that if a person sells something while excluding its unborn offspring, the established position of the school is that this is invalid. The correct view, however, is that it is permissible, because the unborn offspring is known and is not something that diminishes the thing sold itself; rather, it is separate from it. Thus, just as it is valid to sell her when she is not pregnant, it is likewise valid to sell her while pregnant and exclude her unborn child. It was previously established that this is permissible, though an objection was raised against it: the Messenger ﷺ “forbade the sale of unborn offspring” (1). So how can you permit excluding it?

We answered that excluding the unborn offspring in a sale is retention, not the acquisition of a new ownership. When I say to you, “I have sold you this cow—while she is pregnant—except for her unborn offspring,” you have not purchased the unborn offspring from me such that you have offered compensation for something unknown. Rather, it is a retention; and there is a difference between retention and an exchange transaction. In sum, it is permissible to emancipate a pregnant slave woman as an expiation while excluding her unborn child, and the unborn child remains a slave belonging to her master.