Chapter: Establishing the Uterus’s Freedom from Pregnancy

Whoever comes into possession of a female slave with whom intercourse is possible—whether the owner is a minor, an adult male, or the opposite of either—may not have intercourse with her, nor engage in its preliminaries, before establishing that her uterus is free from pregnancy. If she is pregnant, this is established by her giving birth; if she menstruates, by one menstrual period; and if she is post-menopausal or young, by the passing of one month.

His statement, “establishing the uterus’s freedom from pregnancy”: this word contains additional letters and root letters. The additional letters are the alif, sin, and ta’; its root letters are the ba’, ra’, and hamzah. It is derived from barā’ah (freedom or clearance), meaning to be rid of something. Thus, they say, “He is cleared of his debt,” meaning that he has discharged it and nothing remains due from him.

In the legal sense, it means: waiting for a period intended to establish that the uterus of a female slave is free from pregnancy. This is how they have defined it. The correct definition, however, is: waiting for a period intended to establish that the uterus is free from pregnancy—not merely the uterus of a female slave—for establishing the uterus’s freedom from pregnancy may apply to someone other than a female slave. It has already been mentioned that, according to the stronger view, the waiting period of a woman with whom intercourse occurred by mistake is one of establishing the uterus’s freedom from pregnancy; the same applies to a woman who committed fornication and a woman with whom intercourse occurred under an invalid marriage contract, and so forth.

By our saying, “to establish,” we do not mean that once she menstruates, it is necessarily known that her uterus is free from pregnancy, for a pregnant woman may menstruate. Yet, when certain knowledge cannot be attained, the apparent indication is relied upon, since the general assumption is that a pregnant woman does not menstruate. Thus, menstruation here is an outward sign, not a certain indicator or conclusive proof. One of the established principles of the sacred law is that when certainty is unattainable, preponderant probability is acted upon. In this case, we cannot be certain that her uterus is empty except by opening her abdomen, and opening the abdomen is difficult, for she may die. Rather, preponderant probability—the apparent indication—is sufficient.

And by our saying that it is not possible to know that her uterus is free from pregnancy except by opening the abdomen,