Chapter on the Inheritance of the Fetus

From time to time a fetus may be counted among the prospective heirs, and the difficulties that arise in such a case are self-evident. We do not yet know whether the fetus will be born alive or dead, whether it will be one child or several, or whether it will be female or male; and the legal ruling generally varies with each of these possibilities. For this reason the jurists—may Allah have mercy on them—have given the question special attention and set aside a distinct chapter for it in the textbooks of inheritance law.

A fetus is the offspring carried in the womb. Here we mean a being in the womb of a human mother when the estate-leaving relative died while she was pregnant with it, and which, if born alive, would inherit or exclude others from inheritance under every possible assumption, or would do so under some assumptions.

By unanimous agreement a fetus is entitled to inherit only when two conditions are met:

1. Its presence in the womb at the moment the deceased died, even if it existed only as a fertilized drop of semen.

2. Its subsequent delivery alive with a stable life, in keeping with the Prophet’s—peace and blessings be upon him—statement, “When the newborn gives its first cry, it inherits,” recorded by Abu Dawud, and authenticated by Ibn Hibban.