while still in her womb. In that case, they all agree that she does not acquire that status in relation to him, because the child in her womb has already become free through the ownership of the person who purchased her. According to Ibn al-Qāsim and his report from Mālik, she acquires that status only if his purchase of her causes the child to become free through his ownership. There is disagreement concerning his purchasing her from his father. Ibn al-Qāsim permitted it and did not regard it as equivalent to purchasing a slave woman whose unborn child is excluded from the sale. As for children she bore him within marriage before he purchased her, Mālik and all his followers hold that she does not thereby acquire that status, contrary to Abū Hanīfa, who holds that she does.

Section

A slave’s female slave does not acquire the status of a slave woman who has borne her master’s child by bearing him children while he is enslaved. According to Ibn al-Qāsim, she does not acquire that status even if he is emancipated while she is pregnant by him, whether she conceived while belonging to him or was his wife, conceived by him, and was then purchased by him while pregnant—unless he acquires ownership of the unborn child through a gift, charity, or something similar. Two opinions concerning the permissibility of his purchasing her may be derived from the school’s principles:

The first is that this is impermissible, because purchasing an unborn child in its mother’s womb involves prohibited uncertainty.

The second is that it is permissible, because he purchases it only to remove the restriction on his disposal of the slave woman and thereby gain the right to dispose of her. This is analogous to their ruling concerning someone who grants another man the right to reside in his house or receive the produce of his orchard: he may purchase those rights back from him, thereby removing the restriction affecting the underlying property and gaining the right to dispose of it as he wishes, by sale or otherwise.

If the unborn child is sold, then, according to the opinion that such a sale is impermissible, there is disagreement over the consequences. One view is that the sale must be rescinded unless childbirth has made rescission impossible. Another is that the contract itself makes rescission impossible, because the child becomes free through it; the purchaser must then pay its value, assessed with both hope and risk taken into account. According to Ashhab’s position and Ibn Abd al-Hakam’s report, however, she does not acquire the status of a slave woman who has borne her master’s child through this pregnancy, even if he acquires ownership of the unborn child.