Among the cases of involuntary homicide that fall under this heading is the diyah for a miscarried fetus, for a miscarriage brought about by a blow is not pure premeditated killing: the act is deliberate with respect to the mother, but accidental as regards the fetus.
Hence, the discussion in this chapter revolves around: what must be paid for the different categories of fetuses; the description of the fetus that entails liability; upon whom the payment falls; to whom it is paid; and the conditions for its being due.
As for the fetuses themselves, the jurists unanimously agree that the liability for the fetus of a free woman, as well as for the fetus of a bondwoman impregnated by her master, is a ghurrah. This rests on the sound ḥadīth reported by Abū Hurayrah and others: “Two women from the tribe of Hudhayl threw stones at one another, and one of them miscarried. The Messenger of Allah ﷺ ruled that a ghurrah—a slave, male or female—be paid for the fetus.”
They also agree that, according to those who quantify the ghurrah in monetary terms—a view held by the majority—its value is one-twentieth of the mother’s diyah. Thus, whoever reckons the full diyah in silver as ten thousand dirhams sets the fetal diyah at five hundred, whereas whoever reckons it at twelve thousand dirhams sets it at six hundred. Those who impose no fixed amount, or do not tie it to a specific valuation but permit its cash equivalent, state: what is required is the market value of a ghurrah, whatever that may be. Dāwūd and the Ẓāhirīs maintain that anything to which the name “ghurrah” applies suffices, and, so far as I know, they do not accept payment of its cash value.
The scholars disagreed, however, about the fetus of a bondwoman and that of a woman from the People of the Book. Mālik and al-Shāfiʿī hold that the fetus of a bondwoman entails one-tenth of the mother’s value, whether the fetus is male or female, calculated on the day the offense is committed. Others drew a distinction: if the fetus is female, the liability is one-tenth of the mother’s value; if male, one-tenth of what his value would be were he born alive—this is the position of Abū Ḥanīfah. All agree that if the bondwoman’s fetus is born alive and then dies, its full value is owed. Abū Yūsuf, by contrast, rules that when the fetus is delivered dead, what is due is the diminution in the mother’s value occasioned by its loss.
With regard to the fetus of a dhimmīyah, Mālik, al-Shāfiʿī, and Abū Ḥanīfah all require one-tenth of the mother’s diyah, each in keeping with his principle concerning the diyah of a dhimmī: Abū Ḥanīfah treats it as equal to that of a Muslim, al-Shāfiʿī as one-third, and Mālik as one-half of a Muslim’s diyah.
As for the conditions of the fetus that render the liability due, they agree that it must be expelled dead and that the mother must survive the blow. They differ, however, if the mother dies from the assault and the fetus is then delivered dead. Al-Shāfiʿī and Mālik say that nothing is due for the fetus; Ashhab maintains that the ghurrah is still payable, and the same is reported from al-Layth, Rabīʿah, and al-Zuhrī.
They also disagreed about the sign by which one knows whether the fetus was born alive or dead. Mālik and his companions consider the sign of life to be the newborn’s crying aloud or wailing; whereas al-Shāfiʿī, Abū Ḥanīfah, al-Thawrī, and the majority of jurists hold that any customary indication of life—such as movement, sneezing, or breathing—places the infant under the rulings pertaining to a living being, and this view is the more persuasive.