Chapter: The Legal Ruling on the Fetus
When a pregnant woman is struck, miscarries, then dies, and her fetus is delivered alive, utters a cry, and subsequently dies, the assailant is executed for the fetus after the procedure of qasāmah, while the mother’s blood money (diya) is borne by his ʿāqilah (male agnatic relatives responsible for payment). It has also been said that, with respect to the mother, the act is deemed intentional, whereas with respect to the fetus it is accidental; both opinions are transmitted from Malik and the jurists of Medina.
If the assault upon the mother was intentional and she died immediately from the blow, or she refused food and drink until she succumbed to its effects, he is put to death for her. Should she survive for a time—as explained in the chapter describing intentional homicide—her assailant is not executed except on the basis of qasāmah. The same ruling applies if the child is born alive, cries, and then dies: retaliation (qisāṣ) is incurred only after qasāmah.
If the fetus survives unharmed but the mother dies, the assailant is executed for the mother as just described. If she expels the fetus stillborn, showing no sign of life, the due compensation is a ghurra—namely, a male or female slave worth one-tenth of the mother’s diya, that is, fifty dinars according to Malik or six hundred dirhams. Should the fetus emerge dead after the mother has already died, there is no liability for it, whereas for the mother either diya or retaliation applies, depending on whether the act was intentional, as noted earlier.
With respect to the fetus of a Jewish or Christian woman, one-tenth of the mother’s diya is payable if it is expelled dead while she is alive; but if it is born alive, cries, and then dies, a full diya is required.
If a woman miscarries twins, two ghurras are due. And if the woman herself is a slave and she delivers a child who cries and then dies, its monetary value must be paid, assessed according to the principle of “hope and fear” (rajāʾ wa-khawf). Should the child show no sign of life, only one-tenth of its value is owed.