Is a bequest concerning a fetus valid?
General Chapter
Al-Mughni
Book of Bequests
Primary text
The bequest to a fetus is valid, and there is no known dispute on this matter. This is the opinion held by Al-Thawri, Al-Shafi'i, Ishaq, Abu Thawr, and the Ashab Al-Ra'y (Hanafi scholars). The primary evidence is that the bequest resembles inheritance because it involves the transfer of wealth from the deceased to the legatee without compensation, mirroring the transfer to an heir. God, the Exalted, referred to inheritance as a bequest in the Quran (Quran 4:11 and Quran 4:12). Since a fetus inherits, the bequest to it is valid. Furthermore, a bequest is broader than inheritance as it is valid for someone who disagrees in religion or a slave, whereas inheritance is not. Therefore, if a fetus inherits, its bequest is even more appropriate. The bequest is also connected to uncertainty and risk, thus being valid for a fetus, just like manumission (iq). If the fetus is delivered stillborn, the bequest is void because it does not inherit, and its existence at the time of the bequest cannot be established except through certainty.
Supporting text
A bequest concerning a fetus that the testator owns, such as a slave or a female animal he possesses, is valid because uncertainty and risk do not prevent the validity of the bequest; it operates like freeing a fetus (of a slave). If the fetus is delivered alive, and its existence at the time of the bequest is known or presumed, the bequest is valid. If not, it is invalid due to the possibility of post-bequest conception. If the testator says, 'I bequeath to you what this female slave, she-camel, or palm tree of mine is carrying,' it is permissible based on the validity despite uncertainty.