What are the conditions related to the viability of a fetus for a valid bequest, particularly regarding the duration of gestation?
General Chapter
Al-Mughni
Book of Bequests
Primary text
If the mother delivers the child less than six months after the bequest, this is not an absolute condition in all cases. However, if the woman is married or a slave in a marital/ownership relationship where intercourse occurs (farash), and she delivers within six months or less, the existence of the fetus at the time of the bequest is confirmed. If she delivers after more than six months, the bequest is invalid due to the possibility of post-bequest conception. If the woman is divorced (ba'in) and delivers the child more than four years since the separation, the bequest is invalid. If she delivers within less than that time frame (less than four years since separation but more than six months after the bequest), the bequest is valid, as the child's existence is established if it is six months gestation, and presumed if delivered within less than four years of separation. This is the established position of Al-Shafi'i.
Supporting text
If the woman is a wife or slave but intercourse is absent (due to the husband/master's absence, illness preventing intercourse, captivity, or acknowledgment by heirs of non-intercourse), the scholars did not differentiate between these situations and the situations where intercourse occurs, as both are equal regarding the establishment of lineage. An alternative view suggests that if she delivers the child within a time frame making it likely the fetus existed at the time of the bequest (such as less than the usual gestation period or evident signs of pregnancy), the bequest is valid. This is because establishing lineage in such uncertain cases is treated with caution to uphold lineage rights, whereas establishing the bequest does not require the same level of precautionary affirmation.