What is the legal status of a child born to a bequeathed female slave in relation to the bequest?

General Chapter

Al-Mughni

Book of Bequests

Book 31 · Issue 2 · Bab 1

Open in Qurani

Primary text

If the slave was pregnant at the time of the bequest, and this is confirmed by her giving birth in less than six months from the bequest, the child is considered bequeathed along with the mother. This is because the fetus is given legal consideration, allowing for a valid bequest of the fetus alone, which permits its inclusion in the bequest of the mother. If the child is conceived after the bequest while the testator is alive (giving birth after six months from the bequest), the child belongs to the testator as the default unless it can be proven otherwise, as the principle is non-existence of pregnancy at the time of bequest. If conception occurs after the testator’s death but before acceptance of the bequest, the child belongs to the heirs according to the apparent Madhhab, as ownership is only established for the legatee upon acceptance.

Supporting text

There is an opposing view that the fetus has no legal standing until birth, meaning ownership is established only upon separation. In this case, if the child is born during the testator's life, it is his property like other earnings; if born after death but before acceptance, it belongs to the heirs; and if born after acceptance, it belongs to the legatee.