What criteria establish that a fetus was born alive, thereby triggering the full diya liability?
General Chapter
Al-Mughni
Book of Blood-Money (Diyyāt)
Primary text
The diya is only guaranteed if the fetus is delivered alive, and its life is established by any sign confirming its vitality. This confirmation is established by its 'istihlal' (crying out), suckling, autonomous movement, sneezing, or any other known signs of life. This is the apparent view of al-Khiraqi and the madhhab of al-Shafi'i.
Supporting text
It is narrated from Ahmad that the ruling of life is not established except through 'istihlal' (crying out). This is the view of al-Zuhri, Qatadah, Malik, and Ishaq, and narrated similarly from Umar, Ibn Abbas, al-Hasan ibn Ali, and Jabir. The evidence cited is the Hadith stating: 'When the newborn cries out (istahalla), he inherits and is inherited from,' implying no inheritance if he does not cry out. Some argue that only the cry ('istihlal') counts because of the Hadith concerning Maryam and her son, who were not touched by Satan upon birth and did not cry out. However, our evidence is that its life has been confirmed, making it similar to the one who cried out; the hadith implies the ruling applies in other cases as well, since drinking milk is a stronger indication of life than crying, and sneezing is a sound like crying. Isolated movement or twitching does not establish life because it might be due to spasm or the process of exiting the birth canal.