Is the *ghurrah* due if the mother dies, and the fetus is expelled after her death?
General Chapter
Al-Mughni
Book of Blood-Money (Diyyāt)
Primary text
When the fetus is expelled dead, the killing is established, and the presumption is that the fetus perished due to the assault, thus mandating the *ghurrah*. This applies whether the expulsion occurred while the mother was alive or after her death. Al-Shafi'i holds this view. The justification is that the fetus was destroyed by the assault, its state is confirmed upon exit, and it is treated the same as if it were expelled while the mother lived. If it had been expelled alive, liability would be established, and the same applies if expelled dead. This is contrasted with the situation where the fetus is expelled dead, and the mother subsequently dies, as in that case, some schools argue liability ceases.
Supporting text
Malik and Abu Hanifa stated that if the fetus is expelled after the mother's death, the *ghurrah* is not due because the fetus then stands in the position of her remaining organs, and her death nullifies the legal standing of her organs. However, this argument is rejected because the fetus was destroyed by the assault, and it is an inheritable human being, so it does not fall under the mother's liability in the same way as her limbs.