What is the legal status of an unborn child resulting from intercourse based on a mistaken belief of lawful marriage (shubha) or from a man marrying and impregnating a female slave under deception?
General Chapter
Al-Mughni
Book of Blood-Money (Diyyāt)
Primary text
If a man engages in sexual intercourse with a female slave based on a mistaken belief that the act is permissible (shubha), or if he marries and impregnates her based on deception, and a third party strikes her causing the expulsion of the fetus, the fetus is declared free. The deceased fetus incurs a *ghurra* (compensation), which is inherited by the fetus's heirs. Furthermore, the individual who struck her is obligated to pay the owner of the slave compensation amounting to one-tenth of the value of the mother.
Supporting text
The justification for holding the striker liable for one-tenth of the mother's value stems from the fact that, had the fetus not been freed due to the unlawful connection (the act of coitus), the fetus would have been the property of the owner. Since the fetus gained freedom due to the act of coitus, the striker has obstructed the owner's right to this potential property. Therefore, the striker must compensate the owner, regardless of whether the required *ghurra* payment is equal to, greater than, or less than one-tenth of the mother's value.