What is the legal status of a child born from the father's intercourse with his son's slave girl if the hadd punishment is averted?
General Chapter
Al-Mughni
Book of Freeing Mothers of Children
Primary text
If the slave girl becomes pregnant, the child is born free because the intercourse, though subject to a doubt that averted the hadd penalty, was still intercourse that establishes the status of 'Umm Walad' (mother of the child) for the woman, similar to the case of a jointly owned slave girl. The father is not liable for the child's value because the slave girl becomes his property upon this intercourse, and the pregnancy occurs while she is his property. Consequently, she becomes his Umm Walad, freed upon his death, and ownership transfers to him, making subsequent relations permissible.
Supporting text
Abu Hanifa and Shafi'i agree with this ruling in one of his opinions. Another opinion from Shafi'i states that she does not become his Umm Walad nor does he gain ownership, because he initiated the act of seeking progeny in a context outside his ownership, resembling a non-owner. They argue that rulings related to seeking progeny (istilad) are established by consensus only when relating to one's own property, which this slave girl is not, nor is she considered in that category as she is forbidden to him. Thus, the ruling should not apply, and the original status of servitude should remain, as forbidden intercourse should not lead to ownership, which is a favor.