What is the legal status of a fetus carried by the enslaved wife of an enemy combatant who converted?

General Chapter

Al-Mughni

Book of Jihad

Book 54 · Issue 3 · Bab 1

Open in Qurani

Primary text

If the wife is pregnant by her husband at the time of her enslavement, the fetus cannot be enslaved and must be considered a free Muslim. This is supported by Shafi'i. The reasoning is that the fetus is presumed free and Muslim, thus it is impermissible to enslave it, just as if the child had already been born. This contrasts with body parts because the fetus cannot possess a ruling separate from the original entity (the mother).

Supporting text

Abu Hanifa rules that the fetus is enslaved along with its mother because the state of servitude that affects the rest of the body also affects what is contained within.