Is the offspring of a wrongfully taken pregnant female animal also considered wrongfully taken?
General Chapter
Al-Mughni
Book of Usurpation
Primary text
If a pregnant female animal, whether a slave or otherwise, is wrongfully taken, the resulting offspring is guaranteed (maḍmūn). This ruling applies also if a non-pregnant female is taken and subsequently becomes pregnant and gives birth under the possession of the usurper. The justification is that guaranteeing the contents within a container implies guaranteeing the contents themselves, similar to a pearl within an oyster or a nut. Seizing the container implies seizing the contained part. If the offspring is expelled dead, it is not guaranteed because its prior life cannot be confirmed; however, the value lost by the mother from her pregnant state must be compensated.
Supporting text
Al-Shafi'i agrees with this view. Abu Hanifa and Malik hold that the offspring is not guaranteed because it was not taken initially; usurpation is a forbidden act, and its coming into existence was not the usurper's act, as it is a consequence of the existing pregnancy.