ABORTION

The Muslim theological position on abortion is more moderate than the Roman Catholic condemnation of the practice.^[1015] The abortion debate in the late twentieth century moved from the theological to the political.

Discussions around abortion tend to focus on the health of the mother and the issue of when the embryo becomes a human being, or ‘ensoul- ment’. The time of ensoulment is considered to be anywhere between 40, 90 and 120 days.^[1017] Abortions carried out before ensoulment are not considered murder and as there is no human being to kill.^[1018] However, the general consensus is that once ensoulment has occurred, abortion is prohibited.^[1019]

In Tunisia, however, the Hanafi treatise didn’t try to determine the occurrence of ensoulment in terms of months or days; instead, midwives were prohibited from aborting once formation was ‘evolved’.^[1020] Abortion in Tunisia is believed to be a biological issue that is closely tied up with the bodily integrity of the woman, not the foetus, as opposed to a theological issue of predicting when something will become a soul or a life.^[1021] This point of view purports that women and the foetus are one, so that the woman is the determining factor when the issue of abortion arises, making the health of the woman the most important. If they are divided, on the other hand, the woman loses importance and the foetus takes precedence.^[1022] The latter is the position accepted in Saudi Arabia and in Christianity. An analogy with azl (withdrawing the penis before ejaculation) was utilised in Tunisia, demonstrating that if men are allowed to prevent pregnancy by practising azl, then women should be allowed to have an abortion.^[1023]

In Saudi Arabia, abortion is only permitted to save the life of the mother and to preserve her physical health,^[1024] and only if the pregnancy is less than four months old and it is proven beyond doubt that continued pregnancy would gravely endanger the mother’s health.^[1025] In Tunisia, on the other hand, abortion is available on request, and is permitted on all grounds, including:

• to save the life of the mother;

• to preserve the mother’s physical and mental health;

• rape or incest;

• foetal impairment; and

• economic or social reasons.^[1026]

Furthermore, in Saudi Arabia the government has placed major restric­tions on contraception use,^[1027] while in Tunisia, the government directly supports contraception use.^[1028]

In Saudi Arabia, a legal abortion must be performed in a government hospital, a panel of three medical specialists must sign a recommendation before it is performed, and the written consent of the patient and her husband or guardian must be obtained.^[1029]

In Tunisia, in contrast, consent is only required from the patient herself. Married women have never been required to obtain the consent of their husbands.^[1030] Under section 214 of the Penal Code as amended in 1973, abortion is permitted on request within the first three months of pregnancy, and must be performed during this period by a legally practising physician in a hospital, healthcare establishment or authorised clinic.^[1031] Beyond the third month, abortion is allowed if the mother’s health or mental equilibrium would be endangered by continuing the pregnancy or on the grounds of foetal impairment.^[1032]

Up until 1965, Tunisia prohibited abortion.

filled with women (including married women) who had developed complications as a result of unprofessional abortions.^[1034]

Although there was little religious opposition to the liberalisation of abortion in 1973, it is still difficult for a woman to seek a legal abortion openly, despite it being subsidised by the government and performed free in public hospitals for those entitled to free healthcare. Furthermore, abortion for unmarried women continues to be a taboo subject in traditional communities. Illegal abortion thus continues to be practised in Tunisia, especially for extramarital pregnancies and in rural areas.^[1035] These reasons may explain why Tunisia has the lowest abortion rate in the Middle East and North Africa, despite having the most liberal abortion law.^[1036]

VII.