Sabir and Zahra1 live in Leipzig (Saxony), Germany. Zahra was in her 8th week of pregnancy, when in June 2019 her child died through spontaneous miscarriage.2 Both parents wished for an Islamic funeral, therefore Sabir asked the imām at the mosque he attended as to whether the child could be buried in the Islamic burial ground.3 His request was rejected by both the imām and his representative on the grounds that the deceased child was merely a “piece of flesh,” as the soul was only “breathed into it on the 40th day or 120th day.” The child could therefore simply be left in the hospital, buried in a park, or – if available – in one’s own garden. An Islamic burial, however, could not take place.4 Sabir and Zahra were rather disappointed about the answer. When Sabir searched for further information on the internet, he learned that the shape of the child gave information about whether it was already a human being (and had to be buried accordingly) or not yet. He seemed to accept the answer and told Zahra that if the child would have a human shape, a burial should be made. Otherwise, it would not matter where the child was left. Zahra, however, was shocked by this line of arguments, even though she understood Sabir’s underlying motivation: he was concerned about the observance of religious rules in the case of their prematurely deceased child. For Zahra, there was never a doubt that the child gets buried, preferably in the Muslim burial ground.5 In the course of the necessary medical aftercare, Zahra came to know about the possibility of having the child buried together with other prematurely deceased children in the so-called Ruhegarten für Schmetterlingskinder.6 As Zahra was not sure whether such a burial was permissible from a religious point of view, she sent a (textual) request to the aforementioned imām concerning this matter. Her enquiry, however, remained unanswered.7 The parents had thought through the ways of burial put forward by the imām and his representative, however they did not want their child to be buried in a public place or in a garden. Consequently, they had unanimously decided against it and resolved to bury the child communally in the Ruhegarten für Schmetterlingskinder. Following this decision, Zahra told me that she wanted to have a dignified funeral for her child. The notion to bury the child somewhere in a park where it could be dug up and eaten by an animal or a passer-by’s dog caused Sabir and her great discomfort. As regards a burial in a garden, the parents did not want to burden the relatives in question with a dead child in their yard, as they themselves did not have their own garden.8 In the time after their misfortune, the parents took different paths in dealing with their grief over the loss of their child. Neither Sabir nor Zahra made use of professional grief counselling. While Sabir turned to God and kept repeating that God had decided it that way and that he would accept this decision, Zahra, who also accepted God’s decision, chose to actively deal with what had happened. She made inquiries about the reason for her child’s death and informed herself about miscarried children and their parents, inter alia with regard to the legal status of the child (both religious and non-religious).9 She came across the possibility of getting an official certificate acknowledging the existence of a miscarried child.10 Such a certificate was issued to Zahra by the local registrar’s office in July 2019. Finally, in November 2019, the child found its final resting place in the Ruhegarten für Schmetterlingskinder.
∵
1 Introduction
Although spontaneous termination of early pregnancy (miscarriage) takes place quite often,11 it still seems to be a highly tabooed issue. In her publication Tabuthema Fehlgeburt (“Taboo Issue Miscarriage”),12 Miriam Funk states that this taboo may be linked to a widespread perception that the physical appearance of the deceased human being is considered to not yet be of a “real child.” Based on the lack of appreciation, those affected by the loss are usually forced to retreat in mourning in the sense of an isolated and silent grief (Funk 2017, 7f.).13 My own empirical findings in Germany14 showed parents of the decedent face an extraordinary wide range of challenges after the loss. These range from renouncing a funeral to psychologically repress one’s own grief. Here, my research focus lies on Muslim contexts and how believers coped with their individual religiosity. In doing so, I also included external actors assisting those affected. These actors reported a raising number of persons who seek bereavement counselling, regardless of whether the child was lost as a result of miscarriage (isqāṭ), abortion (ijhāḍ), or stillbirth (wilāda mayyita). Although a growing number of Sharīʿa based scholarly publications and fatwās are available on these issues, an in-depth approach to the individual perspective of those challenged with the situation in daily life is missing in the debate. Doctrinal approaches dealing with methodological aspects of abortion (see Katz 2003; Sachedina 2009, 125–144) or the legal and moral status of embryos (see Sachedina 2009, 139–141) do not, in most parts, answer what is needed in practice. Yet, the intellectual discourse should not become an end in itself but must engage much more with the taboo in its consequences on the ground.
The point of departure is that Muslim legal scholars (ʿulamāʾ, sg. ʿālim) have been and still are expressing themselves within the context of their respective (Muslim) society and time. With that said, there is no doubt that nowadays living conditions are different to those in the past and most probably will be different to those in the future. In addition, one should keep in mind that today, an increasing number of Muslims are living in a non-Muslim majority country. The way of living differs therefore, not only in time of a certain society, but also in terms of its overall religious setting. Within this heterogeneous setting, believers negotiate everyday matters – such as those on the end-of-life care of prenatally deceased children – between norms and expectations that are shaped by religion and those of the non-Muslim society they live in. Answers to everyday questions of life are thus found primarily through discussions with other believers and not necessarily on the basis of what has been expressed in scholarly works or fatwās. This does not imply, however, that scholarly and intellectual discourse is, per se, contradictory to non-doctrinal individual approaches of those affected. None of both should be given preference over the other. As Thomas Eich and Jonathan E. Brockopp (2008, 2) rightly point out for the field of medical ethics and practice, the bottom-up analysis of individual cases is essential to bridge gaps between theory and practice.
2 Case-by-Case Analysis
In doing so, let us recapitulate the main aspects of the aforementioned case of Sabir and Zahra, which are:
The funeral, especially 1) the question of burial due to age, 2) the burial place and 3) the question of individual vs. communal burial.
How Sabir and Zahra themselves coped with the death of their child.
2.1 Funeral
2.1.1 Burial Due to Age
As to the first aspect, the majority of ʿulamāʾ across all schools of jurisprudence (madhāhib, sg. madhhab) hold the opinion that the entitlement to vested personal and legal rights (and, thus, also to a proper burial) begins with the ensoulment (nafkh al-rūḥ) of the child, which occurs on the 120th day of gestation (Eich 2020, 354).15 In this regard, however, Hamza Yusuf (2018) points out that
[t]he basis for 120 days, if taken from the hadith in its standard interpretation, would mean that the hadith contradicts today’s medical views that are based upon unshakeable biological evidence.
Yusuf 2018
Yusuf refers to the opinion of the Mālikī madhhab that the individual passes through each phase in utero as a human being (for example Q 75:36–38; see also Ghaly 2012, 185). With ensoulment, the (bodily) human being is elevated to a spiritual being which “most likely relates to and initiates human brain activity that will eventually develop into the capacity for human thought” (Yusuf 2018). Furthermore, the Mālikī interpretation does not see a consecutive sequence in 40-day steps in the verses in question, but a concurrent sequence of all phases within the first 40 days. Referring to aḥādīth of Muslim b. al-Ḥajjāj al-Naysābūrī (d. 261/875) and Abū Dāwūd al-Sijistānī (d. 275/889), Yusuf consequently argues that the ensoulment already takes place after about six weeks, that is after the lump phase (muḍgha), when the child takes shape.
Yusuf is not alone in his view to take medical or biological findings into account. Several other participants in the current debates on the question of the actual beginning of human life, like the physician16 Ḥassān Ḥatḥūt (d. 2009), also argue that “biomedical and scientific knowledge should be given precedence over the opinions expressed by classical Muslim religious scholars” (Ghaly 2012, 181). Advocates of this view hold that the relevant scripture is in principle open to interpretation and not definite (qaṭʿī), thus also allowing metaphorical interpretations (taʾwīlāt, sg. taʾwīl). These different interpretations should be taken into account; however, no interpretation should be given precedence over another (Ghaly 2012, 187).
In the case at hand, the imām refused an Islamic burial of the prematurely deceased child on the grounds that its soul was only “breathed into it on the 40th day or 120th day.” It is striking that the imām refers explicitly to two points in time regarding the ensoulment, which indicates that he is probably aware of the respective debates among Muslim scholars. Why then did he deny the parents the wish for an Islamic burial? Information about this could be provided by discussions that I have had with Muslim believers that attend the respective mosque.17 The information obtained suggests that Islamic norms are only implemented eclectically by the imām. Their adaptation to the reality of life in a non-Muslim majority society is done opportunely with a view to the advantage of the Muslim concerned. This opportunism sometimes violates the law in force. This was exemplified in the answer to a Muslim believer’s question as to whether it was permissible for him from an Islamic perspective to work illegally. The imām answered the question in the affirmative, stating that the German state does not support Muslims living here either.18
If we return to the actual topic of this chapter, the question arises as to how German legislation positions itself on the burial of miscarried children. It can first be stated, in general terms, that the law with regard to the entitlement to personal and legal rights at the beginning of life is informed by biomedical findings. Thus, the weight limit of 500 g at birth that marks the beginning of the child’s potential viability outside the uterus in the event of a premature birth decides over the child’s legal status. Hence, a child that dies prior to the 24th week of pregnancy with a birth weight of below 500 g is usually referred to as a miscarriage and it is not registered under civil status law (PStV § 31 par. 2, sentence 2). The mentioned weight limit is also relevant in the funeral service as the SächsBestG provides for a burial of the deceased to qualify as a corpse, which is tied to a birth weight of at least 500 g (SächsBestG § 9, par. 1), while miscarried children are not classified as corpse (SächsBestG § 9, par. 2). Consequently, there is no obligation to bury a miscarried child, but there is a right, which Sabir and Zahra exercised when they had their child buried in the Ruhegarten für Schmetterlingskinder.
2.1.2 Burial Place
The question of the burial place (maqbara) is another aspect where divergences became clear from the case study at hand. Referring to ethico-moral Islamic values, Ḥasan Khālid (d. 1989) points to the necessity to respect the dignity (ikrām) of the deceased, which results in the imperative to bury her/him properly and not simply leave her/him behind so that birds or wild animals may eat her/him (Khālid 1986, 2:120, quoted in Krawietz 1991, 152). The latter is also referred to by Wahba al-Zuḥaylī (d. 2015) (al-Zuḥaylī 1989, 2:251, quoted in Krawietz 1991, 152). The imām’s statement, however, that Sabir’s and Zahra’s miscarried child could, for example, be buried in a park or in one’s own garden, is diametrically opposed to the views of Khālid and al-Zuḥaylī. Apart from the fact that the imām’s statement not only lacks any reference to the dignity of the deceased, it also leads to the conclusion that the miscarried child is unworthy of recognition as a human being. This may also be deduced from his statement that the deceased child is merely a “piece of flesh.”
The concept of dignity as a sine qua non of a burial can also be found in the respective state legislation. Here, the place of burial is based on a general obligatory burial in a cemetery (Friedhofspflicht; SächsBestG § 1 par. 1). These are subject to the condition that the places of burial comply with human dignity, general moral concepts and recognised social orders19 (SächsBestG § 1 par. 2 sentence 1); in addition, they must inter alia guarantee the peace of the dead (SächsBestG § 1 par. 2 sentence 2). What is striking here is that “moral concepts and recognised social orders” are formulated in the plural, but without further elaboration on what exactly is meant by those rather abstract concepts. The same applies to the aforementioned concept of dignity, which at first glance shows similarities to Khālid’s view.
And what about burial outside the official cemeteries as had been put forward by the imām? According to SächsBestG, burial in a private burial ground is only permitted with permission of the relevant authority (§ 3 par. 4 sentence 1) and only provides for the burial of ashes of deceased persons (SächsBestG § 3 par. 4 sentence 2). It is also subject to the condition that a dignified arrangement and maintenance of the burial place are ensured during the minimum resting period20 (Mindestruhezeit; SächsBestG § 3 par. 3 sentence 2). Any violation of the stipulations, be it intentionally or negligently, is sanctioned according to SächsBestG § 23, inter alia if contrary to SächsBestG § 1 par. 3 a burial place is created, extended or re-occupied without official permission (SächsBestG § 23 par. 1 sentence 1), if contrary to SächsBestG § 3 par. 4, a corpse is buried on a private burial ground without permission of the relevant authority (SächsBestG § 23 par. 1 sentence 2), or if contrary to § 18 par. 6 sentence 1 misscarried children are not buried, not buried in time or not buried properly (SächsBestG § 23 par. 1 sentence 14). Following these legal provisions, it can be deduced that we find ourselves in a legal grey area regarding the statement of the imām and his representative to bury the child in a park or a garden, as the explicit prohibition in this regard only applies to deceased persons qualified as corpses.
2.1.3 Individual vs. Communal Burial
Another aspect that requires consideration is the question (posed by Zahra but left unanswered on the side of the imām) of whether it is permissible to bury miscarried children jointly. The Sharīʿa-based scholarly literature provides information on the basic requirement that the deceased should be buried individually and must face Mecca. In the case of joint burial, there must be sufficient space for each deceased as well as a partition between them. Joint burials are permissible for members of a family, and exceptionally also for Muslims who are not members of a family, provided that the burial of each deceased in an individual grave is difficult, as in the case of war. In contrast, communal burial with non-Muslims (namely: Christians) is forbidden if the bodies cannot be kept apart. In this case, the communal burial should be carried out in a Muslim grave, with the Muslim retaining the upper hand (Krawietz 1991, 153–155). The literature consulted did not provide information on whether the aspects presented are also valid for miscarried children. If that were the case, the communal burial of the miscarried child in the Ruhegarten für Schmetterlingskinder might be forbidden from a religio-legal point of view.
Sabir and Zahra were not aware of these normative details when they decided to bury their child together with other miscarried children. Nor were they aware that according to SächsBestG § 18 par. 2, they would have been entitled to an individual burial apart from the collective and anonymous one (SächsBestG § 18 par. 6 sentence 2) they finally decided for. In view of the imām’s refusal to bury the child in the Islamic burial ground, the municipal cemetery would have been the only option for an individual burial. In this respect, however, Birgit Krawietz notes a fundamental tendency in the fatwās she analysed (albeit with gradual differences in argumentation) to the effect that the burial of a Muslim in a Christian cemetery is tantamount to insulting the dead (Krawietz 1991, 156). That Sabir and Zahra, as Muslim believers, are not alone in their decision for a communal burial, however, became evident by my (participant) observation at a communal burial in which other affected Muslim parents participated as well.21
To sum it up, we see a discrepancy between scholarly knowledge and those of the affected parents. Furthermore, deficient support by the religious authority lead to the creation of own ways of coping with the misfortune. Often, as the case reveals, not in the constraints of religious regulations. This cannot be in the interest of either the imām or those seeking religious guidance. The struggle to legitimise one’s individual way leads to the concept of dignity (ikrām) of the dead. This approach should, preferably, be considered by the religious authority.
2.2 Coping with the Child’s Death
If we would break these considerations down to our case and Sabir’s and Zahra’s different ways of coping with the death of their child, we would have to consider to what extent their individual
1) biography,
2) psycho-mental disposition,
3) socio-emotional ties to the child,
4) perceived or actually available framework for action influences, drives and shapes their thinking and behaviour.
2.2.1 Biography
In the course of her/his life, a person is exposed to different experiences, all of which have an influence on how she/he thinks and acts in the present and future, such as education, socialisation, migration, conversion, cultural and/or religious values (Scherr 2016). Biography also includes experiences of loss and grief. In case of acute grief, losses that have already been experienced can erupt and make it more difficult to cope with the current grief. Knowledge of the individual’s past can thus be a calculable factor, ideally a resource, for the person affected in coping with the misfortune.
2.2.2 Psycho-Mental Disposition
A person’s psycho-mental disposition is part of her/his personality. Anita DeLongis and Susan Holtzman studied the interplay of stress, social support and personality in coping. They conclude that the individual character influences and shapes the event itself, the appraisals, the coping and the outcomes (DeLongis and Holtzman 2005, 1635). The individual psycho-mental disposition thus influences the emotional, physical, cognitive, behavioural and spiritual reaction (Himmelrich 2015, 76–80) of the individual to the event. It also influences the form in which the affected person grieves which ranges from intuitive to instrumental (Himmelrich 2015, 81–84).
2.2.3 Socio-Emotional Ties to the Child
The bond between the parents and the child does not only begin with the child’s birth, but long before. In the case of the mother, the prenatal bond develops through the physiological and hormonal interaction of mother and child as well as through sensory perception on the part of the child. Accordingly, even the spontaneous miscarriage of a child at the beginning of pregnancy can cause great shock and grief. Integrating this event into one’s life can prove no less challenging than in the case of a child who died peri- or postnatally.
2.2.4 Framework for Action
Framework of action relates on the one hand to the state-legal, religio-legal and institutional context in which a person affected finds herself/himself. On the other hand, it refers to her/his network of relationships (Schäfers 2016, 23), that includes the spousal partner, the family, the Muslim community, but also Muslim authorities like an imām. The relationship and interaction of the person affected within her/his network of relationship plays a key role in the grieving process (see DeLongis and Holzman 2005; Himmelrich 2015, 123–135). In the best case, the network can prove to be supportive, but it can also lead to the opposite result if those affected are not perceived or taken seriously in their grief.
3 Current Challenges
3.1 Shift from Burial to Cremation
In the summer of 2021, the Working Group Schmetterlingskinder organising the communal burial of prematurely deceased children decided to change from burials to cremations due to the limited space allocated for the Ruhegarten für Schmetterlingskinder, which is now running short after its establishment in 2005. Due to this, it was decided to switch from burial in two coffins to burial in one urn starting January 2022.
From an Islamic religio-legal point of view, there is a general obligation to burial on the basis of the scripture itself (for example Q 77:25–26), which does not only include dead bodies as a whole but also parts of it, such as organs (Krawietz 1991, 150). In her publication Die Ḥurma, Krawietz discusses the assessment of the burning of corpses regarding miscarriages or stillbirths in two fatwās. Concerning the qualitative specification of the dead body, she states that
[d]er möglicherweise besondere Charakter der körperlichen Qualität ungeborenen Lebens … in diesem Zusammenhang in den Fatwas nicht weiter aufgeworfen [wird]….
Krawietz 1991, 12022
In principle, however, the muftīs of the fatwās in question were in favour of a prohibition on burning foetuses (miscarriage and stillbirth), regardless of whether the pregnancy’s termination was spontaneous or induced and regardless of whether a human form was recognisable or not (Krawietz 1991, 123–125). Thus, Ḥasan Maʾmūn (d. 1973) (Maʾmūn 1955) decided for the prohibition of burning a miscarried child while Aḥmad Ṣafar Ghabjūqa (in an unpublished fatwā) decided for the obligation to bury the unborn child (Ghabjūqa 1985, fatwā no. 1946, cited in Krawietz 1991, 125).
The prohibition of the burning of corpses, which can be derived from various passages in the scripture (Q 6:151; Sunna, for example al-Albānī n.d., no. 3207), is closely connected to the human right to bodily integrity (ḥurma) and the belief in bodily resurrection (Q 80:21–22, 82:5) on the Day of Resurrection. Furthermore, it is connected to the belief that God alone has power over fire (Q 82:14–16; Sunna, for example al-Albānī n.d., no. 2673). Accordingly, also from this religio-legal perspective, affected parents would no longer be allowed to have their prematurely deceased child buried jointly.23
3.2 Institutional and Knowledge Gap
Let us leave the religio-legal and state-legal realm and turn to the institutional network to support affected parents as part of their child’s end-of-life care. In this respect – and this may already be anticipated at this point – there still exists a gap as to the institutional and knowledge-based end-of-life care with respect to the affected parents in focus.
In institutional terms, Germany resembles a patchwork quilt when it comes to supporting those affected, as services in this regard are not available in equal measure everywhere, but primarily in cities and conurbations rather than in rural areas. Furthermore, the relevant services offered do not reflect the social reality and are aimed at affected people of all social classes and all religions uniformly, which is why in some cases there is a lack of knowledge to be able to counsel people appropriately.
Counselling Muslim parents in their grief is commonly assigned to Muslim counselling (Seelsorge) and within that to emergency counselling (Notfallseelsorge). However, the network of professional Muslim bereavement counselling in Germany varies in extent with, for example, more established structures in the West and South-West of Germany (Şahinöz 2018), whereas there is a lack of sufficient support in the East of Germany, such as Leipzig.24 Moreover, Muslim counsellors (Seelsorger) are only gradually being trained, whereby the particularities of counselling parents of prematurely deceased children are not yet taken into account, or at least not to a sufficient extent yet, while common topics (such as illness, death of a relative, suicide or accident; Lemmen, Yardim and Müller-Lange 2011, 84–123) clearly dominate.
Consequently, there is an explicit need for Muslim social workers, grief counsellors, and undertakers in Leipzig, especially if they have sound knowledge of the religio-legal and ethico-moral canon of norms and values and are familiar with the relevant legal requirements of (federal) state law. However, as the final decision rests with the parents, as Eich and Brockopp indicate (Eich and Brockopp 2008, 2), the parents must be provided with the appropriate knowledge to make informed decisions. Therefore, it is advantageous for the counsellor to be knowledgeable not only about the respective commonly held majority views of Muslim scholars, but also about the views that might only be hold by a minority of ʿulamāʾ. So, what is needed here is person-centred, well-founded end-of-life care based on individual support, not only with reference to religious phrases, but also with the integration of epistemological results, for example from psychology, palliative care, etc. It is important to take those affected seriously without implying a disparagement of religious norms and values at the same time (Anam 2022). A sustainable integration of events (especially those at the borders of life) can only take place through a profound examination of the event itself and the factors influencing the negotiation and decision-making process on the side of the individuals concerned.
The knowledge gap, however, relates to the termination of pregnancies in general. Nevertheless, it can be observed that the religio-legal specifications and requirements become clearer the older the child is at the time of passing away. In contrast, a great deal of uncertainty can be observed in the case of children who died in early pregnancy. This is due, in large part, to the fact that the respective literature as well as the differentiated, topic-specific debates that are being conducted in Islamic countries, especially in the field of bioethics and medical ethics, are hardly known outside the Arabic-speaking world (an outstanding example in this regard is Ghaly 2012). However, the availability of translated information in the aforementioned sense would also support non-Muslim actors (undertakers, counsellors, clinical staff for example obstetrics and gynaecologists) who are also willing to counsel Muslims appropriately while incorporating their specific religio-legal and ethico-moral canon of norms and values.25
4 Future Prospects
As to the future, the following concrete approaches for action can be identified regarding end-of-life care at the beginning of life: It is of utmost relevance to engage in a much more intensive interdisciplinary and bottom up discourse, that is from individual cases and singular patterns of explanation, when considering Muslim negotiation processes and actions, instead of assuming that Muslim thoughts and behaviour are monolithic in nature (see Elliesie 2014, 5). Thus, the assessment of the question,
ob im konkreten Einzelfalle auch wirklich eine Abweichung von den durch Brauch und Sitte, Recht und Ritus vorgeschriebenen normenkonformen Verhaltensweisen vorliegt, würde eine ins Detail gehende Untersuchung und Darstellung der jeweils gebotenen Vorgehens- und Verfahrensweise notwendig machen.
Krawietz 1991, 14826
Another aspect that deserves reconsideration is the still widespread phenomenon of grief often being thought of as typically female. Yet it has long been known that women and men both grieve, but differently. We have to keep in mind here that the father has also lost a child and might need bereavement counselling, but is facing a lack of corresponding offers targeted at Muslim men.27
A desideratum that needs to be addressed is the translation of relevant Arabic texts and their accessibility in German. In this respect, there is a great need to make relevant works by Muslim scholars on bereavement counselling accessible (for example al-Suyūṭī 1407/1978). Having such material readily available should not only help parents to make informed decisions. As said before, it would also be of great help to those who counsel Muslims in end-of-life issues and who lack relevant knowledge.
Furthermore, more importance should be given to (bereavement) counselling at the prenatal end of life in the education of Muslim counsellors. Here the responsible theologians are on duty to prepare counsellors (especially community counsellors, Gemeindeseelsorger) for this task by including appropriate content in their education. Additionally, access to support services for those affected also requires further development. There are several reasons for the limited accessibility to offers concerning end-of-life issues, for example factual unavailability of relevant offers or language barriers. There is also a lack of information on both sides: on the part of those affected about the institutional and legal provisions and options available in Germany as well as about the wide-ranging views of Muslim scholars; on the part of the actors about relevant support services specifically dedicated to Muslims (if available) as well as the inner-Islamic range of opinions and normative specifications.
Apart from these desiderata and notwithstanding the diversity of infrastructure for Muslims across the country, one can basically assume a slow but positive development to do justice to the reality of an increasing number of Muslims through corresponding offers: accordingly, for example, Islamic cemeteries are also increasingly being established as a counselling specifically for Muslims. There is also increasing awareness on the part of non-Muslim actors regarding a religion-sensitive counselling of Muslims, which is already being included in some training courses.28 It is also encouraging that the growing awareness of the need for specific support for Muslims in end-of-life issues has led to the creation of fora to overcome the disciplinary boundaries that still prevail and to enable a truly interdisciplinary and multidisciplinary exchange.29
5 Conclusion
To sum it up, the preceding discussion of Sabir’s and Zahra’s case may be considered exemplary in several respects:
The non-majority Muslim setting in Germany presents Muslims with special challenges when it comes to end-of-life issues as different normative systems – including the comparison of individual concepts of norms and values with those of third parties – must also be included in the considerations.
The case of Sabir and Zahra reflects the individuality of negotiation processes and to what extent the framing conditions must be taken into account as influencing factors. However, it also shows that a truly multidisciplinary approach, which takes a holistic view of the affected individual in her/his specific setting, is necessary for the examination of negotiation processes and factual decisions on end-of-life issues.
A comparison of individual case-specific decisions with the relevant fiqh–treatises and –debates might point to existing discrepancies between legal-theological views and factual application in real life. To what extent a development of religio-legal norms sui generis can be derived from this in the context of non-majority Muslim societies must be left to further qualitative research, which ideally starts from the very people concerned as a bottom-up approach.
Regardless of the religio-legal guidelines, however, I consider it essential to rethink the way miscarried children are dealt with, which also takes the relationship and the grief of the parents into account and seriously. After all, end-of-life care does not only include the care of the child who deceased prematurely, but also the parents who are confronted with the end of their child’s life. Only then the tabooing social tone can be counteracted and changes could be brought, but for this, the topic has to be addressed and made public, both in non-Muslim majority society and within Muslim communities.
In view of the action-guiding function of religion, an ambivalent picture and thus a certain oddity regarding the miscarried child can be ascertained from the sources and scholarly debates, but also from life practice itself: Although some Muslim authorities – scholars as well as the imām in the case study – do not recognise the miscarried child as a human being, it is equally forbidden to be burned. At least in practice, there is also the discrepancy that the child can simply be thrown away, although the sources provide for a dignified burial. Consequently, it seems that the current Islamic practice – at least in the case at hand – is closer to the atheistic materialistic way of thinking on this issue, including just throwing away the “piece of flesh”.
In the fiqh-literature as well as in the fatwās, there are different views on a single issue, which – in a very abbreviated form – are held by a majority of ʿulamāʾ or by a minority. Often, however, it is only the majority opinions that are known to Muslims or conveyed to them. I consider it important to impart knowledge about the broad spectrum of views so that those concerned can make an informed decision. With that said, I strongly advocate taking advantage of the flexibility of interpretation enshrined in the Sharīʿa and the given possibilities for adapting the underlying principles to time and space, in order to offer those affected the best possible support in end-of-life care at the beginning of life.
Acknowledgements
I sincerely thank Mohammed Ghaly, without whose generous offer this contribution would not have come into being. I also thank the anonymous reviewers and Hatem Elliesie for their critical remarks and valuable suggestions that improved the final version of this contribution.
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For the protection of the individuals concerned, their names are anonymised.
Following German legislation (Bundesrepublik Deutschland 2008 [Personenstandsverordnung (PStV), Ordinance on Personal Status], § 31), a miscarriage is understood to occur when the child – irrespective of the cause of the miscarriage – shows no signs of life at birth (par. 2), when the child has a maximum weight of 500 g at birth (par. 2, sentence 1) and when the birth occurs before the 24th week of pregnancy (par. 2, sentence 2). If the child dies prenatally before the 16th week of pregnancy, it is called an early abortion (Schulze 2013, 72).
There has been a Muslim burial ground at the Ostfriedhof (East cemetery) since 1997, as in Germany, Muslim organisations are generally not allowed to set up their own Muslim cemeteries, which is due to their basically non-existent status as a public corporation (Bundesrepublik Deutschland 1949 [Grundgesetz (GG), Constitution], § 140 in connection with the Weimar Constitution of 1919 [Deutsches Reich 1919], § 137). The Saxon Burial Act (Sächsisches Bestattungsgesetz [SächsBestG]; Sächsische Staatskanzlei 1994) is currently (26 April 2022) under revision. A first draft bill is reportedly to be presented to the cabinet in the second quarter of 2022 (MDR Sachsen 2022) and might bring along some facilitation, for example for Muslims, that might see the lift of the obligatory coffin (Sargpflicht; SächsBestG § 16 par. 1 and 3) already implemented in other federal states (for example North Rhine-Westfalia in 2000). The explicit reference to federal state law, and not nation state law, is due to the fact that according to GG § 74, par. 1, sentences 1–33 in connection with § 72, the burial legislation falls under the legislative competence of the individual federal states.
Interview with Sabir, 16 June 2019.
Interview with Zahra, 17 June 2019.
Literally: “resting garden for butterfly children”; an area set aside for children that died during pregnancy (miscarriage and stillbirth), irrespective of their religious belonging, in the Leipzig-Lindenau cemetery. The communal funeral is organised three to four times per year by the Working Group Schmetterlingskinder.
For a definition of miscarriage see above. As far as a stillbirth is concerned, according to PStV § 31, this applies if the child shows no signs of life at birth (par. 2), has a minimum weight of 500 g (par. 2, sentence 1) or has a maximum weight of 500 g, but the birth takes place after the 24th week of pregnancy (par. 2, sentence 2) or if – in deviation from par. 2, sentence 2 – the miscarried child is part of a multiple birth in which at least one child is certified as a live birth or as a stillbirth (par. 3).
Interview with Zahra, 17 June 2019.
Interview with Zahra, 18 June 2019.
Participant observation, June 2019 to June 2020.
Based on PStV § 31 par. 3 out of which, however, does not arise any legal entitlements except for the registration in the family register.
The number amounts to 7% of all known pregnancies, whereby the number of unreported cases is probably much higher (Schulze 2013, 72).
It can be generally observed that publications on spontaneous miscarriages and their socio-psychological consequences for the individuals affected are mainly found in the so-called popular science literature. Some of which were written as reference books for the affected themselves, but also for counsellors, grief counsellors, midwives and the like (for example Wolter 2015; 2017). In contrast, there is a wide spectrum of publications on medically or socially induced abortions (Rosner 2001, 176, who notes this across religions).
There are still no scientifically or empirically sound studies available for Germany on the reasons and the degree of the respective taboo. My finding concerning the taboo in this article is based on my conversations with those affected and their families, midwives, grief counsellors and morticians, as well as on a review of publications in various genres.
Interviews with affected parents, midwives, and grief counsellors on various occasions, summer 2020–2022.
The embryonic development according to the scripture can be found inter alia in Q 22:5, 23:12–14 and the Sunna, for example al-Bukhārī 1422, nos. 3208, 3332, 6594, 7454, as well as Muslim n.d., nos. 1616, 1617. For an analysis of classical or contemporary majority views, see Ghaly 2012 with further reference; Mittelsdorf 2019.
By way of comparison: In Judaism, the 40th day represents a crucial point: Thus, a miscarried child born up to the 40th day after conception is not buried because it is not yet formed and therefore does not yet have an identity. If, however, the child is born after the 40th day, it must be buried and mourned (Rey-Stocker 2006, 126f.). As far as Christianity is concerned, the Catholic Church already recognises the zygote as human life, which has a right to life and is also entitled to personal rights. In the Protestant Church, there are different positions which see the starting point of becoming human either in fertilisation or in completed implantation. In either case, the fertilised egg is not given the same person status and the same rights as the born human being (Rey-Stocker 2006, 132). If we look at individual cases in practice, we find that the burials by the Schmetterlingskinder at the Leipzig Ostfriedhof are always conducted by one Catholic and one Protestant pastor. A Jewish rabbi or a Muslim imām, however, are missing.
On the involvement of external experts in questions of bioethical relevance apart from ʿulamāʾ, see Ghaly 2015. The joint decision-making process takes place by means of collective independent reasoning (ijtihād jamāʿī; Gad Makhlouf 2018).
2020 until 2022.
Personal information from the respective Muslim believer, April/May 2020.
In the original: “Bestattungsplätze müssen der Würde des Menschen, den allgemeinen sittlichen Vorstellungen und den anerkannten gesellschaftlichen Ordnungen entsprechen.”
Which is 10 years for miscarried, still born, and those children who died before the age of 2 years and apart from that 20 years (SächsBestG § 6 par. 2 sentence 1).
Participant observation, 2 November 2019. The chairperson of the Working Group Schmetterlingskinder also confirmed the participation of Muslims in the communal funerals. Personal information, 27 May 2020.
“… the possibly special character of the physical quality of unborn life in this context is not raised further in the fatwās she examines” (own translation).
The change from burial to cremation is, however, unobjectionable from the point of view of Saxon law, as the SächsBestG basically provides for the options of burial and cremation (§ 18 par. 4 sentence 1).
Experience from empirical research, 2019 to 2021. In Leipzig, however, structures for the counselling of specifically Muslim parents are gradually developing, for example in the registered association Nur al-Hayat.
Personal information from an undertaker, 3 June 2021, and from a trainer of bereavement counsellors, 13 March 2022. The latter also told me about an increase in the number of affected Muslim parents seeking bereavement counselling.
“… whether in a specific individual case there is really a deviation from the norms of conduct prescribed by custom and usage, law and rite, requires a detailed examination and presentation of the respectively required approach and procedure” (own translation).
When doing research in Düsseldorf (North Rhine-Westphalia, October 2019 to March 2020), one female interlocutor, who’s sister’s child had died sometime after its birth for health reasons, told me how much the behaviour of the child’s father had changed since the child’s death and that he was no longer accessible since then. The search for respective offers as to bereavement counselling specifically for Muslim men ended unsuccessfully. Rihm and Rihm (2013) also point to the desideratum of missing offers for grieving men regardless of religious affiliation.
For example, with the registered association Hope’s Angel Foundation in the training of grief counsellors. Personal information from the head of training on various occasions during 2021.
To this end, the Working Group Medizinethik und Islam (Medical Ethics and Islam) at the Erlangen Centre for Islam and Law in Europe EZIRE has dedicated itself to networking scientific and practical actors.