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Sexual Disabilities in Islamic Law, Past and Present
Abstract
This paper will open with a brief overview of classical fiqh literature concerning sexual disabilities, with a focus on the works by the Maliki al-Wansharisi, the Hanafis al-Halabi and al-Kasani, the Hanbali Ibn Qudamah, and the Shafi’I al-Nawawi . Fiqh literature lists a number of sexual disabilities that may befall males, females, or both, and outlines how the different schools of law have viewed the impact of each sexual disability on the fate of marriage. Special attention is paid to the sexual disabilities of a married spouse, and how this might influence the non-disabled spouse, and whether the latter has the right to get out of a marriage when the partner is sexually disabled. The situation of “sexually disabled” people who are unmarried, and their opportunities for marriage, is also considered. Based on several hadiths, an infertile man was granted permission by the Prophet Muhammad to marry, but only if he had informed the future bride of his disability prior to marriage, and obtained her consent. With the aid of contemporary anthropological literature on ART- Assisted Reproductive Technologies for Muslim communities (Morgan Clarke, Marcia Inhorn, Homa Hoodfar, and others) the paper then analyzes and explains the change in attitudes to sexual disabilities between classical fiqh and contemporary religious thought. In particular, I examine fatwas issued by contemporary muftis such as Hasan Murad Manna’ of Kuweit, ‘Ali Jum’a of Egypt, Wahba al-Zuhayli of Syria, and the Palestinian Husam al-Din ‘Afaneh, and Yusuf al-Qaradawi. This change, I argue, is the result of the birth of babies to parents who have a variety of sexual disabilities that could not be corrected until several decades ago. I argue that with the advancements of science and medicine, and the success of new ART, of which the muftis at present are well aware, the jurists of today have modified the classical legal opinions on the fate of a marriage with a sexually disabled partner to be more tolerant and accommodating.
Discipline
Law
Geographic Area
All Middle East
Sub Area
Islamic Law