Abstract

The debate on abortion in Pakistan stands at the crossroads of religion, law, morality, and  human rights. Pakistani abortion laws, rooted in Islamic jurisprudence and codified in the Pakistan Penal Code (PPC), adopt a restrictive stance with limited exceptions. This article critically examines the legal framework governing abortion in Pakistan, evaluates judicial interpretation of relevant provisions, and explores the tension between women’s reproductive autonomy and the protection of fetal life. Special attention is given to abortion in cases of rape, situating the discussion within broader constitutional protections and Pakistan’s commitments under international human rights law, particularly CEDAW. The article highlights existing ambiguities, especially concerning the scope of “necessary treatment,” and the absence of comprehensive judicial guidance. It argues for a rights-based legal framework that safeguards women’s dignity, privacy, and health while respecting religious values. Key words PPC, CEDAW, Abortion, Rape, Jurisprudence Introduction Abortion remains one of the most contested legal and moral questions in Pakistan. It  directly engages issues of religious doctrine, morality, women’s autonomy, and  constitutional rights. Abortion may be defined as the termination of a pregnancy by removing the fetus from the womb of a pregnant woman. Its causes vary, ranging from medical necessity to social and economic circumstances. According to a UN report, most states that criminalise abortion make exceptions only where the mother’s life is endangered.¹ In many Islamic traditions, abortion is generally prohibited, being equated with the taking of an unborn child’s life. In Pakistan, abortion is criminalised under the Pakistan Penal Code (PPC), where it is  referred to as isqat-i-haml (termination before the formation of organs) and isqat-i-janin  (termination after organs have formed).² This framework is largely informed by Islamic jurisprudence, with significant implications for women’s reproductive rights and access to safe healthcare. Legal Framework under the PPC The principal provisions governing abortion in Pakistan are contained in sections 338–338C of the PPC, as amended in 1990: Section 338. Isqat-i-Haml. Whoever causes a woman with child whose organs have not been formed, to miscarry, unless in good faith to save her life or provide necessary  treatment, is said to cause isqat-i-haml. The provision also applies to women who induce their own miscarriage. Section 338A. Punishment for Isqat-i-Haml. Punishable with up to three years’  imprisonment (with consent) or up to ten years (without consent). Liability extends to  injuries or death resulting from the act. Section 338B. Isqat-i-Janin. Abortion after organs have formed, unless in good faith to  save the woman’s life, constitutes isqat-i-janin. Section 338C. Punishment for Isqat-i-Janin. Provides liability in terms of diyat (blood  money) or imprisonment, with additional punishment if harm or death results. These  provisions reflect Islamic jurisprudence that prohibits abortion after the stage of  ensoulment (120 days), except in cases where the mother’s life is at risk. However, the PPC  leaves ambiguous what constitutes “necessary treatment.” This vagueness creates uncertainty for medical practitioners and women, particularly in cases involving rape, fetal disability, or threats to mental health. Islamic Jurisprudence and Abortion Islamic legal thought has historically taken a restrictive approach to abortion, though  positions vary across schools. The four major Sunni schools, as well as the Ibadi and Zahiri traditions, generally prohibit abortion except to save the mother’s life.³ In cases of rape, however, many jurists have recognised abortion as permissible within the first 120 days. For instance, the former Egyptian Grand Imam of al-Azhar, Muhammad Sayyid Tantawi, issued a fatwa in 1998 permitting abortion for unmarried rape victims, even beyond 120 days, under limited conditions.⁴ The National Council for Islamic Religious Affairs in Malaysia similarly ruled in 2002 that abortion is lawful for rape victims within 120 days.⁵ In Syria, Sheikh Muhammad Salih al-Munajjid allowed abortion for rape victims within four months of conception.⁶ These opinions reflect a pragmatic recognition that the trauma of  rape may justify terminating pregnancy, though always within strict temporal limits. While Pakistan lacks formal fatwas directly incorporated into law, such juristic debates  influence societal perceptions and judicial reasoning, particularly where the law is silent. Human Rights Perspective: CEDAW and the Constitution Pakistan ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1996, subject to reservations regarding compatibility with Islamic injunctions. Under General Recommendation No. 19, the CEDAW Committee urged states to ensure women are not forced into unsafe abortions due to inadequate reproductive health services.⁷ Pakistan’s restrictive abortion laws, coupled with limited reproductive healthcare, fall short of this standard. Domestically, constitutional provisions also frame the debate. Article 9 guarantees the right to life and liberty, Article 14 protects human dignity and privacy, and Article 25 ensures equality before the law. Restrictive abortion laws disproportionately impact women, raising questions about compatibility with these guarantees. Interpreted progressively, constitutional rights could justify broader access to abortion, especially in cases of rape, threats to health, or severe fetal anomalies. Abortion in Rape Cases Rape presents a particularly difficult context for abortion law. While the PPC makes no explicit allowance for rape victims, Islamic jurisprudence, as noted above, has recognised abortion as permissible within 120 days in such circumstances. Juristic opinion aligns with the principle articulated in the Hadith: “When two evils meet, the lesser should be sacrificed for the greater.” In this view, terminating a rape-induced pregnancy spares the victim lifelong trauma and social stigma. However, the absence of explicit statutory recognition leaves rape victims in Pakistan vulnerable. Many doctors, fearing liability under the PPC, refuse to provide abortions even within the 120-day period, resulting in unsafe procedures. Judicial Interpretation in Pakistan Judicial engagement with abortion law in Pakistan remains limited. Courts have generally  upheld the sanctity of life, rarely addressing reproductive autonomy directly. In cases  involving life-threatening pregnancies, courts have interpreted Section 338 as permitting abortion to save the woman’s life. Yet ambiguity persists as to whether “necessary treatment” includes threats to mental health, cases of rape, or severe fetal malformation. The judiciary’s silence perpetuates uncertainty, leaving medical practitioners hesitant to act. Greater judicial clarity, ideally through a Supreme Court ruling or legislative amendment, could help align the law with constitutional guarantees and international human rights obligations. Conclusion Abortion law in Pakistan reflects an uneasy balance between religious doctrine and  women’s rights. The PPC criminalises abortion except in limited cases, yet its ambiguity regarding “necessary treatment” undermines clarity and access to safe healthcare. Juristic opinions from the wider Muslim world, coupled with Pakistan’s constitutional and human rights commitments, suggest room for a more compassionate and rights-based approach, particularly for rape victims. Reform should aim to: clarify statutory exceptions, expand the definition of necessary treatment to include physical and mental health, and explicitly allow abortion in cases of rape and severe fetal abnormality. Such reforms would harmonise Pakistan’s laws with both Islamic ethical reasoning and international human rights standards, ensuring that protecting fetal life and safeguarding women’s autonomy are not treated as mutually  exclusive. Bibliography 1. United Nations, World Abortion Policies (UN 2014) 2. Pakistan Penal Code 1860 (Act XLV of 1860), ss 338–338C. 3. Kiarash Aramesh, ‘Abortion: An Islamic Ethical View’ (2007) 6 Iran Journal of Allergy Asthma and Immunology 29. 4. Muhammad Sayyid Tantawi, Fatwa on Abortion (1998), cited in Aramesh (n 3). 5. Umi Adzlin S and others, ‘Termination of Pregnancy for a Muslim Rape Victim and  Dilemma in Malaysian Setting: A Case Report’ (2012) 21 Malaysian Journal of  Psychiatry. 6. Muhammad Salih al-Munajjid, ‘Abortion of Pregnancy Resulting from Rape’ (IslamQA, 2003)https://islamqa.info/en/answers/13317/abortion-of-pregnancy-resulting-from-rape accessed 30 August 2025. 7. CEDAW Committee, General Recommendation No 19: Violence against Women (1992) UN Doc A/47/38. 8. Human Rights Blog, ‘Abortion Laws in the Islamic Republic of Pakistan: To What Extent Do Social Policies Cater to Human Rights?’ (LSE, 22 March 2022) https://blogs.lse.ac.uk/humanrights/2022/03/22/abortion-laws-in-the-islamic-republic-of-pakistan-to-what-extent-do-social-policies-cater-to-human-rights/accessed 30 August 2025 Disclaimer: AI-Assisted Content