Context & Objective: Islamic jurisprudence (Fiqh) acknowledges commitments made in favor of a fetus, recognizing a contingent capacity to enjoy civil rights. According to Article 957 of the Iranian Civil Code, this capacity becomes fully established upon the live birth of the child. While specific legal rights such as inheritance, testamentary disposition, and acknowledgment are explicitly granted to the fetus in the Iranian legal framework, legislators have remained notably silent regarding the legal status of Hiba (an inter vivos gratuitous gift) directed to an unborn child. This legislative silence extends to the civil codes of Egypt, Iraq, and Syria. Within the jurisprudential traditions, Imami jurisprudence lacks explicit rulings on this specific transaction, whereas the majority of Sunni jurisprudential schools, including the Shafi'i, Hanafi, and Hanbali traditions, have explicitly categorized it as an invalid contract due to the perceived absence of foundational validity conditions. The primary focus centers on resolving the doctrinal ambiguity surrounding this issue by addressing the fundamental legal question: Is the execution of Hiba to a fetus legally and jurisprudentially valid as a recognizable civil right?
Method & Approach: The investigation utilizes a doctrinal legal method. The approach systematically examines the foundational concepts of the transaction and critically analyzes the jurisprudential arguments surrounding the purported invalidity of the contract. The analysis evaluates the legal mechanisms and evidentiary bases that support the legitimacy of the transaction, drawing upon comparative assessments of classical Islamic jurisprudential texts and the contemporary civil legislation of selected Islamic jurisdictions.
Findings: The primary arguments advocating for the invalidity of the contract rest on four main jurisprudential objections. Opponents argue that the fetus lacks the capacity to execute qabūl (acceptance) and qabḍ (taking physical possession), which are considered essential elements of the transaction. Furthermore, the fetus is deemed fundamentally incapable of tamalluk (the capacity to acquire ownership) prior to birth. Critics also argue that the transaction inherently constitutes a suspended contract, conditional upon live birth, which violates the requirement for immediate certainty in standard contractual formulations. Finally, the unborn child is classified by some jurists as a legally non-existent entity. However, critical doctrinal analysis refutes these assertions. The requirement for acceptance and possession can be seamlessly fulfilled by the walī (legal guardian) acting as a legitimate substitute, directly mirroring the established legal mechanisms used for minors. The capacity for ownership is not absolutely precluded but is rather contingent and subject to a subsequent condition of live birth, identical to established mechanisms in inheritance. The objection regarding suspension is resolved by differentiating between the immediate decisiveness in the legal declaration and the valid suspension of the legal effect itself. Finally, the characterization of the fetus as non-existent is contradicted by its recognized wujūd ḥukmī (constructive or legal existence), which justifies its established rights to alimony and blood money.
Conclusion: General evidentiary sources, including the Quran, Sunnah, jurisprudential consensus, and the established customary practice of rational individuals and religious communities, collectively affirm the widespread and historical legitimacy of gifting to an unborn child. By employing tanqīḥ-e manāṭ (the legal methodology of extracting and applying the underlying rationale of a ruling), the validity of a testamentary will in favor of a fetus can be directly extended to inter vivos gifts, as both operate on the shared foundation of gratuitous transfer. The contract in favor of a fetus is legally and jurisprudentially sound, provided the child is born alive. Among the surveyed jurisdictions, the Algerian Civil Code, explicitly in Article 209, unequivocally codifies the validity of this transaction.