Istilad and the umm al-walad

Lexically istilad is seeking a child from a wife or a slave woman; the jurists restrict it to the second, a child by a slave woman, and a slave woman who has borne her master a child is called "umm al-walad", mother of the child. ¹ The chapter on istilad is the last chapter of the Book of Manumission in volume 3 of Radd al-Muhtar, where Ibn Abidin explains the Hanafi doctrine on it. ^{2 1}

By the text and its commentary: when a slave woman bears her master a child, even a miscarried foetus with some visible form, and even if she is a mudabbara, and the master acknowledges the child, she becomes umm al-walad. ¹ The master here is her owner in whole or in part, whether Muslim, dhimmi or under safe-conduct, and it includes a father who has intercourse with his son's slave woman and then claims the child. ¹ What counts is the master's acknowledgement and claim of the child. ¹ If he acknowledged the pregnancy and she gave birth less than six months after the acknowledgement, she becomes umm al-walad; if more, paternity does not bind him, since the pregnancy may have begun after the claim, as he reports from al-Nahr, al-Zayla'i and al-Muhit. ¹ In the school she does not become umm al-walad if he fathered the child in zina and later acquired her, by istihsan, while by analogy she would, as Zufar held. ¹

Ibn Abidin reports from al-Fath what is related from Abu Hanifa: if the master does not practise withdrawal with her and guards her from occasions of suspicion, he is bound before God to claim her child, since the apparent fact is that it is his; if he practises withdrawal or does not guard her, he may deny it, because that apparent fact is opposed by another. ¹

In the Hanafi view the umm al-walad is like the mudabbara in that she cannot be transferred for payment or without it, but she is freed at her master's death from his whole estate, the mudabbara from a third, and she does not work off a debt to a creditor. ³ He reports from al-Bahr and al-Fath that the umm al-walad differs from the mudabbar in thirteen rulings. ³ Her status recurs with renewed ownership: if she was freed, then apostatised, went to enemy territory, was captured and bought by her former master, she becomes his umm al-walad again, unlike the mudabbara, because the cause of her status, the established paternity of the child, remains. ³ She is freed from the whole estate only if he acknowledged the child in health, or in illness when a child was with her or she was pregnant; otherwise she is freed from a third, since the acknowledgement is then of freedom, in the sense of a bequest. ³

Ibn Abidin adds that the Book of Judgeship sets out three kinds of rulings: one that never stands because it contradicts the Book, a well-known sunna or consensus; one on a question disputed before the ruling, where the ruling ends the dispute; and one whose very validity is disputed, which a second judge may confirm or annul; and he discusses which kind a ruling on selling an umm al-walad belongs to. ⁴

The other schools' views from their own books, and academic readings of the history of slavery law, are not given here; the whole subject of slavery is historical in this entry, which describes what the book contains.