Part One: A Study on the Legal Issues of Breastfeeding (Ridhaʿ)
Legal Standing of Mother's Milk in Islamic Texts
Human need for nutrition begins since the ovary is formed in the mother's uterus, a need which increases as time passes.
According to the latest scientific achievements, no food is more nutritious for a baby than mother's milk; as it is the best and most complete natural food that provides for all its needs.
Mother's milk is a vital liquid that can, with its property of transformability, meet a baby's needs quite desirably in various conditions.
Vitality of mother's milk is in that it contains living components such as white globules and the substances required for safeguarding and immunizing the baby against pathogenic infections.
Its transformability is because it is transformed in proportion to the baby's needs. In the early days of the baby's life, when it needs more rest, the milk is secreted in a condensed form (colostrum) so that besides providing the baby's nutritional and immunity needs, it would befit its stomach size.
Constituents of Mother's Milk
Mother's milk, with its six nutritional components, is produced and secreted according to the baby's need.
These components are as follows:
1. Protein Substances
As we know there are two kinds of important proteins in the milk of the mammals: casein with large clots, very hard to digest as befitting animals' digestive system; proteins with small clots which are easily digested and their ratio in mother's milk is 80 to 20.
Therefore, the proteins existing in mother's milk is of best quality for digestion and absorption by the infant and greatly contributes to its optimal growth and development.
2. Fatty Substances
The fats contained in mother's milk are more of the kind of fats needed for brain structure, which fully satisfies the infant's nutrition needs.
Furthermore, since mother's milk naturally contains more cholesterol, it operates the cholesterol metabolism system of the body more desirably. As a result, the babies who have been breast-fed for over a year would be protected from the risk of increased cholesterol, blood pressure, and the related cardiovascular disorders in their middle age; or would be less prone to such maladies than other people.
3. Sugary Substances (Hydrocarbons)
Mother's milk synthesis is different from other milks in the amount and type of sugar matters.
The sugar in mother's milk is lactose. This substance increases the absorption of calcium in the infant's intestine and improves its bone growth process.
In addition, the lactose in the mother's milk lessens the infant's constipation, and thus eases its bowel movements.
Also, due to the interaction of this sugar matter with other substances, the useful microbes of the intestine further grow and multiply and with the secretion of an acid substance, create an inappropriate environment for the pathogenic microbes to grow and prevent digestive disorders.
4. Water
The amount of water in mother's milk is sufficient to liquefy with appropriate density so that the infant would not need extra water.
For this reason during the first five months that the infant is breastfed only with mother's milk, it does not need water beside the milk.
The amount of water in mother's milk is so much that if the infant is afflicted with diarrhea for any reason, it will be safe against lowering of body water (dehydration), which is the major incidence of diarrhea.
5. Vitamins
Mother's milk contains various kinds of vitamins dissolved in water and fat;
and since this milk is fed fresh and without being heated, it contains the highest amount of vitamins, for most of these vitamins are ruined and rendered useless when heated over 60˚ C.
6. Salts and Minerals
The minerals existing in mother's milk are quantitatively compatible with the infant's urinary system and kidneys.
Such salts as calcium, phosphorus, sodium, and potassium exist in mother's milk to the extent that while providing for bone growth, nervous system, and other tissues and satisfying the baby's natural needs, they do not impair the kidneys' discharge of urine.
The minerals existing in mother's milk are of such high quality that they satisfy the body's structural needs through better absorption.
In any case, the researches indicate that feeding the babies with human milk would reduce the incidence or intensity of diarrhea, the infection of lower respiratory system, and the urinary system.
In addition, mother's milk is protective against sudden infant death syndrome, insulin-dependnt sweet diabetes, allergic diseases, and other chronic digestive problems.
The Value of Mother's Milk in Religious Texts
What is perceived from a study of Islamic texts concerning mother's milk is the very important conclusion that mother's milk is the best and the most perfect food for a baby, and that nothing, even other natural animal milks, can be substituted with it.
Besides the attention paid by the jurists in legal texts
, the importance of mother's milk has been brought up in hadith sources and many traditions have stressed its importance in the form of short statements related to us from the Infallible Imams.
The Holy Prophet of Islam (S.A.W.) describes mother's milk as follows: "There is no better milk for an infant than mother's milk."
Similarly, Imam ʿAli (A.S.) is quoted as saying: "No milk is more blessed than mother's milk for the infant."
Thus, if not saying breastfeeding a baby is an obligation upon the mother – which we will explain later on – it is, at least, recommendable and desirable (musthab), which is evidenced by its compatibility with the baby's body.
The First Milk (Colostrum)
Colostrum is a condensed liquid with a lemon yellow color which is the first milk excreted from the breast. This liquid which is called aghuz (in Persian) excretes from the nipples from the second day of childbirth and continues to excrete for five days; during the next four weeks it gradually turns to mature milk.
Comparing mother's milk, colostrum contains more minerals and proteins, which mainly consist of globin, and to less degree, sugar and fat.
The importance and nutritious-hygienic value of feeding the infants colostrum has made this issue to be brought up in legal texts and many jurists have obliged mothers to feed it to their infants, even if they may demand wages for it, since the baby's survival is dependent upon eating it.
In contrast, some people criticize this claim and reject it as untrue, maintaining that the baby can survive without eating the colostrum, for it can be breastfed after birth by a woman other than its mother; some women do not secrete colostrum and it may so happen that breastfeeding the colostrum would not be possible because of the mother's illness.
Paying attention to these points has made some great jurists claim that the baby's life is dependent upon taking colostrum milk in most but not all instances; besides, taking this milk makes the baby's body stronger and more vigorous.
Regardless of the reasons proposed by the proponents and critics of obliging mothers to feed their infants colostrum, feeding this milk to infants is so important that a group of Shiʿa jurists have given fatwa (a legal edict) that if a woman is sentenced to qisas (retaliation punishment) or lapidation (stoning to death) for murder or other criminal acts, the execution of the punishment should be postponed so that the mother could feed the infant colostrum, reasoning that the infant's livelihood is dependent upon the intake of colostrum, as the infant is often unable to survive without it; hence, observing the infant's rights and safeguarding his life.
According to some, the execution of qisas can be postponed until the end of the two-year period of breastfeeding; and if no wet nurse is found to breastfeed the infant after it had colostrum from its mother, this postponement is even preferable (mustahab), for the infant may not accept milk other than its mother's.
This claim is testified by the traditions the Shiʿa transmitters of hadith have related about the way the Holy Prophet (S.A.W.) and Amir al-Mu’minin ʿAli (A.S.) have dealt with this issue.
It is to be mentioned that no specific time is determined in the religious texts for the legal obligation of feeding the infant colostrum; although some have limited it to three days.
How to Breastfeed the Baby
As the religious dignitaries have recommended, it is preferable (mustahab) for the mother to breastfeed the baby from her both breasts. The Holy Prophet (S.A.W.) of Islam said in this respect: "Allah, the exalted, has placed the infant's daily sustenance in the mother's two breasts; water in one and food in the other".
Similarly, Imam al-Sadiq (A.S.) said to a woman who was breastfeeding her two babies at the same time: "Do not feed them from one breast, feed them from both, as one is water [provides water] and the other food".
Breastfeeding Time
The Holy Qur’an has stressed through several verses on being kind to one's parents.
Meanwhile, in two verses, it has pointed out the mother's difficulties during pregnancy, the length of pregnancy, and breastfeeding.
The holy Surat al-Ahqaf (46), considers the length of pregnancy and breastfeeding to be thirty months altogether:
﴾ We have enjoined man to be kind to his parents. His mother has carried him in travail, and bore him in travail, and his gestation and weaning take thirty months ﴿ (46:15).
Obviously, if the pregnancy period fluctuates between six to nine months – as pointed out in some traditions
– the breastfeeding period may vary between twenty one to twenty four months to sum up to thirty months.
It goes without saying that since according to scientific findings and Islamic instructions concerning the end of pregnancy period, from among the four choices of six to nine months only three choices, i.e. 6, 7, and 9 month periods are feasible
, therefore the breastfeeding period may vary between 21, 23, and 24 months.
The variation of breastfeeding period to be between 21 to 24 months – which of course exceeds one year – can be understood from aya 14 of Surat Luqman (31), where the Almighty Allah mentions that weaning a baby takes place within two years:
﴾ We have enjoined man concerning his parents: His mother carried him through weakness upon weakness, and his weaning takes two years. Give thanks to Me and to your parents. To Me is the return. ﴿ (31:14).
The Length of Breastfeeding
Given the above explanations, the length of a mother's breastfeeding her baby is not to be less than twenty months, as according to what is related by ʿAbd al-Wahhab b. al-Sabah and Sumaʿa
, Imam al-Sadiq (A.S.) asserts, using the two words fardh (obligation) and jawr (wrong), that the mother is obliged to breastfeed her baby for twenty one months and if she contents herself with less than that, she has wronged her baby.
Then, claiming that the minimum length of breastfeeding is not distinct and depends on the baby's need and the impact on its health
, is totally baseless.
Of course, it is clear that, according to the practical principle of exemption, the mother has no obligation to breastfeed her baby more than this length of time
, and if she does – as it is asserted in the traditions related by Ashʿari and Halabi
– the father does not have to pay for the surplus of the twenty one months of breastfeeding
, unless the baby is in need of its mother's milk further than that for a specific reason such as illness, in which case the father is obliged to pay her for the whole period of breastfeeding, as this is part of the baby's necessary expenditure which is upon the father to pay.
Mother's Duties in Breastfeeding Period
In the two verses
explained in previous chapter, it was only stated that the total sum of pregnancy and breastfeeding periods are thirty months and breastfeeding is done within two years, without giving any further explanation as to how it is done.
However, the Holy Qur’an, as the major and most important source of Islamic legislation, examines in detail in two other verses
the issue of breastfeeding the infant – of course, while stating the situation of the women who have separated from their husbands.
The Qur’an's silence in stating the ordinances for breastfeeding a baby and the way the three members of family, i.e., father, mother, and the child are related, while a matrimonial relationship is established between the parents, strikes the mind that the clarity of the ordinance for this issue was the reason for not bringing it up.
The way the parents treat their children, both during infancy and after that, seems to be so self-evident that there is no need to be stated; however, it is in divorce and when the marriage bond is for any reason broken that raising this issue becomes seriously necessary.
From verse 227 of Surat al-Baqarah onward, the Qur'an has examined the issue of divorce. In these verses such issues as divorce permit, ʿidda (waiting period after divorce), husbands' priority in returning to their ex-wife, times of divorce, the way to treat divorced women during the ʿidda period and after that are explained.
The question remains to be raised that if a man divorces his wife while having a suckling baby or being pregnant, what obligations are upon him toward his wife and baby. What has the mother to do in this situation?
God has answered this question and said about the women with a suckling baby who have separated from their husbands. He says:
﴾ Mothers shall breastfeed their children for two full years, that for such as desire to complete the breastfeeding and on the father shall be their maintenance and clothing, in accordance with honorable norms. No soul is to be tasked except according to its capacity: neither the mother shall be made to suffer harm on her child's account, nor the father because of his child, and on the [father's] heir devolve [duties and rights] similar to that. And, if the couple desire to wean, with mutual consent and consultation, there will be no sin upon them. And if you want to have your children wet nursed, there will be no sin upon you so long as you pay what you give in accordance with honorable norms, and be wary of Allah, and know that Allah sees best what you do. ﴿ (2: 233).
This verse contains several issues as follows, respectively: breastfeeding the baby for two full years; providing divorced mother with her maintenance during breastfeeding period; Divine tasks as being proportionate to human capacity; forbidding fathers to inflict harm on mothers, or mothers on fathers, and both on children. As well as the responsibility of the father's heir after his death to provide for mother's maintenance; permission to wean the child with mutual consent and consultation by both parents; permission to have one's children wet nursed in accordance with their financial rights; necessity of being wary of Allah; Allah's mastery over all human actions.
Similarly, concerning the women who get divorced from their husbands in their pregnancy, Allah says:
﴾ House them where you live, in accordance with your means, and do not harass them to put them in straits, and should they be pregnant, maintain them until they deliver. Then, if they breastfeed [the baby] for you, give them their wages and consult together honorably; but if you make things difficult for each other, then another woman will breastfeed [the baby] for him. Let the affluent man spend out of his affluence, and let he whose provision has been tightened spend out of what Allah has given him. Allah does not task any soul except [according to] what He has given it. Allah will bring about ease after hardship. ﴿ (65:6-7).
This verse has examined within nine statements the rulings concerning the residence of the divorced women during their ʿidda period. After separation from their husbands and the way their ex-husbands are to treat them, providing a pregnant woman with her living expenses after separating from her husband until delivery. Paying wages to mothers during their breastfeeding period, the amount of the payment and their interrelation after separation.
Since issues relating to the residence of the divorced women during their ʿidda period after divorce as well as their financial problems in this period are beyond the main framework of the present book, we avoid examining the details, and suffice to state that according to the Qur’an, the man is obliged to provide his divorced wife with residence during the time she passes her ʿidda period; similarly, if she is pregnant, he has to provide her with her living expenses until delivery.
However, the main theme of our discussion includes the fourth statement of the above verse onward in which such issues as paying mothers for breastfeeding during the period after separation and the way the man and woman interrelate are examined.
The Holy Qur’an has separately discussed the issues concerning baby breastfeeding and the parents' duties during the time after their separation, depending on whether it is before or after the childbirth. However, there are many content similarities among the details of these two subjects, that we will bring up these details according to their content and examine the statements of the above two verses as per our subject of discourse.
Mother's Duties during Breastfeeding Period
The Holy Qur’an has dealt with mothers' duties during the breastfeeding period in the following statement: ﴾ Mothers shall breastfeed their children for two full years, that for such as desire to complete the breastfeeding ﴿ Since the study of legal rulings deduced from this statement is based on correct understanding of the meaning of the terms used in it, we will follow the juridical discourses of this section while assessing the meaning of the terms.
The term walidat is the plural form of walida. Walida and umm are both used in Arabic as meaning mother, with the difference that walida is used for a woman who has given birth to a child, but umm is used for grandmother, too
; and as the former is characterized by childbirth, it is normally associated with breastfeeding and infancy.
Walidat apparently includes all women who have given birth to their children and breastfeed them. In addition, it seems to mean only the women who have separated from their husbands and have infants
, for there must be a logical relation between this verse and the verses before and after that as well as a semantic consistency within the statements of the verse itself.
There are statements in this verse, which are definitely about divorced women and cannot include all women. For example, as agreed by all interpreters, the statement ﴾ on the father shall be their maintenance and clothing ﴿ merely concerns the women who have separated from their husbands, for the obligation of paying maintenance and providing the woman with her expenses, given the continuance of matrimony, is because of the continuing marriage bond, rather than for breastfeeding. In other words, provision of a woman's expenses is upon her husband, whether she is breastfeeding or not.
On the other hand, in rizquhunna (their maintenance) and kiswatuhunna (their clothing), the pronoun hunna (their) refers to alwalidat (mothers). The conformity between the pronoun and its antecedent denote the point that the same women whose provision of maintenance and clothing during breastfeeding period is upon their husbands, are obliged to breastfeed their children.
In other words, if this verse includes all mothers, there must be two portions of maintenance for the women who have separated from their husbands and at the same time breastfeed their babies. One including the expenses whose provision is undertaken by the husband through wedlock, whether breastfeeding is involved or not, and the second, the expenses whose provision is obligatory for the husbands as mandated by the verse and because of breastfeeding, whereas women in marriage bond deserve to receive only one portion of maintenance.
Yurdhiʿna is the present tense from the root radhaʿa, meaning breastfeeding from breast.
Using this word denotes the point that the mother should directly undertake breastfeeding her baby, and feeding the baby with animal or industrial milk does not rule out her duty.
Although yurdhiʿna is a present tense verb, and a verb signifies an action or appearance of an attribute or state in the present or future, there is no doubt the word yurdhiʿna in this verse could not have been used as a statement, since there are mothers who do not breastfeed their babies.
For this reason, in spite of its appearance as statement, it is used as imperative and demanding, which means "mothers have to (it is obligatory for mothers to) breastfeed their babies."
It is worth mentioning that even those believing that the verb yurdhiʿna does not denote the obligation of breastfeeding, they regard mother's breastfeeding her baby as obligatory in several cases due to the necessity of saving the baby's life.
1. The baby would accept no breasts other than its mother's,
2. The baby would survive only with its mother's milk and no other milk would befit it,
3. No one other than its mother would be around to breastfeed it, and
4. The baby does not have a father, it does not have any capital to pay for the mother's wage, and no one else is ready to provide it.
Although the mother is obliged to breastfeed her baby only for 21 months, but if in time of separation her ex-husband wants her to complete the breastfeeding period, the mother has to feed her baby up to maximum twenty four months (two full years).
The necessity of completing the breastfeeding period to twenty-four months can be implied from the phrase ﴾ for two full years, that for such as desire to complete the breastfeeding ﴿ because:
First: what is intended by ﴾ two full years ﴿ is that the two years is not to be calculated approximately or with compromise; rather, care must be taken that the mother breastfeed her baby for two full years (twenty four months).
On the other hand, the longest time for a baby to be breastfed and deemed as helpful is two years, after which the baby's breastfeeding is no longer of any benefit to the baby.
Accordingly, it is obvious that a ruling as to the necessity of breastfeeding a baby up to two full years is not exclusive to the premature babies (born at 26 weeks) or whose parents are in dispute
; rather, it includes all children and it means that twenty four months is the maximum acceptable time for breastfeeding, without the pregnancy period having any impact on this ruling.
Second: although, according to the statement ﴾ that for such as desire to complete the breastfeeding ﴿ , the completion of breastfeeding period is conditional on someone's demanding the full breastfeeding period, but this one is not intended to be the mother herself; rather, this one is intended to be the father. Therefore, if the father provides for the required expenses of breastfeeding the baby up to two years, the mother is obliged to complete the breastfeeding period.
Conclusion: Comparing the content of the verse ﴾ Mothers shall breastfeed their children for two full years, that for such as desire to complete the breastfeeding ﴿ with the content of the verse ﴾ His mother carried him through weakness upon weakness, and his weaning takes two years. ﴿
and ﴾ and his gestation and weaning take thirty months ﴿ ,
we conclude that the breastfeeding period varies between twenty one to twenty four months. Since the total length of pregnancy and breastfeeding is thirty months and the pregnancy period varies between six to nine months.
Twenty one months is the least length of time for breastfeeding that the mother is obliged to complete; however, its completion to twenty months during the parents' separation is upon the mother only when the father demands it from the mother (of his baby) while paying for her expenses. Thus, the obligation for completion of breastfeeding period is a conditional obligation rather than an absolute one.
Obviously, legal obligation of completing the breastfeeding period in case of the father's demand is reconcilable with the non-permissibility of forcing the mother to breastfeeding, which is understood from Sulayman b. Dawud b. Minqari’s tradition and other evidences
and over which there is consensus by the Sunni and Shiʿa jurists
; for, there is no correlation between the legal obligation of an action and the coercion to perform it.
On the other hand, although the mother is legally obliged to breastfeed her baby for twenty months, it is preferable for the mother to complete the breastfeeding period up to twenty-four months to the benefit of the baby.
Father's Duties during Breastfeeding period
Provision of the Mother's Expenses during Breastfeeding Period
After stating the divorced mothers' duties concerning the completion of breastfeeding period, God proceeds to state their husbands' reciprocal duties.
With the phrasing ﴾ and on the father shall be their maintenance and clothing, in accordance with honorable norms ﴿ , the Holy Qur’an points out that the baby's father is legally obliged to provide his ex-wife's maintenance and clothing during the breastfeeding period.
In the above verse (Q. 2:233), God has made use of the [Arabic] phrase al-mawludi lahu (i.e., the one for whom the baby has been born) instead of the word father in order to show that the payment of the expenses of breastfeeding during the period after separation is upon the father. Because the baby had been born for his sake and as, he had wished.
The Holy Qur’an assigns responsibility for the provision of two things to the father during the breastfeeding period: rizq (maintenance, sustenance) and kiswa (clothing).
Although the term rizq is translated as sufficient food
, and kiswa as clothing,
it seems that rizq is not restricted to food alone but includes all the things that the mother requires during her breastfeeding period.
Therefore, the father is obliged to provide the mother with all her requirements during the breastfeeding period after separation.
Provision of mother's needs during the breastfeeding period is referred to as wage in verse 6 of Surat al-Talaq; thus, it may be concluded that what is meant by the breastfeeding wages for the mother is the provision of her requirements during breastfeeding period.
Similarly, it can be claimed that the wage that the father pays to his ex-wife for breastfeeding has to be so much as it provides her food and clothing (requirements).
Of course, the change of the Qur’an tone from "maintenance [food] and clothing" to "wages" is perhaps because if the divorce comes through before childbirth, the woman's ʿidda period will be over once delivered and there will remain no relationship between the man and the woman. However, if the divorce is after the childbirth, the matrimonial relation between the man and the women will remain unbroken – however weakened – until the ʿidda period is over. As we explained before, the woman cannot ask for wages for breastfeeding her baby while matrimonial relation is still valid; rather, it is incumbent upon the husband to provide his wife with food and clothing.
Now that the father is obliged to provide the mother's expenses during the breastfeeding period, the question arises that how much the amount of these expenses will be. To answer this question, the Qur’an uses the phrase bi al-maʿruf (in accordance with honorable norms).
There are various probabilities as to what is meant by maʿruf, which can be divided into two general categories: 1. how to pay, 2. and how much to pay.
According to the first probability, the father has to pay for his ex-wife's requirements in a decent way during the breastfeeding period. According to the second probability, however, the amount of the father's payment to his ex-wife during that period has to be honorable; in such a case, there are three probabilities: proportion to the mother's social status, proportion to the father's financial ability, sufficiency of the amount.
It seems that the criterion for determining maʿruf is the financial power and potential of the baby's father and does not have anything to do with the mother's social status,
since the Qur’an continues to emphasize that God does not task man except according to his capacity, ﴾ No soul is to be tasked except according to its capacity ﴿
The best witness to the truth of the above is what God has said in Surat al-Talaq concerning maʿruf:
﴾ Then, if they breastfeed [the baby] for you, give them their wages and consult together honorably… Let the affluent man spend out of his affluence, and let he whose provision has been tightened spend out of what Allah has given him. Allah does not task any soul except [according to] what He has given it. Allah will bring about ease after hardship. ﴿ (65:6-7).
Breastfeeding Wage
As mentioned before, God has brought up in Surat al-Talaq the issue of giving wages to breastfeeding mothers, ﴾ Then, if they suckle [the baby] for you, give them their wages ﴿ .
Therefore, it is noteworthy that the Qur’an talks about giving wages to mothers for breastfeeding when all matrimonial bonds are broken and there would be no difference between her and other women. However, while the woman is still in her ʿidda period and there are some signs of matrimony remained, the Qur’an does not say anything about wages, but suffices to mention the provision of food and clothing, which we refer to in legal convention as nafaqa (maintenance or alimony). This was of course what the man as a husband, had to provide for even if no divorce were to come through.
Perhaps it can be understood from this difference in phrasing that the institution of marriage is too sacred to use such terms as wages, which in itself denotes a kind of wage earning and a master-servant relationship, in regulating the financial relationship between the man and the woman.
In any case, one of the issues discussed in Islamic law is establishment of a leasehold relationship between the wife and the husband concerning breastfeeding their baby.
Some Sunni jurists such as Shafiʿi and Ahmad b. Hanbal, as well as Shaykh Tusi from among the Shiʿa jurists believe that no wage contract is made between the wife and the husband in relation to breastfeeding. Moreover, the wife cannot demand wages for breastfeeding her baby. That is because the husband is the beneficiary of his matrimonial relation to his wife and there is no reason for receiving wages. The permissibility of a leasehold relationship between a woman and someone other than her husband concerning breastfeeding (i.e., as a wet nurse) is no reason for the existence of this relationship between she and her husband; and finally, receiving wages is against the requirements of marriage contract.
In contrast, most of the Shiʿa jurists believe that a contract for breastfeeding is made between the wife and the husband and the former can demand wages for breastfeeding her baby. In order to prove it, they provided evidence from the verses of the Qur’an, the correlation between the permissibility of contract with one's wife and the permissibility of contract with other people, and the husband's being undeserved of all his wife's benefits.
To our opinion, none of the previous reasons denies or proves the permissibility of establishing a leasehold relationship between the wife and the husband; therefore, lacking the verbal signification, we have to turn to practical principles.
If we doubt about the permissibility of hiring the mother for breastfeeding her own baby, the principle of lawfulness denotes the permissibility of such a deal, since on one hand, the father pays the wages, and on the other hand, the mother breastfeed her own baby
; just as the principle of soundness of transactions denotes the soundness and the necessity for each party to observe the content of such a transaction.
Moreover, if we doubt that, in case of the mother's one-sided request for wages, whether the father is obliged to pay for it or not, the principle of non-necessity and his exemption from obligation suggests that the father is not committed to pay wages.
Thus, two issues should not be confused with each other; one is the parents' consent for paying and receiving wages while marriage bond is still established between them; the other is the father's obligation to pay wages when the mother makes breastfeeding her baby conditional on receiving wages.
Reconciliation between these two principles prompts us to say that if the father agrees on such a contract, the deal is sound and the two parties are obliged to fulfill their commitments, but the father cannot be forced to pay wages.
Obviously, if the mother receives wages from her husband for breastfeeding her own baby, she is not permitted to feed the baby with supplementary food or animal milk instead of giving it milk from her own breasts
. Since she is not permitted to have the baby wet nursed by another woman (i.e., a foster suckling-mother), unless the father permits her to do so.
As it was said, according to the Qur’anic statement ﴾ Then, if they breastfeed [the baby] for you, give them their wages ﴿ , the father of the baby is committed to pay the mother's wage during their separation period, and if the father dies, the expense is to be paid for from the baby's share of inheritance.
Moreover, the possibility that the provision of expenses for the breastfeeding would lie with the baby (even if the father were alive) and is paid from the baby's assets
, is incorrect.
In addition, the father is obliged to pay for the mother's wage once she undertakes to breastfeed the baby,
and there is no need for the breastfeeding period to end – as al-Jassas claims
– so that the mother may receive her wage.
Determining the amount of the mother's wage is a matter of agreement, too, which depends on the mutual consent. Restricting it to the wage that the other women receive for this task in equal conditions (ujrat al-mithl – fair equivalent wage)
is incorrect, because the amount of breastfeeding wage is subject to the father's financial capability.
In order to prove this issue, besides the verse ﴾ but if you make things difficult for each other, then another woman will breastfeed [the baby] for him ﴿ ,
which regards the father's being in dire straits as the criterion for permitting the baby to be left with the foster suckling-mother. We can rely on the content of traditions related by Dawud b. Husayn, Kanani, Abi al-ʿAbbas, and Halabi
, for the wage which the mother is demanding is less than, more than, or equal to the fair equivalent wage.
In these traditions, two issues are emphasized explicitly or implicitly: permissibility of taking the baby from the mother in case of asking for higher wage and the mother's priority in breastfeeding her baby if she does not ask for higher wage.
Therefore, taking the baby from the mother and leaving it with a foster suckling-mother when the former asks for a higher wage is permissible, whether the amount she is demanding is equal to the fair equivalent wage, lower, or higher than that. On the other hand, the mother is given priority over other women for breastfeeding her baby in case she receives equal wage and does not demand a higher wage than they do.
Reciprocal Duties of Parents during the Breastfeeding Period
Through the statement ﴾ neither the mother shall be made to suffer harm on her child's account, nor the father on account of his child ﴿ the Qur’an specifies that the mother should complete the breastfeeding period upon the father's demand and the father, in return, should undertake her living expenses during this period. The parents' separation should not be a means to harming each other or their child.
This part of the verse is divided into two independent parts, i.e. la tudharra walidatun bi waladiha (neither the mother shall be made to suffer harm on her child's account), and la tudharra mawludun lahu bi waladihi (nor the father shall be made to suffer harm because of his child). The verb tudharr is read in two ways: la tudharru in the active form and la tudharra in the passive form, due to which in the former case the two words walidatun and mawludun lahu are subjects (faʿil) and in the latter case they are the subject of the passive (na’ib faʿil), therefore, two possibilities are perceived in its meaning:
First, children may suffer because of their parents. Accordingly, God undertakes to prevent the parents from harming their children, saying: the mother must not harm her child and the father must not do, either.
Mother's harming her own child is imaginable in several ways, such as refraining from breastfeeding the child, which can be due to fury against the father and negligence in taking care of the child's needs such as cleaning, feeding, and clothing.
Father's harming his child can be done in various forms, such as negligence or delay in paying the child's living expenses, unduly separating the child from the mother and leaving it with another person.
Second, the parents may suffer on each other's account. Experience has shown that in many cases that dispute and conflict arises between the wife and the husband, each one of them tries to harm the other by taking the child as a means to this end; in the meantime, the only one who suffers most is the child.
If we accept this possibility in the meaning of the Qur’anic verse, it shows that the Qur’an is trying to state that the parents should not try to harm each other by using their child as bait.
Father's harming the mother may be through such acts as emotional instigation of the mother by making her breastfeed their baby without paying for her living expenses, depriving her of seeing and taking care of her baby, taking the baby away from her in order to revenge her and leaving it with someone else for breastfeeding, as well as preventing her from breastfeeding the baby while she is indeed able to breastfeed the baby herself. Obviously, in the above cases, the first one to be harmed is the baby.
On the other hand, since the mother is not able to persecute the father directly, she tries to achieve her goal by using the baby as bait throughout one of the following ways. Through emotional provocation of the father making him to pay more for her breastfeeding the baby; preventing the father from seeing his baby; avoiding to breastfeed the baby and abandoning the baby to its father.
Although some believe that the verse ﴾ neither the mother shall be made to suffer harm on her child's account, nor the father on account of his child ﴿ encompasses both possibilities
, the statement can prohibit harming the baby or the wife in itself and out of the context of the verse as a general law whether the verb is in the active or passive form – as according to some traditions, shunning from intercourse by the wife or the husband during pregnancy is an evidence of mutual harming of both husband and the wife.
To our opinion, this phrase, given the sentences before and after this statement, suggests the prohibition of the wife and the husband from harming one another after separation and during the breastfeeding period. The duties of the wife and the husband in this period should not turn into means for taking revenge from each other, the revenge that due to the breaking of marital relation would occur just through their mediating link, namely their child.
Therefore, the verb la tudharru is used in the passive form and concerns the prohibition of the ex-couple harming each other via their child rather than the parents directly damaging their child; although, in its own place, the latter can be true.
Duties of the Father's Successors during the Breastfeeding Period
With the clarification of the duties of both the parents toward their child during the period after separation and also their reciprocal duties toward each other, the question remains to be answered that if the father dies during the breastfeeding period, who would take on his duty to pay for the mother's wage.
Stating ﴾ and on the [father's] heir devolves [duties and rights] similar to that ﴿ , the Qur’an intends to say that the father's duties during the baby's breastfeeding period are transferred over to his heir.
For what is meant by heir (warith) different possibilities have been considered: the father's heir, the child's father, either of the mother or the father when the other is dead, the heir to each of the father or the mother, the child's future heirs, the child itself, the child's executor (wasi).
Despite what some sources have claimed
, there are different possibilities as to what is meant by mithl-i dhalik (similar to that): payment of the mother's maintenance or alimony (nafaqa), not inflicting any harm, provision of the mother's expenses, and having the child wet nursed.
To our opinion, what “heir” means in this statement is the heir to the father and as this statement refers to the two statements before it, it contains two issues of providing the mother's maintenance (daily sustenance and clothing) and not inflicting any harm on her.
Therefore, the father's heirs are obliged not to inflict any harm on the mother by means of her child, just as they have to provide for her food and clothes in a decent way.
It is clear, of course, that the holy verse proposes the transfer of the father's duties to his heirs, but it is silent about the source of provision and payment of the mother's maintenance.
Thus, the father's heirs do not need to provide for the baby's expenses during the breastfeeding period from their own property; rather, either they provide the related expenses from the father's properties (shared among the heirs) – should we say these expenses are regarded as among his debts – or from the baby's possessions.
Such a meaning of the statement ﴾ and on the [father's] heir devolve [duties and rights] similar to that ﴿ can also be understood from the traditions related from the Infallible Household of the Prophet (S.A.W.). Since some of these traditions have referred to the issue of alimony
, to the effect that as the father undertakes the responsibility of providing for the mother's maintenance during the breastfeeding period, after his death, this responsibility will be transferred to his heir.
However, not to the effect that the father's heirs provide for the mother's maintenance during the breastfeeding period from their own property like what is true regarding the father's executor in relation to the minor children of the demised father.
Moreover, it is for the same reason that it is asserted in the tradition related by Muhammad b. Abi ʿUmayr and Ibn Abi Yaʿfur that this maintenance is paid from the baby's own share of inheritance.
In some traditions the father and the heir in the statement ﴾ and on the [father's] heir devolve [duties and rights] similar to that ﴿ are taken to be the same with respect to the statement before that, i.e., ﴾ neither the mother shall be made to suffer harm on her child's account, nor the father on account of his child
. ﴿
Careful examination of this group of traditions would clearly reveal that what is intended by the Words of Allah is preventing the father's heirs from persecuting the mother and her child. These persecutions may occur in various forms in their mental and financial affairs such as taking away the child from her mother, failure to give the child's share of inheritance in due time, etc. The mother’s separation from the child’s father before his death lays the ground for numerous challenges between the father's family and heirs, i.e., grandfather, grandmother, brothers, and sisters on one side and his ex-wife (the child's mother) on the other.
The great Qur’an interpreter, ʿAli b. Ibrahim Qummi, comments on the statement ﴾ and on the [father's] heir devolve [duties and rights] similar to that ﴿ : that “it means if a man dies and leaves behind a suckling baby, it is not befitting the heirs to cut down the baby's maintenance cost; rather, it is best to increase it generously."
How to Wean the Baby
So far we explained that the mother is obliged to breastfeed her baby up to twenty one months; and in case she has separated from her husband, if her ex-husband wants her to complete the breastfeeding period, she is obliged to do so. Anyhow, the father is obliged, in return and as per his capacity, to provide for her maintenance during this period, and if he dies, his heirs are responsible to provide for the mother's living expenses during this period.
Now, the question remains to be answered that if the baby is to be weaned, who should make the decision in this respect.
The Holy Qur’an replies the above question as follows:
﴾ And if the couple desire to wean, with mutual consent and consultation, there will be no sin upon them. ﴿ (2:233).
There are two possibilities as to which two people's desire matters: that of the father and mother
or the heir and the mother
; what is meant by fisal (which means both separating and weaning)
in the above verse, is either separating the baby from its paternal next of kin, or simply weaning.
Weaning the baby could mean that the baby starts eating food and is not being fed with milk or simply weaned from mother's milk, although it may be left with a foster suckling-mother to be breastfed.
The term fisal in the above verse seems to mean fitam, and what is meant by fitam, as it is related in traditions, is weaning the baby from the mother's milk before the ending of two years (i.e., twenty-four months).
Since after two years there remains no obligation on anyone for breastfeeding to talk about separation
, for this reason claiming that the issue in question either is weaning the baby from milk, before or after two years, would be incorrect.
Having brought up the issue of weaning the baby, the Qur’an emphasizes, by stating ﴾ with mutual consent and consultation ﴿ that this weaning is to be consented and consulted by both parents.
The requirement of the consent of the father and the mother (the heir and the mother) is a factor restraining unilateral decision of each one of them on weaning the baby before two years.
Consultation and conferring, from the viewpoint of the Qur’an, is among the qualifications for weaning the baby. Nevertheless, whom should be conferred, the baby's parents or the parents and other people?
The question arises since, when talking of consent (taradhin), Allah limits its range of application to the baby's father and mother by using the adverb minhuma (each one of them, translated here as mutual) and thus deems consent of others as unnecessary; however, when talking of consultation (tashawurin), He uses it without any adverb.
Some believe that not mentioning the adverb minhuma for consultation is simply due to the literary structure of the Arabic language, and for this reason, the parents can wean their baby after consent and consultation with each other.
In contrast, some believe that not mentioning the adverb minhuma for consultation suggests that consultation is not restricted to the parents alone, rather it includes child nutrition specialists (specialized physicians), which indicates the significant role of conferring with specialists in the field of Islamic legislation.
Although there seems to be no basic difference between these two views, as the parents' consultation with one another is for the purpose of recognition of their own baby's interests and if they are not in a position to recognize it, they would naturally refer to child nutrition specialists and experts.
Obviously, in both cases, whether the consulted party is the parent or another person, the consultation has to be directed towards the child's interests and benefits.
Consultation following consent indicates that any agreement that is reached between the parents in this respect is not sufficient by itself. Since there is the possibility that both of them are benefiting from this agreement the father wishes to shun the financial burden, and the mother would like to live her personal life and get rid of the child's attachment to her.
Thus, consent alone is not enough; rather, this consent has to be for the child's interests, which will be obtained through consultation to safeguard the child from any harm.
It is clearly implied from what was said that weaning the baby needs to be consented by both parents and no one's view is preferable to the other. Therefore, giving priority to the mother in this respect and the father's being subject to the mother does not have a Qur’anic basis. However, it should be noted that the parents' consent and consultation for weaning the baby is permissible only after the baby has been breastfed for twenty one months, as it was stated before that observing the least length of time for breastfeeding the baby is obligatory. Therefore, fisal – as some claim
- cannot occur without time limit, rather it is applicable within the complementary period, which is between twenty one to twenty four months.
Leaving the Baby with a Foster Suckling-Mother
Suckling the baby is among the problems of the children's life we face in almost all societies.
There is no doubt that mother's milk is the best food for the child; however, despite the importance of this issue, there are mothers who for some problems are not able to breastfeed their child, or if they are, they are not willing to do so.
The easiest way to solve this problem, which has since long ago been pursued by many, is to find a substitute for the mother and to leave the baby with the woman who is able to breastfeed.
Taking care in choosing the suckling foster mother has been greatly emphasized in some Islamic sources, since breastfeeding the baby, besides providing for its nutritional needs, can have profound impact on its mind and soul:
"Look who is breastfeeding your baby, as the baby nourishes with that [milk]."
"As you select a woman for marriage, so also select women for breastfeeding your babies, for breastfeeding changes natural disposition.
Therefore, it is quite natural that for selecting a foster suckling-mother, besides the ability to breastfeed, the legislator deems the other factors such as mental and physical health, chastity, and even outward beauty as effective:
"I asked the Imam (A.S.) whether it is appropriate to choose an adulterous woman for breastfeeding my child. The Imam (A.S.) said: Neither she nor her daughter is appropriate for such a task."
"Do not choose a feeble-minded or bleary-eyed woman for breastfeeding your child, as milk transfers (the features)."
"Choose a good-looking woman for breastfeeding your child and beware of the ugly-faced woman, as milk transfers (the features)."
"It is upon you to choose a good-looking foster suckling-mother, as milk transfers (the features)."
It is understood that these traditions are not comparing the mother's milk with that of other than mother; they only introduce criteria for choosing foster suckling-mother, the effects of which would not be lasting. So, it is not implied from these traditions that a good-looking mother's milk is better than that of an ugly-faced mother. Particularly because according to some traditions, avoidance of choosing certain women as foster suckling-mothers is for the existence of other factors than milk in them.
For example, it is related concerning not choosing a non-Muslim woman for breastfeeding a Muslim child:
"I asked the Imam (A.S.) whether it was appropriate for a Muslim man to choose a Jewish or Christian foster suckling-mother for his child, while they drink wine. The Imam (A.S.) said: When they breastfeed your babies, do not permit them to drink wine."
The Holy Qur’an has examined the issue of hiring a foster suckling-mother for one's child in the following statement:
﴾ And if you want to have your children wet nursed [hire a foster suckling-mother], there will be no sin upon you so long as you pay what you give in accordance with honorable norms. ﴿ (2:233)
The first question arising in respect to this Qur’anic statement is 'Who is this statement addressed to?'
Some claim that it is addressed to parents; thus, leaving the child with a foster suckling-mother is possible when both parents share this intention.
In contrast, some also maintain that God has given the right to hire a foster suckling-mother for the baby only to its parents, since the expenses of the child rest with the father.
The afore-mentioned explanations clarify that the Qur’an has given the primary right to breastfeeding to the mother of the baby; therefore, leaving the baby with a foster suckling-mother is permissible in case this right is not ignored. Thus, it is with the mother's consent and considering her priority that a foster suckling-mother can be hired.
Moreover, it is feasible when the mother is not able to breastfeed her baby due to illness, pregnancy, or lack of milk, or else, she would fail to do her duty as a mother for having married, demanding more wages, and so forth.
With the statement, ﴾ so long as you pay what you give in accordance with honorable norms ﴿ , the Qur’an makes leaving the baby with a foster suckling-mother conditional on payment of the mother's due right.
The mother's inability to breastfeed or her unwillingness to do so, , does not allow the father to use it as a pretext to ignore her previous rights; rather, he is obliged to pay her wages thoroughly and in accordance with honorable norms up to the time she had breastfed her baby.
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Author: Saeid Nazari Tavakkoli
