In Islamic jurisprudence (figh), a person who has both male and female reproductive organs is called a khuntha (hermaphrodite). Thus, to determine the share of that individual with regards to Islamic law, all measures will be taken to determine the gender of the hermaphrodite. Once the gender is determined, he/she will be treated as that gender for all legal rulings, including inheritance.
However, certain signs need to be observed to determine the sex of the hermaphrodite. The first of which is the organ used to pass urine. If the individual uses the male organ, he will be classified as a male; if it uses the female organ, she will be classified as a female. If the hermaphrodite urinates from both the male and female organs, then the first one to release urine will determine the gender. These signs should be observed at or immediately after.
If these signs were not analysed as a new-born, the sex can still be ascertained later, when more signs appear. These are outlined below. The hermaphrodite will be classified as a male if any of the following occurs:
- He has sexual relations with his male reproductive organ.
- He experiences nocturnal discharge like men.
- He is inclined to women.
- He grows facial hair.
- His testimony of his inner self.
The hermaphrodite will be classified as a female if any of the following occurs:
- She has sexual relations with her female reproductive organ.
- She becomes pregnant.
- She experiences menstruation.
- She experiences the growth of breasts like women.
- She lactates.
All these signs should be looked out for when determining the gender of a hermaphrodite. If the hermaphrodite is classified as a male, he will inherit as a male in all cases. If the hermaphrodite is classified as a female, she will inherit as a female in all cases.
However, if none or all of these signs occur then the hermaphrodite will not be assigned a gender. The individual will be termed a khuntha mushkil (indeterminate hermaphrodite). Thus, special laws will apply to a khuntha mushkil. According to Hanafi, the indeterminable hermaphrodite will always inherit the lesser of the male or female share. In other words, whichever share is smaller (either as male or female). This is majority opinion of Companions of the Prophet. On the other hand according to Amir bin Shurahbil Al-Shabi (ra), who based his opinion on Abdullah bin Abbas (ra) stated that; Khunta Al-Mushkal gets half of the combined shares (both as male and female), hence making it as average share. Hanbali and Shafii take this approach.