Journal of Woman and Family Studies
The effect of new infertility treatment methods on divorce
Document Type : Research/Original/Regular
Authors
1 Assistant Professor of Private Law Department, Faculty of Law and Political Sciences, Shiraz University
2 Private Law, Faculty of Law and Political Sciences, Shiraz University
Abstract
In this article, "The effect of new methods of infertility treatment on divorce" has been analyzed with the aim of removing ambiguity from paragraph ten of the conditions while concluding an official marriage document with a link to Islamic jurisprudence and Iranian law. The main question is that if during the marriage, the condition of having
children is included and the guarantee of its fulfillment is included in the divorce, and after the marriage, the husband does not have a natural marriage, but this is possible.
With the help of new medical methods, will the wife have the right to use the right to divorce or not? In other words, is the condition of fertility by natural methods or is fertility with the help of medical methods sufficient? By descriptive-analytical method and by studying the jurisprudential texts and Iranian law and jurisprudence, it was concluded that the main criterion in the condition of childbearing is "possibility" and "ability" to have children, not that childbearing must be natural. As a result, those court rulings that have stated that childbearing must be natural are contrary to jurisprudential and legal principles.
Highlights
Background and Purpose
One of the most practical issues in the field of Iranian family law is the condition of pregnancy in the marriage contract. Analyzing the legal effects of including this condition, with a view to the developments of medical science, in the application of new methods in pregnancy, is a mission that, in addition to the social pathology of the subject, also demonstrates the need to look deeply into this issue. In fact, this article, with the aim of removing the ambiguity from clause "ten" of the conditions attached to the official marriage document, deals with the question that if the condition of having children is included in the marriage contract and the guarantee of its implementation for the wife, attorney in divorce (Mohaghegh Damad, 2010). placed and after the marriage, the couple does not have the ability to conceive the wife naturally; But if this possibility exists with the help of modern medical methods, will the wife have the right to divorce? According to others, (Niknejad, 2014; Peymanfar & Sadat Hosseini, 2018) is the condition of fertility exclusive and limited to natural methods, or is fertility with the help of modern medical methods also sufficient? Since legal silence prevails in determining the boundaries and territory of the fertility condition, and legal scholars have rarely written (Niknejad, 2014; Rahimi & Sadeghi, 2019; Shabani & Jafari, 2022 ), and in the same few cases, they have encountered many theoretical differences, in limiting or extending the condition of pregnancy, scattered jurisprudence also is over the judicial courts (National system of judicial votes, 2021). Therefore, with the existing fields, the author expands the boundaries of family law knowledge; So that the result of this research, if it affects the judicial procedure, will "strengthen the institution of the family".
Method
The current research, by observing the current judicial procedure in Iran's courts, tries to analyze the condition of pregnancy in light of modern methods based on Islamic jurisprudence and legal standards. In this regard, using reliable scientific sources and through legal theories, the effect of new infertility treatment methods on divorce is analyzed; Therefore, with a fundamental study and from a descriptive-analytical point of view, the authors hope to present a practical result to the scientific community in order to preserve the foundations of the family.
Findings
The findings of this research can be presented as follows; which finally acknowledges that if it is possible to treat infertility with modern methods, the wife will not be able to use divorce with the husband's attorney.
- "Fertility" is the basic criterion for fulfilling the condition of having a child, not its naturalness.
- The policy of "minimum divorce" and "avoidance of unnecessary divorce" in Iran is the basis for the non-exclusivity of pregnancy through natural methods.
- According to the historical background of cases of dissolution of marriage in articles 1120 to 1132 of the Civil Code, which is rooted in Imamiyyah jurisprudence, it is clear that the legislator is based on the non-expansion of cases of dissolution of marriage.
- The wife's pregnancy with modern medical methods, if the problem is from her side, is not considered a fault and prevents termination.
- The saying that "custom" considers pregnancy to be exclusive to natural methods is relying on definite examples and ignoring other examples. Although a certain example of the condition of fertility is natural methods; this cancellation is only due to the occurrence of such cases.
- The titles of the subjects of Sharia rulings are not limited to their natural examples. For people who are born in an "unnatural" way, all the rules of relationship and inheritance and other Sharia topics are implemented regarding them.
- Undoubtedly, with the progress of science, in a long-term perspective, new methods will become common things. Also, during the period of infertility treatment, if the course of treatment causes hardship to the wife, she can give up on the basis of hardship and embarrassment.
Discussion and Conclusion
Although the condition of having a child in the judicial procedure is considered to be exclusive to the natural method and fertility with the help of modern medical methods is not included, according to the jurisprudence and laws of Iran, while analyzing the ideas presented in this chapter, It can be seen that the basic measure in the condition of having children is the "possibility" and "ability" of having children; Not that having children must be natural. In this way, those opinions of the courts that have stated that having children should be natural are incompatible with jurisprudence and legal foundations. Therefore, in order to reduce the challenge of divorce, stronger steps must be taken; Not that the legislator and judicial procedure are the grounds for dissolution of marriage.
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