Document Type : Research/Original/Regular

Author

• MohammadJafar Sadeghpour

Assistant Professor of Jurisprudence and Law, Shar-e-Kord University,Shar-e-Kord ,Iran.

Abstract

( 56 ) The rule of protecting the family and youth of the adopted population (2021) is devoted. It has been tried , in this provision , to the shortcomings , as well as the apparent defects and the basis in theabortion (2005) and article ( 718 ) of the islamic punishment law approved (2013) , it must be resolved . This is an admirable effort , but with some innovations that have resulted in some confusion and errors in the matter mentioned above . Uncertainty in an abortion authority , an unjustified compound of members of the abortion commission and the ambiguous condition of its members , ambiguity in the sense of the seriousness of the threat , the insistence on being present and intolerable , ambiguity in art , and finally ambiguity in the signs of the psyche is one of the most important challenges and ambiguity that exists in article ( 56 ) of the family protection law . by referring to library sources , the author has tried to analyse the provisions of the mentioned article and examine the most important drawbacks in this provision and thus pave the way for the improvement of this provision.

Highlights

Article 56 of the Family and Youth of the Population Act, which addresses therapeutic abortion and is regulated to rectify any associated problems, must be reviewed and amended in various ways. The most important problems are the following:

1. The inconsistent attempt to emphasize the criminality and prohibition of abortion; because, already, in articles 716 to 720 of the Islamic Penal Code (2013) and also in the punishment section of IPC, it was criminalized, and the continuing emphasis on this article is not meaningful.
2. Ambiguity in the licensing authority for legal abortion; it is unclear whether the responsible authority for granting permission for abortion is a forensics or judicial court.
3. The unjustifiable composition of the commission: the necessity of the presence of a physician and one judge that has the definitive vote is not logically proportionate to the issue of abortion, considering the point that in many cases, Diagnosing the threat to the mother's life or confirming the presence of proven fetal abnormalities requires medical expertise and basically it will not be possible for a judge who is an expert in the field of justice and solely focused on the legal matters.
4. Ambiguous condition of commission members; Because what constitutes being a "specialist" for a judge, being "committed" for a medical specialist, and being a "forensic specialist" for a member affiliated with the forensic organization have varying interpretations.
5. The challenge of disagreement amongst the commission members; in the regulation, the solution to the different forms of disagreement among the three commission members is not clarified, and therefore it seems that the physicians lack the authority to disagree with the judge.
6. Ambiguity in who the guardian is: it is unclear what the guardian means. It is uncertain whether it refers to the guardian of the fetus or the mother or other cases.
7. Ambiguity in the concept of the seriousness of the threat; because "seriousness" is a subjective matter that cannot be considered an objective concept. (Rohani, 1999: 1/406; Kharazi, (n.d): 15/80)
8. Unreasonable insistence on the actual nature of harm; according to the principles of jurisprudence, it can be considered as a license for abortion if it is not actual (Musavi Khomeini, (n.d): 1/401; Khuei, 1995: 1/322; Seyyed Yazdi, 1988: 2/170; Behbahani, 2003: 7/89)
9. viewing the Haraj as unbearable; because even though Haraj is a severe hardship, it does not necessarily mean reaching the point of being unbearable.
10. Insistence on the attaining certitude: It is a relatively idealistic thing that for the issuance of an abortion license, there must be certitude to the abnormality and the realization of harm because it is unattainable in most of the cases in the issues related to experimental and empirical sciences in the field of embryos. Therefore, it is more appropriate to use the term "assurance."
11. The ambiguous labels of being incurable and critical, because perhaps despite the possibility of treating a disease, an individual might not be able to eliminate the cause of Haraj for any possible reason, such as economic reasons; here, why shouldn't a person be able to use the capacity of Haraj since it has been realized for her and cannot be resolved for this person.
12. Ambiguity in the possibility of compensating Haraj; the legislator, who was trying to address the issue of a means to prevent Haraj (Manduhah), is suffering from ambiguity and abstraction.
13. the challenge of the time of the entrance of the soul; In this regulation, contrary to the single article of therapeutic abortion (2005), the exact time of the entrance of the spirit is not specified, and it is considered possible for this to happen before the fourth month (Helli, 1991: 2/458; Karaki, 1993: 1/406; Najafi, 1984: 5/345)
14. Uncertainty over the signs of the soul's entrance; in the above article, abortion is prohibited if there are signs of the soul's entrance into the fetus. Nevertheless, the author has failed to provide any explicit clarification regarding the specific signs of the soul's entrance, and there are disagreements in Imami jurisprudence in this regard. In addition, many have not addressed this issue at all.

Acknowledgment: The author, who previously worked as a researcher at the Jurisprudential Studies Office of the Forensic Medicine Organization, expresses his gratitude to this prestigious institution, acknowledging that certain data presented in this article originated from discussions held within the office mentioned above.

Keywords

• Abortion
• Death threat
• abortion commission
• Family protection law

20.1001.1.23452692.1402.11.1.4.0

Main Subjects

• women law