Document Type : Research/Original/Regular

Authors

• Taha Zargarian ¹
• Iman kakavandzaman ²
• Farahnaz sadat Yousefzadeh ³

¹ Assistant Professor of Law, Ayatollah Boroujerdi University,Boroujerdi,Iran

² Seminary of Mazandaran province, Fiqh and principles, Sari,Iran.

³ Academic orientation:Private law University name:Azad University of Arak (falagh),Arak, Iran

Abstract

Medical abortion is a discussion which focuses on the pregnant mother and her fetus that has many legal, jurisprudential, and social consequences for the family. Inevitably, for issues of this high degree of importance and influence, the related regularities should be formulated in a way that prevents any sort of possible misinterpretations. The issue of abortion came into legislation in 1384 by legislating a single article. ''The life threat for the pregnant mother'' is of the licenses that the legislature has provided for medical abortion. If the specialist physician diagnoses the life threat for the pregnant mother, then, by the mother's consent, the permissioned for the medical abortion can be issued. This legislation can be considered as a legal flexibility in the issue of abortion but the void of explaining the quality of diagnosing the life threat for the mother may cause unpleasant consequences. Some experts of jurisprudence and law believe that the issuance of the permission for the medical abortion is dependent on the certain diagnosis of the life threat for the mother. However, some other experts bo qualities of certainty or reasonable probability/feppraisal of the two sides' reasons and evidence, we came to the conclusion that a reasonable probability/ fear of the life threat for the mother enjoys a rational and religious support for the issuance of the medical abortion; therefore, no need to certainty nor is it feasible to fulfill the demand of certainty in this case.

Highlights

Background and Purpose

 In October 2021, the Iranian legislature declared Article 56 of the "Protection of the Family and Youth of the Population" law to be obsolete. Abortion is addressed in Family Protection Law Article 56. The relevant article states: Abortion is illegal and a public crime; according to Articles 716 to 720 of the Islamic Penal Code and the provisions of this law, it is punishable by a fine, imprisonment, and revocation of a physician's license. The mother may only submit an abortion request to forensic medical centers if the following conditions are likely to be met. Forensic medical centers in provincial centers are required to refer all requests received to the Legal Abortion Commission immediately. Within a week, this commission will consist of a special judge, a dedicated medical specialist, and a forensic medical expert employed by the forensic organization. The judge, a member of the commission, issues the necessary decision, adhering to the principle that abortion is not permitted in cases of ambiguity. The judge, who is a member of the aforementioned commission, issues a legal abortion license with a 15-day validity if one of the following conditions is met: 1) If the mother's life is in danger and the only way to save her is to have an abortion and the fetus is less than four months old, and there are no signs of the soul entering the fetus, then the abortion is legal; b) In situations in which, if the fetus is not aborted, both the mother and the fetus are going to die, and the only way to save the mother is to abort the fetus; c) If, following receipt of the guardian's declaration, all the requirements are fulfilled.

As is evident from the text of the cited article, each of clauses A, B, and C has the potential to serve as a condition for the legalization of abortion.

Nonetheless, the topic of the present study is unique to the analysis of paragraph A of the cited article. In addition to other conditions, the legislator has made the phrase "realization of serious risks to the mother's life" a requirement for abortion. However, there are two significant ambiguities regarding the phrase "serious risk to the mother's life" in the minds of the medical and legal audiences, and their ambiguity violates Article 56 of the laws. Which authority has the legal authority to determine the mother's risks of dying is the first area of uncertainty. Is the judge or a specialized physician more accountable for the intended diagnosis than the pregnant mother herself? The second ambiguity concerns the problem of the accuracy of the mother's life risk detection. What standard of diagnosis should be used to determine whether a pregnant woman is seriously in danger of losing her life? Should the authority determine whether this is the case with certainty or certitude, or is a rational fear sufficient? It should be emphasized that abortion may be performed unlawfully and subject to criminal and civil liability if the quality of life risk detection is not determined using its own precise criteria.

Method

In the research, the two mentioned ambiguities are presented in the form of two significant queries, and specialized evaluations are conducted to clarify the answers. By examining Article 56 of the Family Protection Law, it is evident that the legislator utilized jurisprudence to regulate the aforementioned article and thus attempted to implement the provisions of the fourth article of the constitution, which mandates that all applicable laws adhere to Islamic standards. Based on the previously stated materials, an effort has been made in the current study to use a descriptive-analytical approach to consult library sources, and after putting forth various jurisprudential and legal opinions and gathering medical data, analyze the information bases.

Based on this, it appears that the Legal Abortion Commission is responsible for determining whether an abortion poses a significant danger to the mother's life. The Legal Abortion Commission's specialized physicians can diagnose the threat to the expectant mother's life by conducting tests and examinations and utilizing cutting-edge medical equipment. Three hypotheses are possible and required for the validity of the stated diagnosis: First, the assumption that the risk detection by the legal abortion commission is realized based on certainty (Behjat, 2016: 4/75). The word "certainty" in idiomatic language means firm conviction and strong belief, A belief that is identical to the truth and the possibility of its error is impossible (Tusi, 2003: 1/77). According to a group of Islamic scholars, certainty is the strength of a subjective perception, such that it cannot deteriorate or weaken (Tabatabai,2016). Second, the assumption that the Legal Abortion Commission's risk assessment is founded on certainty. According to scholars of jurisprudence and the principles of jurisprudence, the term certainty denotes a strong meaning and concept that not everyone can achieve to the extent that they equate the meaning of certainty with the meaning of conviction and concede that it is extremely unlikely that anyone would disagree with the certitude. (Hosseini Haeri, 2016). However, due to their close conceptual relationship, the detection of risk based on certainty and certainty confronts numerous similar problems, the negative impact of which renders Clause A of Article 56 ineffective. Important criticism is that it is nearly impossible to diagnose the risk to the expectant mother's life in the first, second, third, and fourth months of pregnancy, while abortion is legal until the fourth month. More essential than the previously mentioned criticism is the fact that certainty and certainty denote valid belief, a belief in which the possibility of the opposite is either impossible or extremely remote. While the source of an expert physician's knowledge is material science and physical tools and experience, the nature of which is mixed with error, contradiction, and forgetfulness; therefore, how can we expect an expert physician to provide a definitive and trustworthy diagnosis for the risk to the mother's life? Nevertheless, recognizing the danger to the mother's life based on rational fear is consistent with the way of the wise, Shari'a evidence, and societal norms, as the foundation of common sense is that they act cautiously in the presence of rational dangers and issue rulings that are proportional to the danger.

Discussion and conclusion

It is appropriate that the legislator, by amending the second part of Article 56 of the Family Protection Law and by removing a part of the third part of the mentioned article, clearly declares that the authority to diagnose the serious risk to the life of the pregnant mother in the matter of abortion is the duty of the Legal Abortion Commission and to make this diagnosis from the circle remove the exclusive duties of the judge. In addition, the legislator can substitute "rational fear" with "certainty" in Article 56 of the Family Protection Law to clarify the issue of the quality of detecting the threat to the mother's life.

Keywords

• pregnant mother
• medical abortion
• certainty
• reasonable probability/ fear

20.1001.1.23452692.1402.11.3.4.4

Main Subjects

• women law