Volume 19, Issue 60 (4-2025)
MLJ 2025, 19(60): 232-249 |
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Rozbahani M, Vatani A. Critism of Legal Jurisprudence on Abortion in the Law on Family and Youth Protection Approved in 2021. MLJ 2025; 19 (60) :232-249
URL: http://ijmedicallaw.ir/article-1-1860-en.html
URL: http://ijmedicallaw.ir/article-1-1860-en.html
1- Department of Criminal Law, Faculty of Law and Political Sciences, Kharazmi University, Karaj, Iran.
Abstract:
Background and Aim: Abortion is prohibited in lranian law and Islamic sharia and it is morally reprehensible but in exceptional cases it is allowed under secondary headings from sharis point of view and according to a secondary ruling the family and youth protection law is incomplete in stating these permitted cases and in some cases it has not considered the natural and religious rights of the parents and the fetus Therefore it has provided asuitable platform for illegal and secret abortion. This article was written with the aim of amending the law.
Method: This research is an interdisciplinary research that has been obtained by collecting data in a library method and by inference from original jurisprudential legal and medical sources of information and evaluated with a descriptive - analytical approach.
Ethical Considerations: This article is fully committed to the principles of ethics, honesty, privacy rights and the principle of tangible-intellectual property. The aspects of library studies, including textual authenticity, honesty and trustworthiness, have been observed.
Results: From a jurisprudential perspective, in cases where the mother's life is endangered by the continuation of the fetus, it is permissible both before and after the ensoulment. In a case where the mother's health is endangered by the continuation of the fetus, it falls under the purview of paragraph C of the aforementioned article before ensoulment and abortion is permissible. After ensoulment, the evidence that indicates the permissibility of legitimate defense, by extension and a fortiori, includes this case. The abortion of a retarded or malformed fetus before ensoulment falls under the category of hardship (haraj) and is covered by paragraph C of the aforementioned article and abortion is permissible. After ensoulment, since the diagnosis of malformation is a new matter, it is an exception to the generality of the narrations and abortion is permissible. In cases of abortion resulting from rape, it is permissible before ensoulment but not permissible after ensoulment.
Conclusion: The findings indicate that the mentioned law is not innovative in relation to abortion and only Summarizes the previous laws hence the problems and dilemmas regarding cases where the age of the fetus is more than 4 months and the life or health of the child is born with a defective nature and it is the result of fornication it still remains and for this reason it must be corrected.
Please cite this article as:
Rozbahani M, Vatani A. Critism of Legal Jurisprudence on Abortion in the Law on Family and Youth Protection Approved in 2021. Medical Law Journal. 2025; 19: e16.
Method: This research is an interdisciplinary research that has been obtained by collecting data in a library method and by inference from original jurisprudential legal and medical sources of information and evaluated with a descriptive - analytical approach.
Ethical Considerations: This article is fully committed to the principles of ethics, honesty, privacy rights and the principle of tangible-intellectual property. The aspects of library studies, including textual authenticity, honesty and trustworthiness, have been observed.
Results: From a jurisprudential perspective, in cases where the mother's life is endangered by the continuation of the fetus, it is permissible both before and after the ensoulment. In a case where the mother's health is endangered by the continuation of the fetus, it falls under the purview of paragraph C of the aforementioned article before ensoulment and abortion is permissible. After ensoulment, the evidence that indicates the permissibility of legitimate defense, by extension and a fortiori, includes this case. The abortion of a retarded or malformed fetus before ensoulment falls under the category of hardship (haraj) and is covered by paragraph C of the aforementioned article and abortion is permissible. After ensoulment, since the diagnosis of malformation is a new matter, it is an exception to the generality of the narrations and abortion is permissible. In cases of abortion resulting from rape, it is permissible before ensoulment but not permissible after ensoulment.
Conclusion: The findings indicate that the mentioned law is not innovative in relation to abortion and only Summarizes the previous laws hence the problems and dilemmas regarding cases where the age of the fetus is more than 4 months and the life or health of the child is born with a defective nature and it is the result of fornication it still remains and for this reason it must be corrected.
Please cite this article as:
Rozbahani M, Vatani A. Critism of Legal Jurisprudence on Abortion in the Law on Family and Youth Protection Approved in 2021. Medical Law Journal. 2025; 19: e16.
Type of Study: Original Article |
Received: 2023/11/14 | Accepted: 2024/07/30
Received: 2023/11/14 | Accepted: 2024/07/30
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