نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشجوی دکتری حقوق خصوصی، دانشکدة حقوق و علوم سیاسی، دانشگاه مازندران، بابلسر، ایران
2 استاد گروه فقه و مبانی حقوق اسلامی، دانشکدة الهیات، دانشگاه مازندران، بابلسر، ایران.
چکیده
کلیدواژه‌ها
عنوان مقاله [English]
نویسندگان [English]
Abstract
The family has always been considered as the most basic social institution, paying attention to which is vital for ensuring the health of society’s members. Therefore, governments engage in systematic planning to support this institution, which contributes to the strength and consolidation of the whole society. Childbearing plays a very important role in the development of this social institution, improving the mental health of the family and thus of the community. Recent years have witnessed a special type of childbirth sometimes called calendar birth, in which parents insist, without being medically necessary, on untimely cesarean section to give birth to their child on a special day. This can have serious risks, because according to scientific research, interfering in the natural process of birth will have many negative and irreparable consequences. It is even acknowledged that important phases of fetal brain development take place in the final weeks of pregnancy. Families do this solely for the aim of bragging, and unfortunately it is going to form a new unfortunate, immoral custom. It should be noted that calendar birth is an issue in developed countries as well. It causes enormous costs to the health system of any country, as it deprives the baby of its uterine development, while the optimal growth and development of the fetus is a natural right of hers. Calendar childbirth is thus an emerging issue for discussion that have not been exclusively researched in Iran yet except for one article in which some dimensions of the legal responsibility ensuing from untimely cesarean operations have been examined with the emphasis
being on the physician’s liability. The importance of addressing this issue is doubled by the threatening consequences that change the fate of innocent children, especially because this action is carried out by parents for non-therapeutic and unnecessary purposes. Civil liability has specific goals and functions with regard to the individuals directly involved, the wrongdoer and the victim, and to the society as well; therefore, identifying civil, criminal and disciplinary liabilities for those involved in the calendar birth can curb, to a great extent, the continuation of this abnormality.
The present article has been written in a descriptive-analytical method using library studies and deductive reasoning, to address the concern thus described.
Calendar birth is a cesarean section performed out of time without medical necessity, the sole purpose of which is to give birth to a baby on a specific date. This type of birth has inevitable risks for both mother and baby due to the change in the natural delivery process. Apart from being immoral, and seen from a legal viewpoint, the calendar birth imposes civil, criminal, and in some cases disciplinary liability on involved persons. Demonstrating the elements of civil liability, including 1) the entry of loss, 2) the harmful act and 3) the causal relationship, in calendar birth establishes the civil liability of physicians, parents and health centers. In such a birth, the doctor, having the knowledge and expertise, is the one to whom the untimely birth is directly imputable (direct agent or Mubashir), and the parents provide indirect cause (indirect agent or musabbib) by expressing their consent to the premature cesarean delivery. Health centers are potentially a third agent in possible damages, due to their role in employing the doctor and the health service contract they enter into with the parents.
The present study seeks to answer the following questions: First, can civil liability be established in a calendar birth? Second, assuming the answer to the prior question is positive, who can be held liable for compensation? and third, what is the legal bases for such liability?
There is definitely a case for civil liability, the article asserts, in the calendar birth, and doctors, parents, as well as medical centers can be held responsible. According to Article 526 of the Islamic Penal Code, in the case where both a direct and an indirect agent exist, the responsibility for compensation is distributed based on the effect of the perpetrators’ behavior and based on an objective standard. Therefore, the following results can be inferred:
The calendar birth takes place with the aim of giving birth to a baby on a specific date or occasion, without considering the possible risks of untimely cesarean section. It is not only unethical, but also leads to legal liability.
The elements of civil liability, i.e. the occurrence of loss, the harmful act and the causal relationship, can be established in the case of calendar birth for doctors, parents and health centers by deduction from various laws.
The most recent policy the Iranian law adopted towards the case in which a direct agent and an indirect agent coexist is promulgated in
Article 526 of the Islamic Penal Code enacted in 2013. This article explicitly holds the wrongdoer to whom the crime is imputable to be liable for compensation, and if the crime is imputable to all wrongdoers, they will each have an equal share of the liability, unless the effects of their behaviors in the loss are unequal, in which case their respective shares of responsibility will be proportioned to those effects, being measured according to an objective standard.
The doctor, as a knowledgeable, expert professional involved in the calendar birth has the duty of providing adequate explanations to parents about the potential risks, and if cesarean section is performed, he will be held liable as the direct agent of the harmful act whose behavior have the greatest effect on the loss.
Parents' consent to premature birth, when they are aware of the possibility of irreparable damages, is a cause of untimely cesarean section. Holding them responsible for their decision, which does have a tangible impact on the situation at issue here, as clearly endorsed by the objective standard, is in accordance with the law and with the interest of society and will help prevent the occurrence of similar incidents.
The recognition of the principle of shared liability is Iranian law is attested in Articles 12 and 14 of the Civil Liability Act. The legislator has established a legal conception of causality in these articles, hence protecting the endangered rights in the best possible manner. Considering their employment relationship with physicians and their contract with parents, health centers also have to be held responsible to the extent of the impact of their behavior according to the objective standard.
کلیدواژه‌ها [English]
منابع
الف) فارسی و عربی
21. خویی، سید ابوالقاسم (1422ق). مبانی تکملة المنهاج، ج 2، قم: مؤسسۀ احیاء آثار الامام خویی (ره).
41- عباسی، محمود؛ کلهرنیاگلکار، میثم (1398). «ابعاد مسئولیت حقوقی در سزارین نابهنگام در پرتو حقوق بنیادین جنین»، فصلنامة حقوق کودک، سال اول، ش 2، ص 169-155، http://www.childrightsjournal.ir/Article/21184. (6 اسفند 1399).
ب) خارجی
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