Journal of Legal Research

Journal of Legal Research

Criminal Liability for Offenses Against the Newborn and Mother Resulting from Elective (Scheduled) Birth

Document Type : Original Article

Authors
Alireza Ganjkhanlou 1
Abbas Salmanpour 2
1 PhD in Criminal Law and Criminology, Faculty of Literature and Humanities, University of Guilan, Rasht, Iran.
2 Assistant Professor, Department of Criminal Law and Criminology, Faculty of Literature and Humanities, University of Guilan, Rasht, Iran.
10.48300/jlr.2024.434255.2545
Abstract
From the time of its formation until birth, the fetus is continuously developing and growing until, after developing the capacity for independent viability, it is born. Therefore, the act of elective birth, which means intervention during the fetal period and preventing the fetus from reaching full development and being born prematurely, can cause harm to the fetus and even the mother. Elective birth, in addition to lacking scientific foundations, does not conform to any of the legal rules that justify medical procedures, such as clause "C" of Article 158 of the Islamic Penal Code (2013); therefore, if this act results in the death of the newborn, the occurrence of a defect in it, or the persistence of a fetal defect after birth, it falls under clause "B" of Article 291 and the note to Article 306 of the Code, carries an intentional character, and will lead to the physician's conviction for qisās (talion) for life or limb. The father and mother, if they instigate this medical procedure with knowledge of its potential consequences, will be convicted as accomplices in an intentional crime and sentenced to ta'zīr (discretionary punishment). Given that the act of cesarean section itself is scientific and legal, if any harm befalls the mother as a result of it, in the assumption of no fault on the part of the physician, no liability is conceivable for him/her and, consequently, for the father (husband).
Keywords
Criminal Liability
Elective Birth
Medical Procedure
Newborn
Father
Mother
 
-        Abbasi, Mahmoud and Meysam Kalaharnia Golkar. “Legal Dimensions of Liability in Untimely Cesarean in Light of Fundamental Rights of the Fetus.” Children’s Rights, 1, 2(2019), 155-169. (in Persian)
-        Aghaeinia, Hossein. Crimes against Persons (Felonies). 19th Edition. Tehran: Mizan, 2022. (in Persian)
-        Akbari, Adel and Zahra Eftekhar. “A Study of the Stages of Growth and Factors Affecting Human Fetal Development before Birth.” Advances in Behavioral Sciences, 3, 29(2018), 64-94. (in Persian)
-        Ardabili, Mohammad Ali. General Criminal Law, Volume 1. 63rd Edition. Tehran: Mizan, 2020. (in Persian)
-        Barikloo, Alireza. Civil Liability. 7th Edition. Tehran: Mizan, 2017. (in Persian)
-        Dehghan Nejad, Reza, Seyed Sajjad Mohammadi and Mostafa Bakhard. “Critique and Review of the Majority Opinion of Jurists Regarding the Realization of Intentional Homicide.” Jurisprudence, 26, 97(2019), 103-127. Doi:10.22081/jf.2019.67284 (in Persian)
-        Dejan, Hamidreza, Mehdi Sabouripour, Mahmoud Rohollamini and Seyed Mehdi Ahmadi Mousavi. “A Study of Degrees of Intentional Homicide Based on the Mental Element with Emphasis on Qur’anic Texts.” Quranic Studies, 12, 46(2021), 577-597. Doi:10.30495/qsf.2021.683450 (in Persian)
-        Delkhun Asl, Saeed. “A Brief Review of the Status of Victim Consent in the Iranian Criminal System.” Journal of Ardabil Bar Association, 2(2016), 61-78. (in Persian)
-        Elham, Gholamhossein and Mohsen Borhani. Introduction to General Criminal Law, Volume 1. 7th Edition. Tehran: Mizan, 2022. (in Persian)
-        Goldouzian, Iraj. Essentials of Special Criminal Law. 4th Edition. Tehran: Mizan, 2017. (in Persian)
-        Goodarzi, Faramarz and Ebrahim Kiani. Forensic Medicine for Law Students. 15th Edition. Tehran: SAMT, 2019. (in Persian)
-        Haji Deabadi, Ahmad. “Changes in the Rule of Concurrence of Cause and Perpetrator Considering the Latest Legislative Developments in Iran (Article 526 of the Islamic Penal Code 2013).” Judicial Law, 16, 1(2019), 113-132. Doi:10.22059/jolt.2019.277883.1006702 (in Persian)
-        Haji Deabadi, Ahmad. Crimes against Persons. Tehran: Mizan, 2023. (in Persian)
-        Katouzian, Naser. Civil Law in the Current Legal System. 64th Edition. Tehran: Mizan, 2022. (in Persian)
-        Khomeini, Seyed Hassan. “Family Planning or Population Control (Part Two).” Matin Research Journal, 4, 17(2002), 31-56. (in Persian)
-        Lotfi, Ehsan. “From Informed Consent to Informed Choice; A Discourse on the Duty of Information in Physician-Patient Relationships.” Medical Law, 3, 11(2009), 39-73. (in Persian)
-        Mansourghanaei, Mandana. “A Study of the Seasonal Pattern of Preterm Birth.” Journal of Guilan University of Medical Sciences, 20, 79(2011), 77-83. (in Persian)
-        MirMohammadSadeghi, Hossein. Crimes against the Physical Integrity of Persons. 33rd Edition. Tehran: Mizan, 2023. (in Persian)
-        Mohseni, Farid and Nasir Malakooti. “Causation in the Islamic Penal Code.” Judicial Law, 79, 91(2015), 135-160. https://doi.org/10.22106/jlj.2015.15719 (in Persian)
-        Morshadi, Masoud and Afshin Khara. “Criminal, Legislative, and Judicial Policy on Physician Liability; Case Study in the Iranian Criminal Law System.” Police Medicine, 7, 2(2018), 87-95. (in Persian)
-        Neghabi, Fatemeh, Saeed Naqibi, Hanieh Mardali Zadeh and Rahman Soori. “The Effect of Physical Activities on Serum Oxytocin Levels and Depression during Pregnancy and Postpartum in Female Mice.” Razi Medical Sciences, 29, 5(2022), 64-74. (in Persian)
-        Rahimian Gavar, Somayeh and Reza Fani. “Philosophical Foundations of Coercion in the Realization of Crime.” Jurisprudential and Philosophical Studies, 8, 31(2017), 89-113. (in Persian)
-        Rahmdel, Mansour. “Notes on Complicity.” Free Legal Research, 8-9-10(2010), 161-185. (in Persian)
-        Rostami, Hadi and Hadi Shabani-Kandsari. “Establishing Causation in the Case of Intervention of Various Factors in Crimes and Financial Damages (With Emphasis on the 2013 Islamic Penal Code).” Criminal Law Research, 4, 15(2016), 144-171. https://doi.org/10.22054/jclr.2016.4439 (in Persian)
-        Sharifizad, Mojgan, Nahid Khodakarami, Sharareh Jan-Nathari and Alireza Akbarzadeh. “Comparison of Outcomes of Natural and Cesarean Deliveries for Mother and Newborn in Selected Hospitals of Tehran.” Journal of Internal Medicine Today, 18, 1(2012), 5-11. (in Persian)
-        Taleghan Ghafari, Mehdi, Ali Akbar Izadifard and Setareh Ayubi. “Liability Arising from Scheduled Delivery.” Private Law Studies, 51, 4(2021), 763-782. Doi:10.22059/jlq.2021.321334.1007523 (in Persian)
-        Zafarkandi, Nafiseh, Shirin Zafarkandi, Farahnaz Torkestani, Nader Fallah and Fatemeh Jadidi. “A Study on the Prevalence of Risk Factors in Preterm Birth.” Daneshvar Medical, 53(2004), 25-29. (in Persian)
Journal of Legal Research
Volume 24, Issue 63
Autumn 2025
Pages 143-162