فصلنامه حقوق پزشکی
پیاپی 35 (زمستان 1394)

Research and experimentation on embryonic stem cells has opened new horizons in different fields of medical science. The particular characteristic of these cells in its ability to produce different body cells has raised the hopes for treating a wide range of diseases and repairing damaged tissues. Alongside the progress in research and technology, a variety of legal challenges have also been posed in regard to production and application of embryonic stem cells as well as their protection. One of such challenges is how to provide legal protection of inventions on embryonic stem cells under patent law regime. Defining such cells and clarifying the benefits derived from R&D projects in this field, this Article tries to examine the status and circumstances of legal protection of inventions on embryonic stem cells and differentiation methods. This Article finds that if in vitro cells have similar or the same identification markers and characteristics as cells grown in the uterus do, they are not patentable. As regards stem cell differentiation methods, where the conditions and compositions used in such methods in laboratory are the results of the scientists’ research on fetal development, such that the differentiation method concerned is regarded as the implementation of natural processes, this method lacks inventive step since it does not add any inventive concept to prior art.

Today, numerous cases of mental disorders have been identified that, in a way, affect human psyche. Some of these lead, more or less, to one’s inability to manage his/her financial affairs. Iranian judicial practice, however, treats all kinds of mental disorders in the same manner considering them lower than insanity. Legal logic doesn’t accept this practice. The aim of this research is to analyse the impact of different kinds of mental disorders on the afflicted persons’ financial dealings for promotion of justice and protection of the rights of individuals and society.
The method of this research is descriptive and analytical that its idea was acquired from the review of Iranian civil code and courts decisions. Sources of article have been compiled by bibliotheca methods and by taking notes from jurisprudence and juridical books and professional books in psychology written by Iranians and non-Iranians authors.
Findings: Some cases of the identified mental disorders in psychiatry cause inability of those persons to manage their financial affairs. These cases which fall short of insanity are treated in law as lunacy provided to meet certain conditions precludes a person from entering into legal transactions. On the other hand, it seems that the present approach of Iranian legislature and courts that prohibits immatured persons from all financial dealings altogether needs to be revisited. This is because the intensity and extent of mental disorders bear on performing some kinds of financial transactions.
If the concept of mental maturity is considered relative, it will be more appropriate to decide each case of mental disorders separately, and to determine the striken’s incapacity accordingly.

Population increase is one of the most important goals of life and has high position in societies. Infertility is an issue that has caused a new discussion in medical and nonmedical sciences, and, consequently certain legal and juridical issues have been created in human society especially current Iranian society. The aim of this research is to examine juristic and legal basis of medical fertilities, especially the principles of its license among couples and its lack of acceptance among aliens.
This research uses library and documentation methods with an analytical, descriptive and inductive approach.
Findings: Various needs of people are answered by the correct understanding of Islamic law, and most jurists have accepted medical fertilities among couple and yet do not accept it for aliens.
The result of this research indicates that responding to the human instinct to have children, reduction of family hardship and problems of society, challenging natural processes of human creation, destruction of the family (the most important unit of society) and ignoring principles like justiceare the main reasons of Muslim scholars’ apposition to accept the methods of medical fertility among aliens.

Fetal reduction, as one of the most valuable achievements of mankind, is a new phenomenon and there are legal gapes in regard to difference aspects of it. Therefore, it is not clear if fetal reduction is permissible. This Article tries to answer whether fetal redaction entails civil responsibility from sharia and the law’s standpoint. According to the data gathered, parents of a fetus and physicians could be the ones who bear responsibility. Parents of a fetus or embryo assume most parts of the responsibility since they decide to conduct fetal reduction which could affect fetal life and health. As for physicians, they are responsible in the event of non-compliance with regulations and technical standards, committing medical errors at any stage including diagnosis or treatment during or after fetal reduction, and failure in obtaining consent and the acquittal of the patient or its legal guardian.

Nowadays, the use of banned performance-enhancing drugs (doping) in sport has been increased by athletes. As for drastic physical and spiritual damages, coaches are obliged to make the athletes aware of side effects and other improper consequences. According to anti-doping rules, if coaches and sporty physicians evade from their duty by an illegal prescription and cause physical damage to athletes they will be considered criminally responsible with regard to mental elements (Knowledge and Ignorance) and the common rules of criminal law (perpetration and causation), and there is no legal vacuum about this case. But if these illegal prescriptions by coaches or sports physician result prestige threat or destruction of reputation, there will be no rule for that. However, from the point of the view of the Imamiah jurisprudence, this act is forbidden because of destructive effects on athletes’ reputation and it is punishable by the judge. According to the Islamic laws and bases of criminology in cases such as the illegal prescription of using banned drugs (doping), it seems that it is up to lawmakers to criminalize such acts.

Currently, new-found fatal infectious diseases are increasing and cause the death of many people annually. Few of these diseases are absolutely fatal, some of them are relatively fatal, and most also considered non-fatal. The features of infectious diseases, including the existence of long interval between the transmission time to the occurrence of the result, partners’ awareness or unawareness of being infected with the virus, consent of the partners in some cases, and being unclear of the real transmitter, the extent and interference of the effects of transmission with other events, will cause difficulty in establishing and proving attribution relationship, of course of the real and material type, as a necessary condition for liability on the one hand, and attributing different criminal titles to the perpetrator on the other hand. This paper tries to prove that although, in respect of proof, we are faced with complexity in order to establish the attribution relationship, for the above reasons, and some jurists and lawyers are also ruled out the enforcement of retaliation or prescribed punishment on the transmitters of the diseases, because of such difficulty, but these issues do not prevent the proof and enforcement of discretionary punishments, even prescribed punishment or retaliation on the transmitter, and matching the issue with the features contained in Islamic Penal Code 1392 supports also establishment of the different criminal titles of the mentioned punishments.

The right to food and freedom from hunger is a part of fundamental human rights and it shall not be suspended under no circumstances even in the hostilities. Since any infringement of the right to food can lead to death from starvation. Different approaches to solve the problem of malnutrition in times of war and peace, including the right to food and food security have been taken. At the moment, the approach of the right to food in international human rights is one of the right tools to solve the problem of hunger and malnutrition in various situations in the world. There are several obligations on states, based on humans’ dignity, that require them to provide food and a mechanism for dealing with the violiation of the right to food and compensation for those whose rights have been violated. Also, according to international humanitarian law documents, the use of hunger, destroying the property of the civilians and the denial of humanitarian assistance, particularly in international armed conflicts have been considered as war crimes, genocide and crimes against humanity. The right to petition in case of violation of the right to food has been also recognized through various international institutions such as the International Criminal Court and the Security Council. Examining the history of, and the reationale behind the right to food, this Article argures that the approach to food security due to its opaque and unclear obligations of Member States and the lack of mechanisms for addressing violations of this approach cannot be used as a means for solving the problem of malnutrition, and it should be used as a supplementary tool for achieving the right to food gradually.

Accidents and incidents are the second factor of mortality in our country and traffic accidents are at the top. The plan for the autonomy of hospitals nationwide has been executed since the beginning of the 70s helical decade. From 2005 according to administrative regulation of article 92 of fourth development program in the country, 10 percent of the incurred costs related to insuring each transportation vehicle in the country was deposited into an account to the special incomes account of the Ministry of Health and Medical Education. All public, governmental and private hospitals are compelled to admit traffic accidents casualties without any preconditions or incurring any expenses for providing services and also to accommodate them with therapeutic cares. The cost of providing these therapeutic services is paid to hospitals according to the purported measures in the administrative regulation. This study examines the effects of the mentioned regulation on the status of Ayatollah Kashani hospital's income.
In the electronic database of the hospital, the exact data of files was available from Mar 21 of 2005 onward but the financial information of files before the law, was not complete. The files of 2378 patients who owed more than 10000 rials had remained unsettled at the time of being released from hospital. From the last unsettled file at the Mar 20 of 2005 to the May 22 of 2004, 428 files related to accident casualties were explored. After omitting the cases in which the recorded data was not congruent with their pertinent files, 394 files remained.
Findings: From a total sum of 1909334753 rials incurred on the services provided for the 394 samples, only 1052031605 rials had been paid to hospitals at the time of being released. Accordingly, 857303148 rials of the total cost incurred on the provided services, i.e. 44.9 percent, had been left undecided. After executing the article 92 of the law, the costs of accident casualties have been paid completely to hospitals.
Discussion and Lack of accommodating the costs incurred for patients prevents hospitals from providing services to next patients. Cutting the financial relation between doctor (hospital organization) and patient in accident’s patient group, the possibility of financially supporting accident patients and accordingly observing some parts of the charter for patients’ rights has been provided.