نشریه فقه پزشکی
پیاپی 42 (بهار 1399)

Medical errors as an inseparable part of the medical practices leads to certain Juristic challenges, including the patient 's refusal of treatment, especially where the physician is seeking to reform and restore the condition to before and to remedy the patient . The purpose of this study isto investigate the effect of this refusal on physician’s liability.

The present study, using a library study method gathers different views of jurists and tries with a descriptive-analytical method to explain their respective opinions alongside criticisms on their point of view.

The patient’s refusal of treatment based on multiple states follows different results. The persistence of patient for incorrect prescribing, despite the caution of the physician, will result in termination of the physician’s liability in this result or subsequent injuries.Self-receiving treatment and independent actions following a medical error is subject to criminal convictions; if the injury or death is due to the refusal of treatment. The jurists views in a non -conformity to other similar examples is acceptance of liability for guilty physician, although the sound opinion is common liability for the physician and the patient

Spread and diversity of diseases and continuous progress of treatment methods have made it impossible for the medical staff to choose a treatment method with full confidence and to treat the patient definitively, unless they accept the risk of such treatment. Accordingly, the present study seeks to investigate the legitimacy or lack of legitimacy of risk-based measures in treatment based on Jurisprudential sources.

The present descriptive-analytical study describes the terms and principles of research and investgates legitimacy of risk-based measures in treatment and its exceptions based on library resources.

The principle of sanctity of possession in the individuals’ lives, the ruleof sanctity of destroying human’s lives and the narrations of the physician’s responsibility indicate the prohibition of high-risk measures in the field of treatment.Therapy is not legitimate except for ensuring the effectiveness of treatment for the patient; unless because of the necessity, soit is necessary to perform treatment in unsafe and high-risk conditions; provided that the patient is informed

In present era, one of the new and important issues in the field of medical issues is the treatment of infertility in couples and having baby by artificial fertilizationmethods. One of the new methods in this field is surrogacy, so that the applicant rents another woman's uterus to spend the period of carrying her fetus so that the fetus is born from her.

This descriptive-analytical study seeks a well-reasoned juridical answer for the validity of surrogacy contracts. So by usingthe library resources, it examines the subject of research in jurisprudential booksandalso adaptes the conditions for surrogacy validity such as determining the benefit of the leased action, the existence of the intended benefit and the permission to receive the rent and ... with surrogacy and finaly its selected defining and declaratory lawisexpressed.

This article examines the argumentative and jurisprudentialissues related to this issue and jurists’ views and it concludes that there is a connection between reproduction and marital relationship in Islam. Therefore, it is not possible to using uterus of another woman to have children, and renting a uterus for this purpose will be void. The surrogacy contracts and receiving wage will be valid and permissible only in the cases of artificial fertilizationpermission, such as the use of the uterus of a second spouse or temporary spouse

One of the most commonly used issues in the judiciary is the lawsuits filed by the victim with claims of new injuries and injuries following the treatment of crimes against the criminal for demanding extra blood money. One of the difficult cases to diagnose customary citation is that victim seeks treatment and suffers another injury as a result of treatment and due to the necessity and doctors’ diagnosis. The purpose of this study is to explain criminal liability for injuries resulting from the treatment of crime, to acquaint the judges with its documents and to create a unified procedure in the judicial courts. In the case of injuries resulting from the treatment of a crime (which is sometimes more severe than the injuries inflicted by criminal), if the blood money is not paid, there is a fear of losing the right of the innocent, therefore, it is necessary to investigate this issue. The present stuudy is organized in two parts: in the first part, the theory of non-responsibility of criminal is examined and in the second part, using the general rules of guarantee and verses of the Qur'an and narrations, while answering doubts, thetheory of criminal liability is analyzed and examined.

This article has been written by examining the legal materials and jurists’ sayings, their documents and evidences by means of documentary-analytical method and field study of some cases of criminal courts. So, since the most important document is the verses of Quran, narrations, the foundation of reason and the rule of intercession, these arguments have been analyticaly studied.

According to the study, criminal is responsible for direct injuries to the caretaker and for injuries resulting from the treatment of the crime.

allowing or not allowing legal possessions is a description of a situation that is sometimes due to the intrinsic and personal characteristics and sometimes due to the subjects with respect to individuals. Although the dying patient’s condition arises from an intrinsic description, but this condition causes his property to be in a situation where the concern of legal possessions assessmentof the potential beneficiaries of the post-death period has spread to the pre-death period, and this poses a serious challenge. In simpler terms, since it often happens that the heirs of the dying patients do not have the financial means to manage their own affairs or theirs patient, can we extended the definite competence after the death of the beneficiaries to the pre-death period or depict a minimumof allowing of possession of the patient's property on the basis of ownership participation?

This descriptive-analytical research examines the ruling of the possession of potential beneficiaries in dying patient's property in the pre-death period by analyzing jurisprudential and legal texts.

It is possible to depict a special face of ownership in accordance with the dignity of the heir or other persons or at least to assess the influence of their suspended and preoccupied possessions in the pre-death period; however, the scope of such possession requires an analysis of the evidence and the artificial order of the legislator. Of course, all of these solutions are subject to an exclusionary (or restrictive) constraint, so there is not difference between these persons’ possession and others’ rights. The description of hesitation in ownership in accordance with the dignity of the individuals is also rooted in this clause, if we believe it.

 Medical examinations and treatments are inevitable for everyone. One of the most importan issues for women is to visit a doctor during the fasting in Ramaḍān for the treatment of certain diseases of the genital tract. In this study, relying on the principles of Islamic jurisprudence by following the original jurisprudential sources, we seek the answer to the question that if a woman in Ramadan due to genital diseases to visit a doctor for treatment, the treatment will invalidate the fast or is the fast still valid?

 The present study is a descriptive-analytical method of content analysis to examine and explain the ruling of examining the genital tract in fasting by comparative analysis in Islamic religions' jurisprudential texts.

 The jurists of Islamic religions have expressed two views in favor of the invalidity of the reproductive system on Ramaḍān, for and against the invalidity of fasting, citing verses, hadiths, and narrations, rational and medical reasons. Relying on the reasons presented by those who believe in the validity of fasting and considering the effect of time requirements on the issuance of rulings on emerging issues and advances in medical science and the need for examination and treatment, the opponents' views are strengthened.

The jurisprudential rule of "necessity and urgency" can be current and documented in many cases. Applying this rule can play an important role in stranger physicians’ look and touch and it can be as a way for them to treat patients in accordance with jurisprudential issues.

This descriptive-analytical article analyzes jurisprudential texts and critiques and examines the views of jurists on the rule of necessity in treatment and its requirements by a stranger physician.

The use of necessity is considered as a jurisprudential solution to allow some treatments. The present study shows that the jurists, citing this rule, seek to provide a jurisprudential solution for the treatment of stranger patients by physicians, although there is a difference between them in the type of citation of the rule due to differences in documentary narrations.

In these days, when infectious and contagious Coronavirus disease (COVID-19) has invaded society and the world, in addition to health problems for individuals and governments, many other aspects, including legal jurisprudential challenges, can be considered. Examples in this regard include the guarantee of sovereignty in loss of life, property, economic and health conflict, the application of the rule of kindness, quarantine and restriction of liberty, national security and retaliation, psychological security, and so on. Accordingly, the present study has been conducted in a specific way to examine some challenges and consequences of related legal jurisprudence, the arguments regarding the responsibility (obligation and status) of the government, and its theoretical framework.

In this article, the legal jurisprudential consequences of this contagious disease, in proportion to the present time and place and the need to produce and pay the rules of legal jurisprudence, have been considered to adequately explain the issue (Islamic jurisprudence view on infectious diseases and government responsibility). Considerable evidence of validity and abundant jurisprudential opinions have been examined using descriptive-analytical methods and library sources.

In this study, while examining and refining the jurisprudential issue of infectious diseases (according to some recent views on the conflict between jurisprudence and science) based on sources, evidence, and legal jurisprudential rules governing the duties and responsibilities of the government, described, analyzed and evaluated and with a new division and interpretation and a new look at the verses and hadiths and legal jurisprudential evidence, the duty and general responsibility, as well as the special responsibility of the government (in case of a negative or positive cause that can be cited and creates guarantee and damage), has been proven.

Organ transplantation is one of the achievements of medical science that today faces new challenges, such as access to new resources to address the shortage of organs, especially for children. Following the scientists' consensus on non-vital organs transplantation and patients with brain death transplantation, a new proposal was provided in the medical community to use anencephalic newborns as a new source for transplantation.Anencephaly is a fetal abnormality caused by a defect in the neural tube closure in the fetal head. Babies with this defect often die before birth, and who born alive are unconscious and die within the first few hours after birth. In this study, we seek to answer the question of whether donating organs of such infants is compatible with the jurisprudential and legal principles of our society or not.

In descriptive-analytical article after arguments in favor of this theory, it is analyzed based on jurisprudential-legal texts.

Although some Western thinkers agree with this theory by reasons such as the similarity of these patients to brain death and parental consent, there are objections to each of these reasons that lead to the rejection of the above theory. After explaining the reasons of the proponents and criticizing it, an alternative proposal is presented that agrees with the jurisprudential and moral principles of the society. According to this proposal, there should be no restrictions on non-vital organ donation by anencephalic neonates with parental consent.

Today, despite objections and agreements, transgenic food has found its place in the food basket and the cultivated areas of transgenic products have increased 100 times since 1996 to 2018. However, sometimes in temporary circumstances, the right to food and food security may conflict with the consumers’ right to health and right to choice, and we must look for a solution. This article addresses conflicts of consumer rights as well as the government's role towards citizens using narrated sources and rational arguments after briefly referring to the rights of transgenic food consumers and outlining the views of proponents and opponents of transgenic foods.

The present study is a review study in which using the keywords food, food security, transgenic products and health, Persian and English articles and books published and indexed in different citation databases separately and in combination, with no time limit until at the end of 2019, were searched and analyzed after retrieval.

Providing food security to citizens is one of the most important tasks of governments and they try to prevent the increase of the hungry population and to maintain the citizens’ health and life by providing available and sufficient food. Proponents know the transgenic production as one way to achieve food security which improves human health by improving food quality. But opponents emphasize their harmful effects on human health and environment, arguing that they should not be released until their potential risks are carefully assessed. Although some Iranian laws emphasize the protection of health, in practice the necessary information has not been provided about transgenic foods, and therefore, in order to protect citizens’ health, governments are required to closely monitor transgenic foods and take into account the public interest if there is a conflict.

Delayed childbearing at the right age of fertility disrupts the population growth process and in some cases deprives families of enough children. One solution for this challenge is to use freezing gamete technology at a young age and health. For this purpose they freeze the couple's sperm and egg in the laboratory and store them in special conditions so that they can use it in certain time. But what is the ruling on this new achievement of medical science in freezing gamete is a question that the present study seeks to answer it.

The present study which is organized by descriptive and analytical methods and the method of collecting information is based on the library method by reading books, articles, scientific texts and searching the resources available on the Internet seeks to answer the question that what is the religious ruling on freezing gamete from the point of view of jurists and what are practical and rational benefits in the reproductive process?

The results show that the ruling on freezing gametes is disputed by contemporary jurists. Some believe in any method of childbearing by unnatural means is illegal and is a change in divine creation. But others consider it justifiable by using the principle of immorality and correctness, the principle of the necessity of treatment and also the secondary titles such as necessity and negation of hardship, provided that during the process of obtaining and inoculating the applicants' gametes with each other, forbidden preconditions are avoided and marital interest is provided.

Dog is one of the loyal animals that was used in the past in some jobs. Today, not only its services are vaster and more important, but also intentionally or unintentionally, it exist in some houses. In the present era, dog and its keeping and its adaptation to today's life is one of the challenges in jurisprudence and medical science and dynamic jurisprudence should be able to combine the new life and productivity of this animal with the old jurisprudence, according to the definite principles of Sharia, and provide a solution for interaction with this animal.

The descriptive and analytical present study intends to discuss the subject of dog and its keeping in jurisprudence of the five religions in adaption with medical science data about this animal in order to provide a ruling commensurate with its rights and services with help of religious texts and jurists’ analysis and medical science.

The majority of the Jurists according to texts such as frequent washing the dishes which are in contact with dog’s mouth in a special way and the transmission of some diseases to human, believe in its impurity, and others according to the principle of cleanliness of objects, vaccinations and various medical tests say that it is clean and permitted. It seems that although the keeping of this animal is not encouraged in the Shari'a, ignoring their rights and services is not desirable. Therefore, according to the devotional view of washing the dog's mouth and the literary meaning of the word "beit" in the texts indicating the prohibition of angels entering the room, not the house, as well as medical science data in controlling this animal, we should combine texts prohibiting its keeping with the use of its services and change the limited view of impurity to a wider view and the rule that the dog is not impure and benefit from its services..

One of the reasons for the rapid spread of recent infectious Covid 19 in various countries including Iran is the lack of sufficient attention to health issues, safety advices and prevention principles recommended by health professionals (such as the need to pay attention to segregation and distance social laying and the use of sanitary ware such as masks and disinfectants). This carelessness leads to a greater prevalence of the disease, sometimes wisely and intentionally, and sometimes without any intention or discretion. One of the issues in investigating the individuals' responsibility for the transmission of this disease to other people in the community is to analyze the different states of transmitters in terms of the possibility of transmitting the disease to others and also in terms of their intention and authority in performing the action and in achieving the result.

This article has been written by descriptive-analytical method and using jurisprudential and legal sources.

In this article, it has been proved that for a disease’s carrier who suspects to transmission of the disease to others it can be considered a guarantee due to the probable importance (killing others) and the possibility of harm to him. Also transmission of the disease from a carrier who intends to act (even without the intention of result) is guaranteed but from a carrier who does not intend to act is non-guaranteed.

The corona virus pandemic has caused widespread problems in various aspects of human life. One of the most important of these dimensions is mortality from this disease; however, advanced studies have shown that sometimes the patient's death is not directly due to the disease and medical errors such as drug interactions (poly pharmacy), lack of timely attention to the patient, inaccuracy in intubation and … led to serious injuries to the patient, as a result of which the patient lost his life. The present article seeks to determine the scope of physician or other medical staff liability in medical expenses and blood money after distinguishing their fault.

the present descriptive-analytical essay based on library method has collected legal articles and jurisprudential fatwas related to the present subject and in addition to citing different viewpoints in this regard has criticized their reasons. Eventually by referring to some proofs such as causation principle, the conduct of sane minds, command of intellect and Abu-Maryam narration, proves the correct opinion.

The medical staffs are responsible for the blood money and the extra expenses of medical treatments which have been caused due to medical errors in coronavirus cases. The costs of improper treatment measures such as harmful or unnecessary surgery and secondary treatment measures are assumed by the perpetrators if they are at fault.

Coronavirus which has killed many people around the world, is a threat to public health. In this regard, most countries have imposed restrictions to control and manage this disease and is legally necessary to comply with the requirements and frame works in these restrictions . Some of these frameworks, such as the need to upho ld the rule of law, are general and the other s are related to the structure and nature of governments. In Iran observance of Islamic regulations in accordance with the fourth pr inciple of the Constitution is one of the most important requirements . Considering the approvals of the National Headquarters of Administrating Coronavirus, we are witnessing a simultaneous violation of the contents of the Constitution, including the third and fourth principles, so that the religious rites are not observed as a consensus among social rules and there is a contradiction in these limits between non - re ligious and religious gatherings. The present article seeks to examine the limits of the gover nment's authority to impose restrictions on the performance of religious ceremonies and the bowing of rites.

The present study, based on the library method, collects data contained in legal jurisprudential texts in relation to bowing of religious rites and also the scope of government ’s duties during the outbreak of diseases. It uses a descriptive - analytical method to r eview different views and by referring to rules such as "non - discrimination", "fairness" and "proportionality" has tr ied to provide a suitable solution to resolve the contradiction between bowing of rit es and eliminating the risk of disease.

The findings of the article indicate that in the period of corona outbreak, various legal jurisprudential principles in cluding the rule of destiny, the rule of Islamic regulations , the principle of proportionality, the principle of non - discrimination and the principle of fair behavior have not been observed by the National Headquarters of Administrating Coronavirus and it is necessary for the proposals of the members of this headquarters to be reviewed by religious and judicial experts before approval in order to create a relative balance between eliminating the risk of disease and bowing of religious rites.

Governments are responsible for providing health services based on their human rights obligations in the event of an outbreak of a n infectious disease. These services are not limited to the citizens of a government, but all goverments are committed to international cooperation as a complementary mechanism to empower and enhance global capacity. On the other hand, the se commitments have not been properly implemented in C orona crisis and the "right to public health" has been influenced by some nationalist approaches.

The present article collects opinions related to the legal jurisprudential aspects of "right to health" and "government responsibility " in the context of Corona disease based on the library method and tries to critique and study them with a descriptive - analytical method.

Findings of the article indicate that the Islamic jurisprudential system has the ability and capacity to s uspend or modify ordinary religious propositions due to the critical situation and based on rules such as the “ obligation of self - preservation ” , “ sanctity of harm to others ” , “ the need to avoid possible harm ” , ‘ the rule of c aution ” and “ the rule of urgency ” and as necessary, determine and bind norms and requiremen ts. Therefore, the jurisprudential system can be considered effective in regulating social crises, and the coexistence and synergy of jurisprudence and law can be strengthened in accordance with em ergency situations in both national and international areas .

C oronavirus infected all countries, including Iran In 2020 . The disease became a pandemic d espite governments’ efforts to prevent its spread . G overnments are now working to reduce the disease and control its outbreak, and have put programs and measures on the agenda in various are as. In the meantime one of the necessary measures to control the spread of covid - 19 is to regulate the government's relationship with the family. The present study seeks to achieve an effective model in the Meta legal relations of the Islamic government in the control of epidemic diseases with emphasis on the coronavirus.

This article seeks to prove the hypothesis that government - family relations can overcome the duality of law and ethics by using Islamic sources in a descriptive - anal ytical and documentary manner and the relationship between government and family can be considered in another type of relationship called "Soft Law ".

Findings of this study indicate that due to the lack of criminality accountability for familie s unaware of the prevalence of coronavirus on the one hand and lack of pervasive practice of moral norms on the other hand , meta legal and meta moral relations (soft laws) as a social model can play an important role in reducing the spread of epidemic dise ases. In this model, people without fear of punishment and considering the interests of themselves and their families, respect the rights of others and are committed to them. The design of this model has jurisprudential justifications and also the governme nt and family have reciprocal duties which are discussed in this article.

In the view of Islam, Hajj is so important tha t it is considered superior to any worship after prayer, and this importance has caused it to be included in the branches of Islam. On the other hand, some people experience coma, fainting and temporary unconsciousness during Hajj, Tamattu or Umrah, after entering the land of revelation and during rituals, due to old age, illness, air temperature, crowds, etc and they are unable to continue this worship. Worship that may be considered invalid due to the general circumstances of the task and its absence in t he state of unconsciousness. The present study was formed after examining the verdict of people with coma and unconsciousness while performing Ihram and Tawaf rituals .

This research has been done using the narrations and words of Sh iite jurists in library documents and scientific software and has analyzed the proposed solutions by descriptive - analytical method of texts and documents. Moreover, due to the extent of the rituals, this article deals only with Ihram and Tawaf.

The findings of the study indicate that the ruling on unconsciousness and coma during Ihram and Tawaf varies depending on the type of ritual. In the case of Ihram, with the collection of narrations indicating the permission of delaying Ihram and the permi ssion of taking the deputy, the ruling of recommending prohibition or delaying Ihram until recovery is preferred and in the case of Tawaf, whether on the basis of discretion or on the basis of disregard in the event of a conflict of arguments, the discreti on between taking the deputy and continuing the Tawaf is preferred