نشریه فقه پزشکی
پیاپی 3-4 (تابستان و پاییز 1389)

A case which is observed in the judicial decisions on the patients’ rights is a physician who causes the patient’s death upon his treatment. In a case, the physician doing positional anesthesia observes that the patient is shocked and dies and considering what has been mentioned in the decisions issued by the Supreme Court, the accused is sentenced to the payment of one complete blood money to the heirs of the dead person for quasi intentional murder. From one perspective, the physician has caused the death and the title “principle” is applied to him; although if the physician is highly skilled and proficient according to the medical and technical rules and no fault is ascribed to him and also since the physician has not obtained discharge from the patient or his guardians before treatment and the patient has given permission for the treatment not wasting, the physician may be deemed liable. On the other part, the theory of some jurisprudents like Ibn Idris is observed to this effect that if we see that it is said that “one who engages in treatment should obtain discharge from the patient or his guardian, otherwise he will be liable” is applied to a situation where the patient is minor or mad and has not capacity for permission and the discharge should be obtained from his guardian; but if the patient is mature and wise and he has himself instructed the physician to treat him, there will be no liability against the physician, whether the guardian has given discharge to the physician or not and our reason for this is the principle of discharge.

Abortion has never been a mere medical issue; rather, because of its widespread effects on the personal, social, economic, political and cultural matters has been almost globally noticed by governments in some way. The Therapeutic Abortion Act ratified by Islamic Assembly of Iran in 2005 followed by instruction of the Forensic Medicine Organization confirms this claim. Although, basically (ethically, religiously and legally) abortion is considered forbidden, but the Islamic jurisprudents following them, the Iranian legislator have regarded abortion as permissible in certain circumstances, due to the imposition of suffering and hardship on the religiously responsible persons and/or due to certain individual, social and other pathologies. Although the abortion due to “denegation of hardship” has been stipulated in the Act and the 5th part of the legal definitions of the Forensic Medicine Instruction, but the issue of the mother’s hardship that is the most basic topic discussed by this paper needs to be clarified more. Therefore, in this article it has been tried to examine some practical challenges of using Islamic rule of “denegation of hardships” (La Haraj) and some other implied rules of “compulsion” (Izterar) and “denegation of harmfulness” (La Darar). the study is a deep library-based one accompanied by some real case analysis through comparing with jurisprudential-legal principles and rules.

Validity or invalidity of the marriage of a diseased man and the status of the marriage portion and inheritance of his wife is one of the issues disputed over between Madani and Iraqi Jurisprudents in second century. In Traditions narrated from Imams (A. S) marriage contract concluded in case of disease with having any sexual intercourse is a circumstantial evidence of the patient's intent to damage the heirs and would be null and the wife would be entitled to no marriage portion and inheritance. Although there is no dispute over the nullity of marriage in the aforesaid case, determining the nature and type of disease is an issue that should be discussed in details. Expressions like “عند الموت” and “مات فی مرضه” are used In Quran and Sunna has led Jurisprudents to infer on the nature of this term and to name it the "death disease" and have disagreed about the explanation of its nature. Some jurisprudents have argued that the meaning of this disease is a disease that in medical terms would result in death certainly or frequently: A frightening disease. Even in jurisprudential texts, some samples of this disease have been determined according to the ancient medicine. By a historical view, different opinions and forms of disease have been explained in this paper. In light of historical view, this perspective may be supported that a disease invalidating the marriage contract is an incurable disease that from the medical point of view would results in death within a short time.

Saving patient's lives is an important duty for physicians. Regardless of the level of a physician’s skills, there is always a possibility of damage or loss in patients’ life. In jurisprudence, there is a dispute as to whether a physician is responsible if he commits medical mistakes in the course of treatment. Some scholars believe that a physician is always responsible for damages related to his professional mistakes whether he has obtained permission or not. They base their arguments on the generality of the related narrations of ajir (hired) and juridical rules such as Itlaf (destruction), Tasbib (causing damages), La darar (denegation of harmfulness) and Qorur (deception). On the other hand, some others believe that physicians are never responsible for such damages. They base their arguments on the Ihsan (beneficence) rule and Bara’ah (quittance) principle. They argue that physicians have not undertaken achieving the improvement result and they are merely responsible for treatment of the patients. According to Bara’ah principle, physicians could be released from such responsibility. In other words, they are always responsible unless they obtain quittance from their patients. This argument is based on the general rules of al-osr wal-haraj (denegation of hardships) in the society along with Sokuni’s narration. In addition, the necessity of commitment to conditions is another reason for this argument. Exploring the grounds of responsibility (al-ziman) and the grounds for their release from al-ziman the latter argument proves to be more acceptable. Therefore physicians should obtain permission from the patients or their guardians before taking medical actions and also the veterinary should obtain quittance from the owner of animal. Theses evidences are stronger and they are not responsible after obtaining quittance.

Although passing the Method of Embryo Donation to Sterile Spouses Act in 2003 was a positive step toward regularizing one of assisted reproduction methods, but it may be criticized due to some vagueness in its content, lack of sanction, and referring many essential issues to bylaw. One of the most important problems of this Act is that it does not clarity parentage and the legal effects of embryo donation causing confusion in the financial and non financial rights of the child. There are a lot of disagreements in jurisprudence and Law on this issue and each offers defendable principles to prove its case. Some consider the sperm donor, and some others consider the legal father as the real father of the child. Still others believe that these children are fatherless. Based on the result of the discussion, regarding the philosophy of enacting laws, intention of donors and recipients of embryos, and most importantly considering the best interest of the child which has been greatly emphasized in Islam, and also stated in the international conventions, the Iranian legislator should consider the recipients of the embryo as the legal parents of the child noting a kind of abstractive and presumed parentage.

AIDS is a prevalent disease of our century. Fortunately its limited ways of transmission has caused it to be able to be controlled by adopting preventive methods. Transmission of HIV is therefore considered as a crime. The point is here: May the widespread transmission of AIDS be regarded as an instance of Moharaba (insurgency)? The appearance of evidences does not confirm this view, as most jurists deem necessary the condition of drawing out weapon for Moharaba. However, the author believes that a new interpretation of the Quran verse about Moharaba besides logical and stepby- step examination of the jurist's opinion may lead us to the opinion opposing that of most jurists.

It does not seem unlikely the permissibility of suicide in cases of mutual trouble -that has the more important criteria- and also where one is distressed and is suffering from a terminal disease, since the verses and traditions indicating the illegality of suicide are either unrelated to these cases and/or the subject of the reasons for emergency and the emergency rule includes these cases contrary to the majority opinion and the reason and traditions of the learned do not denounce the suicide.