The Malapropos Cesarean: A Crime without a Victim
Subject Areas : child rightsMahmoud Abbasi 1 , Meysam Kalhornia Golkar 2
1 - Associate Professor, Medical Ethics and Law Research Center, Shahid Beheshti University of Medical Sciences, Tehran, Iran
2 - Medical Ethics and Law Research Center, Shahid Beheshti University of Medical Sciences, Tehran, Iran
Keywords: Malapropos Cesarean, Calendar Birth, Infant, Criminal Liability, Physician, Mother,
Abstract :
Malapropos Cesarean is determining the date of birth for non-medical reasons. The most important example of this practice in Iranian society, which has appeared and increased, especially in the last decade, is to try to adapt the birth of a baby to unique calendar dates. Regardless of the behavioral pathology and moral critique of this practice, a consequentialist view makes the importance of the legal system's attention and decisive response to malapropos cesarean even more necessary. In the present study, with a descriptive-analytical method, in addition to reviewing the criminal law and the principles of criminology, the dimensions of criminal responsibility for untimely cesarean section were considered. The findings showed that malapropos cesarean due to threats to maternal and fetal health, imposing abnormal risks and depriving the infant of the benefits of fetal completion, as well as the consequences of increasing medical error and so promoting false traditions in the health community, in terms of criminological principles, is practically against morality and public order and should be considered as a crime. In addition, the current criminal laws, such as paragraph c of Article 158 and Article 495 of the Islamic Penal Code, are considered as the legal basis for the realization of criminal responsibility resulting from this act. Due to the condition of the fetus, as well as the victim's lack of power to sue, and the parents' and physicians' unanimity regarding non-medical involvement in the delivery date, this abnormal act looks like a crime without a victim, which as a result, its legal pursuit faces difficulties and obstacles. Accordingly, it is necessary to emphasize the general aspect of malapropos cesarean, and documented in the relevant articles of the Islamic Penal Code, assuming the sum of the elements of criminal responsibility, along with disciplinary responsibility, physicians and medical centers might be prosecuted by the public prosecutor.
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