Int. j. econ. manag. soc. sci., Vol(4), No (1), January, 2015. pp.

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International Journal of Economy, Management and Social Sciences

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Abortion in the Iranian Legal System

Somayeh Tafaghodi Zare
Faculty Member, Payam Noor University of Tehran, Department of Law, Baharestan Branch, Tehran, Iran
*Corresponding author: sofia_tafaghodizare@yahoo.com

Keywords

Abstract

Islam
feminism
woman
abortion
hardship
mother

Abortion, medically speaking, refers to the removal of fetus from the uterus before it has independent viability.
Since fetus does not survive independently before sixth month of pregnancy, its removal from uterus before sixth
month is considered abortion, and after sixth month it is not regarded as abortion if the fetus is born alive but it dies
due to prematurity. Through the lens of Forensic Organization, abortion refers to removing the fetus from the uterus
while it is not able to live outside the uterus, i.e. termination of pregnancy before fetus independent viability; this is
usually realized until 20th week of pregnancy. So from a medical perspective, the important fact is that the aborted
fetus cannot live independent from mother. Therefore if the fetus is removed from the uterus before due time and it
can be kept alive by specific medical devices, it is not regarded as abortion. That is why abortion has always been
raised by scholars as one the main issues of criminal law. Some feminists have absolutely accepted this social
phenomenon and believe in an unconditional freedom. On the contrary, some do not regard abortion permissible
under any conditions based on religious teachings. Islamic jurisprudents regard abortion permissible in a few cases.
The Iranian legal system, whose rules are derived from Islamic jurisprudence, regards abortion prohibited and
provides penalty according to the Islamic Penal Code, unlike legal systems of western societies that regard abortion
as an honor for women personality and freedom. This paper studies types of abortion and the effective factors and
evaluates and analyzes Abortion Law before and after the Islamic Revolution.

Introduction
No definition has been offered for abortion in the penal codes before and after the Islamic Revolution. However with respect to the legal articles,
it can be defined as "any criminal act that impedes natural trend of pregnancy and eliminates fetus viability inside or outside the uterus"
(Razmsaz, 2000, p. 21).
There are three kinds of treatment in the world legal systems regarding abortion. Some has absolutely accepted this social phenomenon and
believe in elimination of all restrictions of abortion. On the contrary, some are more influenced by religious law and disagree with it under any
conditions. So they prohibit abortion without any exception. The last group has a middle viewpoint and considers a relative freedom for abortion.
This group believes that though abortion is essentially a criminal and prohibited act, it is authorized under certain conditions. They believe that
in the period of fetus growth, there is a stage in which human life of fetus is commenced and before that abortion is authorized albeit in a limited
number of cases under the title of therapeutic abortion or medical abortion (Vahid Dastjerdi, 2010, p. 11).

Materials and methods

Part I: Abortion in the Iranian Law
In our legal system that has been inspired by religious commands and criteria existing in the Islamic jurisprudence, abortion is regarded as a
crime in most cases. In contrast to this viewpoint, western liberal thought does not only support fetus living right, but supports those who have
an abortion (Ayatollahi, 2002, p. 152).
Chapter One: Before the Revolution
In the Iranian Law before the Islamic Revolution, abortion was prohibited except in cases where the mother's life was in danger, and the
legislator had predicted penalty for anyone involved in the commitment of this crime ranged from physician, midwife, pharmacist and even the
mother, in the Articles 180 to 183 of General Penal Code (Hojati Ashrafi, 1976, p. 132) derived from the French Law (Validi, 1994, p. 34).
According to the Article 42 of the executive bylaw of General Penal Code that was focused on justified factors of crime, only abortion
undertaken by the physician was authorized. The Article 3 had added other conditions including the reasons of abortion must be regarded
sufficient and justifiable by the physician, there must be no predictable physical risk for the woman, and less than 12 weeks have passed from the
commencement of pregnancy.
Also Article 17 of Medical Council Disciplinary Bylaw enacted in 1969 had accepted abortion absolutely and had mentioned some formalities
for abortion. For example, the physician was obliged to declare the abortion within 24 hours to the board of Medical Council.
The above mentioned law was applicable until the enactment of Blood money and Discretionary Punishment Law. Since this law was in contrast
with the Islamic Revolution objectives including actualization of Islamic principles, it was totally changed. Blood Money Law enacted in 1982
provided rules regarding abortion blood money and then in 1983, the legislator provided penalties for those who help a woman to have an
abortion. This law was finally enacted in 1991-1996 (Mansour, 2005, p. 259) with this difference that the prior law had determined atonement
for abortion while the subsequent law has predicted compensation besides blood money for the damages incurred by the mother.
Chapter Two: After Islamic Revolution
In the Iranian Law after the Islamic Revolution, Articles 478-493 of the Islamic Penal Code has been allocated to the abortion blood money and
the legislator has specified blood money for abortion of fetus at different stages even when it is only a sperm. Articles 622 to 624 have provided
discretionary punishments for abortion, and according to the Theory No. 7.2171 of the Judiciary Legal Department in 1987, abortion of a fetus
created by adultery is punished too (Golduzian, 2004, p. 219). Also the Articles 715-716 state the difference between removal of the fetus that
is viable before due time or premature childbirth and abortion (the same).
Islamic Penal Code has addressed abortion in its fifth chapter titled as deterrent penalties and discretionary punishments. Based on Article 622 of
this Law, anyone who causes abortion for a pregnant woman willfully and knowingly by assault or harassment will be convicted to
imprisonment from one year to three years as well as blood money or retaliation.

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According to Dr. Golduzian, the word retaliation in this Article has been applied about the mother and it may be retaliation of life or retaliation
of organs according to circumstances. Retaliation has two states:
1) The doer is convicted to retaliation of life for murdering the mother and to imprisonment from one year to three years and blood
money for abortion.
2) The doer is not retaliated for murdering the mother. He is convicted to imprisonment from three to ten years and mother blood money
for the intentional murder and to imprisonment from one year to three years and fetus blood money for abortion according to Article
208 and 612. Consequently the longer imprisonment, i.e. three to ten years, is enforced (the same).
Dr. Ardebili writes in this regard that in the Islamic Penal Code if abortion is intentional, quasi-intentional or a pure error, the doer is convicted
to blood money and if abortion is unintentional caused by driving accident, the doer is convicted to imprisonment and blood money if requested
by the avenger of blood. If abortion is intentional during fetus bio-life, the doer deserves retaliation (Ardebili, 2006, p. 29).
Article 623 provides, "... anyone who causes abortion by giving drugs to a pregnant woman or by other means is convicted to imprisonment from
six months to one year. If anyone intentionally and knowingly causes abortion by drugs or by other means is convicted to imprisonment from
three to six months and conviction to blood money will be issued according to the related rules".
Article 623 of Islamic Penal Code does not differentiate between abortion in the early days of pregnancy and last days of pregnancy and it
permits abortion only when it is necessary in order to preserve life of the mother.
However according to the Guardian Council, this permission refers to the case where the fetus is not alive but there is not such condition in the
Law. Guardian Council in the Theory No. 6053 dated 1984 regarding Article 17 of Medical Council Disciplinary Bylaw permits abortion to
preserve the mother life only when the fetus is not alive.
Article 624 provides, "... if the physician or midwife or pharmacist provides the stage of abortion is convicted to imprisonment from two to five
years and conviction to blood money will occur according to the related rules". It must be noted that according to Article 257 of Islamic Penal
Code enacted in 1991, if the physician or midwife undertakes abortion of a fetus that is alive (older than four months), they will be convicted to
retaliation unless the legal father of the fetus accepts to receive blood money instead of retaliation. It is evident that if the father agrees with
abortion, he does not deserve receiving the blood money.
Different rates of blood money have been predicted for abortion based on different stages of fetus growth and even if it is alive and it becomes
clear that it is boy, it deserves a complete blood money.
Payment terms of blood money for the intentional abortion are determined by general rules of blood money. As regards blood money for
abortion, the most important matter is determination of the responsible person who may be the mother, father, physician, pharmacist and other
third parties that cause abortion by a criminal act or imprudence.
As regards blood money for therapeutic abortion, blood money rules of Islamic Penal Code cannot be enforced; because blood money is
meaningful when someone hurts another person. But here the fetus is imperfect or ill and it has not been caused by the physician. However if the
physician fails in doing his duties, his fault must be proved as per civil liability rules. The physician may commit an offence at different stages
which impedes proper therapeutic abortion; in such a case, general elements of civil liability including losses, fault, and causal relationship must
be realized in order to consider the physician liable.
By virtue of Article 487 of Islamic Penal Code, age and blood money of the fetus is determined as per below.
Sperm: if the fetus is two weeks old, its blood money is 20 gold Dinar.
Coagulum: if the fetus is four weeks old, its blood money is 40 gold Dinars.
Meat: the fetus is turned into meat and is eight weeks old; its blood money is 60 gold Dinar.
Bones: the fetus is 12 weeks old in which bone is created; its blood money is 80 gold Dinar.
The blood money of a fetus that has meat and bone but it does not have soul and is 16 weeks old is 100 gold Dinar.
(In the above five stages, there is no difference between boy and girl in terms of blood money).
After 16 weeks that the fetus has soul and its gender is clear, the boy fetus has a complete blood money and the girl fetus blood money is half;
and if the gender is not clear, the blood money is three quarters of a complete blood money.
It must be noted that determining the fetus age in the above mentioned cases has not been considered in the legal rules, yet Iran Forensic will
enforce it as mentioned above.
According to the Article 488 of this law, whenever a fetus is killed or aborted as a result of killing the mother, the blood money of the fetus at
any age must be added to the mother blood money.
Article 489 provides that when a woman has an abortion, she must pay the fetus blood money and enjoys no share of that.
As per Article 490, when several fetuses are in one uterus, each of them has separate blood money, and Article 491 provides that blood money of
fetus organs and damages are determined based on that fetus blood money. Article 492 of Islamic Penal Code provides that blood money of the
fetus in intentional and quasi-intentional abortions must be paid by the murderer and in pure error cases must be paid by the father or his adult
male relatives whether the fetus has soul or not.
It must be noted that the material element of abortion may be in the form of hurting or assaulting the pregnant woman, giving drugs, scaring and
so on and it seems that father or his adult male relatives is liable for injuries and higher blood money.
If the pregnant mother whose fetus is five months old dies during abortion operation due to its side effects, her death is regarded as an
unintentional murder and the murderer will subject to blood money. However, in an intentional fetus murder, the murderer subjects to the
penalty of intentional murder, i.e. retaliation.
Chapter Three: Abortion in the Iranian Laws
In order to remove the gap related to abortion, some representatives of sixth Islamic Consultative Assembly submitted the "therapeutic abortion"
plan by a single article to the Assembly in which therapeutic abortion is permitted by a competent court before fourth month of pregnancy
through diagnosis of three specialist physicians and approval of Forensic regarding fetus illness that will cause hardship for the parents or the
baby after childbirth.
The above mentioned plan is only focused on cases where the fetus is deformed or ill and does not include cases in which continuing pregnancy
is dangerous for the mother and threats her physical and mental health. Furthermore, in the proposed plan, the formalities of abortion permission
which needs certification of a competent court are time consuming; while the judge issued verdict based on experts opinion (physicians) and this
was met without needing judge verdict. Anyway this plan was raised again with some corrections in the 97th open session of the seventh
Assembly and enacted in the 98th session dated April 12, 2005 as following: "therapeutic abortion is permitted by certain diagnosis of three
specialist physicians and approval of Forensic regarding the fetus illness that will cause hardship for the parents or the baby or the mother illness
that threats her life before soul creation (4 months and 10 days) with the parents satisfaction, and there is no penalty and liability for the
physician".
This plan has two parts; first part pertains to the deformed fetuses that will cause hardship for the parents or the baby, and the second part relates
to the cases in which continuing pregnancy will threat mother life.

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International Journal of Economy, Management and Social Sciences Vol(4), No (1), January, 2015.

Since law has not provided father presence for issuance of abortion permission, the Forensic formulated a new instruction and declared to the
forensic centers all over the country on the basis of which father presence is not mandatory for issuance of therapeutic abortion permission.
According to the new instruction of Forensic, it was declared in October 2012 to all centers that mother presence and satisfaction suffices for
issuance of therapeutic abortion permission and father satisfaction is not obligatory. In this single article, therapeutic abortion is authorized under
certain conditions where there is no liability and penalty for the physician.
The question raised here is that whether the physician must gain permission of the fetus parents or acquittance as per Articles 319 and 322 of the
Islamic Penal Code, despite explicit permission of the legislator in this single article, or not? Therapeutic Abortion Law enacted in 2005 is
specific to these articles and as regards abortions undertaken as per this law, the legislator permission has been substituted for the parents'
permission and acquittance. However it must be noted that exemption from blood money and compensation occurs only when the conditions
provided in this law are met. So, abortion after the fourth month even due to abnormality in the fetus or saving the mother life is unauthorized
and brings about civil liability. Also commitment of any fault in the therapeutic abortion operation revives civil liability and blood money
payment obligation.
In 2003, a circular was sent to the Forensic Organization and specified the conditions of abortion.
According to the circular No. 1.4176 dated December 2, 2003 of the Forensic Organization,
1) If continuity of pregnancy leads to the fetus or mother death, request of therapeutic abortion permission is accepted (only in the
Forensic offices); albeit, by the order of the Judicial authority or request of the parents and reference of the physician before creation
of soul (fourth month).
2) The physician reference must contain the patient photograph (sealed by the physician), ID information, and diagnosis (signs and
paraclinical tests), and copy of ID and paraclinical tests results (containing the patient sealed photograph and ID information) are
attached.
3) At least 2 ultrasonographies for fetal indications and at least one ultrasonography for maternal indications are required for determining
pregnancy age.
4) At least two specialized consultations for approving diagnosis along with the physician reference are mandatory.
5) In cases not included in the list of indications, at least three specialized consultations indicating an abnormality leading to the fetus
death or mother death is obligatory. In this circular, some special diseases of mother and fetus have been mentioned and only these
diseases result in therapeutic abortion permission (Beckwith, 2006, p. 182-189).
Some of these diseases are as following:
Maternal indications of abortion include heart disease, digestive diseases, lung diseases, nephrology, and hematology, infectious diseases such as
HIV, rheumatology, neurosurgery, dermatology, and neurology.
Abortion indications in fetal diseases and abnormalities that lead to Intrauterine fetal death or infant death immediately after birth include
surgery and orthopedics, nephrology, urology, hematology, etc. (Beauchamp, 2009, p. 158).
Thus, abortion without medical necessity is considered crime in the Iranian penal codes and it is punished. Abortion, criminally speaking, is
divided into two types.
First, the pregnant woman refers to a physician or midwife for abortion and the physician guide her. In this case, the physician is convicted to
imprisonment from six months to three years. Here, the physician or midwife does not abort the fetus, yet he/she gives some instructions to the
mother that will abort the fetus. The crime is actualized if the mother acts to the physician instructions and the fetus is aborted.
Second, if the physician or midwife undertakes abortions willfully and knowingly without any medical necessity, two states may occur.
First state: the soul has not yet been created; from religious perspective, it is believed that soul is created when the heart begins to beat. In this
state, the physician is convicted to blood money.
Second state: the soul has been created; when the heart begins to beat, the soul has been created from religious perspective. In this state, the
physician undertaking abortion will be convicted to retaliation for intentional murder, unless the legal father of the fetus accepts to receive blood
money in consideration of retaliation.

Results and discussion

Part II: Abortion Definition in the Jurisprudence
The word "Janin" (i.e. fetus) in the Arabic Language means a concealed thing (Jar, 2001, v. 1, p. 772; Amid, 1997, p. 473). So the fruit of
pregnancy (Alziat, 1989, p. 141) that originates from sperm are called "Janin" as it is concealed by the mother "uterus" (Ibn Manzour, v. 13,
1410 AH, p. 93). Its equivalent in English Language is fetus or foetus (Arianpour, 1990, v. 2, p. 1744).
Islamic jurisprudents have rarely offered a definition for fetus and have only mentioned different stages of fetus formation and penalty in the
fetus blood money issue. Shahid Sani states, "Janin means concealed and the word "Seqt" (i.e. abortion) in the Arabic Language means falling
down" (Jar, 2001, v. 2, p. 1197). Also jurisprudents define it as removing the fetus out of the uterus. This is a general term including girl and boy
fetus after and before creation of soul. So abortion means removing the fetus out the mother uterus intentionally and terminating the pregnancy
before natural due time, whether before or after soul creation.
Islam supports fetus life from the beginning of growth stages and has provided specific commands for abortion at each stage (Seyed Javadi, Fani,
& Khoramshahi, 2002, v. 9, p. 199) so that from jurisprudents perspective, even destroying the sperm that is origin of human creation is
forbidden and its blood money is 20 Dinars. Also, in the jurisprudential texts, fetal period has been divided into before soul creation and after
soul creation by virtue of verses (Haj, 5; Momenun, 14; Qafer, 67; Qiamat, 38) and narratives (Amili, 1412 AH, v. 29, chapter 21, p. 229; Tusi,
1418 AH, v. 10, pp. 325-334) and different opinions have been presented regarding abortion at each stage of fetus growth.
Chapter One: Abortion in Islamic Jurisprudence
Islamic scholars have offered different jurisprudential theories regarding abortion by using verses and narratives. Abortion is forbidden in Islam
(Makarem Shirazi, 1422 AH, p. 286). This is an obvious verdict in the Shiite jurisprudence and there is no disagreement regarding certain
prohibition of abortion whether before or after soul creation (Mohseni, no date, p. 69).
Chapter Two: Reasons of Abortion Prohibition
1) The Holy Quran: It is not unlikely that verses pertaining to the prohibition of murder include abortion like "do not kill the soul which
Allah has forbidden except for the requirements of justice" (An'am, 151). So if fetus is regarded as a soul even before soul creation,
God has forbidden its intentional murder. However, jurisprudents do not have consensus on regarding the fetus as a soul. Some believe
this verse includes the complete fetus whose soul has been created, and some claim that the fetus is a potential soul from the beginning
of formation and its organs form after forty days and it moves before fourth month (i.e. soul creation); yet the mother does not feel its
movements since the fetus is small and floats inside the womb water bag. Furthermore, nowadays there are advanced devices by which

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International Journal of Economy, Management and Social Sciences Vol(4), No (1), January, 2015.

2)

3)
4)

the sound of fetus heartbeats may be heard in the fifth week or fetus movements can be observed even before fifth week. Even some
believe that fetus moves from the beginning of formation (Mohseni, no date, p. 60). As mentioned earlier, it is not unlikely that this
verse includes the stage before soul creation so that it can be concluded that abortion is forbidden before soul creation.
Tradition: Many narratives have mentioned prohibition of abortion specifically in which abortion at any stage of fetus growth is
forbidden. One of these narratives is presented in the following.
a. Eshagh Ibn Amar says, I asked Imam Kazem (PBUH) whether a woman that fears to continue pregnancy may consume a drug to
abort her fetus. Imam Kazem answered: it is not permissible. Eshagh Ibn Amar said what if the fetus is in the sperm stage? And
Imam answered: sperm is the origin of human creation (that is, it makes no difference).
Wisdom: Wisdom prohibits oppression and regards abortion as an egregious oppression; because abortion is indeed violating someone
that cannot defend himself and this kind of violation is forbidden, rationally speaking (the same).
Consensus: Islamic scholars have consensus on the necessity of blood money as a means of compensating losses caused by intentional
crimes. Necessity of blood money is inferred from prohibition of intentional crimes. So abortion that is an intentional crime against an
innocent creature is forbidden (the same, p. 287). With respect to these four reasons, no doubt remains regarding abortion prohibition
whether before or after soul creation, though in some cases its prohibition is eliminated (the same, pp. 233-270).

Conclusion
At the present juncture, abortion is one the most extensive and complicated social problems. Despites all endeavors of scholars to prevent or
decrease it, no favorable result has been brought about and this problem has created abundant concerns for governments, nations, families and
women. With regard to the diversity of ideologies and attitudes of ethical schools and divine religions, there is no consensus on the proposed
solutions among thinkers of human communities and they are sometimes in conflict with each other. Unfortunately it must be noted that some of
these thoughts have not only eliminated this great social problem, but they have also made it prevalent through the governments support.
Cultural and social factors and particularly sensual promiscuity in different societies, weak foundation of families and other factors have always
intensified this problem and solutions offered by the social reformers have not healed this social injury.
From the beginning of the formation, the fetus has an "ontological" state which makes it distinct as a human (Vahid Dastjerdi, 1993, v. 1, p. 87).
In the other words, the fetus has a potential real and human personality since conception. According to this viewpoint, abortion means denial of
the living right of a creature that has not yet born. Therefore abortion at any stage of fetus life is forbidden; because abortion is in fact killing a
living creature that is the origin of a human.
By respecting the human personality, the Holy Quran spreads a comprehensive legal system before humans from the beginning days of creation
and fetus formation up to birth time and then until human death, and supports fetus and respects its human dignity.
Through the lens of the Holy Quran, all humans including the fetus are identical in terms of "human dignity" and "living right" considering some
conditions and criteria.
Human dignity and living right are the origin of all other rights of humans. If these principles are ignored, all rights will be ignored. So the Holy
Quran regards killing an innocent human as being identical to killing all humans, and the Prophet Mohammad (peace be upon him) has stated,
"If all the residents of heaven and earth are involved in killing a Muslim, God throws them into the fire of hell".
This respectful attitude towards human and subsequently the fetus governs all ethical principles. So by respecting human dignity and its living
right, nothing will occur against the fetus. The only way out of this problem is human commitment to the Holy Quran solution regarding the
fetus. Other viewpoints are inclined towards extremes and cannot be a proper solution for solving this problem.
The Holy Quran solution regarding abortion prevention is like solutions offered for preventing sexual deviations. In this solution, satisfying
sexual instinct is legitimate only through marriage and other solutions that are unfortunately prevalent in this era are prohibited and unethical.

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