Abortion in Iranian Law
By: Farokhzad Jahani, January 2004, (Iran Persian Daily)
In general, abortion might happen in a few ways: medical (therapeutic) abortion, unintended abortion, criminal abortion, and intentional abortion.
In many countries there are no criminal intentions in getting a medical abortion and it can be performed with the permission of a doctor to save the mother's life. With this calculation, a medical abortion is legal in these countries.
In Iran, where laws are based on the Islamic Sharia, there is a slight difference regarding this issue. Based on the Islamic law, formation of the fetus's life is divided into two stages: before the fetus is infused with life and after it. Before the fetus has a soul, abortion is legal if pregnancy endangers the mother's life. The Head of the Guardian Council once inquired the view of Imam Khomeini (when he was alive) if abortion was legal (before the fetus has a soul) in cases where doctors are certain or when they fear that the continuation of pregnancy would kill the mother. In response to the question, Imam Khomeini said not only it is legal but it is also necessary. Even though in penal code, abortion is considered a crime, when it is done to save the mother's life (before the fetus is infused with life), it is regarded legal.
Unintended abortion is a kind of abortion that happens because of infectious diseases such as syphilis or changes and damages of the uterus.
Criminal (illegal) abortion is a kind carried out with awareness, knowledge, information, and bad intentions. In this kind of abortion, the fetus is pulled out before the proper time whereby the fetus does not survive or does not have the capabilities to survive. Abortion is carried out in many ways: sometimes by using drugs and chemical substances, sometimes by using the science of obstetrics, or in other ways. Of course it is not always the case when the mother is responsible for this kind of abortion. At times another person causes the abortion by beating or hitting the pregnant woman without the mother's involvement.
In Article 180 of the Penal Code before the Islamic Revolution, abortion was considered a crime in general and its punishment was 3 to 10 years of prison. The sentence was carried out unconditionally and in all cases without considering the life stages of the fetus. After the Islamic Revolution and the ruling of Islamic (particularly Shia) laws, the life stages of the fetus were taken into consideration.
As was mentioned earlier, fetus develops in two stages: before it has a soul and after it. "After the fetus has a soul" means the time when signs of life can be seen in the fetus. Based on science and the sayings of Imams, the fetus is infused with life after the 4th or 4.5 month (16 to 18 weeks) of pregnancy and because killing any live human being is a crime, abortion after this time is a great sin and crime. So based on the current laws concerning abortion, first it should be determined if fetus has a soul or not? Was abortion carried out by the mother or someone else was involved? Was it carried out with the help of a doctor or an obstetrician or not?
Article 622 of the Islamic Punishment Law says: "Anyone who intentionally and by hitting, beating, and bothering a pregnant woman causes an abortion, should pay the blood money. Plus he/she would face 1 to 3 years in prison."
The blood money and retaliation depends on the life stages of the fetus. Based on the Islamic Sharia, the punishment for slaughter is retaliation (Qisas). If at the time of abortion, the fetus was infused with life, then abortion is considered slaughter. Also the blood money depends on whether the fetus was infused with life or not. The blood money of fetus is determined in article 487 and depends on the life stages of the fetus.
The blood money for the implantation of embryo in mother's uterus is 20 Dinars. When embryo is clotted, it is 40 Dinars. When the clot has a lump of flesh, the blood money is 60 Dinars. When bones are made in the lump of flesh, the blood money is 80 Dinars. And when the bones are clothed with flesh (the fetus does not have a soul yet) the blood money is 100 Dinars. In any of these stages, the sex of the fetus does not matter. After the fetus is infused with life, its blood money is the same as the blood money of a grown and mature human being.
Consequently if someone other than the mother causes the abortion, in addition to the punishment cited in Article 622, retaliation can be carried out if the fetus had a soul. If not, in addition to the punishment he/she should pay the right amount of blood money according to Article 487.
Article 624 describes the Islamic punishment for those who were involved in abortion: "If the doctor, the obstetrician, the pharmacist, the surgeon, or anyone who claims to be a doctor, an obstetrician, a pharmacist, and a surgeon provide the tools needed for abortion or become involved in the act of abortion, they will face 2 to 5 years in prison and they should also pay the blood money determined by the law."
This article has two conditions: The first condition is providing the tools and the second condition is involvement in the act of abortion.
Article 623 describes another issue: "Anyone who causes abortion by giving spices or other stuff to a pregnant woman would face 6 months to 1 year in prison. If he/she does this intentionally, he/she would be jailed 3 to 6 month. However, if it is proved that this action was taken in order to save the mother's life, that individual should only pay the blood money." In this article the word "anyone" includes everyone. Yet it seems that it is for people other than doctors and obstetricians because their involvement has already been described in Article 624. By taking into consideration other articles regarding abortion, it becomes clear that Article 623 is about the time when the mother, herself, causes the abortion by using spices and drugs. In this case, others who are involved only provide the tools needed for abortion intentionally or they give advice or guide the pregnant women in carrying out the abortion.
The punishment for a mother who has an abortion with knowledge and on purpose is the same as for others. She has to pay the blood money if the fetus was not infused with life and undergo retaliation in case the fetus had a soul and was alive. It is only the father of the fetus and the father's family who do not get qisas (retaliation) for killing the child.
There is no doubt that in some cases abortion is necessary because of medical reasons (before the fetus has a soul). But what about those times when the fetus has a soul and it is alive but pregnancy endangers the mother's life or even the fetus's own life? The current laws are silent regarding this issue.
The head of the Guardian Council asked this question from Imam Khomeini. Choosing between the life of the mother and the fetus, the late Imam answered: "There is no preference. The fetus cannot be aborted and one cannot depend on chance either. If by keeping the fetus, the mother would certainly die and there is a chance that the fetus would survive, abortion is legal. However if there is a doubt about the survival of the fetus and there is only a fear of the mother's death, abortion is wrong and preferably it is not legal." Imam Khomeini believed there is no need for permission in cases where abortion is legal or necessary."
The coroners' office has publicized the list of legal cases for abortion. The head of the judiciary branch has also approved these cases. Cases include the diseases that put the mother's life in danger if she continues her pregnancy, diseases that cause the fetus's death inside the mother's uterus or diseases which can not be prevented and cause the baby's death right after he/she is born.
Abortion permissions can only be issued in coroners' offices in central provincial cities, with the order of a judiciary official, a request from the couple, an introduction letter written by the couple's doctor and only before the fetus is infused with life.
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