Document Type : Original Article

Authors

• mahmood akbari ¹
• zahra afrasyabi ²

¹ Assistant Professor of Law, Ayatollah Boroujerdi University, Boroujerd, Iran

² M.A. student of Islamic Jurisprudence and Law, Ayatollah Boroujerdi University, Boroujerd, Iran

Abstract

Deliberate abortion is immoral and forbidden by sharia. It is permitted, however, only in case there is risk in pregnancy or the possibility of the fetus’ anomalies. In the latter condition, the law protects motherhood by resorting to the ‘distress and constriction negation’ principle (usr-o-haraj). The article intends to take a critical look at the issue by exploring the necessity of the father’s consent to abortion, due to the fact that if the mother’s health and survival is at risk, the father’s consent is out of question, but when there is the risk of fetus’ anomalies and the application of ‘distress and constriction negation’ principle, both parents are involved. Here, we are discussing the child’s right of survival that the father has to abide by, and want to prove the fact that if the father disapproves, the therapeutical abortion must not be carried out. Hence the need to revise the law pertaining to the absence of the father’s consent. We have benefited from proofs such as the father’s kinship, his obligation for his family’s subsistence and guardianship.

Keywords

• Abortion
• Fetus’ Anomalies
• Absolute Guardianship
• Distress and Constriction Negation
• Fathers’ Consent