MEDICAL LAW
Year:2016 | Volume:10 | Issue:38 |Papers Count:9

Buying and selling blood as a common way to provide blood and blood products always have pros and cons. The unique feature of blood with compare to other organs of the body, attention to the blood donors as a permanent and renewable source, ease of transfusion, contributed medical and special applications of this vital element and its products in the fields of pharmaceutical, have led to goods assumption field as well as misuses, and, regardless of the risks of distributing contaminated blood, would jeopardize the moral and human values such as altruism and, put humans as a property. This ends in the intervention of international organizations through making statement, declaration, recommendations and resolutions and consequently, the development of legal systems in order to maintain the dignity and supreme dignity of humans. This study shows that buying and selling blood must be without commodity conception, with respect to being necessary to human life and to monitor the state and the full legislation in this area can be applied.

This study shows the effect of risk of pharmaceutical manufacturers' responsibility on the prices of medicines in the legal system in Iran, England and United State of America.By examining the type and responsibility of pharmaceutical manufacturers in these three legal systems, we concluded that in the legal system of the United State of America, acceptance of strict liability, private pharmaceutical companies, high number of complaints and jury attendance for claims show a high risk of liability which leads to high increase in pharmaceutical prices. In the UK due to limited responsibility, non-private pharmaceutical companies, lake of special circumstances in judge in this type of claims, liability risk for manufacturers is low. In sum, it causes low prices of medicines. However, in Iran' skyrocketing medicine is not for the reason of liability risk because liability risk is very low.

A treatment contract involves joint obligations for the contracting parties which are normally a patient, a physician or a health center. A precise and detailed determination of the scope of these obligations plays a crucial part in the performance of the contract and specially in securing patients’ rights. This is what the Iranian legislator has failed to address or better to say that only in some separated regulations there have been a set out of rules in regards to some obligations of physicians. On the other hand, the laws of some countries such as the Netherlands and Germany have devoted specific parts of their civil code to deal with treatment contracts. The Draft Common Frame of Reference (henceforth: the DCFR), which amounts to a draft of European prospective Civil Code, has also allocated specific provisions regarding treatment contracts in section addressing "specific contract". This study examines parties’joint obligations in a treatment contract from the perspective of the DCFR, some European countries, and Iranian law.

Ehsan Rule and the effects on it in terms of compensatory and non-compensatory liabilities are of great importance; to the extent that it independently and initially revokes the liability based on a famous view among jurists and Jurisprudents. Based on the mentioned-view, in order to trigger Ehsan Rule and termination of liability, intentional and actual benefaction should necessarily exist. Despite the existing disputes, if we consider the physician as an example of Mohsen (benefactor) he or she will not be counted as liable. This rule is explicitly mentioned in Islamic Penal Code 1392, unlike the previous law. In previous articles and juridical rulings, causality relationship is a basis for liability; therefore there is doubt whether Ehsan Rule finally revokes medical liability or doesn't obtain causality relationship.This paper, in response to this question, separates medical liability to compensatory and non-compensatory liabilities. It determines the scope of this rule in these two areas and considers the good intention of a physician as the only factor of invalidity for his or her mandatory liabilities and deems Ehsan in his or her act as the cause of liability termination. Meanwhile by criticizing this view-independence of Ehsan Rule in liability termination-It is believed that the effectiveness of Ehsan Rule requires lack of causality relationship and supposes it effectiveness in relation to causality.

In accordance with Article 2 of the Executive Bylaw of Organ Transplantation Law, diagnosis and confirmation of brain death shall be made by a neurologist, an internist, and an anesthesiologist. On the basis of the civil liability, those individuals who declare brain death; should indemnify the damages if they impose as a result of their diagnosis in this process. Islamic criminal law 1375 (1996) in article 319 was absolutely adjudged doctors accountable; however, Islamic criminal law 1392 (2014) in Article 495 has followed the theory of fault in doctors civil liability. Therefore, the doctor can defense not fault, proved third person fault and invoke assignment to external causes. Based on Articles 158, 495 and 496 of criminal law in 2014, when was obtained consent; if they meet technical and scientific criteria in brain death diagnosis in the government system in brain death diagnosis does not accept responsibility; but in spite of consent, if they do not comply technical and scientific standards and government regulations, they will be held accountable.

Where a victim with the use of medical treatments reattaches the cut-off organ to his/her body, supposing that we recognize his or her rights in terms of legal and legitimate rights in the mentioned-matter, this raises a critical question that is whether his/her right of retribution still remains.In response to this question, despite of the current, divergent views, it seems that by the occurrence of felony, the right of retribution for the victim is established and the use or non-use of organ reattachment has no effects on this right. Furthermore, this article concludes arguing that the effect of felony should remain to time of retribution and comparing the organ reattachment to tooth restoration, which causes deterioration of retribution rights, is not acceptable.

Embryos and gamete cryopreservation contract is a contract between the embryos cryopreservation applicant and cryopreservation centers to freeze and preserve their embryos and gamete. This article aims to review constitutional conditions of validity, parties` obligation, sanction and dissolution methods of embryos and gamete cryopreservation contract. Research method has been revision in some parts and analytic- descriptive in other parts. Observing the constitutional conditions of validity of transaction especially about the case of transaction and legitimacy of the contracting parties` motivation bring up new issues. This contract also brings up new issues in parties obligation, their sanction and methods of the contract dissolution due to being new and indefinite. In Conclusion, The cryopreservation contract is a valid contract. Cryopreservation centers are obliged to provide medical information, to transfer the embryos in application time, to preserve the embryos and gamete cryopreservation; applicants are also obliged to take care of the cryopreservation embryos and gamete at the end of the contract duration. Both parties are responsible for violation their commitments. This contract maybe canceled voluntarily and forcibly based on different aspects.

Gender Dysphoria is diagnosed when there is a considerable incongruence between the individual’s experience of their gender and designated gender at the time of birth. There are different views about biological and environmental factors affecting this phenomenon; and there is no consensus about legitimacy of sex reassignment surgery. Different states have set rights of gender distorted people based on equality and banning discrimination without separation according to the gender and its identity through constitution and common law. Enacting laws regarding gender dysphoria in Iran can make a significant contribution to the recognition of individuals with gender dysphoria. In this study we look into different kinds of gender identity distortion, to investigate biological (genetic and non-genetic) and environmental factors affecting this distortion; subsequently we suggest existing juridical views regarding legitimacy of gender change; and initially, the legal consequences of gender change will be discussed.