journal of legal and economic research Volume: 03 / N°: 01 (2020), p 156-116
Methods and Types of Abortion طرق وأنواع اإلجهاض
Hadia MESSIBAH, Ph.D Algiers university 1, Algeria [email protected]
Meriem LACHEB, Ph.D Blida 2 university, Algeria [email protected]
Send Article Date: 02/10/2019 Date of acceptance of the article: 20/12/2019 ******* Abstract: The creation of man is the greatest verses that indicate the ability of Allah, and the fetus is the beginning of the formation of man, which is the physical configuration, where starts the formation of its organs that provide life and it includes two basics of periods, the first period is before the soul, And the second period is after the arrival of the soul, and between these whole periods of training stages, each of them has different legislation. And this creature, which is in the uterus of woman, is a result of fecundation between the sperm of man with the egg of female. But sometimes it happens in life some social and hard conditions facing woman, make her decide to get rid of this fetus in the abdomen through abortion. But unfortunately abortion has lot of damage for society and woman because of this it defended and sanctioned by criminal law. Key words: Abortion, Algerian Legislation, Criminal Penality. امللخص: ّ ّ إن خلق اإلنسان من أعظم اآليات الدالة على قدرة هللا سبحانه و تعالى ؛ ويعد الجنين ّ بداية تكوين اإلنسان و الذي هو التهيئة الجسدية له ، حيث تتشكل فيه أعضاؤه و أجهزته
D.Hadia Messibah. [email protected] 651
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التي توفر له الحياة ، و هي تشمل فترتين أساسيتين ؛ األولى ، فترة تكون األعضاء قبل ولوج الروح و الثانية، ما بعد ولوج الروح ، كما تمر دورة ال ّتكوين بمراحل مختلفة لكل واحدة منها تشريعات مختلفة. هذا املخلوق الذي هو في طور التكوين يستقر في رحم املرأة بعد ِالتقاء ً الحيوان املنوي لل ّرجل ببويضة األنثى. و يحدث في الحياة أن ظروفا إجتماعية أو صح ّية تواجه املرأة، تجعلها تقرر أن تتخلص من هذا الجنين الذي في بطنها عن طريق اإلجهاض. ّ ّ ً وخالصة يمكن القول أن لإلجهاض أنواع مختلفة ووسائل متعددة ؛ كما أن له أضرارا ّ وخيمة، ما جعل الشرع و القانون يحرمانه و يجرمانه. الكلمات املفتاحية: اجهاض، تشريع جزائري، عقوبة جنائية. Introduction: Due to the sensitivity of the issue of abortion and its ramifications, especially at the present time, where globalization chronicled its effects on the Algerian and Arab society in general, which resulted in the destabilization of moral and religious values led to the emergence of the phenomenon of organized abortion, as a result of the aggravation of unwanted and illegal pregnancies. On the other hand, there are those who consider abortion as an opportunity for profit and trade, and it does not care about the damage done to society. It is important for these groups to exploit this social crisis to obtain financial resources on an ongoing basis, In the eyes of the law. The punishment has been intensified in the case of a doctor and the cause of this, lies in the ease of concealment of its features thanks to the possession of technical expertise and scientific and thus be in this case a secret crime by excellence. The abortion performed by the doctor & medical specialists is usually difficult to prove, so the penalty is doubled for the doctor who performed the abortion and can be imprisoned to the maximum in accordance with Article 304 of the Penal Code. The reason for this sanction because of the doctor & the staff who work in the corps of scientific and technical privileges make the crime difficult to prove and therefore must be provided deterrence to protect the human right to life.
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And this right begins since it appeared as a fetus in the womb of his mother, who is the pillar of the family and the man of tomorrow and the basis of the human being in this way ALLAH said, “we created man from an extract of clay, then we made him a seed, in secure repository, then we developed the seed into a clot, then we developed the clot into a lump. Then we developed the lump into bones. Then we clothed the bones with flesh. Then we produced it into another creation. Most blessed is Allah the Best of Creators.” Therefore, the following problem is posed:
What is abortion, what are the known types, methods and damage? For this we made a Plan composed of two topics: The first topic we will see the definition and types of abortion;
The second topic we will study ways and means of abortion & its damage. The first topic: Definition of abortion and types Abortion has many definitions in terms of language, terminology, jurisprudence and law as it has many types, some of which are traditional and modern, some of which are legally regulated and some of which are not yet regulated and not yet Punishable by law. The first requirement: Definition of abortions Section I: Definition of abortion Language "The term abortion is a derivative of an abortion that aborts an abortion. It is said that the camel and the woman aborted her baby, so it is aborted." In a conversation with Muhammad ibn Masamah, he meant on Sunday a man who said that Abu Sufyan aborted me, meaning that he did not receive me and removed me.
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Abortion is defined in the French dictionary as the abandonment of an organ such as the exclusion of embryonic parts (umbilical cord, placenta, etc.) before its formation, as meant by disappointment or lack of success. Section II: Definition of abortion in terminology First-definition of abortion in medicine: Forensic medicine defines abortion as "expelling the contents of the pregnant woman's womb before the fetus is fully developed. The fetus is considered fully developed after the end of the 37th week, considering the beginning of the count from the first day of the last normal menstruation". Some forensic scientists have also known abortions of uterine month, for any reason other than saving the life of the mother or fetus”.
Second-definition of abortion in jurisprudence and law The use of the word jurists does not depart from the linguistic meaning and is often expressed in terms such as projection, subtraction and stillbirth.
Abortion in the terminology is the projection of a woman's fetus by her or by the help of another person, and this meaning is commonly mentioned by scientists, and that the Shafiya frequently use the term "abortion".
The mufti of Al-Azhar defined him as "taking down the embryo before its normal development in his mother's abdomen"
English jurisprudence also defined it as "certified destruction of the fetus in the womb or premature birth with the intention of killing the fetus"
The Egyptian Court of Cassation defined abortion as "premeditated termination of pregnancy." 654
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It is noticeable on all the jurisprudential definitions mentioned that the same conditions must be met in order for the act to be considered an abortion and a criminal are:
Separation of the fetus from the uterus and discharge.
The separation of the fetus in the wrong time.
That separation of the fetus drived to the loss of his soul.
The separation of the fetus without necessity calls. Legal Definition: The Algerian legislator did not care about the definition of abortion, but in the Penal Code, means the persons authorized to carry it out are dealt with easily in Part II under the title "Criminalization" of the second book under the title "Felonies and Misdemeanors and their Penalties" in Part II under the title "Felonies". And misdemeanors against individuals "of Chapter II" felonies and misdemeanors against The family and public morals "of the first section under the title" abortion "in articles 304 to 313 and the staff has defined the crime of abortion and its penalties and the exception. Article 304 of the Penal Code states: "Any person who has aborted a pregnant woman or is supposed to be pregnant by giving her food, drinks or medicine, using methods or acts of violence or by any other means, whether she agrees or disagrees or attempts to do so, shall be punished," One to five years imprisonment and a financial penalty of 500 to 10,000 AD. If abortion leads to death, the penalty shall be temporary imprisonment from 10 to 20 years. The legislator mentioned persons who are abusive and easy to perform abortions due to the field and specialization in which they are subject to Article 305 of the Penal Code and made them penalties referred to articles 304 and 305 of the same law and can reach a maximum prison term with complementary penalties such as arrest Practicing the medical profession or pharmacy.
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Article 305 of the penal code reads as follows: "Doctors, midwives, dental surgeons, pharmacists, medical or dental students, pharmacy students, pharmacy users, drug makers, medical bandwidth manufacturers, surgical instruments dealers, nurses, and masseuses" Those who are guided, facilitated or performed abortion methods shall be subject to the penalties stipulated in articles 304 and 305, as the case may be, and the perpetrators may be sentenced to deprivation from practicing the profession provided for in article 23, as well as to being sentenced to prevent residence.
Second requirement: Types of abortions The views of physicians and others interested in fetal studies differed in the classification of abortion and distinguished among the most common.
Section 1 self-abortion or natural Abortion is done without the will of the mother, whether the cause is a mistake she has committed without being aware or departed, or physical condition suffered, or the incomplete elements of life for the fetus.
As is the case in mutilated embryos, doctors have determined that a large proportion of the aborted is automatically deformed.
This type of miscarriage can be caused by either miscarriage of the pregnancy itself, or pathological reasons such as maternal diseases such as syphilis, specific fevers or especially typhoid and typhoid reflux, as well as fetal diseases such as the infection of the parent's syphilis, placental diseases and membranes.
And spontaneous abortion is divided into different types such as:
1) Abortive or threatened abortion: Some pregnant women suffer from vaginal bleeding during the first trimester of pregnancy and sometimes accompanied by abdominal cramps and this is known as prognostic abortion. 656
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2) Inevitable abortion: In the membranes rupture & expand the cervix, which ends in the inevitable exit of the fetus and is characterized by severe bleeding blood lasting for 3 weeks.
3) Incomplete abortion: The bleeding is heavy and the remains of the placenta are present in the uterus and here the uterus expels part of the fetus before the 20th week of pregnancy.
4) Complete abortion: The cervix is closed, and the blood is slightly and may stop, and is called abortion in full if the uterus can subtract all its contents (fetus, placenta, fetal cyst) and then usually stops the vaginal bleeding uterus. The patient usually does not need treatment but is given uterine tablets, and antibiotics for several days after the abortion.
5) Missed or hidden abortion: It is in which the fetus is dead for two months or more and in this case gets bleeding in the uterus, and cut off the nutrition of the fetus die and remains a short or long period and then ejaculated by the uterus or removing out by doctor.
6) Repeated abortion: Recurrent miscarriage is defined as the occurrence of three consecutive or more abortions before 20 weeks of gestation, a problem experienced by 3 percent of women and increases with age over 35 years old.
Section II: Therapeutic abortion This is what may be done under the supervision of medicine to preserve the mother's life and health against the risk of pregnancy or childbirth.
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This type of abortion is not contrary to the law when some reasons are calling such as:
1. Cases of severe disease, which is dangerous if the mother continues to become pregnant;
2. The case of the doctor asserted that the fetus will be born deformed or deficient creation;
However, before performing a therapeutic abortion, the doctor must take certain measures to be legally protected:
- Consult a specialist in the disease suffered by the mother and takes the consent of the latter to conduct an abortion.
- Obtaining the written consent of the abortion by the woman and her husband
- Keep a full file on the health of the pregnant woman
- And therapeutic abortion is almost the subject of everyone's agreement on the necessity that surrounds him, because the rules of Islamic law and its purposes, separated treatment and medication It is a kind of treatment that the religion does not defend to carry out fetus to save the life of the mother in the necessary cases.
Section III: Criminal abortion Forensics defined criminal abortion as:
"Is removing the uterine proceeds from the pregnant woman, in any way, and for any reason other than saving the life of the mother, before the full months of pregnancy"
It is noted that criminal jurisprudence defines criminal abortion as: "is the emptying of pregnancy from the uterus at the time of natural deliberate, unnecessary, and by any means whatsoever"
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Public and private laws have penalized the perpetrator of criminal abortion and some penal laws have tightened the penalty if the perpetrator is a doctor, a bio-staff or a massage specialist.
This is what the Algerian legislator did when he referred the persons specified in article 306 to articles 304 and 305, each depending on his case. The second topic: Ways and means of abortions and the resulting damage There are many ways and means of abortion according to the situation in which the mother intends to abortion such as time and place where they are done, but the consequences are the same and are severe damage to society, family and women.
The first requirement: Methods and means of abortion The methods and means of abortion are several and different, including traditional and modern ones that appear with the development of medicine and biology, we will mention the most important known methods.
Section I: Methods of abortion
First, suction or absorption method: This method is the most widespread and extends the cervix slightly under local anesthesia, and then absorbed the fetus through the tube and this method is characterized by a lack of seriousness and avoid death and varies the failure rate of aspiration to remain parts of the placenta inside the uterus, which forces the doctor to perform curettage to extract the remains.
Secondly extraction and curettage method: This method has been applied for decades and is to extend the cervix by various means, and then a curettage which is the emptying of the uterine cavity by a metal machine in the vagina and emptied by 659
D.Hadia MESSIBAH- D.Meriem LACHAB the metal machine. It is often carried out by the doctor through the cervical duct after its enlargement and the other parts of the contents of the fetus, because staying in the uterus will cause different uterine bleeding.
Third, Massage Method: Massage is now so sophisticated with its modern techniques are being taught, and massage centers are increasing due to the widespread culture of agility and relaxation. There are several specialties of massage, including massage to provide relaxation , massage to lose weight and therapeutic massage to treat the nerves , muscles and cartilaginous spasms.
Some of them are done through the water bath and another by oils and various creams. Specialists in this field are constantly increasing and some of them have specialized courses abroad.
The legislator listed this category among the persons specified in Article 306 of the Penal Code, as these are who use their technical competence to deviate to carry out abortion.
Fourth, Abortion through Medicines: Some doctors and health workers now use medications to terminate a pregnancy; these medications lead to contraction of the uterus and push the pregnancy abroad.
The different ways of using these drugs, some of which are placed in the vagina and some of which swallowed or injected and mention the most important:
1) Progesterone antagonists Progesterone is a hormone necessary for the continuation of pregnancy, it prevents uterine contractions, and the removal of the yellow body from the ovary during the first two months, leads to its downfall.
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In 1981, abortion appeared to be a good substance inhibiting receptors
Progesterone in the uterus, which leads to the break-up of his lining, dilate the neck, and the appearance of uterine contractions
Also, Mifégine, which was banned for causing pregnancy and because the success rate of abortion does not exceed 80%, has been added to the substance prostaglandin, which raised the rate to 95 percent, but it, is very dangerous.
It causes severe bleeding, so it is only used in the first six weeks of pregnancy
Complications such as bleeding, digestive disorders and some side effects on the heart usually occur in some women if pregnancy does not fall, it is often distorted.
This drug is only given in special programs in clinics and hospitals, where women can be monitored for complications and treatment, and within two days a second drug such as misoprostol is used, and this usually causes complete abortion.
2) Prostaglandin: It is a mental substance found in most animal tissues, it has a dual role it works to reduce the uterine muscles on the one hand, and cause relaxation in the muscles of the cervix on the other.
This substance is synthetic and added to increase uterine contractions, and to extend the neck, which facilitates abortion and intravenous injections, or given in the form of vaginal clothing
Among the complications of prostaglandins, pain associated with uterine contractility, bleeding and some digestive and respiratory disorders. Prostaglandins lead to sepsis in 2% of cases, and digestive disorders in 5%. 661
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3) Misoprostol: Misoprostol is a medicine for stomach ulcers and can be used in the first trimester of pregnancy and the best effect is around the 12th week, Pills are placed in the vagina and do not swallow.
3. Methotrexate 4) It is an anti-cancer drug used with misoprostol to induce abortion, if abortion fails, it may cause severe birth defects.
Section II: means of abortion
Criminal abortion methods are divided into three sections:
1) Violence against the body in general: This violence is the work of violent sports or climbing stairs or descending frequently, in addition to wear belts, or carrying weightlifting or massages the abdomen heavily or fall from the top or jump.
It is noticeable that this method comes at the beginning of pregnancy, as it occurs abortion in women who are very sensitive to normal uterus exclusively other women.
2) Taking drugs harmful to pregnancy Women are taking drugs that have a direct effect on the uterus, such as guider or the use of severe irritants such as melon, cactus, kernel oil and fenugreek.
3) Assault on female genital organs Women usually resort to this method after failing in the previous two methods and are through the introduction of machines in the uterus and these methods depend on the skill of the person in charge of the abortion.
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There are other negative abortion methods, such as a woman's abstinence from food or a prescribed medication to stabilize pregnancy.
Second requirement: Damage caused by abortions It is natural that after the abortion will have several negative effects in many respects, most notably on society and on woman herself.
Section I: Damage of abortion on the community The danger of abortion on society is through the death of a sense of responsibility by seeking to achieve the longest period of illegal pleasure, which makes the proportion of spinsterhood on the rise and the proportion of marriage on the decline, due to the spread of sexual appeals and moral deviation and the death of conscience, so young people become interested only in their instincts And if the problem of pregnancy occurs with them they think about abortion and therefore will not consider marriage or to build a family.
It is also harmful to abortion, it represents an infringement on the right of the fetus to life, which makes offspring diminish and ruin.
It is assumed that even if this fetus is from an illegal relationship or as a result of rape, he has the right to life as long as the spirit has been inflated.
Allah said, "no burdened soul carries the burdens of another”, and said his majesty “There is no moving creature on earth but its sustenance depends on Allah. And he knows where it lives and where it rests. Everything is in a clear Book”.
And there are many illegal children have succeeded in social life and have achieved high degrees in society and therefore abortion is not the solution, but the solution lies in raising awareness and taking responsibility as a result of any mistake in this life.
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Abortion also harms society and encourages the deviation and corruption of the noble profession of medicine. It is recognized that it is characteristic of the doctor excellence of wisdom and noble ethics, but in the case of medicine has become a crime and encourages abortion; there is no good aspiration in this society as theft of human organs and trafficking.
Finally, we say that abortion is an objection to the will of Allah and fortunately, the Islamic law proves to the fetus many rights, such as the right to inheritance or descent or commandment, how to prove these rights, and ignore the most important rights, namely, the right to life. This right must be preserved, because it is the author of all rights. Section II: Psychological damage to abortion The moment of miscarriage is the woman's only goal is to get rid of the fetus in any way, which represents for her a shame and a threat to her community and her family as well as the lack of possibilities to take responsibility on her own and thus think of getting rid of this creature tied to her guts. Unfortunately, after the miscarriage, the woman has serious consequences, which are health and psychological damage. First: Health Damage Obviously, the health damage that occurs to a woman after an abortion has complications resulting from the violence that takes place on her body in order to achieve that process, either through the use of severe means or through the use of drugs or medicines. It is natural that this attack on the fetus, which is suspended by the guts of the mother and separated will lead to health damage to the mother, whether permanent or internal impairments, loss of the uterus and the destruction of the reproductive system and sometimes damage to the point of loss of life. Thus, women are an active element in society. If they cause themselves to perish, it will not be encouraging. Second: The psychological damage
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In the first before the abortion, the mirror is to avoid the scandal of getting rid of the fetus. The abortion process will show psychological crisis within hours of its occurrence and will intensify as time passes. Among the cases that can occur to women after the abortion, a state of reprimand, a sense of felling a criminal, a state of depression and loneliness, a state of feelings of grudge from society, a state of severe remorse. Every woman is reacting to these psychological effects. And some women are tortured by conscience and remorse up to suicide, so abortion was a crime punishable by law because it is total devastation.
Conclusions: Through the current study we have discussed the various definitions of abortion language and idiom according to which we have identified the types between natural self-abortion occurs automatically without being determined by the mother and therapeutic abortion determined by the doctor for the safety of the mother from a threat to her health or life or if the doctor asserts that the fetus will be born deformed.
Finally, criminal abortion, which is a criminal offense under the legislation and punishes the perpetrator, is carried out both by the doctor as a specialist in this area and here the penalty is severe.
The mother can also abort her fetus on her own or with the help of others by using means of suction and curettage or taking drugs and hormones stimulating to throw the fetus out of the womb.
And she can also abort herself by taking a negative attitude deliberately by refraining from following the recommendations of the doctor to stabilize the pregnancy or refusing to take a fixed medication for the fetus.
In any case, abortion has serious consequences for the society in general, which leads to tainting in the offspring, low marriage rate, high rate of celibacy, outrageousness, lack of motherhood and deviation of the medical profession to its noble purposes. 665
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But it still damage to the woman in particular, including damage to health and psychological difficult to count.
Thus, the legislator made abortion a crime punishable under the provisions of the Penal Code. References:
The believers, Surratt al Mum’ nun ;verse 12,13,14. Abd el Adim el shanawi, The lighter lump in Gharib big explanation of Rafi, Cairo, Egypt, 1977, p.113. La rousse dictionary, USUSEL,la rousse Library, Paris, France, 1980, p.80 (Abortion action). Youssef el Mesllway , essential obstetrics, el Anglo el Masria, 2000, p.35. Chahata Abd el Motaleb Hacen Ahmed , abortion between prohibition and legalization in Islamic jurisprudence, home of new university Egypt, p.13. See:www.anwar45.maktoobblog.com. See:www.jameataleman.org/ftawa/woman/wor/ Amira Adli AissaK, the criminal protection of fetus in new laws ALEXANDIA, Egypt, 2005,p.296. Ordnance number 156-66 dated of 21 Mo’ harem 1386 corresponding to 08 January 1966 includes penal law modified and completed. Djadwi Mohamed amine, the crime of abortion between religion and law, Magister in criminal science, university of law abi bakr bel kayed, Telemcen, year: 2009/2010, p.26. Oussama Ramadan el Amri, sexual crimes, pregnancy , abortion by the legal medicine optic Dar el jamiaa, Egypt, 2005.p82. El Zoubir El Zayn Yaakob, the opinion of Islamic religion of birth control, first edition, Dar El-jeel,bayrout,lebanon,1991, p.288. Ahmed Hoceini Taha, the explanation of penal law, private section, violence crimes on persons, El-Nour printing press, 2006, p.209. Mansour Omar El-Ayta, civil and penal responsibility of medical errors, first edition, Nayf university of security sciences, El-Ryad, the Arabic Saudi kingdom, 2004, p.93. Djadwi Mohamed amine, op.cit, p.34. ibid, p.34. Surat al-isra, verse 15. Surat Hud , verse 5. References list quran Books and authors 666
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Abd el Adim al Chanawi, the lighter lump in Gharib big explanation of rafai, Cairo, Egypt, 1977. Ahmed Hoceiny Taha, the explanation of penal law, private Section,Violance crimes against persons , printing press,2006. Amira adli aissa Khalid, the criminal protection of fetus in new laws Alexandria , Egypt, 2005. Chahata Abd el Motalib Hacen Ahmed, abortion between prohibition and legalization in Islamic jurisprudence, home of now university, egypt,2006 youssef el Mesllway, essential obstetrics, elmasria,2000. Mansour Omar el Ayta, civil and penal responsibility un medical errors, first Edition , Nayf university of security sciences, el Ryad, the Arabic Saudi kingdom, 2004. Oussama Ramdane el Amri, sexual crimes, pregnancy, abortion by legal medical optic, Dar el Jamiia, Egypt, 2005. Dictionary: La rousse dictionary USUEL, la rousse Library, paris, France, 1980 Theses Djadwi Mohamed Amine, the crime of abortion between religion and law, magister in criminal sciences, university Abi bakr Bel kayed, university of law, Telemcen, year 2009/2010. Legal texts: Ordnance number 156-66 dated the 21 moharem 1386 corresponding to 08 Jun 1966 includes penal law modified and completed. Websites: www.anwar45,maktoobblog.com www.jameataleman,org/ftawha/woman/wor/
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