Abortion punishment in Egyptian law
Abortion or abortion in Egyptian law is an offense against the right to life; it is often intended to terminate the fetus' right to future life. The Egyptian legislator has assigned him a separate section in the Penal Code, Chapter III, entitled: «Drop pregnant women and the manufacture and sale of drinks and adulterated gems harmful to health». Egyptian law did not establish a specific definition for the abortion of pregnant women (abortion); While the Egyptian Court of Cassation defined him as “deliberately terminating the pregnancy prematurely.” Abortion is a frequent crime in working life, yet it is rarely convicted in Egypt, because the crime depends on the element of invisibility and is not reported. , But discovered by chance, especially if abortion leads to the death of pregnant. Even if discovered, it is difficult to prove. The lack of convictions may also be caused by a judge's understanding of the social or economic circumstances that some mothers may call for abortion. This causes the judge to try to find the reasons for innocence or even withholding responsibility. Crime is considered a material rather than a formal crime for Egyptian law, because the harm caused to it affects an organism, even if an embryo has not yet emerged into the light of life. But if an embryo who had been separated from the womb was killed and made his way out, it was considered a murder rather than an abortion. The mere event in which the offense is formed is the elimination of an embryo inside the uterus, or eliminated by separating it from the uterus prematurely normal birth. Egyptian law does not penalize attempted abortion, although it is conceivable.Participation in abortion is also possible through methods of agreement, incitement or assistance that are not focused on the body of the pregnant woman.Otherwise, the offender is considered a genuine actor, not just a partner.
Corners
In order to say that an abortion has occurred, it is necessary to have an embryo whose right to future life is violated; In addition to the requirement of the presence of pregnancy, it requires the availability of a material corner and a moral corner for the crime of abortion.
Presumed corner: the presence of pregnancy
The supposed element of criminal activity here is a woman, and that woman is pregnant, because the place of abuse in the crime of abortion is originally the right of the fetus to live his future life. Therefore, it is assumed that there is an embryo in the womb of the woman is the act of abortion, whether by taking him alive before the date of birth, which often leads to his death, or killed in the womb, which requires ejected from him to preserve the life of the pregnant woman. However, it is not the woman who is the victim of the crime, but the pregnancy in it; This pregnancy is not a human being, because it has not yet seen the light of life, but it is not - at the same time - a mere part of the woman's abdomen or just a prelude to life, but rather a person, with evidence of his own growth, and evidence that he has a movement and a pulse appear even after some origins Pregnancy legally begins by fertilizing a man's sperm into a woman's egg. It is the beginning of the life of the fetus, which ends with the beginning of the birth process. Therefore, the scope of abortion crime is determined by the period between fertilization and the beginning of the birth process. There is no abortion before the beginning of the fertilization process, nor abortion after the beginning of the birth process, but begins the field of abuse of human life or the integrity of the body from the beginning of the birth process. The protection of the fetus' right to life begins from the moment of conception until the birth, without requiring a specific period of time to conceive. Therefore, Egyptian law considered that the removal of the fetus from the uterus by artificial means before the normal date of birth, even if the pregnancy in its early hours, is an abortion of the fetus. Accordingly, the Egyptian Court of Cassation rejected the legalization of abortion of a fetus who did not exceed four months despite the fact that Islamic law permits this, and that Article 60 of the Egyptian Penal Code permits what the law permits, stating that what is mentioned about the law in this regard is not a fixed asset in its evidence If the crime is based on the assumption of pregnancy when the abortion is committed, it means that if the woman is not pregnant, the crime does not occur, even if the perpetrator believes that the activity is carried out on a pregnant woman and his intention From the act of dropping her pregnancy. Article 264 of the Penal Code explicitly states that there is no punishment for attempted abortion, and that the absence of pregnancy is an absolute or legal impossibility to prevent the attempted crime.
Physical corner
The elements of the physical corner of abortion are three: the act of abortion, its outcome (fetal exit from the uterus), and the causal relationship between the act of abortion and its outcome.
The act of abortion
It is any act that will remove the fetus from the uterus before the normal date of birth. The law referred to some means of abortion, to name a few; mentioning beatings or other forms of abuse, medications or means leading to abortion. The use of a method of premature removal of the fetus is a legal criterion for distinguishing between legally punished abortions, natural abortion resulting from a particular disease, physical impairment or excessive effort, and premature birth, which leads to the fetal premature exit automatically without the use of any external means.
Abortion methods include:
Medical means such as surgery, or non-medical, such as the use of violence, beatings or other means of physical harm; Chemical means that cause contractions in the muscles of the uterus, which leads to the removal of the fetus or kill him inside the uterus in preparation for ejection. Some means that take an innocent appearance that conceal the truth of their purpose, such as massaging the body of a pregnant woman, or exercising a violent sport such as jumping, dancing or riding, or wearing tight clothes that put pressure on her body in such a way that leads to an abortion. , As long as it was Pregnant refrain from preventing others from doing an abortion on her body. The law referred to this by saying: Or «enabled other means to use them».
Fetal exit prematurely
The exit of the fetus from the uterus before the normal date of birth is the result criminalized by law. And even if the fetus came out dead, or left alive but not viable, without it does not bring the crime of abortion. It is not punishable by law. If the pregnancy is discharged from the mother by the abortion and remains alive, the crime of abortion does not materialize; rather, the act is considered to be an acceleration of the birth. The crime of beating, injuring or giving harmful substances that led to death. If the fetus is discharged and the mother dies, the offenses of miscarriage, beatings, wounding, or the giving of harmful substances that lead to death are realized. In this case, the most severe crime shall be punished.
Causal relationship
There must be a causal relationship between the use of abortion methods of any kind, and the fetus coming out of the mother's womb dead or viable before the normal date of birth. In other words, the aborted method should be the cause of fetal death; abortion should not be due to a natural cause other than that. Otherwise, the material element of the crime of abortion is incomplete and hence non-existent. The subject-matter judge has discretion, in accordance with general rules, to determine whether the causal relationship between the accused's activity and the criminal outcome is available.
Moral pillar: criminal intent
Abortion in all its forms is an intentional crime whose moral corner is the criminal intent of the perpetrator's will to depart from the material act constituting the crime as defined by law. Therefore, an abortion is not an accidental error that leads to the removal of the fetus before the date of birth, even if this error is serious; because of the absence of criminal intent of the accused of abortion, and his responsibility is limited to unintentional injury. The criminal intent of abortion requires that the defendant be a scientist - at the time of his or her commission - with the presence of pregnancy. If he does come to a woman who is unaware that she is pregnant, and as a result of such an act she will have an abortion, then his criminal intent is no longer available. For example, a woman who is unaware that she is pregnant in her first month, in order to harm her, beats her by dropping her. The accused must know the seriousness of his act on the life of the fetus. For example, anyone who incites a woman to know that she is being forced to engage in violent sports, without being aware of the danger of this practice for her pregnancy, is no longer responsible for abortion. The defendant's will must be directed to remove the fetus from the womb before the due date of birth, a criminal offense for abortion. Accordingly, the criminal intent of those who beat his wife with the intention of disciplining her, knowing of her pregnancy, without the intention of abortion. Moreover, the criminal intent of the person who pays the pregnant woman does not fall from a high place on the ground, which leads to her abortion without wanting this result (in this case the incident is a mere beating) and in accordance with the general rule in Egyptian law that the perpetrator does not enter In elements of criminal intent, there are no motives for abortion, if criminal intent is achieved. This means that the quality of the motive does not affect the abortion in the punishment, whether abortion is motivated by revenge, or by the protection of honor and consideration (such as pregnancy is the result of an illegal sexual relationship; Unable to bear it, or from a pregnancy feared to lead to the birth of a deformed or seriously ill child, or to fatigue of the mother in circumstances other than those prescribed by law.
His punishment
Originally, abortion is a misdemeanor, punishable by imprisonment, but it may be a felony.
As wings
Articles 261 and 262 of the Egyptian Penal Code provide for abortion as an offense.
According to Article 261
Whoever intentionally drops a pregnant woman by giving her medications, by using means leading to it, or by indicating her, whether by consent or not, shall be punished by imprisonment.
The aforementioned provision assumes that the abovementioned abortion pillars are available and that the accused is a non-pregnant person whose pregnancy has been dropped by a man or woman. However, it must not be a doctor, surgeon, pharmacist or midwife, because the availability of this capacity makes abortion a felony rather than a misdemeanor. It also requires that, in order to implement the text of the article, abortion be stripped of violence because article 261 of the Penal Code speaks of giving drugs or using non-violent means of abortion;
The Egyptian legislator considered that those who instruct the pregnant woman on abortion methods are effective for the crime of abortion, explicitly, not just a partner. This provision is considered a violation of the general rules in Egyptian law regarding the distinction between the actor and the partner, and it follows that any pregnant woman indicating the method of abortion shall be punished for the crime of abortion, even if the pregnant woman does not use that method in abortion. Moreover, a pregnant woman who uses the means indicated by the accused is not considered a partner in his crime; rather, she is considered an active offender of the same pregnancy, which is stipulated in article 262 of the Egyptian Penal Code. For the offense of abortion provided for in Article 261, the penalty shall be that the pregnant woman has consented to initiate the abortion or not because the consent of the pregnant woman to abortion is not one of the reasons for permitting it.
According to Article 262
Abortion In Egyptian law, a woman who consents to the use of medication with her knowledge or consent to the use of the aforementioned means, or has enabled the use of such methods for her, and the fact that such a projection is caused, is punishable by the aforementioned penalty.
Abortion in Egyptian Law
For this crime, the legislator requires the availability of the elements of the projection described in Article 260.
This provision establishes the punishment of a pregnant woman who accepts the use of medication or accepts the use of abortion when the abortion has already occurred. It is self-evident that article 262 penalties also include the case of the abolition of a woman herself without incitement or evidence of abortion, because if the punishment of the woman who drops herself, or the use of means to do so, is subject to the requirement to offer them and accept them As the apparent provision of article 262 suggests, this would exempt women from punishment for abortion if they committed it voluntarily without the guidance of anyone, and punish them for dropping herself only in the case that others would refer to abortion. It is a consequence that the author of the text could not have turned to the unreasonable. There is no lesson in the abortion method used by a woman to project herself; the crime remains a misdemeanor for her, even if she drops herself "with beatings or other forms of abuse"; Punishment for abortion only if the projector is not pregnant itself. Anyone who falls pregnant with her consent through violence is not an offense; it is a felony under article 260 of the Penal Code. This means that the reference to the aforementioned means in article 262 refers to the means of violence and other means if the woman herself uses them herself, and the Egyptian legislator has punished the misdemeanor of the abortion by imprisonment between the two public limits, which leaves the judge with wide discretion in determining the duration of imprisonment between the two. There is no punishment for embarking on this misdemeanor by explicit provision.
As a felony
Abortion is a felony if one of the aggravating circumstances provided for in articles 260 and 263 of the Egyptian Penal Code is available. The offenses of abortion are punishable by aggravated imprisonment between the two general limits. However, attempting this felony remains unpunished because article 264 of the Egyptian Penal Code decides not to punish attempted abortion, whether misdemeanor or felony.
Emphasis by abortion method
Whoever intentionally topples a pregnant woman with beatings or other forms of abuse, shall be punished with aggravated imprisonment.
Abortion in Egyptian Law
This article assumes that the elements of abortion are available, and then committed by violent means.
This is the only case in which Egyptian law has violated abortion and the seriousness and harm it affects the integrity of the pregnant woman. This article also assumes that the abortion perpetrator is a non-pregnant woman who has aborted her pregnancy, whether the consent of the pregnant woman to use violence to overthrow her or not to be satisfied; It is permissible if the pregnant woman is satisfied, which no one has said. This means that the circumstance of violence intensifies the punishment of the accused who drops the pregnant woman with beatings or other forms of abuse, whether it is done with the consent of the pregnant woman or without her consent. The law does not require in the violent means of severe punishment for abortion to seriously affect the body of the pregnant woman; Physical pain in her body. The law does not require a specific form of such means; all means of violence are leveled to achieve the aggravating circumstance; whether it is beaten by hand, kicked by the foot, beaten with a particular device such as a rope or stick, throwing the pregnant woman from a high place, or other forms of violence. The law does not require acts of violence to be committed by the perpetrator himself; rather, the perpetrator may coerce the pregnant woman - materially or morally - to commit acts of violence on herself, such as a husband who forces his pregnant wife to jump from a high place with a view to dropping her pregnancy, achieving its purpose. Acts of violence may be committed by a criminally irresponsible person at the instigation of the perpetrator, such as a husband who incites his young son to hit his mother with a big stick on her stomach in order to abort her pregnancy, and has achieved the result he wanted.
Emphasis according to the character of the offender
Abortion in Egyptian law If Muscat is a doctor, surgeon, pharmacist or midwife, he will be sentenced to a maximum prison term.
Abortion in Egyptian Law
This circumstance assumes that there are elements of abortion, and that the accused is not a pregnant woman who has been dropped;
If a pregnant woman drops herself, and she is one of the professions mentioned in the text, she does not stress her punishment, but abortion is considered a misdemeanor according to article 262 of the Egyptian Penal Code. It is easy for him to commit an abortion because of his technical expertise, and the means and drugs that he can do without often leaving a trace of his crime. In addition, the accused abuses his capacity and expertise beyond what should be used for the legitimate purposes of serving the community, not encouraging abortion and facilitating recourse to it. Women often avoid abortion if they do not secure its consequences, unlike whether they are medical professionals, this encourages them to have an abortion because of the insurance against the risks of abortion and the consequences that may lead to the death of women. To intensify punishment, the law requires that a physician, or similar medical practitioners, have professionally performed abortions; it even intensifies punishment even if someone performs the abortion for the first time. Nor does the law require, in order to intensify the punishment, that the defendant receive a remuneration for the operation; abortion may be done as a courtesy; The article mentioned medical professionals, who apply strictly exclusively, namely: «doctor, surgeon, pharmacist, midwife». Therefore, it is not permissible to measure them, even if the status of the accused has facilitated him to commit abortion;
Permit it
Abortion in Egypt is permissible to save a pregnant woman from a grave danger such as death, so that abortion is the only way to push this risk. This is on the basis that the danger - in this case - is an obstacle to criminal responsibility according to Egyptian law; "because it is more appropriate for society to keep a woman beneficial to the family than to eliminate them for the sake of unborn pregnancy."
If the abortion is a doctor or surgeon, it is permissible as an exercise of the right to engage in medical work.
Public sources
Articles of the Egyptian Penal Code, as amended by Law No. 95 of 2003.
Judgments of the Egyptian Court of Cassation.
Crimes of Assault on Persons and Money, Prof. Fattouh Abdullah Al-Shazly, University Press, 2010, Alexandria.
Explanation of the Penal Code (Special Section), Prof. Fattouh Abdullah Al-Shazly, University Press, 1994, Alexandria.
Special Section in the Penal Code (Aggression on State Security - Aggression against People in Their Persons and Money), Prof. Ramses Behnam, Facility of Knowledge, 1982, Alexandria.
Modern Criminal Encyclopedia in Explaining the Penal Code - Part III, Counselor Ihab Abdelmutallab, National Center for Legal Publications, First Edition, 2004.
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