The Journal of Critical Analysis of Judicial Decisions

The Journal of Critical Analysis of Judicial Decisions

Violation of the Right to Lawful Therapeutic Abortion: Civil Liability of Physicians for Negligence Leading to Failure in Performing a Permissible Fetal Termination

Document Type : Original Article

Author
assistant prof, Refah
10.22034/analysis.2026.2080180.1163
Abstract
This study employs a documentary, descriptive, and analytical research methodology to examine the judicial verdict which addresses civil liability arising from a physician’s diagnostic and procedural error in the termination of a pregnancy — specifically, the wrongful termination of a fetus with thalassemia minor while retaining a fetus with thalassemia major, a condition legally eligible for therapeutic abortion. The primary objective of this research is to assess the legal legitimacy of claims for material and non-material damages by the parents and the subsequently born child, following the physician’s negligence in identifying and executing a legally permissible therapeutic abortion. This study demonstrates that the harm suffered is not a bodily injury attributable to the physician’s direct conduct, but rather a civil wrong stemming from the deprivation of a legally recognized opportunity to terminate a pregnancy under statutory conditions. Consequently, the application of diyah and ‘arsh (compensation for bodily impairment) — legal remedies designed exclusively for bodily harm resulting from direct or contributory fault — is both inappropriate and legally unsound, as the thalassemia major and associated limb malformations are congenital and genetically determined, with no causal link to the physician’s actions. Nevertheless, a clear conventional causal nexus is established between the physician’s negligence and the resulting damages, as the failure to perform a lawful abortion directly deprived the parents of their statutory right to avoid the birth of a severely affected child. The trial court, however, erroneously relied on diyah as a compensatory mechanism, thereby overlooking the conventional causal relationship and imposing a lump-sum compensation without distinguishing between the parents’ and the child’s distinct damages, or accounting for the lifelong, continuous nature of the harm. Although the appellate court correctly affirmed the jurisdiction of civil courts over such claims and explicitly recognized non-material damages, it abstained from providing an operational framework for ongoing, periodic compensation. The study concludes that the legal recognition of therapeutic abortion establishes a corresponding legal right to claim damages when that right is unlawfully denied due to physician negligence. Compensation for such harm must therefore not be calculated through the rigid, lump-sum model of diyah, but rather through a dynamic, periodic, and expert-based assessment aligned with the evolving medical, financial, and psychosocial needs of the child and family over their lifetime.
Keywords

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