فصلنامه حقوق پزشکی
پیاپی 37 (تابستان 1395)

Right to health is a fundamental right that has been mentioned in several international and regional documents and national laws. Since the beginning of the codification of human rights documents, there have been some challenges about justisiability of Economic, Social and Cultural rights including the right to health as one of the most important components of these rights. This led to the ignorance of these rights by the governments and the issue turned into a mean for justifying the violation of human rights of people.
In this article, justiciability of the right to health in international system was examined by looking to available studies and relevant legal documents in international law system and the related interpretations by different authorities. The results showed that substantially the right to health is a justiciable right that has been litigated many times in international, regional and national courts. Therefore the governments should realize the minimum necessities for health of the individuals as an inevitable obligation and they should use all the necessary means including administrative, legal, financial and judicial ones in this regard.

The right to health is a component of citizens’ fundamental rights in each political society. Citizens as society members, due to their citizenship, have the right and merit to benefit from these rights, regardless of their racial, religious, political and cultural views. These rights, which are generally related to humans’ right to life, has a meaningful relationship with other kinds of human rights. Accordingly, governments’ attention to citizens’ right to health is an important issue regardless of their political structure. Existence of significant number of international legal acts and treaties related to the right to health, as well as countries’ internal laws and regulations associated with this issue provide proof for this claim. However, the history of activities of governments and Public law entities in regulating laws in the field of health, indicate that individuals and organizations who are responsible for health issues have a lack of essential and comprehensive knowledge of public health and also shows ignorance of governments’ challenges and requirements to regulate public health. In this article, we tried to introduce right to health as a citizenship rights. We also tried to analyze governments’ challenges and requirements in health regulation.

Genetic discrimination as a crisis for modern human has influenced its life in personal or social aspects. The problem of genetic discrimination and the rights for individuals with genetic anomalies, is one of the most important issues in this century. With advancements of genetics and as new therapies become available, the usefulness of genetic testing undoubtedly will increase and concomitant with these benefits are prospective harms that can arise from the use of information derived from predictive genetic testing to discriminate against employees. This Article, after explaining the concept of genetic discrimination and its affect on insurance and employment, causes of genetic discrimination, manifestations and extent, studies genetic discrimination as a clear example of human rights violations and then examines international legal instruments to deal with it as well as the role of governments in setting national laws and regulations. It also scrutinises how to enhance the implementation of domestic legislation and international law. At last, this Article analyzes the protection of privacy and government positions against it.

"Sabr and Taghsim" is a method which is utilized by jurists to achieve the cause in "Mostanbetol Elleh" analogy. Since the result of this method is to arouse suspicion and not to provide knowledge, it has mostly been neglected. But among different branches of law, civil liability enjoys more flexibility and it doesn’t always require absolute knowledge. This feature is more distinctive especially in determining the cause from probable causes. Because if we assume that the creation of responsibility is subjected to knowledge, many civil liability cases in sequence may be limited and a lot of damage remain uncompensated. "Sabr and Taghsim" could be helpful for victims of civil liability cases. The similar argument in French law named "proof of elimination" has been used in the civil liability. This approach has been utilized in Iran and France in determining the cause in the contaminated blood case. It seems that "Sabr and Taghsim" is so practical here; since in determining the cause we are looking for a factor which enjoys more possibility for being damaging.

Prosecuting HIV Transmission by Muharaba & Ifsad-Fel-Arz depends on spreading AIDS in a vast area without particular attention to specific victims. Because using any kinds of weapons is a required condition for committing Muharaba based on Article 279 Iranian Islamic Penal Code. Therefore, in order to prosecute HIV mass transmission by Muharaba, we should either argue that there is no necessity for using weapons to prosecute Muharaba, and only disturbing social safety is sufficient condition. Thus, what mentions in Article 279 is only an instance for this crime or we suppose HIV as a kind of weapon. In this respect, plenty of United States courts have accepted HIV as a dangerous weapon. If by any reason one may believe in impossibility of prosecuting HIV transmission by Muharaba, prosecution of HIV transmission by Ifsad-Fel_Arz (Article 286) is reasonable because spreading HIV virus in society is supposed as "crimes against physical integrity of people" and "spreading poisonous and dangerous substances" as well as "disturbing community order and safety" which results in "inflicting huge damage to individuals physical integrity".

The child’s right to receive alimony from his parents, is one of the basic human rights, which has been seriously challenged by the arrival of new technologies of reproduction. This paper seeks to answer questions and challenges about alimony of cloned Child. In this regard, the theoretical foundation of entitlement to alimony- such as the theory of compliance with legal parentage and compliance of alimony with conventional parity, theory of contractual nature of alimony, and theory of having credit and legal origin have been analyzed and explicated. Then, cloned child’s alimony is discussed based on different assumptions such as cloning with couple of cells, cells stranger, an alien egg, a fetus alimony in during pregnancy and alimony of child in embryo donation and clonic without the interference of man. By analyzing the legal opinions, laws and spirit of the law. The article concludes that alimony payments depend on child’s well-being rather than the legal parentage. The obligation to pay alimony is for the legal father who is the owner of the cell nucleus. And, in the event of non-payment or agreement, transference of the embryo recipients and those who are committed to get the child simulation is preferred.

Among the most important challenges facing the patients and managers in health system is the issue of receiving additional charges known as “kickbacks”. Despite the fact that legislators have generally considered this act as illegal, there is a different judicial ruling because the nature of treatment contracts in private centers such as offices and public centers differs from each other. This article investigates the judicial ruling on receiving kickbacks in state centers.
This is a retrospective study based on extensive literature survey.
Findings: Referring to some other evidence, some argue that the illegitimacy of bribery is only in legal cases and in non-legal cases such as medicine, it is permissible. Others, however, believe that in the issue of emergencies, based on common sense the person under pressure has agreed to such contract, it is considered as valid and cannot be regarded as ill-gotten or illegal money.
From the judicial point of view, in these cases, the doctor becomes a party hired through the contract made by the hospitals or other public centers and since he has no direct financial relation with the patient, his receiving the kickbacks cannot be justified judicially or legally because he is employed by the government and is required to receive the amount of money stated in the contract. Therefore, taking any kickbacks is considered as ill-gotten money and as a result it is regarded illegal and unlawful. However, some of the jurists have allowed for it provided that the patient himself consents to paying additional money. It seems that a patient has no option but to consent to such terms because of the emergency situation he is in and such a ruling is null and void and it is still considered as illegal.