فصلنامه حقوق پزشکی
پیاپی 30 (پاییز 1393)

Artificial insemination or vitro embryo is one of the Medical Scientifics’ achievements be used for helping the modern human being. This matter would governed by particular ethical and law rules that would be distinguished from rules governing on the other product of the human bodies. Although vitro embryo can be changed to the human and obtained personality، but before it becomes to fetus، can be taken account as property and legally transferred. Primarily، this research presumes vitro embryo as actual property and explains this issue relying on customary definition of vitro embryo’s being property or person. So we realize that there are conflicts between the rules governing on actual being property of vitro embryo، on the one hand and the rules governing on potential being person of it، on the other hand. This finding requires to be resolved the conflicts between two rules that are inconsistent with together and preferred one rule over the other by preponderant. In question of preponderance، although it seems the rules of its being person are preferred over the rules of its being property always، but it should be considered that embryo is a potential person and an actual property and that actual rules would be dominated over potential rules. The above discussion will lead us to understand determination of preponderances is difficult. It seems the solution of conflicts should be determined according to possibility of actualizing the potential. If it could be predicted that embryo becomes person and obtains personality in the future، thus potential being person of embryo is preponderant actual being property of it. However، the rules governing on actual being property of embryo are preponderant rules concerning to potential being person of it، if it appears impossibility of embryo becomes person and it is determined that essentially decision-making regarding to embryo has no connection with becoming person of embryo in the future.

In the light of remarkable advancement in medical science the use of medical treatment is increasingly using in order to overcome to the problem of infertility. One of the most popular of these medical treatments is the method of surrogacy. Surrogacy is an arrangement in which a woman carries and delivers a child for another couple. She may be the child''s genetic mother (the more traditional form of surrogacy) or she may carry the pregnancy to delivery after having an embryo with another female''s genetic transferred to her uterus. The intended parents may arrange a surrogate pregnancy because of female infertility or other medical issues which may make the pregnancy or delivery risky. The legal aspects surrounding surrogacy are very complex and mostly. The childes which were borne by the method of surrogacy have rights in the legal system. These rights involved financial rights such as allowance، heritance and non- financial rights such as training. The analysis of rights of childes which were born by surrogacy makes the legislature thin full about the legal aspects of surrogacy. The general aim of legislature should be the determination of legal status of these childes in order to prevent the future challenges which may produce through surrogacy. Since these childes like childes which were born by natural birth have civil rights. The analysis of their rights; from the date of pregnancy to the date of birth and even after birth is really necessary. This article concerns the rights of childes which were born by the method of surrogacy.

Recent advances of biotechnology in the cellular and genetic science have cause unpredictable challenges in the right of people in dominion and control over their body parts and tissues. The ability to study the genetic components of human tissues has increased their scientific importance and in return commercial exploitation of human tissue and samples has become one of the most urgent issues of the day. However، the legal status of human tissues and samples is unclear and thus the rights and powers of the individual on this tissue are uncertain. Comparative studies of law in various countries indicate that Change of attitude in this matter is irrefutable. Property right can be considered strong and significant legal instruments in Controlling and protecting the interests and rights of individuals in human tissues and samples. However، property rights، like any other right are not absolute and Legislator should limit this right based on public orde.

Revealing medical secrets is one of the most important topics in medical law، and has an ancient root in medical history and morality. Keeping patients'' secrets is one of the certain laws in internal and international laws and regulations of the most countries that have been recognized in patients'' bill of rights. Keeping patients'' secrets causes patients to confide in physicians and refer to them; disregard of this، causes unreliability of patients towards physicians and the lack of visiting them. Using medical records without patient''s permission is not lawful except the cases or the places where law allows for continuing his treatment or medical researches. Breach of this obligation، may cause harm to patient; so the domain of civil liability due to revealing medical secrets in Iran''s law and common law countries that have recognized this fact officially and the cases that make physicians legally or morally bound to keep patients'' secrets، are known and examined. Also the cases that physicians are allowed to reveal patients'' secrets are stated. In spite of recognizing civil liability for revealing medical secrets and terms of liability and compensation for damages legislatively in our country at compensation for damages due to revealing medical secrets، comparative studies about this subject with Iran''s law can be helpful. We don''t see such claims and orders in Iran''s judicial system practically and we need information and codification of up-to-date rules and regulations about it. Paying more attention to this fact is necessary، because keeping people''s privacy in today''s world، regarding ever-increase development of technology and communications industry have been very important and such topics are today''s society needs.

One of the pillars of civil liability is damage. Damage is divided into two categories: material damage and spiritual damage. Spiritual damage has been paid less attention than material damage and there are some disagreements as to eligibility to indemnify it. But sometimes the spiritual damage to a person who suffers loss is so severe that law science cannot be indifferent and the material compensation of at least part of it sounds essential. In the case called hemophilia، a number of compatriots claimed that after receiving blood and other blood products they got infected with AIDS or types of hepatitis، and in some cases both of them. These diseases have a profound negative impact on lives of infected people and part of this impact is spiritual damage caused by these diseases. From a medical standpoint there are several possible ways to get sick. But according to the common point of plaintiffs in receiving blood products from defendants، the weakness of other ways for transmission of diseases except for blood transfusion، the use of judicial circumstances evidence and proof by elimination، it is possible to determine common causation relation among blood transfusion، being infected and consequently the spiritual damage.

The right to health as an inherent right means that everyone has the right to have access to the highest standard of physical and mental health concluding medical care، public health، adequate food، adequate housing، clean environment and healthy workplace. Different aspects of health and health-related fields of various factors affecting on it cause it difficult to define. States are required to take measures in a wide area for providing the possibility of a healthy lifestyle that some of these obligations require immediate action and some take more times. Iranian legislation and regulations in health، as well as Adhering to international conventions is recognized and supported this right that seems explaining this regulation illustrates the place of this right in Iran legal system. In this article investigating the rules and regulations recognized this right we described the Concept and situation of the right to health in Iran legal system. Our findings show that existing some rules and regulations in this area cause to increasing the enjoyment of this right but to a criminal support is neglected.