Author
Tunalı, Işıl Güney
Publication Date
2014
Subject
Criminal liability, Doctor preference, Physician patient relations, Physicians, Pregnancy terminations, Legal responsibility
Type
Document
Language
Turkish
Digital
Yes
Manuscript
No
Library
Özyeğin University
Record ID
5cbe62ad-59fd-4f7e-9c26-124e0bf63a7f
Library Location
Department of Private Law
Date
2014
Sample Text
Termination of pregnancies is an issue that has been discussed for thousands of years in many fields such as medicine, law, ethics, philosophy and religion. Although approaches and perspectives vary according to time and place, it is known that neither completely allowing the termination of pregnancies nor imposing excessive restrictions will be a solution. Although it varies from country to country, the laws of almost every country, including our country, allow the termination of pregnancies under certain conditions, and in cases where these conditions are not met, people who terminate the pregnancy are held responsible. Although it is possible to terminate pregnancies by any method by any person and brings with it responsibility, the issue that has been on the agenda and attracts the attention of the public, especially in recent times, is the actions of physicians that constitute medical intervention towards the termination of pregnancies. In this study, the possible responsibilities of physicians in both private law and criminal law due to termination of pregnancies are discussed. Private law liability for termination of pregnancies may arise from a contractual relationship established between the physician and the pregnant woman or her legal representative, tort, or acting without authority, in parallel with the physician's private law liability in general. In addition, strict liability of the physician may be imposed in accordance with the relevant articles of the Turkish Code of Obligations. The healthcare institution where the intervention took place may also be held responsible for the physician's fault, as well as for breach of contract. In order for compensation to be awarded due to termination of pregnancies, there must be an illegality, damage, fault and causality in accordance with the general liability provisions. In the study, these issues were discussed with examples from medical practice, and the features of proof and the calculation of compensation were also emphasized. In terms of the criminal liability of physicians arising from the termination of pregnancies, the crimes of miscarriage and miscarriage in Articles 99 and 100 of the Turkish Penal Code have been examined. The most important issues that should be taken into consideration to ensure that physicians do not commit crimes, do not harm their patients, and do not expose themselves to liability are especially the consideration of the Provisions of the Law on Population Planning, obtaining the informed consent of the patient, not attempting any intervention without consent, outside the jurisdiction and without indication, and keeping a complete record of what is done., The termination of the pregnancies has been a topic of discussion in the fields like medicine, law, ethics, philosophy, religion since thousands of years. Though the points of view and approaches show variabilities depending on time and place, it is generally known, that neither to allow nor to restrict abortions by all means can be a solution. For this reason, almost all the legal systems of the coutries, including also ours, allow abortions only under certain circumstances and people who perform an abortion not conforming to these conditions are held responsible. Though the abortions performed by anyone using any kind of methods lead also to one's responsibility, the issue which especially attracts public attention and brings out a discussion in recent times is the medical interventions of the doctors for performing an abortion. In this study the responsibility of the doctors is handled both from the aspect of private law and criminal law. In private law, responsibility regarding abortions, may derive from contract between the doctor and pregnant woman or her legal representative, from tort and from acting without authority. Additionally, according to the related articles of the Turkish Obligations Code absolute liability of the doctor may also be in the question. Besides, the private hospital, where the abortion was performed, can also be held responsible on the basis of contract or absolute liability. In order to rule for a compensation, four components, opposition to law, damage, fault, and causality should exist. In this study, these matters are handled in accompanying of examples from medical and legal practice and additionally, characteristics related to the proving process and to the calculation of the compensation are elaborated. In terms of criminal responsibility of the doctors related to pregnancy termination, the Abortion and Miscarriage Offenses, which are regulated respectively in Article 99 and Article 100 of Turkish Penal Code, are elaborated from various aspects. In order to prevent the doctors to commit crime and to cause damage to their patients, and to inform them how to avoid responsibility, to act in accordance with the provisions of the Population Regulation Act, to get the informed consent of the patient, not perform any medical intervention without informed consent, without indication or without authority and to record everything completely are emphasized as the most important issues to be considered.
