In accordance with Egyptian law, abortion is considered a criminal act that violates the right to life,Dr. Fattouh Abdullah Al-Shazly. Commentary on the Penal Code (Special Section). p. 587. .Modern Criminal Encyclopedia, Counselor Ihab Abdulmuttalib, p. 847. as it is often intended to terminate the fetus' right to future life. The Egyptian legislature has dedicated a separate chapter in the Penal Code, Title III, titled "Abortion of Pregnant Women and the Manufacture and Sale of Adulterated Drinks Harmful to Health."Articles 260 through 265 of the Egyptian Penal Code Egyptian law does not explicitly define abortion.Crimes against persons and property, Prof. Dr. Fattouh Abdullah Al-Shazli, p. 115Commentary on the Penal Code (Special Section), Prof. Dr. Fattouh Abdullah Al-Shazly, p. 587 Instead, it outlines the various forms of abortion and the corresponding penalties. The Egyptian Court of Cassation defines it as "deliberately terminating a pregnancy prematurely."
Abortion is prevalent, but rarely prosecuted in Egypt. This is because abortion relies on the element of concealment and is not reported, rather, it is discovered by chance, particularly if the abortion results in the death of the pregnant woman. Even if they are identified, it is challenging to provide concrete evidence to substantiate their existence. The absence of convictions may also be attributed to the judge's comprehension of the social and economic circumstances that may prompt some mothers to seek abortion as a solution. This prompts the judge to attempt to identify reasons for innocence or even a lack of responsibility.
In Egyptian law, abortion is considered a material rather than a formal offense, as the resulting harm is inflicted on a living organism, even if it is a fetus that has not yet emerged into life. Nevertheless, if a fetus that has already separated from the uterus and is on its way out is killed, the act is regarded as murder rather than abortion.Special Section of the Penal Code, Dr. Ramses Behnam, p. 368 The essential element of the crime is the termination of a fetus within the uterus, or the removal of a fetus from the uterus prior to the natural time of birth. Egyptian law does not impose penalties for attempted abortion. However, complicity in abortion is possible through methods of agreement, incitement, or assistance that do not involve the pregnant woman's body. In such cases, the perpetrator would be considered a principal rather than a mere accomplice.
In 1998, Muhammad Sayyid Tantawy, the Grand Imam of al-Azhar, issued a fatwa calling for access to abortion for unmarried women who had been raped. In 2004, he approved a draft bill that would permit abortion in the case of rape; the bill was unsuccessful.
Due to these legal restrictions, unsafe abortions in Egypt are common; carried out by indigenous methods, at clandestine clinics, or by private gynecologists. One study found that about 20% of obstetric hospital admissions were for post-abortion treatment. Another study estimated that between 1995 and 2000, there were 2,542 maternal deaths in the country due to unsafe abortions. Consequently, prevalence is hard to assess. In a 2000 study of 1,025 women from six villages in Upper Egypt, approximately 40% were found to have had at least one abortion; among this group, there were 265 abortions per 1000 live births.
Components
The occurrence of an abortion necessitates the existence of a fetus whose right to future life has been infringed.Crimes against persons and property, Prof. Dr. Fattouh Abdullah Al-Shazli, p. 116Modern Criminal Encyclopedia, Counselor Ihab Abdulmuttalib, p. 848. This is because the fetus is entitled to undergo normal development within the womb until its natural date of birth. In addition to the condition of pregnancy, the crime of abortion can only be committed if there is both a material and a moral element present.
Presumed component: Presence of pregnancy The presumed perpetrator of this criminal activity is a female individual, who is presumed to be pregnant. The violation in question is that of the fetus's right to live its life. Consequently, a fetus in a woman's womb is presumed to be subject to the act of abortion, either by removing it from the womb before its due date, which often results in its death, or by killing it in the womb, which requires it to be removed in order to save the pregnant woman's life. However, the victim of the crime is not the woman herself, but rather her unborn child. Consequently, abortion is included in the category of crimes that violate the right to life. In the law it is considered that this pregnancy is not a human being because it has not yet seen life. Judicial discourse frames abortion cases in technical legal terms, favoring secular arguments, with moral or religious arguments being less frequently cited; it does not equate abortion with other crimes, framing it separately from other crimes, while still legally condemning it.
The legal definition of pregnancy is the fertilization of an ovum by a spermatozoon. This marks the commencement of the embryo's life, which concludes with the birth process. Accordingly, the temporal scope of the criminal act of abortion is delineated by the interval between fertilization and the commencement of the birthing process. The termination of pregnancy prior to the occurrence of fertilization is not considered an abortion,The use of contraceptive methods, regardless of their form or effect, is not considered an abortion. nor is the termination of pregnancy subsequent to the onset of childbirth. Rather, the sphere of attack on human life or bodily integrity commences at the onset of childbirth. The legal protection of the fetus' right to life begins at the moment of fertilisation until the moment of birth, and does not require a specific period of time following fertilisation. Accordingly, Egyptian law defines the removal of the fetus from the uterus by artificial means prior to the normal time of birth, even in the earliest stages of pregnancy, as a fetal abortion.Modern Criminal Encyclopedia, Counselor Ihab Abdulmuttalib, p. 849. The Egyptian Court of Cassation has ruled that terminating a pregnancy before the fourth month of gestation is not permitted under Islamic law. Furthermore, Article 60 of the Egyptian Penal Code permits actions that are permitted by Islamic law, stating that the Sharia's position on this matter is not a firmly established principle based on evidence, but rather an interpretation by jurists that has generated differing opinions among them.
If the offense is based on the presumption that a pregnancy exists at the moment the act of abortion is committed, then the act is not considered criminal if the pregnant woman is not in fact pregnant. The perpetrator must have believed that they were acting on a pregnant woman and intended to terminate her pregnancy.Special Section of the Penal Code, Dr. Ramses Behnam, p. 369Crimes against persons and property, Prof. Dr. Fattouh Abdullah Al-Shazli, p. 117 Article 264 of the Penal Code explicitly states that attempted abortion is not punishable. This is because the absence of pregnancy is an absolute or legal impossibility that prevents the attempted crime from materializing.
Physical component The components of the physical element of abortion are threefold: The act of abortion, the result of the abortion (the fetus leaving the womb), and the causation between the act and the result of the abortion are the elements of the physical element of abortion.
The act of abortion It can be defined as the deliberate removal of the fetus from the uterus before the normal gestation period has elapsed.Crimes against persons and property, Prof. Dr. Fattouh Abdullah Al-Shazli, p. 118 The legislation in question encompasses a number of methods of abortion, including, but not limited to, physical violence and the use of pharmaceuticals or other techniques that result in the termination of pregnancy. The distinction between a legally punishable abortion, a miscarriage resulting from a specific medical condition, physical weakness or exertional stress, and a spontaneous birth in which the fetus is expelled naturally without the intervention of external forces, hinges on the method utilized to facilitate this process.
Methods of abortion
Medical means, such as surgery, or non-medical means, such as the use of violence, beating, or other means of physical abuse. Chemical agents that cause uterine muscle contractions, resulting in the removal of the fetus or the killing of the fetus inside the uterus in preparation for removal. Mechanical means is the utilization of a machine or tool to dislodge or eliminate the fetus from the uterus.Special Section of the Penal Code, Dr. Ramses Behnam, p. 370 Some methods appear innocuous but in fact serve to conceal their true purpose. This is the case with massaging the pregnant woman's body, engaging in violent sports such as jumping, dancing, or horseback riding, or wearing tight clothes that exert pressure on the body and may result in an abortion. Means of psychological or moral abuse that lead to induced abortions, provided that the intention of their use is to cause an abortion.Article 261 of the Egyptian Penal Code penalizes the abortion of a pregnant woman by using means conducive to this, without specifying the means or their form. This is consistent with some Muslim jurists who have ruled that anyone who insults a woman in a way that causes her to miscarry is liable for the woman's abortion. The pregnant woman's refusal to take action to prevent others from performing an abortion on her body. In legal terminology, this is referred to as: "She facilitated the utilization of such methods on her own body."
Premature labor
The premature exit of the fetus from the womb is a criminalized act under the law.Crimes against persons and property, Prof. Dr. Fattouh Abdullah Al-Shazli, p. 119 The crime of abortion is committed regardless of whether the fetus is born alive or dead. In the latter case, the fetus is not viable, which is necessary for the crime to be realized. The act of attempted abortion is not a criminal offense under the law. Nevertheless, if the pregnancy is terminated in the mother through abortion and the fetus survives, the crime of abortion is not committed; rather, the act is regarded as a premature induction of labor.
If the means used to terminate the pregnancy result in the death of the pregnant woman while the pregnancy remains in her womb, the crime of abortion is not committed. Rather, the crime of beating, wounding, or administering harmful substances leading to death is committed.The Egyptian Court of Cassation did not concur with this interpretation, however, and determined that the crime of abortion had been committed in this hypothetical scenario. The court ruled that the elements of the crime were fulfilled even if the pregnancy remained in the uterus of the pregnant woman due to her death, and that the term "miscarriage" used in the law did not indicate that the exit of the pregnancy from the uterus was an element of the crime in this case. In the event that the fetus is expelled and the mother subsequently dies, the offenses of abortion and assault, including wounding or the administration of harmful substances, are deemed to have been committed. In such a case, the more severe of the two offenses shall be the basis for the imposition of the penalty.The first paragraph of Article 32 of the Egyptian Penal Code
Causality