Document Type : Research Paper
Authors
1 Associate Professor, Department of Criminal Law and Criminology, Faculty of Law and Political Science, Ferdowsi University of Mashhad, Mashhad, Iran.
2 M.A, Department of Criminal Law of Children and Adolescents, Law Department, Faculty of Theology and Law, Hazrat Masoumeh University, Qom, Iran.
Abstract
Problem and Background
Substance use among pregnant women constitutes one of the most complex and multidimensional problems facing contemporary legal and public-health systems, since it simultaneously involves medical, social, economic, and legal dimensions. Substance use disorder is a chronic, disease-like condition rather than a purely voluntary act: dependence develops gradually, interferes with the brain's motivation and reward pathways, and is shaped by individual vulnerability, the type of substance used, and the pattern of use. When it coincides with pregnancy, the risks intensify sharply for both mother and fetus, and the public-health literature consistently shows that harm-reduction and treatment-based approaches achieve better outcomes than purely punitive ones. Nevertheless, pregnant women who use drugs frequently underuse or entirely avoid prenatal care, delay treatment-seeking, and conceal their substance use out of fear of social stigma, legal consequences, loss of child custody, or forced referral to compulsory treatment centers. This avoidance behavior does not protect the fetus; rather, by keeping women outside the healthcare system, it exposes both mother and fetus to greater harm. In the Iranian legal system in particular, the response to this vulnerable group remains dominated by a criminalizing, punitive orientation embedded in the Islamic Penal Code (2013) and the Anti-Narcotics Law, neither of which recognizes pregnancy as an independent differential status warranting specialized protective or treatment-oriented measures. General constitutional provisions (Principles 10 and 21) and non-binding instruments such as Article 142 of the Charter of Women's Rights and Responsibilities offer only abstract commitments without operative enforcement mechanisms. This absence of a differentiated criminal policy leaves a substantial gap between the stated constitutional commitment to protecting mothers and children and the practical realities faced by pregnant women who use drugs within the justice and health systems.
Research Aim
The central aim of this study is to conduct a legal pathology of the situation of pregnant women who use drugs within the Iranian legal system, to identify the structural gaps, internal contradictions, and shortcomings present across criminal, supportive, and health-oriented legislation. More specifically, the research seeks to determine the extent to which the Iranian legal system has succeeded in balancing three simultaneous imperatives: protecting the health of the mother, safeguarding the interests and health of the fetus, and pursuing the state's broader policy of combating drug use. The study further examines whether existing legal capacities, including the Therapeutic Abortion Act, the Law on the Protection of the Family and the Promotion of Population Growth, and Article 1173 of the Civil Code governing child custody, are capable of providing sufficient and appropriately differentiated protection for this particularly vulnerable group of women. The guiding hypothesis is that the dominance of a punitive criminal approach, combined with the absence of a differential criminal policy and treatment-oriented support designed specifically for pregnant women who use drugs, has intensified this group's vulnerability, deepened social stigma, reduced their willingness to seek medical treatment, and ultimately weakened effective protection for both mother and fetus.
Research Method
This is a qualitative, descriptive-analytical, and interdisciplinary study that draws simultaneously on legal, health-related, and sociological perspectives. Data were gathered exclusively through library-based (documentary) research, involving a critical analysis of primary legal sources including the Islamic Penal Code (2013), the Anti-Narcotics Law and its amendments, the Therapeutic Abortion Act, the Law on the Protection of the Family and the Promotion of Population Growth, Article 1173 of the Civil Code, relevant constitutional principles, and the Charter of Women's Rights and Responsibilities read alongside Persian and international academic literature and empirical health-science studies on substance use during pregnancy. The analysis proceeds by first identifying the absence of specialized protective mechanisms for pregnant women who use drugs (examining the lack of a differential criminal policy, the continuing priority given to the punitive approach, and the ambiguity surrounding the relationship between maternal criminal liability and fetal protection), and then examining the practical barriers that prevent these women from accessing treatment (fear of social stigmatization, fear of judicial punishment, and fear of losing child custody).
Findings
The analysis shows that Iranian criminal law does not recognize pregnancy as an independent differential circumstance requiring specialized protective or treatment-based intervention; existing leniency mechanisms, such as deferred sentencing, suspended punishment, and alternatives to imprisonment, are general in nature, discretionary, and not specifically designed for this group. Fetal protection is pursued mainly through punitive instruments, yet this approach is internally self-defeating: when a pregnant woman avoids medical care out of fear of prosecution, stigma, or loss of custody, her own condition fails to improve and the fetus is exposed to greater, not lesser, risk. The study also finds a significant legal ambiguity regarding the relationship between the mother's criminal responsibility and fetal protection, since the mens rea required for criminal liability is difficult to establish when continued substance use stems from physical and psychological dependence rather than intent to harm the fetus. Three practical barriers to treatment-seeking were identified as particularly decisive: social stigma, which operates at the structural, interpersonal, and internalized levels and pushes women toward concealment; fear of judicial punishment, which discourages full disclosure of substance use to healthcare providers and undermines accurate clinical assessment; and fear of losing child custody under Article 1173 of the Civil Code, where the mere possibility of judicial intervention even though custody loss is not automatic and depends on a case-by-case judicial assessment of harm is often sufficient to produce avoidance behavior, including delayed or unsupervised childbirth. Taken together, these findings demonstrate that the current punitive framework, rather than achieving its stated protective purpose, systematically discourages the very treatment-seeking behavior on which fetal and maternal health depend.
Conclusion
The study concludes that protecting the fetus and the child during the prenatal period requires, more than intensified criminal intervention, the development of supportive, therapeutic, and preventive mechanisms; a treatment-oriented approach is not in conflict with fetal protection but is, in fact, the more effective route to achieving it. Accordingly, the paper argues for a fundamental reconsideration of Iran's criminal policy toward pregnant women who use drugs, recommending that this group be formally and legally recognized as requiring specialized protection; that judicial authorities be obligated rather than merely permitted to prioritize treatment and rehabilitation in eligible cases; that criminal proceedings be suspended or deferred when a woman voluntarily enters treatment; that the confidentiality of medical information be guaranteed; and that coordinated mechanisms be established between the healthcare system and the criminal justice system, including clearer, treatment-oriented standards to guide custody-related decisions under Article 1173 before any punitive or custody-limiting measure is taken. Implementing these reforms would not only better safeguard the health and rights of both mother and fetus but would also bring Iran's criminal policy in this area into closer alignment with the principles of restorative justice, the right to health, human dignity, and the best interests of the child.
Keywords
- Legal Legal Pathology
- Rights of Pregnant Women
- Drug Use
- Criminal Policy in Iran
- Maternal and Fetal Health Rights
Main Subjects
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