بازخوانی ملاک‌های فقهی-حقوقی سلب حضانت در بیماری‌های مسری با تأکید بر میزان خطر و احتمال سرایت

Child custody in cases of parental communicable diseases presents a complex jurisprudential and legal issue requiring a balance between parental rights and the best interests of the child. Uncertainty regarding the criteria for deprivation of custody, particularly the combined assessment of disease severity and probability of transmission, necessitates reconsideration. Using a descriptive-analytical method and an ijtihad-based approach, this study examines these criteria through library research, drawing on the jurisprudential principles of no harm (la darar), no undue hardship (la haraj), identification of the underlying legal rationale, and a fortiori reasoning.

The findings indicate that a parent's infection with a communicable disease does not automatically justify deprivation of custody. Rather, decisions require simultaneous consideration of the disease's potential harm to the child, a reasonable probability of transmission, the child's age and health status, particularly infancy or immunodeficiency, the parent's caregiving capacity, including assistance from a substitute caregiver, and the availability of effective preventive measures. For breastfeeding mothers with communicable diseases, transmission risks associated with breastfeeding must be assessed separately. Custody is both a parental right and an obligation; however, this obligation is not absolute and may be lifted under the principles of no harm and no undue hardship.

Ultimately, the court must determine custodial eligibility by prioritizing the child's best interests and the no-harm principle, pursuant to Article 40 of the Iranian Constitution. The study recommends developing medical-judicial guidelines establishing clear criteria for assessing disease-related risks and transmission probabilities and introducing a legal framework for temporary deprivation of custody. Combining individualized and general objective assessments would also allow these criteria to apply to emerging communicable diseases.