Reconstruction Accountability Criminal Prosecution of Midwives in Emergency Cases Midwifery Based Lex Specialis Principles of Health Law

Abstract

Obstetric emergency services often place midwives in ethical-legal dilemmas with risks of criminal prosecution. The
dualism between Law No. 1/2023 (Criminal Code) as lex generalis and Law No. 17/2023 (Health Law) as lex specialis
creates legal uncertainty in professional fault assessment. Objective: This study aims to analyze the inconsistencies of
general criminal law in emergency cases and reconstruct a model for midwife criminal liability based on the lex
specialis principle. Method: This normative legal research employs statutory, conceptual, and philosophical
approaches. Discussion: The results indicate that the Criminal Code tends to overlook medical necessity
(noodtoestand) and professional standards. The Health Law provides legal immunity through Article 275 for
emergency actions following standards. Conclusion: Midwife criminal liability must be reconstructed hierarchically.
Criminal sanctions should only be applied to gross negligence (culpa lata), while minor negligence (culpa levis) in
emergencies should be resolved via disciplinary or civil mechanisms. Fault assessment must refer to Professional
Standards and Emergency SOPs as the primary benchmarks.