Definition Of The Legal Status And Related Rights Of The Human Embryo In Vitro

The emergence of IVF of the assisted reproductive technology makes the process in which the sperm is fertilized in the human body in the natural reproductive patterns to be completed out of the body, it leads to the appearance of the embryos in vitro. Because this technology is applied in China for only more than twenty years, the existing legal norms lags behind this new things. Lacking clear delimitation of the legal status of human embryos in vitro led to generate great controversy in law theory and judicial practice with regard to the possession exercise, embryo inheritance and the rights to bear of the divorced couple. Assisted reproductive technology in infertility brings the gospel to many families, but also challenges the relevant provisions of the traditional civil law system.Combined with the issues reflected in the real cases which appeared in domestic and abroad related to this article. Analyze the deficiencies of existing legal provisions related to human embryos in vitro from the perspective of law and correspond perfect visions in order to address disputes in judicial practice better and discuss the ways to resolve the conflicts.In addition to the introduction, this paper is divided into five parts:The first part analyzes the legal status of the human embryo in vitro. Firstly, introduce the three main theories in academic community, namely the subject theory, object theory and the intermediary theory. The "limited people theory" is the prevailing view in "subject theory". The "object theory" can be divided into " property theory " and " the interests of private life theory ". Secondly, point out the problems in various theories: confer legal subject qualification on embryo in vitro does not correspond to the theory of the start of life in domestic law theory and the legal status established in existing laws. It also puts up barriers for the future use and disposal of embryos in vitro. The view that embryo is equivalent to the general object neglects that the ethical nature decides that it can not apply to the general provisions on substance; In addition to the legal relationship between the subject and the object to create a third field will break the dichotomy of the traditional civil law. Finally, this paper describes its view, though we not recognized that embryos in vitro belong to organs and tissues out of human body, we agree with the opinion that the objects are classified into several categories according to their differences, and the embryo in vitro is identified as a specific matter based on the independent difference of each one.The second part describes the attributes of the related rights of the embryo in vitro. The previous stage analyzes the ownership. Firstly, identify the attribute of the owner’s right, then, analyze the different perspectives in theory and practice circles in domestic and abroad on this issue. These ideas identify embryo in vitro as the object of control rights, property rights, health right, and temporary property. This paper holds the view that since it has a clear legal property of matter, the rights of the subject should be entitled to their property, namely possession, but the occupation, use, profit, disposal of the embryo in vitro should be restricted by law to be different from a general matter. Then the article analyzes the restrictions of them. The next phase is the analysis of inheritance, mainly beginning with the "first case of frozen embryos inheritance disputes" that occurs in Yixing. First, it lists a variety of negative reasons of the inheritance of embryos, then negates them one by one and expresses.the article view that embryo in vitro can be inherited and expounds the relevant reasons supported.The third part analyzes the rights related to the embryos in vitro and the subjects who have the rights, inclusive of the owners and medical institutions. The owners include the embryo’s mother and father who achieve them originally and the people who get them through inheritance or gift. Most of the existing norms about medical institutions are restrictive regulations, because medical institutions involved in the whole process of surgery as well as the disposal of postoperative surgical embryo. There are a lot of restrictive regulations about the rights of patients and its implementation should be supervised by the medical party, it is the medical institution’s rights. In some cases, medical institutions may become the subject of legal relations of the damages and compensation, the paper analyzes types of the responsibility that medical institutions may undertake in three cases according to the different stages of the embryo in vitro. Finally, now there is a embarrassing situation that the warehouses have no place to store the frozen embryos due to the increasing number of abandoned embryos, but the medical institutions dare not dispose them arbitrarily, so we call for legislation to deal with the circumstances.The fourth part analyzes the rights conflict related to the frozen embryos. This section is divided into three aspects, the first aspect introduces the policy barriers which widows meet with when they exercise the right to bear. It explores the problem that whether the widows belong to the "single women" stipulated in China’s "Implementation of the Human Assisted Reproduction Ethical Principles" associating with the case of Wang Xia occurs in Guangdong Province which was given special approval by hygiene agency. This paper holds the view that the women who lose their husbands when the assisted reproductive technology has already began don’t be adjusted by the principle; The second aspect analyzes the conflicts appearing in the situation that heirs can’t get a consensus opinion of the disposal of embryos in vitro. We believe that parties should follow the "burden weighing principle" to resolve this conflict. The third aspect introduces the conflict of the rights to bear when the divorced couple contends for the frozen embryos. Firstly, list different perspectives and point out the right to bear should be exercised by both men and women at the same time. The " burden weighing principle" also should be applied to the disputes of the couples which don’t involve the rights to bear.The fifth part puts forward the idea about embryo legislation. First, point out the shortcomings of the existing norms, then propose two solutions for current and long-term. This paper argues that now in practice the administrative department of health can formulate indispensable and format contract provisions about the surgery of IVF- embryo transplantation based on the existing regulations and industry standards in order to regulate the legal disputes in the form of contractual provisions. And the legislature should combine with China’s national conditions, start from the social reality and learn foreign legislative experience in order to quicken embryo legislation. Only in this way can we make up the deficiency and maintain forward-looking. Finally, it lists several specific legislative proposals.