The Rules Of Exercising The Rights Of Frozen Embryos

In the modern society,infertility family become more and more because of the increase of people's mental pressure.Assisted Reproductive Technology(ART)have become the hope of the infertile family.However,the widely used application of this technology also have caused a lot of legal problems that need to be solved.This article combines the basic situation of our country,and learns from the foreign legislation and practice,defining the legal attribute of the frozen embryos and establishing the rules of exercising the rights of frozen embryos.Defining the legal attribute of frozen embryos is the basis and premise of the rules of exercising the rights of frozen embryos,but the legal attribute of the frozen embryos has been in a controversial position.There are three theories about the legal attribute of the frozen embryos: subject theory,object theory and compromise theory.This article agrees with the compromise theory,holding that the frozen embryos are “particular state”.The particularity of the frozen embryos decides that when exercising the rights of the frozen embryos should keep the appropriate respect for the frozen embryos.The main foundation of exercising the rights of the frozen embryos is the agreement which reached by the couple,that is,the reflection of the mutual right of the couple and the self-determination.When the couple divorced and lead to the different opinion on the frozen embryos,the judge should adopt the profit maximization principle to dispose;when one spouse passed away,the judge should treat differently considering the alive one is man or woman.If the alive one is woman,the judge should allow woman to transfer the frozen embryos to realize her right to birth.If the alive one is man,because of the death of the mother?s body,the man could only exercise his rights which are allowed by law.Because our country does not permit surrogacy at present,so the man could not require transferring the frozen embryos.When the couples die accidentally,it is the situation that the couple could not foresee which means it did not reflect the couple?s real intention.The judge could not exercise the right of the frozen embryos only by the contract because the frozen embryos possess the attribute of “object” and the attribute of “personality”,so the successors of the frozen embryos have the right to inherit.When the owners of the frozen embryos lose all or parts of civil rights,the frozen embryos should be disposed and supervised by the owner?s legal guardian permitted by law.Because there is no legal provisions about the frozen embryos and related issues emerge in an endless stream,this article combines our country?s situation and foreign advanced legislation and juridical practice,giving advice to the perfection of the contract,the establishment of the adoption system of the frozen embryos and the policy of permitting surrogacy in order to help our country?s legislation and justice.