Research On The Legal Nature And Legal Protection Of Frozen Embryo

The first frozen embryo dispute in 2014 caused a heated discussion in the theoretical and practical circles.The focus of the dispute in the case is whether frozen embryos can be the subject of rights.Before answering this question,the legal attribute of frozen embryos must be defined.However,although the first-instance and second-instance court’s judgments are completely opposite,they both avoid the huge dispute of "frozen embryo is human or material".The first-instance and second-instance judgments determine whether the rights of both parties exist based on two different basic reasons.The first-instance judgments discuss the existence of rights based on the voluntarism of "reproductive purpose",while the second-instance judgments try to prove a new right based on whether the parties enjoy "interests" in embryos.In the end,the "interest theory" judgment of the second instance has been widely recognized by the society,but it is not a long-term solution to settle disputes according to ethics and legal thinking.It is urgent to scientifically and reasonably define the legal attribute of frozen embryos through legislation.Because the legal characterization of frozen embryos directly determines how to apply the relevant civil legal system,and defining the legal attributes of frozen embryos is the premise to determine the embryo regulatory rights,disposal rights or ownership and inheritance rights,and is also the key to solve the legal disputes of embryo related subjects.Therefore,in order to solve civil legal disputes related to embryos,the legal attribute of frozen embryos must be clarified first.Of course,the legal study of frozen embryos can never leave the development process of embryos.Only after a comprehensive understanding of the development process of embryos can legal attributes be defined.At present,there are mainly three theories about the definition of legal attributes of frozen embryos: subject theory,object theory and compromise theory.The subject said that starting from the union of sperm and egg is the beginning of human life,and embryo should have the qualification of human legal subject.The object theory holds that embryos,like bone marrow,blood,hair,organs and tissues separated from human body,should be regarded as objects and belong to the object of property law.The eclectic theory holds that frozen embryos are neither human nor material,but a transitional form between human and material,which breaks the traditional binary system of human and material.According to the subject,although frozen embryos have the potential to develop into human beings,they cannot answer the question of "whythere is potential to claim rights",and it is not in line with medical practice to regard frozen embryos as subjects.In response to the compromise theory,the theory seems to provide a scientific and reasonable characterization for frozen embryos,but it damages the traditional "character dichotomy" system of civil law and is easy to create a situation that cannot be relied on.Since frozen embryos have a certain degree of personality and emotional color,it is reasonable to include them in the category of "personality".Under the theory of "personality",frozen embryos can be the object of ownership and inheritance,but cannot be the subject of inheritance.By examining the legal system of extraterritoriality and considering the lack of embryo legislation in our country,this paper puts forward the key points of constructing embryo legislation in our country.That is,embryo legislation should emphasize ethical or legal principles,strictly distinguish the key terms related to embryos in legislative technology,define the applicable objects of artificial reproduction technology,and establish mechanisms for embryo utilization,preservation,destruction and tort relief.