On The Civil Legal Protection Of Human Frozen Embryo

Human frozen embryos are embryos from 1 to 14 days after fertilization for reproductive purposes.In this stage,the embryo has no self-consciousness and can not be treated as the subject of rights "human".Although the embryo is separated from the human body,it has the general characteristics of "object",but the obligee has personal interests in it.Human frozen embryos cause a lot of disputes and challenge the existing legal system.The legal attribute of embryo has been debated for a long time in the theoretical circle,and no consensus has been formed so far.The subject theory regards the embryo as the subject of rights in civil law and restricts the scientific research activities and rational utilization of the embryo.Object theory believes that embryos are only cells,which may lead to the abuse of embryos for commercial activities and against ethics.The middle theory holds that the embryo is a special existence between human and object,which is a breakthrough to the traditional civil law system of human-object differentiation system.The above theories all have shortcomings.From the analysis of the characteristics of the embryo itself,the embryo should be a thing with personality interests.At present,the civil legal protection system of human frozen embryos in China is not perfect.In terms of legislation,article 1009 of the Civil Code does not specify the legal status and exercise of rights of reproductive embryos,and only the departmental regulations for the management of medical institutions and technicians are available for reference.In judicial practice,the author conducted statistical analysis on the general trend,characteristics,case types,causes of action,attributes,right recognition and judgment results of 60 judgments.The author found that the number of cases is gradually increasing,but there are some phenomena such as unclear definition of legal attribute,different paths of right determination,unclear subject of right and inconsistent paths of judicial protection,which result in the disorder of judicial application.So,there is an urgent need to establish uniform rules of justice.In judicial practice,it is generally believed that embryos are special things with personality interests.In view of this phenomenon,the protection of embryos should not follow the traditional mode of property right protection.The legal status of embryos should be clarified in the civil code and the protection clauses of embryos should be added in the current regulations.We should use the civil code and departmental regulations to protect embryos.The donor couple who are the right subjects of the embryo enjoy the right of custody,supervision and disposal.If one of the husband or wife dies,the rights of the other spouse remain.If both of the husband and wife die,the close relatives become the right subjects of the embryo based on the status interests.The exercise of rights should conform to the principle of legality,public order and good customs.It is suggested to adopt the mode of agreement in advance and the mode of interest measurement to deal with the disputes over the disposal of embryos during divorce.The acts of destroying embryos may be investigated for tort liability and breach of contract in accordance with the provisions of tort Liability and Contract.It is also possible to claim damages for mental distress under article 1183,paragraph 2,and Article 996 of the Civil Code.