| The thesis is aiming at discussing the negative impacts brought about by the development and application of high and new life science and technology on individuals' rights,social development and human interests and points out the dilemma of the present laws in protecting emerging rights and the shortness of the legal regulation.On this basis,the thesis further studies the emerging rights derived from high and new life science and technology with the realistic approach for protecting in order to help the legal regulation and right-protection with respect to the application of high and new life science and technology.According to the researches on the law-governing theories board and overseas with respect to high and new life science and technology and legislation practice,the thesis,with combination of typical cases of development and application of high and new life science and technology,analyzes the dilemma of traditional law in regulating high and new life science and technology and the right protection and puts forward constructive suggestion.In introduction,the thesis firstly analyzes the three topical issues — — the typical cases of illegal surrogacy,frozen embryo and gene discrimination as raises the questions of emerging rights protection and the law regulation,which will highlight the practical significance of relative research achievements.Focusing on the two questions,the thesis will analyze the root causesof the emerging rights,the handling of conflicts of interest between Interest subjects,challenges posed by emerging rights on traditional rights theory as well as pose the author's own research method.Apart from the introduction and conclusion,the thesis also consists of the other four parts:Chapter1.New life science and technology under the perspective of contemporary social development.The first part of this chapter discusses the connotation,extension,features and the role in social development of high and new life science and technology.High and new life science and technology is the typical outcome of the contemporary social development.It can in turn boost human being's social development.High and new life science and technology is the general term that refers to the contemporary advanced medical technology including genetic technology,organ-transplantation technology,artificial procreation technology,life and public health technology and so on.The rapid development of high and new life science and technology enables people to track its evolution so that the connotation of itself has been continuously extended.It is characterized by digitization,integrity of materialization and informationization,intelligence and self-modification and adjustment.The role of the development of high and new life science and technology can be seen in the following aspects: firstly,the application and research of new life science and technology is the supporting point of social development and progress and human beings have been continuously benefited from it.Furthermore,its development has accelerated the change of legal system,which is of great importance.However,confronted with the development of high and new life science and technology,the existing legal system's adjustment mechanism of a natural person's right of personality and right of status will fail.People as higher creatures with social attribute are right subjects that having human dignity.Their organs and cells are carries of personality interests.Therefore once they become instruments and commodities,personality right of a citizen will lose validity and the construction of right system in the field of high and new life science and technology will be impeded.The application of high and new life science and technology is calling for the change ofthe existing legal system.The second part of the chapter points out that the development of high and new life science and technology has presented challenges on our society,which is mainly reflected in the aspects of crisis of order,the failure of existing legal regulation,deviation from bioethics,escalation of interests conflict and so on behind the rapid development of high and new life science and technology.High and new life science and technology bring our society benefits as well as crisis of order.The major influence of its application is that it brings up new demands for contemporary rule of law practice with posing great challenges on it.If with the development of rule of law,the regulation of high and new life science and technology application practice is not strengthened,it will generate negative accumulative effect causing disorder in our society.Order is imperative for all human activities.It is created by law and demonstrated by legal rules.Law is the symbol of order as well as a method of building and preserve order.Law plays a critically important role in preserving social order and removing social disturbances.In contemporary society,a large amount of high and new life science and technology has have been abused while the existing legal system is lagging behind the urgent needs of reality.The failure of the existing legal regulation has resulted in increasing social risk factors as Law's role of maintaining social order has failed short.The development of high and new life science and technology is often deviated from bioethics.Rule of law's object is to provide human society in disorder with a specific paradigm and structure.This argument is the theoretical source of the idea of social harmony and good social order in the contemporary law-ruled society.The good social governance pursued by law is to prevent social disorder or social disturbance by legal rules' regulatory mechanisms.At present,the deviation from bioethics has occurred in the application of genetic technology,euthanasia or artificial insemination technology.The development of high and new life science and technology has also intensified the conflicts among emerging rights.In any social form,the augment or reduction of legal rights with any other changes is resulted from social change.Socialdevelopment is motivation of legal system change.The change of social structure and developing situation leads to the change of Interest relationship between interest subjects in social development.The division,diversification or even conflicts among interests have facilitated the change of the system design between rights and obligation in process of monocracy,in which the new rights with respect to the application of high and new life science and technology emerge.So the division,diversification or even conflicts are the basic motivation of the emergence of the new rights.The interest conflicts and imbalance between social relationship subjects has led to plural rights' claims and there are conflicts among the claims.It is because high and new life science and technology application including the acts such as surrogacy,clone,frozen semen or ovum and life and animal test has demanded rule of law for advocating new rights.The new rights and interests demanded have meant a new area for legal rules,extending scale of the traditional legal regulation and raising new issues for it.In risk society,every social group or individual can struggle for own interests with the development and application of high and new life science and technology,in which the interests of one part may be damaged.Therefore,the conflicts among plural rights in risk society require more regulation by law.Chapter2.The leading role of law in prevention & control of high and new life science and technology risk.The chapter discusses that the application of high and new life science and technology has increased social risks.It further discusses the classification of risks which may occur in the development of high and new life science and technology with their characters of imponderability,elusiveness and social university.The thesis subsequently discusses the specific risks brought about by high and new life science and technology to ranging from public individual's interests,society and to human as well as the method of preventing those risks.The finding of this chapter is that morality plays a limited role in preventing and controlling the risks brought by high and new life science and technology while law has specificity and normalization in preventing and controlling the risks.Also,the development of rule of law is comprehensive and conductive with respect to preventing and controlling therisks.The risks caused by abusing genetic technology and artificial procreation technology and the application of organ-transplantation technology existing in social development appear to be prominent or inconspicuous,severe or insignificant,impending or far away from us.If the risks are not controlled,extensive damage would be caused.High and new life science and technology,if abused,would lead to the augment of risks,which is proportional to its positive role in social development.The rapid development of high and new life science and technology causing social risks has been new normal instead of emergence.The rapid rise has drastically changed the original idea and pattern of society,increasing the occurrence rate of social disasters.High and new life science and technology can cause technical risks.Contemporary medicine has eliminated individual difference between people.On the level of physiology,individual is more of a result of physiological and biochemical process.If there is no appropriate or effective restraint over high and new life science and technology over high and new life science and technology,its negative effects would gradually expand finally causing technical risks.High and new life science and technology can cause ethical risks.In the wave of technical progress,people should attach more importance to the ethical risks caused by technical revolution after experiencing the intense relationship between technical revolution and ethics.Chinese Law expressly prohibiting surrogacy as a trade is legal system design that has taken ethics into consideration.If surrogacy technology is abused,the traditional human relation between parents and kids would be broken resulting in interpersonal relationships crisis and causing the disorder of interpersonal relationships.High and new life science and technology can cause security risks.In social development,people firmly believe the role of science and technology in promoting social change and development.However,some ethical problems would not drive the promotion of ethical and moral standards.In another word,scientific and technological development is not proportional to the improvement of ethical andmoral level.In contrast,some ethical problems could be more prominent in the scientific and technological development causing impact on the ethical system that has formed in history.Our society today tends to make science and technology supreme.If this trend is not reversed,science and technology would be abused,which can unavoidably pose threat over human beings' security.The infringements of a public individual's rights and interests by the development of high and new life science and technology,which can be embodied in the infringements of an individual's life healthy right and privacy right.Although Chinese law at present prohibits surrogacy,some people still wants to make a profit from “borrowing a womb to have kids”.Surrogacy in nature is a female entrusted by another part risking her health to conceive a baby and then giving the baby to the client.In this process,the risks include the female's pregnancy reaction,contingent abortion or other health problems which can directly damage the female's life rights and health rights.Gene privacy right which is in the scale of gene information rights is a very important part in the civil rights system.When conflicts occur among the civic right system which includes gene privacy right,it should rely on the all kind of systems built by people to solve the conflicts.However,owing to the fast speed of the development of high and new life science and technology,social governance cannot comprehensively forecast and control it.The development of legal regulation is lagging behind the change of social relationships.It has very often led to the stealing and utility of citizens' personal information posing threat over citizens' right of privacy.The development of high and new life science and technology can also pose threat over our society.Abusing its achievements and high and new life science and technology resource being allocated according to social wealth may threat the whole society's structure undermining the foundation of balanced development and impeding the materialization of balanced development.Besides,the imperfection of the development of rule of law can feed on illegal assignment and transaction of life resource and invite the lawbreakers to abusing high and new life science and technology.And a new field of breaking laws in which crimes can frequently takeplace may form,jeopardizing social stability.In contemporary risk society,maintaining social stability is maintaining citizens' rights and social interests.At present,we had better take the method of integrating constructive rationalism and evolutionary rationalism with drawing upon both of their merits to utilize constructive rationalism thinking,boost the construction of legal system of high and new life science and technology,realize the legal system innovation on a higher level and maintain people's rights in the development of high and new life science and technology.This can prevent abusing high and new life science and technology achievements,regulate unconscionable allocation of social resource,maintain the stability of the social structure and social order and realize social justice.With this in mind,we should take legal means to regulate the field of high and new life science and technology because protection by morality is limited by its own self.When the societal community was small and social relationships are simple,ethics and morality spontaneously and effectively adjusted and regulated social relationships.However,they are less effectively in solving nowadays various problems under the background of the rapid development of high and new life science and technology.Law entails stringent,binding and systematic explanation and enforcement,for which law is be superior to morality in regulating social relationships.The adjustment of rule of law is the high form of law adjustment.In rule of law environment,protecting people's rights is the prominent task.Rule of law can protect people's interests and the balance between individual interests and social interests.It is comprehensively constructive.Adjusting the application of high and new life science and technology should be adjusted to the rule of law environment is the right path for its application and development.In the era of globalization,rule of law development is the cause related to human beings.Regulating high and new life science and technology by law is the strategy that should be cooperatively explored to deal with all possible risks and dilemma.Chapter3.High and new life science and technology causes impacts on traditional laws.This chapter discusses the interest conflicts resulted from theapplication of high and new life science and technology and the role of legislation in balancing the conflicts.It analyzes the dilemma of traditional laws with respect to harmony of interests and right protection.It further puts forward the principles which should be adhered to in dealing with the impacts.In the application of high and new life science and technology,there can be contradictions among all sorts of interests so the conflicts would frequently occur.To maintain social fairness and justice and set all relative parts' rights and obligation,the types of all interest conflicts should be made clear.The first type is conflicts between individual interests and social interests including that between individuals and R&D Institutions and the next is between equal individuals including that between nations.The interest conflicts between nations as the main part of the conflicts between equal individuals have also existed in the R&D and application of high and new life science and technology,which is severer between developed countries and developing countries.The Agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPs agreement)clearly stipulates the provisions for the protection of intellectual property rights in its preamble,and requires all members to recognize that intellectual property rights are private rights.From this agreement to determine the intellectual property rights as private rights,it also established the basic position of the whole agreement protection,which provides a legal system guarantee for the realization of the interests of equal subjects in the operation of the market economy.The subjects of rights,whether natural persons,legal persons or other organizations,are equal in rights.It is worth noting that the role of the TRIPs agreement on strengthening the intellectual property system undermines the interests of developing countries to a certain extent,leading to the redistribution of interests failure,finally further exacerbated the conflict of interests between the two groups of countries.At the same time,the PEX(PEX International)mode is on the rise,the successful operation of Moore case discussion and PEX mechanism that can not distinguish between right of personality and are either this or that property in handling a case,and must protect the interests of the contemporary legal environment in the interest of social equality between the equal individuals.Only based on the analysis of all types of conflicts in the application of high and new life science and technology,the further study on the dilemma of harmony of interests and right protection can be carried out.The problems of the study on and protection of rights which have been brought about by the R&D and application of high and new life science and technology have been more evident.New things are often obscure in nature so it is difficult to determine their natures.Therefore,employing legal means to regulate it is not easy at all.It is predicable that the number of tricky cases of right protection will surge.The generation and development of rights need buttress from up to date ideas.At the present process of monocracy,the dilemma of right protection is mainly caused by conservativeness of social fixed ideas,backwardness of legislation and inadequacy of researches on entitlement theory.Although scholars and experts are concerned about the development of high and new life science and technology,in the whole society's fixed ideas,the achievements of high and new life science and technology have not been attached to great importance,which may in turn reduce scholars and experts' enthusiasm of studying rights related to high and new life science and technology.Besides,due to backwardness of legislation which is more apparent compared with the rapid development of high and new life science and technology,legal regulation system and right system are far from perfection.Therefore,it is highly possible that right protection problems caused by the development of high and new life science and technology will gradually turn out.The paradigm of contemporary law theory studies adhere to philosophy of subjectivity's toutine,organizing relative studies under the framework of bilateral opposite structures of “subjectivity and objectivity”,“subject and object”,“personality and property” and “humans and things”.However,the emerging right claims caused by high and new life science and technology represented by genetic technology to large extent have affected the bilateral opposite structures formed in traditional law theory researches and legislation practice.The traditional right theory paradigm cannot solve new problems with leading to vacancy in legal regulation and relative right protection problems.Driven by modern commerce,people's genes aremore characterized by independence,property and applicability.In this case,bilateral opposite structures turn out to be backward causing the “integrity of property and personality”.The approach for solving right protection problems lies on right theory transition paradigm which can partly update the bilateral opposite structure of“subject and object” in law researches.In dealing with the impacts by high and new life science and technology on traditional laws,the principles should be adhered to include human beings' interests being supreme social fairness principle and overall protecting human rights principle.The principle of human beings' interests being supreme is the first to be observed in the application and development of science and technology.The adjustment of high and new life science and technology's application should be combined with both that of international laws and domestic laws.Especially in the field of international laws,several international treaties and international agreements need to be achieved in order to demonstrate this principle.With respect to social fairness principle,balance point should be found among national interests,social interests and individual interests.Only by comprehensively grasping social fairness,can we deal with new problems with new law system's design and application.Protecting overall human rights means transferring innate rights to legal rights and human rights to civil rights by legislation,which can truly protect human rights.The legal definition of human rights can be divided in two categories: One is that human rights are directly referred but not specified in constitution.Another one is that some human rights are directly referred in specific department laws.Its merits are that human rights are specified so that some specific right protection problems can be solved.The provisions in positive laws provide the basis for protecting overall human rights.Chapter 4 Right protection and legal regulation in the application of high and new life science and technology.The chapter generally discusses the rights relative to the application of high and new life science and technology.It mainly analyzes the difference of personality right,identity right,property right,intellectual property from if they are in traditional law theory.The second part of the chapter studies right of genetic equality,gene privacy right,right of gene's publicity,kids of artificialreproduction's right to know,decision-making power in organ transplantation and other newly emerging rights and also puts forward the law system design for according right protection.With respect to the development of personality right,it is more of an open system under the condition of the application of high and new life science and technology.It will be enriched with personality rights emerging.With the progress of high and new life science and technology,the emergence of new rights and the further development of codes of ethics,legal science in the respect of right practice should review new things and gradually allow citizens to legally and appropriately transfer their own bodies' organs to those in need.The change in legal regulation has demonstrated citizens' right to dispose.The impact of the R&D and application of high and new life science and technology on personality right is also demonstrated in the development of the right of personal liberty.In rule of law society,the main task of rule of law is to stress positive freedom,proactively make the design of the system on the basis of legislation to deal with the new problems caused by social risks,actively stipulate citizens' rights in contemporary era's social affairs and gradually transit negative freedom to positive freedom.With respect to the development of identity right,artificial procreation technology makes human reproduction precisely controlled by people and people's cognition of sexual reproduction has also been changed.From the perspective of relation of identification,the female providing the ovum does not give birth to the kid.So the identification of the kid given birth by a surrogate mother can be an important case related to a nation's legal system's development and codes of ethics in social relationships and other factors.The factors are often intertwined posing challenges over legal regulation.Besides,the progress of high and new life science and technology has narrowed the scale of illness inappropriate for marriage in marriage law.Many diseases that have been identified as not inappropriate for marriage have been absolutely cured so many couples with these diseases not encouraged to get married can get married now.Thirdly,the development of high and new life science and technology also provides medical basis for homosexual marriage.It is partiallybecause high and new life science and technology has refreshed people's cognition of homosexuality.In order to define homosexuals' marriage rights,the rights should be specified in law marriage.Only when homosexuals' marriage rights are specified,can homosexual marriage relations be set and homosexuals' identity right can be protected.The research and application of high and new life science and technology objectively revaluates homosexual community on medical basis,which has greatly helped correct social prejudice to homosexual community and maintain homosexual community's rights.With respect to the development of property right,science technology accelerates the development of property right and claim right.The ownership of human tissues and organs is very special.It has both positive function and passive function.From the perspective of positive function,it means that oblige has powers of owning,disposing and using his or her tissues and organs.However,usufruct that should be contained in ownership,based on donation nature of organ transplantation and the particularity of human beings' dignity is not appropriate to be classified into the traditional ownership.From the perspective of passive function,the ownership prevents the organs and tissues from Infringement.Because ownership is a kind of imperium,it is based on the owner's petition right on property that other people's unlawful interference is dismissed.The owner can reclaim what has been seized and infringed based on petition right on property and request to stop the tort of his or her ownership.It is the effect of petition right on property.However,when it comes to organ transplantation,the new problem is that if the human organs and tissues falsely obtained had been successfully transplanted into the third party's body,no matter the their part was well-meaning and vicious at the beginning,the original owner could not exercise claim of restitution.It is because in this case the original ownership does not exist and the organs or tissues have become an indispensable part of the third party.In order to protect the third party's personality integrity,the original owner cannot exercise the rights mentioned above.With respect to the development of claim,high and new life science technology also has impacts on tort.Personality right has developed in the background of thedevelopment of high and new life science technology.Personality right has been taken as an object of protection specified in tort law.When a person's personality right is infringed and its protection is in conflict with that of property right,personality right is more important than the latter one and should be protected at first place.It reflects that contemporary tort law and even the whole rule of law theory gives priority to personal dignity,physical value and personality integrity.Besides,illegal embryo transaction,human test and other torts also harm a party's privacy right,right to know and right reputation.New types of torts have become serious problems in rule of law progress,which is an important aspect of contemporary legislation on torts.The development of high and new life science technology have also promoted the development of intellectual property.High and new life science technology has changed the border between creatures' species or even categories.For traditional civil law of “one property one right”,its theory can solve the problem of defining the subject of right and the affiliation of rights should be supported by impeccable law basis.However,confronted with the rapid development of high and new life science technology,the traditional law is far from effective to adjust relative acts.In addition,in the development and application of high and new life science technology,some science researchers' discovery only revealing reality cannot be granted patents.While,the selection and technical processing of human bodies by high and new life science technology for clinical application,which can benefit both individuals and the whole society can be granted the patents.It reflects that intellectual property law has actively involved the technological achievements of high and new life science technology in its regulation and it can meet the need of the rule of law construction of high and new life science technology.Given the main field of the development of high and new life science technology,gene right should be reviewed by us.First,we should recognize that right of genetic equality should include the equality of both form and substance.Second,with respect to the legislation on its protection,right boundary should be defined and even among family members,a person's privacy right and interests should be protected by each other.Thirdly,right of gene's publicity is a newly emerging right with thedevelopment of genetic science and technology.It is a positive personality right as a sub-right to personality right of genes.It is also a positive right with great property value and reflects business value.With respect to the development or rights related to the application of artificial procreation technology,the right to know for the kids by artificial procreation technology.The author asserts that the identification of sperm donors should be kept in secret in a double-blindly way.In regard to surrogate mothers' right of induced abortion,the author thinks that Chinese artificial procreation technology law in the future should stipulate that the parties shall voluntarily sign surrogacy contract so that their legitimate interests can be legally protected.The both parties of the contract should contain the concerned provisions in the contract.According to the contract,any abortion without legal basis and necessary conditions should be prohibited and illegal abortions should be published so that abortion caused by arbitrariness can be curbed.A surrogate mother no longer enjoys the right of right of optional cancellation once the surrogate mother gets pregnant unless under specified circumstances that allows abortion.In regard with the development of rights related to human organ transplantation,at present Chinese law has not specified patients' right to know but just regulated that the doctor involved have the obligation to inform the patient the source of the organs transplanted,which can indirectly express the patient's right to know.The author thinks that to deal with this problem,two approaches can be taken into consideration.One approach is to study donor's right to know from the perspective of constitutional right and the other of civil rights.The author tends to believe that in the current context what matters most is to study and optimize right to know from the perspective of civil rights regulation.In addition,the author asserts that decision-making power in human organ transplantation should be limited inside and outside.The inside limit of decision-making power is for the subjectivity of right subject's personal decision making and the legitimacy of fulfillment self-sense.The outside limit is for the involved party's physical factors' relations with others and the whole society and the legitimacy of maintaining social relations.Last but not least,the author points out thatin China privacy right involved in the application of human organ transplantation has not been specified in prescriptive legal documents.Therefore,it is necessary to protect privacy right in organ transplantation by establishing legal system for it.To this issue,the author puts forward his own targeted designing scheme.In conclusion,the author emphasizes that high and new life science technology is closely related to contemporary social development.At the same time,the conflict between the rapid development of high and new life science... |
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