Civil Law Protection On The Fetus' Benefits

Fetus is a biological non- legal person. Fetus is not a thing but a potential person . The fetus will become a future natural person, fetus is the necessary stage before it becomes to a natural person. So, in order to protect the future natural person, all the countries commonly protect fetus'benefit in different degrees. In this modern society , the increasing danger factors have dramatically risen the quantities of the case of the compensation for damages about fetus'benefit. But the civil law of these countries don't provide enough protection for fetus'benefit, especially our country. Under such circumstances, it seems urgent and important to conduct researches on civil law protection of fetus' benefits .This dissertation contains five parts besides the preface and the conclusion.The first chapter is about the comparative analyze of protection of fetus'benefits. First describes the definition of fetus in law sense, then introduce different legislation about protection of fetus'benefit in different countries, including our country.The second chapter discusses the theoretical basis of protection of fetus'benefits. Firstly, the author introduce three different theories of the protection of fetus' benefit in civil law, that is theory of capacity for civil rights, theory of legal interests, theory of tort liability. Then, the author analyze the advantages and disadvantages of the three theories separately. According to the above analysis, the author bring forward his opinion on the protection of fetus'benefits, that is we can use the advantages of the theory of capacity for civil rights and theory of tort liability to protect fetus. If a person is born unhealthy because of prenatal injuries, he can use the theory of tort liability to protect himself. In that situation, the damage consequence resulting from the infringement of fetus will arise after fetus is born. Therefore, the fetus damage problem becomes a natural person asking for his compensation for damages. In other limited situation, fetus has limited civil right capacity.The third chapter discusses the enforcement and protection of fetus' benefits. According to the limited civil right capacity owned by fetus, the fetus should enjoy the right of inheritance, the right of legacy, the right of benefiting from contract, and the right of claim for compensation of bring-up damages. According to the theory of tort liability, the fetus also have the right of claim for compensation of health damages .In this part, author discuss how to perform and protect these rights . Author also consider that fetus don't have the right of life.The forth chapter discusses two types of special claim for damages to fetus. The first type is"wrongful birth","wrongful life"and"wrongful pregnancy". The second type is parents infringe upon their fetus. The author thinks that a wrongful life action can't be supported. However, wrongful birth action and wrongful pregnancy action can be supported. Then author discusses the scope of the recoverable damages of this two actions. According to the problem of parents infringe upon their fetus, generally speaking, parents are not liable, but they should be liable in the case of willful misconduct and gross negligence.The fifth chapter is a conclusion. The author put forward some legislation suggestions in order to perfect the protection system of fetus' benefits on the basis of analyzing about our country's relevant legislation defects .