Research On Civil Protection Of Fetal Interests

Although fetal protection is not a new issue, it has been a controversial topic in China for a long time. This paper first analyzes the theoretical basis and legislative precedents of protecting fetal rights, and then determines the specific rights of fetuses and the way of protecting them.This paper is divided into seven parts. The first part is an introduction explaining the significance of fetal protection. The second part describes the legal status of fetuses. It defines fetuses legally and draws a clear distinction between fetuses and natural persons. The third part discusses the theoretical foundation of civil protection for fetal rights. It analyzes three theories specifically and holds that legal capacity doctrine should be deemed to be the theoretical basis for fetal rights protection. The fourth part covers a research on the legislation precedents of civil protection for fetal rights in various countries. Following the thought of recognizing legal capacity, this part reaches the conclusion that China should adopt the mode of statutory resolutely condition under general protectionism after comparing different legislative precedents and theories. The following fifth part examines the specific interests of fetuses that should be protected and the way of protecting them. After defining the specific rights of fetuses, this part elaborates on how to protect different kinds of right under different situations. The sixth part comments on two special issues. It mainly introduces and analyzes two special kinds of tort claims. One is that parents are tortfeasors and the other is"wrongful birth","wrongful life", and"wrongful conception". In the last part of this paper, it reaches a conclusion that fetuses have legal capacity, and based on this recognition the rights of fetuses should be effectively protected by civil law.