On The Fetal Interests Of Civil Law Protection

The fetus will be the future legal body. In recent years cases of damage to fetus occurred in succession, so the civil law protection for fetus rights is urgently needed. Since the Roman law, all the countries have established certain systems to protect the fetus rights. But along with the new technical and changed social policy, the question of the protection becomes more complicated. But the legislation on this is too simple in our country, and it is difficult to enforce in practice. Thinking of the situation, the author takes this subject as the dissertation, hoping to perfect the legislation and push forward the development of the society.The foreword is to make clear the legislation about the various countries and the research significance to this topic. Then a summary to the content is made.This article includes four chapters:First part: Fetus's legal implication. First the fetus's definition is confirmed: The legal fetus refers to life before the birth. Moreover, compared to the person in civil law, the fetus has not the social consciousness, and is a biological non- legal person. And boundary of fetus and human is analyzed.Second part: the basis for fetus profit. This part firstly enumerates legal regulations of various countries' protection on fetus profit. Then discusses the legal foundation, including "the ethical foundation from the ethical angle and the significance to the reality guide", "doctrine on protection of life lawful profit", "doctrine on lawful profit" ,"doctrine on ability to enjoy rights" and "doctrine on relationship interest theory". Among them, the last doctrine is the more appropriate expound on civil law status of fetus.Third part: comment on two types of special claim for damages to fetus. The first type is "wrongful birth, wrongful life and wrongful pregnancy" some questions are asked:(1)whether such a case is supported (2)If there is an action, what are the recoverable damages? The second type is that parent is the main body in tort. Such causes generally can't be accepted except that a child is reared by mother or deserted by father after his parents get divorced.Fourth part: legal protection on fetus profit. Firstly stages are differed to recognizedamages to fetus. A person is born unhealthy with the result of prenatal injuries, which can be resolved with principle of tort. Another is called "wrongful death" in which a fetus dies shortly after birth or stillborn from prenatal injuries. In the former status, the victim died after he had ability to enjoy rights which can be regarded as that of the death of a "person". But in the latter former, it is favorable to settle the problem by regarding a fetus as one of the part of mother. There also exist counterviews. Thereafter the measure of protection is put into effect. Stages should be differed to protect the fetus. Before birth, there must be custodian or agent who can complete the protection which includes parents' rights of procreation, property interest of fetus; before birth, parents can claim for compensation because of the damage of rights of procreation or mother's healthy rights; after birth, the infant can claim for all the rights which can be performed by parents. Furthermore, the prescription is also dismissed.Brief summary: Some suggestions are put forward after summing up the fruits researched above.