The Study Of Fetal Rights And Interests Compensati On Of Damage

The recognition of natural person’s civil subjective status, the legal protection of their personal rights and interests, are often taken for granted. Since the Roman law, whether to protect unborn children, whether to admit their legal status, these topics taken seriously. The traditional civil law theory think that to be born is a right starting point of having right ability, which ruled out of fetal rights protection, that has caused the judicial practice loophole, also works against people’s inner expectations. Fetal is an objective life existence, it is the fetus as the life value of the origin of life to obtain his legal protection. The essence of protecting the rights and interests of the fetus is to protect the nature people for the future, Its protection will affect the exercise as the normal rights of a natural person. The family planning policy is as China’s basic state policies, also can’t deny living organisms exist objectively, and family planning policy advocate TORCH exactly fit with the thrust of the protection of fetal rights and interests.Current law deny the capacity for private rights of the fetus, not the protection, which essentially related to the problem of why the carrier no rights and obligations capacity can become the carrier of right. Review the development course of right capacity, it is not hard to find the right capacity is also a kind of legal fiction, and had never been away from social, more important, the essential attribute of natural person is not right capacity, but personality,having right capacity does not necessarily make a person. Therefore, according to the relativity of right capacity, we can give fetus relative right capacity, that can not only solve the difficulties in theory, but also be a good protection of the rights of the fetus. Fetal rights are protected by law as the prerequisite of born alive. Fetal personal rights including life rights and interests, health rights and interests, and identity rights and interests, when the acts occurred against fetal rights and interests, using the theory of adequate causation to be able to identify the relationship between the infringement and the damage results, fetus and their parents have the right to request the damage compensation, including property damage compensation and spiritual damage compensation, at the result of death or disability, even can ask the compensation for death or disability compensation. At this point, it is considered as a respect to the human rights of the fetus, to establish the supremacy of personality value and the highest personality interests of the right to life.