Analysis Of The Civil Code Of The Germ Cells In The Context Of Artificial Reproductive

While the application of artificial reproductive technology brings infertile couples benefits, it also causes many social problems which lead to a lot of ethical or legal controversies among which legal status and rights of ownership of the germ cells is the intensely disputed issue. There is no specification for existing legislation concerning the ownership, use, storage, transfer and other issues of germ cells. Academic research on germ cells is limited and existing research achievements are in disagreement with each other. Research of speculating the management of germ cells can strike a perfect balance between playing the positive effect of artificial reproduction and protecting the interests of germ cells providers. This is of important theoretical significance in the current background of frequent application of artificial reproductive technology.Germ cells usually refer to sperm and ova. For the convenience of elaboration, this thesis includes fertilized ova and embryos in germ cells as well. In the first part, an introduction to background of artificial reproductive technology, germ cells, development of artificial reproductive technology and four classification methods recognized by academic circle is proved; based on certain understanding of germ cells, the thesis analyzes hot issues in on germ cells under current development of reproductive technology. The second part is the positioning of legal status and proprietorial right of germs and ova among germ cells. On the basis of traditional concept of property and introduction to different views of scholars, the thesis puts forward that germs and ova out of human body have characteristics of property and should be classified as property; for germs and ova used for reproduction however, protection of personality right should be offered due to their functional unity; as for posthumous reproduction, in order to protect the feelings of the living for the deceased, China should adopt limited open posthumous reproduction and allow the living with inheritance right to inherit germs or ova of the deceased; for the protection of quality of germs or ova and social public order and good custom, commercialization of human germs or ova should be prohibited; in the custody relationship of human germs and ova and medical institutions, responsibility of medical institutions should be clarified; in China gift is the only way of acquiring human germs and ova and once gift contract is established donors should not revoke the gift. In the third part, on the basis of reflection on in vitro fertilized ova and embryos caused by Davis case, the thesis at first defines fertilized ova and embryos legally and views that due to lack of self-awareness in vitro fertilized ova and embryos can only be defined as property instead of human beings based on subject theory, object theory and medium theory formed in academic circle. Meanwhile, due to their reproductive particularity, certain limitation should be given in the nature of property and forbid free circulation and sale. According to the Warnock report embryos can be divided into early embryonic and embryonic stages. During the early embryonic stage, various countries allow their application in scientific research which is not in dispute. Since germs and ova come from different people, early proprietorial rights of embryos rise. In principle they are owned by sperm-ovum providers all together. In order to guarantee the full use of medical resources, China should stipulate that the storage life of embryos is five years. After the expiration, gift to other infertile couples for reproduction or to scientific research institutions should be allowed. Finally, with the development and application of reproductive technology, standardization of germ cells is more and more important; while we strengthen legislation on artificial reproduction, we should pay more attention to speculation of the essential materials in artificial reproduction and germ cells and assign germ cells into the protection of civil law. With identification of the status of germ cells, speculation of storage life of germ cells and the assignment of remaining embryos can accordingly be drawn. In order to prevent the occurrence of the commercialization of human sperm and ova, we should explicitly prohibit the transaction of sperms and ova and transaction are punishable by penalties.