Research On The Civil Legal Protection Of Vitro Fertilization Embryos

The vitro fertilization embryo as the product of artificial assisted reproductive technology,was the result of the medical technology progress and can bring the hope of fertility for millions of patients with infertility,but also easy to cause the related legal disputes.The case about frozen embryos caused social attention,although a final decision has been made,some civil legal problems about the embryo remain to be solved.The theory about civil legal attribute of vitro fertilization embryos are main body,objects and the intermediary.The main body said is divided into finite natural person and legal person.Finite natural person said is founded in "life from fertilization" and different from the consensus about legal person begins with birth.Legal person said think that embryo is similar to legal entity,breakthrough the concept of general legal person and difficult to be widely accepted.The objects said is divided into property and personal interests.The property said just emphasis on physical properties of embryo,ignored the potential life of embryo,may result in the holder of the embryo use embryo as tools for profit.The personal interests said treat embryo as object of fertility right.The objects said is emphasis on the interests of the holder of embryo too much,and ignores the feature of embryo.The intermediary said treat embryo as a transition between the people and objects,created a third legal status for embryo,but there is no suitable place for using this said in our country.At present our country's legislation about civil legal attribute of embryo is not clear.The case about frozen embryos even has been ruled,the court of first instance and second instance court have different view about legal attribute of embryos.Professor Yang thought the objects in civil law has three kinds,the ethical objects,special objects and ordinary objects.Treating embryos as ethical objects can reflect embryo's characteristics.On the one hand,embryo does not conform to the standard of person,it doesn't have physiological function,is purely a cell mass and have not been born.On the other hand,embryos has the nature of objects,and outside of body,can satisfy human needs and be controlled by people.Because of the potential of personality characteristics of embryo and been a person,it needs special respect and protection.The vitro fertilization embryo belong to the infertile couples,the medical institutions only have the obligation to keep embryo,but not the owner.When the infertility couples divorced,we should accord with the principle of autonomy of will to determine the embryo's owner.If it's hard to do,can make a standard of the parties whether have blood relationship with for judging embryos owner.If still difficult to judge,we need to ensure that the embryo belongs to one party who supports embryos survive.When infertile couples dead,embryos should be included in the category of heritage and be inherited by the successor first in order.When the court determines the civil liability of embryo damaging,fault principle need to be given priority and no-fault principle is complementary,demand the actor to assume liability for damages and strengthen the relief for the embryo owner's mental injury to ensure the owner can obtain compensation for mental damage.