The Legal Status And The Rules Of Disposal Of Human Frozen Embryos

Artificial assisted reproductive technology, which promotes the emergence of external fertilization, seriously impacts on the traditional concept of reproductive strategies. Simultaneously, in vitro fertilization technology has spawned problems about frozen embryos. But what is the legal status and the rules of disposal of human frozen embryos? Existing laws and regulations have not made a clear definition of them so far. Concerning that quantities of problems in practice can not be coped with pursuant to the law, this paper focuses on the legal status of frozen embryos, combines with studies on existing legal system and relative theories and refers to foreign academic researches and judicial cases, in order to make a preliminary definition of the legal status of frozen embryos. After that, this paper analyzes the subject of right of frozen embryos and the rules of disposal. Finally, this paper puts forward individual suggestions, aiming to provide legal approaches to resolve disputes relating to frozen embryos in the future.In addition to introduction, the main body consists of four parts:The first part: this part makes an introduction of artificial assisted reproductive technology at home and abroad, and then elaborates technical principles on frozen embryos and problems arising from those principals.The second part: an analysis of the legal status of frozen embryos. Firstly, this part explains three main theories and their juridical practices at home and abroad in detail, namely "subject theory ", " objective theory " and " the agency theory"; secondly, this part analyzes the advantages and disadvantages of the three theories one by one; thirdly, based on the analysis mentioned above and China's basic national conditions, the existing legal systems and policies, this part adopts " the agency theory", ultimately defining that the legal status of frozen embryos is transitional existence, which means frozen embryos are neither civil subjects nor civil objects. This definition breaks the traditional binary distinction model in finally, Civil Law and creates "thing- intermediary- human" ternary structure with a wish to protect the interest of frozen embryos to a greatest degree.The third part: an analysis on subjects of right and rules of disposal. The second part has defined the legal status of frozen embryos, this part focuses on subjects of right, advocating that infertile couples who accept the application of artificial reproductive technology are the obligee of frozen embryos, the rights to enjoy belongs to other rights stipulated in Civil Law, while keeping organizations such as hospitals are just the custodians authorized by medical service contracts or other contracts. Secondly, in order to facilitate the exercise of the rights of frozen embryos, this part analyzes four scenarios respectively, in the period of marriage, at the time of divorce, when a spouse dies and when the couple die. This part stands for that a mutual intention is required to dispose frozen embryos during marriage and divorce, especially when there is a need to dispose frozen embryo during divorce, considering the benefits and burdens is a must. Under normal circumstances, the right of no fertility takes precedence over the right of fertility. At the same time, this part explains the range of "single women", insisting that widows who have adopted artificial assisted reproductive technology before the death of their former husbands should not be included. If their husbands do not explicitly oppose the artificial assisted reproductive technology before their death, operation should be allowed to continue to implement in order to protect their reproductive rights. This part analyzes the rules of disposal when disputes arising between hospitals and successors under the circumstance of the couple both die.The fourth part:legislative proposals on the protection of human embryos. Firstly, this part points out the existing lags of legal norms and departmental regulations and proposes current and long-term solutions; secondly, legislature should stand on our national conditions, considering not only China's traditional social ethics, but also the development of current medical technology and refer to experience on legislation of foreign countries, aiming to accelerate the process of making human embryo protection laws and regulations to cover the shortage of existing laws; finally, this part puts forward several individual proposals on specific content of legislation in the hope of giving a hand.