Research On Civil Law Issues Of Human Embryos In Vitro

With the progress and developments of artificial reproductive technology, the applications of IVF- assisted reproductive surgery are more and more. When it brings gospel of having babies for many infertile couples, at the same time, it also leads to a series of disputes in ethical, moral, social, legal and other aspects. As the representative of the lawsuits involving embryo, the first domestic frozen embryo attribution case has exposed the lack and lag of our relevant legislation, issued challenge to our legal theory and judicial practice, and given rise to thinking and debate about related civil law issues involved the legal attribute of the embryo, the problem of embryo succession, exercise of the inheritance and the like in theory circle. Based on the "first domestic frozen human embryo attribution case" as the starting point, this thesis has analyzed and compared with the domestic and foreign academic theories and views related to human embryo, combined with foreign legislation practice and jurisprudence, and researched on the legal attribute of the human embryo and the Civil law issues of its succession. With above all of all, I hope to make a little contribution to the perfection of legal system and legislation of human embryo in ChinaThe article is consisted of five parts.The first part is the introduction. Through a brief introduction to the case, the first instance and second instance verdict, as well as the related concepts of human embryo outside, this part makes "the first domestic frozen human embryo attribution case" as the starting point to illustrate the significance of the topic, innovation points and disadvantages.The second part introduces the research status at home and abroad of human embryo. About the legal attribute of the human embryo, the theory circle both at home and abroad mainly has the following three points of view: the subject doctrine, the object doctrine and the intermediary doctrine. The subject doctrine, which is also known as “the personality doctrine”, admits that the human embryo has legal subject status, and sees it as a legal person. The subject doctrine can be divided into two branches. One is the limited natural person doctrine and the other is the juridical person doctrine. In the object doctrine, the human embryo is regarded as the object of civil legal relationship. It regard that human embryo still does not have the characteristics of people before develop into individual. So it can only be regarded as objects. The object doctrine also has two branches. One is the property doctrine and the other is the interests of private life doctrine. The intermediary doctrine advocates the embryo is neither a pure subject nor a simple object. It is a kind of transition located in the middle position between the subject and object. The intermediary doctrine claims special regulation and protection of the law. It includes the subject theory of morals and the potential personality theory. In foreign research status, I have cited some foreign legislative practice.The third part defines the legal attribute of the human embryo. Through brief evaluation the subject doctrine and the intermediary doctrine, it is pointed out that there exist certain disadvantages and the unreasonable place to the both points of view. Then, put forward the view-- human embryos should be the ethical thing and give related arguments. The human embryo has three characteristics of things in Civil law: Outside the human body, domination and usefulness. Human embryo is different from ordinary things and mementos. It has ethicality. From this we may safely draw the conclusion: human embryos should be the ethical thing. In the meantime,refute against the reasons of the academic which is Opposing to define the legal attribute of human embryo for things. And then point out that regarding the human embryo as a thing will not violate to the potential personality of it or damage its dignity.The fourth part discusses the human embryo inheritance of legal problems. Expound and prove such things: human embryo can be heritage. Heir inherited the embryo would not damage its potential human dignity and life potential. Inheriting the embryo is in accordance with the Public order and Good custom and the family planning policy. So we can prove that the human embryo can be inherited. Then explore the rules of right exercising for the heir, including Introducing overseas practice pattern of embryonic inheritance and the human embryo inherit law idea to our country. Inheritance mode should include statutory succession and testamentary succession. Heirs have restricted inheritance. And when heirs conflicts with another for how to deal with the human embryo, we should use the balancing test to resolve it.The fifth part discusses the issue of establishing and perfecting the embryo donation system in China. In this part, we introduce the concept of embryo donation system, the legislative practice of American, and raise the suggestion on China legislation of embryo donation system.