A Study On The Tort Liability Of The Misplaced Sperm Case

There is a kind of rare cases in the connection between the field of human assisted reproductive services and the Tort liability Law.The representative cases are Wang Hao Case in our country and Andrews Case in the United States.The common viewpoint of these cases is that during the performance of the contract for artificial assisted reproductive services,the third person's sperm was mistakenly injected into the wife's body due to the fault of the medical institution,and the child was born with no blood relationship with the husband.From the perspective of tort liability,there are three controversial points in these cases:First,what is the fact of tort damage in such cases?Whose rights are infringed on?Second,what is the type of tort liability in such cases?General infringement?Or special infringement?Which category of specific tort liability it belongs to?Third,what is the scope of tort damages in such cases?In the " misplaced sperm " case,the behavior of the medical institution undoubtedly violates the wife ' s physical right and the right to health.However,it's a question and the main research object that whether the child's right to life,human dignity,or right to take custody of a biological father have been infringed?whether the wife's reproductive right have been infringed?whether the husband's right as a father,bodily right and reproductive right have been infringed?In order to answer the question that whether the child ' s rights are damaged or not,it is necessary to demonstrate from three aspects:the rights of the child are not harmed,the interests of the child are not impaired,and the timing of the infringement is not correct.With regard to the husband's damaged rights,we need to distinguish two situations:the sperm provided were lost by the medical institution and not yet lost,the former violated the husband's physical right,the latter is the opposite;The reproductive right belongs to a general personality right,and every natural person enjoys the right equally.The content of this right is freedom of procreation,and the medical institution violated the wife's and husband's reproductive right.Before the reproductive right has been established as a specific personality right,it can be protected by Article 109 of the General principles of Civil Law and Article 2 of the Tort liability Law.ln order to clarify the connotation and extension of reproductive right,reproductive right should be established as a specific personality right when the conditions are ripe.The applicable order of tort liability is to apply special tort liability first and then general tort liability.The infringement subject of the"misplaced sperm"case is medical institution.At the same time,taking the application of artificial assisted reproduction technology as an object,the author analyzes the subject of implementing the technology,the content of implementing the technology,and the purpose of implementing the technology.It can be concluded that the application of this technology belongs to the "diagnosis and treatment activity"stipulated in Chapter 7 of the Tort liability Law,so that the infringement subject of the"misplaced spermatozoa" case should bear the special tort liability,namely-the medical damage liability.According to the principle of imputation,the medical damage liability can be classified into three specific types:the responsibility of medical technology damage,the responsibility of medical ethics damage and the responsibility of medical product damage.The infringement subject of the "misplaced sperm" case should bear the the responsibility of medical technology damage based on two reasons:the application of artificial assisted reproductive technology belongs to the"diagnosis and treatment activities",and medical institution did not fulfill the medical treatment corresponding to the prevailing medical treatment obligations.In the scope of tort damages of "misplaced sperm",the medical institution shall compensate the victim for property damage and mental damage.In the property damage compensation,.the compensability and compensation degree of the child's basic maintenance costs are controversial.Starting from the the causal relationship of limitation of liability,the medical institution infringes on the couple's reproductive rights and leads to additional basic support costs,which should be compensated by medical institution;At the same time,in the compensation proportion of the expenses,there is no room for application of the principle of offsetting gains and losses,and there are no cause and basis for decrease of responsibility.Thus,the compensation ratio should be 100%.At the same time,there is competition and coincident between liability for breach of contract and tort liability in these cases,although the couple expend many money for artificial reproductive surgery as the charge of the medical service contract,it can still get compensation in the tort litigation of medical damage liability.ln addition,the behavior of medical institutions caused serious mental damages to the parties and should refer to relevant factors to compensate the parties for a higher amount of mental damage solatium.