The Tort Liability Of Unilateral Abandonment Of Human Embryos

Unilateral abandonment of human embryos is a new type of infringement in the field of Assisted Reproductive Technology,involving human embryos,gender differences,genetic material links,non-traditional families of unmarried cohabitation or homosexuality etc.Because of the special legal status of human embryos,the diversity of subjects and the complexity of influencing factors,any application of a single principle of imputation is flawed.Among the numerous factors,the genetic material link has the most substantial influence on the status of both parties.So it would be the basis to distinguish the application of imputation.If the medical institution fails to perform the obligation of informing the injured party when the embryo co-owner abandon the embryos.The principle of presumption of fault shall be applied to the liability of medical ethics damage.The constitutive elements of the tort liability include general constitutive elements and special constitutive elements.Generally constitutive elements consist of unlawful act,fact of damage,causal relationship between unlawful act and damage,and subjective fault.The discussion on the object of tort and fact of damage expounds that the object should be based on joint ownership rather than the rights of the body,health or reproductive information.Also it is worth discussing the particularity of family affairs,and the changes in thereproductive environment to avoid the pitfall of family promise.The applying of spirit damage compensation,which is different from the remedy for infringement of ordinary things,should also meet the special constitutive requirements.which is that the infringed has the personality interests on the embryo,and the unilateral abandonment has damaged the personality interest of the infringed.The subjects of liability include embryo co-owners,medical institutions or other people.The tort liability is mainly based on the liability for damages.Under special circumstances,apologizing,side effects removing,reputation restoring can be applied simultaneously.Whether liability for damages is feasible depends on removing the legal obstacles.That is the divorce damage compensation system on article 46 of the marriage law and the joint property system of husband and wife.The scope of compensation includes property damage compensation and spiritual damage compensation.The remedy of property damage compensation should solve the problem of compensability of medical cost,storage cost and the damage of embryo itself.Because the economic value of the embryo is difficult to evaluate,and there is no need to evaluate at present,the damage of embryo itself can not be compensated.The spiritual damage compensation should refer to article 4 of judicial interpretation of mental damage compensation.The compensation amount shall consider the victim's physical pain and risk,age,emotional degree,possibility of reproduction,regional economicdevelopment level and so on.The exemption from liability in such infringement can make up for the one-sidedness of general elements of tort liability in covering facts of the new cases,so that the new type of cases is still within the control of law.The exemptions include the victim consent,negligence offset,third-party behavior and force majeure.Among them,the victim consent is not the legal reason,and its application should be fully demonstrated.