Research On The Disposal Of Human Frozen Embryos

With the development of science and technology,People's concept of birth has become more and more free.More and more families choose artificial assisted reproduction technology to realize their reproductive rights,forming a double-track bearing system of natural reproduction and artificial assisted reproduction.The extensive application of artificial assisted reproduction technology has solved the population problem to a great extent.In vitro fertilization-embryo transfer technology is a more widely used and universal technology.Due to the particularity of human frozen embryos,it also poses challenges for judicial and legislative work.The legal attribute of frozen embryos is the first problem to be solved,which is the premise of the ownership and disposition of embryos.The definition of frozen embryos as personalities does not break through the restrictions of law,but also takes full account of the personality of embryos.The attribution of the right to dispose of frozen embryos and the rules of exercising the right to dispose should take full account of the object and personality attributes of property rights.This paper is divided into three parts:The first part of the paper is based on the practical cases of the right to dispose of frozen embryos to discuss the main legal problems in the process of frozen embryos disposal in China.At present,there is no special legislation on frozen embryos in China,which leads to the vague definition of the legal attributes of frozen embryos and the unclear ownership of the rights of frozen embryos.In judicial practice,the legal attributes of frozen embryos are not uniformly defined by the courts,which leads to the difficulty of unifying the judgment results of the courts in dealing with disputes over the right to dispose of frozen embryos.The second part discusses the legal attributes of frozen embryos by combining ethics with law.The main theories of the legal attributes of frozen embryos in academic circles are subject theory,object theory and intermediary theory.Subject theory neglects the essential characteristics of legal subject and enlarges the scope of legal subject.Although it is conducive to the protection of frozen embryos,it is contrary to the legislative purpose of supporting abortion and surplus embryos for scientific research in China.Object theory does not highlight the personality of frozen human embryos,which easily leads to the commercialization of frozen human embryos and the proliferation ofsurrogacy.The traditional dichotomy theory of "human-object" in China,if human frozen embryos are defined as intermediaries,can't be applied to the existing legal system to give them adequate legal protection.Frozen embryos,as personality,are the basis and right to determine the content and mode of exercise of rights.The third part defines the attribution of disposition rights among the right holders on the basis of the personality property of frozen embryos.The couples receiving embryo transfer operation are the original rights holders of frozen embryos,and both sides have the right to dispose of frozen human embryos.Medical institutions have the right to dispose of the remaining frozen embryos without owner after the couples give up the frozen human embryos,but the content of the right to dispose of the medical institutions should be limited.After the death of one spouse,the living party enjoys the complete right to dispose of frozen embryos;when both spouses die,human frozen embryos can't be inherited as inheritance,but based on the life value and personality interests of embryos,the right to dispose of embryos can be accepted by the parents of the deceased.The fourth part mainly discusses that the right to dispose of frozen embryos should follow special rules because of its particularity,and the content of the right to dispose of frozen embryos should be different from the general legal object.The content of the right to dispose of frozen embryos should also be differentiated and restricted according to the different subjects.The couples receiving embryo transfer operation are the original rights subject of human frozen embryos.The content of the right of disposal includes embryo transfer,donation to other infertile couples,donation to medical institutions and destruction.When exercising the right of disposal,couples should abide by the provisions of the Property Law on common ownership and must reach agreement.The right to dispose of frozen embryos that have not been transferred into the mother or remained frozen embryos after transplantation belongs to medical institutions.When confirming that the couple has given up frozen embryos,medical institutions may destroy them or use them for scientific research,but they may not provide them to other couples to have children without compensation or free of charge.When couples divorce,based on the fact that frozen embryos can't be separated or transferred,they should still enjoy the rights of both spouses.When dealing with frozen embryos,they should follow the unanimous agreement of both spouses.When couples can't reach an agreement,there are contract mode,final intention expression mode and interest measurement mode for the treatment of frozen embryos abroad.Considering the social culture and family ethics of our country,when couples can't reach an agreement,they should support the intention of the infertile party and continue to preserve frozen embryos.When one of the spouses dies,the living party becomes the right holder of frozen embryos;when both spouses die,the specific heir has the right to get the right of frozen embryos,but when exercising the right of disposition,the right content should not exceed or even be less than the original right holder's right.In order to prevent the generation of surrogacy,the heir may not use frozen embryos to bear children.Frozen embryos may be donated to other people for fertility or to scientific research institutions,or they may choose to continue to be preserved.