An Analysis On The First Case Of The Ownership Of Frozen Embryos In China

In May 2014,the first case of frozen embryos occurred in Yixing City,Jiangsu Province.A couple who wanted to have children through assisted reproduction died in an accident,and their parents appealed for inheriting the frozen embryos of the deceased child.The first trials held that the frozen embryo was a special object with life potential,and that it could not be the object of inheritance,so it rejected the plaintiff's claim;The second trials analyzed and reasoned from the aspects of morality and ethics,and decided that the parents of both sides of the deceased obtained the ownership.The result of the two trials has caused a heated debate:what is the legal attribute of frozen embryos? How to determine its ownership.But at present,the current law does not have clear provisions on the above issues,and the upcoming civil code,the draft of personality rights,only stipulates that when engaging in medical and scientific research activities of human embryos,it is not against ethics and public interests,and the legal community has not reached a consensus on this.In order to solve the embarrassing situation of the application of law in judicial practice,it is necessary to analyze and study the problems related to frozen embryos.First of all,through the case analysis,we think that the two major controversial focuses of this case are how to identify the legal attributes of human frozen embryos and how to judge the ownership.Secondly,by analyzing the advantages and disadvantages of the three mainstream theories of "subject theory","object theory" and "intermediary theory",and combining with foreign legislation and cases,the author thinks that the legal attribute of human frozen embryos should be identified as "ethical thing",aiming at the ownership of frozen embryos,the author thinks that the judge should follow the autonomy of the parties' will,public order and good custom,and the closest connection when trying related cases According to the guidance of many principles,and according to the specific situation of the husband and wife,the judgment should be made: during the existence of the husband and wife relationship,the principle of consensus should be followed;in principle,the interests of the barren party should be respected when the husband and wife divorce;in the death of one of the husband and wife,the otherparty should exercise their rights;in the death of both husband and wife,the ownership should be determined according to the provisions of the inheritance law.At last,the author puts forward the specific legislative provisions on the legal attribute and ownership of frozen embryos.In order to further solve the problem of ownership of the remaining frozen embryos without owner,it is suggested to draw on the practical experience of foreign countries,establish an set of embryo adoption system in line with national conditions,adhere to the principle of signing a written agreement,prohibiting commercialization and mutual blindness,make specific provisions on the conditions of embryo adoption and the rights and obligations of the adopter,and put forward corresponding ethical issues that may arise from the embryo adoption system Countermeasures.