On The Legal Attributes And Rights Of Frozen Embryos

Assisted reproductive technology has existed for more than 200 years since its birth.Embryo freezing thawing,as a derivation of the assisted reproductive technology,has also developed quickly,and the "product" of it is called frozen embryos.The frozen embryo is an early embryo formed by artificial in vitro fertilization,and is known to be "frozen" by cooling the embryos in liquid nitrogen at minus 196 degrees Celsius in order to stop the embryo.Early embryo is only a group of cellular tissue without inanimation.The fetus developed from early embryo is called "test-tube baby".With the increasing incidence of infertility in China,embryo transplantation is widely used in this country.Data show that the use of frozen embryos for transplantation is the most effective treatment for infertility.In addition,frozen embryos are the primary source of stem cells which are used in embryonic stem cell research.The study of embryonic stem cells is important for the future of human medicine due to the promise of curing many complex diseases.But the research's ethical nature has been controversial because it would destroy early embryos.However,the research is legal in China.However,contrary to the actual demand for frozen embryos,the relevant legislation in China is still imperfect,and the existing rules also have major differences in the course of their application.The remaining four Department Regulations only focus on the restriction of medical institutions and medical personnel,and do not stipulate the legal nature,the right attribution,the disposal methods and other civil legal issues of frozen embryos.Therefore,the court usually will fall into trouble when it solves the dispute over frozen embryos.China's first case of frozen embryo succession in 2014 is the most typical one.The case not only aroused widespread concern from all walks of life,but also set up a great discussion the legal attributes of frozen embryos in the legal circle.And there are three main viewpoints about legal attributes of frozen embryos,namely “subject theory”,“compromise theory”,and “object theory”.In the subject theory,frozen embryos are considered as human beings,the subject of civil legal relation,and should be protected as a nature person.The subject is divided into two theories,the limited nature person theory and the legal person theory.The former holds that frozen embryos could enjoy limited property rights and personal rights.While the latter considers frozen embryos as a kind of special combination.The author believes that there is a flaw in the subject theory which results in non-operability in China.Firstly,the embryo is not the real nature person.The recognition of its subject identity not only differs greatly from the public's general knowledge,but also contradicts the theory of the “independence of breathing”in the determination of natural person in China.Secondly,there is excessive protection based on the frozen embryos' subject identity compared with the protection given to fetus in China.Thirdly,the subject theory which opposes the use of frozen embryos for medical research,could hinder the development of stem cell research.Finally,the subject theory will make abortion,destruction of frozen embryos,or even the manufacture of embryos in vitro facing a moral and ethical problem that would fundamentally denies the need for frozen embryo related technologies.The compromise theory,also known as "middle" or "mediation" theory,think that frozen embryos is neither the subject,nor the object,but a kind of transition between the subject and object with the double legal attribute,and should be protected by special laws.The theory is not only adopted by the court in many foreign judicial practice,but also popular with Chinese scholars.These scholars believe that the legal attribute of frozen embryos cannot be accurately defined under the existing system of civil law.A new pattern of civil law with “human-transition – thing” should be established to adapt to the existing legal system with the development of science and technology.In this regard,the author thinks that the compromise theory combines the advantages of the subject one and the object one,and avoid the disadvantages of using only one of these two theories to define the frozen embryos.However,there is still a fatal flaw in the compromise theory: as far as the civil law system is concerned,there is no realistic possibility of creating a transitional existence between subject and object.The author advocates the object theory and tends to search for the "resting place" of frozen embryos in the existing civil law system.The object theory thinks that the frozen embryo is just a group of cell tissue,which is the object in civil law and civil legal relationship,and could be applied directly to the relevant laws.The object theory can be divided into property theory and private interest theory.The differencebetween them is whether the embryo can be disposed of by others than the couple.The opponents argue that the object theory denies the frozen embryos' possibility of becoming human beings.Considering frozen embryos as common objects shows no respect for life,nor is it adequately protected.The opponents generally think that the compromise theory should be adopted.The author believes that the special properties of frozen embryos decided that frozen embryos even with that object will not be regarded as common objects even with the object theory.Some scholars have put forward a new point of view on the classification of objects,which provides a sufficient foothold for the adoption of frozen embryo object theory.Frozen embryo belongs to the ethical substance with personality attribute.This view defines the fundamental properties of frozen embryos,and emphasizes the protection of the potential personality of embryos,and effectively counter the view of discarding or trading frozen embryo as common objects by the opponents of the object theory.The viewpoint of ethical substance can not only keep the "balance" required by the compromise theory,but also need not break the existing civil law system.It is more operable in practice and should be adopted by the legislation of China.Based on the above qualitative characteristics of frozen embryos,the author would discuss the design of the related system.Regarding the right attribution and disposal rules of frozen embryo,the author believes that it should be discussed according to the marital status of the married couple.There are four kinds of frozen embryos' disposal methods according to the law of China.They are fertility,destruction,medical research and preservation.During the duration of the marriage relationship,frozen embryos are jointly owned and decided by the couple;Once divorced,the frozen embryos should be decided to destroy or donate to medical research by the two parties in consultation.Otherwise,the medical institution will destroy the frozen embryos after the expiration of the storage period;If one of the couples dies,the frozen embryos should belong to the surviving one without inheriting.But the means of disposal by the surviving one should be limited.If the husband is alive,the frozen embryos can only be destroyed or temporarily preserved by the decision of the husband according to the illegal of surrogacy in China.Once the wife survives,the author believes that the wife's wishes should be fully respected,and frozen embryos should be decided whether to use for fertility or to perform three other treatments by her individually;When the couple both dies,the frozen embryos left behind can be inherited as an inheritance.In the form of succession,testamentarysuccession should take precedence over statutory succession.In the order of succession,the parents and children of the couple who died should be the first,the brothers and sisters are the second,and the grandparents are the third.The same succession of successors share the frozen embryos and decide on how to deal with them.Multiple embryos should be considered as a whole to be inherited and disposed of inseparably.The successor shall perform the preservation,destruction or donation of the frozen embryo in his own will,unless the original right holder of the embryos explicitly requested the disposal of them before he died.Finally,the author puts forward two suggestions on how to perfect the protection system of frozen embryo in china: First,in combination with the actual situation of large-scale frozen embryos in China's medical institutions,we should set up legislation to set the longest period of preservation for frozen embryos.Medical institutions shall promptly clean the frozen embryos which are over the time limit in accordance with the provisions of the agreement.This would not only conducive to the development of medical and reduce the incidence of disputes involving frozen embryos,but also can prevent the occurrence of generational confusion of family ethics and the wasting of medical resources.Second,considering the real needs of frozen embryos donation in current China and referring to the experience of foreign legislation,China should establish an embryo donation system.And make sure that the system would be designed strictly so that it would really serve the people in need rather than illegal embryo trading.