An Analysis On Legal Disputes Over Rights About Frozen Fertilized Human Embryos

Through an analysis of selected typical cases concerning frozen fertilized human embryos,this paper concludes:first and foremost,frozen fertilized human embryos should not be defined as a civil subject;there is no "transition between a civil subject and a civil object" in the current civil law system.And it is unnecessary to create such a new category.As the reasons for putting forward the intermediary theory is not fully established,the legal attribute of the frozen embryo should not adopt this theory;the frozen fertilized human embryo separates from the spouses,possesses the nature of an object and carries the personality interest of the spouses,therefore,the frozen embryo,the special object,is owned by the spouses who intended to use it for fertility Secondly,as seen in the cases concerning frozen human fertilized embryos,it happens frequently that spouses who intended to use human fertilized embryos for fertility requested the hospital return them.The spouses and hospital do not establish a custody relationship but a medical service contract.The medical service contract can be compared with a commission contract.Hospitals use medical technology to fertilize the egg,plant frozen human fertilized embryos and finally transplant them The medical service contract involved in these cases can be regarded as a double typical contract in the mixed contract,which deals with the different parts separately Spouses in the cases enjoy the right to terminate the medical service contract.After the termination of the contract,the hospital should return frozen human fertilized embryos to spouses.Thirdly,the article analyzes the cases in which close relatives ask hospitals to return the embryos.The embryos have no property value so that cannot be inherited,therefore relevant provisions concerning inheritance can not be applied to the cases.Both human embryos and organs are body separated parts carrying the interests of personality Paragraph 2 of article 8 of the Human Organ Transplantation Ordinance recognizes that close relatives can dispose of body remains and organs.As frozen fertilized human embryos are left by the spouses,the rules of the remains and organs can be applied by analogy,so that close relatives have the right to dispose of the embryos.As it is impossible to fulfill the purpose of the medical service contract,the rights and obligations of the two parties in the contract are terminated,so the hospital in the cases cannot occupy the frozen embryo anymore.Fourthly,considering the relevant department regulations and potential ethical risks,hospitals cannot refuse to return embryos to spouses.The last,the exercise of the rights of the parties should follow the principle of public order and good morals.