Research On The Legal Attributes And Rights Of Frozen Embryo

The product of artificial assisted reproductive technology for frozen embryos is a new fertility option for many infertile couples.With the continuous development of society,frozen embryo disputes have become one of the common disputes in court trials.When couples undergo IVF-frozen embryo surgery,in order to ensure the success rate,multiple embryos are often synthesized and stored in the hospital.Most of the reasons for the dispute were that one of the spouses who received the operation requested the hospital to return the operation due to the death of one of the spouses or physical reasons that could no longer undergo in vitro fertilization,and the hospital refused on the grounds of inadequate surrogacy and storage.Due to the current lack of relevant legal provisions on the legal issues involved in embryo freezing in China,there are problems such as unclear arguments on the nature of rights and the basis for adjudication when hearing embryo freezing cases.In judicial practice,the first difficulty in the trial of frozen embryo cases is how to determine the properties of frozen embryos.The legal attributes of frozen embryos currently exist in three schools of thought.In judicial practice,courts often adopt the compromise theory or special object theory,treating frozen embryos as a transitional form of human and material existence or as a special object.Determining the legal attributes of frozen embryos is the first step to solve the legal issues related to frozen embryos and one of the prerequisites to solve the division of the nature of rights and rights attribution for the subsequent right holders to claim their rights to frozen embryos.In addition to the objective factors affecting the characterization of frozen embryos,we should also consider the degree to which our traditional concepts,existing laws and social development fit into the choice of the legal attributes of frozen embryos.In addition to respecting the special conditions of frozen embryos themselves,the change in China’s population policy also makes it more appropriate to characterize frozen embryos as a transitional form between human beings and objects.The second controversy in the frozen embryo case is about who owns the rights of frozen embryos.Another prerequisite for the attribution of rights to frozen embryos is whether the person has the right to assert the claim and what the nature of the right to assert the claim is.This issue is often overlooked by courts.The right of custody and the right of disposal raised in Yixing frozen embryos were sometimes adopted and sometimes not adopted in judicial decisions in the following years due to the unclear connotation of their rights,and instead the relevant rights were vaguely dealt with.The right holder has the right to claim the frozen embryo,and the doctrine has identified whether the right holder has the right to make such a claim and what kind of right he or she is claiming,and the reproductive right,inheritance right,custody right and disposal right that have appeared in the claim of frozen embryo have been analyzed in terms of their connotations,and the rights that are appropriate for the claim of frozen embryo have been identified.Courts have often adopted the closest connection doctrine for the attribution of rights to frozen embryos,and have lacked a weighing of the defenses and interests behind them.The courts’ adjudication path should be supplemented and improved from a doctrinal perspective.In order to prove the existence of a right,we should start from the functional theory of rights,compare the voluntarism of rights and the interest theory of rights,use the interest theory as a tool to weigh the interests behind the claims of the parties,and find the most reasonable conclusion for the attribution of the right to frozen embryos,and make a doctrinal justification for the judicial decision of the court to improve the logic of its decision.Frozen embryos have both physical characteristics and the potential possibility of developing into adults,and also contain certain emotional benefits.This means that when the law deals with the issue of frozen embryos,it should first give legal certainty to the properties of frozen embryos,and secondly,how to dispose of frozen embryos after the right holder obtains them should also make provisions,and make provisions on the disposal of frozen embryos under the premise of respecting the special attributes of embryos,respecting the intention of the parties,and respecting social order and interests,on the one hand,it will help the right holder to better exercise its rights over frozen embryos and make better use of frozen embryos;On the other hand,it also restricts the scope of rights exercised by right holders in order to maintain social order.Solving the legal issues related to freezing embryos is the response of the law to the development of modern science and technology.Regulating frozen embryos through legislation will help solve the difficulties in handling relevant cases in judicial practice,and provide theoretical rationality for the solution of the problem of frozen embryos in China.