Wang Liqing: Reconsideration of the Legal Status of Human Frozen Embryos
2024-11-04
In vitro fertilization embryo transfer "technology is a medical technique that emerged with the development of assisted reproductive technology to compensate for the lack of human fertility. This technology provides infertile couples with more reproductive options and brings hope for the realization of universal reproductive rights. Frozen embryos refer to human embryos formed by in vitro fertilization of sperm and eggs, which develop into fertilized eggs for 2-7 days and are frozen for future reproduction. Since the end of the 20th century, countries around the world have faced ethical and legal challenges posed by frozen embryos, and China is no exception. To solve the above problems, it is necessary to re-examine the legal status of frozen human embryos in terms of legal principles. Based on the current legal policy prohibiting surrogacy in China, this article only explores the situation where both sperm and eggs come from the couple and the frozen embryo is conceived by the wife. The frozen embryo case faces judicial difficulties. In order to regulate human assisted reproductive technology, China has successively issued departmental regulations such as the "Management Measures for Human Assisted Reproductive Technology", "Norms for Human Assisted Reproductive Technology", "Ethical Principles for Human Assisted Reproductive Technology and Human Sperm Bank", etc. Article 1009 of the Civil Code provides the basic rules that should be followed in medical and scientific research activities related to human genes, human embryos, etc. However, the disputes arising from the use of frozen embryos for assisted reproduction have brought many judicial difficulties. This article uses two cases to illustrate. One of them is the frozen embryo inheritance case that first entered the public eye in China in 2013. The Yixing City Court held in the first instance that frozen embryos have the potential to develop into life and are special objects with future life characteristics. They cannot be arbitrarily transferred or inherited like ordinary objects, and therefore cannot be the subject of inheritance. Therefore, the court ruled to reject the plaintiff's claim. In the second instance, the Wuxi Intermediate People's Court believed that frozen embryos are a transitional existence between humans and objects, with the potential to give birth to life, and have a higher moral status than non living organisms. They should be treated with special respect and protection, and from the perspectives of ethics, emotions, and special interests protection, the "supervision and disposal power" should be granted to the four elderly people who lost their only child. The second case is the intentional unilateral abandonment of frozen embryos by a husband, which was tried by the Xuanwu District People's Court in Nanjing, Jiangsu Province in 2018. The Xuanwu District Court believes that the husband's abandonment of frozen embryos constitutes infringement, as frozen embryos are special objects with emotional factors, and the plaintiff suffers from mental harm. When determining the amount of compensation, the court took into account the pain and harm suffered, age factors, and the degree of appreciation for marriage, and ruled that the husband should compensate his wife with 30000 yuan at his discretion. Overall, how to define the legal status of frozen embryos, what rights exist above frozen embryos, and how to handle conflicts of these rights are the three major judicial challenges in frozen embryo dispute cases in China. Among them, the legal positioning of frozen embryos serves as the logical basis. Although all three courts have elaborated on the legal status of frozen embryos in the above-mentioned cases, their views are vastly different. Although the verdict of Wuxi Intermediate People's Court has been widely praised by various sectors of society, what is the connotation of the two rights of "supervision and disposal"? How to exercise rights? When four elderly people have different opinions, whose rights should be given priority protection? After all four elderly people have passed away, who should exercise their rights? These questions have not been answered, which reflects the dilemma that judicial authorities face when dealing with such legal disputes. According to existing theoretical and judicial perspectives, there are three main views on the legal status of frozen human embryos: the subject theory, the object theory, and the compromise theory. However, none of them accurately define their legal status. Firstly, acknowledging the need for comprehensive protection of the right to life of frozen embryos, it is impossible to balance the protection of their rights with the freedom of medical research. Secondly, as one of the object theories, the "property right object theory" has not fully elaborated on the attributions "ethics", "bioethics", and "personality" before "thing", resulting in a legal gap between the definition of legal status and the exercise of rights. In other words, the object of property theory does not fully explain how frozen embryos differ from ordinary objects. Again, according to the "personality right object theory" in the second part of the object theory, spouses have exclusive rights to frozen embryos, but this right needs to be exercised jointly. However, if there is a disagreement between the two parties regarding the fate of frozen embryos, which party's personality rights should be protected first, there is no strong answer in the legal field of personality rights. Finally, the compromise of defining frozen embryos as a transitional existence between humans and objects cannot be justified. Because nothing is in an intermediate state between people and things, there is no continuity of development between things and people, and no one is developed from things. In fact, human embryos in the frozen stage are the prerequisite and necessary stage for becoming fetuses in the mother's body under the conditions of "in vitro fertilization embryo transfer" technology, which is the early stage of human life. Although it may not necessarily lead to becoming a legal person, it has the potential to nurture and grow into a living being. Legally, frozen embryos are neither subject nor object, neither human nor object, and do not belong to the transitional stage from object to human. In the current legal context, frozen embryos are a unique entity similar to fetuses and can be referred to as "fetal like life forms". This definition breaks the binary distinction between "subject object" and "person object" in the traditional context of civil law. Compared to fetuses, frozen embryos are both similar and different, involving more complex and diverse legal rules, and their power spectrum is systematic and diverse. On the one hand, frozen embryos as "fetal like life forms" are "potential human life forms" and have the potential to develop into civil subjects. The theory of extended protection of personality rights in modern civil law emphasizes comprehensive protection of the entire process of human life. China's Civil Code also grants partial civil rights capacity to fetuses and recognizes their subject status in limited fields. Based on the above theories and legislative developments, it is natural to extend protection for the pre implantation stage of the fetus (i.e. frozen embryos before implantation) under the conditions of "in vitro fertilization embryo transfer" technology. From the fertilized egg, a person begins the process of personality development and gradually acquires basic personality elements such as life, body, and health. This provides a theoretical basis for recognizing that frozen embryos have partial legal capacity in certain legal relationships and for protecting their subject rights. Accordingly, according to the legal provisions on fetal protection, frozen embryos can be granted civil capacity in certain circumstances and regarded as civil subjects. However, the scope of its subjective rights needs to be limited in accordance with the provisions of the Civil Code on fetal protection. Specifically, in the fields of testamentary inheritance, acceptance of bequests, acceptance of gifts, and infringement, the right to freeze embryos should be protected. On the other hand, the difference between frozen embryos, a "fetal like life form," and fetuses mainly lies in the physical space they are located in. Based on the objective fact that frozen embryos are outside the mother's body, whether they can ultimately obtain civil subject status is in a more uncertain state compared to fetuses, and their fate presents two possibilities. One is that the couple jointly decides to use it for reproductive purposes, and at this time, the couple has personality and identity interests in frozen embryos, which reflects their personality and identity rights. In detail, although frozen embryos are temporarily located outside the body, when they are to be transplanted into the wife's uterus in the future, their integration with the wife's bodily functions cannot be eliminated, which is a manifestation of bodily rights. The decision of a couple to use frozen embryos for reproduction is an exercise of their personal independence and freedom, which is a manifestation of their general personality rights. The fundamental reason why frozen embryos are created is that couples reasonably expect frozen embryos to conceive and give birth to a baby, and then establish an identity relationship with the baby. In this sense, couples have an expected identity right to frozen embryos. The second is when the couple jointly decides to use frozen embryos for non reproductive purposes, usually when the couple's desire to conceive is fulfilled, frozen embryos are no longer needed, or when the couple decides not to have children, and the couple agrees to donate or destroy frozen embryos, which reflects the property rights of the husband and wife over frozen embryos. In short, frozen embryos have two forms of existence: subjective existence and objective existence, and two types of rights: subjective rights and objective rights. Only by fully understanding the similarities and differences between frozen embryos, a "fetal like life form," and fetuses can we find the correct solution in the complex theories and endless judicial cases. In addition, we cannot simply limit the legal positioning of frozen embryos to the stage of shaping legal concepts. We also need to further construct a corresponding legal rule system, explore specific types of rights, exercise and protection of rights, and methods for handling conflicts of rights and other legal challenges. (New Press) (This article is a phased achievement of the National Social Science Fund's general project "Legal Regulation Research on the Application of Human Embryology in Medicine" (22BFX157), and the author is an associate professor at the School of Law, Shandong University of Commerce)
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