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Research on Law Issues of Fetus Interests’ Protection

Author: ZhangZuo
Tutor: QinWei
School: Shandong University
Course: Civil and Commercial Law
Keywords: Fetus Civil right Compensation for damages Remedy method
CLC: D923
Type: Master's thesis
Year: 2008
Downloads: 537
Quote: 1
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Abstract

The modern medical technology development make the fetus no longer recognized as a simple part of the mother, it is not merely a "people" on biological sense, but also a potential legal "person." This paper endorsed in the broadest sense of the explanation of the word "fetus", distinguish with its biology and medicine sense, which includes fertilization of embryos and fetal period as a whole before conception to birth process. As the Chinese words themselves with very high general, and considered of the public understanding of the word "fetus" in habit, this paper would rather use the term "fetus" with its expanding interpretation than use the literal translation of its abroad calling "unborn child". As a "person" with the biological significance, the fetus already have the initial status of the life, they already possess the self-value and the sanctity of the life. To avoid arbitrary violations of the fetus’ interests is a legal requirement. With the advancement of industrialization process in the community, the encroachment upon the fetal interests cases constantly being raised; finding the way to apply the law on such cases is a strong driving force to promoting theoretical research and the legislative process. The protection of the fetus’ interests is no longer a fantasy of scholars, but the reality of practical needs.The earliest protection of the fetal interest originated in ancient Roman law. There are lots of argues about the fetal protection, such as whether the fetus have the civil right or not, what’s the basis of the protection of the fetus, and so on. The civil law countries create a wide range of legislation to protect the interests of the fetus according to different theoretical basis. This article holds that, the civil right ability is "a gem" of the private law and its practical significance will not lost in the current system, giving the fetus the civil ability is the best way to protect their interests perfectly, and it also can be completely established on theory. Among these Europe countries and the United States, Germany has the most advanced development of the fetal protection, and the United Kingdom has special legislation of it, the biggest controversy on it was happened in the United States. Lots of special cases happened in the United States, "Wrongful Birth"," Wrongful pregnant "and" Wrongful life" had once become to the focal point of controversy. The paper has done a detailed analysis on the special cases. Generally speaking, the broad attitude should be taken to protect the interests of fetal.By the challenges and the impact of modern reproductive technology, the fetus’ legal sense needs to be defined clearly that it must be a product of gender reproduction, and must be the production of human sperm and eggs combined, not other animal cells or human somatic cells. Fetus must be pregnant in mother’s body and on birth naturally. The modern reproductive technology and the continuing development of new methods of fertility make great impact on the traditional concept of reproductive ethics and moral values. Some new kinds of identities such as "surrogate mother", "lease parents," and "the surrogate fetus" comes out. This paper believes that the surrogate fetus’ mother in law should be the "leases parents," and "surrogate mother" can not become the main violations of the fetal interests. Although "the surrogate fetus" was produced by a very special way, the scope of their rights should not be distinction with the common fetal pregnancies. For keeping the stability of family relations, and considering of the surrogate fetus’ privacy and dignity, laws should not give the surrogate fetus the right to inherit their surrogate mothers’ heritage.At present, there are still many gaps of fetal interest’s protection on the China’s Legislative. Based on the above analysis, this paper give some legislative proposals, that is, on the basis of giving the fetus special civil right, laws should give the specific provisions of fetal rights in the area of tort law, the law of inheritance as well as the procedural law. This paper will define the legal meaning of the term "fetus", and on this basis, anglicizing the ethical foundation and practical significance of fetal interests’ protection. Through the civil law and common law’s different perspective, after doing lots of research on existing data, this paper will make some comparative analysis of the relevant law theoretical issues and use the micro-macro comparison method, do some analysis on a number of issues about fetal protection of the interests on the theoretical basis and the tort areas. Because of the application of human assisted reproductive technology’s impact on fertility methods, this paper wanted to give some advice on the fetal interests’ protection, hoped to make some useful discussion on this topic.

Research on Law Issues of Fetus Interests’ Protection

Abstract

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