Download This PaperWhat Happens to Embryos When the Would-Be Parents Die: The “Orphaned Embryos” Custody Dispute in China
Ding, Chunyan, 'What Happens to Embryos When the Would-Be Parents Die: The “Orphaned Embryos” Custody Dispute in China' (2015) 45(3) Hong Kong Law Journal 941 - 961; City University of Hong Kong Centre for Chinese and Comparative Law Research Paper Series Paper No. 2020/033.
23 Pages Posted: 2 Jun 2020 Last revised: 25 Nov 2020
Date Written: June 17, 2015
Abstract
Embryo custody disputes have occurred with a wide use of assisted reproductive technology in Chinese clinical practice. In a recent "orphaned embryos" case in China, the progenitors or would-be parents accidently died in a car accident, leaving four embryos cryopreserved in a hospital, and the parents of both progenitors claimed an exclusive right of custody and disposition of the frozen embryos. Although the case ended with the appellate court's decision that the parents of both progenitors had a joint right of custody and disposition of the frozen embryos, the discussion about embryo custody disputes has just begun in China. Starting with this case, this article identifies and analyses four key legal issues arising in "orphaned embryos" custody disputes that have been overlooked by Chinese courts and discusses the legal solutions that Chinese law offers to solve them. The key legal issues include the legal status of the embryo, the agreement on the use and disposition of the embryo, the inheritability of the embryo and associated rights, and the independent right of the would-be grandparents over the embryo. The article concludes with suggestions for improving the law pertaining to the embryo in China.
Keywords: Legal status of the embryo, Orphaned embryo, Embryo custody dispute, Embryo agreement, Inheritability of the embryo, China
JEL Classification: K39
Suggested Citation: Suggested Citation
Chunyan Ding (Contact Author)
City University of Hong Kong - School of Law ( email )
6/F, Lee Shau Kee Building
Kowloon, Shatin, New Territories
Hong Kong
City University of Hong Kong (CityU) - Centre for Chinese & Comparative Law ( email )
Tat Chee Avenue
School of Law, City University of Hong Kong
Kowloon
Hong Kong