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A Legal Battle Over Frozen Embryos in China

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It is not uncommon for people nowadays to seek out assisted reproductive technology, such as in vitro fertilization (IVF), to conceive children. The technology allows freezing the embryos created through IVF for use at a later date, when for example fertility may become an issue. Disputes over who owns the frozen embryos may arise later, typically when these people no longer want to have children together.

Four years ago, a court in China heard a dispute over the custody of four frozen embryos where the husband and wife who had created them had both died. The story of a baby born from these embryos by a surrogate mother has recently been covered by media across the world, including the New York Times and the Beijing News (the original story in Chinese). The couple pursued IVF in 2012 after receiving an infertility diagnosis, and four fertilized eggs were produced and frozen in the hospital. In March 2013, right before the embryos were to be implanted, the husband and wife were tragically killed in a car crash.

Laws of the Tang Dynasty collected by the Law Library (photo by Laney Zhang)

According to the media reports, the husband and wife were both only children. After they died, the couple’s parents were desperate to have grandchildren from the embryos to continue the family lines. The problem was: the hospital would not release the embryos to them. Thinking suing the hospital was “too risky,” one pair of grandparents sued the other for custody of the embryos, with the hospital involved in the suit as a relevant third party.

The final decision in the case was located through China Judgement Online, an online platform started in 2013 where Chinese courts at all levels are required to post their judgments. The first trial court ruled against the grandparents on the grounds that: 1. embryos are special property with the potential to develop into lives, so they cannot be inherited or transferred as ordinary property; and 2. the deceased couple in question won’t be able to bear children by themselves, and it is illegal to sell embryos in China.

On September 17, 2014, the appeals court, Wuxi Intermediate People’s Court in the Jiangsu Province, made the final decision in the grandparents’ favor. Court decisions do not formally constitute binding precedents under the Chinese legal system. Nevertheless, this case may be the first of its kind in China, which may therefore have a guiding effect on other courts in hearing future disputes over frozen embryos.

Highlights of the appeals court decision:

  • Legal status of embryos. The legal status of embryos has not been clearly determined under the current Chinese law. Rather than categorizing the embryo as a person or property, the appeals court said the embryo is “a transitional existence with the potential to develop into life, which has a higher moral status than lifeless objects and therefore should be specially respected and protected.”
  • Factors considered in this case. In this specific case, the court considered family ethics and feelings of the parents of the deceased couple, holding that giving them custody of the embryos may to some extent relieve the pain of losing their only children in their old age. In addition, they had the best and closest interest in the embryos, the appeals court held.
  • Legality of surrogacy. In 2001, the then Ministry of Health (MOH, now National Health Commission) issued a departmental rule prohibiting medical institutions and medical staff from performing any form of surrogacy procedures. Purchasing or selling embryos is also prohibited by the MOH rule. Other than this and other relevant MOH rules, the Chinese law does not expressly say that surrogacy is illegal. While instructing the grandparents to “observe the law without violating the public order or good customs” after obtaining the embryos, the court held the departmental rules of the MOH could not restrict individuals’ legitimate rights based on the private law.

Therefore, the appeals court granted the four grandparents joint custody of the frozen embryos. Since no hospitals in China may perform the surrogacy procedure, the families found a hospital and a surrogate mother in Laos through an agency, and their grandson was born on December 9, 2017 in Guangzhou, China.

Law Library holdings of the ancient Chinese law (photo by Laney Zhang)


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