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UPDATED: June 27, 2014 NO. 26 JUNE 26, 2014
Embryos in the Courthouse
The ambiguous legal status of in vitro fertilization is causing headach for some families
By Yuan Yuan


On March 20, 2013, Shen Jie and his wife Liu Xi died in a tragic car accident in Yixing, east China's Jiangsu Province—five days before Liu was to have a fertilized egg transferred into her womb using in vitro fertilization technology. Though they have been laid to rest for more than a year, the grieving process has not ended for their families, who decided to go to court to fight for the frozen embryos that would have been used in the procedure.

Shen and Liu got married in 2010, but experienced difficulty conceiving naturally and eventually decided to try assisted reproductive technology. In February 2012, they had embryos made through artificial fertilization by the Nanjing Drum Tower Hospital in Nanjing, capital of Jiangsu.

Since the birth of the first baby conceived outside a woman's body in 1987, science has given childless couples around the world a new hope. For the first time, fertility experts could combine an ovum and sperm in a petri dish and create an embryo that had the potential to become a living child.

In January, Shen's parents filed a lawsuit with a court in Yixing against Liu's mother and father. Both wanted to use the embryos to continue the bloodline of their children. The court later added the Nanjing Drum Tower Hospital, where the frozen embryos are stored, as a third party.

The arguments

The plaintiff's request for the embryos was rejected finally on May 15.

"Since the couple died and could not realize their plan to have a child, the embryos they left behind cannot be inherited," the court said in a ruling. "The frozen embryos were intended for the dead couple to have a baby with the help of technology. They have limited rights and are not inheritable."

"A frozen embryo is a 'special object' that can develop into life," said Lu Yaqin, the judge presiding over the case. "It is the ethical nature of the embryo that distinguishes it from other objects that can be inherited."

The hospital also refused to hand the embryos over to anyone, explaining in court that the only way to make such embryos grow into children would be to transplant it into a surrogate mother. The procedure is illegal in China and against medical ethics.

"The nature of frozen embryos has not been officially defined and the hospital could not transfer the frozen embryos to the family, as China has strict requirements for the disposal and management of them," said Zheng Zhelan, an attorney for the hospital.

"The only way to keep the embryos alive is to have them implanted in a surrogate mother, but that is against the law in China," Zheng added. He also mentioned that although the hospital has the ability to preserve embryos for years, the couple signed a document in 2012 authorizing their embryos to be destroyed a year later.

"The one-year deadline has passed, and the parents of the dead couple are worried that the embryos may be destroyed," said Guo Wei, the lawyer for Shen's parents. "The couple only intended to buy more time for the embryos by transferring them to other hospitals."

Guo said that there is no law in China banning embryos from being inherited. He urged the hospital to return the embryos to either of the deceased couple's parents.

"We just want to retrieve the embryos and store them at a hospital of our choice. Then we will cross our fingers and wait for the ban on surrogacy to end," said Hu Xingxian, Shen's mother.

Shen and Liu were both single children in their families. Hu said that as both their parents are already old, this is the only hope for them to have biological grandchildren.

"This is our only hope. If in the future, the state allows surrogate pregnancy, we will at least have something to work with. We can even donate the embryos to relatives who cannot get pregnant themselves," Hu said.

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