Women's Right to Reproductive Self-Determination from the Perspective of Civil Law 9811927898, 9789811927898

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Women‘s Right to Reproductive Self-Determination from the Perspective of Civil Law Weijun Jiang

Women’s Right to Reproductive Self-Determination from the Perspective of Civil Law

Weijun Jiang

Women’s Right to Reproductive Self-Determination from the Perspective of Civil Law

Weijun Jiang Peking Union Medical College Hospital Beijing, China

ISBN 978-981-19-2789-8 ISBN 978-981-19-2790-4 (eBook) https://doi.org/10.1007/978-981-19-2790-4 Jointly published with China Renmin University Press The print edition is not for sale in China Mainland. Customers from China Mainland please order the print book from China Renmin University Press. © China Renmin University Press 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publishers, whether the whole or part of the material is concerned, specifically the rights of reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publishers, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publishers nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publishers remain neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Foreword

I am happy to write a foreword for the upcoming doctoral dissertation of Jiang Weijun, a doctoral student under my guidance, who contacted me this summer vacation and requested me to do so. That is because her conscientiousness and courage to overcome difficulties in the process of study are worth learning for all of us and the recognition of her achievements made through efforts makes me sincerely happy. As a doctoral student, Jiang Weijun is diligent and persistent! The hardships of pursuing a doctorate on the job may only be experienced by learners themselves. During her degree course, she was delighted to be a mother, which called for more of her efforts. Naturally, the writing of her doctoral thesis could only occupy her spare time. Of course, the studying and writing also improved her internally and externally. I still remember that during the thesis defense, a professor said with praise that she was more charming than when she had first entered the university. The retrospect of this makes me gratified today. Jiang Weijun’s doctoral dissertation Research on Women’s Right to Reproductive Self-Determination from the Perspective of Civil Law has great theoretical and practical significance. This paper mainly focuses on the realistic basis and the mode of women’s exercise of the right to reproductive self-determination. In terms of women’s right to reproductive self-determination, Jiang Weijun says in her paper, “The right to selfdetermination is the right of the obligee to make self-determination and shaping of his specific personality elements. The right to reproductive v

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self-determination of women is right-centered in essence, and strengthens the responsibilities of the subject of right, including the responsibility for the mother’s body of life, the physical and mental health of future life and for the survival of other lives in society. It is a personality freedom that integrates rights and obligations and combines the legal significance, biological nature and family ethics.” On this basis, the paper expounds the research from the foundation construction of the system to suggestions for improvement, and also describes the importance and urgency of the research on women’s right to reproductive self-determination. Based on her revised doctoral dissertation, this book has made a comprehensive study into women’s right to reproductive selfdetermination and put forward many forward-looking and constructive suggestions according to China’s realities. I believe readers will be inspired. With a learning background in medicine and law, Jiang Weijun can integrate theory with practice in her research in a unique perspective and method. As her thesis instructor, I am very happy to see the publication of the book. I hereby write this as the foreword! September 2017

Lin Yanqin Professor and Doctoral Supervisor, School of law Beijing Normal University Beijing, China

Acknowledgements

The last punctuation mark from the keyboard means the book has been finalized. The most appropriate word to express my mood is gratitude. It took two years to conceive and finalize this book. In the interim, I received help and guidance from many people. First of all, I would like to express my gratitude to my mentor, Professor Lin Yanqin, for her rigorous, meticulous and dutiful guidance in my study and research, as well as for her help with my livelihood and creation of a relaxed environment for me. In the past three years of research, she has recognized my research and provided me with a lot of opportunities for learning and communication, which has exercised my ability to carry out independent scientific research. I would also like to express my gratitude to Professor Han Chifeng, Professor Xia Limin, Professor Xue Hong, Professor Yuan Dasong, Professor Song Gang and Associate Professor Yuan Zhijie, Professor Zhao Zhongfu, Professor Long Yifei and Professor Wang Yi of the Civil and Commercial Law Teaching and Research Department of the Law School at Beijing Normal University, as well as to the leaders and predecessors of Beijing Union Medical College, all of whom offered me opinions, concerns and help to my academic and scientific research in their busy schedule.

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ACKNOWLEDGEMENTS

I would also like to express my gratitude to my classmates and friends who worked together with me, as well as to my senior classmates, especially Dr. Wang Xiaodong, Dr. Lin Wenbiao and Dr. Xu Shulin, for their help and care. Finally, I would like to express my gratitude to my family, including my husband, daughter and mother. Without their support, it would have been difficult for me to complete this manuscript. It was the care and help from all the people mentioned above that enabled me to successfully complete my first academic work. I would like to dedicate this book, which condenses my hard work and carries my expectations, to all my relatives, teachers, schoolmates and friends who provided care, help, support and encouragement to me. June 2017

Weijun Jiang

Contents

1

Introduction 1.1 The Origin of the Problem 1.2 Theoretical and Practical Significances 1.3 Research Status 1.4 Research Objectives 1.5 Research Methods 1.6 Research Framework and Characteristics

2

Women’s Right to Reproductive Self-Determination 2.1 The Right to Reproduction 2.1.1 The Concept of the Right to Reproduction 2.1.2 The Status of the Right to Reproduction 2.1.3 The Nature of the Right to Reproduction 2.1.4 The Subject of the Right to Reproduction 2.1.5 The Core of the Right to Reproduction is Reproductive Freedom 2.2 The Right to Self-Determination 2.2.1 Classification of Personality Rights 2.2.2 The Concept and Characteristics of the Right to Self-Determination 2.3 Women’s Right to Reproductive Self-Determination 2.3.1 Definition of Women’s Right to Reproductive Self-Determination

1 1 3 5 6 7 8 15 15 15 16 17 18 19 20 20 24 29 29

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2.3.2 2.3.3

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The Content of Women’s Right to Reproductive Self-Determination The Relationship Between Women’s Right to Reproductive Self-Determination and Medical Institutions

The Theoretical and Practical Basis of Women’s Right to Reproductive Self-Determination 3.1 The Jurisprudential Basis of Women’s Right to Reproductive Self-Determination 3.1.1 Free Will Theory in Legal Philosophy 3.1.2 The Theory of Autonomy of Will in Civil Law 3.1.3 The Theory of the Right to Equality Centered on Feminist Jurisprudence 3.2 The Ethical Basis of Women’s Right to Reproductive Self-Determination 3.2.1 Ethical Requirements for Autonomy 3.2.2 The Ethical Requirement for Regarding Embryos as Patients 3.2.3 Ethical Requirement for Protecting the Weak 3.3 The Practical Basis of Women’s Right to Reproductive Self-Determination 3.3.1 The Need to Improve the Comprehensive Quality of the Population of China and the Need for the Reproduction and Development of Human Society 3.3.2 The Development of the Assisted Reproductive Technology 3.3.3 The Development of the Life Medical Technology The Premise for Women’s Exercise of the Right to Reproductive Self-Determination—Medical Institutions’ Obligation of Notification 4.1 Theoretical Basis of Medical Institutions’ Obligation of Notification 4.1.1 Patriarchal Doctor–Patient Relationship 4.1.2 Patient Autonomy-Based Doctor–Patient Relationship Characteristic 4.1.3 Joint Participation-Based Doctor–Patient Relationship

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35 45 45 45 46 47 49 49 50 51 53

53 55 55

63 63 64 64 65

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4.1.4

4.2

4.3

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Contractual Liabilities and Medical Institutions’ Obligation of Notification 4.1.5 Patients’ Right to Self-Determination and Medical Institutions’ Obligation of Notification Standards for Medical Institutions to Fulfill the Obligation of Notification 4.2.1 The Significance of Determining the Standards 4.2.2 The Standard of Reasonable Doctor 4.2.3 The Standard of Reasonable Patient 4.2.4 The Standard of Specific Patient 4.2.5 The Standard of Compromise Development of What and Who Should Be Notified by Medical Institutions in the Performance of Their Obligation of Notification 4.3.1 Embryo Gender Isn’t Generally Included in What Should Be Notified 4.3.2 The Obligation of Medical Institutions to Inform Third Parties Other Than Patients 4.3.3 Medical Institutions Need to Inform Other Information Besides Technical Information

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Women’s Exercise of the Right to Reproductive Self-Determination—Centered on the Capacity of Self-Determination 5.1 Different Views and Specific Standards of Determining Women’s Capacity of Reproductive Self-Determination 5.1.1 Different Views of Determining Women’s Capacity of Reproductive Self-Determination 5.1.2 Specific Standards for Determining Women’s Capacity of Reproductive Self-Determination 5.2 Exercise of the Right to Reproductive Self-Determination by Women with Full Capacity of Self-Determination 5.2.1 The Independent Exercise of the Right to Reproductive Self-Determination Under Normal Circumstances

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5.2.2

5.3

5.4

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Women’s Exercise of the Right to Reproductive Self-Determination with Their Husbands Under Special Circumstances 5.2.3 Women’s Exercise of the Right to Reproductive Self-Determination in the Case of Coercion The Exercise of the Right to Reproductive Self-Determination by Women with Limited Capacity of Self-Determination 5.3.1 Definition of Women with Limited Capacity of Self-Determination 5.3.2 Minor Women’s Exercise of the Right to Reproductive Self-Determination 5.3.3 Exercise of the Right to Reproductive Self-Determination by Mentally Retarded Women with Limited Capacity of Self-Determination Exercise of the Right to Reproductive Self-Determination by Women Without the Capacity of Self-Determination 5.4.1 Exercise of the Right to Reproductive Self-Determination by Vegetative and Brain Dead Women 5.4.2 Exercise of the Right to Reproductive Self-Determination by Mentally Retarded Women Without the Capacity of Self-Determination

Restrictions on Women’s Right to Reproductive Self-Determination—Based on Medical Reasons and Ethical Review 6.1 Compulsory Medical Treatment 6.1.1 Concept of Compulsory Medical Treatment 6.1.2 Legal Basis of Compulsory Medical Treatment 6.1.3 Legal Relationship Arising from Compulsory Medical Treatment 6.1.4 Medical Institutions’ Obligation of Review 6.1.5 Necessary and Appropriate Derogation of Patients’ Rights

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6.1.6 6.2

6.3

6.4

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Compulsory Medical Treatment and Women’s Right to Reproductive Self-Determination Protective Medical Measures 6.2.1 The Concept of Protective Medical Measures 6.2.1 Legal Provisions on Protective Medical Measures 6.2.3 Protective Medical Measures and Women’s Right to Reproductive Self-Determination Emergency Treatment 6.3.1 The Concept of Emergency Treatment 6.3.2 Legal Basis for Emergency Treatment 6.3.3 Circumstances for Emergency Treatment 6.3.4 Emergency Treatment and Medical Disputes Over Inaction 6.3.5 Emergency Treatment and Women’s Right to Reproductive Self-Determination Ethical Review 6.4.1 Basis of Ethical Review 6.4.2 The Ethics Committee as a Supplement to Medical Institutions’ Notification 6.4.3 Independence of the Ethics Committee 6.4.4 The Influence of Ethical Review on Women’s Right to Reproductive Self-Determination

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Restrictions on Women’s Right to Reproductive Self-Determination to Protect Personality Interests of Embryos 7.1 Personality Interests of Embryos 7.1.1 Types of Embryos 7.1.2 Personality Interests of Embryos 7.2 Personality Interests of Embryos and Women’s Right to Reproductive Self-Determination 7.2.1 The Life Interest of Embryos and Women’s Right to Reproductive Self-Determination 7.2.2 The Physical and Health Interests of Embryos and Women’s Right to Reproductive Self-Determination

141 141 141 142 142 144 144 145 145 146 148 149 149 150 152 152

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7.2.3 7.2.4 8

Informed Interests of Embryos and Women’s Right to Reproductive Self-Determination Genetic Interests of Embryos and Women’s Right to Reproductive Self-Determination

Conclusions 8.1 Improve the System of Protecting Women’s Right to Reproductive Self-Determination in China 8.2 Improve the System of Restricting Women’s Right to Reproductive Self-Determination in China

References

186 190 209 210 213 221

CHAPTER 1

Introduction

1.1

The Origin of the Problem

Amid growing medical disputes and increasingly tense doctor–patient relationship in recent years, the academic circle is exploring ways to solve medical disputes and build a harmonious doctor–patient relationship, one of which is legalization. The Tort Liability Law stipulates the liability for medical damage. In particular, Articles 55 and 56 hereof stipulate the circumstances under which medical personnel perform their obligation of notification and explanation, what shall be notified and explained and to whom shall emergency treatment be notified and explained. Thus, the medical liability distribution framework based on the notification and explanation by medical institutions and on patients’ self-determination has basically taken shape. However, as women’s awareness of rights awakes and life science and technology develop, there have been a series of cases or examples related to women’s reproduction with wide social influence and concern in recent years. They can be divided into the following categories: First, the unclear standard of women’s ability of reproductive selfdetermination makes it difficult to determine the effectiveness of women’s reproductive self-determination. The main problems are: when women are unable to make a decision for the time being, close © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 W. Jiang, Women’s Right to Reproductive Self-Determination from the Perspective of Civil Law, https://doi.org/10.1007/978-981-19-2790-4_1

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relatives decide to refuse treatment.1 Women’s inability to make decisions and the conflict of decisions among close relatives result in the inability of medical institutions to carry out diagnosis and treatment.2 Underage females exercise their right to reproductive self-determination without their legal guardians’ signatures.3 When women cannot make decisions, nor can they find close relatives to make decisions on their behalf, for the time being, relevant state institutions shall bear the responsibility of temporary guardianship.4 Women’s exercise of the right to reproductive self-determination has aroused controversy when they are permanently unable to make a decision for brain death or as persons in a coma.5,6 Second, when women are exercising their own right to reproductive self-determination, the unclear provisions on how to deal with the relationship between their right to reproductive self-determination and men’s right to determination result in medical disputes, and to some extent, malignant events such as women’s deaths in which medical institutions are unable to carry out diagnosis and treatment. Typical cases include a husband suing the medical institution on the grounds that his wife alone exercised her right to decide independently to terminate pregnancy7 and the death of a pregnant woman caused by the cohabitant’s refusal to sign for operation. Do women have the right to make a new decision at their own will after entrusting their family members to make a decision on their behalf?8 Third, doctors are investigated for criminal liability or are forced to make decisions for being afraid to express their queries, and finally women’s right to self-determination is violated because of the inexhaustive provisions on how medical institutions judge the effectiveness of the guardians’ decisions on behalf of women. Typical cases include a mentally retarded girl in Nantong, Jiangsu Province, who received a hysterectomy due to the decision made by the welfare home,9 and a pregnant women in Shaanxi Province being forced to induce labor.10 Such cases may lead to reflections on the following problems: Can the medical institution be exempted from liability for diagnosis and treatment as required by the guardian of the patient? If the decision may infringe upon the interests of the person under guardianship, can the medical institution refuse to implement the decision and how can the criteria for judgment be clarified? Because of the refusal to implement the decision made by the guardian, how

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will the dispute be dealt with over the medical institution being sued by the person concerned for omission and infringement? Four, the unclear provisions of the impact of the personality interests of embryos on the effectiveness of women’s right to reproductive self-determination generate doubts when medical institutions deal with the relationship between the protection of personality interests of embryos and women’s right to reproductive self-determination. The main controversy is whether medical institutions will continue to take treatment measures when women make a decision to refuse treatment for beliefs or other reasons?11,12,13 Is the decision made by a woman during childbirth for special reasons that may damage the life interest and health interest of the embryo is effective?14 Can smoking, drinking and other behaviors during women’s childbirth be restricted and how can they be restricted?15 Should women’s claim for the same right to participate in human trials as men be supported?16 It can be seen from the above cases that as women’s right to reproductive self-determination often involves life protection and is more likely to lead to disputes, various parties are more cautious about making decisions. In addition, the current provisions have some defects, such as unclear classification and guidelines. Only with a systematic scheme that has a certain theoretical depth and conforms to the actual situation in China can we gradually solve cases involving women’s right to reproductive self-determination in a standardized way.

1.2

Theoretical and Practical Significances

1. The desirable scheme can provide theoretical basis and support for the legalization of the current system of women’s reproductive self-determination. Women’s exercise of their right to reproductive self-determination involves not only family relations, ethical relations and medical relations but also the legal relations between women and medical institutions, women and their spouses, women and embryos and between women and the state. Clarifying the rights and obligations of various subjects in different legal relations can help construct the theoretical framework of women’s right to reproductive self-determination in China and improve China’s system of women’s right to reproductive self-determination.

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2. The desirable scheme can provide certain theoretical support and preparations for improving laws and regulations such as Tort Liability Law, Law for Licensing Medical Practitioners and so on. In the existing laws and regulations, the provisions on women’s right to reproductive self-determination are too scattered and generalized to provide corresponding legal basis for the exercise of this right. This book focuses on clarifying the subject of exercise of and restrictions on women’s right to reproductive self-determination. I hope the book can provide theoretical support and preparations for improving the Tort Liability Law, Law for Licensing Medical Practitioners and relevant laws and regulations on women’s exercise of their right to reproductive self-determination, so as to reduce confusion and disorder in the process of applying laws and regulations. 3. The desirable scheme can provide legal solutions for protecting women’s rights and promoting their status. International conventions, laws and regulations such as United Nations Convention on the Elimination of All Forms of Discrimination against Women, China’s Constitution, the General Principles of the Civil Law, the General Rules of the Civil Law and the Law on the Protection of Women’s Rights and Interests stipulate the legal status of women and the protection of their rights and interests, but there is still room for further improvement in practice. The choice of studies into the legal problems on female reproduction with the most concentrated contradictions and the most closely related to women in the protection of women’s rights is an important way to make up for the deficiencies of the superior law and effectively protect women’s rights and interests such as the right to equality and the right to reproduction. 4. The desirable scheme can provide a legal solution for protecting the interests of embryos. Although relevant laws and regulations issued by China such as the General Principles of the Civil Law, the General Rules of the Civil Law, the Inheritance Law and the Measures for the Administration of Human Assisted Reproductive Technology stipulate the protection of the rights and interests of embryos, there are some defects, such as the single type of interests protected and insufficient research on the source of infringement. The study of the quasi legal status of the personality of embryos recognizes the personality interests of embryos, such as life and

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health interests, interests of knowing information and genetic interests. These specific personality interests restrict the effectiveness of women’s right to reproductive self-determination. Thus, a conflict resolution system will finally form between the protection of the personality interests of embryos and women’s exercise of their right to reproductive self-determination, which will help strengthen the legal protection of the interests of embryos. 5. The desirable scheme can provide new ideas for establishing a harmonious doctor–patient relationship. In practice, many doctor– patient disputes caused by fuzzy provisions of women’s right to reproductive self-determination not only harm women physically and mentally but also blight the order of medical institutions, and even evolve into social contradictions, thus affecting social harmony and stability. The in-depth research on women’s right to reproductive self-determination can effectively settle disputes. The typed relationship of rights and obligations between medical institutions and women, as well as the clarified mechanism of medical institutions’ obligation of notification and explanation and women’s effective self-determination of reproduction through procedural medical operation, can ensure the full realization of women’s right to reproductive self-determination and help resolve medical disputes and finally establish a harmonious doctor–patient relationship.

1.3

Research Status

The domestic research on women’s right to reproductive selfdetermination has achieved preliminary results,17 but there are some areas that need to be further improved. The results and defects are as follows: (1) Some research achievements have been made in the changes of the relationship between medical institutions and patients, as well as in the demonstration of the independent status and relevant rights of patients in the doctor–patient relationship. However, there are still some deficiencies in the demonstration of the self-determination-based doctor–patient relationship, the theoretical basis and independent status of women’s right to reproductive self-determination as a general personality right. (2) Preliminary results have been made in medical institutions’ clear obligation of notification and explanation in the self-determinationbased doctor–patient relationship. However, the demonstration of the

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source of medical institutions’ obligation of notification and explanation is still slightly insufficient, and there is a lack of studies into whether the medical institution shall notify and explain to a third person other than the patient. (3) The current research on patients’ right to self-determination is mostly made from the perspective of the relationship between medical institutions and patients. The research is only centered on medical institutions’ restrictions on patients’ right to self-determination or the effect of patients’ right to self-determination on medical institutions’ diagnosis and treatment. There is no research on the impact of the legal relationship within the patient’s family on the effectiveness of the patient’s self-determination. This can be solved from the best perspective, women’s right to reproductive self-determination, the exercise of which is precisely related to the relationship between women’s and men’s right to reproductive self-determination. (4) Studies are deficient on the standard of women’s ability of reproductive self-determination and how the special type of women can exercise their right to reproductive self-determination. (5) Thanks to the spread of a series of socially influential cases, the academic community has made preliminary results in recognizing the internal limitations of women’s right to reproductive self-determination. However, previous studies overemphasized women’s self-determination in the doctor–patient relationship. If a woman refused treatment, even if she might face the risk of death, medical institutions still needed to respect her decision. There is deficient in-depth and focused research on the restrictions on women’s right to reproductive self-determination, especially those restrictions for the protection of personality interests of embryos.

1.4

Research Objectives

The research on women’s right to reproductive self-determination aims to solve the above problems, because women, as subjects with multiple rights and interests involving themselves, embryos, spouses and the state, can’t effectively exercise their right to self-determination only through individual decisions, but need to be restricted in many aspects. For example, in medical activities in which women exercise their own right to reproductive self-determination, there is a special situation in which husband and wife must jointly exercise their own right to self-determination. There are also medical practices in which the legitimacy of a certain kind of diagnosis and treatment by medical institutions is still denied although they have

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fully fulfilled the obligation of notification and explanation and women are willing to take such diagnosis and treatment. This book provides insights into the ways to scientifically and reasonably establish a theoretical system and institutional framework in line with Chinese cultural tradition and social reality, which emphasize the protection of women’s own rights and interests and respect their right to reproductive self-determination. The book also takes into account the multiple values such as the conflict between women’s right to reproductive self-determination and embryo interest protection, the conflict between women’s right to reproductive self-determination and the right of their spouses, the conflict between women’s right to reproductive self-determination and medical institutions’ diagnoses and treatments and the regulation of women’s right to reproductive self-determination by the state.

1.5

Research Methods

1. Comparative research: through the comparative study of the legal provisions on women’s right to reproductive self-determination in representative countries of common law system and civil law system, this book expounds the similarities and differences between foreign laws and domestic legal systems, absorbs reasonable experience and makes practical suggestions on improving women’s right to reproductive self-determination in China. 2. Normative analysis: through in-depth analysis of the current laws, regulations, judicial interpretations and operating rules involving women’s right to reproductive self-determination in China, this book discusses the main defects of the current systems and advances proposals for revising the current laws and systems. 3. Case analysis: based on the typical cases at home and abroad sorted out about women’s right to reproductive self-determination, this book explores the causes of disputes and classifies them according to different legal relations. This not only provides materials for theoretical research but also indicates the direction for research. 4. Historical method of investigation: as reproduction and the doctor– patient relationship have existed since ancient times, the comprehensive analysis of the historical changes of the system of women’s reproductive self-determination can help clarify the change trajectory and its future development direction and improve this system in a more scientific way by learning from the research results obtained by predecessors.

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1.6

Research Framework and Characteristics

(1) Research Framework The book is composed of introduction, the main body and conclusions. The introduction describes the research significance, research methods, research framework and characteristics. The conclusions contain some suggestions on the specific path of improving the system of women’s reproductive self-determination in China. The main body is divided into six chapters. Chapters 1 and 2 define and explain the core issues such as the concept, nature, status, characteristics, content, theoretical basis and practical basis of women’s right to reproductive self-determination, so as to lay a foundation for discussing the premise of exercising women’s right to reproductive self-determination, the specific exercise of and restrictions on this right in subsequent chapters. In Chapters 3 and 4, considering the process of women’s childbirth, this book makes an in-depth discussion on the types of medical institutions’ notification and explanation as one of the preconditions of judging the validity of women’s right to reproductive self-determination, the standards of judging the validity of women’s right to reproductive self-determination and their ability of reproductive selfdetermination and on different types of women’s exercise of their right to reproductive self-determination. Chapters 5 and 6 mainly discuss the theoretical and practical problems of how to determine the effectiveness of women’s right to reproductive self-determination in the case of medical reasons, ethical review and the need for the protection of embryonic personality interests. Centered on the effectiveness of women’s reproductive self-determination, the book preliminarily constructs the theoretical system and institutional framework of women’s right to reproductive selfdetermination, and the basic logic of writing this book is the nature of, exercise of and restrictions on this right. Based on the laws and regulations such as Tort Liability Law, Law for Licensing Medical Practitioners and so on, the book also makes some specific suggestions on improving the system of the Chinese women’s right to reproductive self-determination. (2) Research Characteristics The writing of this book fully reflects interdisciplinary research among the science of law, ethics, medicine and other disciplines, which is also

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a feature of this book. The development of medical technologies and the application of new medical technologies in women’s exercise of their right to reproductive self-determination provide rich materials to the research in this book while posing more challenges to it. For example, the traditional research on the relationship between embryonic personality interests and women’s right to reproductive self-determination is mostly limited to the protection of embryonic life interests and health interests as well as the termination of pregnancy. As gene technology develops, more and more women seek to prevent diseases and treat other people’s diseases by modifying embryonic genes. As the genetic interests of embryos may be infringed, the protection of the genetic interests of embryos can become the research object. For another example, thanks to the development of embryonic medical diagnosis and treatment technology, doctors can directly contact embryos during the surgery and treat those still living in the maternal uterus. The application of this technology not only expands the traditional view that the infringement of embryonic personality interests mainly comes from the outside but also puts forward the problem of how to judge the effectiveness of the decision made by the decision-maker when she has different identities. In terms of research content, there are the following innovations in this book: 1. This book makes an innovative research on the nature and content of women’s right to reproductive self-determination and expresses the following views: the right to self-determination, defined as the right of the obligee to self-determination and the shaping of their specific personality elements, is a new personality right developing with the principle of private law autonomy, which is a kind of spiritual personality right and active personality right. The core of the right to reproduction is reproductive freedom. Women’s right to reproductive self-determination refers to the right of women to make decisions on reproduction freely at their own will. It is a further refinement of the right to self-determination as a civil right in the medical field, including whether, when and how children should be born and the determination of the number and the quality of children and so on. 2. This book makes an innovative research on the recipient that the medical institution should notify and explain. Based on the typical cases in the United States, a conclusion is drawn that the medical

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institution can expand the recipient of its notification and explanation to a third person under specific conditions, considering that the medical institution bears the obligation to protect a third person from special diseases such as AIDS, mental diseases and genetic diseases of familial characteristics. Although that violates in form the provision that the recipient of notification and explanation is only female patients, it does not constitute a violation of women’s right to reproductive self-determination. In addition, the book provides insights into the procedures of informing a third party, conditions in which a third party should be notified and which persons a third party includes, so as to standardize the strict exercise of the obligation of notification and explanation in this special case. 3. This book focuses on the effectiveness of women’s reproductive self-determination through case empirical analysis and comparative research at home and abroad. This book proposes China establishing the classification of women into those with complete ability, limited ability and without ability of reproductive selfdetermination, focusing on women’s ability of reproductive selfdetermination. It makes an innovative research on the identification standard of women’s ability of reproductive self-determination and the impact of the standard on the effectiveness of this right of self-determination. 4. This book makes an innovative research on the limitations of various specific personality interests of embryos on the effectiveness of women’s reproductive self-determination. The following views are expressed: When women’s decision to refuse treatment conflicts with the protection of the life and health interests of embryos, medical institutions can still carry out cesarean section when necessary and this will not be considered as an infringement because they don’t have women’s consent. Medical institutions should treat embryos as patients during embryo surgery, consider their pain and take corresponding diagnoses and treatments. When signing the written decision on embryo surgery independently, women are playing the roles of exercising the right to determination on behalf of embryos and the right to self-determination. When women make their own decisions involving the interests of embryonic genes, medical institutions can judge the effectiveness of the decision according to the purpose, scope and degree of gene modification. Women shall not widely restrict the informed interests of embryos when signing

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confidentiality agreements with medical institutions. Women should be allowed to participate in human trials conditionally in order to protect the interests of embryonic health. The state needs to restrict women’s specific behaviors such as smoking and drinking through legislation. This book only discusses the basic issues of women’s right to reproductive self-determination from the perspective of civil law, and the in-depth and comprehensive research on this right remains to be strengthened.

Notes 1. In 2007, Ms. Zhou, the wife of Mr. Hu, a villager in Zhejiang Province, suffered from diffuse intravascular bleeding after cesarean section. However, Mr. Hu refused to sign the informed consent form. The hospital finally allowed two attending doctors to sign it to save two lives from the edge of death! 2. In 2013, a pregnant woman surnamed Zhang went into a coma for massive bleeding during childbirth in Xiangtan Maternal and Child Health Hospital, Hunan Province. The doctor told her family that she could survive only after her uterus was removed, but the hospital was unable to take diagnosis and treatment for the inconsistent opinions of her family members. The pregnant woman died after a few hours of delay. 3. British House of Lords discussed whether doctors could provide contraceptive treatment to a girl under the age of 16 without the knowledge and consent of her parents in the case of Gillick v. West Norfolk and Wisbech AHA. The judgment of this case has caused a profound review of the laws on parental rights and minors’ right to consent. This legal precedent has determined that the legal standard of the ability of decision-making is whether she has acquired enough understanding and intelligence to fully understand the doctor’s advice, rather than the age of the minor only. 4. On March 14, 2009, a rescue management station received a woman with mental disorder under the age of 18 who was about 7 months pregnant and could not find her family members. When the rescued pregnant woman went to the medical institution for delivery surgery later, who would sign the consent paper would be a difficult problem. 5. Turgay Avci, a six-month pregnant woman in Turkey, became a vegetable due to encephalitis. Her husband, Jay Khan, did not want to keep the fetus in his wife’s body as he had no energy and financial capacity to take care of more children. However, as euthanasia is illegal in Turkey, the

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6.

7.

8.

9.

10.

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hospital could only maintain her life and tried its best to keep the fetus alive. In 2014, Robin, who was 27 weeks pregnant, suddenly fainted and was sent to the hospital. The doctor announced her brain death for intracerebral hemorrhage, but found her fetus still alive. The doctors then tried to keep Robin’s other organs running, hoping to keep the fetus alive for more than 34 weeks because by then, the fetus would be more likely to survive by the cesarean section. The practice of the hospital caused controversy. Pregnant woman surnamed Chen, who took a large amount of medicine before and after her pregnancy, thought that might be harmful to fetal health, so she asked a third person to signed the informed consent to terminate her pregnancy. Later, her husband sued the hospital for damages on the grounds that it terminated the pregnancy of his wife without his consent. On August 31, 2017, Ms. Ma committed suicide by falling off a building in the second division of the gynecology and obstetrics department in Suide Branch of Yulin First Hospital, which aroused widespread concern in the society. Although the details of the case remain to be further clarified, there is a view that Ms. Ma died for emotional loss because she had unbearable pain during childbirth before jumping off a building, but the medical institution refused to perform the cesarean section according to her own decision which his family did not agree to. On April 14, 2005, Nantong Welfare Home sent two girls with severe mental disability to the Affiliated Hospital of Nantong University for subtotal hysterectomy. Later, the public security organ filed a case for investigation against the person in charge of the Welfare Home and the chief surgeon of the operating hospital under suspicion of intentional injury, and finally sentenced the four defendants to intentional injury. In 2012, pregnant Feng Jianmei was illegally detained and forced to induce labor by relevant personnel of Zengjia Town People’s Government, Zhenping County, Ankang City, because she had no money to pay a fine of 40000 Yuan for violation of the birth control. Later, a photo of Feng Jianmei and her dead fetus was uploaded to the Internet, causing a mighty uproar. British Res case in 1993: Pregnant Ms. S found that the fetus was in a mal-position and had exceeded the expected delivery date by 6 days, so she needed to have cesarean section as soon as possible. However, Ms. S refused to accept cesarean section due to her religious belief. The hospital imposed cesarean section on Ms. S after the court issued a permit for immediate operation according to the application of the hospital. In the case of MB in 1997, Ms. MB, pregnant for 40 weeks, found that the fetal hip was downward. If she didn’t have cesarean section, the fetus

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was likely to be damaged, but she stubbornly refused cesarean section for a strong fear of injection. The court issued a permit for compulsory treatment of MB after the application of the hospital. A parturient, who was transferred to the First Affiliated Hospital of Jinan University, needed to have an operation as soon as possible because of placental abruption. However, this pregnant woman refused surgery because she was worried about having to have a rest-cure for two years before a second pregnancy after cesarean section. Finally, the hospital carried out cesarean section after the family members signed the informed consent form. A couple hoped to modify the embryonic gene through life science and technology to give birth to a child with specific characteristics, so that the child’s bone marrow could be transplanted to their 10-year-old daughter with leukemia. According to Article 31 of the Children and Juvenile Welfare Law in Taiwan, pregnant women shall not smoke, drink alcohol, chew betel nut, use drugs, illegally use controlled drugs or engage in other acts harmful to the development of the fetus in order to protect the health of the fetus. No one shall force, lure or otherwise cause a pregnant woman to commit an act detrimental to her fetal development. Whoever violates this Law shall be fined not less than NT $10000 but not more than NT $50000. It has always been controversial whether women can participate in human trials as subjects. Protectionists hold that women should be strictly restricted or even prohibited from participating in human trials as subjects. Advocates hold that the use of male subjects cannot help fully achieve the purpose of the experiment. In addition, both men and women, who are equal, have the right to the opportunity to participate in medical human trials, which cannot be monopolized by males. At present, the research is mainly divided into three categories. First, the research on the right to reproduction is represented by Zhang Zuohua: Gender Conflict in the Right to Reproduction and the Realization of Male Right to Reproduction; Cai Changjuan: Long Term Impact of Adverse Reproductive Outcomes on Women’s Employment; Ma Qiang: On the Right to Reproduction—Focusing on the Civil Law Protection from the Infringement on the Right to Reproduction, etc. Second, the research on the right to self-determination is represented by Guo Weihua: Research on Sexual Autonomy; Zhu Lijun: Research on Basic Issues of Civil Law in Organ Transplantation—From the Perspective of Organ Donors’ SelfDetermination, etc. Third, the research on patients’ right to informed consent is represented by Zhu Wei: Informed Consent in Bioethics; Xia Yun: Doctors’ Obligation of Explanation and Patients’ Consent, etc.

CHAPTER 2

Women’s Right to Reproductive Self-Determination

2.1 2.1.1

The Right to Reproduction The Concept of the Right to Reproduction

Sociologically, reproduction refers to the organized system of various human activities related to courtship, marriage and reproduction.1 Reproduction in modern medicine means the process of a natural person’s conception, pregnancy, childbirth and upbringing through natural conception or artificial assistance, emphasizing natural facts. The right to reproduction, as the product of modern society, is a legal concept arising from the bourgeois revolution, especially the women’s movement. Historically, the understanding of reproduction has gone through three stages: natural reproduction, reproductive obligation and reproductive right.2 Views vary on the definition of the right to reproduction. Some hold that it is a right enjoyed by natural persons for the interest of reproduction.3 Others think that it refers to the right to dominate conception, pregnancy and childbirth.4 Article 16 of the Tehran Declaration of 1968 stipulates that parents enjoy the basic human right to decide freely and responsibly the number and the birth interval of their children. Article 16 (1) of the United Nations Convention on the Elimination of All Forms of Discrimination against Women issued in 19805 provides for equality between men and women and for women’s freedom to determine the number and the birth © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 W. Jiang, Women’s Right to Reproductive Self-Determination from the Perspective of Civil Law, https://doi.org/10.1007/978-981-19-2790-4_2

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interval of their children. This Convention was approved by the Standing Committee of the Fifth National People’s Congress in September 1980 and has become the source of China’s domestic law. The provisions on the right to reproduction in China are scattered in the Constitution, the Marriage Law, the Law on the Protection of Women’s Rights and Interests, the Population and Family Planning Law and relevant judicial interpretations, which clarify the doubt whether there is the right to freedom of reproduction in China, and stipulate the obligation of family planning and other the specific contents.6 2.1.2

The Status of the Right to Reproduction

Among the academic circle, different views on the attribute of the right to reproduction include a human right, a constitutional right or a civil right.7 Advocates of the first view hold that the right to reproduction is both a civil right and a basic human right. Not only the policy of reproduction but also the specific social alimony system and the interest-oriented mechanism must be based on the right to reproduction deemed as a basic human right.8 International treaties, extraterritorial justice and Chinese laws all show the importance and universality of the right to reproduction as a basic human right.9 The right to reproduction is a natural right and the most basic human right of every citizen.10 Advocates of the second view argue that the right to reproduction should be deemed as a basic constitutional human right through constitutional interpretation because the general provisions on the respect for and protection of human rights are the source of the protection of unlisted rights in China. The provision that both husband and wife have the obligation to implement family planning stipulated in Article 49 of the Constitution can’t be deemed as the constitutional source of the right to reproduction.11 Advocates of the third view hold that under China’s current constitutional litigation mechanism, the right to reproduction can be effectively protected and relieved as a civil right only by civil law as it is difficult for the constitution alone to provide specific protection for the right to reproduction.12 In this regard, this book believes that the value of the right to reproduction as a human right lies in its declarative significance. The right to reproduction, as a human right, can become a basic constitutional right only through the transformation of domestic law, that is, constitutional interpretation or constitutional amendment, rather than be simply regarded as the basis of domestic law. The constitutional right to reproduction mainly

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protects the right to reproduction of natural persons from being infringed by the abuse of state power. The legal relationship arising from this right is mainly that between natural persons and various subjects of public power, including the litigation brought by natural persons against legislative acts involving the right to reproduction through legislative review mechanisms such as constitutional litigation. The civil right to reproduction, which is an absolute and dominant right, mainly prevents natural persons and legal persons as equal subjects in civil legal relations from infringing on the right to reproduction of natural persons. Moreover, this book holds that the assertion that the right to reproduction has the attributes of both basic human rights and civil rights is not contradictory because they are at two different levels, with one in public law and the other in private law. In addition, the legal relationship adjusted by the two is not in direct conflict, so there is no problem in the logical relationship.13,14 2.1.3

The Nature of the Right to Reproduction

The academic circle defines the nature of the right to reproduction as the right to identity, the right of personality and a combination of the two.15 Those who advocate the first view holds that the right to reproduction is a right to identity of husband and wife, which falls under marital consortium. The main reason is that reproduction is a natural affair of husband and wife based on their specific marital relationship.16 Those who advocate the second view argue that the right to reproduction is an independent personality right of natural persons to control their freedom to bear or not to bear a child.17 According to the third view, the right to reproduction is an independent personality right and its function of indicating identity cannot be denied because although the enjoyment of this right is not necessarily related to the spouse identity, the exercise of this right is mainly realized by the legal conjugal relation in reality.18 This book holds that the right to reproduction falls under the right of personality. The main reasons are as follows: First, natural persons do not enjoy the right to reproduction because of their spouse status in marriage, but as human beings who have this inherent right. Second, as the object of the right to reproduction, the reproductive interest is a kind of personality interest not identity interest. Third, the right to reproduction is a necessary right to maintain the subject’s independent personality.19 Fourth, the acquisition of the right

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to reproduction does not always depend on the conjugal relation. Fifth, the laws issued by various countries generally recognize illegitimate childbirth, and natural persons’ reproduction through artificial assistance also proves that the right to reproduction is a personality right unrelated to the identity of natural persons, especially the conjugal relation.20 2.1.4

The Subject of the Right to Reproduction

According to different views, the subject of the right to reproduction may be couples, women or natural persons. The first view holds that husband and wife share a complete right to reproduction because the integrity and uniqueness of this right determine the co-ownership of this right of spouses.21 The second view holds that men’s right to reproduction can be an entity right only when science and technology develop to the extent that men can give birth independently from women’s bodies, otherwise it can only be a natural human right.22 The natural pregnancy determines that the subject of the right to reproduction can only be women.23 The last view holds that the right to reproduction includes the freedom to and not to bear children and that the subject of this right includes all natural persons.24 This book holds that the subject of the right to reproduction is the natural person. That is, it is more reasonable to consider that both women and men can enjoy the right to reproduction on an equal basis. The reasons are as follows: first, the view that the right to reproduction is shared by both husband and wife is inconsistent with the equality and universality of rights as it is an individual right.25 Second, the right to reproduction is a right of personality in nature, which is not related to the relationship of identity completely. Third, only when both men and women are the subjects of the right to reproduction can be there the corresponding rights such as the right to equality of reproduction and claim for reproduction. Fourth, men are the natural subjects of the right to reproduction, which is a natural right of men. It should be noted that according to China’s current judicial interpretation, there is no legal reproductive obligation between husband and wife. Women’s refusal of reproduction or termination of pregnancy without their husbands’ consent means reproductive freedom or exercise of the freedom of non-reproduction, and does not constitute a violation of the spouse’s right to reproduction.

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The Core of the Right to Reproduction is Reproductive Freedom

Some scholars believe that the right to reproduction is right-centered in essence and is a comprehensive human right involving biological nature, family ethics and legal significance, including the claim of reproduction and the rights to reproductive determination, choice and security.26,27 Some scholars argue that the right to reproduction includes the right to reproductive determination, the right to know reproductive information and the rights to reproductive privacy and security.28 Other scholars argue that the right to reproduction means that citizens can freely decide legitimate affairs related to childbearing, and use all legal means to ensure the realization of the decision.29 The contents of the right to reproduction vary in different periods and regions. There may be differences even in different nationalities in the same region and period. The differences are constantly changing with the development of science and technology, social changes and progress. We should take a developing approach to the right to reproduction. However, it is the most basic consensus that the right to reproduction at least includes the right to reproductive self-determination. Among the three functions of reproductive freedom, reproductive equality and reproductive security that the right to reproduction contains, the core is reproductive freedom because reproductive freedom shows the main characteristics of the right to reproduction as an individual right.30 To sum up, this book believes that reproductive freedom at least includes the following contents: First, reproductive freedom includes the freedom of reproduction and non-reproduction; Second, reproductive freedom mainly refers to the freedoms of the time, number, mode, gender and place of reproduction.31 It includes the rights to decide the number of children, the time and the mode of reproduction.32 Some scholars argue that, in addition to the right to bear children, the right to reproduction should also cover the self-determination of the source of children and the way of having children—the person concerned chooses to have blood-related children and personally experience pregnancy and childbirth.33 However, in practice, there has been no final conclusion on whether the reproductive function can be included in the protection of reproductive freedom.34

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Third, the freedom to choose not to bear children includes the ways to avoid and terminate pregnancy. It includes the rights to contraception, abortion, sterilization, etc.35 It should be noted that reproductive freedom is not absolute freedom, but needs to be constrained by the family planning policy, eugenics, embryo interest protection, protection of children’s rights and so on.36 Advocates of absolute reproductive freedom think that singles, homosexuals and prisoners under sentence of death can use assisted reproductive technology to give birth to their offspring. However, the laws issued by various countries restrict much on the exercise of this kind of reproductive freedom in order to protect the interests of the next generation.37

2.2

The Right to Self-Determination 2.2.1

Classification of Personality Rights

Personality rights can be differently classified according to different standards. In China, traditionally, personality rights are classified into material personality rights, including the rights to life, body, health and labor ability, and into spiritual personality rights, which are classified into indicative spiritual personality rights, free spiritual personality rights and dignity-based spiritual personality rights. Indicative spiritual personality rights are divided into the rights to name, portrait and corporate name. Free spiritual personality rights are composed of the right to physical freedom and the right to inner freedom. Dignity-based spiritual personality rights include the rights to reputation, honor, privacy, chastity, credit and so on.38 Some scholars argue that material personality rights refer to natural persons’ nontransferable domination over their material personality elements such as life, body and health, while39 spiritual personality rights refer to nontransferable personality rights which are not based on the specific material entity, but on the abstract spiritual value.40 The two kinds of personality rights are different in the subject of right, inherent nature, the possibility of derogation, the object of right, the way of relief and so on.41 Some scholars believe that personality rights can also be divided into active personality rights and passive personality rights because so far, personality rights are basically characteristic of passivity, that is, protection can be claimed when they are infringed by a third party.42

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However, in the United States, the right to privacy, the focus of which is gradually changing from the right to manage personal date to the right to self-determination can be deemed as an active personality right.43 In addition, personality rights can also be classified into merchantable personality rights and non-merchantable personality rights, and into personality rights of natural persons and legal persons.44 In academic circles, personality rights are divided into abstract personality rights, which include the general personality right, the right to selfdetermination and the right to publicity, and into concrete personality rights, which include the rights to life, health, body, reputation and other specific separate personality rights.45 It is common to classify personality rights into general personality rights and specific personality rights. The General Principles of the Civil Law and the General Rules of the Civil Law specify personality rights through enumeration, but they don’t contain the provisions on general personality rights. Some scholars believe that these provisions are not comprehensive as such enumeration will lead to the lack of legal basis when individuals seek protection of personality rights and interests such as freedom, chastity and privacy that are infringed.46 The research of general personality rights was paid early attention by Professor Wang Liming, who has made systematical studies into the basics such as the concept, significance, mode of protection and specific contents of general personality rights.47 General personality rights refer to abstract and general rights related to the dignity of personality, freedom of personality and equality of personality, while concrete personality rights refer to various specific personality rights such as name, portrait and reputation. Provisions of general personality rights are only the miscellaneous provisions of concrete personality rights. When there are provisions on specific personality rights in laws and regulations, specific personality rights shall be applied preferentially.48 Professor Wang Liming also believes that the law of personality rights should stipulate the content and effectiveness of general personality rights, so as to set miscellaneous provisions for personality rights and reserve a certain space for the openness of personality rights.49 General personality rights are the characteristics of abstractness, generality, comprehensiveness, value orientation and foundation.50 Some scholars also believe that general personality rights should be stipulated because they are abstracted from specific personality rights and can explain, create and supplement the latter, a transcendence and breakthrough of legislation by judicial judgment in order to comply with the

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trend of the times. The objects of general personality rights are freedom, security and personal dignity.51 Subsequently, these scholars revised their views, studied whether general personality rights are parallel to or include specific personality rights, and reflected on the concept of general personality rights. However, they still emphasizes that considering that the civil code has established general provisions for the protection of personality rights, such provisions can be directly quoted in judicial practice to protect personality interests beyond special personality rights.52 Other scholars have also made systematic studies into general personality rights in German law and combed their sources.53 Theoretically, there is a classification of constitutional personality rights and personality rights in civil law. The most basic and important legal values related to human beings, especially the legal values centered on personal dignity, are protected by both the Constitution and civil law. Therefore, there are constitutional personality rights as basic rights and personality rights as legal rights in civil law.54 Constitutional personality rights aim to regulate government power to prevent it from infringing citizens’ basic rights. Personality rights in civil law are designed mainly to adjust the infringement of personality rights and interests between civil subjects. Basic constitutional personality rights are the basic rights of citizens determined in the constitution as the parent law, which are about the basic needs of human nature. The basis or source of the basic constitutional personality rights is personal dignity or human dignity, which is also the core value of the development of modern constitution. Japanese constitutional scientist Ashibe Nobuyoshi (あしべ のぶよし) made a classic exposition on the value of constitutional human rights, “In the postwar constitution, centered on the principle of personal dignity, Japanese constitutional human rights were materialized against the background of the thought of natural rights. Therefore, they have the highest value in the order of statute law and are considered as the basic principle of the whole legal order, including both public law and private law. They should be appropriate for all areas of law.”55 In the source of law, the general personality right is a tool for changing the constitutional value to that of the civil law.56 Conceptually, the essence of general personality rights mainly refers to personal dignity and the free development of personality, which are the most basic and important values of human beings.57 In essence, the

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general personality right is a self-determination in an objective and definable space (protected scope), in which the right subject decides whether and to what extent to allow or prohibit the use of his personality interests, so as to objectively define the protected space of personality.58 Generally speaking, general personality rights refer to basic civil rights that include general personality interests such as personality independence, personality freedom and personal dignity. In essence, they are identical to the constitutional right to personal dignity.59,60 Basic constitutional personality rights, which developed from the right to personal dignity, of course, should be protected by the system of general personality rights. Although the constitution undertakes the mission to maintain the normal order of the state and society and the necessary legal rights and interests of citizens for their survival and development, its core value is to protect people’s basic rights. Constitutionalism is in nature a system of human rights protection.61 Personality rights, as basic rights to protect human independence, freedom and dignity, are consistent with basic constitutional rights in value concept. In essence, both general personality rights and specific personality rights in the law of modern personality rights are the implementation of basic constitutional rights, and they aim to ensure the realization of the fundamental value of human beings. However, the constitution only protects the basic value of human beings at the macro level, while general personality rights in the civil law implement the specific protection at the micro level. As a legal technology in civil law, general personality rights allow the basic human value protected by the constitution at the macro level into the specific rights of civil law and to be re-implemented by personality interests in civil law. Therefore, the general personality right is a tool for changing constitutional value to that of civil law.62 Constitutional personality rights are basic human rights, whose main functions are to protect the rights of citizens from being infringed by government power and restrict government power, emphasizing the state’s obligation to protect citizens’ basic rights. The infringement by civil subjects on citizens in private law should be solved by the law of personality rights in civil law. Some scholars argue that although the constitution has confirmed citizens’ personal dignity and personal freedom protected by law and provided a constitutional basis for establishing general personality rights, the establishment of general personality rights system still needs to be confirmed by civil law. There are two main

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reasons. First, the recognition of general personality rights in civil law shows that they are both constitutional basic rights and civil rights and are an important part of the system of personality rights in civil law. Second, the recognition of general personality rights in the civil law shows that when these rights of the civil subject are infringed, the victim can seek relief through the civil law.63 2.2.2

The Concept and Characteristics of the Right to Self-Determination

The Concept of the Right to Self-Determination Both “自己决定权” and “自我决定权”64 are translated into the “Right to Self-determination” in English.65 It has been discussed by both constitutional scholars and civil law scholars. Constitutional scholars generally believe that the right to selfdetermination refers to the freedom of citizens to make decisions through individual self-discipline on private matters closely related to the survival of individual personality without being interfered by the government power. When restricting the right to self-determination, the government power must follow the legal principle of reservation and the principle of proportionality. In particular, attention should be paid to the definition of public interests.66 Some scholars have discussed the origin, content, legitimacy and relativity of the right to self-determination, and made systematic research on the conditions in which this right is restricted by public interests.67 Constitutional scholars’ demonstration on the right to self-determination remains from the perspective of the relationship between basic rights and state power and mostly emphasizes the removal of nuisance in the process of self-determination.68 As a civil right, the right to self-determination is described as the right to decide on matters that have nothing to do with others and to bear liability for acts that are only harmful to the obligee himself.69 Some scholars have made a simple list and explanation of the right to self-determination in civil law. In short, it is a right of citizens to decide freely on their own private matters, mainly including: (1) the right to self-determination of what is related to disposing one’s own life and body (suicide, euthanasia, refusal of treatment); (2) the right to self-determination of what is related to population reproduction (sexual behavior, pregnancy, contraception, childbirth, termination of pregnancy); (3) the right to self-determination of what is related to

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the formation and maintenance of the family (marriage, cohabitation, divorce) and (4) the right to self-determination of other affairs.70 There are also some scholars who use other personality rights to classify and discuss some new types of personality rights, including the right to a stable life and the right to self-determination, after demonstrating the traditional personality rights such as the rights to reputation, name and privacy. They define the right of self-determination as the right of individuals to decide their own private affairs within a certain range without the interference from the government power. These scholars also argue that the right to self-determination also appeared in Japan’s civil litigation. According to the Judgment No. 1072, page 185, made by Osaka Local Court on August 20, 2011, the court held that requiring candidates for public office to deliver election speeches at the company’s morning meeting infringed the staff’s right to self-determination of listening to or not listening to the election speeches, which should be freely decided by the staff. The court ordered the company to compensate 150,000 yen for spiritual losses. On the case of a believer in “Jehovah’s Witness” refusing blood transfusion in the Collection of Civil Cases issue by the Supreme Court, page 582, No. 2, Vol. 54, on February 29, 2012, it is written that when the patient explicitly refused medical behavior involving blood transfusion because she thought that behavior violated her religious belief, such expression of intention must be respected as a part of her personality rights.71 The Characteristics of the Right to Self-Determination This book holds that the right to self-determination has the following characteristics: 1. The right to self-determination is the right of the obligee to make a self-determination and the shaping of his specific personality elements.72 It is a new personality right developing with the principle of autonomy of private law. The academic circle has discussed the right to self-determination, including the patient’s right to decide whether to give consent to medical treatment or not, and whether to participate in dangerous activities such as mountaineering and exploration.73 The jurisprudential basis of the right to self-determination is the respect for and protection of human dignity and development by the Constitution and civil law. A rational person has the right to determine his own development

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and destiny, which is also what the Constitution and other laws aim to ensure for everyone’s personality development. 2. The right to self-determination is a kind of spiritual personality rights, falling under the freedom of personality in general personality rights. Professor Wang Liming believes that general personality rights can be classified into equality of personality, personal dignity and freedom of personality. Freedom of personality includes the freedom of physical movement, self-determination and freedom of spiritual activities. That self-determination is taken as a part of freedom of personality can help clarify the connotation of selfdetermination, supplement specific personality rights and protect the new personality interest.74 Although other material personality rights also contain elements of self-determination, the right to self-determination is in essence still a spiritual personality right, which emphasizes the independent decision. It should be noted that although the right to self-determination, as a spiritual personality right, is often exercised together with the material personality right, that does not mean that this right is not an independent personality right. Some scholars commented on the case of surgical blood transfusion in Japan, “The main damage suffered by the patient in this case was not physical damage, but mental pain. This case has clarified that patients have the right to self-determination of their own bodies, indicating people’s ability of self-control and development of their bodies can be protected by personality rights. This case created a precedent for the protection of patients’ right to self-determination.”75 The right to self-determination aims to protect the obligee’s freedom of selfdetermination of various personality elements. The object protected by the well-known principle of informed consent is the patient’s right to self-determination of his own body, rather than the patient’s health interest.76,77 3. The characteristics of the right to self-determination determine that it is not an integral part of specific personality rights, but of general personality rights, because this right comes from the extension of the autonomy of private law. If the right to self-determination is defined as an independent specific personality right, the specific content of this right will be difficult to determine for its vagueness. If the right to self-determination is taken as an independent personality right, it is difficult to determine the boundary of this right,

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and this right is apt to be confused with other rights.78 However, this book holds that the element of self-determination in nearly all specific personality rights makes the right to self-determination an integral part of the general personality right rather than the core element of the specific personality right. Professor Wang Liming also believes that the right to self-determination should not be deemed as an independent personality right, because many specific personality rights involve self-determination and unnecessary concurrence will appear.79 The specific content of the right of self-determination includes the self-determination of life, body, health and name.80 Generally speaking, we all know that we enjoy the rights to life, health and body, but is the content of these rights only our enjoyment of the integrity of life, body and health? The answer is no. We also enjoy the freedom of the rights to life, body and health.81 As some scholars have discussed, the right of selfdetermination, as the right of the obligee to make self-determination and the shaping of his specific personality elements for the personality development, is the obligee’s freedom of his own personality elements.82 4. The right to self-determination is an active personality right characteristic of negative freedom such as removing infringement. However, it emphasizes the self-determination after notification and contains more positive freedom than the general right of freedom. In this regard, some scholars classify spiritual freedom into positive freedom and negative freedom. Positive spiritual freedom refers to the freedom of will to actively make decisions and express them externally, while negative spiritual freedom refers to the freedom of spirit to maintain its integrity and purity without being interfered. The former falls under the right to self-determination.83 In terms of medical decision-making, the patient should make an active choice of the treatment scheme provided by the doctor, which is different from the patriarchal doctor–patient relationship, in which the initiative of the decision on treatment is controlled by doctors.84 In the case of Hanako, a Japanese patient who refused to accept blood transfusion, the Third Small Court of Japan’s Supreme Court held that when the patient refused medical behavior involving blood transfusion, believing that blood transfusion violated her religious belief, the patient’s right to self-determination, as a part of personality rights, should be respected.85 … This court held that the

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competent physician in this case should bear the liability for causing mental pain to Hanako because he deprived her of the right to decide whether to give consent to the operation involving blood transfusion and violated her personality right.86 5. The right of self-determination is an independent civil right. China’s Provisions on the Causes of Civil Cases stipulates the liability for infringing patients’ right to informed consent and takes the infringement of patients’ right to informed consent as an independent cause of action. On October 1, 2016, the author searched with the keywords the dispute over the infringement of patients’ right to informed consent and found 76 judgments on China Judgments Online. This means that the infringement of patients’ right to informed consent, which is the concretized right to self-determination in the medical field, has become an independent tort, and the number of such disputes is also increasing. In addition, most of the previous cases were medical disputes over both infringement of the right to informed consent and medical faults. Infringement of the right to informed consent was mostly included in medical faults. There were few cases in which the plaintiff had no objection to the diagnosis and treatment by medical institutions and only took the infringement of the right to informed consent as the cause of action. However, in the dispute between Wang Cuixia (the wife of patient Mr. Xiao) and Wuhan Asian Heart Hospital and Xiao Yanfang (the sister of the patient Mr. Xiao) over the infringement of the patient’s right to informed consent, Wang Cuixia made it clear that she did not require the identification of the hospital’s diagnosis and treatment because the hospital’s medical behavior was not at fault. She just queried about how his husband was discharged and thought that the hospital had violated Mr. Xiao’s right to informed consent as it only informed Mr. Xiao’s sister Xiao Yanfang of the state of his illness before Xiao Yanfang signed the Request for Discharge. The court of second instance maintained the judgment by that of first instance rejecting Wang Cuixia’s claim. The reasons are as follows: First, in the case of the patient’s serious illness, the medical institution has the option to inform the patient himself or his close relatives. Second, the patient Mr. Xiao authorized in writing three persons including Xiao Yanfang to exercise the right to informed consent and other matters during his hospitalization. Third, both Wang Cuixia and Xiao Yanfang are close relatives and agents. Wang Cuixia’s claim of spouse’s priority over

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brothers and sisters does not comply with the law, because the patient’s right to informed consent is the patient’s own right, not the right of close relatives.87

2.3 Women’s Right to Reproductive Self-Determination Women’s right to reproductive self-determination refers to women’s right to make decisions at their own will on reproduction. Some scholars believe that the right to reproductive self-determination is an emerging legal interest of personality, which is made a specific right to expand the protection of personality rights in response to social development. This is an interpretation in line with basic constitutional rights and human dignity.88 In modern society, women often can’t fully exercise their right to reproductive self-determination before they give consent to the diagnosis and treatment by medical institutions. Therefore, this book mainly studies how medical institutions protect and restrict women’s exercise of their right to reproductive self-determination as a civil right in the process of reproductive diagnosis and treatment. 2.3.1

Definition of Women’s Right to Reproductive Self-Determination

Women’s Right to Reproductive Self-Determination Mainly Refers to Its Embodiment in Civil Legal Relations Exploring the exercise of women’s right to reproductive selfdetermination mainly means discussing how medical institutions, as the equal subject in civil legal relations, can better ensure the realization of women’s right to reproductive self-determination according to the content and boundary of this right. Women’s right to reproductive self-determination is the concretized right to self-determination as a basic constitutional right in the civil field and is a general personality right. Its existence is based on constraints arising from the protection of other rights of civil subjects, as well as from medical reasons and ethical review. Moreover, women’s right to reproductive self-determination has stronger social attribute and is more restricted by government power than general civil rights. China’s supreme law regulates women’s right to reproductive self-determination through two provisions in the current constitution: One is the provision in Article

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25 of the 1982 Constitution, which is considered as a general outline, national policy and a proposal. The other is the provision in Paragraph 2 of Article 49 of the 1982 Constitution, which is not a mandatory obligation. The provisions of family planning in China’s constitution are mainly implemented through laws and regulations such as the Population and Family Planning Law and the Law of Maternal and Infant Health Care. While the subordinate law is implementing the provisions of the constitutional family planning, it is necessary to analyze the legislative purpose of the subordinate law, the mode of restrictions on the right to reproductive self-determination, rank of legislation and the legitimacy of the restricting procedure in accordance with the purpose and effectiveness of the provisions of the constitutional family planning and with the relevant provisions of the Legislative Law. At present, the restrictions by government power on women’s right to reproductive self-determination mainly include the number of children, the quality of women’s reproduction and what should be informed during women’s reproduction. The main means of restrictions include the collection of social maintenance fees, sound child-rearing, premarital examination, prohibition of embryo sex identification for non-medical needs, etc. In terms of the scope of research, this book only studies how the government power indirectly restricts women’s right to reproductive self-determination by restricting medical institutions’ diagnosis and treatment through prohibitive provisions, rather than making an in-depth research on how the government power directly restricts this right. Women’s right to reproductive self-determination in civil legal relations is manifested as follows: First, in modern society, women’s right to reproductive self-determination is not a right that can be fully realized only by individuals, but one with the help of the diagnosis and treatment by medical institutions. Medical institutions’ full implementation of the obligation of notification and explanation is an important premise to ensure the realization of this right. The obligation of the medical institution to notify and explain to the patient is quite different from the general one because of more ethical disputes involving the exercise of women’s right to reproductive self-determination, technical complexity, diversified right subjects, the requirement for interactive relationship in the diagnosis and treatment in the exercise of this right as well as the conflict between the protection of the right to privacy and the right to inform a third party other than patients. In addition, the requirements for other relevant information other than diagnosis and treatment are different from those for the

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general information. Second, it is usually thought that the medical act is an invasion of the patient’s body, which conforms to the constituent elements of tort in form. However, the consent of the patient leads to the cause of excluding criminal medical act, which makes the medical act legitimate in the tort law. This book, therefore, argues that the key to judging the legitimacy of medical behavior is whether the medical institution has obtained the effective consent of female patients. The patients’ effective right to self-determination is a key indicator of the legitimacy of the behavior of medical institutions. To ensure the patient’s correct exercise of the right to self-determination, who medical institutions should notify and explain to shall be made clear. Generally speaking, medical institutions shall perform their obligation to notify the patient himself. Medical institutions’ performance of the obligation to notify and explain to the patient himself is deemed to have fulfilled this obligation in form. This is only the normal situation in which patients exercise their right to self-determination when they have clear consciousness and the ability to make their own decisions. In such case, the patient’ self-determination can be deemed as a defense for medical institutions to be exempted from tort liability. In accordance with the provisions in the Tort Liability Law, the medical institution can inform the patient’s close relatives, who can make the decision, if it is not appropriate to inform the patient himself. In such case, the medical institution is also deemed to have fulfilled the obligation to notify and explain to the patient. Third, the situation in which women exercise their right to reproductive self-determination is more complex than that in which ordinary patients exercise their right to self-determination. First of all, as a special medical activity, women’s reproduction is prone to be risky. There is also prone to be the situation in which medical decisions have to be made by the close relatives of women because women themselves cannot clearly express their wishes (there may be conflicting decisions between close relatives). In practice, there are also special situations in which the pregnant woman is underage, doesn’t have a guardian, or cannot clearly express her wishes for brain death or in a coma, etc. Secondly, in the process of assisted reproduction, medical institutions shall perform their obligation to inform and explain to both husband and wife who shall exercise their right to reproductive self-determination with the common consent of the couple. The informed consent shall be signed by both husband and wife. As the medical behavior agreed by both husband and wife is significantly different from the general medical

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behavior, it is necessary to study the effectiveness of the informed consent of both husband and wife. Finally, as the medical technology advances, the process of women’s traditional reproduction has become more complex and changeable. Each new type of technology may pose new challenges to women’s exercise of their right to reproductive self-determination. Under the above special circumstances in which women exercise their right to reproductive self-determination, the medical institution can be deemed to have fulfilled the obligation to notify and explain to the patient if it has done so, and the patient’s decision to give consent to diagnosis and treatment is regarded as a legal and effective self-determination. This has become a difficult problem to be solved in the research when women exercise their right to reproductive self-determination. This is also a reasonable conduct in the case of women’s exercise of their right to reproductive selfdetermination under the joint participatory doctor–patient relationship. That is, medical institutions should establish, according to the individual characteristics of patients, an interactive channel between rational doctors and specific patients, so that women’s right to reproductive self-determination can be effectively and fully realized. Women’s Right to Reproductive Self-Determination Mainly Refers to the Exercise of and Restrictions on the Right to Self-Determination as a Civil Right in the Medical Field The right to self-determination as a civil right is reflected in many fields. The academic circle has made a research on the rights to selfdetermination of name and sexual autonomy89,90 The author has chosen to research how the right to self-determination should be protected and restricted as a civil right in the medical field, that is, patients’ exercise of their right to self-determination, for the following main reasons: First, since the implementation of the Tort Liability Law, the demand of academic circles and social practice for the research on patients’ right to self-determination has been gradually increasing. Second, the right to self-determination in other fields can be realized more through the independent decision by the obligee, but the realization of patients’ selfdetermination depends more on medical institutions’ notification and explanation, rather than only on the decisions made by patients. Third, there is also the possibility of massive infringement on patients’ right to self-determination as the exercise of this right is highly frequent and common. Fourth, the content of the right to self-determination is related to the development of science and technology to some extent. The

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more developed science and technology is, the more likely people are to determine personality elements independently, and the richer the content of the right to self-determination is.91 Therefore, the development of science and technology in the medical field has posed more challenges and possibilities to patients’ exercise of their right to self-determination. The Research on Women’s Right to Reproductive Self-Determination Focuses on the Exercise of and Restrictions on the Right to Self-Determination in the Process of Women’s Reproduction The protection of and restrictions on patients’ right to reproductive self-determination is the most prominent. First of all, there are more disputes over the protection and realization of women’s rights worldwide, including in China, especially over whether women’s right to reproductive self-determination can be exercised independently of their spouses and other family members. Secondly, the complexity of the reproductive process and the development of life technologies have posed more challenges to the boundary of the right to reproductive self-determination. Thirdly, the right to reproductive self-determination, different from the right to self-determination in other fields, often involves the status of embryos and triggers various disputes when women are exercising this right. Traditionally, the protection of the rights and interests of embryos is mainly focused on the termination of pregnancy. However, as fetal medicine and the technology of diagnosis and treatment progress, there are increasing types of rights and interests of embryos to be protected and more manifestations of the conflict between the protection of the rights and interests of embryos and women’s right to reproductive self-determination. These complex contradictions are concentrated in women’s reproductive process, so it is necessary to make an independent study on women’s right to reproductive self-determination. 2.3.2

The Content of Women’s Right to Reproductive Self-Determination

1. The right to decide whether to have children or not. This is the most important part of women’s right to reproductive self-determination. Women can decide at their own will to prevent themselves from giving birth by means of contraceptives, abortion surgery or abortion drugs. However, this right will be limited by laws, public order and good customs, national policies, embryonic personality interests and so on.

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2. The right to decide when to have children. On one hand, pregnancy and reproduction have a great impact on pregnant women’s health, work and life. On the other hand, the timing of pregnancy is directly related to the child’s quality of life. That is why China stipulates that women can’t get married and give birth until they reach the age of 20, when women can decide independently when to get pregnant. 3. The right to decide on the way of reproduction. This mainly refers to the right of women or couples to choose natural reproduction or artificial assisted reproduction due to infertility. Besides extracting sperms or eggs from the procreator, artificial assisted reproduction also involves the technology of third-party intervention in the reproduction, including artificial insemination by using donated sperm, eggs or embryos and the borrowing of the uterus of a third party as a surrogate pregnant mother. ➀92 Artificial assisted reproduction involves many interests, especially the right of children from artificial reproduction to know their blood relationship. These are the considerations for women or couples who choose the mode of reproduction. 4. The right to decide on the number of births. In countries and regions where there is no limit on the number of births, women or couples can decide how many children to have completely at their own will. However, in determining the number of children, Chinese women shall observe the national policy of family planning and be restricted by laws issued by the state. In accordance with the revised Law of Family Planning, a couple can choose to have two children at most. 5. The right to decide on the quality of reproduction. The decision of the quality of reproduction is mainly reflected in the decision of embryo gender and embryo health. This is the root of the cases of wrong birth in real life, PGD gene testing, gene therapy, fetal surgery and selective abortion due to embryonic sex. This right needs to be carefully selected and treated as it involves the interest measurement among multiple right subjects, such as women’s exercise of their reproductive self-determination, the protection of embryonic personality interests and hospitals’ obligation of notification and explanation.

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The Relationship Between Women’s Right to Reproductive Self-Determination and Medical Institutions

In 1987, “safe motherhood” was first advanced at the International Seminar on Safe Motherhood in Nairobi. In 1998, the World Health Organization put forward the slogan “Pregnancy is a major event in life, and do ensure the safety of mothers and infants.” The theme of World Health Day that year was safe motherhood. In 2007, UN Secretary General Ban Ki Moon delivered a speech entitled Urge Men to Support Safe Motherhood to Build a Better World on world population day. In his speech, he mentioned that over 500,000 women died during pregnancy and childbirth every year, of which 99% were women in developing countries. The data showed that the maternal mortality rate is closely related to the in-hospital delivery rate. The lower the in-hospital delivery rate is, the higher is the maternal mortality rate. Therefore, the in-hospital delivery is the most important guarantee to reduce the risk of maternal mortality. According to the China Health Statistics Yearbook 2013, the hospitalization rate of pregnant women in Tibet Autonomous Region ranked last in China in 2012, and 176.1 out of 100,000 pregnant women died that year, the highest in China. One of the important reasons for the high maternal mortality of most domestic deliveries was the lack of sanitary conditions at home, the delay in making medical decisions on treatment made by family members, and the delay of pregnant women on their way to medical institutions. The roots of home deliveries were financial difficulties, backward ideas, urgent delivery and difficulties in transportation. China has always taken seriously the realization and protection of women’s rights, and improved women’s reproductive safety through various measures, mainly through improving the hospital delivery rate. In 1995, the Outline for the Development of Chinese Women (1995– 2000) issued by the State Council proposed that by 2000, the coverage rate of maternal health care and the rate of maternal health education reaching 85% across the country, increasing the rate of in-hospital delivery of pregnant women in rural areas to reduce the maternal mortality rate of pregnant women by 50% from 1990 and making efforts to improve the in-hospital delivery rate of pregnant women in rural areas. In 2010, the Outline for the Development of Chinese Women (2010–2020) issue by

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the State Council, proposed effectively ensuring the safe delivery of pregnant women so that the rate of in-hospital delivery of pregnant women in China and in rural areas could reach more than 98% and 96%, respectively. According to the China Health Statistics Yearbook 2013, in 1985, the in-hospital delivery rate of pregnant women was only 43.7% across China, 73.6% in cities and 36.4% in counties and areas below the county level. As of 2012, the in-hospital delivery rate of pregnant women was 99.2% across China, 99.7% in cities and 98.8% in counties and areas below the county level. The total in-hospital delivery rate in municipalities directly under the central government such as Beijing, Tianjin and Shanghai, as well as in Shandong, Zhejiang, Liaoning and other provinces was 100%, 73.3% in the last ranked Tibet Autonomous Region, over 95% in all other provinces, autonomous regions and municipalities directly under the central government, 87.2% in cities and 72.4% in counties. The above statistics show that at present, the vast majority of Chinese women give birth in hospital. In other words, when exercising their right to reproductive self-determination, most women inevitably have to communicate with medical institutions and it is difficult and rare for them to realize this right depending on themselves only. This is also one of the important reasons why this book studies the relationship between women’s right to reproductive self-determination and medical institutions. Another important reason for this is that new technologies such as assisted reproductive technology and gene diagnosis and treatment are widely used in reproduction. In such conditions, women and their spouses have difficulties in completing all reproductive activities independently, and they must rely on the cooperation with medical institutions to achieve specific reproductive goals. Traditionally, western legal philosophy defines all the activities necessary for human beings to maintain their own existence as private sphere, which is absolutely dominated by individual freedom of will. As the legal proverb goes, wind and rain can go in, but the king can’t. What this proverb implies is the respect that the state power shows for the private sphere and the absoluteness of individual free will in the private sphere. Reproduction is a typical activity in the private sphere, a kind of individual freedom and is regarded as a private behavior that is not open to society. As long as appropriate conditions are met, reproduction, a purely natural process, called natural reproduction, will automatically develop and bear fruit according to its own laws. In the natural reproductive state, the realization of women’s right to reproductive self-determination is less

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dependent on medical institutions. Under special circumstances, women and their spouses can exercise their right to reproduction without the help of medical institutions. However, the application of new technologies such as assisted reproductive technology and gene diagnosis and treatment in human reproduction has made the impact of human will and artificial means on the natural reproduction prominent. Human reproduction has begun to change from natural reproduction to the coexistence of natural reproduction and artificial reproduction. A growing number of women choose assisted reproductive technology or gene diagnosis and treatment technology to achieve specific reproductive purposes. When couples can’t achieve their reproductive goals through natural reproduction despite efforts, this result may be changed by assisted reproductive technology. Therefore, the inevitable choice made by most people is to use artificial assisted reproductive technology to achieve reproduction, because the pain of a couple who cannot have children must be understood and properly evaluated by everyone. In natural reproduction, the health of the offspring depends entirely on luck. However, in the case of artificial childbirth, health can be predicted and intervened through genetic technology. When the technology is possible and the cost is acceptable, women will be regarded as irresponsible mothers for the health of their children if they do not carry out genetic counseling or genetic testing of the fetus. Compared with natural reproduction, artificial reproduction is no longer a purely private affair between women and their spouses. Reproduction has evolved from the bilateral relationship between women and their spouses to a tripartite legal relationship between women, their spouses and medical institutions, even including the state. Medical institutions have increasingly participated in reproductive matters between women and their spouses by spending more time in dealing with more matters with more complexity. In artificial reproduction, women and their spouses have difficulties in completing reproduction by themselves and they must rely on the theoretical, material and technical support provided by medical institutions and on the joint efforts and cooperation of doctors, nurses and other medical staff in medical institutions to achieve reproduction.

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Notes 1. Fei Xiaotong: Reproductive System, Collection of Fei Xiaotong: Volume 4 [M], Qunyan Press, Beijing, 1999, p. 1. 2. Liu Liang: On the Historical Evolution and Nature of the Right to Reproduction [J], published in the Journal of Huaihai Institute of Technology (Humanities & Social Sciences Edition), 2006 (3), p. 36. 3. Chen Yuling: On the Attribute of the Right to Reproduction and the Liability for Infringing This Right [J], published in On the Rule of Law (Journal of Shanghai University of Political Science and Law), 2009 (6), p. 19. 4. Ma Qiang: On the Right to Reproduction, Focusing on the Civil Law Protection from the Infringement on the Right to Reproduction [J], published in Political Science and Law, 2013 (6), p. 17. 5. According to Article 16 (1) of the 1980 United Nations Convention on the Elimination of All Forms of Discrimination against Women, States parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations, and in particular shall ensure, on the basis of equality between men and women, the same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights. 6. Article 49 of the Constitution stipulates that both husband and wife have the obligation to implement family planning. Paragraph 1 of Article 51 of the Law on the Protection of Women’s Rights and Interests stipulates that women have the right to have children in accordance with the relevant provisions issued by the state and have the freedom not to have children. Article 16 of the Marriage Law stipulates that both husband and wife have the obligation to implement family planning. Article 17 of the Population and Family Planning Law stipulates that citizens have the right to reproduction and the obligation of family planning according to law and that both husband and wife have responsibilities for family planning. Article 9 of the Supreme People’s Court Interpretation (III) of Several Issues concerning the Application of the Marriage Law of the People’s Republic of China stipulates that the people’s court shall not support a husband’s claim for damages on the grounds that his wife’s termination of pregnancy without his consent infringes his right to reproduction. 7. For detailed discussion, see Liao Boming and Hu Jianxin: Legal Reflections on the Right to Reproduction [J], published in Journal of Guangxi Administrative Cadre Institute of Politics and Law, 2004 (2), pp. 45–46; Yang Lixin: Report on the Legislation of China’s Law of Personality Rights [M], Intellectual Property Publishing House, Beijing, 2005, p. 474.

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8. Zhan Zhongle and Fu Chuangyu: Reflections on the Incorporation of the Right to Reproduction into the Constitution as a Basic Human Right [J], published in Journal of Nanjing College for Population Programme Management, 2011 (2), p. 16. 9. See ➁ p. 17. 10. He Qinhua, member of the Research Group on the Right to Reproduction and Human Rights at East China University of Political Science and Law: Reflections on the Right to Reproduction and Human Rights [J], published in Legal Science, 2009 (8), p. 2. 11. Fu Cuiying and Li Jianhong: Combing and Analysis of the Arguments on the Essence of the Right to Reproduction [J], published in Legal Science, 2008 (2), p. 22. 12. Ma Qiang: On the Right to Reproduction, Focusing on the Civil Law Protection from the Infringement on the Right to Reproduction [J], published in Political Science and Law, 2013 (6), p. 18. 13. Fu Cuiying and Li Jianhong: Combing and Analysis of Arguments on the Essence of the Right to Reproduction [J], published in Legal Science, 2008 (2), p. 23. 14. Chen Yuling: On the Attribute of the Right to Reproduction and Liability for Infringing This Right [J], published in On the Rule of Law (Journal of Shanghai University of Political Science and Law), 2009 (6), p. 20. 15. For three different views on the nature of the right to reproduction, see Ma Yinan: Model of Resolving the Conflict between Couples’ Rights to Reproduction [J], published in Legal Science, 2010 (12), p. 15. 16. Fan Lin: On the Right to Reproduction [J], published in Legal Science, 2000 (9), pp. 32–37; Yang Ping and Du Qiangqiang Analysis of the Concept of the Right to Reproduction [J], published in Journal of Law Application, 2003 (10), pp. 32–33; Jiang Yumei: Research on China’s Reproductive Right System [M], Southwest University of Finance and Economics Press, Chengdu, 2006, p. 44. 17. Ma Yinan: Model of Resolving the Conflict between Couples’ Rights to Reproduction [J], published in Legal Science, 2010 (12), p. 15. 18. Chen Yuling: On the Attribute of the Right to Reproduction and Liability for Infringing This Right [J], published in On the Rule of Law (Journal of Shanghai University of Political Science and Law), 2009 (6), pp. 20–21. 19. Fan Lijun: Jurisprudential Analysis of the Nature of the Right to Reproduction and the Principle of Resolving the Conflict over this Right between Husband and Wife [J], published in the Journal of Beijing University of Chemical Technology (Social Science), 2005 (4), p. 9. 20. Ma Qiang: On the Right to Reproduction, Focusing on the Civil Law Protection from the Infringement on the Right to Reproduction [J], published in Political Science and Law, 2013 (6), p. 18.

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21. Pan Haoyu: Exploration of the Shared Right to Reproduction of Husband and Wife Based on the Theory of Reproductive Rights Conflict—Also on Article 9 of the Interpretation of the Marriage Law (III) [J], published in Law Review, 2012 (1), p. 65. 22. Fu Cuiying and Li Jianhong: Combing and Analysis of Arguments on the Essence of the Right to Reproduction [J], published in Legal Science, 2008 (2), p. 23. 23. Yang Ping and Du Qiangqiang: Analysis of the Concept of the Right to Reproduction [J], published in Journal of Law Application, 2003 (10), p. 33. 24. Fan Lijun: Jurisprudential Analysis of the Nature of the Right to Reproduction and the Principle of Resolving the Conflict over this Right between Husband and Wife [J], published in Journal of Beijing University of Chemical Technology (Social Sciences), 2005 (4), p. 8. 25. Zhang Yanling: Reproductive Freedom and the Scope of Guaranteeing It—Also on the Theoretical Basis of Artificial Reproduction [J], published in the Journal of South-Central University of Nationalities (Humanities and Social Sciences), 2007 (5), p. 116. 26. Ma Qiang: On the Right to Reproduction, Focusing on the Civil Law Protection from the Infringement on the Right to Reproduction [J], published in Political Science and Law, 2013 (6), p. 20. 27. See ➀ pp. 20–21. 28. Pan Haoyu: Exploration of the Shared Right to Reproduction of Husband and Wife Based on the Theory of Reproductive Right Conflict—Also on Article 9 of the Interpretation of the Marriage Law (III) [J], published in Law Review, 2012 (1), pp. 61–62. 29. Xing Yanjing: On the Existence of the Right to Reproduction in Private Law—Also an Interpretation of Article 9 of the judicial Interpretation of the Marriage Law (III) [J], published in the Journal of China Women’s University, 2011 (5), p. 12. 30. Wang Qi: Theoretical Thinking on the Right to Reproduction [D], published by Jilin University, Changchun, 2012, pp. 20–23. 31. Zhan Zhongle and Xie Kejun: On Reproductive Freedom and Restrictions on It [J], published in Population Research, 2009 (5), p. 104. 32. Fan Lijun: Jurisprudential Analysis of the Nature of the Right to Reproduction and the Principle of Resolving the Conflict over this Right between Husband and Wife [J], published in Journal of Beijing University of Chemical Technology (Social Sciences), 2005 (4), p. 8. 33. Zhao Xiju: Creation, Expectation and Loss of Life: Law of Medical Damage Liability in the Field of Artificial Reproductive Services [J], published in Journal of Southeast University (Philosophy and Social Sciences), 2016 (2), p. 59.

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34. For a detailed discussion of this issue, see Zhang Yanling: Research on Legal Issues of Artificial Reproduction [D], published by Shandong University, Jinan, 2006, pp. 32–38. 35. See ➂. 36. Fu Cuiying and Li Jianhong: Combing and Analysis of Arguments on the Essence of the Right to Reproduction [J], published in Legal Science, 2008 (2), p. 24. 37. Zhang Yanling: Research on Legal Issues of Artificial Reproduction [D], published by Shandong University, Jinan, 2006, pp. 32–38. 38. Zhang Junhao: On the Principles of Civil Law: Volume I [M], Revised Edition 3, published by China University of Political Science and Law Press, Beijing, 2000, p. 139. 39. Lei Seqin: On the Legal Protection of Commercialized Personality Rights [D], published by Jinan University Press, Guangzhou, 2010, p. 7. 40. See ➁. 41. Wang Liming: Research on the Law of Personality Rights [M], Edition 2, published by China Renmin University Press, Beijing, 2012, pp. 41–42. 42. Li Yang: On the “Exercise” of the Right of Publication—Taking the Right Structure of the Right of Publication as the Starting Point [J], Science of Law (Journal of Northwest University of Political Science and Law), 2015 (6), p. 135. 43. Igarashi Kiyoshi: On the Law of Personality Rights [M], translated by Suzuki Ken and Ge Min, Peking University Press, 2009, p. 15. 44. Wang Liming: Research on the Law of Personality Rights [M], Edition 2, China Renmin University Press, Beijing, 2012, pp. 42–44. 45. Yang Lixin: On the Law of Personality Rights [M], Law Press, Beijing, 2011, p. 70. 46. Wang Zejian: Research on Civil Law Theories and Precedents: Volume 6 [M], China University of Political Science and Law Press, Beijing, 1998, p. 293. 47. Wang Liming: On the New Theory of the Law of Personality Rights [M], Jilin People’s Press, Jilin, 1994, p. 162. 48. See ➁ p. 41. 49. See ➁ p. 107. 50. See ➁ pp. 147–151. 51. Yin Tian: On General Personality Rights [J], published in Science of Law, 2002 (4), pp. 11–18. 52. Yin Tian: On the Legislative Model of the General Protection of Personality Rights—Abolition of the Concept of General Personality Rights [J], published in Journal of Henan Administrative Institute of Politics and Law, 2011 (1), pp. 28–30. 53. Shen Jianfeng: Research on General Personality Rights [M], Law Press, Beijing, 2012.

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54. Yao Hui and Zhou Yuntao: The Possible Development of Personality Rights [J], Law Science Magazine, 2007 (5), p. 13. 55. Ashibe Nobuyoshi (あしべ のぶよし): Constitution [M], translated by Lin Laifan, et al., Peking University Press, Beijing, 2006, p. 96. 56. Yao Hui and Zhou Yuntao: Constitutional Thinking on Civil Rights— Observation on General Personality Rights [J], published in Zhejiang Social Sciences, 2007 (1), pp. 91–98. 57. Yao Hui: On the Relationship between the Law of Personality Rights and Tort Liability Law [J], published in Journal of East China University of Political Science and Law, 2011 (1), pp. 103–114. 58. See ➂. 59. Zheng Xiaojian and Qiu Lufeng: On the Interaction between Constitutional Basic Rights and Civil Rights from the Perspective of Personality Rights [J], published in the Journal of the Party School of the Central Committee of the CPC, 2009 (6), p. 67. 60. The Provisions on the Causes of Civil Cases (2011) stipulates disputes over general personality rights in Article 9 which are included in those over personality rights. On October 1, 2016, the author used disputes over general personality rights as the search keyword to query on the China Judgments Online and found 3752 cases. 61. Zheng Xiaojian and Qiu Lufeng: On the Interaction between Constitutional Basic Rights and Civil Rights from the Perspective of Personality Rights [J], published in the Journal of the J Party School of the Central Committee of the CPC, 2009 (6), p. 67. 62. Yao Hui and Zhou Yuntao: Constitutional Thinking on Civil Rights— Observation on General Personality Rights [J], published in Zhejiang Social Sciences, 2007 (1), pp. 91–98. 63. Wang Liming: Research on the Law of Personality Rights [M], Edition 2, China Renmin University Press, Beijing, 2012, pp. 161–162. 64. In the following text, due to respect for the original text in the quotation, the author will alternately use “自己决定权” and “自我决定权,” but in fact, they mean the same. 65. In the research, there is often a mixed use of the right to informed consent and the right to self-determination. This book holds that selfdetermination is more accurate than the informed consent, because there are different types of decisions: consent and rejection. Consent is only a type of self-determination while self-determination emphasizes the choice after notification. In recent studies, the wording of informed consent has been gradually changed to informed choice. 66. Liu Yuanzheng: On the Right to Name as a Right to Self-Determination, Taking Zhao C’s Case of Right to Name as the Starting Point [J], Legal Forum, 2011 (3), p. 154.

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67. Li Juming: On the Establishment and Protection of the Right to SelfDetermination—Starting from the Case of Thousands of Boy Students in Wuhan being Collectively Sampled for DNA Testing [J], Journal of Political Science and Law, 2014 (8), pp. 50–56. 68. For constitutional scholars’ discussion on this, please refer to Ashibe Nobuyoshi (あしべ のぶよし): Constitution [M], translated by Lin Laifan, et al., Peking University Press, Beijing, 2006, pp. 108–109; Lin Laifan: Personality Rights in the Constitution [J], The Jurist, 2008 (5); Han Dayuan and Yu Wenhao: On the Right to Self-Determination and State Obligations in Human Organ Transplantation [J], Law Review, 2011 (3). 69. Yamada Takumi: Private Affairs and Self-Determination [M], Nippon Hyoron Sha Co., Ltd, Tokyo, 1987, p. 3. 70. Zhou Anping: Legal Construction of Gender Equality [D], Suzhou University, Suzhou, 2004, p. 84. 71. Igarashi Kiyoshi: On the Law of Personality Rights [M], translated by Suzuki Ken and Ge Min, Peking University Press, Beijing, 2009, pp. 187– 188. 72. Yang Lixin and Liu Zhaocheng: On the Right to Self-Determination as an Abstract Personality Right [J], published in Academia Bimestrie, 2010 (5), pp. 181–190. 73. Liu Shiguo: Research on New Personality Rights [J], published in Legal Forum, 2011 (6), pp. 5–9. 74. Wang Liming: Research on the Law of Personality Rights [M], Edition 2, published by China Renmin University Press, Beijing, 2012, pp. 166–168. 75. Yang Lixin and Liu Zhaocheng: On the Right to Self-Determination as an Abstract Personality Right [J], published in Academia Bimestrie, 2010 (5), pp. 181–182. 76. See ➀ p. 183. 77. Zhao Xiju: Research on the Physician Law [M], Law Press, Beijing, 2008, p. 61. 78. Wang Liming: Research on the Law of Personality Rights [M], Edition 2, published by China Renmin University Press, Beijing, 2012, p. 167. 79. See ➃. 80. Yang Lixin: On the Law of Personality Rights [M] Law Press, Beijing, 2011, p. 320. 81. Yang Lixin: On the Law of Personality Rights [M], Law Press, Beijing, 2011, p. 314. 82. See ➀ p. 315. 83. Yang Lixin and Liu Zhaocheng: On the Right to Self-Determination as an Abstract Personality Right [J], Academia Bimestrie, 2010 (5), pp. 183– 184.

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84. Zhao Xiju: Research on the Physician Law [M], Law Press, Beijing, 2008, p. 64. 85. See ➂ pp. 183–184. 86. Yuan Yonghong and Pei Xusheng: Research on Damage Compensation for Infringement of Patients’ Right to Informed Consent [J], Law Science Magazine, 2009 (7), p. 76. 87. See the Civil Judgment of the Second Instance on the Liability Dispute between Wang Cuixia and Wuhan Asian Heart Hospital for Infringement of the Patient’s Right to Informed Consent, (2016) E 01minzhong No.1876 for details. 88. Wang Zejian: Compensation for Property Damage (II)—Responsibility for the New Life: the Concept of Human Dignity and Damage [J], The Taiwan Law Review, 2006 (4), pp. 139–141. 89. Yao Hui: On the Law of Personality Rights [M], Renmin University of China Press, Beijing, 2011, pp. 202–204. 90. Wang Zhu: Summary of the Development of Sexual Autonomy Theory in China [J], Renmin University of Law Review, 2005 (3); Guo Weihua: Research on Sexual Autonomy [M], China University of Political Science and Law Press, Beijing, 2006. 91. Yang Lixin: On the Law of Personality Rights [M], Law Press, Beijing, 2011, p. 320. 92. Zhang Yanling: Reproductive Freedom and the Scope of Guaranteeing It—Also on the Theoretical Basis of Artificial Reproduction [J], published in the Journal of South-Central University of Nationalities (Humanities and Social Sciences), 2007 (5), pp. 114–117.

CHAPTER 3

The Theoretical and Practical Basis of Women’s Right to Reproductive Self-Determination

3.1 The Jurisprudential Basis of Women’s Right to Reproductive Self-Determination 3.1.1

Free Will Theory in Legal Philosophy

The theoretical basis of free will theory, the core of Hegel’s philosophy of law, is freedom, which is closely related to human will. The relationship between freedom and will is as fundamental as that between weight and objects. Freedom, the core of will, is realistic only as will and subject. In Hegel’s philosophy of law, people in law have the ability to know and define themselves. The theory of free will reveals the essential difference between humans and animals: everyone has the ability of free development in principle. Respect for everyone’s ability of free development means respecting their dignity as human beings.1 In the context of Kant’s ethical philosophy, subjects with (pure) practical rationality are also persons with free will. However, fundamentally different from animal arbitrariness, free will is characteristic of autonomy, indeterminacy and unlimited possibility.2 Under this essential condition, persons with free will may act in full accordance with pure practical rationality, but may also violate this principle for their own interests, which is the fundamental embodiment of self-determination.3 © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 W. Jiang, Women’s Right to Reproductive Self-Determination from the Perspective of Civil Law, https://doi.org/10.1007/978-981-19-2790-4_3

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The law emphasizes that individuals are free to get rid of external coercion, such as the illegal interference at the arbitrary will of others and even the state. Freedom of will and even freedom of behavior need to be guaranteed. The legal guarantee of freedom is, in essence, to respect everyone’s individuality. On the one hand, as an independent subject of rights, women must have free will for reproduction, especially invasive medical activities, so that they can make their own decisions on their own health. On the other hand, medical institutions should fully respect the freedom of will and the expression of will of women as patients. 3.1.2

The Theory of Autonomy of Will in Civil Law

The theory of autonomy of will in civil law means that civil subjects confirmed by law can carry out civil activities freely at their own will. In this regard, some scholars believe that autonomy of will means that the legal system makes it possible for each civil subject to adjust the relationship between them through civil acts, especially contracting, within a certain range and ensures this possibility.4 There are also views that autonomy of will means that within private law, civil subjects should decide their own behavior and that the state should determine the way in which people live and communicate and protect their autonomous behavior from any illegal interference.5 Autonomy of will requires that in private law, the government power should be strictly defined in its scope and shall not interfere with autonomous individual behavior at will. In essence, autonomy of will is a theory of legal philosophy, which means people can exercise their rights and undertake their obligations at their own will and according to their own laws. It emphasizes the legal relationship between civil subjects based on the freedom of will of individuals and provides legal protection to civil subjects. In women’s reproduction, the theory of autonomy of will is best embodied in their informed consent before the medical surgery. Unless they have a clear expression of intention or authorization, any medical decision on the reproductive medical behavior related to women should be made by them themselves, and their autonomy of will should be fully respected, even if the decision to refuse treatment may harm the interests of their own life and health.

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The Theory of the Right to Equality Centered on Feminist Jurisprudence

The right to equality means that civil subjects should realize that they all enjoy independent and equal legal personality in civil activities. The premise of equality is independence and the destination of independence is equality. In specific civil legal relations, civil subjects, not subordinate to each other, can independently express their will.6 The theory of equal rights requires that all people who are regarded as the same by the law should be treated in the way confirmed by the law.7 Article 3 of the General Principles of the Civil Law stipulates that the parties have equal status in civil activities. Article 10 hereof recognizes that all natural persons are equal in their capacity for civil rights. Article 4 of the General Rules of the Civil Law stipulates that all civil subjects have equal legal status in civil activities. Article 14 hereof stipulates that all natural persons are equal in their capacity for civil rights. The right to equality in China’s civil law also embodies the provision in Article 33 of the Constitution that all citizens are equal before the law. China ratified the Convention on the Elimination of All Forms of Discrimination against Women on September 29, 1980 (adopted by the United Nations General Assembly on December 18, 1979). It stipulates a series of measures to eliminate all forms of discrimination against women, stressing that women should not be discriminated against because of their task of reproduction, the traditional tasks of men and women in society and the family should be changed and that efforts should be made to promote full equality of men and women all over the world.8 In addition, it is stipulated that women should be ensured the same rights on the basis of equality of men and women to freely and responsibly determine the number and spacing of their children and have access to information, education and means to enable them to exercise these rights.9 Traditional western culture holds that Women’s responsibility is to bear and raise offspring and can’t enjoy the same rights as men due to the difference between men and women determined by biological factors. Before 1850, married women enjoyed few rights, and were once described as “dead persons in civil law.“ They were regarded by the legal identity theory in common law as part of their husbands and had no independent civil rights, such as the right to sign contracts, the right to property under their own names, or the right to custody of children after divorce, because

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the husband was the representative of family rights. In a sense, feminist jurisprudence boosted the substantial growth of women’s rights in the twentieth century, which can be regarded as the most practical social effect produced by the feminist law movement.10 Western scholars compare the emergence of feminism to a watershed in all cultures so far.11 It has changed the mindset of ignoring women’s status in traditional western theories of politics and law, and respected women as real social and legal subjects for the first time. Feminists began to correct the theory and reality that women were attached to men in the past and called on people to re-examine women’s social status.12 Based on the concept of equality and difference, feminist jurisprudence can be classified into liberal feminist jurisprudence, cultural feminist jurisprudence, radical feminist jurisprudence and postmodern feminist jurisprudence.13 Among them, the concept of equality and difference in cultural feminist jurisprudence is more moderate and realistic, whose representative is Professor Robin West of the School of law at the University of Maryland. Cultural feminist jurisprudence recognizes the differences between men and women, holding that women’s physiological characteristics, especially fertility, are roots for women’s disadvantage. However, it argues that equality means that women and men are treated differently for the differences between them, the same treatment can never help achieve real equality and only when women are treated differently can real equality be achieved. The basis for achieving gender equality is reflecting women’s values and needs in the law. Cultural feminist jurisprudence believes that different voices of women should be recognized and reflected in the legal environment, and women’s voices and values should be supplemented and reflected in the law.14 Feminist jurisprudence, starting from the important position of gender in our daily life, studies law by examining how gender affects the development of law and how different genders are affected by different powers in law.15 The starting point of feminist jurisprudential research is often to make up for the issues related to women omitted in the traditional jurisprudential research. The research focuses on the criticism of the male-centered orientation in disciplines, advocates the establishment of a new research paradigm based on female experience, and enlightens people to re-examine the problems in the habitual universal proposition and objective conclusion.16

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The physiological characteristics of women determine the role differences between women and men in reproduction and further lead to the differences in the relationship between women and medical institutions and between ordinary patients and medical institutions. Reproduction is an occasion where women’s rights conflict and coordinate with the rights of other right subjects. To some extent, women’s right to self-determination is not fully protected by the special provisions of informed consent and self-determination stipulated in the Tort Liability Law. Also, Article 128 of the General Rules of the Civil Law stipulates that if the law has special provisions on the protection of the civil rights of minors, the elderly, the disabled, women and consumers, such provisions shall prevail. Therefore, it is necessary to study women’s right to self-determination, with women’s particularity in reproduction taken into consideration, so as to prepare for future legislation.

3.2 The Ethical Basis of Women’s Right to Reproductive Self-Determination 3.2.1

Ethical Requirements for Autonomy

Judging from the autonomy of will advocated by Kant17 as the basis and starting point of ethics, and the forced conclusions made by H. Tristram Engelhardt, Jr. from his failure of rational argument,18 autonomy, is considered as one of the basic principles of medical ethics. The principle of autonomy proposed by Tom L. Beauchamp and James F. Childress in 1979 has developed into an important part of medical ethics education and an ethical guiding principle for clinical medical research. Autonomy means the need to respect patients’ personality and dignity and obtain their informed consent to any diagnosis and treatment.19 Advocates of utilitarianism proposed by John Stuart Mill believe that there should be as little interference in individual freedom as possible, and the right to the independence of what involve only a person himself is absolute.20 Autonomy means that rational individuals should be allowed to make independent self-determination. “We realize that people have the right to decide on their life so that it can become what they expect. It is wrong for us to control their life and guide their behavior, even if we can do so. We know that a person must freely choose his way to heaven or hell by himself.”21 The principle of autonomy involves not only the freedom to obtain decision-making

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without coercion as a forced choice is not a choice at all, but also the existence of a real possibility of making a decision among a variety of choices. Autonomy means that only when a decision is made on the basis of knowledge can autonomy be exercised in the fullest sense, because relevant information is a key condition for real decision-making. If we have to make our decisions without knowing the existing information related to our choices, there is no saying that we have made a choice about our life path. In women’s reproduction, on the one hand, autonomy gives women the ability to decide reproduction at their own will, mainly women’s ability to independent decision-making due to their independence and self-reliance. Therefore, autonomy means that a person is not subject to external or his own psychological and physical restrictions.22 Effective contraception provides a freedom to escape from the natural bondage. Therefore, today thanks to the support for the lifestyle that women can enjoy sex without bearing the consequences, they can engage in full-time work while actively having sex, obtain more wealth and a satisfactory level of life.23 On the other hand, autonomy requires that medical institutions should respect the right to self-determination of women patients in medical ethics. For example, before performing cesarean section on a pregnant woman, a doctor needs to tell her in detail the methods of diagnosis and treatment, the expected objectives to be achieved and the possible consequences, and then solicit and respect her own opinions and decisions, including the way she expresses her views, any choices she makes and her right to take action according to her personal values and beliefs.24 Women have the moral right to obtain full social equality. They should not be restricted or dominated by their gender. Women’s social equality depends on whether they can freely participate in the competition in education and economic life like men. A woman will be in an obvious weak position, especially in this world dominated by men if she cannot control when and how she will conceive or raise children.25 3.2.2

The Ethical Requirement for Regarding Embryos as Patients

The ethical requirement for treating embryos as patients means that embryos have their own special legal status and personality interests such as life, health and body although they cannot have the right to selfdetermination as they are not the subjects of rights in civil law or human

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beings in a complete sense. Therefore, when embryos need medical treatment, medical ethics requires medical institutions to regard them as patients, and doctors should pay as much attention to protecting and valuing the interests of embryos as possible when dealing with issues relating to them. Embryos should be regarded as patients although they don’t have their own languages, values or beliefs, and as long as they can develop into perfect and independent spiritual thinking systems in the late trimester of pregnancy or after birth.26 However, this does not mean that embryos can be regarded as patients only when they are likely to develop into perfect and independent mental thinking systems, because a large amount of embryo surgery needs to be carried out in their early stage. The medical ethical requirement for treating embryos as patients will inevitably conflict with the principle of protecting women’s interests and with women’s rights in ethics. In these cases, coordination of different interests is needed. In particularly, when embryos are treated as patients independently of women, the ethical framework tends to distinguish the interests of women and embryos. However, overemphasis on embryo interests challenges women’s autonomy, and women’s right to body may be determined by people in the name of protecting embryos from harm. Therefore, when treating embryos as patients, medical institutions should also follow the principle of protecting women’s interests and respecting women’s independent decision-making power although they should follow the principle of embryo interest protection. In any case, the principle of embryo interest protection must be balanced with the principle of clinical ethical judgment based on evidence-based medicine, female interest protection and independent decision-making. None of these three can be superior to the other two. The principle of embryo benefit protection should be followed only when the life and health safety risks borne by women are reasonable.27 3.2.3

Ethical Requirement for Protecting the Weak

Both Aristotle’s theory of distributive justice and Kant’s teleology human nature are the ethical basis for the protection of the rights of the weak. According to Aristotle’s theory of distributive justice, the justice of specific distribution depends on proportion, and injustice means the violation of proportion, being more or less than the proportion. The weak can’t obtain the justice of distribution just because they are weak in some

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aspects.28 Kant emphasized that your actions should regard the human nature in yourself and in other people as an end at any time and never just as a means.29 Kant’s theory tells us that everyone should be respected as they are rational existence and the same in human nature, whether weak or strong. The core of John Bordley Rawls’ theory of justice is a preference for the least advantaged, and a desire to make every effort to make all members of a society equal through some kind of compensation or distribution.30 It emphasizes that everyone has an inviolability based on justice, which cannot be overstepped by even the social welfare as a whole. For this reason, justice denies the legitimacy of the following act: enable other people to share greater interests by sacrificing some people’s freedom.31 The legitimacy of protecting the rights of the weak, as the least advantaged, not only embodies ethics and morality but also meets the requirement for social justice. Society has the responsibility to help the disadvantaged to get rid of and improve the adverse state by establishing some corresponding basic systems. Moreover, in the protection of the rights of the disadvantaged, public power must also be standardized, and the basic rights of social individuals cannot be illegally interfered by public power.32 The concept of the disadvantaged33 refers to different people on different occasions. Some scholars believe that it is not too much to say that sympathy for the weak is one of the human natures, which was described by Mencius as “恻隐之心” (compassion). The weak that are in a more disadvantaged situation than other people in a certain aspect may appear in any society and are classified into different groups in society, such as the elderly, children, women, the disabled or the poor in a traditional sense.34 Considering this, China has made many laws, such as the Constitution, Marriage Law, Population and Family Planning Law, the Law of Maternal and Infant Health Care and so on to implement the social requirements for women’s dignity and social justice. The maximum protection of women’s right to reproduction is also the internal requirement of ethics for the protection of the rights of the weak in legislation. In Chinese society, women have been in a disadvantaged position to a considerable extent. They are in a more disadvantaged situation in the process of childbirth than in the daily life. During the reproduction, they may face various pressures or coercion from themselves, their spouses and even their parents-in-law, and it’s not beyond the realms of possibility that

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they can’t make decisions completely at their own will. Therefore, special protection of women in a weak state meets not only the basic requirement for respecting and protecting human rights but also the ethical requirement for social equality and justice.

3.3

The Practical Basis of Women’s Right to Reproductive Self-Determination

3.3.1 The Need to Improve the Comprehensive Quality of the Population of China and the Need for the Reproduction and Development of Human Society A family, a nation and a country all need the continuous reproduction and development of population, which is the most fundamental reason why China’s Marriage Law and Population and Family Planning Law stipulate the reproductive obligation of couples. Article 25 of the 1982 Constitution,35 as a clause of family planning, stipulates the status of family planning policy as China’s basic national policy and the purpose of implementing the family planning policy—to adapt the population growth to the economic and social development. It can be inferred that the fundamental purpose of family planning was not to limit but regulate the population. Article 25 of the 1982 Constitution aimed to adapt the population growth to the overall social situation although it embodied the thinking of giving priority to the planned economy at that time. This article also shows that the family planning policy is not immutable, but will be adjusted with the changes in the overall social situation. Family planning is both a basic national policy and a basic obligation of citizens. Family planning and women’s right to reproductive self-determination are two concepts with strained relations: The former emphasizes planning and national regulation by public power, while the latter emphasizes decision or autonomy of will by women themselves. The two pursue different interests: public welfare and private interests, respectively. Therefore, the conflict between family planning and women’s right to reproductive self-determination is inevitable. The Population and Family Planning Law stipulates that citizens have the right to reproduction and the obligation to implement family planning according to law. The core of family planning obligation is the restrictions on women’s right to reproductive self-determination, including the number, quality and spacing of

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children. Sound child-rearing means avoiding the birth of defective population to improve the population quality by means of prohibiting specific people from marriage, premarital examination and prenatal examination. There has been a tradition of improving the quality of the population of China. There was a record of the law in the early Western Zhou Dynasty when marriage between blood relatives was prohibited; otherwise their future generations wouldn’t flourish. Its purpose was to prevent the defects of offspring caused by close relatives. China follows this tradition in the legislation of all stages of reproduction including marriage, premarital examination and sound child-rearing, considering that the population quality involves social welfare and the health of the next generation and that the birth of the defective population will also increase the burden on the family, which blights family stability and social harmony. For example, the Marriage Law prohibits the marriage between collateral kinship within three generations and of people with diseases that are medically considered not to be married. The Law on Maternal and Infant Health Care stipulates that the doctor shall explain after prenatal diagnosis the fetus suffering from serious genetic diseases and other serious defects to both husband and wife and make medical suggestions for the termination of pregnancy, but the operation for termination of pregnancy shall be subject to her own consent. The purpose of these provisions is to prevent the birth of defective offspring and improve the quality of the population. In China’s legal system, the idea of sound child-rearing is mainly reflected in premarital medical examination, prenatal examination and prenatal diagnosis. Prenatal diagnosis, for instance, aims to avoid abnormalities of pregnancy or risks for elderly pregnant women. Prenatal diagnosis can provide women with a further understanding of themselves and their embryos for smooth delivery. Even if the medical institution advises terminating pregnancy because the embryo suffers from serious genetic diseases or other defects, the final decision shall be made by the woman herself. That is, women have the right to continue or terminate pregnancy. The Law on Maternal and Infant Health Care stipulates that the termination of pregnancy shall be agreed and signed by the pregnant woman herself, and when the pregnant woman is incapacitated, it shall be agreed and signed by her guardian. The above provisions hereof show the respect for women’s right to self-determination, which is legitimate.

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The Development of the Assisted Reproductive Technology

The natural reproductive process of human is composed of sexual intercourse, fertilization, implantation into the uterus, intrauterine pregnancy and so on. Assisted reproductive technology means the artificial means assisted by medical technology of replacing one or all of the above steps when there are difficulties in realizing the above steps. Assisted reproductive technology includes artificial insemination, external fertilization, embryo transfer, preservation of egg, sperm and embryo, tubal embryo transfer, surrogate mother, intracytoplasmic sperm injection (ICSI), genetic pre-implantation diagnosis assisted pregnancy, asexual reproduction or human reproductive cloning etc.36 Assisted reproductive technology was used mainly to solve infertility in the early stage and later to prevent birth defects. With the increasing maturity of assisted reproductive technology, it has been widely used in society and a growing number of families have begun to use assisted reproductive technology to solve infertility and even problems in reproduction.37 In the process of assisted reproduction, many unprecedented legal issues have appeared related to women’s right to reproductive self-determination. For example, should the written decision on the treatment of infertility be signed by the woman alone or by both husband and wife? Should women’s right to self-determination of giving birth to a life-saving baby in order to treat diseases be limited? Are legal documents signed in the process of assisted reproductive technology that may affect the rights of children born in the future effective? To solve these problems, we need to study the exercise of women’s right to reproductive self-determination in law. 3.3.3

The Development of the Life Medical Technology

Man has never stopped exploring life science and technology, and the research on human genes is becoming increasingly in-depth. Man has made explorations on the treatment of human diseases appearing in the fetal stage or even the human embryonic stage and new medical technologies are constantly emerging to meet people’s needs for healthy babies or their own purposes. The application of each technology is inseparable from the mother’s body. The dominant position of women in the application of life medical technology gives her due legal rights and the basic and core of which is the right to reproductive self-determination.

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The Development of Gene Medicine Technology Medical technology is defined in the Administrative Measures for Clinical Application of Medical Technology issued by the Ministry of Health of China in 2009.38 The development of science and technology promotes the successful research and application of gene therapy as a gene medicine technology, which refers to gene diagnosis and gene therapy measures taken for the purpose of diagnosing and treating diseases. The use of this new gene medicine technology enables us to detect and treat congenital abnormal embryos in an early stage, so as to alleviate the pain of parents and children. One of the important motivations to study gene medicine technology is to find those pathogenic genes in the mysterious life, analyze and respond to them more effectively so as to protect human health. This is vividly described as a holy war to hunt pathogenic genes.39 In 1985, the United States took the lead in proposing the Human Genome Project (hereinafter referred to as HGP), which is about using the most advanced molecular medicine technology to provide eugenics and health care services in premarital, prepregnant and prenatal stages, check, diagnose and treat people’s genetic diseases and reduce the birth of children with congenital defects. With this new technology, newborns with congenital abnormalities can be found and treated in time to reduce the severity of the disease. Man can understand it itself more scientifically as it has made comprehensive analysis of the human genome with the help of the gene technology in medicine. The research results of gene medicine have been of great help to the development of biological medicine, especially obstetrics, and made it possible to fundamentally treat various genetic diseases. Gene technology in medicine has allowed the natural body of human to become something that can be controlled by technology to an unimaginable extent.40 Gene technology in medicine includes gene screening (neonatal gene screening helps prevent the occurrence of some serious diseases and avoid physical and intellectual disability or even death in the future), gene testing, gene diagnosis and gene therapy. The above gene technologies in medicine, such as prenatal diagnosis (PND)41 and pre-implantation genetic diagnosis (PGD), will generate different legal relations and disputes between women and medical institutions and between women and their family members.42 The analysis and application of human genetic information can help save more lives. The reproduction of life-saving babies through gene control technology can also enhance the expression of certain genes, such as intelligence and

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beauty. Francis Fukuyama, an American scholar, said in his work Our Posthuman Future that the biotechnology revolution makes us face a future in which people themselves will be changed beyond recognition. Even with the best intentions, the ability to manipulate the DNA of all the offspring of a person will bring far-reaching and terrible consequences to our political order.43 Ethical, social, technical and legal issues, such as gene information utilization, privacy, confidentiality and various risks of gene technology, whether essential or not, need to be solved by law finally. In addition, because genetic information can enable individuals to know the possible health in the future and predict the specific genetic traits of and disease risks to individuals or their offspring, a new era crossing “body transparency”44 has emerged. In terms of medical institutions’ notification of embryonic genetic information, on the basis of respecting the patient’s right to self-determination, can medical institutions have the obligation to inform the third party because the genetic population may suffer from genetic diseases? To draw conclusions on these problems, we must start with women themselves. Various legal problems that may be generated by genetic medicine technology provide a practical basis for us to strengthen the research on women’s right to reproductive self-determination. The Development of Fetal Medicine In 2010, the Ministry of Health proposed in the evaluation standard for key clinical specialties of obstetrics for the first time that obstetrics should be divided into maternal medicine, fetal medicine and general obstetrics, confirming the status of fetal medicine as an independent sub-specialty for the first time in the medical standard.45 Fetal medicine, as a sub-specialty of obstetrics, specializes in the research and treatment of embryonic diseases, covering a wide range of areas, including embryo growth and development monitoring, maturity monitoring, intrauterine diagnosis of congenital defects, intrauterine reserve monitoring, diagnosis and treatment of intrauterine diseases and so on.46 It aims to improve the survival rate and quality of embryos and lay a foundation for improving the quality of birth population and human health.47 What is the most important about fetal medicine is that it follows the ethical concept of “embryos are also patients,” treats women and embryos differently and considers both women’s and embryos’ interests. Differently, general obstetrics regards embryos as part of women’s body, only considers women’s interests but ignore embryos’.

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Fetal medicine is a high-risk clinical discipline because it directly faces high-risk pregnant women. On the one hand, it provides medical treatment for women to give birth to healthy babies. On the other hand, the technical means of fetal medicine, which are high risk, are likely to harm women’s life, body and health interests. Fetal medicine also involves the personality interests of embryos. Therefore, to a certain extent, the development of fetal medicine means higher requirements for the exercise of women’s right to reproductive self-determination and for the obligation of medical institutions to inform and explain to patients.

Notes 1. Wang Kun, Li Zujun and Zhang Lifang: On the Differences between Chinese and Western Legal Cultures from the perspective of Hegel’s Free Will Theory [J], Journal of Luoyang Institute of Science and Technology (Social Science Edition), 2010 (1), pp. 60–63. 2. Deng Xiaomang: Kant’s Lectures of Philosophy [M], Guilin: Guangxi Normal University Press, 2005, p. 171. 3. Cui Shuanlin: On the Legal Philosophical Basis of the System of Natural Persons’ Right Ability—Taking the Private Law System of Modern German Legal System as an Example [J], Jinling Law Review, 2007 (2), pp. 128–135. 4. Wang Yi: On the Basic Principles of Civil Law and Their Relations [J], Journal of Hangzhou Normal University (Humanities and Social Sciences), 2013 (3), p. 93. 5. Su Haopeng: Civil Law Culture: A Preliminary Theoretical Analysis [J], Journal of Comparative Law, 1997 (3), p. 254. 6. Wang Yi: On the Basic Principles of Civil Law and Their Relations [J], published in Journal of Hangzhou Normal University (Humanities and Social Sciences), 2013 (3), pp. 91–97 and 132. 7. Edgar Bodenheimer: Jurisprudence—The Philosophy and Method of the Law [M], translated by Deng Zhenglai, China University of political science and Law Press, Beijing, 2004, p. 309. 8. For details, see the Standing Committee of the Fifth National People’s Congress Decision on Ratifying the United Nations Convention on the Elimination of All Forms of Discrimination against Women. 9. Article 16 1 (e) of the United Nations Convention on the Elimination of All Forms of Discrimination against Women stipulates that states parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations, and in particular shall ensure, on the basis of equality of men and women, the same right to freely and responsibly determine the number and spacing

3

10. 11.

12. 13. 14.

15. 16. 17.

18. 19. 20. 21.

22. 23.

24. 25.

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of their children and have access to information, education and means to enable them to exercise these rights. Jiao Yan: American Feminist Jurisprudence—Another Kind of “Voice” of Jurisprudence [J], published in Law Review, 2005 (3), p. 12. Morrison: Jurisprudence—From Ancient Greece to Postmodernism [M], translated by Li Guilin, et al., published by Wuhan University Press, Wuhan, 2003, pp. 507–524. Huang Yu: Women’s Right to Reproduction from the Perspective of Feminism [J], Lanzhou Academic Journal, 2007 (8), p. 103. Jiao Yan: American Feminist Jurisprudence—Another Kind of “Voice” of Jurisprudence [J], published in Law Review, 2005 (3), p. 12. Liu Xiaonan: Research on the Concept of Equality and Difference in American Feminist Jurisprudence [D], Law School of Jilin University, 2005, pp. 29–31. MARTHA. Introduction to Feminist Legal Theory [M], New York: Aspen Publishers, 2003, p. xix. See ➂ p. 27. Immanuel Kant: Metaphysical Principles of Law—the Science of Right [M], translated by Shen Shuping, The Commercial Press, Beijing, 2008, p. 50. H.Tristram Engelhardt: The Foundations of Bioethics [M], translated by Fan Ruiping, Peking University Press, Beijing, 2006, p. 6. Wu Ning and Huang Falin: On the Principle of Autonomy in Medical Ethics [J], published in Medicine and Philosophy, 2005 (11), p. 44. Zhu Wei: Informed Consent in Chinese Culture: Theory and Practice [D], Huazhong University of Science and Technology, Wuhan, 2007, p. 91. Ronald Munson: Intervention and Reflection: Basic Issues in Medical Ethics (I) [M], translated by Lin Xia, Capital Normal University Press, Beijing, 2010, p. 53. Qiu Renzong and Zhai Xiaomei: Introduction to Bioethics [M], published by Peking Union Medical College Press, Beijing, 2003, p. 31. H.Tristram Engelhardt: The Foundations of Christian Bioethics [M], chiefly translated by Sun Muyi, China Social Sciences Press, Beijing, 2014, p. 305. Huang Falin: On the Principle of Autonomy in Bioethics [J], published in Journal of Chongqing Institute of Technology, 2006 (3), p. 77. Ronald Munson: Intervention and Reflection: Basic Issues in Medical Ethics (I) [M], translated by Lin Xia, Capital Normal University Press, Beijing, 2010, p. 173. Chervenakf A, MA Cullough LB, Skupski D, et al. Ethical issue in the management of pregnancies complicated by fetal anomalies [J], Obstet Gynecol Survey, 2004 (58), pp. 478–483.

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27. Gu Weirong and Li Xiaotian: Medical Ethics in the Field of Fetal Medicine [J], published in Chinese Journal of Practical Gynecology and Obstetrics, 2013 (8), p. 605. 28. Aristotle: The Nicomachean Ethics [M], Commercial Press, Beijing, 2003, p. 152. 29. Immanuel Kant: Principles of Moral Metaphysics [M], translated by Miao Litian, Shanghai People’s Publishing House, Shanghai, 2005, p. 48. 30. John Bordley Rawls Rawls: A Theory of Justice [M], translated by He Huaihong, et al., China Social Sciences Press, Beijing, 1988, p. 6. 31. John Bordley Rawls: A Theory of Justice [M], translated by He Huaihong, et al., China Social Sciences Press, Beijing, 1988, pp. 1–2. 32. Duan Peijiang: Research on the Security of the Disadvantaged in China from the Perspective of Distributive Justice [D], Southwest University of Finance and Economics, Chengdu, 2013, Abstract 2. 33. In the official documents issued by the state, the concept of the disadvantaged first appeared in the speech made by Wang Hanbin, then vice chairman of the Standing Committee of the National People’s Congress, at the symposium on the implementation of the State Compensation Law at the end of 1994, in which the disabled, women and children were specifically mentioned (NPC Work Newsletter, now called The People’s Congress of China [J], 1995 [2], p. 6.). In academic works, this concept was first used to refer to migrant workers (Liu Shiding, Wang Hansheng, Sun Liping and Guo Yuhua: Government Management of Migrant Workers—Report (III) on the Investigation of Migrant Workers in Guangdong [J], Management World, 1995 (6), p. 195. By analyzing whether they have the urban or rural residence registration, their financial state and whether they are locals or outlanders, the author believes that migrant workers are in a weak position in these three types of identities, and they are a special social group) and laid-off workers (Zhao Man and Chen Yuandun: Resettlement of Employees and System Transformation in Bankrupt Enterprises [J], Labor Science of China, 1995 [12], p. 20.). The 2002 Report on the Work of the Government mentioned special employment assistance to the disadvantaged. 34. Su Li: Protection of the Weak and Equality before Law—Taking the Death of a Pregnant Woman Li Liyun as an Example [J], Journal of Peking University (Philosophy and Social Sciences), 2008 (6), pp. 5–11. 35. Article 25 of the 1982 Constitution stipulates that the state promotes family planning policy to adapt population growth to economic and social development. Paragraph 2 of Article 49 hereof stipulates that both husband and wife have the obligation to implement family planning. 36. Qiu Renzong and Zhai Xiaomei: Introduction to Bioethics [M], Peking Union Medical College Press, Beijing, 2003, p. 57.

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37. Studies have shown that since the birth of China’s first test tube baby in 1988, related domestic industries have been booming. At present, there are 356 institutions approved by the state to carry out human assisted reproduction, including 22 in Jiangsu Province alone. The number of test tube babies cultivated in China is estimated to be about 300,000 every year and is on the increase. See Zhao Ling: The Legal Gap in the Field of Assisted Reproduction Needs to Be Filled [N], People’s Court Daily, May 20, 2014. 38. Article 2: The term medical technology as mentioned in these Measures refers to the diagnostic and therapeutic measures taken by medical institutions and their medical personnel to judge and eliminate diseases, alleviate illnesses and pain, improve functions, prolong life of patients and help them recover. 39. Jerry E. Bishop and Michael Waldholz: Genome: The Story of the Most Astonishing Scientific Adventure of Our Time—The Attempt to Map All the Genes in the Human Body [M], translated by Yang Yuling, Tianxiayuanjian Publishing Co., Ltd., Taipei, 2010, Preface 1. 40. Kurt Bayertz: Genetic Ethics—Problems Brought by the Technicalization of Human Reproduction [M], translated by Ma Huaiqi, Huaxia Publishing House, Beijing, 2001, p. 288. 41. PND is a disease diagnosis for people who are known to have a high risk of a genetic disease or have a family history of the disease, so as to judge whether the embryo has a birth defect or genetic disease, and provide possible treatment or abortion options. Various chromosome diseases, X-linked genetic diseases, congenital metabolic defects, congenital malformations and other diseases can be confirmed by prenatal diagnosis. 42. PGD is a new gene diagnosis technology with the development of assisted external fertilization reproduction technology. If these early embryos are diagnosed as having a disease gene, their development will be terminated, and only those healthy ones will be selected and implanted into the uterus, which can prevent specific genetic diseases from occurring in the next generation. 43. Wang Kang: Private Law Norms of the Right to Gene [M], China Legal Publishing House, Beijing, 2014, Preface 16. 44. Wang Kang: Private Law Norms of the Right to Gene [D], Fudan University, Shanghai, 2012, p. 26. 45. Liu Denghao: Building on the Past Achievements to Meet the Development of Chinese Fetal Medicine in the New Era—On the Successful Second Chinese Fetal Medicine Conference [J], Chinese Journal of Prenatal Diagnosis (Electronic Version), 2012 (2), p. 1. 46. Duan Tao: Approaching Fetal Medicine and Paying Attention to Twins— Written on the Occasion of the Successful “International Summit Forum

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on Complex Twins” [J], published in Chinese Journal of Prenatal Diagnosis (Electronic Version), 2010 (1). p. 1. 47. Liu Denghao: Constructing a Large Platform of Chinese Fetal Medicine on the Basis of “Four Unifications”—An Exclusive Interview with Professor Duan Tao, the Initiator of CTN [J], Chinese Journal of Prenatal Diagnosis (Electronic Version), 2014 (1). p. 1.

CHAPTER 4

The Premise for Women’s Exercise of the Right to Reproductive Self-Determination—Medical Institutions’ Obligation of Notification

4.1 Theoretical Basis of Medical Institutions’ Obligation of Notification Medical institutions’ obligation of notification, which refers to medical institutions’ obligation to truthfully inform patients of relevant information such as patients’ condition, diagnosis and treatment measures, medical risks and other matters in medical activities, is an inevitable requirement to ensure women’s right to reproductive self-determination. Today, thanks to the highly developed Internet, people can consult knowledge of their concern by various means. However, women’s knowledge and understanding of medical knowledge in reproductive diagnosis and treatment are completely unequal to doctors’ in view of the high specialization and complexity of medical knowledge such as clinical medicine, obstetrics, fetal medicine, artificial-assisted reproductive technology and gene therapy. This directly leads to women’s passive position in childbirth and medical treatment. As patients’ awareness of the right to self-determination awakens, the doctor–patient relationship has changed from the traditional patriarchal model to the peer-to-peer model in which

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 W. Jiang, Women’s Right to Reproductive Self-Determination from the Perspective of Civil Law, https://doi.org/10.1007/978-981-19-2790-4_4

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both doctors and patients participate. To protect women’s right to reproductive self-determination and respect their own will, new requirements should be proposed for institutions’ obligation of notification. 4.1.1

Patriarchal Doctor–Patient Relationship

In the traditional doctor–patient relationship, the doctor rarely discusses diagnosis and treatment with the patient. The doctor has the dominant power to make decisions on examination and treatment, also called patriarchism,1 while the patient must follow the doctor’s advice. Such relationship between doctors and patients is called patriarchal doctor–patient relationship. The reason for the patriarchal doctor–patient relationship is that the patient’s understanding of medical knowledge can only depend on the doctor, who monopolies the professional medical knowledge. This knowledge barrier and information asymmetry directly leads to the patient’s dependence on the doctor’s authority. In Foucault’s view, the patient will change to the “treated” object from the absolute subject, and become the object of the doctor’s “love of gaze” or the reference for other patients once he stands in front of the “treating” doctor.2 When doctors’ control of professional medical knowledge is transformed into dominant power, patients lose control of medical knowledge, and doctors’ medical discourse power is gradually strengthened as the dominance of an institutional doctor–patient relationship, commonly known as the patriarchal doctor–patient relationship. 4.1.2

Patient Autonomy-Based Doctor–Patient Relationship Characteristic

With the end of the Second World War, the concept of patriarchal medicine gradually collapsed because the public had an in-depth understanding of the role of doctors in human trials carried out by Nazi Germany and Japanese militarism during the war and no longer believed doctors the best spokesman of the interests of patients. Guided by this concept, Article 1 of the Nuremberg Code stipulates that it is absolutely necessary to obtain the subject’s voluntary consent in advance when the human body is taken as the test object. As the first ethical code for biomedical research involving human beings, the Nuremberg Code has had a far-reaching impact. The essence of the Nuremberg Code is also reflected in the 1948 Universal Declaration of human rights.3 In

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1964, the Helsinki Declaration issued by the World Medical Association, proposed “informed consent,” which has become an important principle of bioethics. The 1975 Helsinki Declaration emphasized what should be notified and given consent to. The 1981 Lisbon Declaration stated that patients have the right to give consent to or refuse treatment after being fully informed. As legislation and judicial practice develop in various countries, the principle of informed consent came into being4 and the principle of autonomy has become the most important one of the four principles of bioethics.5 In the patient autonomy-based doctor–patient relationship, doctors no longer enjoy absolute medical power, but use their professional knowledge to guide and help patients to make the most favorable medical decisions. Patients become the subject of the medical relationship who can decide whether to allow doctors to implement medical behavior and decide what kind of medical behavior can be implemented. This is different from the passive position in the traditional doctor–patient relationship.6 The development of medical technology has rendered it possible for patients to choose from more methods to treat a certain disease. Now doctors often need to make a choice from several treatment schemes after weighing the efficacy and side effects of treatment. In other words, the development of medical technology has promoted the development of patients’ right to self-determination to some extent.7 4.1.3

Joint Participation-Based Doctor–Patient Relationship

The highly professional and technical medical behavior determines that patient autonomy-based model itself has considerable limitations and deficiencies in clinical application, such as negative and protective notification by doctors, irrational decisions by patients and so on. In addition, as chronic diseases have become the main harm to people’s health, patients, faced with this type of diseases, are eager to know their state of health, the development of diseases, the means of prevention and treatment and the possibility of their future recovery. Therefore, it has become indispensable treatment means for patients to cooperate with medical treatment in life and make efforts with doctors. When making plans for treatment, medical institutions must take into comprehensive consideration humanistic and social factors related to medical technology, such as patients’ family status, financial capability, religious belief, social background and so on in addition to professional medical technology.8

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Against this background, a joint participation-based doctor–patient relationship, which can not only mobilize the enthusiasm of patients but also give play to the initiative of doctors, is gradually taking shape. The core of such relationship is balancing doctors’ power of treatment and the right of patients to self-determination. In short, in a joint participationbased doctor–patient relationship, the decision-making power of doctors is restricted overall but expands in some aspects, while the right of patients to self-determination expands overall but is limited in some aspects. In general, medical institutions need to respect the right of patients to self-determination and carry out diagnosis and treatment at their will. However, under special circumstances, such as for public interests and the protection of the interests of a third party, medical institutions may not follow or fully follow the patient’s own decision to take diagnosis and treatment. The decision-making power of medical institutions on special matters under the joint participation-based doctor–patient relationship, compared with that under the traditional doctor–patient relationship, is gradually expanding, especially when involving some special groups, but it is gradually shrinking overall. For example, when women are exercising the right to reproductive self-determination, medical institutions can take the initiative to inform some special information about their childbirth to third persons other than the women for public interests or the protection of the interests of the third party. Another example is that medical institutions can veto some special means of treatment proposed by women during childbirth. The traditional doctor–patient relationship, which falls under private law autonomy, is little intervened by the state power. In this context, most of the problems in the medical field can be solved by and large through notification and decisions made by doctors and patients. As science and technology progress, many medical technologies have been made possible. As the development of technology has posed challenges to traditional ethical and social relations, the state power is beginning to regulate the doctor–patient relationship, a traditional field of private law autonomy. Meanwhile, scientific and technological progress has continuously improved people’s understanding of themselves, and they have more in-depth and detailed demands for rights. This has promoted the strengthening of the types and details of patients’ right to self-determination to a certain extent.

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Contractual Liabilities and Medical Institutions’ Obligation of Notification

About the Medical Contract Any medical decision made by women as patients comes from the diagnosis and treatment information provided by medical institutions, which9 play a very important role in women’s reproduction. It is of great significance to clarify the legal rights and obligations of both parties. There are different theories about the legal relation between medical institutions and patients in Chinese academic circle, such as “the theory of public welfare,”10 “the theory of medical consumption”11 and “the theory of medical contract”.12 This book holds under normal circumstances, the relationship between medical institutions and patients in practice is equal medical contractual relationship focusing on medical behavior, which is in line with the legal elements and characteristics of contract in civil law. In many civil law countries and regions, such as Germany, Japan and Taiwan, medical contracts are anonymous contracts. However, some countries have included the medical contract in the civil code. For example, the Netherlands has made the medical contract typical,13 and stipulated various contents of the medical contractual relationship in basic civil law in the revised Civil Code of the Netherlands. Thus, the relationship between medical institutions and patients has been legalized, and the medical contract has become a typical contract. Medical services contract refers to the contract agreed between one party that provides medical services and the other party that receives medical services and pays medical expenses. Generally speaking, when the patient needs the medical institution to provide professional medical services to relieve the pain and the medical institution agrees to treat the patient and take certain medical actions,14 it means both parties reach an agreement to form a contractual relationship. In the medical contract, except under special circumstances, patients, the offeror, usually express their offer by means of registration,15 and the issuance of the charging certificate by medical institutions, the promisee, means promising that the medical contract is established. The Obligation of Notification Based on Contractual Liabilities According to the principle of autonomy of private law in modern civil law, the parties contract to realize the value brought hereby to them,

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and should cooperate for the successful performance of the contract. When concluding the contract, the parties are unequal in a certain aspect due to the mastery of the information about the subject matter of the contract by both parties, the lack of specialty or the deviation of understanding. Therefore, in accordance with the principles of fairness, honesty and good faith in civil law, the party holding important information has the obligation and responsibility to notify and explain to the party lacking information. The obligation of doctors to inform and explain to patients is a typical contractual liability. As medicine is a very professional and complex human science, generally speaking, unprofessional patients have considerable difficulty in obtaining relevant information, while doctors, as medical professionals, master the knowledge of the state of the illnesses of patients. Guided by the principle of honesty and good faith, doctors have the obligation to inform patients of the state of their illnesses, plans for treatment and other information, especially the information related to the state of their illnesses, such as explanations of the plan for, the risk and cost of the operation, etc., so that patients can decide whether to give consent to doctors’ treatment plans when they fully know the state of their illnesses, treatment behavior and other information, or take other means of treatment. 4.1.5

Patients’ Right to Self-Determination and Medical Institutions’ Obligation of Notification

The patient’s right to self-determination means that before the doctor implements invasive medical behavior, the patient decides whether to take the medical behavior according to the due explanations made by the doctor to him, an outsider in medicine, on the content, method, degree, scope, associated risks and prognosis of patients who do not undergo the medical behavior.16 The United States mainly establishes the basis of the claim for “informed consent” through tort law, which believes that medical institutions’ obligation of notification is the prerequisite for the establishment of the contract.17 The reason is that the doctor–patient relationship is not a simple contractual relationship, but in essence, a trust relationship in which patients have highly trust in the professional level of doctors because of the inequality between doctors and patients. In this case, the doctor has an “obligation of loyalty” to inform the patient of the state of

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his illness and treatment plan. The “trust obligation” and “loyalty obligation” formed in this situation are not due to the contract between doctors and patients. Medical institutions’ violation of the obligation of notification is regulated by the tort law. In the United States, the consent of patients without being informed is not real consent in the legal sense and has no legal effect. This theory requires doctors to fulfill the obligation to notify patients before obtaining their consent.18

4.2 Standards for Medical Institutions to Fulfill the Obligation of Notification In theory, there are four standards for medical institutions to fulfill the obligation of notification: the standard of reasonable doctor, the standard of reasonable patient, the standard of specific patient and the standard of compromise. 4.2.1

The Significance of Determining the Standards

1. To distinguish between medical behaviors with patient consent and those without patient consent Without the consent of the patient, medical behavior constitutes intentional tort in tort law, and even a criminal crime. Its focus is whether the patient has given consent or not. Based on the patient’s full self-determination, the principle of informed consent opposes the inference or substitution of the patient’s will by any medical institution, which, in essence, is the embodiment of the principle of the autonomy of will in private law in personal rights. According to this principle, even if the medical institution has always performed the appropriate obligation of care in the diagnosis and treatment, its failure to inform the patient also constitutes a fault.19

2. To identify the diagnosis and treatment that has obtained the patient’s consent in form but has not in essence It is a key issue whether medical behavior is based on the patient’s effective consent.20 Medical behavior with the consent of the patient who is not fully informed constitutes a negligent tort. Its focus is whether the medical institution has fulfilled the obligation of

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full notification and whether the patient is informed before his consent.21 The effective, sufficient, independent and true decision made by the patient depends on whether he can obtain sufficient and true information and whether the information can make medical institutions effectively fulfill the obligation of notification. Therefore, notification is of great significance to the definition of the nature of medical behavior.22 Doctors must make necessary and sufficient information disclosure so that patients with expressive ability can make a voluntary decision on whether to give consent to a medical plan, medical act or medical measure on the basis of full understanding. The principle of informed consent emphasizes that information is power, and requires the obligations of doctors through ethics and law to empower patients and balance the inequality of rights between doctors and patients caused by unequal information between them.23

3. To identify the diagnosis and treatment that don’t obtain the patient’s consent in form but aren’t deemed to have infringed the patient’s right to self-determination in essence Due to legal grounds for exemptions such as emergency diagnosis and treatment, compulsory medical treatment and protective medical treatment, the medical institution can impose diagnosis and treatment on the patient, although it cannot formally obtain his consent. In the above special cases, the diagnosis and treatment don’t obtain the patient’s consent in form but aren’t deemed to have infringed the patient’s right to self-determination in essence. To sum up, the standards for medical institutions’ obligation of notification are set to judge whether the medical institutions have fully fulfilled the obligation of notification and whether they have infringed the rights of patients. Medical institutions’ fully performing the obligation of notification constitutes a ground for exemptions from the liability for the injury caused by the diagnosis and treatment measures taken by the medical institution to the patient. The medical institution shall still bear legal liability if it makes a notification in form which fails to meet the effective standard.

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The Standard of Reasonable Doctor

The standard of reasonable doctor, also known as professional standard, is based on the practices and operating procedures of the medical industry. According to this standard, when confirming whether the doctor’s notification is sufficient, the judge shall, in accordance with the legal operating procedures and the practices of the medical industry, confirm in what way a reasonable doctor should explain or not explain the relevant information and what information he should explain or not explain to the patient under the same or similar circumstances. The application of the standard of reasonable doctor is rational because laymen generally do not understand the factual reasons for a professional technical behavior and cannot reasonably and correctly evaluate the legitimacy of medical decisions involving the performance of the obligation of notification.24 The Salgo v. Leland Stanford case in the United States in 1957 established doctors’ obligation to explain to patients fully before their consent. The court held that only patients’ consent to the medical behavior is not enough, and before giving consent to the operation, patients must be informed of the risks and other matters of the medical behavior by professional doctors.25 4.2.3

The Standard of Reasonable Patient

The standard of reasonable patient, first proposed in the Canterbury v. Spence26 case in the United States in 1972, is about an assumed normal patient, in the same or similar medical situation, judging, according to the diagnosis and treatment information he must know about, whether the medical institution has fully fulfilled the obligation of notification. This is an objective standard, which is designed to respect the right of patients to know the truth. What should be notified by doctors should not be based on their habitual thinking, because it is often inconsistent with the real needs of patients, but should the information that a reasonable person should be notified of in the same or similar medical situation, with the autonomy of patients fully considered.27 The difference between the standard of a reasonable patient and the standard of a reasonable doctor can be illustrated by a case in Taiwan. Before a patient underwent cardiac catheterization, the doctor did not inform the patient of the risk of the operation because he thought that there was very little possibility of death. Finally, the patient died after the

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operation, and his family sued to the court. The court of first instance held that not only frequent complications and side effects but also rare risks and consequences must be explained. The cardiac catheterization, for example, may lead to the death of the patient. Even if there is little possibility of risks, the doctor should still inform the patient.28 The judgment by the Taichung Branch of the Taiwan High Court of China in 1999, Zhongyishanggeng (I) No. 13, further stated that the standard of reasonable patient, rather than the standard of reasonable doctor should be adopted on risk notification. The gist of the above judgment revealed the minimum scope of the doctor’s notification of notification and focused on the protection of the patient’s physical autonomy. The risks of treatment, complications, side effects and mortality that although do not occur frequently, once they occur, can lead to serious consequences should be included in the doctor’s obligation of notification. According to the standard of reasonable doctor, medical institutions believe that this risk of low probability does not need to be informed to patients because informing patients will only bring meaningless trouble to them and increase the burden on medical institutions. As patients, different individuals have different tolerance of risks; however, generally speaking, patients will all pay attention to the risk of death and disability brought by the treatment, because once this risk occurs, irreparable damage will be caused to them. Even if there is low possibility of risks, people, unless threatened by serious damage, will generally considered that important information affecting the decision. Therefore, the risk of the operation should still be informed to the doctor.29 4.2.4

The Standard of Specific Patient

The standard of specific patient means that doctors should analyze what information of material importance that their patients should know from the standpoint of specific patients in each specific case. This is a subjective standard, which objectively requires a higher standard of obligation of notification for medical institutions. Subject to the standard of specific patient, medical institutions should judge what should be informed to patients according to their specific situations. Patients with different experiences, values and religious beliefs should be notified of different information by medical institutions that fulfill the obligation of notification. The consequences of implementing this standard include medical institutions’ failure to effectively perform the obligation of notification

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due to the heavier obligation of notification, patients’ failure to fully and effectively exercise their right to self-determination, and the chaotic information that should be notified due to the lack of basic standards. Some scholars believe that the adoption of the standard of specific.30 This embodies a shift from patriarchal doctor–patient relationship to joint participation-based doctor–patient relationship. 4.2.5

The Standard of Compromise

This book holds that a combination of the standard of reasonable patient and the standard of specific patient, known as the standard of compromise, can be adopted, considering the differences in medical standards between medical institutions at different levels and regions in China, the popularization of public medical knowledge and other reasonable factors. The standard of reasonable patient aims to regulate the notification of daily diagnosis and treatment by medical institutions, while the standard of specific patient, which matches the cooperative doctor–patient relationship, requires considering the special situation of each patient in making special notification. The judicial practice of European countries recognizes that when performing the obligation of notification, the doctor should also comprehensively consider the patient’s understanding of the disease, the state of his illness and the risk and complexity of treatment and provide alternative treatment methods, and mustn’t seek the patient’s consent in a “bureaucratic way.”31 Doctors shall explain any matters that the specific treated patient considers important and necessary when making self-determination, so that he can fully understand these matters.32 How much information should be told to the patient by the medical institution depends on the patient’s specific situation, such as education level, mastery of medical knowledge and other factors, especially the patient’s relevant experience from the past treatment. If the patient has undergone relevant medical behavior before, it can be inferred that the patient has a certain understanding of the disease and a simple explanation can be made to him. If the disease is common enough to speculate that the patient has a full understanding of and experience in the method or result of the operation, the explanation of this can be omitted. Of course, the doctor should choose a specific treatment scheme based on the specific situation.33

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4.3 Development of What and Who Should Be Notified by Medical Institutions in the Performance of Their Obligation of Notification 4.3.1

Embryo Gender Isn’t Generally Included in What Should Be Notified

Most countries and regions in the world stipulate that embryo gender can be disclosed. However, considering the balance between state interests and women’s right to self-determination in their exercise of the right to reproductive self-determination, China has made provisions on matters that medical institutions should not inform in fulfilling their obligation of notification, which is different from the general obligation of notification. Article 32 (2)34 and Article 3735 of the Law of Maternal and Infant Health Care stipulate that identification of fetal gender is strictly prohibited (except under special circumstances). The subsequent Population and Family Planning Law, the Ministry of Health Notice on Prohibiting the Use of Ultrasound and Other Technical Means for Identification of Fetal Gender for Non-Medical Needs and Artificial Termination of Pregnancy according to Gender, and relevant local regulations stipulate that medical institutions shall not inform the gender of embryos to women who are fulfilling the right to reproductive self-determination when performing the obligation of notification. This is also one of China’s characteristics, which reflects that the exercise of women’s right to reproductive self-determination in China is limited by not only civil rights but also the public power of the country.36 It should be further noted that medical institutions shall not inform pregnant women by implication or in other alternative ways of the gender of embryos when they conduct Bultrasound examination.37 Even if pregnant women strongly request to be informed, their request shall not be met because this is the compulsory obligation of the civil subject in law. Although the prohibition of disclosure of gender is morally required in practice to an unparalleled extent in China at present, this book believes that this can also be analyzed according to specific circumstances. The disclosure of gender should not be prohibited under any circumstances, but should be allowed under specific conditions and even the gender selection should be allowed before pregnancy.

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First, there are also cases in China where families abandon boys because they have born too many boys.38 Research made by the academic community also shows that giving birth to a boy does not necessarily mean obtaining more welfare support than giving birth to a girl.39 This indicates, to some extent, that knowing the gender of an embryo is female does not necessarily lead to abortion of the embryo, female babies are not always abandoned, and that there may be a strong demand for female babies one day in the future. Second, family gender balance and other special considerations are also important factors that should be balanced when the State implements policies. There is a view that in some aspects, the preconception sex selection (PPS for short) made by clinicians is beneficial. First, PPS is conducive to society because it can help achieve gender balance without increasing too many people in society. Second, PPS is conducive to the family because it can make couples have children of their favorite gender. Third, for some parents-to-be, the experience of upbringing children of a certain gender is very important for them.40,41 Israel has passed law allowing the application of PGD to gender selection for family gender balance. According to the Israeli Ministry of Health Guideline 2005, non-iatrogenic gender selection is allowed in the following situations: (1) when there is a real risk of damaging the mental health or health welfare of both parents, one of the parents or the embryo to be born; (2) when the applicant has at least four children of the same gender and no children of the other gender, except some rare and special circumstances; (3) when the applicant has made formal and complete consultation on the operation process, operation risk and the status of unused embryos; (4) the applicant must understand that when the gender of all embryos obtained through relevant technology is not the required one, a second selection of gender through corresponding technology shall be prohibited before all embryos that have been selected are used for reproductive purposes.42 The report published by the New Zealand Bioethics Committee, a ministerial advisory group of the country, proposes allowing gender selection for family gender balance because there are insufficient cultural, moral or spiritual reasons for prohibiting gender selection.43 In New Zealand, any gender selection for preventing “linked family diseases” can be made without the approval of the ethics committee in the following conditions: (1) when it is determined that a disease occurs in the family; (2) when embryos have a 25% or higher risk of the disease and (3) when there is ample evidence that the disease will cause serious damage to embryos in the future.44

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4.3.2

The Obligation of Medical Institutions to Inform Third Parties Other Than Patients

Problem Presentation As prenatal test technology is being widely used to test fetal genetic diseases, more and more families will choose gene test before or after pregnancy. There are three main reasons: First, the improved technical means makes the test more accurate. The development of clinical genetics, the application of molecular genetics and the expansion of fetal imaging technology and other new technologies have made more possible diagnoses and tests before pregnancy, implantation and delivery. In addition to two common genetic diseases Down’s syndrome and neural tube defects, the detection and treatment of fetal genetic diseases also include those of early-onset malignant tumors, cardiovascular diseases, other genetic diseases of high incidence rate and many less common genetic diseases. Second, the rapid decline in testing costs has allowed more people to choose gene test. According to the research report by McKinsey, the price of human whole genome sequencing is expected to fall below $500 in the next few years. Third, there is high probability of human suffering from genetic diseases. According to statistics, at least 3–4% of all the birth population suffers from congenital malformations, intellectual disabilities or other genetic diseases. As genetic diseases appear or are diagnosed after birth, and the incidence of these diseases has doubled 7 or 8 years after birth, a growing number of women, including high-risk women who have given birth to children with certain defects, as well as women who only want to prevent these diseases, choose genetic disease detection before pregnancy and delivery to avoid genetic and postnatal diseases. After prenatal diagnosis of a genetic disease, on the one hand, the doctor should fully inform the family (preferably both husband and wife) of the burden caused by the disease, the impact on the pediatric patient, the family, other relatives, family finance and marital relation, as well as of possible problems and risks in the process of continuous pregnancy. On the other hand, medical ethics and related cases also require the doctors to tell any sister of the female carrier if the conditions are met after the symptom of carrying the X-linked disease appears. In this case, the doctor’s obligation to protect privacy will conflict with the obligation to inform the third party. According to Article 55 of the Tort Liability Law, the object of medical notice is the patient himself. However, in women’s reproductive medical

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activities, medical institutions bear the obligation to inform not only women themselves, but also third parties other than women due to the special circumstances in women’s exercise of the right to reproductive self-determination. This poses a new challenge to the provisions of the Tort Liability Law and other relevant laws, which stipulate that the object of medical notification shall be the patient himself. Discussion of the Problems 1. Main reasons against medical institutions’ obligation to inform a third party First, women’s information shall not be informed to a third person other than the patient for the protection of their right to privacy. According to Article 6 of the Madrid Declaration, information obtained in the treatment relationship should be reliably kept confidential and can be exclusively used to improve the mental health of patients. Psychiatrists are prohibited from using such information for personal reasons, or for commercial or academic interests. In China, the Tort Liability Law,45 the Law for Licensing Medical Practitioners,46 the Law of Maternal and Infant Health Care47 and the Measures for the Implementation of the Law on the Prevention and Control of Infectious Diseases48 specify the obligation of doctors to protect and respect patients’ privacy. In recent years, academic circles have made in-depth discussions on this from the perspective of special types of patients.49 Generally speaking, to protect and respect patients’ privacy, medical institutions shall not inform third parties other than patients of their medical information. Unauthorized notification may lead to disputes over infringement on patients’ privacy.50,51 Second, the patient’s information shall not be informed to a third person so as to protect the exercise of autonomy. According to the modern medical theory of doctor–patient relationship, medical institutions must respect patients’ right to selfdetermination in their medical behavior related to patients. The Declaration of Lisbon on the Rights of the Patient issued by the World Medical Association stipulates that patients have the right to self-determination, and doctors need to notify patients of the specific content and consequences of self-determination. In most

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cases, medical institutions shall notify patients themselves of relevant information and shall not disclose their medical status to others. Therefore, medical institutions must respect women’s right to reproductive self-determination by informing them themselves of relevant medical information, and the women themselves will make final medical decisions after mastering the information. Informing others of the medical information of female patients is not a necessary way to ensure female patient’s exercise of the right to self-determination. It can hardly better protect but may blight female patient’s exercise of the right to self-determination. Third, it is not appropriate to inform the patient’s information to a third party so as to protect the rights unknown to the third party. According to WHO suggests for ethical guidelines of disclosure and confidentiality of genetic information… (4) Individuals and family members who do not want to know genetic information (including test results), except treatable diseases detected for newborns or children, should be respected and (5) Information that may cause serious psychological or social damage may be temporarily detained. Before disclosing genetic information, the consulting provider can judge when the subject is willing to accept the information.52 The rational basis of the WHO rules is that not everyone can calmly accept the blow from the news that they may suffer from a certain disease. The right of some people to know the truth may be a source of information to destroy others. There are also cases in which family members panic after knowing that the family gene runs a risk of dangerous mutation.53 The book believes that the emphasis on protecting the right of a third party other than the patient from being informed is mainly because some genetic diseases, which, even if informed, cannot be cured with appropriate methods, may bring a third party into panic on the contrary. For example, a woman went to Hopkins Hospital to test Huntington chorea gene,54 but her identical twin sister didn’t want to know the result.55 This is bound to increase the psychological burden on those individuals who have been proved to be carriers of Huntington chorea gene, frustrate them in life and work, and even drive some people into mental depression and suicide.56

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2. The main reason for supporting the obligation of medical institutions to inform a third party under specific circumstances. Under normal circumstances, it is reasonable and necessary to specify that medical institutions shall perform their obligation to notify only patients, considering protecting patients’ right to privacy, right to self-determination and the right of third parties not to be informed. However, rights are not absolute, but have boundaries. It is also necessary to protect the rights of a third party under special circumstances. The reason why it is emphasized that medical institutions need to perform the obligation to notify third parties other than patients for the following reasons:

(1) Obligation of medical institutions to protect third parties under special circumstances When performing the obligation to inform women who are exercising their right to reproductive self-determination, medical institutions also have the obligation to protect third parties under special circumstances. In a case, for example, when a young man and woman were receiving premarital physical examination, the woman was suspected of having AIDS. However, the man was not informed of the situation by the maternal and child health hospital and the woman and found to be infected with AIDS shortly after his marriage.57 After that, the man thought that the hospital should inform him of his wife’s illness in the premarital checkup. However, the hospital said that its concealment was in line with the Regulations of AIDS Prevention and Control, which stipulates that no unit or individual shall disclose, without the consent from the patient or his guardian, the name, address, place of work, portrait, medical history and other information of the HIV infected person, AIDS patient and his families that may infer the specific identity of the patient. In this case, in fact, the medical institution chose to protect the patient’s privacy in the right balance between the patient’s right to privacy and the right to health of a third person other than the patient. This book holds that the practice of the maternal and child health care hospital was improper, because in this case, there was a special relationship between the third person other than the patient and the medical institution. Generally, a person does not bear the

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obligation to control the behavior of others to a third person nor does he bear the obligation to warn those in danger because of the behavior of others. Therefore, in general, a third party other than the patient does not have the right to claim the doctor’s obligation to disclose medical information. However, the law now recognizes exceptions beyond the general principle. If there is a special relationship between the defendant and a third person, and the special relationship makes the former have the obligation to control the behavior of the latter, or there is a special relationship between the defendant and the foreseeable victim, and the special relationship makes the former have the obligation to protect the latter from damage, the defendant has the obligation to control the behavior of others.58 The Tarasoff case59 in the United States established the warning obligation of doctors for the first time, which had a wide impact on the obligations of doctors to a third party. In 1976, the California Supreme Court judged that the special relationship between doctors and patients was sufficient to require doctors to exercise reasonable duty of care to protect people threatened by patients’ diseases. The special relationship between psychiatrists and patients was enough to generate doctors’ obligation to protect third parties; doctors should fulfill their reasonable duty of care to protect third parties from patients. Therefore, the special relationship between psychiatrists and patients makes doctors bear the obligation to protect third parties.60 (2) There is an interest relationship between third persons other than the patient and the patient’s medical information In general diagnosis and treatment, there is no interest relationship between third persons other than the patient and the patient’s medical information, while in gene diagnosis and treatment, the universal, familial and predictive natures of gene information determine that there may be an interest relationship between family members, as third persons other than the patient, and the patient’s medical information. Medical institutions can find out whether all the family members with blood relationship with the patient may suffer from the similar disease through testing the gene of the patient.

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In gene therapy, it is necessary to obtain the gene information of family members to master the medical history of the family, and the possible risk of the disease should be disclosed to family members when necessary. This is an unavoidable task in gene testing, gene counseling and gene therapy.61 The interest structure generated by genetic medicine is multidimensional, involving not only “patients” and “doctors” but also some other stakeholders. Among them, those who have an internal close relationship with a specific gene mainly refer to individuals or groups who can claim rights or interests for a specific gene based on the relationship of personality. The claim for the right to gene by internal stakeholders is based on personality.62 In the case of Schroeder v. Perkel in America, the focus of the trial was whether the doctor, as the defendant, had the obligation to inform the plaintiff that his daughter had cystic fibrosis. The Supreme Court of New Jersey, which heard the case, argued that what the actor’s duty of care is about is closely related to the reasonable consequences caused by the negligent act violating the duty; If the actor’s negligent act damages one of the family members, the whole family, composed of living family members, will bear the consequences of the negligent act. Therefore, the court held that the defendant as a doctor should have the obligation to disclose the condition of the illness not only to the patient but also to the close relatives of the patient who might be significantly affected because the doctor was too negligent to disclose the patient’s condition.63 In the case of Safer v. Estate of Pack, the Supreme Court of New Jersey once again faced the same problem—whether doctors have the obligation to warn those at risk of suffering from genetic diseases, that is, whether doctors should warn the family members of patients who may be affected by doctors’ failure to perform the obligation of warning. In this case, the plaintiff’s father suffered from hereditary colon cancer, but his father’s doctor did not tell the plaintiff that his father’s colon cancer would be passed on to the plaintiff, so the plaintiff filed a lawsuit against the doctor. The Supreme Court of New Jersey also held that doctors had the obligation to warn the patients and their close relatives.64

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(3) Third persons other than the patient are in real danger There was a famous saying in the case of Tarasoff that the right to confidentiality ends where public danger begins. Before that, when the court judged whether an obligation existed, predictability was not the court’s most important consideration. However, the court believed that in this case, the psychiatrist could foresee the possible injury of Tatiana, and this predictability required the psychiatrist to bear the obligation to warn Tatiana that she was in danger. Therefore, when foreseeing that the patient’s behavior may cause damage to a third party, the doctor shall bear the obligation to warn the third party.65 The determination of this obligation breaks through the traditional obligation of professional doctors. Obligation includes both the obligation of omission and the obligation of act. Therefore, the actor shall bear liability not only for his act, but also for the damage caused by his omission.66 When a patient suffers from AIDS, the doctor must choose between the obligation of confidentiality and the obligation of warning. The doctor’s disclosure of the medical history of the AIDS patient is very distressing, and the patient will feel painful because his family members and friends may therefore despise him. However, if the doctor doesn’t disclose the condition of the AIDS patient, third persons may be infected with HIV, which cannot be completely cured by the current medical technology, so the doctor’s behavior has brought serious consequences to third persons.67 The court hearing the case of Bradely held that in cases involving child abuse, the Missouri law supported the court in determining psychiatrists’ obligation of warning, “It is not new to impose legal obligations on specific medical professionals to protect others from being harmed by patients. For example, physicians have the obligation to submit the list of patients with AIDS to the health department to protect public health. Besides, the law allows doctors to disclose the confidential information of patients so as to warn their spouses and medical staff to mind patients’ conditions of illness and avoid possible damage. …We believe that the relationship between psychiatrists and patients is special. If the psychiatrist does not give a warning, we can impose tort liability on the psychiatrist in view for this relationship.”68

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The above cases show that whether a third person other than the patient has the right to be informed by the medical institution, or rather, whether the medical institution undertakes the obligation to inform a third person other than the patient mainly depends on whether the third person other than the patient will be at actual risk if the medical institution fails to notify the third person. The answer is evident. (4) Gradual improvement of relevant international treaties and legislation. According to Article 9 (4) of the Madrid Declaration, before the psychotherapy, patients should be informed that their information and health records will be reliably taken care of. Exceptions are as follows: (1) when the information is required to be disclosed to a third party specially designated by the patient or the court requests necessary records; (2) when the law requires the report of specific information in cases of child abuse.69 Article 6 of the Madrid Declaration stipulates that breach of confidentiality may be appropriate on a basis of agreement only when continuous confidentiality is likely to cause serious physical or mental damage to patients or third parties; If possible, psychiatrists should first notify patients of the action to be taken.70 The Public Health Law of New Mexico stipulates that a doctor shall inform the local health personnel of the infectious patient’s name, address and the dangerous fact if he knows or has reasonable reasons to suspect that the possible behavior of the patient will infect others with the virus. What needs to be explained is as followed: First, there are some differences in the content between the doctor’s obligations to inform a third party and to inform the patient. The doctor’s obligation to inform the patient is mainly about informing the patient of his state of illness, the diagnosis and treatment measures to be taken, as well as medical risks and other factors related to the patient’s state of illness. The doctor’s obligation to inform a third party is mainly about informing a third party of the possible damage with considerable uncertainty caused by the patient’s disease or other behaviors. In this process, the doctor informs a third party of the patient’s state of illness only to explain why the third party may face the damage. Second, doctors’ obligation to inform third parties is only a

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supplement to the obligation to inform patients. In general, the doctor shall perform the obligation to inform only the patient in accordance with the agreement on the confidentiality of privacy with the patient. Third, who third parties include must be strictly defined both technically and for interests. Take, for example, the third party who must be notified by the medical institution when a woman is found infected with HIV in the process of childbirth. The doctor will be overwhelmed, if required to bear the obligation to warn all people who may be infected with HIV. Therefore, only the definition of third parties who may be infected with HIV can ensure the rationality of doctors’ obligation of warning. Therefore, “third parties” who the doctor bears the obligation to warn should be limited to identifiable spouses, sexual partners under monogamy and identifiable injection needle sharer. Such restriction can reduce the burden of doctors to a great extent. In this way, doctors can prevent the spread of HIV by warning third parties who are apt to be infected with HIV.71 Fourth, notifying third parties through the patient or directly notifying third parties should be determined. In order to avoid the infringement of the patient’s right to privacy and right to self-determination, the medical institution can explain to the patient the significance of informing his close relatives of the medical information to the prevention and treatment of the disease they may suffer from, transferring the obligation to warn risks from the medical institution to the patient. Thus, the patient will decide whether to inform the close relatives and when to inform them. When the patient requires the assistance of doctors in professional problems during the notification, the medical institution shall assist the patient as required by him, and perform the obligation to warn risks to his family members. 4.3.3

Medical Institutions Need to Inform Other Information Besides Technical Information

Article 5572 of the Tort Liability Law, Article 2673 of the Law for Licensing Medical Practitioners and Article 1174 of the Regulations on the Handling of Medical Malpractice contain general provisions on what should be notified by medical institutions to patients in China. It can be seen that at present, what should be notified by medical institutions in China is mostly limited to “condition,” “medical measures,” “medical risks” and “alternative medical schemes.” From such information, a core standard can be extracted—the measures of diagnosis and

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treatment related to the patient’s condition and used to treat the disease, namely, objective technical information. Current regulations in China do not specify the necessity of medical institutions to inform patients of the personal information of medical personnel for two reasons. First, whether a doctor is ill is his personal privacy, and the privacy of medical personnel also needs to be respected. Second, medical institutions’ obligation to disclose information other than technical information, if required to be implemented through legislation, will increase the burden on medical personnel who bear the obligation to inform patients of technical information. In this regard, some scholars believe, “Article 55 of China’s Tort Liability Law adopts specific, rather than general, flexible and inclusive wording to specify what information needs to be disclosed, which does not point out the keys. Judging from the judicature of informed consent in countries around the world, the information needs to be disclosed far exceeds these provisions.”75 This book believes that with the improvement of the overall medical services and patients’ knowledge structure, especially with the gradual deepening of patients’ right to self-determination and the establishment of the mode of doctor–patient communication, the obligation of medical institutions to inform patients of the personal information of medical personnel should be gradually implemented. The main reasons are as follows: First, medical activities are of high risk, with the possibility of various emergencies and the treatment by doctors with different qualifications and experience may lead to different results: survival or death. In the case of Johnson ByAdler v. Kokemoor, known as the second revolution of the law of informed consent, the patient went to the hospital to seek a surgery for the basilar bifurcation aneurysm. The highly complex operation, even if performed by the best professional doctor, may lead to a disability and mortality rate of about 15%. If the operation is performed by inexperienced doctors, the disability and mortality rate will increase to 30%. The doctor exaggerated his experience in such surgery when the patient asked him about that. In the trial of the case, the court held that excluding all risks related to doctors from their obligation of disclosure was illogical. Especially when the capability of a specific doctor was determined as a separate risk factor, the risk information related to doctors was more relevant to patients’ informed consent than the general risk

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information related to treatment.76 Finally, the Wisconsin Supreme Court argued that doctors’ professional experience, as the substantive information of informed consent, should be truthfully notified to patients. In the judge’s opinion, important information such as the experience of the defendant as a doctor, the risk assessment of different doctors for this operation and the possibility of operation by other medical institutions would help the patient’s exercise of his right to self-determination, and also made the patient aware of other options of treatment.77 Second, there are great differences in the technical service ability of different doctors, and the technical service ability of a specific doctor may change. Medical service is not industrial production, which can be determined purely by technology, but an integration of doctors’ participation and medical technology. In accordance with the code of ethics issued by the American Medical Association, it is immoral for a doctor to continue to work when his professional ability is being impaired by controlled substances, alcohol or other chemicals. The British Medical Association also requires that doctors should take the initiative to seek medical treatment or stop treating patients when they are not conducive to the treatment of patients because of personal factors such as their health and medical ability.78 Article 17 of the Code of Ethics for Chinese Doctors (June 25, 2014) stipulates that doctors should correctly evaluate their medical ability and when their personal technology is limited, they should discuss with or seek help from their colleagues in order to get a reasonable plan for diagnosis and treatment. This provision does not separately list the changes of doctors’ professional ability as what should be informed, but it can be concluded from the provision that doctors need to evaluate their medical ability and take appropriate solutions to avoid adverse effects on patients if their professional ability is blighted by factors other than technology. In a litigation filed by two patients for the grounds that the surgeon and his hospital had not informed them before the operation that the surgeon suffered from AIDS, the court of appeal in Maryland held that during the invasive surgical treatment of the patient, the surgeon could foresee that he might transmit the AIDS he carried to the surgical patients. Even if some preventive measures could make this risk less possible, this risk could not be completely avoided. Once it occurred,

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the consequence of the damage to the victims could not be compensated. Therefore, in this case, the doctors had the legal obligation not to conduct the invasive surgery or to warn his patients that he had AIDS, so that his patients could make their own decisions.79 In China’s judicial practice, there were also cases in which the patient filed a lawsuit to claim that his right to self-determination was violated because he believed that the medical institution didn’t notify enough information to him.80 The plaintiff claimed that his right to self-determination was violated because the competent doctor and surgeon informed by the hospital were not the doctors actually performing the operation. The court finally supported the patient’s claim, believing that the surgeon, as the key to medical behavior, essentially affected the treatment effect and the replacement of the surgeon by the medical institution without the patient’s consent violated the patient’s right to self-determination.

Notes 1. Zhu Lijun: Research on Basic Issues of Civil Law in Organ Transplantation—From the Perspective of Organ Donors’ Right to SelfDetermination [M], Law Press, Beijing, 2012, p. 69. 2. Yu Qizhi: The Love of Gaze: On Foucault’s Philosophy of Medical History [M], Central Compilation and Translation Press, Beijing, 2002, p. 46. 3. Zhu Wei: Informed Consent in Bioethics [M], Fudan University Press, Shanghai, 2009, p. 11. 4. Zhao Xiju: The Specific Existence and Unique Value of the Informed Consent Principle in Medical Tort Law [J]//Ni Zhengmao and Liu Changqiu: On Life Law [M], Heilongjiang People’s Publishing House, Harbin, 2008, p. 85. 5. Gan Tiangui: Medical Disputes and the Application of Law—On the Criminal Responsibility of Arbitrary Medical Acts [J], The Taiwan Law Review, 2008 (157). 6. Jin Xuanqing: Doctors’ Obligation of Notification and Patients’ Right to Informed Consent in Korea [J], The Jurist, 2011 (3), p. 153. 7. In 1956, American scholars Szase and Hollender analyzed three basic modes of doctor–patient relationships: domination-passivity, guidancecooperation and joint participation. In the 1950s when their research was released, acute diseases or infections requiring emergency surgery were in their heyday, and could rely on only natural cure due to the limited level of internal medical treatment. Therefore, the prediction of the result of treating such diseases was almost either survival or death, and

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8.

9.

10.

11.

12.

neither doctors nor patients would bother to choose the method of treatment. Guidance-cooperation relationship is regarded as the mainstream of doctor–patient relationship. Xia Yun: Comments on Doctors’ Obligation of Notification [J], Journal of Nanjing University of Traditional Chinese Medicine (Social Science Edition), 2001 (4), p. 199. Xia Yun: Comments on Doctors’ Obligation of Notification [J], Journal of Nanjing University of Traditional Chinese Medicine (Social Science Edition), 2001 (4). Article 3 of the Detailed Rules for the Implementation of the Regulations on the Administration of Medical Institutions stipulates the categories of medical institutions: (1) general hospitals, traditional Chinese medicine hospitals, integrated traditional Chinese and Western medicine hospitals, ethnic medicine hospitals, specialized hospitals and rehabilitation hospitals; (2) maternal and child health hospitals; (3) community health service centers and community health service stations; (4) central health centers and townships (towns) health centers and subdistrict health centers; (5) sanatoriums; (6) comprehensive outpatient departments, specialized outpatient departments, TCM outpatient departments, integrated traditional Chinese and Western medicine outpatient departments and ethnic medicine outpatient departments; (7) clinics, traditional Chinese medicine clinics, ethnic medicine clinics, health centers, infirmaries, health care centers and health care stations; (8) village clinics; (9) first aid centers and first aid stations; (10) clinical laboratory centers; (11) specialized disease prevention and control hospitals, specialized disease prevention and control institutes and specialized disease prevention and control stations; (12) nursing homes and nursing stations; (13) medical laboratories, pathological diagnosis centers, medical imaging diagnosis centers, hemodialysis centers and hospice care centers and (14) other diagnosis and treatment institutions. Advocates of this view hold that most medical institutions in China are non-profit public institutions uniformly managed, given subsidies and strictly limited in service prices by the government. They are obviously public welfare-based, and the doctor–patient relationship should be adjusted by administrative law. Advocates of this view believe that the relation between patients and hospitals is one between consumers and businesses, in which hospitals provide treatment services, and patients buy the services. The Guangdong Province Measures for the Implementation of the Consumer Protection Law of the People’s Republic of China promulgated in 1999 stipulates that patients are also consumers. Advocates of this view believe that both parties reach a medical service contract when patients go to the hospital to see a doctor, register and

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pay fees according to regulations and the hospital collects fees and accepts patients to provide medical services. In 1994, the Netherlands promulgated the Medical Services Act, which specifies the rights enjoyed by patients in medical relations and the violations that may lead to medical liability. The Act was incorporated into the Part 7 Specific Contracts of the Civil Code of the Netherlands in 1995 and named Medical Services Contract. Medical behavior refers to doctors’ diagnosis and treatment by using drugs, equipment, surgery and other methods, including consultation, inspection, examination, diagnosis and other preparation or auxiliary behaviors, in order to restore patients’ health, remove their physical injury or correct their physical defects and disabilities. Plastic surgery, abortion, transplantation or measures taken on the patient for experiment that are sufficient to blight his health or physical integrity are also regarded as medical behaviors. Guo Ming: On the Compulsory Obligation of Medical Institutions to Contract with Critical Patients [J], Journal of Dalian Maritime University (Social Science Edition), 2010 (3), pp. 77–81. Registration referred to herein includes written, oral, telephone, Internet registration and other means. Jiang Chunling: On Patients’ Right to Informed Consent—Theoretical and Legislative Review Based on Case Investigation [J], published in Nanjing University Law Review, 2006 (2), p. 114. Luo Xiu, et al.: Contract and Tort—On Doctors’ Obligation of Notification according to Foreign Jurisprudence [J], published in China Hospital Management, 2007 (7), p. 25. Yang Xiuyi: An Investigation and Analysis of the Principle of “Informed Consent in the United States” [J], published in The Taiwan Law Review, 2005 (5), p. 138. Wang Zhanming: On “Informed Consent” in Anglo American Tort Law [J]//Liang Huixing: Essays on Civil and Commercial Law, Volume 41 [M], published by Law Press, Beijing, 2008, p. 370. Zhu Lijun: Research on Basic Issues of Civil Law in Organ Transplantation—From the Perspective of Organ Donors’ Right to SelfDetermination [M], Law Press, Beijing, 2012, p. 172. Zhao Xiju: The Specific Existence and Unique Value of the Informed Consent Principle in Medical Tort Law [J]//Ni Zhengmao and Liu Changqiu: On Life Law [M], Heilongjiang People’s Publishing House, Harbin, 2008, pp. 100–101. Wang Zhanming: On “Informed Consent” in Anglo American Tort Law [J]//Liang Huixing: Essays on Civil and Commercial Law, Volume 41 [M], published by Law Press, Beijing, 2008, pp. 370–371.

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23. Yang Xiuyi: Rethinking of the Informed Consent from the Perspective of Ethics and Law: Narrowing the Gap between Theory and Practice [J], The Taiwan Law Review, 2008 (162). 24. Hu Yongqing: Composition of Doctors’ Obligation of Notification in the Theory of Informed Consent [J], published in Science of Law (Journal of Northwest University of Political Science and Law), 2005 (01), p. 96. 25. APPLBAUM PAUL S, et al. Informed consent [M] Oxford: Oxford Press, 1987: 39. 26. Canterbury v. Spence, 464 F. 2d 772 (1972). 27. Yang Xiuyi: On the Autonomy of Patients [J], published in NTU Law Journal, 2007 (2), p. 236. 28. Wang Huangyu: Doctor’s Obligation of Explanations and Exemption from the Obligation of Explanations [J], published in Ft Law Review, 2012 (12), p. 187. 29. Wang Huangyu: Doctor’s Obligation of Explanations and Exemption from the Obligation of Explanations [J], published in Ft Law Review, 2012 (12), p. 186. 30. Chen Huihui: Research on the Current Situation of Legal Regulation of “Medical Informed Consent” in China—After the Promulgation of Tort Liability Law [A]//Proceedings of Tsinghua International Academic Conference on Medical Management [C], Tsinghua University Press, Beijing, 2011, p. 455. 31. Christian von Bar: The Common European Law of Torts: Volume II [M], translated by Jiao Meihua and proofread by Zhang Xinbao, published by Law Press, Beijing, 2001, pp. 390–391. 32. Lin Pingzhang: The Essence of the Principle of Informed Consent [J], published in The Taiwan Law Review, 2008 (162). 33. Piao Taixin: The Role of the Obligation of Explanation in Medical Litigation [J], Yonsei Law Studies: Volume 1, Serial 5, 1998, quoted from Doctors’ Obligation of Notification and Patients’ Right to Informed Consent in Korea by Jin Xuanqing [J], The Jurist, 2011 (3), p. 162. 34. Article 32 (2) of the Law of Maternal and Infant Health Care of the People’s Republic of China stipulate that identification of fetal gender is strictly prohibited by technical means, unless it is really necessary in medicine. 35. According to Article 37 of the Law of Maternal and Infant Health Care of the People’s Republic of China, any person engaged in maternal and infant health care who violates the provisions of this law by issuing relevant false medical certificates or identifying fetal gender shall be given administrative sanctions by the medical and health care institution or the administrative department of public health according to the circumstances. If the violation is of serious nature, he shall be disqualified from practice according to law.

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36. In December 2015, the largest case of “blood test for gender identification” nationwide was uncovered by the Wenzhou police. It is preliminarily estimated that more than 50000 pregnant women were involved in the case. They sent blood to test the gender of embryos to keep alive boys. Although the specific proportion of choosing to terminate pregnancy because the identification shows that the embryo is a female baby is unknown, it is reported that at least 3 or 4 of the more than 10 people interviewed by the police chose abortion for the above reason. For details of the case, see “Wenzhou cracked the country’s largest case of blood test for gender identification, and most of the customers were second children mother,” Wenzhou Daily, October 15, 2016. 37. A maternal and child health hospital in Shanghai has launched a dynamic three-dimensional ultrasound image diagnosis system, which can take photos of unborn babies while checking pregnant women, so that parentsto-be can take photos of their babies home. The reporter learned from more than a dozen mothers-to-be who had taken photos that most people knew the gender of the baby. “The image is very clear, and we can distinguish the gender by and large”. For a detailed analysis of the incident, see Wang Yue: On the Control of Fetal Gender Identification for Non-Medical Needs—Taking “Fetal Photos” for an Example [J], Chinese Hospital Management, 2006 (4), pp. 31–32. 38. On the afternoon of November 21, 2015, the police of Huafeng Police Station in Shunqing District, Nanchong City, Sichuan Province were told that two sanitation workers found an abandoned baby on the roadside of Ouxiang Town Community, Shunqing District. After being alerted, the police rushed to the scene and sent the baby to North Sichuan Medical College for treatment. As of the morning of the 22nd, Mr. Li, the father of the baby, had been found and taken back the baby. According to Shi Qi, a policeman handling the case, after the baby was sent to North Sichuan Medical College, he found a note on the baby’s foot ring, on which was written “born at 9 a.m. on the 9th day of October in the lunar calendar (November 21)”. The father said he had had two boys and wished the third child to be a girl but his wish didn’t come true. See http://www. newssc.org [N], November 22, 2015. 39. Professor Zeng Yi of the National School of Development at Peking University made a research based on the Tracking Survey on Factors Influencing the Health of the Elderly in China and concluded that the research results from the long-term tracking survey convincingly proved that the return from raising daughters in terms of daily care and emotional comfort at old age (especially at advanced age) is significantly more than that from raising sons, especially in rural areas. The popular concept in rural areas that sons are expected to provide more care and security support to elderly

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40. 41.

42.

43. 44. 45.

46.

47.

48.

49.

parents than daughters is not in line with facts. The illegal prenatal gender identification and abortion of female infants for bearing boys caused by this concept are stupid acts contrary to personal interests and wishes, crimes infringing the interests of the state, and immoral acts harming life. Rosamdnd Rhodes. Acceptable sex selection. 1 Am. J. Bioethics 31 (2001). A couple surnamed Masterton in Britain, who had four sons and one daughter, lost their only daughter in a fire. They appealed to conceive a daughter to meet their desire through sperm separation and artificial insemination. The Science and Technology Committee of the House of Commons concluded that there is no evidence that choosing fetal gender for family gender balance will harm the family and society. In other words, sometimes, parents choose fetal gender to complete the family structure and meet their desire to raise children of different genders. Aubrey Milunsky and Jeff M Milunsky: Genetic Disorders and The Fetus Diagnosis, Prevention And Treatment, Edition 6 [M], Translated By Bian Xuming, People’s Health Publishing House, Beijing, 2013, p. 1056. See (1). See (2). Article 62 of the Tort Liability Law stipulates that medical personnel shall keep the privacy of patients confidential; Anyone who, without the consent of the patient, discloses his medical documents and relevant materials and causes damage shall bear liability for tort. Article 22 (3) of the Law for Licensing Medical Practitioners stipulates that doctors should care for, love and respect patients and protect patients’ privacy in their professional activities. Article 34 of the Law of Maternal and Infant Health Care stipulates that personnel engaged in maternal and infant health care shall strictly abide by professional ethics and keep secrets for the person concerned. Article 43 of the Law on the Prevention and Control of Infectious Diseases stipulates that medical personnel shall not disclose, without the approval of the health administrative departments above the county level, the name, address and medical history of patients who have gonorrhea, syphilis, leprosy, AIDS and carry AIDS and of their family members. Liu Shiguo: Patients’ Right to Privacy: The Right to Self-Determination and the Right to Control Personal Date[J],Social Sciences, 2011 (6), pp. 96–100; Tan Xiaoli: Conflict and Coordination between the Right to Informed Consent and the Protection of the Right to Privacy of Juvenile Patients—Taking Abortion of Female Minors as an Example [J], Journal of New Medicine, 2011 (7), pp. 488–490; Fei Anling: On the Right to Privacy of Patients with Mental Disorders [J], Legal Forum, 2014 (1), pp. 20–25; Guo Minglong: On the Protection of Patients’ Right to Privacy—Also On the Foundation of the Claim of Informed Consent [J],

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51.

52.

53. 54.

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Science of Law (Journal of Northwest University of Political Science and Law), 2013 (3), pp. 84–91. Fu Lei v. the General Hospital of the People’s Liberation Army for the Dispute over the Right to Privacy, Beijing Higher People’s Court (2015) Gaominshenzi No. 408. In August 2004, a hospital announced free assistance to patients with “progressive malnutrition in children”. After that, Tian made an agreement with the hospital: Tian provided inspection, health care and followup records and information as required, and the hospital set up health care archives and rescue bulletin boards for open, fair, transparent and orderly rescue. In the November of the following year, after Tian saw his disease introduction, written rescue materials, photos and videos on the hospital website, his guardian believed that the hospital’s release of the genetic muscular atrophy disease of the patient to the public infringed on his privacy and damaged his mental health, so he sued the hospital to the court. The hospital argued that the provisions on disclosure in the agreement indicated that the patient agreed to the disclosure by the website. The court held that the hospital published the patient’s privacy on the website without the patient’s explicit consent, and shall delete all information about Tian on its website, compensate Tian for his mental sufferings, and publish an apology statement on the website. Chen Renbiao: Medical Ethics (7) Ethical Norms in Medical Genetic Services [J], published in Journal of Diagnostics Concepts & Practice, 2006 (4), Appendix 27. Francis S. Collins: The Language of God [M], translated by Yang Xinping, et al., Hainan Publishing House, Haikou, 2010, pp. 167–171. Huntington chorea was first reported by Huntington in 1872, hence its name. As a monogenic autosomal dominant genetic disease, it features a wide range of brain degeneration sites, especially the atrophy of caudate nucleus. It is a rare idiopathic neurodegenerative disease. The main clinical manifestations are dementia and choreiform movements. The incidence rate is estimated to be 4 out of 100000 to 10 out of 100000 persons. Young patients generally have severe symptoms, mainly myotonia, middle-aged patients have mainly choreiform symptoms, and patients over 60 years old feature mainly intentional tremor. Juvenile patients are rare. The course of the disease is generally longer than that of other primary dementia. Due to its slow development, patients can survive for 13– 16 years even for decades after the onset of this disease. Generally, those with a later onset age can survive longer. About half of the patients’ deaths have nothing to do with the disease, and suicide accounts for a certain proportion of the patients’ deaths. Because the disease is a monogenic autosomal dominant genetic disease, patients and their families rarely know the risk of their children suffering from the same disease. Therefore,

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55.

56.

57.

58.

59.

60.

early genetic counseling services are very important. Hereditary diseases, difficult to cure for life, not only bring misfortune to families and lifelong pain to patients, but also are passed on from generation to generation. Jerry E. Bishop and Michael Waldholz: Genome: The Story of the Most Astonishing Scientific Adventure of Our Time—The Attempt to Map All the Genes in the Human Body [M], Translated by Yang Yuling, Tianxiayuanjian Publishing Co., Ltd., Taipei, 2010, p. 409. Huntington chorea occurs very late so that when the carriers have clinical symptoms, most of them have married and given birth, and may have passed on the pathogenic gene to the offspring. Therefore, it is urgent for people to find an effective method of pre symptom and prenatal diagnosis to reduce the chance of passing the pathogenic gene of Huntington chorea to the offspring. The results of gene diagnosis are undoubtedly of great benefit to individuals who prove to be not pathogenic gene carriers of Huntington chorea as they may be relieved of worries and no longer have to choose between childbirth and abortion blindly. According to statistics, the incidence of mental illness is very high in individuals who will be ill with Huntington chorea gene. In a family at risk of transmission of Huntington chorea, the risk of suicide also increases. Among individuals at risk of Huntington chorea, the incidence of behavioral and affective diseases also increases. Cao Delin and Lin Juelong: Ethical Issues in Early Gene Diagnosis of Huntington Chorea [J], Chinese Medical Ethics, 1992 (6), p. 31. Zhang Ya: A man got infected with HIV because no one informed him his wife was suspected of AIDS in the premarital examination. [EB/OL]. http://news.sohu.com/20160113/n434331074.shtml, January 13, 2016. Foreman: Genetic Test Results and Doctors’ Obligation of Disclosure [J], Translated by Guo Zhongyong//Zhang Min’an: Obligation of Act Undertaken by the Actor [M], Sun Yat-Sen University Press, Guangzhou, 2009, p. 171. In the case of Tarasoff, the mental patient Prosenjit Poddar told the doctor that he liked Tatiana who was his classmate, but he wanted to kill her after her trip to Brazil. Although the doctor reported Poddar’s murder intention to the police and advised them to detain Poddar, the police did not take any measures to protect Tatiana and her parents. Later, the doctor examined Poddar’s mental condition, and thought Poddar was in good mental condition, so he allowed Poddar to leave the mental hospital. After coming back from Brazil, Tatiana was murdered by Poddar. Taylor: Physicians’ Duty to Warn Third Parties in New Mexico—AIDS Patient Brought a Third Person into the Risk of HIV Infection [J], translated by Wang Lifeng//hang Min’an: Obligation of Act Undertaken by the Actor [M], Sun Yat-Sen University Press, Guangzhou, 2009, p. 114.

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61. Wang Kang: Private Law Norms of the Right to Gene [M], China Legal Publishing House, 2014, p. 68. 62. See (3). 63. Foreman: Genetic Test Results and Doctors’ Obligation of Disclosure [J], Translated by Guo Zhongyong//Zhang Min’an: Obligation of Act Undertaken by the Actor [M], Sun Yat-Sen University Press, Guangzhou, 2009, p. 172. 64. See (1) p. 173. 65. Wyatt: The Responsibility of Doctors in Missouri to a Third Party— Doctors’ Obligation to Warn Patients of the Side Effects of Drugs [J], translated by Wang Lifeng//Zhang Min’an: Obligation of Act Undertaken by the Actor [M], Sun Yat-Sen University Press, Guangzhou, 2009, p. 73. 66. Wyatt: The Responsibility of Doctors in Missouri to a Third Party— Doctors’ Obligation to Warn Patients of the Side Effects of Drugs [J], translated by Wang Lifeng//Zhang Min’an: Obligation of Act Undertaken by the Actor [M], Sun Yat-Sen University Press, Guangzhou, 2009, p. 73. 67. Taylor: Physicians’ Duty to Warn Third Parties in New Mexico—AIDS Patient Brought a Third Person into the Risk of HIV Infection [J], translated by Wang Lifeng//Zhang Min’an: Obligation of Act Undertaken by the Actor [M], Sun Yat-Sen University Press, Guangzhou, 2009, p. 98. 68. See (2), p. 135. 69. Xie Kankan: Code of Ethics for Psychiatrists—Madrid Declaration (II) [J], Journal of Clinical Psychiatry, 2013 (2), p. 141. 70. Xie Kankan: Code of Ethics for Psychiatrists—Madrid Declaration (I) [J], Journal of Clinical Psychiatry, 2013 (1), p. 69. 71. Taylor: Physicians’ Duty to Warn Third Parties in New Mexico—AIDS Patient Brought a Third Person into the Risk of HIV Infection [J], translated by Wang Lifeng//Zhang Min’an: Obligation of Act Undertaken by the Actor [M], Sun Yat-Sen University Press, Guangzhou, 2009, p. 121. 72. Article 55 of Tort Liability Law: Medical personnel shall explain the condition and medical measures to the patient during diagnosis and treatment. If surgery, special examinations and treatments are needed, the medical staff shall explain the medical risks and alternative medical schemes to the patient in time. 73. Article 26 of the Law for Licensing Medical Practitioners: Physicians shall truthfully inform patients or their families of the condition. 74. Article 11 of the Regulations on the Handling of Medical Malpractice: In medical activities, medical institutions and their medical personnel shall truthfully inform patients of their condition, medical measures and medical risks, and answer their inquiries in time.

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75. Zhao Xiju: Comment on the Provisions of Informed Consent in China’s Tort Liability Law [J], China Health Law, 2010 (3), p. 50. 76. Johnson ByAdler v. Kokemoor. 545 N. W. 2d 495 (Wis. 1996), quoted from On the Expansion of What Should Be Informed in the Principle of Informed Consent—Doctors’ Notification of Non-Medical Information [J] by Zhao Xiju, published in Oriental Law, 2010 (5), p. 34. 77. See (1). 78. The British Medical Association requires in Norms for Good Medical Practice that doctors should go to see a doctor and seek advice to see whether they need to be examined, treated or stop their medical practice when they know that they have a serious disease which may infect patients, or their judgment and medical ability will be blighted by this disease or treatment measures. Zhao Xiju: On the Expansion of What Should Be Informed in the Principle of Informed Consent—Doctors’ Notification of Non-Medical Information [J] by Zhao Xiju, published in Oriental Law, 2010 (5), p. 32. 79. Zhao Xiju: On the Expansion of What Should Be Informed in the Principle of Informed Consent—Doctors’ Notification of Non-Medical Information [J], published in Oriental Law, 2010 (5), p. 32. 80. Civil judgment of second instance on the liability dispute between Wang Mingchao and Zhujiang Hospital of Southern Medical University over infringement of the patient’s right to informed consent, (2014) Suizhongfaminyizhongzi No. 1729.

CHAPTER 5

Women’s Exercise of the Right to Reproductive Self-Determination—Centered on the Capacity of Self-Determination

5.1 Different Views and Specific Standards of Determining Women’s Capacity of Reproductive Self-Determination 5.1.1

Different Views of Determining Women’s Capacity of Reproductive Self-Determination

Women’s capacity of reproductive self-determination refers to women’s ideographic ability to make reproductive choices, that is, women have the ability to independently bear the relevant legal responsibilities for their behavior with the full understanding of the nature, risks and possible consequences of the diagnosis and treatment to be taken by medical institutions. Scholars have the following views on the standard for determining whether women have the capacity of self-determination: the standard of capacity of civil conduct, the standard of ideographic capacity, the standard of the capacity of identification, the standard of the capacity of liability and the standard of the flexible capacity of will. In terms of the standard of capacity of civil conduct,1 according to the distinction of capacity of civil conduct in civil law, persons without and with limited capacity of civil conduct are deemed in medical law as © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 W. Jiang, Women’s Right to Reproductive Self-Determination from the Perspective of Civil Law, https://doi.org/10.1007/978-981-19-2790-4_5

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persons without the ability of consent in medical judgment, and medical decisions are made by their guardians. Ideographic capacity2 refers to women’s ability to make choices of reproduction, understand relevant reproductive information, recognize their situation and the consequences of their behavior and reasonably handle information, which should be identified in specific cases. Advocates of the standard of the capacity of identification3 believe that individual patients’ capacity of identification, rather than the capacity of conduct, should be taken as the general benchmark for judgment. Because the legal system of the capacity of conduct is based on the requirements for the trading object to maintain trading safety, when the actor is disposing his own rights and interests rather than others’, the provisions on the capacity of civil conduct do not seem to be in line with the reality in application. Advocates of the standard of the capacity of liability4 hold that the capacity of liability in criminal law, similar to the capacity of consent and the capacity of will in civil law, is different from the capacity of civil conduct which is conditional on adulthood. Advocates of the standard of the flexible capacity of will5 hold that when the medical behavior is highly risky, strict standards are adopted to determine the capacity of will and in contrast, when the medical behavior is less risky and highly beneficial, loose standards are adopted to determine the capacity of will. 5.1.2

Specific Standards for Determining Women’s Capacity of Reproductive Self-Determination

This book believes that age, intelligence, mental status, authenticity of the expression of will, the situation in which women make decisions and other factors constitute the specific standards for determining whether women have the capacity of reproductive self-determination. 1. Age In medicine, the primary standard for determining whether a woman has the capacity of self-determination is age. Countries have set different ages ranging from 16 to 18 as benchmarks for the capacity of civil conduct. Persons reaching the set ages are deemed as those with full capacity of civil

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conduct if there are no other restrictions on the capacity of civil conduct. It is generally believed that a person with full capacity of civil conduct is a subject with the power of self-determination, who has the ability to make an independent decision to consent to or refuse relevant diagnosis and treatment. This standard, which can be realized by checking identity certificates, is more convenient for medical institutions to take medical actions. If a woman does not take the legal identity certificate with her and is not in emergent condition of illness, the medical institution shall require her to submit her identity certificate, and should not determine her full capacity of civil conduct only according to her oral report. In case of emergency, diagnosis and treatment can be taken based on the principle of emergency assistance. 2. Intelligence and mental state The age of women is not an absolute standard, because from the perspective of law, the determination of the full capacity of civil conduct also depends on whether she has the ability to judge the nature of their behavior, legal consequences and handle her affairs rationally and prudently, as well as on other factors such as her psychological, intellectual development and mental status. After checking her identity certificate, the medical institution believes that the woman has reached the age as a standard for a person with full capacity of civil conduct. After this preliminary stage, it is also necessary for the doctor to judge whether the woman has the ability to weigh relevant risks and benefits and reason about consequences, and finally express her consent or rejection reasonably at her will through interacting with the woman in the process of notification and observing the woman’s ability to understand the medical plan in the communication.6 In other words, the medical institution needs to make a preliminary judgment about her intelligence and mental status. If there is no clear sign of a woman’s incapacity of civil conduct, the medical institution can usually presume that she has a full capacity of civil conduct. However, if it has doubts about her intelligence or mental status when exercising its obligation of notification, the medical institution can apply to the professional institution in the case of non-emergency to appraise whether she has full capacity of civil conduct, and then decide whether the decision

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is made by herself or by her guardian. In the case of emergency, medical institutions can provide direct assistance. 3. Authenticity of the expression of will The authenticity of the expression of will is an important criterion for determining whether women have the capacity of self-determination. Under specific circumstances such as coercion and fraud, women’s decisions are not made at their own will. The medical institution can preliminarily determine that the decision made by the woman may not be her true intention if it finds that a woman patient is forced or deceived in her decision-making when exercising its obligation of notification. If the above cases do exist, it can be determined that the woman does not have the capacity of self-determination on this matter. The medical institution needs to wait for the woman’s decision at her own will after the elimination of coercion and other cases. 4. Whether women cannot make independent decisions because of in a coma, in a state of anesthesia and in other special state Women’s capacity of reproductive self-determination does not always correspond to their full capacity of civil conduct. Due to the particularity of medical treatment, women patients may be in a coma or in a state of anesthesia during surgery, which leads to the temporary inability of female patients, still with full capacity of civil conduct in law, to make independent decisions at a specific time. In other words, in specific medical circumstances, there are also cases in which women who usually have the capacity of civil conduct have such capacity weakened or even do not have such capacity at a certain time or in an event. If there is no special case in which a woman is unable to make an independent decision due to diagnosis and treatment, she can be recognized as having the capacity of self-determination if the above standards are met. To sum up, this book holds that women’s capacity of reproductive self-determination is closely but not completely related to age and intelligence. We should pay attention to the maturity of women’s independent ability of judgment, rather than simple age or intelligence. The provisions in the civil law related to legal acts cannot be simply applied or completely copied. The significance of accepting commitments and what should be

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committed to must be evaluated on the basis of the psychological and physiological maturity of women.7 The essence of a woman’s capability of self-determination is her ability to understand and judge matters, the core of which is the maturity of her mind. Therefore, we should not determine whether a woman has the capability of civil conduct solely on the basis of age and intelligence, but should establish a set of scientific standards of identification, such as the judgment of personal ability of cognition, understanding and reasoning. Under such scientific standards, these special persons are tested in structural analysis, and finally a judgment is made of whether a woman has the capability of reproductive self-determination. To sum up, it is more appropriate and in line with medical realities to judge whether women have the capability of selfdetermination on the basis of the principle of full capacity of civil conduct and of specific circumstances.

5.2 Exercise of the Right to Reproductive Self-Determination by Women with Full Capacity of Self-Determination 5.2.1

The Independent Exercise of the Right to Reproductive Self-Determination Under Normal Circumstances

It should be considered whether women need to obtain men’s consent when exercising their right to reproductive self-determination. That is because medical institutions are faced with two problems that must be considered when preparing for diagnosis and treatment for women’s reproduction: First, is it necessary to inform their spouses of the issues related to the diagnosis and treatment to be conducted in women’s reproduction? Second, do medical institutions need to obtain the consent of their spouses in addition to women’s own decision before they conduct diagnosis and treatment? These problems will be demonstrated in this book from two levels. Generally speaking, women do not need to obtain the consent of their spouses when exercising their right to reproductive self-determination although men also enjoy the right to reproduction. There is an indirect connection between men’s right to reproduction and medical institutions’ diagnosis and treatment, and women’s self-determination may also damage their spouses’ interests to some extent. However, to protect the status of women as independent legal subjects and respect the rationality

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of their right to reproductive self-determination, medical institutions do not need to obtain the consent of or notify their spouses before they conduct diagnosis and treatment. However, in terms of special artificial reproductive surgery, both husband and wife need to exercise their right to reproductive self-determination. Under Normal Circumstances 1. Presentation of problems Case 1: the plaintiff Chen Bingli and a third person Chen Yan were a couple. Without Chen Bingli’s consent, Chen Yan had an operation to terminate pregnancy after she asked her brother to sign the “operation notice to family members.“ Chen Bingli sued the defendants Chen Yan’s brother, Tianjin Central Gynaecology and Obstetrics Hospital and Doctor Li Lan for violating his right to reproduction and causing physical and mental damage and economic losses to him and claimed damages. The court held that Chen Yan has the right to terminate his pregnancy at her will and it was a normal and proper medical behavior for Tianjin Central Gynaecology and Obstetrics Hospital and Doctor Li Lan to terminate his pregnancy for Chen Yan. In addition, because there is no provision in relevant laws and regulations in China that the informed consent form for the termination of pregnancy shall be signed by the husband, Chen Yan’s brother was not at fault in signing the “operation notice to family members.“8 Case 2: A woman surnamed Wang, 7 months pregnant, was accompanied by her sister-in-law to the hospital for surgery of pregnancy termination without telling her husband surnamed Li. Li sued the hospital as the defendant and Wang as a third person to the court and claimed mental damages, believing that they had seriously infringed on his right to reproduction. After hearing the case, the court held that the right to reproduction enjoyed by the plaintiff Li could not resist the decision not to bear children made by the third-party Wang. The operation on the defendant was a business assistance provided by the hospital for the third-party Wang’s legitimate exercise of her right, which did not constitute an infringement on the plaintiff’s right to reproduction. Therefore, the defendant did not need to bear civil liability.9

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In both the above cases, the spouses believed that the hospitals’ termination of pregnancy as required by the women violated their right to reproduction. Although the courts finally made judgments in support of the women and hospitals, the argument on the relationship between the right of husbands to reproduction and women’s right to reproduction was still slightly insufficient and needed to be further strengthened. 2. Discussion and analysis Views vary on how to solve the conflict between women’s right to reproductive self-determination and men’s right to reproduction. There is a view that husband’s right to reproduction should be solved at home, not in court.10 Also, some people hold that childbirth is a domestic affair beyond law, which should be solved by husband and wife through consultation. There is no need for the law to regulate the so-called conflict over husband and wife’s rights to reproduction, so there is no legal loophole.11 In judicial practice, the number of cases in which men sue women for violating their right to reproduction by terminating pregnancy without their permission is gradually increasing. A judge from Fengtai District People’s Court in Beijing mentioned in an interview that among the divorced couples, several out of every 100 couples break up because the woman terminates pregnancy without the permission of her husband.12 Therefore, it can and needs to be solved through legal norms whether women should obtain their husbands’ consent or not when they are exercising the right to reproduction. (1) Men’s right to reproduction13 Reproduction is the result of the combination of both sexes, which are indispensable in the realization of the right to reproduction. This is also the most significant feature in which the right to reproduction is different from other personality rights. Domestic and foreign laws generally stipulate men’s right to reproduction.14 Men’s right to reproduction refers to the freedom enjoyed by male natural persons to decide whether to bear children and how to bear children according to law, including the freedom to have or not to have children and the freedom of choosing the mode of childbirth.15 The specific types of men’s right to reproduction can be classified according

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to whether women are pregnant or not. After marriage and before the woman becomes pregnant, men’s right to reproduction includes the following contents: (1) the right to decide whether to have children; (2) the right to decide when to have children; (3) the right to decide how to have children (including the right to decide whether to adopt artificial assisted reproductive technology). If women conceive during marriage, men’s right to reproduction includes the right to know and reasonably expect the wife’s pregnancy and childbirth, as well as the right to choice and decision to a certain extent.16 (2) Women’s right to reproductive self-determination is not a right of identity, but a general right of personality. The right of identity, based on the identity of relative relation in law of kindred, is a right enjoyed after a certain identity is established. The essential difference between the personality right and the right of identity is that the latter is a right derived from a certain identity which is the premise of rights. Although women often need the cooperation of men to realize their right to reproduction, the essential nature of women’s right to reproduction as a general personality right determines that women do not necessarily need the consent of their spouses in exercising their right to reproduction. Women’s reproduction involves personal career planning and self-determination. Only the exercise of reproductive autonomy can show the personal value of women.17 According to the mainstream opinion of the case of Southeast Family Planning Center in Pennsylvania v. Casey in the United States, “women’s freedom is unique to the human state and the law. Historically, women, as mothers, have undertaken sacrifices with pride, such as anxiety, personal constraints and pain that only they must bear, to bring up their children and give their babies a bond of love. This made them noble in the eyes of others; but these alone cannot be reasons for forcing them to sacrifice for the country.”18 (3) Women bear more risks than men in reproduction The natural inequality in the division of labor between men and women in reproduction is the root of the conflict over the right to reproduction between men and women. Mr. Fei Xiaotong believes that biologically,

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nutrition benefits oneself at the expense of others, while reproduction benefits others at one’s own expense. The pain of pregnant women, the danger of childbirth and the trouble of breastfeeding cannot be concealed to us humans.19 On the one hand, as they take more responsibilities for raising children after childbirth, women are apt to lose independent financial status after childbirth. Data show that the duration of women’s unemployment is proportional to the speed of mothers entering the labor market. In other words, mothers who resume employment in the early stage of raising children are likely to return to the same posts as before reproduction. However, women who cannot return to their original work due to a long rest and need to find new jobs are obviously affected by the duration of unemployment.20 According to the survey data, the birth of children with congenital defects has a greater impact on the mother than on the father. Defective children need both more care from their mothers and more medical treatment and it is also more difficult for defective children to obtain alternative care from others. Therefore, 70% of mothers of defective children said that their work was blighted and many mothers had to give up their work. The data also indicate that mothers of defective children are apt to fall into self-depression, self-isolation and further a vicious circle emotionally, socially and economically.21 On the other hand, as women bear the obligations that men cannot such as pregnancy, reproduction and breastfeeding in the process of raising children, women should enjoy more rights than men in childbirth in accordance with the principle of consistency of rights and obligations.22 (4) Requiring women to obtain their husbands’ consent before terminating pregnancy will be a substantial obstacle to women’s exercise of the right to reproductive self-determination The Soviet Union, the United Kingdom, Austria, Germany, Italy, etc., all grant women the right to decide on abortion freely, and a woman’s abortion doesn’t require the consent of her husband.23 Article 9 of the Eugenic Health Care Law in Taiwan stipulates that a woman shall obtain the consent of her spouse to her request for the termination of pregnancy for financial reasons and other special circumstances. One of the difficulties encountered in the implementation of this article is that married women have to not only give birth to children due to legal requirements

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and restrictions, but also seek underground doctors for worrying about being rejected by the hospital. In fact, this provision substantively restricts women’s right to reproductive self-determination. Most scholars call for changing it into a notice clause or deleting it directly.24 In the United States, the coordination of the conflict between men’s right to reproduction and women’s right to reproductive selfdetermination is gradually promoted through precedents, and solved incidentally in the process of establishing privacy as an unlisted constitutional right. Landmark cases mainly include Roy v. Wade, Family Planning Center in Central Missouri v. Danfoss and Southeast Family Planning Center in Pennsylvania v. Casey.25 The last two cases are highlighted below. The main issue in the case of Family Planning Center in Central Missouri v. Danfoss was whether that the law requires married women to have their spouses’ consent to abortion violates the 14th Amendment to the Constitution. The court ruled that men’s right to veto women’s abortion given by law meant improperly interfering with women’s abortion; when a couple disagreed on whether to have an abortion or not, it was necessary to give priority to the opinions of the wife because the husband didn’t conceive. The mainstream opinion of the court held that since it could not specify restrictions on abortion at the initial stage, the state could not delegate the power to any special person, even the spouse, to prevent abortion at the same time. Justice Blackmun recognized the deep and appropriate care given and the rights and interests enjoyed by a selfless and protective husband during his wife’s pregnancy and the growth of the fetus, and held that the most ideal decision to terminate pregnancy should be made by both husband and the wife. However, he believed that because pregnant women were more directly blighted by pregnancy, women should be given more support.26 One of the main controversial points of the case of Southeast Family Planning Center in Pennsylvania v. Casey is whether the specific provisions regulating abortion are unconstitutional. According to Sect. 3209 of the Pennsylvania Abortion Law, no attending doctor shall perform an abortion on a married woman if he does not receive a signed statement from this pregnant woman that she has notified her husband of her intention to have an abortion except in the case of a medical emergency. A pregnant woman may choose to provide an alternative signed statement that her husband is not the person who has made her pregnant, she has no husband, the pregnancy is the result disclosed by her of her spouse’s

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sexual assault, or she believes that informing her husband will cause physical harm to her by him or others. An attending doctor who performs an abortion on a married woman without receiving an appropriate signed statement shall have his practice license revoked and be responsible for the harm suffered by the pregnant woman. The mainstream opinion of the court held that the obligation to notify the spouse was unconstitutional for the following reasons: First, the vast majority of pregnant women had consulted with their husbands before terminating pregnancy. Second, a wife may choose not to inform her husband of an attempt at abortion because of her husband’s illness, her own health, her precarious marriage or her husband’s complete opposition to abortion. Third, in a sound marriage, a couple discusses important private decisions such as whether to have children. But in this country where millions of women are often physically and mentally abused by their husbands, these women, if pregnant, have good reasons not to inform their husbands of their decision on abortion. Fourth, when the husband is the father of the baby, the main reason why the wife doesn’t notify her husband is that the couple is experiencing a marriage crisis, often accompanied by violence. Women at all levels and in different educational backgrounds, races and religious groups have been beaten. Forms of beating or abusing a wife are physical or psychological. Married women who had been beaten were killed in Pennsylvania and other parts of the country. Beatings are often accompanied by massive sexual abuse, including rape in marriage and sexual assault. Fifth, according to the wife’s reasonable guess, her husband, if informed, will threaten to publicize her attempt at abortion to her families, friends or acquaintances, retaliate for custody of children or divorce proceedings in the future, intimidate her, her children or others; harm others physically, including children, family members or others loved her or use his control over money to deprive her or her child of the necessary money. The requirement for informing the husband, therefore, is likely to stop a large number of women from having abortions. It will not only render abortion more difficult and expensive, but also form a substantial obstacle for women’s abortion.27 “A husband shall not be granted by the state such worrying powers for his interests in the life of a child conceived by his wife. If a husband’s interests in the potential life outweigh his wife’s freedom, the state can pass legislation to require a married woman to inform her husband before taking emergency contraception, before engaging in acts that may be dangerous to the fetus (e.g. smoking,

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drinking) or before preparing to take any surgery with complications that may affect her husband’s interests in her reproductive organs.”28 (5) Protection of men’s right to reproduction As there is a close relationship between men’s right to reproduction and women’s exercise of the right to reproductive self-determination, women may cause certain damage to men when they exercise their right to reproductive self-determination, especially when they terminate pregnancy without their husbands’ approval. In the case of Family Planning Center in Central Missouri v. Danfoss, although Judge White, Chief Justice Burger and Judge Rehnquist were the minority supporting an opinion, their arguments had certain value for reference. The three judges wrote, “A father’s interest in having a child—perhaps his only child— surpasses any other interest in his life.” “A law in Missouri prohibits women from giving their children away regardless of their husbands’ opposition. This law represents a judgment by the state that a mother’s interests in avoiding the burden of raising children do not exceed the father’s interests in participating in raising children. This law is considered obviously as legitimate as the Missouri act for the same reason.”29 In the rights and obligations of men and women arising from bearing children, obligations are not enforceable in most cases, one party’s failure to perform the obligation does not constitute infringement, and the other party cannot request the court for enforcement. Considering such particularity in the right to reproduction, this book holds that we can learn from the relevant provisions issued by the United States that if because one of the husband and wife refuses reproduction, the other party’s noble purpose of offspring continuity (cannot be realized)… the other party can naturally apply for divorce.30 If the disagreement between women and men on the right to reproductive decision-making, such as women’s onesided contraception or abortion, fails their spouses who desire children, and damages the conjugal relation to a great extent, husbands can only find women who are willing to have children with them to re-establish their marital families if they want to have children. Therefore, when both the husband and wife cannot reach an agreement on childbirth, the best means of relief for the husband whose need for childbirth cannot be met is suing for divorce. There are similar judgments in China’s judicial practice: “On the issue of whether to have children, the plaintiff’s request

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for divorce from the defendant conforms to relevant legal provisions and should be supported as the defendant’s termination of pregnancy without the consent of the plaintiff seriously hurt their conjugal relation, and according to the law, it can be confirmed that their conjugal relation has indeed broken.”31 “If a man sues for divorce on the ground that his right to reproduction is violated and asks for mental damages, the claim for mental damages shall not be supported.”32 5.2.2 Women’s Exercise of the Right to Reproductive Self-Determination with Their Husbands Under Special Circumstances In terms of artificial reproduction, we must distinguish artificial reproduction through the reproductive cells of both the husband and wife and artificial reproduction through the reproductive cells provided by a third party other than the husband and wife. The former, realized through the reproductive cells of both husband and wife, is just like normal pregnancy and birth of children in the marriage, with the help of scientific medical technology. As it involves little legal issues, it is generally not prohibited by the state. The latter can be divided into artificial reproductions through the reproductive cells of the husband and wife, through the reproductive cells provided by a third party, and through embryos cultivated from the reproductive cells provided by others and implanted into the uterus of the wife. The third type is generally prohibited in all countries because it involves ethical issues. Therefore, when at least one of husband and wife has normal germ cells in the process of artificial assisted reproduction, the husband and wife must make a joint decision on whether they should use the germ cells of a third person for artificial reproduction. 1. Infertility is a special disease The definition of infertility as a disease conforms to that by the World Health Organization. According to the definition by the World Health Organization, health means not only the absence of physical pain, but also the perfection of psychology, mental world and social welfare. If a patient thinks that infertility has caused psychological and mental pain to him, and even affected his family life, it means that the patient is ill and needs

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to see a doctor. In Germany, homogeneous artificial assisted reproduction should not be prohibited because the basic law protects the integrity of family life, human dignity and the order of marriage and family and considers that artificial assisted reproduction is the last hope to maintain a complete marriage. Therefore, if patients seek medical intervention, the state should allow them to seek medical treatment if there is no other sufficient reason to oppose artificial assisted reproduction. Since the artificial assisted reproductive technology aims to treat the disease, medical institutions should first determine whether it is necessary to perform surgery from a medical point of view and then which method of treatment should be adopted for the best interests of patients, when choosing to implement artificial assisted reproductive technology from many methods of treatment. If the patient chooses artificial reproduction, the doctor isn’t necessarily subject to his request. Doctors should carefully evaluate and explain clearly to the patients the reasons for choosing artificial reproduction, the way of implementation and the possible foreseeable risks of artificial reproduction, and finally, the patients make a decision on whether to choose artificial assisted reproductive therapy. Finally, the patients decide whether to accept artificial assisted reproductive therapy for infertility. Only when the doctor has fulfilled the obligation to explain in detail so that the patient has a detailed understanding of artificial assisted reproductive surgery is the decision made by the patient effective, and is the medical behavior of the doctor legal and professional. Infertility is different from general diseases that only exist in individuals. Pregnancy requires the cooperation of both husband and wife. It is impossible for one party to receive infertility treatment to achieve the desire for natural fertility because human beings are not asexual animals. Whether the husband or wife has any reproductive obstacle, only one party of them won’t encounter infertility. Only a living community or husband and wife with sexual union can meet infertility, that is, pregnancy and childbirth cannot be achieved by one party of the husband and wife, but by both with sound reproductive function. Therefore, infertility is a disease shared by husband and wife who need to jointly agree to treatment. 2. The wife’s unilateral consent to artificial assisted reproductive surgery may infringe on the husband’s right to self-determination If the wife unilaterally undergoes artificial assisted reproductive surgery without the consent of her husband, the medical behavior infringes on

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the husband’s personal autonomy although it is not directly implemented on the husband and does not directly harm his physical integrity. Therefore, such behavior of the wife will infringe her husband’s right to self-determination on whether to treat infertility. 3. The husband’s unilateral consent to artificial assisted reproductive surgery may infringe on the wife’s right to body and right to selfdetermination If the husband unilaterally requires the medical institution to adopt artificial assisted reproductive technology without the consent of his wife, it will infringe on his wife’s right to self-determination and rights to body and health because artificial assisted reproduction needs cultivating fertilized eggs and then implanting them into his wife’s womb. 4. The unilateral consent of the husband or wife may lead to disputes over the legal status of the children Different from the treatment of general diseases, the adoption of artificial assisted reproduction technology to treat infertility by using other people’s sperm or eggs may lead to disputes over whether the child to be born in the future is a legitimate child of the husband and wife. In the Supreme People’s Court Letter on the Legal Status of Children Born through Artificial Insemination during the Existence of Marital Relationship33 first affirms the equal legal status of children born by artificial insemination to that of children born in wedlock and also establishes the conditions for the children born by artificial insemination to be the legitimate children of both husband and wife, that is, both husband and wife agree to artificial insemination. This consensus is reflected in the form of informed consent signed by both husband and wife in the surgery of artificial assisted reproductive technology. Therefore, in view of the particularity of women’s exercise of the right to reproductive self-determination, patients stipulated in the Tort Liability Law should be expanded to cover both husband and wife in the adoption of artificial assisted reproductive technology. That is, the difference between women’s exercise of the right to reproductive self-determination and ordinary patients’ exercise of the right to self-determination is the consent of both husband and wife.

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5.2.3

Women’s Exercise of the Right to Reproductive Self-Determination in the Case of Coercion

Paragraph 2 of Article 54 of the Contract Law stipulates that34 a contract can be revoked in the case of fraud, coercion or taking advantage of the other party’s danger. Coercion is an important factor that affects the truth and freedom of expression of will and then the effectiveness of civil acts. The effectiveness of both unilateral and bilateral civil acts, whether revoked or invalid, will be affected by coercion. Under normal circumstances, one party to the contract is coerced by the other party, namely the opposite party. The law usually stipulates that the coerced party to the contract has the right to cancel the contract according to law in order to protect its interests. However, when the parties to the contract may also be coerced by a third party other than them, the authenticity and freedom of the parties’ will still be affected. When women are exercising their right to reproductive selfdetermination, there are cases in which their husbands or others other than their husbands force them to go to medical institutions for relevant diagnosis and treatment against their wishes by various means. In this case, the legitimacy of relevant diagnosis and treatment conducted by medical institutions is based on a self-determination that is not women’s true intention. Although there is a lack of provisions on the definition of relevant legal liability in this case, it cannot be denied that women’s right to self-determination is violated. In the above cases, if medical institutions have terminated pregnancy or conducted other diagnosis and treatment related to women’s right to reproductive self-determination with the consent of their husbands, other relatives or relevant public authorities but without the informed consent form signed by women, it constitutes an infringement on women’s right to reproductive self-determination and causes an injury to their right to health. If the circumstances are serious, it may also constitute criminal liability. If medical institutions and other subjects coerce women into signing the informed consent form and accepting the termination of pregnancy and other diagnosis and treatment, they can be investigated for legal liability for joint tort or joint crime.35 If a woman is found expressing untrue will when signing the informed consent form, the medical institution can refuse to take diagnosis and treatment according to the informed consent form and will not bear the liability for the resulting omission. If it continues to carry out diagnosis and treatment for a woman who is

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coerced into signing the informed consent form, the medical institution shall be jointly liable for the infringement. If the circumstances are serious, the relevant personnel shall also be investigated for criminal liability.36 If it has no way to know about the coercion of pregnant women, the medical institution will not bear legal liability in accordance with the principle of protecting transaction security and trust interests.37

5.3 The Exercise of the Right to Reproductive Self-Determination by Women with Limited Capacity of Self-Determination 5.3.1

Definition of Women with Limited Capacity of Self-Determination

To discuss the exercise of the right to reproductive self-determination by women with limited capacity of self-determination, the following definitions need to be clarified: First, there are two types of subjects with limited capacity of self-determination: first, women who are mature for childbirth physiologically but haven’t reached the age set as the standard for full capacity of civil conduct stipulated by law; second, women who are mature for childbirth physiologically and have reached the age set as the legal standard, but do not have full capacity of self-determination psychologically and intellectually. Second, in general, the age of marriage stipulated by various countries is higher than that set as the standard for full capacity of civil conduct, but the enjoyment and exercise of the right to reproduction are not directly related to marriage. Women who haven’t reached the age of marriage or have given birth out of wedlock cannot be classified as those with limited capacity of self-determination of the right to reproduction. 5.3.2

Minor Women’s Exercise of the Right to Reproductive Self-Determination

In recent years, as the age of physiological maturity of minors in China has been generally advanced, the social moral concept of sex has changed from traditional conservatism to openness, and minors have increasing access to sexual knowledge from the Internet and books and to some

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alluring bad sexual information disseminated widely, some minors have sexual behavior at an increasingly low age. As a result, there are growing childbirth and termination of pregnancy of underage women, which is very common in medical work. The main problem about the right to reproductive self-determination of underage women is whether medical institutions can deliver children or terminate pregnancy for underage women only after obtaining the consent of their guardians if they are ready to give birth or terminate pregnancy after they are pregnant. That is, is an underage woman’s self-determination of childbirth or termination of pregnancy effective?38 In practice, sometimes, the pregnancy of a minor woman is caused by the violation of her guardian, so it is impossible to seek the guardian’s decision. Sometimes, a minor woman, who fears that her parents will know the truth, leaves the legitimate hospital to seek underground clinics for the termination of pregnancy, which will eventually lead to evil consequences. 1. Under normal circumstances In accordance with the basic requirements for the capacity of civil conduct, a minor woman’s decision to give birth or terminate pregnancy is one that has a significant impact on her health and cannot be made by a person with limited capacity of civil conduct alone. As the decision made by a minor woman to bear a child or terminate pregnancy is not a legal and effective one made at her will, the medical institution cannot take diagnosis and treatment based on this until it has obtained the consent of her guardians. The medical institution needs to judge whether the decision is made by the guardian to protect the best interests of minor women. If so, it shall be implemented; if not, it shall be rejected. The reason why it is stipulated that the decision made by underage women to continue childbearing or terminate pregnancy can only be implemented with the consent of their guardians is that minors are still growing physically and mentally, and not in a position to be motherhood physically, psychologically and economically. Minors bearing children may directly blight their prospect and increase the burden on their parents and they can’t burden the responsibility for raising children. Therefore, minors’ bearing children is more harmful than beneficial to themselves and others. In reality, minors’ bearing children brings not only heavy economic burden but also unbearable moral load to their parents. In

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1997, 12-year-old Kathleen became the youngest “girl mother” in Britain at that time, which attracted extensive concern of the British public!39 Abortion, due to the particularity of the operation, can cause great damage to the health of minors, so postoperative convalescent care is very important. Without the consent of their guardians, minors can hardly get their guardians’ economic support and proper care in life and be harmed in health. Considering conservative adolescent sex education in China as a whole, as well as the exclusion of premarital sexual behavior by traditional ideas, restrictions on underage reproduction, which can’t be completely eliminated, can be a legal policy that is instructive and deterrent, as well as reasonable and necessary. 2. Underage women’s capacity of self-determination should be recognized to a certain extent to protect their best interests In the case of Gillick v. West Norfolkand Wisbech AHA, House of Lords discussed whether doctors could provide contraceptive treatment to a girl under the age of 16 without the knowledge and consent of her parents. The judgment of this case caused a profound review of the laws on parental rights and minors’ right to consent. The judicial precedent determined the legal standard for the ability to exercise the right to self-determination as whether she had acquired enough ability of understanding and intelligence to fully understand the doctor’s suggestions,40 rather than as the age. Through this case, Britain established the “Gillick test of capacity of civil conduct” to judge minors’ capacity of civil conduct.41 If minor patients pass the test, doctors will make corresponding suggestions for their best interests. When a minor patient who has passed the test of capacity of civil conduct asks the medical institution not to inform her guardian, the medical institution should respect her right to reproductive selfdetermination in the best interests of the patient. The United States determines “maturity” or “freedom” as the standard to judge whether minors have the capacity of self-determination.42 “Maturity” is an abstract standard, which needs comprehensive considerations of actual age, education, experience, psychology and other factors. A minor is deemed to be mature if he is established as having the ability to fully understand and distinguish the nature, category, consequences and other information of medical behavior. The standard of freedom is about judging

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whether minors are living independently to determine their capacity of self-determination according to objective standards, such as “living away from their parents, dealing with economic affairs independently” (Alaska), a minor getting married or giving birth (Illinois), and serving in the army, etc. In the future, China should also establish a corresponding scientific capacity test of civil conduct for minors to provide a basis for medical institutions to judge whether minor patients have the capacity of civil conduct. The provision on guardian consent is established in essence to protect the interests of the ward. However, if the guardian infringes the interests of the ward or the matters agreed by the guardian damage the interests of the ward, then how should the guardian’s decision be dealt with? This book holds that the guardian’s right to make decisions on relevant medical matters representing the patient (i.e. the guardian) is not absolute but restricted. The exercise of rights must aim to protect the best interests of the patient without any deviation.43 What has happened or may happen in society is that the father or other male guardian sexually assaults a minor female, resulting in her pregnancy, or the guardian is the co-perpetrator of the sexual assault. In this case, the guardian has deviated from and infringed on the interests of the ward, so his right to intervene in the minor’s right to abortion must be limited. In this regard, the principle in handling the case of Ohio v. Akron Center for Reproductive Health44 can be used for our reference. The case involved an Ohio decree that prohibits anyone from aborting unmarried dependent minors without notifying one of their parents at least 24 h in advance. However, if the minor girl obtains the court’s writ in support of abortion or the declaration on minors and other relevant aspects that if the minor is afraid of physical, sexual or serious emotional abuse by one of his parents, the notice is unnecessary. A minor girl can bypass the need to inform her parents by indicating that notification is not in her best interest or that she is mature and knowledgeable enough to make a prudent decision that there is no need to notify her parents, or that one of her parents will impose much physical, sexual or emotional abuse on her. The court held that these provisions of the decree were fully effective and could protect the best interests of underage women. The Eugenic Health Care Law in Taiwan also stipulates the exception to the requirement for the consent of the legal representative to the minor’s abortion.45 That is, there is no need to notify the legal representative who is the suspect or defendant of sexual assault.

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Exercise of the Right to Reproductive Self-Determination by Mentally Retarded Women with Limited Capacity of Self-Determination

Presentation of the Problems Concerning the case of subtotal hysterectomy for two mentally retarded children in Nantong Welfare Institution in Jiangsu Province in 2005,46 it should be noted that as the guardian of the mentally retarded children, the Welfare Institution signed an agreement with the hospital to require treatment of the hospital. The agreement could be regarded as informed consent, which can be generally used as a defense for medical institutions and doctors to avoid liability. But for what was the doctor finally held criminally liable for intentional injury? The book believes that the core reason was that the medical institution didn’t judge the substantive effectiveness of the guardian’s decision that had an impact on the significant interests of patients according to the principle of the best interests of the wards but directly regarded the decision made by the welfare institution, the guardian of the female patients with limited capacity of self-determination, as a legal and effective decision, and then took diagnosis and treatment. Analysis 1. Substantive Problem: do mentally retarded women have the right to reproductive self-determination? (1) Mentally retarded women enjoy the limited right to reproductive self-determination The interplay between sex and mental retardation is very complex. The degree and type of mental retardation, age, gender, race or social system will affect people’s views and corresponding behaviors. However, one’s mental retardation and sex are not mutually exclusive.47 People know very little about the sex of mentally retarded people. Due to such indifference or misunderstanding, society inappropriately restricts or isolates them. On the other hand, mentally retarded people internalize this attitude and belief, making asexuality a self-fulfilling prophecy.48 According to a survey made by the Hong Kong Rehabilitation Alliance in 2004, 91% of the interviewees (256 people) believed that mentally retarded people have sexual needs; 85% of them believed that people with intellectual disabilities have the right to marry; 67% of them believed that mentally retarded people should not have the right to give birth; 72% of them believed that

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people with intellectual disabilities should have contraception. The American Association on Intellectual and Development Disability said in 2009 that mentally retarded people have the inherent right to sex and have the right to express sex under their cultural and religious circumstances. In terms of pregnancy and reproduction, people with intellectual disabilities have the right to bear and raise children.49 They also have the right and responsibility to receive age-appropriate, meaningful and cooperative sex education. The Convention on the Rights of Persons with Disabilities adopted by the United Nations in 2006 emphasizes that persons with disabilities should enjoy equal opportunities with ordinary people, have full rights and freedoms to participate in civil, economic and cultural activities, and enjoy the assistance they need due to disability. Article 17 of China’s Population and Family Planning Law, Paragraph 1 and Paragraph 2 of Article 3 of the Law on the Protection of Persons with Disabilities, Article 5 of the Marriage Law, and Paragraph 1 of Article 8 of the Law on Maternal and Child Health Care stipulate restrictions on marriage and reproduction of people with mental disorder and intellectual disabilities. The basic principle of these laws is to recognize special people’s limited right of reproductive self-determination. (2) The attitude of human society to the reproduction of people with disabilities developed from indifference to recognition and attention The human society once abandoned and treated with indifference the disabled but now is willing to provide relief and education to them. People are also concerned with their physiological defect and cognition. Before the middle of the twentieth century, the disabled were considered as no different from criminals or the poor. Isolation and ligation were the common treatment to the disabled as the society generally believed that they had no capacity of self-determination. Their sexual needs were rejected or ignored, sexual behavior was punished and segregated, basic human rights were deprived and they were prohibited from childbirth. However old they were, they were regarded as perpetual children.50 In 1927, the United States Supreme Court ruled that involuntary ligation of mentally retarded persons was a constitutional measure (Buck v. Bell, 274 U.S. 2000, 1927). In 1907, Indiana first passed the eugenic ligation act, followed by Virginia and other states. Until the mid-1970s, this act was still implemented in some states in the United States. Consequently, up

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to 60,000 people with intellectual or mental disabilities in 33 states of the United States were forced to undergo ligation. With the start of medical rehabilitation training and the success of vaccine research, a different attitude was taken to the disabled from the 1950s to 1960s. The society was no longer indifferent to them and began to provide assistance to them, but still treated the disabled as permanent children who needed treatment, repair and relief. Society began to gradually recognize that mentally retarded people had needs for emotion, intimacy and sex. However, relevant people, including doctors, workers for mentally retarded persons and their parents, believed that it was necessary to control or protect more of the lives of adults with intellectual disabilities because they were unable to burden liability for their behavior.51 As the understanding of the handicapped deepened and the concept of human rights of the handicapped rose after the 1970s and 1980s, people of all walks of life gradually regarded the handicapped as a group with capacity of self-determination, and held that relevant services should help them to be independent and their rights should be guaranteed by legislation. Accordingly, the academic circle made more in-depth and accurate research on what should be independently determined by them.52 (3) Physiological essence “Data show that people with intellectual disabilities also have the need to love and be loved and the desire to have a family.”53 Mentally retarded adults generally do not understand sexual relations, incest, sexual violence and other wording related to sex. Further research shows that people with mental disabilities are vulnerable to sexual assault, violence or other sexrelated lawsuit (people with mental disabilities take the initiative) as they have little awareness of sex.54 Many studies show that people with mental disabilities have sexual needs like ordinary people, but due to a lack of sex education and contraceptive teaching to them for a long time, they can’t understand that the feeling of sexual impulse is a normal physiological phenomenon and don’t have correct vent channels. Even if they have sex, they do not know how to adopt contraception, and the subsequent issues have a great impact on their families and society.55 Statistics show that 42% of mentally retarded people are women, of whom nearly 70% are at reproductive age (12–44 years old). Reproductive age means that

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women must experience menstruation, and can complete the physiological mechanism of breeding their offspring through sexual intercourse. Therefore, the issue of menstruation, namely reproduction of women with intellectual disabilities has changed from an individual issue to a complex social problem involving the psychological pressure on their families, social environment security and their physical dominance.56 The parents of mentally retarded people wish their marriage first to meet their physiological needs (sexual needs), basic life care and security, and then the higher-level psychological needs. The parents of mentally retarded men expect their sons to get married in exchange for lifelong care, sexual needs and childbirth of their spouses with normal intelligence.57 (4) It is possible for mental retardation to continue to improve Mental retardation (MR) means that at the developmental stages, one has significantly lower intelligence than that of others at the same age, and suffers from adaptive behavior defects. That the intelligence quotient (IQ) of people with mental retardation is 2.0 standard deviations lower than the average IQ of people (which is set as 100, and the IQ of one standard deviation is 15) or IQ is generally below 70 (or 75) means that intelligence is significantly lower than the average. Adaptive behavior includes personal capacity of carrying out daily activities and performing social responsibilities. The developmental period generally refers to the stage under the age of 18. According to their possible level of education, Sam Kirk, an American educational psychologist, divides children with intellectual disabilities into educatable ones, trainable ones and those requiring taking care of.58 (1) The IQ of educatable children with intellectual disabilities is 50–69. Such children perform poorly in schooling due to poor abstract thinking ability, insensitive response and difficulties in learning, but can take care of themselves and engage in simple work. (2) The IQ of trainable children with intellectual disabilities is between 25 and 49. Children of this kind, who are insensitive and clumsy with only action thinking, if well educated, can learn simple sentences that often fail to convey the meaning. But they know to avoid danger and can live to middle age independently, if well protected. (3) The IQ of those requiring taking care of, the so-called idiot, is below 24. They can’t speak, count or live independently, and can live to adulthood if they are

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taken good care of. Mental retardation can be divided into different levels: (1) suspicious; (2) mild; (3) moderate; (4) severe; (5) extremely severe. According to the epidemiological study of Chinese children with mental retardation, the prevalence rate of Chinese children with mental retardation is 1.2%, with mild accounting for more than 60%, and the rest are mostly moderately severe, with very severe accounting for only 7%.59 That is to say, the IQ of most patients with mental retardation can be improved through acquired training and education and mental retardation can be changed. In some cases, careful treatment and rehabilitation training can improve mental retardation and help many of these people live a more normal life.60 There is no evidence that people with intellectual disabilities are bound to bear children with intellectual disabilities, or no data showing that they are more likely to giving birth to children with intellectual disabilities than normal people.、 2. Special circumstances in which mentally retarded women with limited capacity of self-determination exercise their right to reproductive self-determination In general, women who have the capacity of self-determination are able to measure the happiness and challenges of pregnancy, reproduction and raising children when deciding whether to get pregnant or not. In case of contraception, they choose between temporary contraception and permanent contraception (sterilization). Mentally retarded women also have to choose from the two kinds of contraceptives, but are unable to judge and weigh the advantages and disadvantages in making choices.61 Under normal circumstances, therefore, mentally retarded women, who have no intelligence high enough to judge whether they will have children or not, how they will manage to have children or not to, and what impact such measures will have on them, are generally considered to lack the capacity of reproductive self-determination. In this case, their guardians need to make decisions in their instead. However, if women with mental retardation are able to make independent decisions on reproduction, their own decisions should be deemed to be legal and effective. That is, medical institutions should first evaluate whether women with mental retardation have the ability of self-determination before taking diagnosis and treatment to them, so that they can determine whether these women are able to give informed consent to medical measures. The evaluation

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aims to protect the self-determination of people who are able to make independent decisions by themselves rather than by their agents. Only after the assessment determines that a mentally retarded woman is not able to make an independent decision on reproduction can the medical institution determines, in accordance with the existence of causes in the substantive law, whether the guardian’s decision on medical behavior to the mentally retarded woman is in her best interests. The right of mentally retarded women to reproductive selfdetermination involves reproduction and non reproduction. Reproduction involves pregnancy and childbirth. Non reproduction involves contraception (specifically including temporary contraception and longterm contraception. Long-term contraception can be divided into recoverable long-term contraception and unrecoverable long-term contraception) and termination of pregnancy. The degree of mental retardation of mentally retarded women varies and many problems in women’s exercise of the right to reproductive self-determination need to be determined with different abilities according to the influence of the problems. It doesn’t mean that mentally retarded women can’t determine all problems, but it needs to be judged according to the specific situation whether they have the ability of self-determination on such matters. For example, when hysterectomy and other measures that may have a significant and irrecoverable impact on mentally retarded women are taken, their ability of self-determination is generally not recognized. However, in the case of oral contraceptives or other recoverable birth control measures, their ability of self-determination tends to be recognized. Women with mental retardation usually have guardians. Their capacity of reproductive self-determination cannot be naturally denied because of the existence of their guardians. Through the acquired continuing education, mentally retarded women may be able to understand some specific reproductive behaviors to a certain extent, so they have a certain ability of self-determination. Therefore, their own will need to be considered (because mental retardation is graded, mentally retarded patients have their own interests and considerations, and mental retardation will be alleviated with the development of education and time). Their own interests, which may be brought by decisions harmful to them, also need to be considered. When the conditions are met, mentally retarded women can get different happiness from the decisions on reproduction. They also enjoy the benefits of contraception, including avoiding physical discomfort caused by pregnancy, physical pain from childbirth, psychological

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burden for their inability to take care of their children, or psychological pain caused by giving birth to disabled children. Medical institutions should inform patients, and their guardians with their consent. Medical institutions must communicate with mentally retarded patients in a language that can be understood by these patients and obtain their decisions on relevant issues. They cannot notify patients with mental retardation according to the same standard for normal people, nor can they only communicate with or inform the guardians of patients. We should not completely ignore the opinions of guardians just because mentally retarded women have the ability of self-determination on this matter. On the one hand, guardians often have insights into mentally retarded women and the impact of the decision on women themselves. On the other hand, the reproductive decision made by mentally retarded women often has the greatest impact on them. Although mentally retarded women may not make decisions in their best interests because the decisions may lead to the conflicts of interests of these women, the direct conflicts of such interests can better explain whether the decisions are made in the best interests of mentally retarded women in essence. When the ethics committee or the court judges whether a medical decision is made in the best interests of women with mental retardation, it should be noted that we should consider issues from the standpoint of women with mental retardation, rather than most people, the ethics committee or the court who makes the wisest choice. That is because the hardships of the life of a family with mentally retarded persons can only be experienced by those who live such life every day. As some scholars say, sterilizing women with mental retardation helps protect their parents, although the children born by women with mental retardation may not be mentally retarded. However, if people with mental retardation are unable to raise their children by themselves, their children may be raised by their parents. This will bring an economic burden to their parents and limit their social, professional and educational activities. Parents in their remaining years enjoy the right to exemption from attending to, managing and supporting their grandchildren. Take Han Qunfeng’s intentional homicide62 with a great influence in recent years, as an example. Han Qunfeng gave birth to two sons with cerebral palsy and killed them after taking care of them for more than ten years because they lived a very difficult life and brought a lot of trouble and pain to the family. In 2011, the First People’s Court of Dongguan ruled Han

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Qunfeng committed intentional homicide and sentenced her to five years’ imprisonment.63,64,65,66

5.4 Exercise of the Right to Reproductive Self-Determination by Women Without the Capacity of Self-Determination 5.4.1

Exercise of the Right to Reproductive Self-Determination by Vegetative and Brain Dead Women

As modern medical technology develops, embryos are more likely to survive. In reality, there are special pregnant women, including vegetative pregnant women and brain dead pregnant women 67,68,69,70 Usually, vegetative pregnant women and brain dead pregnant women result from emergencies, before which, they are generally not people without the capacity of civil conduct. They are women who have no capacity of selfdetermination on71 the current diagnosis and treatment. It has become a controversial issue in practice whether the decision on the diagnosis and treatment of these special pregnant women to be taken is effective. The primary consideration given to vegetative pregnant women is whether they should continue childbirth or terminate pregnancy. In the case of continuous childbirth, the necessary considerations include their previous will and their health. If continued childbirth does not blight their health, they should continue childbirth. Otherwise, termination of pregnancy can be considered to protect their health. Because they are likely to return to normal, priority is often given to the life interests of vegetative pregnant women, rather than fetal life interests. In this case, the legal value measurement should be adopted in jurisprudence. When one interest conflicts with another but cannot be satisfied at the same time, some value judgments should be made to arrange their order and determine their importance. This is a key issue that the law must treat and deal with seriously.72 In this process, if continued childbirth may affect the life interests of vegetative pregnant women who have made a clear statement before the vegetative state that even if continued childbirth may seriously harm their health or even life, their previous intention to continue to have children should still be respected. In the case of termination of pregnancy, the intention of the vegetative pregnant woman before she becomes a vegetable, her health and the law concerning termination of pregnancy need to be considered. When the

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law allows termination of pregnancy, the pregnancy can be terminated if the woman in a coma has made a clear decision to terminate the pregnancy before her coma. If no clear decision has been made by the woman in a coma and her close relatives have made an agreement, the opinion of her close relatives shall prevail. In case of a dispute between close relatives or their decision in doubt, it can be submitted to the ethics committee or relevant institutions for decision.73 If continued pregnancy will seriously endanger the health of pregnant women in comas, pregnancy should be terminated to protect the best interests of them as patients. When termination of pregnancy is prohibited by the law, pregnancy shall not be terminated unless continued pregnancy will seriously endanger their health or except in the best interests of vegetative pregnant women.74 Provisions on the treatment of pregnant women with brain death are the same as those on pregnant women in comas, but provisions are different between countries that recognize and do not recognize brain death. In countries and regions that recognize brain death, pregnant women suffering from brain death are no longer qualified to make independent decisions because they are considered to have died. Medical institutions shall respect and implement the decisions made by the close relatives of pregnant women in comas, who don’t make decisions on behalf of pregnant women with brain death, but exercise their own right to decisions. Therefore, medical institutions should not deny the decisions made by their close relatives on the grounds that the right of pregnant women to life should be protected.75 In these countries and regions, it remains to be further studied how to balance the husband’s decision to terminate pregnancy and the protection of the interests of fetal life. In countries and regions that do not recognize brain death, pregnant women with brain death are deemed as people who are unable to make independent decisions, and whose right to self-determination is exercised by their close relatives on their behalf. Therefore, the validity of the decision shall be judged by considering the patient’s will before her coma, protection of the best interests, exclusion of close relatives’ decision, emergency diagnosis and treatment, etc.

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5.4.2

Exercise of the Right to Reproductive Self-Determination by Mentally Retarded Women Without the Capacity of Self-Determination

Under normal circumstances, guardians of women with severe mental retardation who are unable to make independent decisions are their parents, other personnel or institutions, and their reproductive autonomy is based on the consent by their guardians. In this case, the consent given by the guardian is generally deemed to be effective. However, the right to consent of the guardian is not absolute because the principle of protecting the best interests of the ward must be followed. The standard for judging whether a decision is made in the best interests of women with severe mental retardation is the measurement of interests. If the pain caused by the pregnancy of severely mentally retarded women with sexual vitality is greater than that caused by birth control, birth control is in their best interests. If the happiness from pregnancy is greater than the pain from birth control, pregnancy is in their best interests. In general, medical institutions do not review the decisions made by the parents of patients because the consanguinity between parents and women with severe mental retardation determines the consistency of interests between the two sides and the decisions made by the parents of patients are most in line with the interests of their children, because. However, it should be noted that there is also the possibility of conflict of the interests between parents and severely mentally retarded women. For example, parents may consider sterilization as a way to prevent more burden of care caused by pregnancy or menstruation although there is little probability of adverse decisions for mentally retarded women due to the conflict of interests. Therefore, if someone questions the parents’ decision, or when the medical institution wants to perform surgery for family planning on a woman with severe mental retardation but is not sure whether the decision is in her best interests or whether it can trust the parents’ decision, the medical institution can submit the parents’ decision to the ethics committee or the court to review and determine whether the decision is in the best interests of the mentally retarded woman. If a person or institution other than her parents acts as the guardian of a woman with severe mental retardation, the medical institution cannot directly implement the guardian’s decision of consent, but should introduce the principle of prudence. That is to say, the ethics committee or the people’s court should reasonably check the decision to exclude possible

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infringements on their rights and interests. The medical institution can’t implement the decision made by the guardian without the consent of the ethics committee or the court. Because when a person or institution other than parents acts as the guardian, there are more possibilities of conflict of interests so that the guardian is likely to make a decision for his or its own interests rather than in the best interests of the ward. For example, pregnancy or menstruation of women with severe mental retardation may impose more burden on guarding institutions and their staff. Pregnancy or retention of reproductive function may make caring for patients more difficult. In addition, the same caregiver has more obligations to take care of and raise the born baby. This will impose more pressure on the finance that has already been tight. In the early 1980s before the case of Nantong Welfare Institution, the menstruation of a mentally retarded girl made nursing more difficult. The nurses had a lot of complaints because during her menstruation, the amount of diapers, made by the welfare home, increased greatly and the workload of the laundry increased.76

Notes 1. Zhu Lijun: Research on Basic Issues of Civil Law in Organ Transplantation—From the Perspective of Organ Donors’ Right to SelfDetermination [M], Law Press, Beijing, 2012, p. 217. 2. Huang Dingquan: On Medical Law [M], published by China University of Political Science and Law Press, Beijing, 2003, p. 270. 3. Wang Zejian: Tort Law (I) [M], China University of Political Science and Law Press, Beijing, 2001, p. 274; Shi Shangkuan: General Theory of Debt Law [M], Higher Education Press, Beijing, 2009, p. 123; Huang Dingquan: On Medical Law [M], Yuanzhao Publishing Co. Ltd., Liaoning, 2000, p. 417. 4. Weng Yurong: On Patients’ Right to Self-Determination and Doctors’ Obligation of Notification from a Legal Point of View [J], Law Review, 2000 (1–3), pp. 8–9. 5. Wu Zhizheng: Who Will Make an Explanation? Who Will the Explanation Be Made to? Who Will Give Consent?—Comment on Medical Related Regulations [J], published in The Taiwanese Law Review, 2008 (162). 6. Zhu Lijun: Research on Basic Issues of Civil Law in Organ Transplantation—From the Perspective of Organ Donors’ Right to SelfDetermination [M], Law Press, Beijing, 2012, pp. 221–222. 7. Duan Kuang and He Xiangyu: Doctors’ Obligation of Notification and Patients’ Commitments [J]//Liang Huixing: Essays on Civil and

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8.

9.

10. 11.

12.

13.

14.

15.

16.

Commercial Law: Volume 12 [M], published by Law Press, Beijing, 1999, pp. 177–185. Disputes over Compensation for Wife’s Induced Labor without Husband’s Consent between Husband and Tianjin Central Obstetrics and Gynecology Hospital [EB/OL]. http://china.findlaw.cn/info/case/jdal/ 3328.html, August 23, 2015. Zhang Keke: Some Legal Thoughts on Abortion from the Perspectives of the Rights to Reproduction and Birth and Their Value Conflict [J], published in Theory Research, 2009 (12), pp. 156–157. Liu Zuoxiang: Conflict over Rights: A Legal Phenomenon That Should Be Paid Attention to [J], Law Science, 2002 (3), p. 82. Wang Shixian: Self-Review of the Right to Reproduction [J], Journal of Hebei Normal University (Philosophy and Social Sciences Edition), 2006 (3), p. 67. Xing Yuxia: Research on the Theory and Hot Issues of Reproductive Right Legislation in China [M], published by Intellectual Property Publishing House, Beijing, 2008, p. 237. The discussion of men’s right to reproduction in this book is based on the conflict and coordination between women’s right to reproductive self-determination and the right to reproduction of men as spouses. Therefore, men’s right to reproduction in this book refers to the right to reproduction enjoyed by men as women’s spouses. Article 17 of China’s Population and Family Planning Law stipulates that citizens have the right to have children and the obligation to implement family planning according to law. Citizens referred to here include both women and men. In foreign countries, there are also provisions on the right to reproduction equally shared by husband and wife in marriage. Article 159 of the Civil Code of Switzerland stipulates that husband and wife, united into a community through marriage, have the obligation to assist each other, jointly maintain happiness and raise children. Paragraph 2 of Article 9 of the Family Code of the German Democratic Republic issued by the former Democratic Republic of Germany also stipulates, “The ultimate result of the combination of husband and wife is to bear and cultivate offspring, and the common right and obligation of both husband and wife are to educate children.” Qing Ling: On Men’s Right to Reproduction in Marriage and Some Suggestions on the Amendment of Marriage Law [J], Journal of the Party School of Sichuan Provincial Committee of CPC, 2000 (2), pp. 48–51. Zhang Zuohua: Gender Conflict of the Right to Reproduction and the Realization of Men’s Right to Reproduction [J], Science of Law (Journal of Northwest University of Political Science and Law), 2007 (2), p. 133. See (2) p. 134.

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17. Xie Yini: On the Influence of the Provision of Spouse Consent to Induced Abortion on Women’s Reproductive Autonomy [D], National Chiao Tung University, Taipei, (Taiwan), 2012. 18. Paul Brest: Process of Constitutional Decision-Making: Cases and Materials: Volume II, Edition 4 [M], translated by Lu Fujia, Zhou Qingfeng and Zhang Qianfan, China University of Political Science and Law Press, Beijing, 2002, p. 1185. 19. Fei Xiaotong: Local Chinese System of Reproduction [M], published by Peking University Press, Beijing, 1998, pp. 110–111. 20. Cai Changjuan: Long Term Impact of Adverse Reproductive Outcomes on Women’s Employment [J], published in Chaoyang Academic Journal, 2001 (6), pp. 39–63. 21. Huang Lianhua: The Influence of Giving Birth to Children with Congenital Defects on Families [J], published in China Journal, 1995 (4), p. 299. 22. Ma Qiang: On the Right to Reproduction, Focusing on the Civil Law Protection from the Infringement on the Right to Reproduction [J], published in Political Science and Law, 2013 (6), p. 19. 23. In the case of Patton v. British Pregnancy Counseling Service in 1979, the husband requested the court to prevent his wife from undergoing abortion without his consent in accordance with the Abortion Act 1967. George_P. Sir Becker believed that the Abortion Act 1967 didn’t grant husbands such rights. In the Soviet Union and Austria, the law allows women to decide abortion freely. German law also allows women within three months of pregnancy to decide whether to have an abortion. Huang Dingquan: Medical Treatment, Law and Bioethics [M], Law Press, Beijing, 2004, pp. 422–423. 24. Xie Yini: On the Influence of the Provision of Spouse Consent to Induced Abortion on Women’s Reproductive Autonomy [D], National Chiao Tung University, Taipei, (Taiwan), 2012. 25. For the detailed materials of this series of cases, please refer to the following two books: Arita L. Allen and Richard C.Turkington: Privacy Law: Cases and Materials [M], translated by Feng Jianmei, et al., China Democracy and Legal System Press, Beijing, 2004, p. 363; Paul Brest: Process of Constitutional Decision-Making: Cases and Materials: Volume II, Edition 4 [M], translated by Lu Fujia, Zhou Qingfeng and Zhang Qianfan, China University of Political Science and Law Press, Beijing, 2002, pp. 1112–1221. 26. Paul Brest: Process of Constitutional Decision-Making: Cases and Materials: Volume II, Edition 4 [M], translated by Lu Fujia, Zhou Qingfeng and Zhang Qianfan, China University of Political Science and Law Press, Beijing, 2002, p. 1181.

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27. Paul Brest: Process of Constitutional Decision-Making: Cases and Materials: Volume II, Edition 4 [M], translated by Lu Fujia, Zhou Qingfeng and Zhang Qianfan, China University of Political Science and Law Press, Beijing, 2002, pp. 1181–1200. 28. 505 U. S. 833 (1982). 29. 428 U. S. 52 (1976). 30. William J. O’Donnell: The Law of Marriage and Marital Alternatives [M], translated by Gu Peidong, et al. Chongqing Publishing House, Chongqing, 1985, p. 212. 31. Civil judgment of first instance on the divorce dispute between Wu and Zhong, Xiapu County People’s Court of Fujian Province (2014), Xiaminchuzi No. 1997. 32. Civil judgment of first instance on the divorce dispute between Yang and Yu, Anhui Fanchang County People’s Court (2015), Fanminyichuzi No. 363. 33. Supreme People’s Court Letter on the Legal Status of Children Born through Artificial Insemination during the Existence of Marital Relationship stipulates, “During the existence of marital relationship, both parties agree that children born by artificial insemination shall be regarded as legitimate children of both husband and wife, and the relevant provisions in the Marriage Law shall apply to the rights and obligations between parents and children.” 34. Paragraph 2 of Article 54 of the Contract Law of the People’s Republic of China stipulates that if one party makes the other party conclude a contract against its true intention by means of fraud, coercion or taking advantage of its danger, the aggrieved party has the right to request the people’s court or arbitration institution to change or cancel it. 35. Puja Salotia, wife of Zilag Salotia, an Indian, accused her husband of forcing her to have an abortion after an illegal B-ultrasound test identified her fetus as a girl. She flatly refused and even threatened to commit suicide. Therefore, her husband’s family exacerbated abuse to her and often beat and scolded her. Salotia said that she endured for ten years only for her two daughters, but finally chose to report the case. “I can’t stand abortion anymore because it’s so insulting.” After her report, the police immediately arrested Zilag, his two brothers, seven other family members and several doctors accused by sarodia. The wife of an Indian millionaire was forced to have an abortion with a girl baby, http://www. sina.com.cn, July 31, 2007. 36. In 2012, Feng Jianmei, a pregnant woman, was forced to induce labor of fetus locally because she had no money to pay a fine for violating the birth control, which attracted the attention of all walks of life, and relevant persons in charge were investigated for responsibility. The Follow-Up of the Pregnant Woman in Shaanxi Province Was Forced to Induce Labor

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38.

39.

40. 41.

42.

43. 44.

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of Fetus: 7 People Were Held Accountable [N], zhongyi.ifeng.com, June 27, 2012, http://zhongyi.ifeng.com/news/bgt/20126/186175.shtml. For the impact of third party coercion on the effectiveness of the contract, see Hou Wei: On the Effectiveness and Legislative Construction of Third Party Coercion [J], Studies in Law and Business, 2007 (5), pp. 96–101; Ran Keping: On the Effectiveness of a Contract Concluded due to Fraud or Coercion by a Third Party [J], Legal Forum, 2012 (4), pp. 109–115; Xue Jun: Third Party Fraud and Coercion [J], Chinese Journal of Law, 2011 (1), pp. 58–67. Party A, a pregnant girl under the age of 18, accompanied by her boyfriend’s mother, went to the clinic of obstetrician Party B for induced abortion. Party B required the consent of her legal representative before performing the induced abortion operation. The boyfriend’s mother called herself the girl’s aunt who could make a decision, and signed the operation consent form. Party B performed the induced abortion operation, mistakenly believing that there was the consent of the legal representative. Both the local court and the high court of Taiwan held that a doctor can perform induced abortion for a woman under the age of 18 only with the consent of her legal representative even if in accordance with Article 9.1.6 of the Eugenic Health Care Law, pregnancy or reproduction will blight her mental health or family life when she, as a student unmarried, is afraid of being scolded by her family. Party B defended that it didn’t know that her boyfriend’s mother was not the legal representative, which was the word of shirking responsibility afterwards. Therefore, the doctor’s behavior should still constitute the crime of profit-making processing abortion in Article 290.1 of the Criminal Law. The Supreme Court in Taiwan upheld the opinion of the high court (Taiwan Supreme Court 94 Taishang No. 6463). A Girl Who Gave Birth to a Baby at the Age of 12 Was the Youngest Mother in the UK [EB/OL]. http://news.sina.com.cn/s/2010-08-23/ 022320951976.shtml. Zheng Xuebao and Li Daping: Patients’ Right to Informed Consent [J], published in the Journal of Law & Medicine, 2004 (4), p. 273. Zhu Lijun: Research on Basic Issues of Civil Law in Organ Transplantation—From the Perspective of Organ Donors’ Right to SelfDetermination [M], Law Press, Beijing, 2012, p. 230. (1) SHINDEL AW, PARISH S J. Sexuality Education in North American Medical Schools: Current Status and Future Directions (CME) [J], The Journal of Sexual Medicine, 2013, 10 (1), pp. 3–18. Yang Dan: Research on Medical Criminal Law [M], Renmin University of China Press, Beijing, 2010, p. 182. American Psychological Association. Amicus curiae brief filed in US Supreme court in Ohio v. Akron center for reproductive health, Inc., 497

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48. 49.

50.

51. 52. 53.

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US 502 (1990) and Hodgson v. Min- nesota, 497 US 417 (1990) [J]. Retrieved February, 1989, 11: 2009. The Eugenic Health Care Law in Taiwan stipulates, “unmarried minors or interdicted persons shall not undergo induced abortion without the consent of their legal representatives in accordance with the provisions of the preceding paragraph, except when the legal representative is a criminal suspect or a defendant. If the consent of the legal representative cannot be obtained under special circumstances, it shall be implemented after consultation with a consulting organization or professionals.” On April 14, 2005, Nantong Welfare Institution in Jiangsu Province sent two mentally retarded girls (12-year-old Fu Yuan and 13-year-old Tong Xiaoshuang) to the Affiliated Hospital of Nantong University for subtotal hysterectomy so that they could avoid the pain of dysmenorrhea and possible inadvertent pregnancy. On April 21, 2005, Chongchuan Branch of Nantong Public Security Bureau filed a case for investigating Miao Kairong, the president of the welfare home, Chen Xiaoyan, the vice president of the welfare home, Wang Chenyi, the chief surgeon of the hospital, and Su Yunhua, the assistant of the surgeon, who were suspect of intentional injury. After more than a year of criminal trial, Nantong Chongchuan People’s Court made a judgment of first instance: the four defendants committed the crime of intentional injury, with the president of the welfare home sentenced to set-term imprisonment of one year, suspended for two years, and the other three defendants (including two doctors) sentenced to being put under surveillance for 6 months. Du Chunzhen: Centennial Progress of Sexual Issues for People with Intellectual Disabilities [J], Chinese Journal of Special Education, 2010 (117). See (1). AUNOS M, FELDMAN M A. Attitudes towards sexuality, sterilization and parenting rights of persons with intellectual disabilities [J]. Journal of applied research in intellectual disabilities, 2002, 15 (4): pp. 285–296. Du Chunzhen: Centennial Progress of Sexual Issues for People with Intellectual Disabilities [J], published in the Chinese Journal of Special Education, 2010 (117). See (1). Huang Wenhui: People with Disabilities and Self-Determination [J], published in the Chinese Journal of Special Education, 2010 (116), p. 14. Yan Jiafeng: On the Marriage Status and Dilemma of People with Disabilities from the Perspective of Gender and Social Class [J], Research on People with Disabilities, 2010 (2), p. 119. Yan Jiafeng, et al.: Thoughts on Menstruation, Sex and Human Rights of Mentally Retarded Women [J] Research on People with Disabilities, 2008 (4).

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55. Same as (2). 56. Same as (3). 57. Yan Jiafeng: On the Marriage Status and Dilemma of People with Disabilities from the Perspective of Gender and Social Class [J], Research on People with Disabilities, 2010 (2), p. 117. 58. On April 6th, 1963, a seminar of the “children’s Fund for cognitive impairment” was held in Chicago, USA. krik, an American educational psychologist, delivered a speech and suggested that the term learning disability should be used to refer to the learning behaviors of reading retardation, perceptual retardation and inattention. At the same time, he also proposed that children with mental retardation could be classified according to the degree of education. In 1972, the United States passed the education for all disabled children act, which listed children with learning disabilities as one of the ten special education service objects. 59. Chen Yujie: Prevention and Rehabilitation of Children with Mental Retardation, Modern Rehabilitation, 1997, 1(1), 69. 60. Zhang Xuejun: Research on the Civil Legal System of Compulsory Sterilization for Mentally Retarded Women, Contemporary Law, 2006 (03). 61. Zhang Xuejun: Research on the Civil Legal System of Compulsory Sterilization for Mentally Retarded Women [J], published in Contemporary Law Review, 2006 (3), p. 47. 62. On June 5, 1998, Han Qunfeng gave birth to a pair of twin sons who were later diagnosed as cerebral palsy by the hospital and could not take care of themselves in daily life. After that, Han Qunfeng and her husband didn’t give up treating their two sons for more than ten years. On the evening of November 20, 2010, considering that the illness of her two sons had not improved, Han Qunfeng decided not to encumber her husband and family. After she made two children with cerebral palsy take sleeping pills and sleep soundly at their home in Xixi village, Liaobu Town, Dongguan City, she drowned them in the bathtub, and then took pesticides to commit suicide when her husband went out. 63. Huang Qianchuan: The Mother Poisoned the Children with Cerebral Palsy, an Unbearable Weight of Life [N], https://www.chinacourt.org/ index.shtml, December 11, 2013. 64. A 63-year-old father surnamed He in Hangzhou smashed his mentally retarded daughter half to death with a hammer, and then hanged himself. After the incident, the injured woman was sent to Hangzhou Red Cross Hospital for rescue. According to a middle-aged man who claimed to be the woman’s younger brother, his father was not in good health and might be afraid of being unable to take care of his daughter (mentally defective) after he died. Yu Wenqi: A 63-Year-Old Father Surnamed He in Hangzhou Smashed His Mentally Retarded Daughter Half to Death

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66.

67.

68.

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with a Hammer, and Then Hanged Himself [N], http://www.ce.cn/, May 24, 2015. In 2014, a 59-year-old man surnamed Cai, praised by his neighbors as a “good father”, raised his eldest son with autism and mental retardation for 15 years. Cai took full-time care of his eldest son after he lost his job four months ago. Worrying that he and his son would be a burden on his wife in his 60 s, he wrote a suicide note and planned to kill his eldest son and then commit suicide, saying that it will be good for this family. On the evening of June 27, 2014, Cai committed an attack while his eldest son was asleep, then he cut his neck and tried to die, but finally he called the police and his autistic son died of serious injury. A Hong Kong Man Killed His Mentally Retarded Son And Left a Suicide Note Saying It Was Good to His Family. [N], https://www.chinanews.com.cn/network, June 29, 2014. An ethical tragedy occurred in New Taipei City, Taiwan recently. A man divorced his ex-wife because of setbacks in work and raised a son and a daughter alone. The man could not take care of his daughter, who was born with diabetes and prader willi syndrome, and had moderate mental retardation. She was suspected of killing her daughter first and then committing suicide by jumping off the Bitan Bridge. The police found a notebook in the car that said I’ll take the child away. A Man Killed His 9-Year-Old Mentally Retarded Daughter and Then Committed Suicide under the Pressure of Life [EB/OL]. http://news.sina.com.cn/ s/2011-12-24/233723689284.shtml. In 2014, Robin, who was 27 weeks pregnant and living in Victoria, British Columbia, Canada, suddenly fainted and was sent to the hospital by her husband Dylan. The doctor announced that Robin died of cerebral hemorrhage but found that her fetus was still alive and occasionally moved. Doctors tried to keep her other organs running, hoping to keep the fetus alive for more than 34 weeks so that by then, the fetus would be more likely to survive in the cesarean section. Doctors told Dylan that the probability of a successful birth was expected to be 80%. But after the birth of the baby, Robin’s life support system would also be removed. On May 2, 2015, a young woman in Nebraska suffered from brain death during pregnancy, but the hospital maintained her life with ventilator and other equipment. After nearly two months of medical care, she underwent cesarean section and successfully delivered a healthy baby boy. A Pregnant Woman in the United States Gave Birth to a Healthy Baby Boy Two Months after Brain Death [EB/OL]. http://6d.dxy.cn/article/106244, May 5, 2015. At present, little is known about whether the fetus can survive if a mother suffers from brain death during pregnancy. An article published in BMC (a medical journal) in 2010 shows that German doctors found 12 viable

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children had been born by those mothers suffering from brain death at an average of 23 weeks of pregnancy among 30 cases in the past 30 years. The follow-up results showed that 6 children developed normally. A Pregnant Woman in Poland Successfully Gave Birth to a Healthy Baby Boy [EB/OL] after 55 Days of Brain Death, http://news.163.com/16/ 0421/20/BL70BLE700014AEE.html, April 21, 2016. The most important difference between vegetative pregnant women and brain dead pregnant women is that the former may recover their capacity of self-determination. Considering that vegetative women’s capacity of self-determination is almost unlikely to recover, they are included in women who are unable to make independent decisions permanently. This classification does not mean that vegetative pregnant women are unable to make independent decisions permanently in a complete sense. Zhang Wenxian: Jurisprudence [M], Higher Education Press and Peking University Press, Beijing, 1999, p. 218. A six-month pregnant woman in Turkey, Turgay Avci, became a vegetable due to encephalitis. Whether her fetus should be retained became the focus of all sectors of Turkish society. Her husband, Ceyhan didn’t want to keep the fetus alive because he worked in a supermarket with a meager income, and they had already had two children. He said that he had to support the family alone after his wife was unconscious and really didn’t have the energy and ability to take care of more children. But the hospital said that the removal of the ventilator meant implementing euthanasia to Turgay Avci, which is illegal in Turkey. Therefore, the hospital had no choice but to maintain her life and tried its best to keep the fetus alive. Controversy over whether the Fetus of a Pregnant Woman in a Coma in Turkey Should Be Kept Alive [N], http://www.xinhuanet.com/, January 16, 2008. For a detailed discussion on how to identify the will of pregnant women before they become vegetative and how to judge whether the decisions made by their close relatives conforms to the principle of excluding unreasonable decisions, please refer to Zhang Li: Legal Regulation of Termination of Treatment for Vegetative Patients [J], published in Law Science, 2012 (7), pp. 101–102. Maris Munoz was declared brain dead on November 28, 2013, when she was 14 weeks pregnant. On January 26, 2014, the fetus was 23 weeks old. Maris Munoz and her husband Eric, both medical staff, preferred to give up life support. Eric said his wife had told him she didn’t want to live like this. However, John Peter Smith Hospital refused to allow his wife to die and be buried at Eric’s request by invoking the provision of irrevocable life support for pregnant women in Texas law. Eric filed a lawsuit to the court, arguing that the artificial life support in the hospital was against his wife’s own will, and that it was rude to implement medical measures on the body

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of Maris Munoz who was legally dead. The lawsuit also stressed that Maris Munoz, who had died clinically, was no longer a “pregnant woman” and the treatment of her shouldn’t be subject to relevant state laws. In addition, the medical records showed that the fetus was “obviously abnormal.” Therefore, Judge R.H. Wallace ruled that John Peter Smith Hospital were ordered to declare the death of the woman Maris Munoz in Texas and return her body to her family. When issuing the court order, he said, “Ms. Maris Munoz has died.” The US Hospital Interrupted Life Support and the Pregnant Woman with Brain Death Rested in Peace [N], Xinhua News Agency, January 26, 2014. 76. A follow-up report on hysterectomy of two mentally retarded girls in Nantong Children’s Welfare Institution, Jiangsu Province [EB/OL]. http://news.qq.com, May 21, 2015.

CHAPTER 6

Restrictions on Women’s Right to Reproductive Self-Determination—Based on Medical Reasons and Ethical Review

6.1

Compulsory Medical Treatment

6.1.1

Concept of Compulsory Medical Treatment

Compulsory medical treatment means that people with specific diseases are required to receive treatment in order to protect public health and public safety.1 In the case of compulsory medical treatment, patients’ right to selfdetermination is subject to public safety and interests. The interests of the whole society, especially the interests of public health and safety, are obviously more important than patients’ right to self-determination. In public emergencies, priority is given to public interests, which override individual autonomy and freedom.2 The essential purpose of compulsory medical treatment is public health and social order. Compulsory medical treatment is about using non-medical means to prevent uncertain groups from falling into danger, so as to form a sound health order of the whole society.3 In short, when the physical and procedural conditions of compulsory medical treatment are met, medical institutions can implement compulsory medical treatment for patients without their consent. Such compulsion is to seek a balance between patients’ interests and public interests.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 W. Jiang, Women’s Right to Reproductive Self-Determination from the Perspective of Civil Law, https://doi.org/10.1007/978-981-19-2790-4_6

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6.1.2

Legal Basis of Compulsory Medical Treatment

The regulations on compulsory medical treatment in China scattered in the Criminal Law, the Criminal Procedure Law, the Law of Punishments in Public Order and Security Administration, the Mental Health Law, the Anti Drug Law, the Regulations on Compulsory Detoxification, the Measures for Diagnosis and Evaluation of Compulsory Detoxification through Isolation, the Law of Infectious Disease Prevention and Control, the Law of Frontier Health Quarantine, Regulations on Response to Public Health Emergencies, the Regulations on AIDS Prevention and Control, the Regulations on the Administration of Vaccine Circulation and Vaccination as well as other laws, administrative regulations4 and local regulations and rules5 are mainly medical measures taken for mental patients, drug addicts, patients with infectious diseases and suspected patients who are apt to threaten public safety, prostitutes and whoremongers and other special types of patients. For example, Paragraph 2 of Article 30 of the Mental Health Law stipulates that patients with serious mental disorders who have committed acts that harm the safety of themselves or others, or are in danger of harming the safety of themselves or others shall be hospitalized. 6.1.3

Legal Relationship Arising from Compulsory Medical Treatment

Views vary on the legal relationship arising from compulsory medical treatment, including the view of administrative legal relationship,6 the view of criminal legal relationship,7 the view of civil legal relationship theory8 and so on. This book believes that the above views are reasonable, but it is more accurate to define compulsory medical treatment as a two-stage composite legal relationship considering the current operation of China’s compulsory medical system. That is, compulsory medical treatment involves decision-making and implementation. The stage of decision-making is one in which the coercive force is the most obviously reflected during the compulsory medical treatment. There are compulsory medical decisions based on both the criminal legal relationship generated by criminal law and the administrative legal relationship generated by administrative laws and regulations. At this stage, public power makes decisions on treatment in patients’ stead, and patients’ independent decisions are weakened. During the implementation of decisions, the rights of both doctors and patients may be reduced for public interests. For

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example, during SARS, the infected persons were sent to designated hospitals for isolated treatment, and should not be treated by other medical institutions. However, the relationship between medical institutions and patients is still a civil legal relationship between them as equal subjects, which should be adjusted by civil law, such as Tort Liability Law.9 It should be noted that in practice, there are cases in which medical institutions not only make compulsory medical decisions but also implement compulsory medical decisions. For example, Article 39 of the Law of Infectious Disease Prevention and Control stipulates that medical institutions have the right to isolate and treat patients with specific infectious diseases and patients suspected of such diseases. The Mental Health Law stipulates that when the guardian refuses to allow the patient with mental disorders without the capacity for criminal responsibility who endangers the safety of others and conducts other ordinary illegal acts to be treated, the mental hospital can make a decision to involuntarily hospitalize him or her. The said medical institution is the subject that not only makes medical decisions but also implements compulsory medical decisions. Medical institutions as subjects can make compulsory medical decisions due to the authorization of laws and regulations such as the Law of Infectious Disease Prevention and Control and the Mental Health Law. The identities of medical institutions in this case are organizations authorized by laws and regulations. The reason why the law grants power to medical institutions rather than administrative organs lies in the urgency, emergency and professionalism of specific disease prevention and control.10 During the implementation of medical decisions, medical institutions are still equal to patients in civil legal relationship. 6.1.4

Medical Institutions’ Obligation of Review

As compulsory medical treatment tends to be alienated into compulsory measures that restrict basic rights such as personal freedom in a disguised form, it is generally required that medical institutions should observe law, due process and special regulations when implementing compulsory medical treatment. As some scholars say, the compulsory treatment system has many defects, including unclear treated subject, the fuzzy standard of admitting mental patients, the imperfection of specific procedures and other defects.11 This book holds that in compulsory medical treatment, medical institutions cannot obtain patients’ independent decisions due to

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the special medical conditions of patients, but they still need to fulfill the obligation to inform and obtain the consent of the treated subjects before taking diagnosis and treatment measures.12 Before compulsory medical treatment for patients, the legitimacy of compulsory medical decisions, which is the source of the legitimacy of compulsory medical measures taken by medical institutions, shall be reviewed. First, as priority is given to the validity of all administrative acts of public power, it is not suitable for medical institutions to review the legitimacy of the administrative acts and medical institutions do not have the ability to conduct a substantive review. Second, medical institutions can review compulsory medical decisions procedurally, which means that decision-making organs need to provide decision documents, legal basis, basic facts and other evidence for retention and use. Third, before implementing compulsory medical decisions, medical institutions need to organize relevant appraisers to determine whether the patients are qualified for compulsory medical treatment. Fourth, when medical institutions act as subjects who not only make decisions but also implement decisions, the decision-making and execution should be conducted by different departments which can restrict each other within medical institutions to ensure that the rights of patients are not infringed. 6.1.5

Necessary and Appropriate Derogation of Patients’ Rights

The core characteristics of drug addicts, patients with infectious diseases and patients with mental disorders as a subject in the legal relationship arising from compulsory medical treatment are still their identities as patients. As compulsory medical treatment is first of all a medical measure, the identities of patients should be fully considered when restricting personal freedom.13 It should be noted that medical institutions shall still make necessary explanations of the specific treatment in compulsory medical treatment, such as the use of drug, and patients’ right to informed consent is not completely lost due to compulsory medical treatment.14 Medical institutions should still fulfill the obligation to inform patients while trying their best to reducing restrictions on patients’ right to selfdetermination.15 Patients receiving compulsory treatment have the right to informed consent, but don’t enjoy the full right to decision.16 It is precisely because patients are in aphasia in the compulsory medical decision that they should enjoy the right to participate in procedures, the

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right to access information and the right to relief in the implementation of compulsory medical treatment. Thus a mutually beneficial situation can finally form.17 6.1.6

Compulsory Medical Treatment and Women’s Right to Reproductive Self-Determination

First of all, it should be recognized that in the case of compulsory medical treatment, it is necessary to reduce women’s right to reproductive self-determination to some extent. For example, when they are subject to compulsory treatment for malignant infectious diseases, in order to avoid the spread of the diseases, women cannot exercise their right to self-determination of pregnancy. Secondly, what should be reduced about women’s right to reproductive self-determination should be determined according to different causes and degrees of compulsory medical treatment, and restrictions on women’s right to reproductive selfdetermination shouldn’t be arbitrarily expanded. For example, patients mentally deranged shall not be forced to terminate pregnancy. Finally, when implementing compulsory medical treatment, we should consider not only the compulsory medical treatment of pregnant women, but also the relevant interests of embryos. For example, when implementing compulsory detoxification for pregnant women in the third trimester, doctors should usually detox them while taking relevant measures to treat the possible withdrawal syndrome of newborns.

6.2 6.2.1

Protective Medical Measures The Concept of Protective Medical Measures

In medical activities, doctors can exercise the right to independent diagnosis and treatment and the right to intervention. The right to intervention means that in some specific cases, doctors complete their obligations to patients by using special rights to limit the rights of patients.18 Some people believe that medical privilege means that doctors have to deliberately keep from being disclosed specific information whose disclosure they think is medically improper, in order to avoid potential damage to patients’ physical and mental health.19 As an exception of informed consent, this medical privilege is called a protective medical measure in

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China’s medical clinical practice. Essentially, it is doctors’ right to interfere with patients’ rights to informed consent and self-determination under specific circumstances, so as to reduce their psychological pain and pressure and protect their health interests. 6.2.2

Legal Provisions on Protective Medical Measures

In China, protective medical measures are medical measures with a long history in clinical medical practice. Relevant provisions on protective medical measures are made in Paragraph 1, Article 26 of the Law for Licensing Medical Practitioners,20 Article 11 of the Regulations on the Handling of Medical Malpractice,21 Article 62 of the Detailed Rules for the Implementation of the Regulations on the Management of Medical Institutions,22 Article 55 of the Tort Liability Law23 and other laws and regulations. 6.2.3

Protective Medical Measures and Women’s Right to Reproductive Self-Determination

Protective medical measures embody the “patriarchal” doctor–patient relationship in which the patient passively accepts the treatment scheme selected by his doctors and family members. In essence, protective medical measures allow the patient to accept the decision on treatment made by his doctors and family members without his knowledge, while the patient’s right to self-determination is ignored. Judging from many doctor–patient disputes that have occurred now, protective medical measures may not be able to achieve good results.24 Some people believe that protective medical measures deprive patients of the last chance to obtain spiritual growth, which is an essential and deep injury to dying patients and a violation of humanistic spirit.25 A survey of whether patients should be informed of their suffering from cancer showed that 77.6% of patients thought they should, only 3.8% of them thought they should not, and 18.6% of them thought the answer varied from person to person.26 Due to medical institutions’ protective medical measures, women themselves do not know their condition, the treatment methods to be taken and the operation risks. This means restrictions on women’s right to informed consent. Patients are in a disadvantageous position in telling the doctors that they may not be suitable for the plan for treatment

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and thus their rights to life and health are damaged. Women’s right to self-determination requires doctors to truthfully inform them of their condition, the plan for treatment and other information. On this basis, they have the right to decide whether to agree to and participate in the treatment proposed by the doctor. However, protective medical measures arising from the medical privilege directly deprive women of their right to self-determination. In this regard, some scholars commented, “although the tort liability law recognizes the legitimacy of protective medical measures, they should be used with caution in practice considering that they may swallow the results of informed consent due to easy abuse.”27 Protective medical measures also conflict with women’s right to privacy. In accordance with the informed consent system, women’s right to privacy is fully protected because doctors inform only patients of their condition in the case of non-emergency. However, subject to protective medical measures in law, women’s family members should be informed of the medical information. If a female patient doesn’t want others to know her condition, but the doctor tells her family members in accordance with protective medical measures, the woman’s right to privacy will be violated. Foreign theories on protective medical measures can be used as a reference for us to amend the law in the future.28 For example, according to the On Medical Privileges: Report on the Retention of Patient Information issued by the Ethics and Justice Commission of the United States in June 2006, doctors should consider disclosing potentially harmful information before it can be known, and encourage patients to make a choice about receiving medical information.29 In order to respect patients’ autonomy, doctors should provide all patients with the opportunity to receive relevant medical information, ask them what information they want to know and how they wish to receive such information, and meet their preferences as much as possible.30 If women suffer from depression during reproduction, medical institutions should consider taking protective medical measures when necessary to avoid aggravating their depression symptoms caused by direct notification. However, medical institutions should restrict the application of protective medical measures by establishing strict regulations. In the process of childbirth, due to the change in their appearance, weight and hormone secretion as well as to the pressure from society, their families and work, women are apt to have social and psychological stress response, and suffer from depression in severe cases. According to women’s psychology, depression can be classified into fear, anxiety,

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impatience and paranoia. Perinatal depression is rarely caused by a single psychological factor, but generally by a combination of multiple psychological factors. Based on the stages of reproduction, depression can be classified into depression during pregnancy and postpartum depression. Depression during pregnancy may lead to not only more risks of depression in their children, but also adverse consequences such as slow embryonic development and premature delivery. Those with severe postpartum depression may hurt the baby and even commit suicide. When pregnant women with severe depression have hypoplastic embryos or are in other adverse circumstances, medical institutions should not immediately inform them, so as not to aggravate the depression. Medical institutions can’t inform patients until their condition is relieved. When necessary, medical institutions can notify women through their spouses as go-betweens, so as to protect women.

6.3 6.3.1

Emergency Treatment The Concept of Emergency Treatment

Emergency treatment means that medical institutions can take treatment measures for patients without their consent but don’t burden tort liability if doctors believe that they must be treated immediately after considering the results of immediate treatment or no treatment because there is a major danger to their life and health. In this case, the law stipulates that medical institutions shall bear the legal obligation to adopt necessary emergency treatment without the informed consent of patients when medical institutions cannot obtain the consent of patients who must receive appropriate treatment immediately.31 1. Saving the dying and healing the wounded is a legal obligation evolving from ethical obligation. When the law does not stipulate that medical institutions have the obligation to conclude medical contracts with patients, saving the dying and healing the wounded is only a moral obligation rather than a legal obligation for them. Emergency treatment is a legal obligation evolving from a moral obligation, which aims to strengthen the performance of this obligation.32 Because of this, the laws33 of many countries or regions stipulate that medical institutions shall not refuse the request of patients without justified reasons.

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2. Medical institutions’ obligation of emergency treatment is based on the exclusivity of medical activities. Medical institutions should fulfill this obligation because they monopolize treatment and other medical activities through the licensing system.34 Doctors’ practice is also considered to be an announcement to the public that they will undertake the obligation of emergency treatment.35 3. The rights to life and health are the basic rights of citizens. In a society where human rights are extensively protected, it is the bounden duty of doctors to save the dying and heal the wounded. The medical institution shall not, without obtaining the patient’s informed consent, refuse treatment of the patient whose life is in danger.36 6.3.2

Legal Basis for Emergency Treatment

In China, the main legal basis for emergency treatment is the provisions of laws and regulations such as Article 5637 of the Tort Liability Law, Article 2438 of Law for Licensing Medical Practitioners and Article 3139 of the Regulations on the Administration of Medical Institutions. 6.3.3

Circumstances for Emergency Treatment

First, when there is a realistic, urgent and serious threat to the life and health of patients40 or there is a clear and impending serious threat to life and health.41 The 14 diseases that need emergency treatment listed in the working system for the emergency room in the Hospital Working System issued by China can be used as the basic reference for the circumstances for emergency treatment. Second, when the medical institution is unable to obtain the decision made by the patient, his close relatives or other related persons.42 The refusal of treatment by the patient’s close relatives or other related persons will immediately cause irreversible damage to the patient’s health and life interests. Third, when the medical institution’s treatment with the consent of the patient or his close relatives causes irreparable serious damage to the patient.43 Fourth, when the medical institution’s corresponding capacity of treatment is the premise for fulfilling the obligation of emergency treatment. Except for force majeure such as climate and traffic, it is

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generally presumed that the emergency department of the medical institution has the ability of emergency treatment.44 The medical institution shall not refuse to take emergency treatment for the patient on the grounds that it hasn’t obtained his consent. Fifth, when the law stipulates the exemption of responsibility. The Supreme Court of South Korea has ruled many times that doctors don’t need to perform the obligation of explanation before adopting medical emergency treatment without the consent of patients. Medical emergency treatment constitutes a ground for eliminating the illegality of medical behavior and possible legitimate damage to the patient’s body.45 When the doctor doesn’t fulfill the obligation of explanation in defending the patient’s life and physical interests, there is nothing wrong with using the legal principle of emergency asylum to block the violation of law.46 6.3.4

Emergency Treatment and Medical Disputes Over Inaction

Among the medical disputes between medical institutions and patients, some are disputes over medical treatment. The others are disputes over the inaction of medical institutions, caused by the gross negligence of medical institutions, and by medical institutions’ timidity in taking treatment without patients’ informed consent for unclear provisions on patients’ right to self-determination. “In the study of medical error causality, inaction is particularly striking.“ The medical institution may also face criminal liability or other legal liability in the future if it takes treatment without the effective consent of the patient, considering its own medical technology and the need to save the life of the patient. After the case of amputation for bone marrow myeloma ruled by the Rhine Court of the German Empire in 1894, both theory and practice generally held that the victim’s commitment (i.e. the patient’s consent) was the core cause of justified medical behavior. In this case, the doctor told the father of a 7-year-old girl, who suffered from tuberculous bone marrow cancer, that amputation was necessary to save her life. The girl’s father opposed amputation, but the doctor ignored her father’s decision. Although the operation was successful and the girl recovered, the doctor was still criminally held accountable for injury.47 We can’t simply ask medical institutions to treat patients even if they don’t obtain effective consent from patients, because medical institutions

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and doctors, as social people, are rational enough to draw lessons from the past examples. Here, we need to distinguish different circumstances to make targeted rules and guidelines. In the Japanese case of Hanako, the defendant argued that a doctor naturally had the obligation to avoid adverse consequences and transfuse blood to the patient when he couldn’t save a life without blood transfusion once he started the operation. In this case, if the doctor looked on unconcerned, he might be charged with suicide assistance or even murder. It was obviously contrary to public order and good customs to require the doctor to promise the abovementioned special agreement which was a criminal act.48 The Supreme Court affirmed that the patient had the right to decide to refuse blood transfusion and that the doctor had the right to make a promise or not to. That is to say, when the doctor’s treatment scheme conflicts with the patient’s will, the doctor should explain his scheme to the patient and allows the patient to choose whether to accept or reject the doctor’s scheme. In the community of criminal law, although there are still disputes over what kind of criminal crime medical institutions or doctors should be charged with when their failure to provide emergency treatment to critical patients results in their death and other serious consequences, the most basic fact is that medical institutions or individual doctors will be in a disadvantageous position because of this.49 In this regard, this book holds that the following points are the proper standards for emergency treatment: (1) In the case of emergency treatment, the court will not support the claim that the patient’s right to self-determination is infringed because he is treated without his informed consent. (2) Medical institutions may claim the payment of medical expenses from the rescued patients or other relief institutions in accordance with the compulsory treatment contract. (3) After emergencies disappear, medical institutions shall perform their obligation to inform patients as soon as possible as required in normal medical situation. (4) Medical institutions’ refusal to adopt treatment without justified reasons in emergency that causes serious consequences is deemed to be inaction, because emergency treatment is a compulsory obligation given by the state to doctors in criminal law.50

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6.3.5

Emergency Treatment and Women’s Right to Reproductive Self-Determination

Emergency treatment is more common in the special treatment, which is risky and urgent, of reproductive women, who are often temporarily unable to make independent decisions. In the influential case of Li Liyun in the circles of learning and practice, Li Liyun and her fetus died because after the pregnant woman lost her capacity of self-determination, her cohabiting boyfriend refused to sign the informed consent, and the medical institution was not skilled in the use of the emergency treatment system.51 The exercise of the right to reproductive self-determination by women who are temporarily unable to make independent decisions means that medical institutions conduct treatment of women patients in emergency in their best interests when medical institutions cannot obtain their self-determination for special reasons such as coma or anesthesia during operation, but it is necessary to take emergency treatment for them. In such cases, the following issues need to be clarified: First, women who are temporarily unable to make independent decisions are still persons with full capacity of civil conduct in the civil law. Second, persons with full capacity of civil conduct are unable to make independent decisions on specific matters under specific medical circumstances.52 Third, such women’s capacity of self-determination is likely to completely recover after the specific circumstances are eliminated. Fourth, medical emergency requires the treatment of women without their own consent. Fifth, that women’s right to self-determination is exercised by their close relatives on their behalf with their close relatives on the scene is not deemed as emergency medical treatment. Sixth, if close relatives disagree or refuse treatment, medical institutions can adopt treatment in the best interests of patients.53 Seventh, if there is no close relative, medical institutions can start the treatment of patients according to the emergency treatment procedure. Eighth, such emergency treatment shall not be canceled after women’s capacity of self-determination is restored. Medical institutions can claim payment of relevant fees in accordance with compulsory contracting or spontaneous agency. Ninth, medical institutions are exempt from liability for disputes over whether women have made independent decisions. If there is a fault in the emergency treatment, medical institutions shall still bear corresponding tort liability.

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Ethical Review Basis of Ethical Review

The principle of public order and good customs, which is expressed as the sense of etiquette of all fair and just thinkers,54 is the basic principle used by most countries in the world to adjust ethical conflicts arising from gene technology. Public order is the legal value system. Good customs refer to the ethical order or ethics beyond the law, namely, the minimum ethical and moral standards for human life.55 In general, we always equate public order with mandatory legal order, and good customs with social morality that should be maintained.56 Article 6 of the Civil Code of France issued in 1804 stipulated that the person concerned shall not violate the law on public order and good customs by special agreement. This was the first provision on the principle of public order and good customs in the history of modern legislation. As an important legal principle of modern civil law, public order and good customs are essentially institutional and rational restrictions on individual rights and freedom, as well as powerful means of defending social public interests.57 According to the general theory, as a provision of the basic principles of civil law, Article 758 of the General Principles of the Civil Law, similar to “public order and good customs” and “public interests” in foreign laws, embodies the legislative spirit basically consistent with the provisions of “public order and good customs” in foreign legislation.59 However, some scholars differently believe that this provision is a basic provision on prohibiting abuse of rights in China’s current civil legislation.60 ,61 This book holds that the social morality and socio-economic order in Article 7 of the General Principles of the Civil Law should mean public order and good customs. Article 7 [Public Order and Good Customs] of the Expert Proposal Draft of the General Rules of the Civil Law in the Civil Code of the People’s Republic of China (Draft for Comments) (version by China Law Society) stipulates that civil subjects engaged in legal acts and other civil activities shall not disturb public order, violate social morality or damage public interests and the legitimate rights and interests of others. The proposal draft does not use the wording of public order and good customs in the provision, but what is reflected between the lines is the core requirement of the principle of public order and good customs. Article 8 of the General Rules of the Civil Law of the People’s Republic of China (Draft) (version by the Standing Committee

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of the National People’s Congress) stipulates that civil subjects engaged in civil activities shall observe the law and shall not violate public order or good customs or damage the legitimate rights or interests of others. In the explanation of the Draft was written: In compiling the civil code, we should adhere to the following basic principles: … Third, reflect the core socialist values… advocate the spirit of contract and safeguard public order and good customs. The Draft directly uses the wording of public order and good customs as the basic principle of the civil code. This basic principle is also stipulated in the General Rules of the Civil Law of China, which came into force on October 1, 2017. Article 8 hereof stipulates that civil subjects engaged in civil activities shall not violate the law, public order or good customs. Article 10 hereof stipulates that civil disputes shall be settled in accordance with the law; where there are no corresponding provisions in the law, customs may be applied, but public order and good customs shall not be violated. In other words, as science and technology develop, the notification by the doctor to the patient and self-determination by the patient need to be constrained by public order and good customs. Some scholars say, “Freedom and restrictions on freedom are the core issues of civil law, and most of the value judgments of civil law. Freedom cannot be unlimited, and otherwise it cannot be realized or well realized. However, the restrictions on freedom must be strictly restricted, because civil law will lose its legitimacy without the recognition and protection of freedom.”62 6.4.2

The Ethics Committee as a Supplement to Medical Institutions’ Notification

The rapid development of modern life science and medical technology and the progress of the way of human treatment of diseases are posing many challenges to the safety of human bioethics. Medical science and technology, if applied to clinical medicine, are double-edged swords: they can certainly save people from impasse while teasing human ethics and dignity.63 Take organ transplantation for an example. Current medical research shows that the living brain cells of aborted fetuses in 10– 14 weeks of pregnancy can be used to treat brain degenerative diseases, such as the famous Alzheimer’s disease and Parkinson’s disease64 and that pancreatic cells of future embryos can also be used to treat several types of diabetes. As the source of embryonic tissue is richer than that of other human organs, a growing number of people deliberately conceive and

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terminate pregnancy in order to obtain appropriate embryonic tissue and other organs. In the above situation, parents don’t make decisions on behalf of the embryo for the interests of the embryo but probably for the interests of the parents themselves or others.65,66,67 Such decisions may damage the rights and interests of the embryo to a certain extent. Some parents wish to give birth to perfect babies without diseased genes by completely transforming their babies’ genes. To a considerable extent, parents who intend to birth to give birth to perfect babies are quite different from those who try to treat the genetic diseases that embryos may suffer from through therapeutic genetic modification. The feasibility and scientificity of this complete genetic modification can be ignored for the time being. Even if this technology is effective, this behavior may also lead to ethical disputes.68 In this case, the decision made by parents may be beneficial to the interests of them and the embryo and bring professional honor to doctors for the challenge to the unknown field, but may pose challenges to the whole human society. New science and technology bring not only convenience to human medical treatment, but also new challenges to traditional notification to patients by medical institutions. The traditional legal relationship arising from the doctor’s notification to the patient and the patient’s self-determination emphasizes the decision made by both the doctor and patient, which a contractual legal relationship between equal subjects. The notification by medical institutions and the self-determination by patients are similar to the offer and acceptance in contract signing. However, in the traditional legal relationship arising from the doctor’s notification to the patient and the patient’s self-determination, there are some specific occasions on which a third party is introduced to judge whether a medical behavior is rational. Third-party institutions are specially established in some countries,69 and are replaced by the ethics committee in other countries.70 However, no matter what kind of third-party institution there is, overall, the establishment and existence of third-party institutions is, to some extent, a significant change in traditional medical institutions’ obligation of notification, and the past legal relationship between two sides is likely to evolve into a multi-party legal relationship. However, it should be noted that not every medical behavior needs the introduction of a thirdparty organization. Only when there is major medical behavior that may lead to ethical disputes can a third-party organization be introduced. Since there is institutional and personnel basis for ethics committee in China,

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this book believes that under the current system in China, it is more suitable for the ethics committee to act as a supplement to the notification by medical institutions. 6.4.3

Independence of the Ethics Committee

The Regulations Committee of the Medical Ethics Society under the Chinese Medical Association issued the Organizational Rules of the Hospital Ethics Committee and the General Principles of the Hospital Ethics Committee in 1990 and 1994. The provisions on establishment and operation of the ethics committee in Chinese laws are mainly reflected in administrative regulations and rules, such as the Code for the Administration of Clinical Trials of Drugs (1998), the Ministry of Health Notice of Revising the Technical Specifications, Basic Standards and Ethical Principles Related to Human Assisted Reproductive Technology and Human Sperm Bank (formulated in 2001 and revised in 2003), the Measures for Ethical Review of Biomedical Research Involving People (Trial) (2007), the Regulations on Human Organ Transplantation (2007), and the Principles for Guiding Ethical Review of Drug Clinical Trials (2010). The operation and composition of the hospital ethics committee as well as its decision-making is independent without being restricted by politics, system, specialty and market.71 6.4.4

The Influence of Ethical Review on Women’s Right to Reproductive Self-Determination

“Autonomy of will of the person concerned under strict approval” means that important rights and interests, when regulated, still need to be strictly reviewed by the law, although the person concerned gives consent.72 In order to better protect women’s best interests, it is necessary for the ethics committee to review and restrict women’s self-determination and medical behavior of medical institutions. This in turn blights the effective realization of women’s independent decision-making. 1. Strict approval of women’s self-determination Women have a good knowledge of the risks brought by the medical technology, and there is no need to be further informed. Medical institutions have no more difficulties in explaining the medical technology to patients.

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However, they cannot simply make a positive or negative conclusion technically on this type of medical decision, which needs to be evaluated and discussed by the ethics committee. That is because such medical decision may lead to disputes over the protection of rights and the change of the overall value order of society. A typical example is the use of stem cells of umbilical cord blood, bone marrow and even organs of embryos born after appropriate embryos are implanted into the matrix to treat other people’s diseases through the genetic diagnosis of human embryos.73 The most important function of the ethics committee is to ensure women’s life, health and ethical safety in medical activities by strictly examining women’s self-determination in medicine, law and ethics. Doctors must obtain the consent of the ethics committee besides the consent of women before carrying out medical technology with strong ethical relevance.74 2. Strict approval of medical behavior of medical institutions The medical institution should go through the strict review by the ethics committee when implementing special medical activities such as life control technology, organ transplantation, gene technology and gender change.75 This is actually the application of the principle of public order and good customs in the medical field in the civil law. It is both a restriction on the autonomy of will of the person concerned and a balance of the value and interests of the whole society.76,77,78 In other words, the ethics committee must also reconfirm the effectiveness of the medical behavior as required by ethics after the medical institution has fulfilled the obligation to notify the patient and the woman patient has made an independent decision. In this regard, the state has not yet formulated a mandatory prohibitive norm, but the ethics committee can make a positive or negative conclusion based on the public order and good customs after discussion.79

Notes 1. Zhang Zanning: Doctors Have the Right to Refuse Treatment and the Right to Compulsory Treatment [J], Hospital Directors’ Forum, 2007 (4), p. 50. 2. Cai Fuchang and Jiang Jianxie: Ethical Issues of Emergency Medical Treatment for Public Health [J], published in Journal of Taiwan Medicine, 2009, 13 (01), p. 71.

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3. Lei Juan: Research on the Legal Relationship in Compulsory Medical Treatment [D], published by Suzhou University, Suzhou, 2015, p. 31. 4. For detailed provisions and types of laws and administrative regulations on compulsory medical treatment, please refer to Lei Juan: Research on the Legal Relationship in Compulsory Medical Treatment [D], published by Suzhou University, Suzhou, 2015, pp. 35–47. 5. Some scholars have combed in detail the provisions of local laws and regulations and local government regulations on compulsory medical treatment. Yao Lixia: Improve the Procedure of Compulsory Treatment of Mental Patients through Legislation [J], Law review, 2012 (2), pp. 127–135. 6. Cai Xiaowei: Research on the Compulsory Legal Relationship between Doctor-Patient [J], published in the Journal of Zhejiang University (Humanities and Social Sciences Edition), 2005 (2), pp. 140–147. 7. Ni Run: Refinement of the Mechanism of Evaluating “Risks to Society” in Compulsory Medical Procedure [J], published in Law Science, 2012 (11), pp. 89–99. 8. Wu Tao: Jurisprudential Analysis of Medical Compulsory Treatment [D], published by Suzhou University, Suzhou, 2009, pp. 6–8. 9. Lei Juan: Research on the Legal Relationship in Compulsory Medical Treatment [D], published by Suzhou University, Suzhou, 2015, p. 27. 10. Lei Juan: Research on the Legal Relationship in Compulsory Medical Treatment [D], published by Suzhou University, Suzhou, 2015, p. 161. 11. Yao Lixia: Improve the Procedure of Compulsory Treatment of Patients with Mental Disorders through Legislation [J], Law Review, 2012 (2), pp. 131–132. 12. Zhang Jing: On the Right to Informed Consent of Patients with Mental Disorders from the Perspective of Mental Health Law [J], China Health Law, 2013 (5), pp. 35–39. 13. Lei Juan: Research on the Legal Relationship in Compulsory Medical Treatment [D], published by Suzhou University, Suzhou, 2015, pp. 29– 30. 14. Yang Dan: Research on Medical Criminal Law [M], published by China Renmin University Press, Beijing, 2010, p. 196. 15. Ding Chunyan: On the Exemption of Informed Consent [J], published in China Health Law, 2008 (3), p. 36. 16. Jiang Yi, Chen Junguo and Chen Hua: Rights and Obligations of Patients Receiving Compulsory Treatment [J], published in Hospital Management Forum, 2011 (2), p. 54. 17. See ➀ p. 31. 18. Qiao Rong: On the Conflict between Protective Medical Measures and Informed Consent and Its Countermeasures [J], published in Medicine and Jurisprudence, 2010 (2).

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19. Han Bing: On Medical Privilege in Anglo American Tort Law [J], published in Shandong Social Sciences, 2011 (12), p. 76. 20. Paragraph 1 of Article 26 of the Law for Licensing Medical Practitioners: Doctors should truthfully introduce the condition to patients or their families, but should avoid adverse consequences for them. 21. Article 11 of the Regulations on the Handling of Medical Malpractice: In medical activities, medical institutions and their medical personnel shall truthfully notify patients of their condition, medical measures and risks, and answer their inquiries in time, but should avoid adverse consequences for them. 22. Article 62 of the Detailed Rules for the Implementation of the Regulations on the Administration of Medical Institutions: If it is not appropriate to explain the situation to patients due to protective medical measures, their family members shall be informed of the relevant situation. 23. Article 55 of the Tort Liability Law: Medical personnel shall explain the condition and medical measures to patients in diagnosis and treatment. If surgery, special examination and treatment are needed, the medical staff shall explain the medical risks and alternative medical schemes to patients in time and obtain their written consent. If it is not appropriate to explain to patients, the medical staff shall explain to their close relatives and obtain their written consent. 24. Sun Hongyan: On the Right to Informed Consent of Terminally Ill Patients [A]//Proceedings of the Fifth Annual Academic Meeting of Shandong Medical Ethics Society [C], Shandong Medical Ethics Society, 2006, p. 6. 25. Cai Yu and Bai Ming: On the Holistic, Pluralistic and Harmonious New Vision of Medical Humanities [J], published in Theory and Modernization, 2009 (3), pp. 85–89. 26. Su Yinli and Li Lezhi: Research Progress on the Attitudes of Different Roles of Doctors and Patients towards Patients’ Right to Informed Consent [J], Medicine and Philosophy (Humanities and Social Medicine Edition), 2008 (3), p. 29. 27. Zhao Xiju: Comments on the Provisions on the Informed Consent in China’s Tort Liability Law [J], published in China Health Law, 2010 (3), p. 51. 28. DUCK F A: Medical and non–medical protection standards for ultrasound and infrasound [J]. Progress in biophysics and molecular biology, 2007, 93 (1): 176–191. 29. WAXMAN D A, GREENBERG M D, RIDGEL Y M S, et al. The effect of malpractice reform on emergency department care [J]. New England journal of medicine, 2014, 371 (6): 1518–1525. 30. FREEDMAN B. Offering truth: one ethical approach to the uninformed cancer patient [J]. Archives of internal medicine, 1993, 153 (5): 572–576.

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31. HOCKTON A. The law of consent to medical treatment [M]. Sweet & Maxwell, 2002: 9. 32. Yang Dan: Research on Medical Criminal Law [M], published by China Renmin University Press, Beijing, 2010, p. 83. 33. Article 21 of the Law of Medical Practitioners in Taiwan stipulates that doctors should not be recruited or delay treatment without reason for emergency patients. Paragraph 1 of Article 19 of the Law of Medical Practitioners in Japan stipulates that doctors engaged in diagnosis and treatment shall not without justified reasons refuse the request for diagnosis and treatment that exist. 34. See ➀. 35. Huang Dingquan: New Theory of Medical Law [M], Law Press, Beijing, 2013, p. 197. 36. Guo Ming: On the Compulsory Obligation of medical institutions to Contract with Critical Patients [J], Journal of Dalian Maritime University (Social Science Edition), 2010 (3), p. 79. 37. Article 56 of the Tort Liability Law: If the opinions of the critically ill patient or his close relatives cannot be obtained because he is being rescued, corresponding medical measures can be implemented immediately with the approval of the person in charge of the medical institution or the authorized person in charge. 38. Article 24 of the Law for Licensing Medical Practitioners: Doctors should take emergency measures to treat critical patients, and should not refuse emergency disposal. 39. Article 31 of the Regulations on the Administration of Medical Institutions: Medical institutions shall immediately rescue critically ill patients, and refer in time patients who cannot be diagnosed and treated due to limited equipment or medical technology. 40. Gong Saihong and Dong Junxia: On Restrictions on Patients’ Right to Informed Consent—Starting from the Core Concept of the Protection of Patients’ Right to Informed Consent [J], Journal of Graduate School of Chinese Academy of Social Sciences, 2009 (5), p. 65. 41. Yang Xiuyi: On Patient Autonomy—Discussion on the Basis of the Claim for Informed Consent in Taiwan Law [J], National Taiwan University Law Journal, Vol. 36, issue 2, p. 10. 42. Cai Yu: On Restrictions on Patients’ Right to Self–Determination [J], published in Medicine and Philosophy (Humanities and Social Medicine Edition), 2010 (3), pp. 41–43. 43. Chen Huihui: Research on the Current Situation of Legal Regulation of “Medical Informed Consent” in China—After the Promulgation of Tort Liability Law [A]//Proceedings of Tsinghua International Academic Conference on Medical Management [C], School of Economics and

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44. 45. 46.

47. 48. 49.

50. 51.

52.

53.

54.

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Management, Tsinghua University, School of Medicine, Tsinghua University, Beijing, 2011, p. 460. Yang Dan: Research on Medical Criminal Law [M], published by China Renmin University Press, Beijing, 2010, p. 84. Jin Xuanqing: Doctors’ Obligation of Notification and Patients’ Right to Informed Consent in Korea [J], published in The Jurist, 2011 (3), p. 162. Wang Huangyu: Doctor’s Obligation of Explanations and Exemption from the Obligation of Explanations [J], published in Ft Law Review, 2012 (12), p. 31. Wang Huangyu: On medical Behavior and Proper Business Behavior [J], published in National Taiwan University Law Journal, 2007 (6). Xia Yun: Law of Medical Malpractice Compensation—Enlightenment from Japanese Law [M], Law Press, Beijing, 2007, p. 525. For the research on the charges constituted by the inaction of medical institutions under the obligation of emergency treatment, please refer to Research on Medical Criminal Law by Yang Dan [J], China Renmin University Press, Beijing, 2010, pp. 82–89. Yang Dan: Research on Medical Criminal Law [M], published by China Renmin University Press, Beijing, 2010, p. 87. For a detailed discussion of the case, please refer to Informed Consent and Illegality of Patients—Also on Consulting Professor Liang Genlin by Feng Jun [J], published in Law Science, 2015 (8), pp. 108–125. For example, a 22-year-old female, unmarried, suffered from lower abdominal pain after abortion operation. Before operation she was diagnosed with hydrosalpinx, so she agreed to have the affected fallopian tube removed. However, during the operation, both fallopian tubes were found apostematic and the patient, in general anesthesia, could not sign the operation consent form. If the medical institution first removed the fallopian tube she had agreed to, sutured the wound and waited until the anesthesia was eliminated for her decision on other operation, it was not in the best interests of her health. The medical decision to remove the fallopian tube had a significant impact on her future fertility. Although the patient had full capacity of civil conduct, the medical institution could determine in a specific medical condition that she had no capacity of self-determination, and her close relatives could make decisions on his behalf. A pregnant woman in the obstetrics department of a hospital suffered from prolonged second stage of labor and fetal distress during delivery. However, her husband and mother-in-law refused to sign the consent form for cesarean section in order to have the child born on the selected auspicious day. Dieter Medicus: General Theory of German Civil Law [M], Translated by Shao Jiandong, Law Press, Beijing, 2000, p. 512.

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55. Chen Ziqiang: Lecture Notes on Civil Law I Establishment and Effectiveness of Contract [M], Law Press, Beijing, 2002, p. 150. 56. Zhao Wanyi: Civil Law Interpretation of Public Order and Good Customs [M], Law Press, Beijing, 2007, p. 218. 57. See ➂ p. 10. 58. Article 7 of the General Principles of the Civil Law stipulates that in civil activities people shall respect social morality and shall not harm public interests, undermine economic plans of the state or disrupt social and economic order. 59. Liang Huixing: Market Economy and the Principle of Public Order and Good Customs//Liang Huixing: Essays on Civil and Commercial Law, Volume 1 [M] Law Press, Beijing, 1994, p. 55. 60. Jiao Fumin: On Public Order and Good Customs [J], published in Jianghai Academic Journal, 2003 (4), p. 131. 61. Chen Huabin: Principles of Property Law [M], published by National Academy of Governance Press, Beijing, 1998, p. 222. 62. Wang Yi: The Substantive Rules for the Demonstration of Civil Law Value Judgment—Based on the Academic Practice of Chinese Civil Law [J], Social Sciences in China, 2004 (6), p. 113. 63. Cai Yu: On Restrictions on Patients’ Right to Self-Determination [J], published in Medicine and Philosophy (Humanities and Social Medicine Edition), 2010 (3), pp. 41–43. 64. Zhu Lijun: Discussion on the Rules for Utilizing the Tissue of Aborted Fetus in Organ Transplantation [J], published in Medicine and Philosophy (Humanities and Social Medicine Edition), 2011 (12), p. 24. 65. Adam, the world’s first life-saving baby, was born in the United States on August 9, 2000. In order to save his 6-year-old sister Molly who suffered from congenital immune system diseases, his parents designed Adam through PGD technology. Finally, the doctor found stem cells matched with Molly’s tissue in Adam’s umbilical cord blood, and finally restored his sister’s hematopoietic and immune system to normal. 66. In May 2013, a hospital in Guangzhou performed hematopoietic stem cell transplantation for a 4-year-old girl with thalassemia. The organization came from a screened baby specially born by her parents to treat the girl’s disease. Su Junjie: A Baby Born to Save Life http://news.qq.com/zt2 012/living/xiaojie.htm. 67. The Bioethics Act of France issued in 2004 and the decree implemented in 2006 allow this practice. In France a life-saving baby was born in 2011. The PGD implemented twice not only ensured that he wouldn’t carry the pathogenic gene of Mediterranean anemia suffered by his siblings, but also enabled the umbilical cord blood extracted after his birth to be transplanted to his sick siblings. The Birth of the First Drug Baby

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69.

70.

71.

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in France Will Help Treat His Brother and Sister [N], European Times, February 9, 2011. On January 9, 2009, the first British baby girl that underwent genetic screening at the embryonic stage to ensure that the embryo wouldn’t have cancer genes was born in London. She was called by the British media cancer-free baby. As the baby girl’s father and mother’s family members suffered from breast or ovarian cancer for several generations, her patients decided to carry out genetic screening in order to avoid inheritance. Dissenting ethics experts believe that this behavior actually prohibits the birth of anyone who may have breast cancer. In addition, if such technologies continue to develop, it is difficult to ensure that aspiring parents will not further require the selection of embryos with the best gene combination, so that rich parents can produce better, healthier and longer-lived offspring than ordinary people. The Birth of Britain’s First “Cancer-Free Baby” Triggered Ethical Controversy [J], published in Law and Life, 2009, issue 2 (II), p. 61. Britain defines the application of human assisted reproductive technology as something franchised. In the famous Hashmi case in Britain, Zain, the Hashmi couple’s fourth child, was born with severe Mediterranean anaemia. Zain could be cured by tissue matched stem cell transplantation. The Hashmi couple wanted to have another child to treat Zain, so they applied to the British approval authority HFEA. On February 22, 2002, HFEA agreed with the Hashmi couple for corresponding treatment. But Jose-phine Quintavalle filed a lawsuit on behalf of the Comment on Reproductive Ethics (CORE), whose basic belief is absolute respect for human embryos, requiring the court to review the above decision made by HFEA. Finally, the House of Lords confirmed the validity of the decision made by HFEA. Wang Liqing: Research on the Regulation of “Designed Baby”—Based on the Comparative Analysis of That in Britain and the United States [J], Guangdong Social Sciences, 2015 (1), p. 247. Take the provisions of China’s Ethical Principles for the Implementation of Human Assisted Reproductive Technology (2001) (issued by the Ministry of Health, WeiKeJiao) as an example. The Ethics Committee of Reproductive Medicine supervises the whole process and relevant research of human assisted reproductive technology, carries out the publicity and education of reproductive medicine ethics and provides reviews, advice, demonstrations and suggestions on the ethical problems encountered in the implementation. The ethics committee should safeguard patients who participate in artificial reproductive assisted technology as well as the dignity and rights of subjects and ensure that the study won’t expose subjects to unreasonable risks. Chen Yuanfang and Qiu Renzong: Ethics on Biomedical Research [M], published by Union Medical College Press, Beijing, 2003, pp. 166–167.

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72. Cai Yu: On Restrictions on Patients’ Right to Self-Determination [J], published in Medicine and Philosophy (Humanities and Social Medicine Edition), 2010 (3), pp. 41–43. 73. Wang Liqing: Research on the Regulation of “Designed Baby”—Based on the Comparative Analysis of That in Britain and the United States [J], Guangdong Social Sciences, 2015 (1), p. 254. 74. Article 6 of the Measures for the Administration of Human Assisted Reproductive Technology, issued and implemented by the Ministry of Health in 2001, stipulates that medical institutions applying for human assisted reproductive technology shall establish a medical ethics committee. Article 14 hereof stipulates that when implementing human assisted reproductive technology, medical institutions shall follow the principle of informed consent and require patients to sign the informed consent form. If ethical issues are involved, they shall be submitted to the medical ethics committee for discussion. 75. Cai Yu and Gu Jinxian: On the Role of the Hospital Ethics Committee in Patients’ Decision-Making [J], published in Medicine and Philosophy (clinical decision-making forum edition), 2008 (11), pp. 71–73. 76. For example, the “code of conduct for technicians” established in the technical specification of artificial insemination stipulated in the Technical Specification of Human Assisted Reproduction includes (1) the population and family planning laws and regulations issued by the state shall be strictly observed… (4) gender selection without medical indications is prohibited; (5) surrogacy technology is prohibited; (6) embryo donation is prohibited; (7) the implementation of human oocyte cytoplasm transplantation and nuclear transfer to treat infertility is prohibited; (8) hybridization between human gametes and heterogamete is prohibited; the transfer of heterogametes, zygotes and embryos into human bodies is prohibited; the transfer of human gametes, zygotes and embryos into xenogeneic bodies is prohibited; (9) gene manipulation of human gametes, zygotes and embryos for reproductive purposes is prohibited; (10) the combination of sperms and eggs between close relatives is prohibited… (13) the implementation of human assisted reproductive technology to couples and single women who are not qualified for human assisted reproduction in accordance with the provisions of the population and family planning laws and regulations issue by the state; (14) experimental research on human chimeric embryos is prohibited; (15) human cloning is prohibited. 77. Doris and John in America sought the implementation of external fertilization at Columbia University Presbyterian Hospital because of infertility. This was the first in vitro fertilization trial in the world. But in September 1973, Van der Ville, the hospital’s administrator, destroyed the fertilized eggs on the grounds that the procedure was immoral. In 1974, the couple sued for damages of $1.5 million on the grounds that the hospital

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deprived them of their last chance to have children. In August 1978, the jury awarded Doris $50000 and John $3 as damages. 78. Xijing Hospital of the Air Force Medical University successfully transferred the uterus of a mother in Shaanxi Province into her daughter’s body. At present, the patient has recovered and the newly transplanted uterus has survived. The successful operation of the first human uterine transplantation in China marks a breakthrough in this field. Yang Hua (a pseudonym), aged 22, majored in nursing in a university in Xi’an. She had never had a menstruation. In 2013, she went to the Obstetrics and Gynecology Department of Xijing Hospital and the B-ultrasound showed that she had congenital absence of uterus and vagina. Yang Hua wanted to have her own child, but at that time, the only feasible way was to have a uterus transfer (surrogacy is illegal in many countries, including China). The operation was approved by the hospital ethics committee before uterine transplantation. According to Liu Liang, assistant of the medical department of Xijing Hospital, first of all, there was no interest dispute between the supplier and the recipient who are mother and daughter; secondly, the donor and recipient were completely voluntary and actively required surgery. In addition, the donor only provided a platform for life, and the pregnancy and childbirth of the recipient resulted from the gene of her husband and her. For the above reasons, the hospital ethics committee approved the operation. Alina and Tian Jin: China’s First Human Uterine Transplantation: Mother’s Uterus Successfully Transferred To Daughter [N], https://www.chinanews.com.cn/, November 26, 2015. 79. Medical ethics expert Arther Caplan said in the research report, “A woman asked to use her father’s sperm for artificial insemination, so that the fetal tissue cells obtained by this genetic method can be used to treat his father’s Alzheimer’s disease. Whether such medical behavior can be implemented needs to be judged by the ethics committee.”

CHAPTER 7

Restrictions on Women’s Right to Reproductive Self-Determination to Protect Personality Interests of Embryos

7.1

Personality Interests of Embryos 7.1.1

Types of Embryos

Embryo generally refers to the life form formed after fertilization of sperm and egg. The life form is called embryo from the fertilization to 8 weeks in medicine, and fetus after 8 weeks of fertilization because its organs begin to develop and gradually takes the shape of a human being. However, embryo and fetus are at different stages of the continuous development of the same life form, and there is no obvious distinction between the two in terms of actual provisions of rights and interests. Therefore, this book does not strictly distinguish them in terms, both of which generally refer to the life form that continuously develops from a single cell after the formation of a fertilized egg to the mature form born. Embryos appear on four different occasions in China’s legal system. The first type of embryo usually refers to those already in the matrix to develop into a human being in the future. The second type refers to those that are usually produced through in vitro fertilization and have not been implanted into the womb to develop into a human being in the future. The specification of this type of embryo can be found in the Specification of Artificial Assisted Reproduction Technology, etc. The third type refers

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 W. Jiang, Women’s Right to Reproductive Self-Determination from the Perspective of Civil Law, https://doi.org/10.1007/978-981-19-2790-4_7

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to those that are not in the matrix but exist only to develop into a therapeutic organ rather than a human being in the future. The specification of this type of embryo can be found in the Measures for the Administration of Stem Cell Clinical Research (Trial Implementation), etc. The fourth type refers to those that are already in the matrix to develop into a human, but may be forced to be aborted due to genetic defects and other factors inappropriate to reproduction. As the first and fourth types of embryos are in the mother’s womb, it is impossible not to consider the mother’s will of reproduction and autonomy of reproduction whether the embryo should be protected or not or to what extent the embryo should be protected. As the second and the third types of embryos do not exist in the mother’s womb, we can simply consider the value of the embryo itself, and there may be different results in value measurement from those of the other two types. This book holds that the key to whether and to what extent the embryo should be protected is not whether the embryo is alive, but whether the embryo exists inside or outside the matrix. Only when the embryo is in the mother’s uterus can it be highly protected. The embryo that has not been implanted is protected more weakly, because the former is more likely to become human. To discuss the protection of personality interests of embryos in the context of women’s right to reproductive self-determination, we need to solve the following core problems: First, since China’s current civil legal system is based on the ability to have rights, how should that embryos without the ability to have rights enjoy personality interests be recognized? Second, how should the specific types of personality interests enjoyed by embryos be judged and identified? Third, how should the disputes in each key link of embryo formation and development be clarified and solved is a core point because with the development of science and technology, there may be conflicts between the right to reproductive self-determination and the protection of embryo personality interests in every link of embryo formation and development; moreover, with the development of embryos, the conflict between the two can not be solved once and for all with a fixed standard.

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Personality Interests of Embryos

Capacity for Civil Rights and Personality Interests of Embryos Article 9 of China’s General Principles of the Civil Law stipulates that citizens have the capacity for civil rights from birth to death, enjoy the capacity for civil rights and bear civil obligations according to law. Following the legislative spirit of the General Principles of the Civil Law on the capacity for civil rights, the General Rules of the Civil Law stipulates in Article 13 that natural persons have the capacity for civil rights from birth to death, enjoy the capacity for civil rights and bear civil obligations according to law. Therefore, the general theory of China’s civil law holds that the owner of capacity for civil rights is a natural person in the legal sense that has the capacity for civil rights from birth rather than the fetus that is not a person or the subject of civil rights in the legal sense because it has not yet been born.1 This view is also called absolutism by some scholars, who hold that in no way shall the fetus have the capacity for civil rights.2 In comparative law, the views on the protection of fetus can be roughly divided into blanket protectionism and individual protectionism. Blanket protectionism, which comes from Roman law, holds that the fetus has the same capacity for civil rights as the baby as long as it is alive at birth. This view from Roman law is also advocated in Switzerland, Argentina and other countries. Individual protectionism, adopted in the civil laws of Germany, France and Japan, stipulates that the fetus has no capacity for civil rights in principle, except in some exceptional cases. Capacity for civil rights was first established in Article 1 Capacity for Civil Rights in the Civil Code of Germany, which stipulates that capacity for civil rights begins at birth. Paragraph 5, Article 55 of the Civil Code of Switzerland stipulates that everyone has the capacity for rights. Paragraph 2 hereof stipulates that everyone has equal capacity for rights and conduct within the law. The capacity for civil rights universally endowed to civil subjects means the evolution of human beings from ignorance to rationality and embodies equality in the form of civil justice. There is a view that the capacity for civil rights and personality are the same concept, and that the capacity for rights, another name of personality, refers to the qualification to enjoy rights and bear obligations.3 Some scholars have summarized more than ten expressions of the legal meaning of personality, the most abstract concept in law.4 Some other scholars have concluded three different connotations of personality in concept: First, personality refers to civil subjects with independent legal status, and can

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be replaced by persons and subjects because they have the same meaning. Second, personality is equal to the capacity for civil rights. Third, the object of personality right is personality interest.5 However, it is generally believed that personality is not equal to the capacity for civil rights. The former is the qualification or the condition for becoming a civil subject. The latter refers to the qualification to enjoy civil rights and bear civil liability, meaning what rights that civil subjects can enjoy.6 Natural persons presupposed in traditional civil law refer to those living from birth to death. In the concept of rational law, persons can only be natural persons who have living flesh after birth and before death.7 Although modern law endows natural persons with the inevitable capacity for rights, it is not the capacity for rights, but the dignity, freedom, integrity and other personality elements of natural persons, that makes them human.8 Therefore, the essence of natural persons is personality, not the capacity for rights. The system of the capacity for rights, only the ability to become the carrier of rights and obligations, the formal connotation of human beings, doesn’t mean the whole system of human law. Therefore, it is impossible to draw the conclusion that there is neither the existence of a person nor personality interest worthy of protection due to the lack of the capacity for rights. On the contrary, a person has personality rights and interests as long as he exists from cell to death, during which, his personality rights and interests should be protected. Ideas on the logical relationship between embryonic personality interest protection and the system of the capacity for civil rights include the view of partial capacity for rights9,10 the view of natural capacity for rights,11 and the view of separation of personality interests from the capacity for rights.12,13 Although there are differences between the first two views in what rights civil subjects can enjoy, in essence, both believe that human capacity for rights begins with conception and at least they define that the fetus has capacity for rights. The third view provides a shortcut to understanding for the academic circles at least logically. As Karl Larenz said, when human life begins and when it can be protected by law are questions that have nothing to do with when people have the capacity for rights.14 When defining the capacity for rights, the Civil Code of Germany specifies its starting point as birth, which is more in line with legislative technology. The denial of the status of the fetus as the civil subject does not mean the obliteration of the interests of life. In fact, the German court introduced the concept of legal interests of life in the judicial precedence on fetal protection. The legal interest of life, which is part

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of the expression of human nature and what is created by nature, exists prior to the law. What is expressed by life is the essence of biological self which obtains its content. Anyone has the right to legal interests of life, which shall not be impaired or hindered. Any obstruction or deprivation of the natural growth of human constitutes an infringement on the legal interests of life.15 Although the law does not recognize the fetus’ capacity for civil rights, this kind of legal interests of life, is enjoyed by natural persons at the fetal stage, and when human life begins and when it can be protected by law are questions that have nothing to do with and can’t be confused with the question when a person can enjoy the capacity for civil rights as an independent individual.16 The civil laws of various countries and relevant regions generally recognize that the life, health and other personality interests of the fetus should be protected by law although it is not born.17 Scholars represented by Professor Yang Lixin proposed the theory of extended protection of personality rights, in accordance with which the object of extended protection of personality rights is personality interests rather than rights themselves. When the civil subject has not been born, the subject of rights does not exist. However, as the unborn civil subject has some potential to become life, the early personality interests related to personality rights exist objectively. China’s civil legislation recognizes that citizens’ capacity for civil rights starts at birth and ends at death and that the object of extended protection of personality rights is personality interests rather than rights themselves. For the fetus, the object of the extended protection by law is the personality interests of the fetus.18 Lifted out of the shackles of the capacity for rights in traditional civil law, the theory of extended protection of personal rights takes legal interests as the basis for the fetus to be protected by law. This lays a theoretical foundation for the comprehensive protection of fetal interests and ensures the integrity and extension of personality of fetus so that the personality of fetus before birth is the same as that after birth.19 Embryos Have Some Personality Elements Different from human beings, embryos cannot be protected like natural persons, because the legal view, consistent with the view of ethics, on status of embryos, holds that embryos are not human beings in strict sense and do not enjoy the right to life.20 On the distinction between man and things, Kant said, “Man is the subject who has the ability to bear actions

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imposed on him. Therefore, the moral personality is nothing else but the freedom enjoyed by a rational man constrained by moral laws.” “Things” refer to those that cannot act as the subject of responsibilities. They are called “things” as they are the object of free will and have no freedom themselves.21 Embryos can only be regarded as biological life forms that cannot enjoy the legal status of the subject of rights as they have no self-consciousness.22 they are potential natural persons with only signs of life, who cannot enjoy the same legal protection as natural persons.23,24 However, because they have the potential to develop into human, embryos are not simple things in civil law but transitional forms that should be respected.25 The status of embryos in civil law is more complex than that of things, and they are also different from special things such as blood, sperm and eggs. As a stage of human life cycle, embryos should be respected and protected. Therefore, considering that embryos cannot be defined as human, but their important legal interests are not fit to be materialized,26 we should give embryos, with a neutral legal status, different degrees of legal protection according to the actual needs by measuring the different legal interests in conflicts at their different development stages. In the past, embryos were regarded as a part of the mother’s body, without personality elements and personality interests. It was not until the mid-nineteenth century that people began to recognize the independent existence of embryos, and life began at conception. Later, as science and technology progress, research on the bioethics and legal status of embryos has begun to think that human embryos have personality interests such as life, body and health in the sense of natural law as they have the potential to develop into human beings. Medical research shows that the heart of the conceived embryo begins to grow on the 21st day. The fetal brain begins to develop on the 21st day and takes shape at the end of the third month. As early as the end of the third month of pregnancy, all fetal organs are basically formed. The fetus begins breathing in the last month of pregnancy, so the life activities of the newborn after leaving the uterus are basically carried out in the uterus.27 In the long process of a natural person’s growth, development and death, his personality also experiences a process from nothing to continuous development and gradual decline. It does not exist only between birth and death. In Germany, human status is recognized at the time of

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the implantation of a fertilized egg.28 On the 14th day after the development of the conceived embryo, the fetus begins to have the basic personality elements of life, body and health. After birth, the baby’s personality elements will continue to increase, and become personality rights because the baby has the capacity for civil rights. In the fetal stage, natural persons have only material personality elements such as life, body and health as they do not have the capacity for will and cannot develop their personality through their own will. The basic material personality elements, such as life, body and health, are the basis of human existence, so the fetus has some personality elements. Personality Interests Enjoyed by Embryos There are several basic principles for the protection of the personality interests of embryos: First, the protection of personality interests before birth expands the time span of the protection of human personality interests, but there are fewer types of personality interests of the unborn that can be protected than those of the born because the personality interest of the unborn protected is the person in the process of formation.29 Second, because they do not have complete intelligence and psychology and cannot enjoy personality interests related to people’s spiritual and inner world, the unborn mainly enjoy material personality interests such as body, health and life.30 In addition, embryos cannot enjoy such personality interests as the freedom of self-determination based on the capacity for autonomy of will. Relevant scholars also advanced uncertain views on whether embryos enjoy early reputation interests.31 Third, modern science and technology show that after conception, there is the possibility of infringement on the embryo other than termination of pregnancy. In addition, the damage to the fertilized egg before conception may lead to the dysplasia or deformity of the embryo. To fully protect the interests of embryos, such infringement before conception should also be taken seriously and included in the law. Fourth, embryos don’t have complete personality or have any personality, but have quasi personality.32 They don’t enjoy civil rights completely equal to those of natural persons, but the right to expect rights.

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To sum up, this book holds that embryos mainly have material personality interests, including but not limited to the following personality interests: 1. Life interests Interest. Human life is the highest personality interest which has the supreme personality value.33 As life is the basis of human existence, the fetus, as a stage of human growth, naturally enjoys the legal benefits of life. The right to life is one that a person must enjoy as a human partner.34 Undeniably, the fetus is a form of life objectively, which is also protected by law as it is an early life interest but not the object of the right to life. We must recognize the differences between fetal life, reflected by the interest of life, and human life, reflected by the right to life. That is because fetal life is not a mature life form, but an early life form.35 In terms of the protection of the legal interests of life, some scholars hold that the legal interests of life exist before the law and are a part of human nature and the creation of nature. Therefore, any nuisance and hindrance to the right to the legal interest of life is prohibited. The nuisance and hindrance to the natural growth of human by anyone constitutes an infringement of the legal interest of life. The infringement on the fetus in the matrix means that its internal life process is hindered and does not obtain the health of the living organism given by the creation of nature.36 As an organism, the fetus has legal interests of human life in the uterus, which are both the most fundamental personality interests of the fetus and the basic personality interests of human. 2. Physical interest. The right to body refers to the right to keep the body complete. Damage to the complete body constitutes an infringement of the right to body.37 According to Professor Liang Huixing, body is the carrier of life and health. Without body, there would be no life or health, and an inanimate body is a corpse. Body, life and health are the most fundamental interests of natural persons and the foundation for human beings as the subject of law.38 The damage to bodily organs before birth continues to exist after birth because the organs are incomplete or scrapped. This means that the health of these babies is damaged before birth.39 The traditional view is that the infringement on the physical interests of embryos is mainly indirect. That is, when the infringer’s infringement acts on the mother with an embryo in her uterus, the perfection of the

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physical function of the embryo is impaired.40 However, as surgical technology progresses, the current surgical operation can directly act on the embryo—a direct infringement on the physical interests of the embryo. 3. Health interest. The right to health refers to the personality right of natural persons about the interests of human life activities such as the normal and perfect operation of their physiological functions. The health interests of embryos refer to the right to normal development of physiological functions during pregnancy.41 Pregnancy is full of danger because both pregnant women and embryos are vulnerable to external harm during pregnancy. In judicial practice, the most common is the direct or indirect infringement on the health interests of embryos caused by traffic accidents and medical accidents.42 Just for the sake of natural justice, a baby born alive should have the right to sue for the harm done to him by wrong behavior when it is in its mother’s womb43,44,45 4. Genetic benefits. Debates and studies vary on the legal status of human genes. It is generally believed that human genes are the complex of personality and property.46 In Chapter 4 (Examination of Human Genetic Characteristics and Identification of Human Beings through Genetic Characteristics) added to Part 1 (Civil Rights) of Volume 1 of the Civil Code of France, the right to gene is specifically stipulated.47 The right to gene, which is open and inclusive, includes the rights to gene equality, gene autonomy, gene privacy,48 gene disclosure and other sub rights.49 The right to gene is a new basic right, recognized by private law as a positive specific personality right. It is a personality right with both passive and active personality.50 Human genes, which have actually been endowed with invisible personality interests and reflect the spiritual value of the obligee, are the complex of personality rights and property rights.51 5. Informed interests. An embryo has the right to know its origin when it becomes a natural person after birth. The right to know the truth in the embryonic period is reflected by the informed interest of the embryo. The informed interest restricts the informed consent form signed by both parents and the medical institution, especially when it involves the right to know the origin of its blood relationship after birth.

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7.2 Personality Interests of Embryos and Women’s Right to Reproductive Self-Determination 7.2.1

The Life Interest of Embryos and Women’s Right to Reproductive Self-Determination

Before the twentieth century, the law of most countries prohibited termination of pregnancy as it deemed termination of pregnancy as a crime. However, it is absolutely banned in few countries due to the improved safety of pregnancy termination surgery, the promotion of the Western feminist movement, the rapid population growth in developing countries, and the impact of sexual crime and sexual liberation in Europe and America.52 In the United States, the Federal Supreme Court’s judgment on Roy v. Wade in 1973 confirmed the reasons for the legalized abortion. Subject to this judgment, women have the right to decide whether to continue pregnancy and be aborted according to their will, but this right is not absolute. The state government has the obligation to protect women’s health and the important rights and interests of the potential life in their bodies. Whether the interests of prenatal life have reached a considerable level depends on whether the embryo can survive outside the body. This is how the state government restricts women’s abortion.53 The Abortion Act 1967 issued by Britain stipulates that doctors must weigh up the risk of abortion and continuing pregnancy to pregnant women and children when pregnancy does not exceed 24 weeks. Only when the risk of the latter is greater than that of the former can abortion be performed. If pregnancy exceeds 24 weeks, abortion can be justified by only the risk of death of or serious permanent injury to the pregnant woman or the birth of a severely disabled child.54 Article 9 of Chapter 3 of the Eugenic Health Care Law in Taiwan specifies the termination of pregnancy, and gives a high degree of freedom to terminate pregnancy.55 Therefore, as for the coordination of the conflict of legal interests between embryos and women, policies of abortion vary from country to country in the world due to different birth policies, religious beliefs and social traditions. Therefore, the life interests of embryos may conflict with women’s right to reproductive self-determination, and the termination of pregnancy is to a great extent the result of balancing the interests of

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the unborn and those of the born.56 Women’s right to reproductive selfdetermination is not absolute because it has to give way to some objective social interests due to specific social policies. This book believes that there are several basic principles worth considering about the termination of pregnancy: First, a look at the regulations issued by countries in the world reveals that the regulations issued by most countries depend on the length of development of embryos in the mother’s womb. In general, the degree of restrictions on women’s right to reproductive self-determination is inversely proportional to the duration of development of embryos. Second, considering the health of embryonic development, countries generally respect women’s right to reproductive self-determination and allow them to decide independently to terminate pregnancy without impairing their own health. As demonstrated above, embryos with certain defects will bring after birth great pressure to their mothers and impede their mother’s work and life. Therefore, women’s right to reproductive self-determination should be respected. Therefore, in the clinical practice of prenatal diagnosis and intervention of embryonic malformations, medical institutions generally follow two ethical principles: priority of patients’ interests and respect for patients’ independent choices. Medical institutions should respect and seriously implement women’s decision to terminate pregnancy. If they choose to continue pregnancy, women should be informed of the situation they will face in the future, so that they can make arrangements for the future life of embryos.57 Third, there are disputes in various countries over whether women can request termination of pregnancy when embryos have developed for some time because pregnancy may affect their financial state and life. The judgment by the Supreme Court of the United States of the case of Roy v. Wade in 1973,58 argued that whether a pregnant woman should be aborted in the first six months of pregnancy is a matter of women’s right to private life. It is an individual’s basic right protected by the constitution from being deprived by any state like contraception, sex, marriage, reproduction and childbirth.59 In terms of the protection of women’s right to terminate pregnancy,

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the United States seeks to coordinate the life interest of embryos and women’s right to reproductive self-determination by setting a certain time limit.60 Loi Veil issued by France includes similar provisions that women pregnant within three months are allowed to be aborted and fetuses have life interests in the last six months.61 In some countries, medical termination of pregnancy is deemed to be legal only when the pregnant woman has particularly serious disease or the fetus cannot be regarded as a normal life.62 In general, termination of pregnancy is not allowed without authorization. The termination of pregnancy when the embryo has the viability conforms to the ethical principle in the following circumstances only: (1) Where the diagnosis of the embryonic disease is clear; (2) The diagnosed embryonic disease is bound to lead to embryonic death, or the pediatric patient will surely lack cognitive development although it can survive for a short time after birth. Brainless children are typical examples.63 In terms of abortion, life is of supreme value that needs universal respect. We cannot arbitrarily deprive a potential human fetus of its life. In addition, women’s right to reproductive self-determination also gives women the freedom to terminate pregnancy. Therefore, absolute laissez-faire or prohibition of termination of pregnancy is not worth advocating. This book holds that restrictions on the decision on abortion made by women in the middle and late stages of pregnancy (usually after 24 weeks in accordance with the ethical code issued by the Ethical Committee on Human Reproduction and Women’s Health of International Federation of Gynecology and Obstetrics)64 is a better way to balance the life interests of embryos and women’s right to reproductive self-determination. From the perspective of obstetrics, abortion in the early stage of pregnancy is safer than that in the middle and late stages. In addition, it does less harm to women, which is also a kind of protection for their health. An embryo in the middle and late stages is almost the same as a baby that has left the matrix because its physical function has been roughly formed. The prohibition of abortion at the two stages is a respect for human social ethics, because the embryo in the middle and late stages is usually deemed as a human. Abortion at the two stages means directly killing a person.

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Fourth, it is necessary to submit the decision made by women who want to terminate pregnancy for some special reasons to the Ethics Committee for review. As Antorin Scommenga, a famous transplant scientist, said with emotion, embryonic organs can bring a revolution not less important than the nuclear technology revolution in physics. Due to weak rejection, strong vitality, accessibility and other characteristics that other donors haven’t, embryo tissues have been widely used in clinical practice involving blood, brain, nerve and other fields, such as the treatment of Parkinson’s disease, diabetes, regenerative anemia and so on. Organ transplantation allows many incurable diseases to be treated so that the lives of some patients can be prolonged. At present, organ transplantation is in great demand in medicine. However, the bottleneck lies in the shortage of donor organs because the living rarely volunteer to donate organs, and the organs of the dead may not have medical value. Serious shortage of transplantable organs can be greatly alleviated by medical transplantation through removing embryonic organs.65 A growing number of people deliberately conceive and have abortions in order to get the right embryonic organs and tissues. For example, a woman asked for artificial insemination with her father’s sperm so that the embryonic tissues and cells obtained by this genetic technology could be used to treat her father’s Alzheimer’s disease. For another example, a woman with severe diabetes wanted to use the islet gland cells of the embryo from a miscarriage after pregnancy to treat her diabetes.66 How should the medical institution deal with the woman’s independent decision in this case? Considering the principle of treating embryos as patients in ethics or protecting embryonic personality interests in law, embryonic organ transplantation should be limited as much as possible, although embryonic organs are of great help to the treatment of human diseases. The reasons for the restriction are as follows: First, killing and dissecting the embryo is an abuse of the person who is about to form. Second, such behavior will make the actor inhuman. Third, the use of the embryo will encourage or even induce pregnant women to deliberately miscarry.67 It is uncertain whether the embryo is dead when dissected. In fact, the biggest ethical problem arising from the use of embryonic tissues is human dignity, namely, how to treat human life. As the embryo is a person without the capacity to express will, the embryo can only be

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disposed of by its parents as an agent, who will consider the interests of the embryo. As this involves ethical intergenerational issues, women’s right to reproductive self-determination should be limited. If women abuse their right to choose to terminate pregnancy to make profits, the life interests of embryos should take priority over women’s right to reproductive self-determination in terms of the protection of embryos. Wisconsin is studying a bill banning using tissues from aborted embryos for research.68 When women do not protect embryos or even use them for profits, their right to choice can be transferred to the ethics committee for review, which will weigh women’s right to self-determination and the life and health interests of embryos. Under special circumstances, for example, some women make ethically reasonable decision on abortion to save the lives of their close relatives (organ transplantation is needed). Of course, it is also necessary to strictly review which relatives can receive embryonic organ transplantation and the conditions for voluntary free donation, so as to prevent criminals from seizing the chance to obtain the sources of embryos.69 7.2.2

The Physical and Health Interests of Embryos and Women’s Right to Reproductive Self-Determination

Embryo Surgery and Women’s Right to Reproductive Self-Determination Before the rise of fetal medicine, the focus of legal and social concerns was the conflict and coordination between the life interests of embryos and women’s right to reproductive self-determination, mainly reflected by problems related to the termination of pregnancy. In 2011, The First China Fetal Medicine Conference successfully held in Shanghai laid an important milestone in the development history of fetal medicine in China and ushered a new era of standardized and orderly development of China’s fetal medicine.70 By 2015, five China Fetal Medicine Conferences had been held. Now, as medical technology of fetal diagnosis and treatment develops, the focus of medical attention has shifted to the research into intrauterine treatment.71 Faced with embryonic diseases, women could only choose to terminate pregnancy in the past, but now they can choose intrauterine treatment.72,73 Embryo therapy means performing surgery in the womb to repair a known congenital defect, so as to avoid definite embryo death or

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treat many diseases related to significant postnatal morbidity. Therefore, embryo therapy aims to give more chances of normal development to embryos and minimize the incidence rate of embryos after birth. Progress in surgery has made it possible for the operational measures to change from opening the uterine for treatment to endoscopic operation. This can thereby improve the maternal risk/benefit ratio and reduce the uterine opening operation related to postoperative uterine contraction.74 For example, the continuous improvement of surgical anesthesia enables many life-threatening congenital malformations to be treated in the mother’s womb. Some deformed embryos,75 if not treated in the uterus in time, will inevitably die, or die soon after birth because some organic malformations can’t be cured. Therefore, timely intrauterine surgery may be the only way to protect embryos.76 For another example, advanced prenatal imaging technology can identify many serious congenital heart diseases in early pregnancy. If some diseases, such as left ventricular dysplasia syndrome, are diagnosed and treated in the early embryonic stage, the survival rate of embryos will significantly improve. Although the research and clinic of embryonic surgery is still in the initial stage, the preliminary results show that embryonic heart surgery can improve the survival rate of children and reduce morbidity.77 It can be seen that the main means of embryo treatment is an operation on the embryo in the uterus. During the operation, it is inevitable to contact the embryo’s body to perform treatment. In the process of treating the embryo, can we think that as its central nervous system is not well developed, the embryo cannot be recognized as having values or beliefs or the capacity to judge its own interests and women can make decisions on treatment independently, rather than on behalf of the embryo? This is also the impact of the rising fetal medicine on the traditional theory of self-determination. Embryo therapy is very complex. On the one hand, the technology of embryo therapy is not in a mature but a clinical stage of trial because the current surgical scheme and the standard for surgical treatment come from a large number of animal trials.78 On the other hand, the surgical risks faced by both women and embryos should be considered.79 The therapy will bring risks to both embryos and women themselves. In most embryonic heart surgery, the minimally invasive percutaneous technique or laparotomy to expose the uterus is adopted before uterine acupuncture. In other words, both embryos and women undergo surgery.80 In

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particular, open embryo surgery makes pregnant women undergo two cesarean sections respectively during embryo surgery and during delivery. During the operation, women also face the risk of uterine rupture, while embryos also face the risk of premature delivery. As embryo surgery is very special, the potential risks to women and embryos must be weighed. However, only embryos benefit, and women are often deemed as innocent victims who can only take risks. Therefore, this book believes that in order to protect women, in principle, embryo surgery can be performed only when the embryonic life is threatened. Unless it is absolutely necessary, women shall not be allowed to take the risk of surgery. Other embryonic defects, such as non fatal tumors or cleft lip, can be operated on after birth. Most congenital heart diseases, for instance, can be surgically cured in the early stage of infancy, and many congenital heart diseases cannot be technically operated on in utero. Therefore, the risks of the embryo intervention surgery of special congenital heart diseases must be weighed against the expected good results.81 Congenital heart diseases shouldn’t be preferentially operated on in the womb, except several for which postpartum surgery is not the best choice. Therefore, “Before choosing embryo intervention surgery, we must systematically evaluate and weigh the risks and benefits. 1. The neonatus has a high mortality and prevalence rate… 3. We should not wait until the congenital heart disease develops to the point that the intrauterine embryo surgery is meaningless… 5. It shall be ensured that embryo surgery won’t bring risks to the mother.”82 When the risk of embryo surgery to women is acceptable,83 who can make the decision on operation? In other words, it is acceptable for women to choose intrauterine treatment for the non life interests of embryos. In this case, women make the decision both by themselves and on behalf of embryos only for the personality interests of embryos. After all, the biggest beneficiary of embryo surgery should be the embryos treated in the womb. Intrauterine treatment of some diseases of embryos helps safeguard the health interests of embryos. As the incidence of twin and multiple pregnancies is increasing year by year due to the development of assisted reproductive technology, there is a significant increase in the incidence of complex twin diseases.84 The complex twin involves the choice of two embryos. In terms of the twintwin transfusion syndrome (TTTS), for example, as the blood vessels of two embryos are connected together by the placenta, the blood transfusion by one embryo to the other results in poor development of the

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blood donor and excessive cardiopulmonary pressure of the blood recipient. The most serious consequence is that the two embryos may die in the womb at any time.85 For another example, in the complex twin environment, the interests of the two embryos will conflict. When one of the embryos suffers from growth restriction and risks in the womb due to poor placental function, delivery may be the only way to save the embryo. In order to save the embryo, the other embryo in normal development will face increased mortality and incidence rate due to premature birth. Conversely, if the mother chooses to continue pregnancy until full term, the embryo with growth restriction may be damaged or die.86 In these cases, women have more difficulties in making decisions independently because the decisions often involve the life and death of embryos. This book believes that in such cases, a woman should try to avoid making a decision purely by sensibility, because the decision may make her guilty in the future. Instead, the doctor, with professional and technical judgment, should inform her and her family members which scheme is most likely to be realized technically. That is, a woman’s final independent decision is based on the protection of the embryo more likely to survive and develop physically. This may be the only reasonable and best solution. It should be noted that when performing embryo surgery, doctors should make choices of specific issues such as the means and intensity of embryo treatment in order to protect the physical interests of embryos, because this is the obligation of doctors to do good to embryos as patients.87 In terms of pain management, for example, experiments on monkeys show that continuous emergency stimulation given to embryos in the important period of embryonic development will cause a permanent damage to hippocampal development and stress-coping behavior. These experiments once again eloquently demonstrate that pain management is needed during invasive operation of embryos. Glover and Fish stated in an editorial article in 1996, “We do not know whether embryos in the second trimester of pregnancy really need pain management, but they are at least safer, if given pain management.”88 In the anesthesia of embryonic heart surgery, the use of teratogenic drugs should be avoided and other considerations are also required as the embryo is also a patient. In addition, we must prevent preterm birth and reduce the incidence and mortality of embryonic preterm birth and heart disease if the embryo is still left in the uterus to make the pregnancy continue after embryo surgery.89

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The Health Interests of Embryos and Women’s Right to Participate in Clinical Drug Trials There are two distinct views on whether women should be prohibited from participating in clinical drug trials as subjects considering the protection of embryo health. Some people hold that women should be strictly prohibited from participating in clinical drug trials as subjects considering the protection of women and their offspring. The reason is that drug clinical trials by pregnant women will directly damage the health interests of embryos. Drug clinical trials will directly impair the health of the children of women through their breastfeeding. Drug clinical trials by women who are neither pregnant nor breastfeeding may also harm their own health, and then their children in the future. This view results mainly from the Thalidomide event90 and diethylstilbestrol event (DES for short)91 in the 1950s and 1960s. To a certain extent, the above events made the public aware that women’s use of drug may impair the safety of embryos and even the future children, and further triggered social resistance to and doubt about the participation in human trials by pregnant women and women of childbearing age. In 1977, FDA stipulated that pregnant women and women of childbearing age are prohibited from participating in early drug trials as subjects (except those with deadly diseases). This regulation is considered by critics to be patriarchal and implies that pregnant women are unable to make responsible decisions for themselves and their offspring. Conversely, other people hold that women need to participate in the clinical drug trial because the trial completely designed for the health of women and conceived children can’t be performed by men due to different physical performance of women and men. As some diseases, such as breast cancer and reproductive system cancer, occur only among women, cures for them can be found only through women’s participation in drug trials. In addition, subject to the principle of equal rights between men and women, women should have the same right to participate in clinical drug trials as men. In March 1993, the FDA canceled the 1977 regulation prohibiting women of childbearing age from participating in early clinical trials. In the same year, FDA published the Guideline for the Study and Evaluation of Gender Differences in the Clinical Evaluation of Drugs to inform pharmaceutical enterprises how the data about female subjects in clinical trials should be evaluated.

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On December 9, 1993, Cas-chetta et al. expressed different opinions on the policy issued by the U.S. Food and Drug Administration (FDA) on women’s participation in drug trials in the New England Journal of Medicine published in the United States, proposing that pregnant and breastfeeding women can choose to participate in some safe and effective drug trials, which will help the scientificity of drug use and mean respect for women’s rights. The FDA said in reply that subjects of drugs also included reproductive women, who could choose whether to participate in the trial. In 1997, the FDA strengthened norms for testing drugs that could treat life-threatening diseases by suspending all trials on women of childbearing age.92 The change of the policy on whether women should participate in human trials or be protected reflects the complexity of this issue. On the one hand, as part of gender equality, women’s right to improve their own health through participation in experiments should be respected and their right to self-determination should be guaranteed. On the other hand, the particularity of women, as well as the health, safety and welfare of their conceived children or children to be conceived should be properly considered. Pregnant and lactating women’s participation in drug trials should still be specially regulated because it may directly impair the health of their children. This book believes that as people’s understanding of the importance of the intrauterine environment to children’s long-term development deepens, drug R & D and clinical trial personnel should find ways to include the safety of pregnant women in the study, rather than voluntarily shut them out. Women should be allowed to participate in clinical drug trials as subjects with restrictions for the following reasons: First, the prohibition of women from participating in clinical drug trials will cause substantial damage to the health interests of women and embryos. As there is no enough evidence for the safety and effectiveness of a variety of drugs to pregnant women for a lack of clinical trial data of the drugs used by them, doctors are not willing to prescribe drugs for pregnant women, who are also worried about the impact of drugs on embryos and unwilling to take drugs. Therefore, the treatment of diseases of pregnant women has been greatly hindered. Pregnant women should be included in drug clinical trials. Only in this way can the medication safety for women be increased

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during pregnancy, necessary treatment of women can be ensured, and finally serious consequences such as death can be avoided. Second, it is unethical and not conducive to the protection of the rights of women and embryos to exclude pregnant women from clinical drug trials. In other words, a system designed to protect the rights of embryos violates their rights in practice. Because it takes many years for the side effects of many drugs to surface, clinical drug trials for women at an early stage can make it possible to restrict women’s use of drugs that may cause adverse reactions and side effects as soon as possible, so as to ensure the health of embryos. Sodium valproate, an antiepileptic drug, is a typical example.93 Clinical trials of valproate for pregnant women, if started in the early stage of the use of valproate, can effectively avoid the adverse consequences to the offspring of women who use the drug to treat the disease in the early stage.94 Third, the safety and health of embryos after birth also requires rational medication, but the rights of women cannot be protected due to the lack of clinical drug trials for them. During the clinical research and development period of most drugs, pregnant women are excluded from clinical trials, and subjects, if found pregnant in the trial, are usually required to stop the treatment and trial. Therefore, there are few human trial data on the impact of drugs on pregnancy, except those aimed at the treatment of diseases during pregnancy, in the early stage of marketing. Even if some drugs have been marketed for several years, their impacts on embryos are usually unknown. During pregnancy, women’s intentional and accidental medication allows the exposure of embryos to drugs. Around half of pregnant women in America have unplanned pregnancies, so women’s medication before they know their pregnancy often puts embryos at risk.95 Pregnancy and lactation, as special physiological periods of women, may have an impact on pharmacokinetics and pharmacodynamics; When the risks and benefits of exposure to drugs should be considered to both women and embryos or infants, the decision-making of clinical medication during pregnancy and lactation is particularly complex and important for the growth and development of women and embryos and the health

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of lactating women and infants. All regulations and decisions on medication during pregnancy need to be subject to the potential benefits of drugs to women and embryos, as well as the impact of feasible therapies on embryos.96 2. Basic rules for women to participate in clinical drug trials According to Article 18 of the Additional Protocol to the Oviedo Convention of the European Commission (tests for pregnant and lactating women): First, if the trial for pregnant women does not have potential direct benefits to the health of pregnant women or their embryos, fetuses or future children, the trial can be carried out only under the following special circumstances: (1) The trial aims to maximize the benefits for other women, or other embryos, fetuses and children. (2) Similar trials cannot be carried out on non pregnant women. (3) The trial may pose only minimal risks and burdens. Second, special measures must be taken for any trial for lactating women to avoid any damage to their children’s health. The above circumstances shall also be truthfully informed to the subjects. Third, women who are not pregnant or lactating, especially those of childbearing age, should also be informed of anything known that may impair their future fertility and children’s health before they are recruited as subjects. Some domestic scholars have also proposed that pregnant and lactating women should be excluded from clinical trials of some highly toxic and contraindicated traditional Chinese medicines for the treatment of cancer, which are not suitable for them. However, pregnant and lactating women should be allowed to participate in the clinical trials of some mild tonic traditional Chinese medicines for the treatment of spleen deficiency, insomnia and other symptoms, which have no significant impact on them.97 The Health Interests of Embryos and Women’s Drug Abuse, Smoking and Alcoholism Some women are addicted to drug abuse, smoking and alcoholism. There have been many studies on the harm of women’s drug abuse addiction to embryos in various countries. According to the research by the National Institute on Drug Abuse (NIDA) in the United States, narcotic drugs injected into a pregnant woman will lead to placental detachment and massive bleeding, which are high risk for the mother and embryo.98

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In addition, cocaine, which may compress the blood vessels of embryos to reduce oxygen and nutrition, can cause the so-called intrauterine growth retardation (IUGR, a disease caused by congenital malnutrition of embryos is apt to cause sudden death and other major diseases), and even abortion or premature delivery. These newborns whose mothers take narcotic drugs (including heroin, marijuana and amphetamines) during their pregnancy are called crack babies in the United States, who often need intensive medical treatment after birth for their brain damage, agenesia or growth retardation.99 Female alcoholism, in medical view, will produce the fetal alcohol syndrome (FAS), which is characteristic of embryonic facial dysplasia, restricted growth, abnormal central nervous system and nerve development, and damaged embryonic vision, hearing, heart and brain.100 Besides narcotic drugs and alcohol abuse, research has gradually extended to cover the effects of female addiction to smoking on embryos. Medical reports show that pregnant women who smoke may have children with fetal hypoxia, underweight, abortion and low IQ.101 Women’s drug taking, excessive drinking or smoking will impair the health interests of embryos. In addition, women are the suppliers of nutrition for embryos’ growth in the womb, a special relationship of highly dependence between the mother and the embryo. If the protection of embryos is claimed in law, the state must consider when intervening that the claim is different from that for the infringement of legal interests in other law, because women addicted to drugs are both perpetrators of embryos and suppliers of nutrition for embryo survival. In China, improving population quality, such as fewer and better births and sound child rearing, is becoming a common pursuit of the society. Therefore, the state needs to consider better births and sound child rearing by intervening in women’s behavior harmful to health, so as to improve the health rate of embryos after birth and reduce the medical expenditure of the state. This book believes that the above-mentioned behaviors of women can be limited in two ways. First, women who take drugs shall be fined and punished. Second, the above-mentioned behaviors of women, if found during inspection, should be reported by medical institutions to social welfare institutions which will record the above-mentioned behaviors of women. If the social welfare institution considers that a woman is unable to effectively exercise her custody due to the above-mentioned behavior, the competent authority shall restrict her custody after the birth of the embryo. The above system is designed

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to protect the health interests of embryos, which should be regarded as subjects in law. However, the legislative and judicial practice in the United States and Taiwan has begun to intervene in the above-mentioned behaviors of women in order to protect the health rights and interests of embryos. These practices afford us lessons in strengthening the legislation and judicial practice of this. In the United States, some states positively monitor pregnant women to prevent embryo abuse. Women are deemed to abuse embryos for smoking, drinking or taking drugs that are considered to have side effects on embryo development. In response to drug abuse, state prosecutors, legislators and judges always punish such behavior that impairs embryos. They punish women who take drugs during pregnancy by depriving them of the custody of their children, imprisoning them and prosecuting them after their children are born. The most common punishment for mothers who take drugs during their pregnancy is to separate them from their children permanently or temporarily. Hospitals in many states now examine the urine sample of the neonates for evidence of drugs and report positive results to child welfare institutions. Child protection agencies sue for child abuse by taking advantage of the positive results of urine sample tests and obtain custody. A growing number of government departments are also separating the drug-affected baby from its mother immediately after birth, and awaiting the results of the investigation on whether the mother is suitable for custody of her child. In these investigations, if the neonates tests positive for drugs, it is irrefutably presumed that the mother is not suitable for custody. This investigation procedure is necessary to depriving parents of guardianship.102 According to Article 50 of the Law of Child and Juvenile Welfare and Rights Protection (revised in 2014) issued by Taiwan, pregnant women shall not smoke, drink alcohol, chew betel nut, take drugs, illegally use controlled drugs or commit other acts harmful to embryonic development. No one shall force, induce or otherwise cause pregnant women to commit acts harmful to embryonic development. Article 98 hereof stipulates that whoever violates Paragraph 2 of Article 50 shall be fined between NT $10,000 and NT $50,000. However, this Law does not stipulate penalties for pregnant women’s illegal smoking, drug abuse, alcoholism and other acts, but only those who cause pregnant women to commit illegal acts. On this basis, the Law on the Control of Smoking (2009) in Taiwan includes the added provisions on the prohibition of

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pregnant women from smoking.103 It requires smoking women to receive education on smoking cessation, or they shall be fined. In this way, the health of embryos in the mother’s womb is protected. 7.2.3

Informed Interests of Embryos and Women’s Right to Reproductive Self-Determination

As infertility is a disease of both husband and wife, the treatment of it shall be subject to the consent of both husband and wife. Judging from the current regulations and the realities of various countries, the husband and wife need to sign an informed consent form with the medical institution that performs surgery for infertility treatment when the couple receives sperm or eggs from the donor in the treatment. The sperm or egg donor shall also be required to sign an informed consent form with the medical institution. The provisions in such informed consent forms come from the relevant regulations issued by the Ministry of Health104 and from ethical requirements.105,106 At present, in the families that obtain children from sperm donation in China, most parents haven’t told or don’t intend to tell their offspring of the receiving of donation. They believe that the concealment of donor information helps maintain the stability and harmony of traditional family life and protects the privacy of parents’ infertility.107 In accordance with the informed consent form signed between the couple receiving assisted reproductive technology and the medical institution, and the Supreme People’s Court Reply on the Legal Status of Children Born by Artificial Insemination during the Existence of Marital Relationship,108 the neonates is the legitimate child of the couple receiving assisted reproductive technology, although it has no blood relationship with one of its parents. It has blood relationship but no legally recognized relationship with the sperm donor or egg donor. Subject to this basic principle, the informed consent form stipulates the confidentiality obligations of infertile couples, sperm (egg) donors and medical institutions in the case of assisted reproductive technology. However, what should be noted is whether the informed consent form signed by various parties can limit the embryo’s right to know its consanguineous father or mother after it is born. In other words, can the embryo require, for special reasons, the medical information to inform it of the identity or other information of its consanguineous father or mother after its birth through assisted reproductive technology? This book holds that

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even if the agreement signed among the father or mother, the sperm donor or egg donor and the medical institution requires that the relevant information should be kept confidential and shall not be informed to the child, the agreement is legally controversial and may not have any legal binding force. Such agreement will not have legal binding force on the child as the third party without its consent because it is a contract performed by a third party, which is conditional on giving up the rights and interests of the child as the third party. Even if parents as future guardians give up the right to know the consanguineous father or mother on behalf of their children, there is a dispute over whether the custody is exercised for the benefit of children. Therefore, this book holds that under special circumstances, an embryo can request, after birth, the medical institution to inform it of the specific information of its consanguineous father or mother. The rules are as follows: First, the right of natural persons to know their consanguineous information is a due principle of the general personality right, and helps their own personality development. The right to know one’s blood lineage is part of general personality right, which helps ensure the sphere of private life of individuals. It is necessary for personality development, because gene is not only an important representation of personality development, but also an important way to understand personality development.109 The knowledge of one’s consanguinity is a part of self-cognition, a problem of self-identity, just like one’s search for cultural roots.110 This right is also recognized in Articles 7 and 8 of the 1989 Convention on the Rights of the Child and the 1993 Hague Convention on child protection and cooperation in inter-country adoption. Article 8 of the European Convention on Human Rights stipulates that anyone has the right to request his private and family life to be respected. In accordance with this provision, the European Court of Human Rights believes that the right to know one’s blood lineage is an indispensable part of respect for personal life. In January 2004, Melanie Johnson, minister of public health, announced the legislative ruling passed by the British Parliament: Children of sperm donors have the right to know the details of their biological fathers, such as the native place, occupation, religion, hobbies and other external factors.111

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Second, the knowledge of one’s blood lineage helps to avoid legal prohibitions such as marriage between blood relatives. This provides a basis for the regulation issued by the Ministry of Health that each sperm donor can only donate sperm in one sperm bank to up to five women for pregnancy in his life and that excessive sperm will be destroyed. Due to the rise of the number of people born through sperm or egg donation technology, the increase of time,112 underground sperm donation and other special circumstances,113 the possibility of marriage between blood relatives is gradually increasing. In order to avoid marriage between blood relatives, this book holds that those who think that they are likely to get married to their close relatives can ask medical institutions to confirm whether they have blood lineage with their boyfriends or girlfriends and are prohibited from getting married legally. The medical institution can make a positive or negative reply according to the registration in the database. If they are not blood relatives of their boyfriends or girlfriends, medical institutions shall not inform applicants of the identity information of sperm donors.114 Article 38 of the Human Reproductive Technology Ordinance (2000) issued by Hong Kong stipulates that the authority shall state and is required to state to an adult whether the data indicate the adult is blood related to his or her future spouse. Third, obtaining information of blood source help treat diseases and prevent gene diseases. As genes children inherit from their biological parents may have an important impact on their health, British legislators believe that the genes of their parents are required in medical case identification in particular. Scientists are increasingly aware that human diseases, such as cancer, heart disease and diabetes, are inextricably linked to genes and medical family history is often the primary channel that can provide the context of the disease.115 The 1984 Act of Medical Infertility Measures issued by the state of Victoria, Australia, stipulates that information confirming the identity with the donor should be properly kept to protect the right of his children to know their genetic characteristics. Article 5 of 1988 Law No. 35 in Spain stipulates that information about the sperm donor can be told to the child when the child’s life is in danger. Fourth, obtaining information of blood source does not mean that sperm donors or egg donors can become legal parents.116 When a child’s mind is mature enough to recognize and tolerate the fact,

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the doctor has to tell him the name and identity of his blood-related father or mother if he is willing to. However, this is only to meet his desire to know the truth, and the blood-related father or mother has no claim for custody.117 In fact, the reproductive cell donor is a stranger to the artificial reproductive children despite the blood relationship between them because of the donated cells. In addition, the donor doesn’t subjectively intend to be parent of the artificial reproductive children.118 Fifth, the privacy of sperm and egg donors needs to be protected. Sperm and egg donors enjoy the right to privacy, and their sperm and egg donation shall not be disclosed publicly or illegally.119 According to the survey and statistics, 92% of the 200 college students believe that it is necessary to protect the privacy of sperm donors by law.120 Since the British legislation allowed the offspring of sperm donors to know the information of sperm donors, the supplied sperm in the United Kingdom has been on the sharp decrease and has to be imported from Denmark.121 Therefore, the right of children to know their blood identities should also be moderately disclosed for the protection of the privacy of sperm donors or egg donors, even if disclosure is required in special circumstances such as treatment or marriage. That is, it is necessary to strike a balance between the right to privacy and the right to know consanguinity. For example, the medical institution can make a positive or negative answer without telling the applicant the accurate identifying data when answering his query. For the treatment of diseases, the medical institution can inform him his genetic information, rather than the accurate identifying data of the donor, which is of no special significance for their treatment. Sixth, under special circumstances such as non-medical needs, the applicant can make an independent request only when he is mentally mature. This provision is made to protect the rights of minor children. When he reaches the age of marriage, the child is mentally mature enough to bear the psychological impact after knowing his biological father’s information. When he is over the age of upbringing, this provision can avoid seeking economic interests in the name of the right to be informed.122 Article 38 of the Human Reproductive Technology Ordinance (2000) issued by Hong Kong stipulates that adults over the age of 16 have the right to access information from the Council on Human Reproductive Technology

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under certain conditions. Article 27 of the Federal Law on Assisted Reproductive Medicine issued by Switzerland (2001) stipulates that a child of artificial reproduction who reaches the age of 18 may inquire the competent authority about the appearance, name, age and other identifying data of the sperm donor. 7.2.4

Genetic Interests of Embryos and Women’s Right to Reproductive Self-Determination

Basic Types of Embryo Gene Treatment for Reproduction Treatment that may affect the genetic interests of embryos is often realized through pre-implantation genetic diagnosis (PGD)123 or villus detection technology. In general, there are four types of embryonic gene treatments for reproduction: first, modification of a specific embryonic embryo gene to give birth to an infant who no longer suffers from a specific disease; second, modification of embryonic genes to treat specific diseases of other subjects; third, modification of embryonic genes to give birth to infants with certain characteristics; fourth, comprehensive modification of embryonic genes to give birth to a perfect baby. Modification of Embryonic Genes for the Purpose of Giving Birth to a Baby Who no Longer Suffers from a Specific Disease At present, it is allowed and feasible in the medical and legal communities to modify embryonic genes through gene technology to bear infants who no longer suffer from specific diseases. The main purpose of PGD is to eliminate ill genes so that couples with genetic diseases can have healthy children, which is also the basis for the wide application and social recognition of PGD. Up to now, PGD has been applied to severe chromosome detachment and 30 different single-gene diseases.124 On March 23, 2015, Lele (pseudonym), the first “cancer free baby whose father suffered from a specific disease” in China, was born in Zhongxin Xiangya Reproductive and Genetic Hospital. His father, Mr. Chen, suffered from retinoblastoma in his right eye when he was two years old, and had his right eye surgically removed. Before his wife got pregnant, Mr. Chen chose genetic test, which showed that a deletion mutation in exon 9 of RB1 gene might result in a high risk of malignant tumors. To prevent his offspring from suffering from the disease, Mr. Chen and his family decided to treat the embryonic gene through PGD. In this way, an embryo without the same pathogenic mutation gene as Mr. Chen was implanted into the uterus and finally born with the name Lele.125

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Modification of Embryonic Genes to Treat Specific Diseases of Other Subjects If embryo genes are modified through gene technology to treat special diseases of other subjects, that is, embryo selection and gene modification are not aimed at the health interests of newborns, but the medical interests of others, the application of this technology is, in a sense, to create humans to obtain transplanted tissues.126,127 Such behavior should be first considered to be ethically legitimate. In order to treat our compatriots who suffer from pain and whose lives are even in danger without damaging the health of newborns, the rational and efficient use of resources from the perspective of utilitarianism in the best interests of patients doesn’t reflect the greatest happiness of actors themselves but all relevant personnel—family members. The ethical bottom line is that the baby can’t be just taken as a tool to save people, transferred to others or abandoned.128 However, as has been demonstrated above, as such behavior may damage the rights and interests of the embryo, the decision made by the father or mother needs to be referred to the ethics committee, a third party for review to judge whether it will harm the rights and interests of the embryo.129 In practice, donation, if more favorable for the protection of the interests of donors, can also be decided by specific institutions.130 Modification of Embryonic Genes to Give Birth to a Baby with Certain Characteristics The medical institution can generally refuse the decision for violating public order and good customs made by parents to realize the best interests of the desirable child through modification of embryonic genes. A pair of lesbians with surdimutism in the United States attempted to give birth to a child with surdimutism in using sperm of a donor from a family with five generations of surdimutism history. They were informed by the sperm bank that people with congenital surdimutism were excluded from donors.131,132 Selfish choices made by people probably because of emotional paranoia are misunderstood as considerations of the best interests of newborns. In the absence of effective treatment, the choice of an embryo with severe serious diseases makes it impossible for the newborn to enjoy the sensory functions as normal children—a violation of the best interests of the child.133

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Modification of Embryonic Genes to Give Birth to a Perfect Baby In practice, the most controversial is the modification of embryonic genes not to treat specific diseases but to give birth to a perfect baby.134 In the view of some liberal ethicists, there is no problem with creating a baby through genetic optimization with the consent of both husband and wife to improve the ability of the future child, as long as genetic optimization helps the life of the future child. But many scholars raised objections in a large amount of literature on gene enhancement (gene optimization). Professor Michael Sandel, for example, criticized gene enhancement, “The key problem is whether gene enhancement will weaken human nature?”135 He believes gene enhancement a profound moral issue. In other words, even if gene enhancement can be used safely, chosen voluntarily (i.e. people are not forced to participate in it) and distributed fairly (i.e. there is no problem of social justice), and the way of enhancement does not affect children’s future choices of life, the implementation of gene enhancement shall not be allowed as there are moral disputes. This is because, in Sandel’s view, gene enhancement is an over-action, an action to reshape nature (including human nature), and a Promethean desire to achieve our goals and meet our desires.136 German scholar Jürgen Habermas argues that everyone’s talent genes are the primary condition for starting their future life and should not be deliberately controlled by others. Gene enhancement is prohibited morally. Otherwise, it will destroy the symmetry of relationship and the individual’s moral understanding of himself as a human being. The essence of man is the ability to be what he is, but man is deprived of such ability by genetic enhancement.137 Chapter 3 of the Civil Code of France specifically stipulates the right to gene, and makes provisions of prohibiting gene optimization and cloning (but PGD is allowed to prevent and treat diseases). For example, according to Article 16–4, no one shall impair the integrity of human race. All eugenic practices aimed at selecting human beings are prohibited. Modification of human genetic characteristics to change their offspring is prohibited, except that for the prevention and treatment of genetic diseases. Intergenerational gene selection is actually a one-way choice because when making choices affecting future generations, contemporary people cannot negotiate with future generations, who cannot express their interests at all. Maybe people can carry out activities for the interests of future generations, but they cannot express the hopes, choices and behaviors of those who do not exist in the world.138 If the autonomy of gene

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includes the complete autonomy of breeding, the genetic transformation of the reproductive system is legally legitimate. However, this practice actually treats embryos or fertilized eggs as patients, and may violate the basic human rights and dignity of future generations, thus violating the intergenerational justice in ethics and jurisprudence.139 The life potential can be reasonably controlled only to avoid serious diseases. If we can arbitrarily exercise the right to gene and arbitrarily select or modify genes that can determine the personal characteristics of our offspring, future generations will be reduced to naked tools and products.140 We should respect future children and give them opportunities to make independent choices when they grow up. Because future children have different interests and value judgments than their parents, contemporary people have no right to impose their own standards on future generations.141 In addition, there are also technical and non-technical risks in human somatic gene therapy. Technical risks refer to the probable unknown damage to human body formed in the process of technology implementation, involving the selection of disease species, the safety of vector, the effectiveness of therapeutic gene expression and potential harm to reproductive system.142 Non-technical risks mainly include physical and mental injury to subjects and offspring caused by non-technical factors, reflected by the bias of researchers, ineffective supervision and lax review.143

Notes 1. Wang Liming: Research on the General Rules of the Civil Law [M], published in Renmin University of China Press, Beijing, 2003, p. 338. 2. Liang Huixing: On the General Theory of Civil Law [M], Version 3, Law Press, Beijing, 2007, p. 89. 3. Mei Zhongxie: Essentials of Civil Law [M], published by China University of Political Science and Law Press, Beijing, 1998, p. 53. 4. Wang Zilong: On the Concept of Legal Personality [J], published in Journal of Hexi University, 2005 (3). 5. Yang Lixin: On the Law of Personal Rights [M], People’s Court Press, Beijing, 2006, p. 70; Wang Liming: Research on the General Rules of the Civil Law [M], published in Renmin University of China Press, Beijing, 2003, p. 304. 6. Jiang Ping: On Legal Person System [M], published by China University of Political Science and Law Press, Beijing, 1994, p. 34. 7. Zhang Li: Quasi Personality Status and Protection of Personality Interests of the Fetus [J], published in Tribune of Political Science and Law, 2007 (4), p. 166.

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8. Shen Jianfeng: The Formation and Change of the Concept of the Capacity for Rights [J], published in Northern Legal Science, 2011 (3), p. 65. 9. Shen Jianfeng: Research on General Personality Rights [M], published by Law Press, Beijing, 2012, p. 85. 10. According to the view of partial capacity for rights, people should recognize that the fetus enjoys reduced capacity for rights from the moment of conception. The unborn fetus to be born should be regarded as the subject from when it is in the matrix. That is, even if unborn, the unborn fetus already has partial capacity for rights. 11. Professor Emst Wolf advocates the natural law idea of the capacity for rights. He holds that human life begins with conception, so human capacity for rights begins with gestation. He also believes that “the fetus has the capacity for rights, and no other view can stand the test.” 12. Karl Larenz holds that when human life begins and when it can be protected by law are questions that have nothing to do with and can’t be confused with the question when a person can enjoy the capacity for civil rights as an independent individual. 13. Guan Yonghong and Chen Leijia: On the Noumenon of Legal Interests in Civil Law and Its Institutionalized Application [J], Journal of Shanxi Normal University (Social Science Edition), 2009 (4), pp. 17–22. 14. Karl Larenz: On the General Theory of the Civil Law of Germany [M], translated by Wang Xiaoye, et al., Law Press, Beijing, 2003, p. 127. 15. Wang Feng: On the Civil Law Protection of Fetal Rights and Interests [D], Jilin University, Changchun, 2008, p. 9. 16. Wang Zejian: Protection of the Unborn//Wang Zejian: Research on Civil Law Theories and Precedents: Volume IV [M], China University of Political Science and Law Press, Beijing, 2005, pp. 220–223. 17. Wang Liming: Research on the Law of Personality Rights [M], published by China Renmin University Press, Beijing, 2005, p. 339. 18. Yang Lixin: On the Law of Personality Rights [M], published by Law Press, Beijing, 2011, p. 188. 19. Zhang Li: Quasi Personality Status and Protection of Personality Interests of the Fetus [J], published in Tribune of Political Science and Law, 2007 (4), p. 167. 20. Wu Handong: High Tech Development and Civil Law System Innovation [M], published by Renmin University of China Press, Beijing, 2003, p. 62. 21. Kant: Metaphysical Principles of Law—The Science of Right [M], translated by Shen Shuping, The Commercial Press, Beijing, 1991, p. 26. 22. Man is essentially characterized by self-consciousness, and is an entity with autonomy of will. Feng Jianmei: Research on Legal Issues of

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24. 25. 26.

27. 28. 29. 30. 31.

32. 33. 34.

35. 36.

37. 38. 39.

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Reproductive Technology [A]//Liang Huixing: Essays on Civil and Commercial Law: Volume 8 [M], Law Press, Beijing, 1997, p. 111. Zhang Shanbin and Li Yanan: Legal Status of Human Embryo and Institutional Construction of Embryo Legislation [J], Science, Technology and Law, 2014 (2), pp. 276–295. KATZ K D. Legal status of the ex utero embryo: the implications for adoption law [J]. Cap. UL Rev. 2006 (35), p. 303. Man Hongjie: Research on Legal Issues of Human Test [M], China Legal Publishing House, Beijing, 2013, p. 95. Lei Wenjiu: Deconstructing the Legal Norm System of Embryo Protection in China—Find Parents’ Reproductive Autonomy [J], National Taiwan University Law Journal, 2003 (4), p. 1. Liu Zhaocheng: Quasi Personality Constitution of Fetus [J], published in The Jurist, 2011 (6), pp. 66–81. See ➀. Shen Jianfeng: Research on General Personality Rights [M], published by Law Press, Beijing, 2012, p. 95. See ➂ p. 96. For example, cursing a fetus as a “hybrid” not only damages the reputation rights of its parents, but also has an impact on the early reputation interests of the fetus. However, it is difficult to protect such interests. It is uncertain to confirm that the fetus enjoys early reputation interests. Yang Lixin: On the Law of Personality rights [M], Law Press, Beijing, 2011, p. 186. Yang Lixin: On the Law of Personality rights [M], published by Law Press, Beijing, 2011, p. 51. See ➁ p. 342. A.J.M.Milne: Human Rights and Human Diversity—An Essay in the Philosophy of Rights [M], translated by Xia Yong and Zhang Zhiming, Encyclopedia of China Publishing House, Beijing, 1995, p. 158. Wang Liming and Yang Lixin: Personality Rights and News Infringement [M], published by China Fangzheng Press, Beijing, 1995, p. 187. Wang Zejian: Research on Civil Law Theories and Precedents: Volume 4 [M], China University of Political Science and Law Press, Beijing, 1999, p. 255. Wang Zejian: On Infringements [M], Peking University Press, Beijing, 2009, p. 102. Liang Huixing: On the General Theory of Civil Law [M], published by Law Press, Beijing, 1996, p. 106. Karl Larenz: On the General Theory of the Civil Law of Germany [M], translated by Wang Xiaoye, et al., published by Law Press, Beijing, 2003, p. 127.

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40. Zhang Li: Legal Personality of Conjoined Persons and Its Protection [M], Intellectual Property Publishing House, Beijing, 2007, p. 180. 41. Zhang Li: Quasi Personality Status and Protection of Personality Interests of the Fetus [J], published in Tribune of Political Science and Law, 2007 (4), p. 168. 42. Wang Lihai: On the Protection of Legal Material Personality Interests of the Fetus [J], published in Journal of Henan Administrative Institute of Politics and Law, 2007 (3), pp. 105–110. 43. Wang Zejian: Research on Civil Law Theories and Precedents: Volume 4 [M], China University of Political Science and Law Press, Beijing, 2009, p. 179. 44. With regard to the infringement before birth, whether the infringement occurs before or after conception should not be considered. For example, when a woman was infected with a vicious disease by blood transfusion in a hospital before pregnancy and infected her embryo during pregnancy, the woman should act as the legal agent of the embryo to claim damages from the hospital on the grounds that its body or health is infringed before birth. 45. Stan: Legal Values in Western Society [M], Translated by Wang Xianping, People’s Public Security University of China Press, Beijing, 1990, p. 204. 46. For an in-depth discussion of the legal status of human genes, see The Legal Meaning of “Quasi Right Subject”—Reconstruct the Legal Status of Human Genes by Cai Weiyin [J], Legal Journal of National Cheng Kung University, 2001 (2), pp. 41–74; Yan Jue’an: Property, Personality, or Information?—On the Legal Status of Human Genes [J], National Taiwan University Law Journal, 2002 (1), pp. 1–44; Leng Chuanli: On the Property for Personhood in Civil Law [M], Law Press, Beijing, 2001, p. 132. 47. Wang Kang: Private Law Norms of the Right to Gene: Background, Principles and System [J], Science of Law (Journal of Northwest University of Political Science and Law), 2013 (6), p. 65. The right to gene in the Civil Code of France mainly involves human dignity, the non property nature of the human body, its components and things originating from that, the integrity of the human body and genes, the scientific and medical purpose of genetic examination, informed consent, genetic identification, prohibition of genetic discrimination and so on. The Civil Code of France [M], translated by Luo Jiezhen, Peking University Press, Beijing, 2010, pp. 4–5. 48. With the development of modern science and technology, it is very easy to obtain human genes. A drop of blood or a little amniotic fluid can help obtain all human genetic information. Thus, the concept of the right to genetic privacy has gradually emerged. For example, personal data related to genes cannot be collected, stored, used and transmitted

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49. 50. 51. 52. 53.

54. 55.

56. 57.

58.

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without the consent of the person concerned or legal procedures for public welfare. Li Zhenshan: Legal implications of Embryonic Genetic Engineering—Take the Protection of the Right to Life as an Example [J], National Taiwan University Law Journal, No. 3, Vol. 31. Wang Kang: Private Law Norms of the Right to Gene [M], published by China Legal Publishing House, Beijing, 2014, p. 194. See ➆ p. 137. Liu Changqiu and Liu Yingshuang: Research on Gene Technology [M], published by Law Press, Beijing, 2005, p. 13. Huang Dingquan: Medical Treatment, Law and Bioethics [M], Law Press, Beijing, 2004, pp. 421–422. Ellen Aldeman and Caroline Kennedy: The Right to Privacy [M], translated by Wu Yiting, Contemporary World Press, Beijing, 2003, p. 62. J.C. Smith and B. Hogan: Criminal Law [M], translated by Ma Qingsheng, et al., Law Press, Beijing, 2000, p. 439. Article 9: A pregnant woman may be voluntarily aborted if she is diagnosed with or proved to be in one of the following circumstances: (1) Where she or her spouse has a genetic, infectious or mental disease that hinders eugenics. (2) Where the lineal relatives and collateral relatives of her or her spouse have genetic diseases that hinder eugenics. (3) Where there are medical reasons to believe that pregnancy or childbirth is likely to harm life, health or mental health. (4) Where there are medical reasons enough to determine that the fetus is in danger of abnormal development. (5) Where a woman is pregnant due to forced sexual intercourse, seduction or adultery with a person who is not allowed to marry according to law. 6. Where pregnancy or childbirth will affect the mental health or family life of the woman. The consent of the legal representative of an unmarried minor or imbecile shall be required to abort her in accordance with the provisions of the preceding item. If she has a spouse, the preceding item shall apply. Paragraph 6 stipulates that the implementation of induced abortion shall be subject to the consent of the spouse. Shen Jianfeng: Research on General Personality Rights [M], published by Law Press, Beijing, 2012, p. 97. Zhou Qichang and Wang Xiaoyan: Ethical Research on Prenatal Diagnosis and Intervention of Fetal Malformation [J], published in Chinese Medical Ethics, 2004 (4), pp. 55–57. The judgment has three basic points: First, whether a pregnant woman should be aborted in the first six months of pregnancy is a matter of women’s right to private life (It is an individual’s basic right protected by the constitution from being deprived by any state like contraception, sex, marriage, reproduction and childbirth. The judgment wrote

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59. 60.

61. 62. 63.

64.

65.

66. 67.

that individual freedom and restrictions on state action contains the right to private life… extensive enough to include a woman’s decision on whether to terminate pregnancy. However, these six months are divided into halves, during which women have the right to private life of different degrees. In the first three months, women, with a stronger right to private life, can decide whether to have abortions with the help of their doctors. In the last three months, women, with a weaker right to private life, can only have abortions to protect their bodies). Second, it denies that “human life begins with conception”, and holds that embryos and fetuses that have not yet become complete human beings are not protected by the Amendment to Article 14 of the Constitution (In the first six months of pregnancy, the mother’s right to choice is more powerful than the fetus’s right). Third, during the 24th and 28th weeks of pregnancy, the fetus can leave the uterus and survive alone, and women’s right to abortion should be limited (during this period, the right to life of the fetus is more powerful than the pregnant woman’s rights to private life and choice). Zhao Mei: Right to Choice and Right to Life—Debates on Abortion in the United States [J], American Studies Quarterly, 1997 (4), p. 84. Yi Jun: Right to life: Shaping by Argument [J], Journal of East China University of Political Science and Law, 2012 (1), p. 12. Arnold S B: Reproductive rights denied: the Hyde Amendment and access to abortion for native American women using Indian health service facilities [J]. American journal of public health, 2014, 104 (10): 1892–1893. Xu Guodong: Birth and Rights—Right Conflicts [J], Oriental Law, 2009 (2), pp. 47–54. Finer L, Fine J B. Abortion law around the world: progress and pushback [J]. American journal of public health, 2013, 103 (4): 585–589. Gu Weirong and Li Xiaotian: Medical Ethics in the Field of Fetal Medicine [J], published in Chinese Journal of Practical Gynecology and Obstetrics, 2013 (8), pp. 604–608. Hu Qingli: Ethical Code (II) Issued by the Ethical Committee on Human Reproduction and Women’s Health of International Federation of Gynecology and Obstetrics [J], Chinese Medical Ethics, 2009 (5), pp. 132–134. Xiong Yongming: Legal Issues of Fetal Organ Extraction [J], published in Journal of Nanchang University (Humanities and Social Sciences), 2013 (5), p. 68. Deng Rongjin: Value of Life [N], The Herald, C4, February 3, 2009. Zhu Lijun: Discussion on the Rules for Utilizing the Tissue of Aborted Fetus in Organ Transplantation [J], published in Medicine & Philosophy (Humanistic & Social Medicine Edition), 2011 (12), p. 24.

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68. Several federal states in the United States, including Illinois and California, have begun to introduce relevant laws to restrict fetal organ exchange or withdraw funding for clinics providing fetal organs, except organ donation permitted by law, or specify that the use of fetal organs for scientific research is illegal. The ban on trafficking in fetal organs in the United States has sounded an alarm for scientific research. [EB/OL]. http://www.bio360.net/news/show/16599.html, October 3, 2015. 69. Wei Yi and Pu Chuan: Research on Legal Issues of Fetus as Organ Transplant Donor [J], published in the Chinese Journal of Medical Education Research, 2006 (12), pp. 1184–1186. 70. Liu Denghao and Sun Luming: Carry forward the Past and Forge Ahead to Usher the New Era of the Development of Chinese Fetal Medicine— On the Second China Fetal Medicine Conference [J], Chinese Journal of Prenatal Diagnosis, 2012 (2), p. 1. 71. Some specific congenital embryo abnormalities and real progressive irreversible organ damage often occur before birth, and postnatal treatment can not improve the poor prognosis. Pediatric surgeons and newborn pediatricians have begun to consider whether they can prevent or reverse the corresponding physiological state and restore the normal development through intrauterine treatment, so as to complete prenatal screening and diagnosis from another perspective. Therefore, the clinical demand for intrauterine treatment of embryos came into being. For materials related to fetal medicine and intrauterine treatment technology, see Duan Tao: Pay Attention to the Development of Fetal Medicine [J]: Chinese Journal of Practical Gynecology and Obstetrics, 2013 (8), p. 602. 72. Ma Jingmei and Yang Huixia: Current Situation and Prospect of Fetal Medicine [J], published in Chinese Journal of Medicine, 2015 (8), p. 779. 73. For the development process and technical requirements for fetal medicine, see Current Situation and Prospect of Fetal Medicine [J] by Yang Huixia and Duan Tao, Chinese Journal of Obstetrics and Gynecology, 2010 (9), pp. 641–643; Zhou Yi, et al.: Current Situation and Development Direction of Fetal Medicine [J], Chinese Journal of Perinatal Medicine, 2012 (10), pp. 577–579. 74. Laura B Myers MD And Linda A Bulich MD: Fetal Interventional Therapy and Surgical Anesthesia [M]: translated mainly by Lian Qingquan, People’s Medical Publishing House, Beijing, 2012, p. 115. 75. Congenital diaphragmatic hernia and abdominal organs protruding into the chest affect the development of the lung. An overgrown sacrococcygeal teratoma places a burden on the embryonic heart. For details, see Gu Weirong and Li Xiaotian: Medical Ethics in Fetal Medicine [J],

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76.

77.

78.

79.

80.

81.

82. 83.

84.

85.

86.

87.

published in Chinese Journal of Practical Gynecology and Obstetrics, 2013 (8), pp. 604–608. For details, see Gu Weirong and Li Xiaotian: Medical Ethics in Fetal Medicine [J], published in Chinese Journal of Practical Gynecology and Obstetrics, 2013 (8), pp. 604–608. Laura B Myers MD And Linda A Bulich MD: Fetal Interventional Therapy and Surgical Anesthesia [M]: translated mainly by Lian Qingquan, People’s Medical Publishing House, Beijing, 2012, p. 112. Mi Yang, Huang Pu and Wang Xiangli, et al.: Intrauterine Treatment of Fetus [J], published in Chinese Journal of Woman and Child Health Research, 2006 (1), p. 31. Yang Hua: Research Status and Progress of Intrauterine Treatment of Fetus [J], published in Chinese Journal of Birth Health & Heredity, 2010 (9). Laura B Myers MD And Linda A Bulich MD: Fetal Interventional Therapy and Surgical Anesthesia [M]: translated mainly by Lian Qingquan, People’s Medical Publishing House, Beijing, 2012, p. 109. Laura B Myers MD And Linda A Bulich MD: Fetal Interventional Therapy and Surgical Anesthesia [M]: translated mainly by Lian Qingquan, People’s Medical Publishing House, Beijing, 2012, p. 106. See ➀. If ultrasound clearly shows embryonic malformations, they can be remedied by embryonic surgery rather than postnatal intervention. Compared with the uncertainty of postnatal surgery, it may be more attractive to have a healthy child and take it home directly. For another example, open embryonic surgery for embryonic spinal bifida is better than postnatal surgery for restoring the normal function of embryonic lower limbs and reducing nerve damage. For details, see Gu Weirong and Li Xiaotian: Medical Ethics in Fetal Medicine [J], published in Chinese Journal of Practical Gynecology and Obstetrics, 2013 (8), pp. 604–608. Liu Denghao: Constructing a Large Platform of Chinese Fetal Medicine on the Basis of “Four Unifications”—An Exclusive Interview with Professor Duan Tao, the Initiator of CTN [J], Chinese Journal of Prenatal Diagnosis (Electronic Version), 2014 (1), p. 38. Duan Tao: Current Situation and Prospect of Fetal Medicine [J], published in Chinese Journal of Prenatal Diagnosis (Electronic Version), 2011 (3). For details, see Gu Weirong and Li Xiaotian: Medical Ethics in Fetal Medicine [J], published in Chinese Journal of Practical Gynecology and Obstetrics, 2013 (8), pp. 604–608. Aubrey Milunsky and Jeff M Milunsky: Genetic Disorders and the Fetus Diagnosis, Prevention and Treatment (Version 6) [M], mainly translated

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91.

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by Bian Xuming, People’s Medical Publishing House, Beijing, 2013, p. 1055. Laura B Myers MD And Linda A Bulich MD: Fetal Interventional Therapy and Surgical Anesthesia [M]: translated mainly by Lian Qingquan, People’s Medical Publishing House, Beijing, 2012, p. 111. See ➀ p. 109. Thalidomide incident isn’t a case famous for drug efficacy, but for toxicity in human drug history. By the early 1960s, thalidomide had caused deformities, such as phocomelia of more than 10000 newborns in 46 countries. For a detailed discussion of thalidomide, please refer to Zhang Zhizhen and Sun Zhongshi: Thalidomide is an Unpredictable Drug [J], Chinese Journal of Medical Guide, 2000 (4), p. 53; Wang Dayou: Thalidomide over 50 Years [J], Journal of China Prescription Drug, 2012 (4), pp. 23–25; Geng Shuzheng, Wang Xiaofei and Zhang Yuwen, et al.: Research Progress on the Antitumor Effect of Thalidomide and Its Treatment of Ovarian Cancer [J], Practical Journal of Medicine & Pharmacy, 2014 (4), pp. 365–367. Diethylstilbestrol (DES) has been widely applied to gynecological treatment of estrogen deficiency and postpartum breast suppression, as well as to the treatment of prostate cancer and breast cancer since it was first synthesized by British chemists in 1938. It was used to feed animal after 1960. In 1948, a study showed that taking DES in early pregnancy could prevent abortion. Although other studies warned that DES could cause cancers, the overwhelming advertising campaign drove about millions of pregnant women to use the drug to protect their fetuses in the next 20 years. After birth, these fetuses appeared very healthy without any abnormalities. However, in their adolescence, hidden dangers began to appear one by one. Many of these girls exposed to DES in their mothers’ wombs suffered from vaginal cancer in adolescence, which was the side effect of DES that first attracted people’s attention. Further research found that the female offspring with intrauterine exposure to DES are prone to abortion when they are pregnant as adults, mainly due to the abnormal uterus caused by DES, such as T-shaped uterus and fallopian tube abnormalities. The symptoms of male fetuses caused by DES include cryptorchidism, testicular cancer, epididymal cyst, infertility and so on. For details on the side effects of DES on women, see: Deng Shengliang: Preparation of Monoclonal Antibodies against DES and Diethylstilbestrol and Study on ELISA [D], Chinese Academy of Agricultural Sciences, Beijing, 2011. Summary of Measures to Promote Medication Safety for Women— Actions of the FDA Office of Women’s Health [J], translated by Shen Lu and proofread by Li Xinling, Chinese Journal of Pharmacovigilance, 2008 (4), p. 245.

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93. Sodium valproate was regarded as a magical anticonvulsant in the 1960s. In the 1980s, it was found related to neural tube defects, and in the early twenty-first century, research showed that it would affect the neural development of the offspring of late pregnant women. 94. For a detailed discussion of relevant issues, please refer to Adverse Effects of Sodium Valproate on Female Reproduction summarized by Yu Dongshan, and proofread by Zhang Zhenliu [J], Journal of International Neurology and Neurosurgery, 2008 (06), pp. 527–530; Chen Weipeng, Lian Xiaolan and Zhang Shengjia: Efficacy and Safety Analysis of Sodium Valproate in Clinical Treatment of Epilepsy [J], China Modern Doctor, 2014 (03); Yan Yan: Pregnant Women Are Forbidden to Use Valproic Acid Antiepileptic Drugs to Prevent Migraine [J], Adverse Drug Reactions Journal, 2014 (3). 95. Summary of Measures to Promote Medication Safety for Women— Actions of the FDA Office of Women’s Health [J], translated by Shen Lu and proofread by Li Xinling, Chinese Journal of Pharmacovigilance, 2008 (4), p. 246. 96. Huo Jiping, Qu Shenghui and Zhao Zhigang: Introduction to the Pregnancy and Lactation Labeling Rule (PLLR or final rule) issued by FDA in 2014 [J], Drug Evaluation, 2015 (6), pp. 13–19. 97. Zhang Guoxi and Chen Keji: Discussion on the Participation of Pregnant and Lactating Women in Drug Trials [J], published in Traditional Chinese Drug Research and Clinical Pharmacology, 1994 (1), p. 13. 98. CHAN L M. SOS from the womb: a call for New York legislation criminalizing drug use during pregnancy [J]. Fordham Urb. LJ, 1993, 21: 199. 99. In the United States, an estimated 375000 babies are crack babies every year, and each baby costs about US $100000 for medical treatment. SEXTON P A: Imposing criminal sanctions on pregnant drug users: throwing the baby out with the bath water [J]. Washburn LJ, 1992, 32: 410. 100. Zhuang Guowei and Chen Zhixuan, et al.: Rehabilitation Medical Intervention in Children with Fetal Alcohol Syndrome [J], published in Taipei City Medical Journal, 2007 (5), pp. 339–349. 101. Huang Yican: On the Influence of Pregnant Women Who Smoke [J], published in the Chinese Journal of Women and Children Health, 1995 (163), pp. 1–3. 102. Paul Brest: Process of Constitutional Decision–Making: Cases and Materials: Volume II, Edition 4 [M], translated by Lu Fujia, Zhou Qingfeng and Zhang Qianfan, et al., China University of Political Science and Law Press, Beijing, 2002, pp. 1054–1055. 103. Article 12 of Law on the Control of Smoking in Taiwan (2009): Those under the age of 18 shall not smoke. Pregnant women shall not smoke.

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Parents, guardians or other people actually taking care of those under the age of 18 shall prohibit them from smoking. Article 13: No one shall supply cigarettes to those under the age of 18. No one shall force, induce or otherwise cause pregnant women to smoke. Article 28: Those who violate the provisions of the first item of Article 12 shall be ordered to receive smoking cessation education. If the perpetrator is under the age of 18 and is unmarried, his parents or guardians shall be ordered to make him be present. Those who fail to receive smoking cessation education without good reasons shall be fined between NT $2000 and NT $10000 at a time. If the perpetrator is under the age of 18 and is unmarried, his parents or guardians shall be punished. The measures for implementing smoking cessation education in the first item are prescribed by competent authority of the central government. Article 29 stipulates that whoever violates the provisions of Article 13 shall be fined between NT $10000 and NT $50000. 104. Article 16 of the Measures for the Administration of Human Assisted Reproductive Technology (2001) stipulates that medical institutions performing human assisted reproductive technology shall keep confidential the persons concerned and shall not disclose relevant information. Paragraph 2 of Article 21 of the Measures for the Management of Human Sperm Bank (2001) stipulates that the human sperm bank shall keep confidential the sperm donor and fertilizer, and shall not disclose relevant information without the consent of the sperm donor and fertilizer. 105. The Ethical Principles of Human Assisted Reproductive Technology and Human Sperm Bank stipulates in (5) Confidentiality Principle of the Ethical Principles of Human Assisted Reproductive Technology: (1) The principle of mutual confidentiality: where donated sperm is used in human assisted reproductive technology, the donor shall be kept confidential from the recipient couple, the donor from the medical personnel implementing human assisted reproductive technology and the donor from the offspring. (2) Medical institutions and medical personnel have the obligation to keep anonymous and confidential all participants in human assisted reproductive technology (such as egg donors and recipients). Anonymity means hiding the identity of the donor and confidentiality means hiding the fact that the donor participates in gamete donation and keep the relevant information of the recipient confidential. (3) Medical personnel have the obligation to inform the donor that any information of the recipient and its descendants shall not be inquired about and to sign a written informed consent. 106. (5) Confidentiality Principle of Human Sperm Bank stipulates: (1) In order to protect the rights and interests of the donor and recipient

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107.

108.

109.

110.

111. 112.

couples and their offspring, the donor shall be kept confidential from the recipient couple, the donor from the medical personnel implementing human assisted reproductive technology and the donor from the offspring. (2) The medical personnel of the sperm bank are obliged to keep confidential the donor, recipient and their offspring. The sperm bank should establish a strict confidentiality system and ensure its implementation, including the coded frozen semen, and the recipient identity of the frozen semen hidden from the sperm bank. (3) Neither the recipient couple nor the medical personnel of the institution implementing human assisted reproductive technology have the right to access the true identity of the donor, and the donor has no right to access all the identity information of the recipient and its offspring. Yan Feng, Ping Ping and Liu Yong, et al.: Ethics and Countermeasure Analysis of Human Sperm Bank [J], published in Chinese Medical Ethics, 2014 (4), pp. 485–487. The Supreme People’s Court Reply on the Legal Status of Children Born by Artificial Insemination during the Existence of Marital Relationship stipulates that during the existence of marital relationship, children born through artificial insemination agreed by both parties shall be regarded as legitimate children of both husband and wife, and the relevant provisions of the Marriage Law of the People’s Republic of China shall apply to the rights and obligations between parents and children. Zhang Hong: Revocation of the Presumption of Legitimate Children— Application of the Interpretation by the Supreme People’s Court Fa (Yan) Fu [1987] No. 20 [J], published in Law Edition Journal of Yunnan University, 2010 (4), pp. 15–21. Hou Yingleng: On the Legal Effect of the Surgical Consent Form Signed by Couples Undergoing Artificial Reproduction [J], published in Legal Journal of National Cheng Kung University, 2004 (2), p. 114. Jian Ping: Britain Plans to Legislate to Allow Offspring of Sperm Donors to Know Paternity [N], Legal Daily, January 29, 2004. (1) The semen of a sperm donor can be given to only up to five women to become pregnant. Assuming that each woman has only one child, after three generations, 18 people have a blood relationship with the donor, between whom marriage is prohibited by law. (2) For better births, it is best to avoid marriage between those within four or five generations. (3) If the donor has brothers, sisters or cousins, the proportion of the marriage between close relatives of the donor’s offspring will increase. (4) Studies have shown that two persons of opposite sexes with the homologous blood source have more natural sense of closeness than ordinary man and woman if they meet. If it is not found or dealt with in time, intermarriage between close relatives may occur. See Gong Aidong, Zhang Xiwei and Liu Jie: Discussion on the Impact of the

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114.

115. 116.

117.

118. 119.

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Number of AID Pregnancies in the Management of Human Sperm Bank on Marriage between Close Relatives and Social Ethics in the Future [J], Chinese Journal of Family Planning, 2006 (3), pp. 146–149. Ed Hoben, a unpaid sperm donor in the Netherlands, has been engaged in such work that affects the lives of himself and others for 12 years. Known as the “pure man in Europe”, he is the biological father of 98 children and the most prolific father in Europe. His family members spread all over the world, such as the Netherlands, Italy, Spain, France, Belgium and New Zealand. A Dutch Man Has Donated Sperm for 12 Years and Become the Biological Father of 98 Children [EB/OL]. http://sn.people.com.cn/n/2014/0321/c190205-208 31671.html, March 21, 2014. Article 21 of the Measures for the Management of Human Sperm Bank issued by the Ministry of Health stipulates that the human sperm bank shall establish the archive of sperm donors, and computerize the detailed information of sperm donors and the use of sperm, which shall be kept permanently. Jian Ping: Britain Plans to Legislate to Allow Offspring of Sperm Donors to Know Paternity [N], Legal Daily, January 29, 2004. The plaintiff, a “test tube baby”, sued the sperm donor to the court at the age of 12, asking for 196800 Yuan as his upkeep. After hearing, the court found that the plaintiff Liangliang was born by means of IVF surgery with the sperm provided by Huang, the defendant, who met Zhu, the plaintiff’s parent, in 1997. Due to infertility, Zhu and Mao signed an agreement with Huang for artificial assisted reproduction. The court held that although there is a blood relationship between the plaintiff and the defendant, the plaintiff was born in the hospital by means of IVF surgery with the written consent of his parents. Since the plaintiff was born, there has been no dependency relationship between the plaintiff and the defendant. The court didn’t support the plaintiff’s claim. Zuo Chunlin: A test tube baby sued the sperm donor to the court and the child’s mother demanded 200000 Yuan as upkeep [N], Guizhou Business Daily, May 29, 2013. Hou Yingleng: On the Legal Effect of the Surgical Consent Form Signed by Couples Undergoing Artificial Reproduction [J], published in Legal Journal of National Cheng Kung University, 2004 (2), p. 113. See ➂ p. 114. Yi Zaicheng: Research on Right to Privacy and Right to be Informed in Artificial Childbirth [J], Journal of Jiangsu University (Social Science Edition), 2003 (2), p. 52. Su Haiqing and Wang Lin: Research on Legal Protection of the Right of Sperm Donors to Privacy [J], published in Theory Research, 2013 (26), p. 134.

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121. Jian Ping: Britain Plans to Legislate to Allow Offspring of Sperm Donors to Know Paternity [N], Legal Daily, January 29, 2004. 122. See ➀ p. 135. 123. Pre-implantation genetic diagnosis (PGD), a gene diagnosis technology developed with in vitro fertilization, an assisted reproduction technology, is mainly used in IVF to check whether embryos carry genetic defects. Before implanted into the uterus, embryos from fertilized eggs after the combination of sperm and eggs in vitro should be genetically tested to judge whether they have certain disease-causing genes. Healthy genes will be implanted into the womb, and the development of disease-causing genes will be terminated. 124. Hu Dongmei: Report on Gene Diagnosis and Germ Cell Intervention before Embryo Implantation [J], Medicine and philosophy, 2004 (10), p. 7. 125. Wang Lu and Dong Lei: The First “Cancer Free Baby” in China Is Half a Year Old—23 Types of Hereditary Tumors Can Be Blocked before Birth [N], Public Health News, September 29, 2015. 126. Adam, the world’s first life-saving baby, was born in the United States on August 9, 2000. As required by his parents, he was designed through PGD technology to save his 6-year-old sister Molly who suffered from congenital immune system diseases. Finally, the doctor found stem cells matched with Molly’s tissue in Adam’s umbilical cord blood, and finally restored his sister’s hematopoietic and immune system to normal. 127. Chen Min: Discussion on the Ethical Value of Embryo Selection [J], published in Journal of Fujian Medical University (Social Sciences Edition), 2014 (1), pp. 27–30, 65. 128. See ➁. 129. Some scholars have proposed that in case of genetic disease treatment, the design of infants should be subject to the following conditions: (1) where the child is seriously sick or in life-threatening danger; (2) where the embryo itself is not in danger; (3) where all possible treatment resources have been exhausted for the sick child; (4) the design of infants is not applicable when the target recipient is a parent; (5) the design of infants can only aim to extract umbilical cord blood for treatment. If the disease to be treated is non hereditary, the selection of embryos should be more stringent. For example, parents should be evaluated to determine whether they can give the child to be born selfless love even if the treatment of his brother or sister is unsuccessful. After the birth of an embryo, each extraction of invasive tissue (such as bone marrow) should be subject to independent psychological evaluation for parents and the donor child. The number of times that a donor child’s tissues are extracted should be limited. The doctor of the donor child and the doctor of his brother or sister should be independent of each other. Each

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extraction of tissues should be approved by the parents or the doner and reviewed by the Ethics Committee. The consent of a child as a donor should be limited before he has the capacity of self-determination. For example, the extraction of umbilical cord blood should be allowed, but the donation of solid organs should be prohibited. Such donation must be decided by the child who has the capacity of autonomy of will. See Wang Liqing: Research on the Regulation of “Designed Baby”— Based on the Comparative Analysis of That in Britain and the United States [J], Guangdong Social Sciences, 2015 (1), pp. 247–256. 130. The case of Strunk v. Strunk is as follows: Arthur Strunk, 54, and Ava Strunk, 52, have two sons. One is Tommy Strunk, 28, married, suffering from chronic glomerulonephritis, a fatal kidney disease. The other is Jerry Strunk, 27, who was sent to the state hospital (and school), an institution that specially take in retarded children through legal procedures, because he is a retarded child without capacity of civil conduct and with IQ about 35, the intelligence of a 6-year-old. In addition, he has language barriers and difficulty communicating with unfamiliar people. In order to save Tommy’s life, only cadaveric and living organ donations can be considered. As it was almost impossible to obtain matched cadaveric organs, their parents and collateral relatives were tested, but none of their organs were matched. Finally, Jerry was tested and paired successfully. The mother appealed to the court for having Jerry’s organ removed and using it for transplantation. The court held that due to the particularity of this case, the removal of Jerry’s organ was beneficial to both Tommy and Jerry, because Jerry was very dependent on Tommy emotionally and mentally and his health would be more seriously endangered if retaining his kidney led to his brother’s death. After testing Jerry, the psychiatrist who cared for him said that Tommy’s death would have an “extremely serious traumatic impact” on Jerry. The National Mental Health Administration participated in the case as the department assisting the court in interpreting the law. After considering importance of the operation and evaluating the serious traumatic impact of Tommy’s death on Jerry, the National Mental Health Administration also made a positive recommendation that the court allow Jerry to undergo organ transplantation surgery. The court approved the donation through judicial procedures in the best interests of the person without capacity of civil conduct. 131. Lisa, Mundy. A world of their own [J]. Washington post magazine 2002, p. 03. 132. The opposite case occurred in Australia. In the summer of 2003, an infertility clinic in Australia announced that it detected embryos carrying the surdimutism gene by means of PGD and chose not to transplant

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133.

134.

135. 136. 137.

138. 139. 140. 141.

142. 143.

them. The decision was opposed by disability activists. They believed that surdimutism was not life-threatening, and the surdimutism gene was not sure to occur. In addition, they thought that the wide application of PGD to this would lead to smaller population with surdimutism, and make things more difficult for them. See SPRIGGS M. Lesbian couple create a child who is deaf like them [J]. Journal of medical ethics, 2002, 28 (5)pp. 283–283. Chen Min: Discussion on the Ethical Value of Embryo Selection [J], published in Journal of Fujian Medical University (Social Sciences Edition), 2014 (1), pp. 27–30, 65. In March 2009, Dr. Jeff Steinberg announced that his fertility clinic was about to launch a customized baby business—parents can customize a perfect baby they want, and choose the baby’s gender, hair, eyes and even skin color at will, just like tailoring an assembled computer. Fan Ruiping: Contemporary Confucian Bioethics [M], Peking University Press, Beijing, 2011, p. 326. See ➁ p. 328. From the perspective of theory of human nature, Habermas believes that only when everyone sees himself as an equal member of mankind and a member of the race can he avoid manipulating other lives and taking others as tools. Only when the subject-object relationship between people is changed into the subject-subject relationship from the broad vision of anthropology, can we deeply understand the philosophical basis and humanistic connotation of the principle of respect in bioethics, so as to point out the direction for the moral use of technology. Liu Junxiang and Qiu Renzong: Habermas’s Demonstration of Human Nature Theory on the Application of Gene Technology [J], Medicine and Philosophy, 2005 (13), pp. 19–22. Zhang Chunmei: Research on Ethics of Gene Technology [M], People’s Publishing House, Beijing, 2013, p. 106. Wang Kang: Private Law Norms of the Right to Gene [M], China Legal Publishing House, Beijing, 2014, p. 222. See ➁. Zhang Xinqing: Ethical Review of Gene Therapy [M], China Social Sciences Press, Beijing, 2014, p. 129. Suppose a couple is introverted, and the wife often complains that the honest man suffers losses. The wife hopes to try a special gene enhancement technology—enhanced aggressive or extrovert genes, to make the offspring extroverted and enterprising. Can the couple’s wish to design an extroverted child by intervening in the genes of early embryos be realized? The answer is No. ➀ Zhang Chunmei: Research on the Ethics of Gene Technology [M], People’s Publishing House, Beijing, 2013, p. 92. See ➀ p. 94.

CHAPTER 8

Conclusions

Reproduction refers to the natural and artificial assisted fertilization, pregnancy and childbirth by natural persons. The right to reproduction refers to the right to dominate fertilization, pregnancy and childbirth. The core of the right to reproduction is the freedom of reproduction, including the freedom of the time of reproduction, of the number of children, of the mode of reproduction, of the place of reproduction and of the means of avoiding and terminating pregnancy. The right to self-determination is the right of the obligee to make self-determination and shaping of his specific personality elements. In essence, women’s right to reproductive self-determination is a personality freedom integrating legal significance such as rights and obligations, and biological nature and family ethics as it focuses on the right while strengthening the responsibilities of the right subject, including the responsibilities for the mother of life, the physical and mental health of future life and for the survival of other lives in society. On this basis, this book provides insights into women’s right to reproductive self-determination, preliminarily constructs the theoretical system and institutional framework of this right, and makes suggestions for improving the system of this right in China in terms of the protection of and restrictions on this right.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 W. Jiang, Women’s Right to Reproductive Self-Determination from the Perspective of Civil Law, https://doi.org/10.1007/978-981-19-2790-4_8

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8.1

Improve the System of Protecting Women’s Right to Reproductive Self-Determination in China

This book proposes that the system of protecting women’s right to reproductive self-determination should be improved in four aspects: clarifying the legal status of women’s right to reproductive self-determination, establishing a mechanism for women independently exercising this right, clarifying a standard for medical institutions performing their obligation to inform patients, and formulating a system of classifying the capacity of self-determination. (1) Women’s right to reproductive self-determination should be legally stipulated as an independent civil right Traditionally, western legal philosophy defines all the activities necessary for human beings to maintain their own existence as the private sphere, which is absolutely dominated by individual freedom of will. As a typical activity in the private sphere, reproduction is considered as a purely natural process, which is called natural reproduction. The fertilized egg from the combination of parents’ germ cells has the inherent potential to grow into a person—like a seed, it will automatically complete development according to its own law as long as appropriate conditions are met. Therefore, reproduction can fall under personal freedom, and be regarded as private behavior not open to society. Few rules for the public sphere are directly applicable to reproductive behavior. As a free personality, women’s right to reproductive self-determination exists on the basis of independent and free exercise of this right. Therefore, the protection of the free exercise of this right can’t be ignored. The Outline for the Development of Chinese Women (2011–2020) issued by the State Council in 2011 proposed guaranteeing women’s right to self-determination of contraception and birth control, implementing self-determination of contraception and birth control, preventing and controlling unwanted pregnancy and induced abortion. In view of this, this book proposes that by improving women’s self-awareness and professional capacity of self-determination, we should create a legal and social environment that enables women to effectively make independent decisions and their quality of life and health to be significantly improved. Most importantly, we should clarify the legal status of women’s right to reproductive self-determination as an independent civil right through

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legislation and recognize women’s right to make decisions freely at their will on reproduction in accordance with the provisions of the Constitution of the people’s Republic of China and the Law of the People’s Republic of China on the Protection of Women’s Rights and Interests, as well as with the purposes of international conventions such as the United Nations Convention on the Elimination of All Forms of Discrimination against Women. (2) A mechanism should be established to ensure women’s exercise of the right to reproductive self-determination The protection of women’s right to reproductive self-determination in China still faces many difficulties and challenges. In practice, women are still subject to too much intervention from the family and society in exercising their right to reproductive self-determination. This means that the protection of the right of women as independent civil subjects to self-determination for their health and development needs to be further improved. It is of great significance to the socio-economic development as well as the civilization and progress of the Chinese nation to protect women’s rights and interests and promote women’s development and gender equality. Therefore, this book proposes establishing an effective mechanism to ensure women’s exercise of the right to reproductive selfdetermination. Under normal circumstances, medical institutions should perform treatment by fully respecting women’s exercise of the right to reproductive self-determination at their own wishes. When women refuse to continue medical treatment for special reasons such as religious belief, medical institutions should still respect their independent decisions as long as the refusal does not involve the protection of public interests and embryonic interests. That women are required to make decisions only with the consent of their spouses constitutes a substantive restriction on their right to reproductive self-determination. Women’s decisions made in the case of duress are not effective. (3) A standard should be established for medical institutions to inform patients to ensure women’s exercise of the right to reproductive self-determination As of 2012, the in-hospital delivery rate was 100% in municipalities directly under the central government such as Beijing and Shanghai and Shandong and Zhejiang provinces, and the in-hospital delivery rate

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of pregnant women across China was 99.2%. The statistical data show that at present, the vast majority of Chinese women inevitably have to communicate with medical institutions in exercising their right to reproductive self-determination as in-hospital delivery can effectively reduce the maternal mortality rate. Women also need to contact and communicate more closely with medical institutions when exercising their right to reproductive self-determination in the use of artificial assisted reproductive technology or genetic technology. All this is the important reason why this book chooses to associate women’s right to reproductive selfdetermination with medical institutions for research. This book proposes that whether medical institutions fulfill the obligation of notification in accordance with legal standards should be the premise of judging the effectiveness of women’s right to reproductive self-determination. A standard should be established for medical institutions to inform patients to ensure women’s exercise of the right to reproductive self-determination. Under the system of modern doctor–patient relationship, we should establish a compromise standard between the standard of rational patients and the standard of specific patients, and fully consider women’s specific conditions for effective notification. (4) A system should be formulated to classify the capacity of selfdetermination to ensure women’s exercise of the right to reproductive self-determination In practice, there are women with different capacity of self-determination, such as mentally retarded women, vegetative women and women with brain death. However, as there is a lack of standard for women’s capacity of reproductive self-determination in legislation and practice, it is difficult to determine the effectiveness of women’s capacity of reproductive selfdetermination. This causes damage to women’s life and physical health, and intensifies the contradiction between doctors and patients. Therefore, this book proposes that China should formulate a guideline to classify women’s capacity of reproductive self-determination to ensure that different types of women, including women with full capacity of self-determination, women with a restrictive capacity of self-determination and women without capacity of self-determination, can fully realize their right to reproductive self-determination. Normally, women over the age

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of 18 should be regarded as having full capacity of reproductive selfdetermination and can independently exercise their right to decision on reproduction. In the case of doubt about full capacity of reproductive selfdetermination, medical institutions should judge whether a woman has the capacity of reproductive self-determination according to her age, intelligence, mentality and the nature of the proposed treatment. For women with a restrictive capacity of self-determination, China should conditionally recognize the capacity of underage women to decide to terminate pregnancy after sexual assault by their guardians and establish a standard to classify the capacity of reproductive self-determination of women with intellectual disabilities. For women without the capacity of reproductive self-determination, China should establish a system of exercising the right to reproductive self-determination for vegetative women and brain dead women to protect their best interests.

8.2

Improve the System of Restricting Women’s Right to Reproductive Self-Determination in China

Human reproduction has become an obvious social and public behavior that can produce substantive effects as it changes from natural reproduction to the coexistence of natural reproduction and artificial reproduction. Therefore, this book thinks that medical ethics and laws can and should intervene in women’s right to reproductive self-determination. The state should improve the system of restricting women’s right to reproductive self-determination in China legally and ethically to protect the interests of men, third parties, medical institutions and embryos. (1) It is necessary to establish a sound system to restrict women’s right to reproductive self-determination First, human fertility has begun to change from natural fertility to the coexistence of natural fertility and artificial fertility. The application of new technologies such as assisted reproductive technology and gene treatment to human reproduction means that human fertility has begun to change from natural fertility to the coexistence of natural fertility and artificial fertility. A growing number of women choose assisted reproductive technology or gene treatment technology to

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achieve fertility and even specific reproductive purposes because in natural reproduction, the health of offspring completely depends on luck, while in artificial reproduction, health can be predicted and intervened by genetic technology. Second, the legal relationship arising from human reproduction has evolved from a bilateral relationship to one between husband, wife, the medical institution, the state and other parties. Compared with the traditional natural reproduction, the application of new technologies such as assisted reproductive technology and gene treatment to human reproduction involves obvious public interests. Fertility is no longer a purely private affair between husband and wife. The legal relationship arising from human reproduction has evolved from a bilateral relationship to one between husband, wife, the medical institution, the state and other parties. On the one hand, medical institutions and the state have increasingly participated in the reproduction between husband and wife. In unnatural fertility, couples can complete reproduction only with the theoretical, material and technological support provided by medical institutions and joint efforts of doctors, nurses and other personnel. On the other hand, the attitude of legislative organs, administrative organs and medical ethics committees toward reproduction will affect and even determine whether women will make the decision on assisted reproduction and whether this decision can be realized. Third, human reproduction has evolved from a private affair that can’t be interfered by society to a public affair that may damage public interests. The wide application of life science and technology such as assisted reproductive technology and gene treatment to fertility has not only greatly helped treat diseases and improve life quality, but also produced ethical and legal challenges. The use of genetic technology to transform embryonic genes involves the rights and interests of not only the person concerned, but also the whole family and even the whole mankind, and affects both the contemporary people and the future people. It is attempting to say that human reproduction is no longer a private family affair without social intervention but involves

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increasing social and public interests. It is likely to evolve into a social and public behavior that must be subject to the evaluation and intervention by the overall rights and interests of the society. (2) It is necessary to strengthen the legislation of a system to restrict women’s right to reproductive self-determination in China Strengthening the legislation of a system to restrict women’s right to reproductive self-determination aims to prevent the abuse of rights and punish the illegal acts in women’s exercise of the right to reproductive self-determination. However, restrictions are legal and effective only when they are implemented in strict accordance with the authorities and procedures stipulated by laws and regulations. This book proposes that a system to restrict women’s right to reproductive self-determination in China should be improved in four aspects: men, third parties, medical reasons and embryos. First, women’s right to reproductive self-determination is restricted by men’s right to reproductive self-determination. Under special circumstances such as test tube baby in infertility treatment, a decision made by a woman without the consent of her husband infringes on his independent decision, although the medical behavior is not directly implemented on him or doesn’t directly harm his physical integrity. Therefore, it should be stipulated that under specific circumstances such as infertility treatment, the right to reproductive self-determination shall be realized with the consent of both husband and wife, and exercised by both husband and wife. Second, it is necessary to restrict women’s right to reproductive selfdetermination to protect the interests of a third party. Medical institutions’ obligation to inform third parties besides women patients under specific conditions violates in form the provision that in women’s reproduction, only women patients should be informed. However, in essence, it does not constitute a violation of women’s right to reproductive self-determination in view of the obligation of medical institutions to protect third parties in the case of AIDS, mental illnesses, familial genetic diseases and other special diseases. Accordingly, the suggestions are as follows: (1) a third paragraph should be added to Article 55 of the Tort Liability Law: If

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a third person other than the patient has an stake in the patient’s medical information and is in actual danger, the medical institution can inform the third person of the patient’s condition and other information. (2) Article 62 should be amended to read: Medical institutions and their medical personnel shall keep the privacy of patients confidential. Those who disclose patients’ medical records or privacy without the consent of patients and damage their interests shall bear the liability for infringement, except for the protection of third parties. Third, it is necessary to restrict women’s right to reproductive selfdetermination for medical reasons. Medical reasons such as compulsory medical treatment, protective medical treatment and emergency treatment, which are grounds for exemption from the liability for restricting women’s right to reproductive self-determination, should be standardized in application in terms of procedures and conditions. Provisions should be proposed that medical institutions should review in the procedure of compulsory medical decisions. A medical institution shall establish a mechanism to separate the decision-making from the implementation of the decision and allow them to restrict each other when it makes a compulsory medical decision and is responsible for the implementation of this decision. The second half sentence of Paragraph 1 of Article 55 of the Tort Liability Law can be revised to read: When judging whether it is appropriate to notify the patient, the medical institution should consider the patient’s age, psychology, state of illness and other factors. The decision shall be made by two doctors other than the attending doctor. Article 56 of the Tort Liability Law can be amended as follows: When a medical institution’s failure to obtain in time the independent decision made by the patient in a coma or unconsciousness may endanger the patient’s life, the medical institution can be exempted from the obligation of notification, and take corresponding treatment measures. Where the patient’s close relatives have difficulties in making a unanimous decision or decide to refuse treatment, which may endanger the patient’s life, the medical institution can judge whether treatment should be adopted to protect the patient’s best interests. Fourth, it is necessary to restrict women’s right to reproductive selfdetermination to protect the personality interests of embryos.

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(a) It is necessary to restrict women’s right to reproductive selfdetermination to protect the life and health interests of embryos. It is proposed that a second paragraph should be added to Article 56 of the Tort Liability Law: The medical institution shall fully respect the patient’s independent decision to refuse treatment and shall not force treatment when it has performed the obligation of notification. Where a woman refuses treatment, the medical institution can perform treatment if it believes that it is necessary to protect the life and health interests of embryos. It is also suggested that relevant laws and regulations should stipulate: It is necessary to treat embryos as patients with the technological development of physical contact treatment of embryos in utero by embryo surgery. A woman has two roles when she signs a written decision on embryo surgery: acting on behalf of the embryo and exercising her right to self-determination. The medical institution needs to consider the interests of both the woman and the embryo before making a decision. (b) The informed interest of embryos shall not be widely restricted but protected when a woman signs a confidentiality agreement with the medical institution. An embryo may request the medical institution to inform it of the specific information of its blood-related father or mother, if necessary, after it is born. It is suggested that the following provisions should be added to the Principles for the Protection of Future Generations in Ethical Principles for Human Assisted Reproductive Technology and Human Sperm Bank: For special reasons such as the prevention and treatment of serious diseases and familial genetic diseases, children of artificial assisted reproduction can query the name, age and other identity information of sperm or egg donors. To-be couples who are born through assisted reproductive technology can query the name, age and other identity information of the donors of sperm and eggs in order to avoid marriage between direct blood relatives and collateral blood relatives within three generations prohibited in the marriage law. Strict inquiry procedures should also be formulated. (c) The effectiveness of women’s reproductive self-determination should be determined according to the difference in the type of genetic technology. It is suggested that relevant laws should stipulate: Any diagnosis and treatment shall not damage the integrity of race. Transformation of genetic characteristics of humans to change

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their offspring is prohibited, except for the prevention and treatment of genetic diseases. All eugenic treatment that seeks to select people is prohibited. (d) Women should be conditionally allowed to participate in human trials. Provisions are proposed that medical institutions can test pregnant women when the trial is of direct benefit to the health of pregnant women or their embryos. If it is of no direct benefit to the health of pregnant women or their embryos, the trial must meet the following conditions: ➀ The trial aims to provide benefits to other women, embryos or children to the greatest extent. ➁ Similar trials cannot be conducted on women who are not pregnant. ➂ The trial may lead to only minimal risk and burden. For trials conducted on lactating women, special measures must be taken to avoid any damage to embryonic health. When tested on, women of childbearing age who are not pregnant or lactating shall be informed of anything known that may impair their future fertility and embryonic health. (e) The state should restrict women to smoking and drinking and other behaviors. Therefore, it is suggested that pregnant women should be prohibited from conducting the following acts that impair embryonic development: taking and injecting drugs, excessive drinking, smoking, illegal use of controlled drugs and other behaviors that impair embryonic development. No one shall force, induce or otherwise cause a pregnant woman to commit the abovementioned acts that impair embryonic development. The medical institution shall report to the civil administration department or other relevant departments a pregnant woman who is found, in diagnosis and treatment, committing the above-mentioned acts that impair embryonic development. After receiving the report, the civil administration department or other relevant departments may, depending on the seriousness of the circumstances, warn or fine the woman or take other measures to restrict the pregnant woman from committing acts that impair embryonic development. When necessary, the civil administration department may request the competent organ to revoke her guardianship in order to protect the rights and interests of the embryo.

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(3) It is necessary to improve the ethics committee system to strengthen the review of women’s right to reproductive selfdetermination Science and technology, if applied to clinical medicine, are doubleedged swords: they can certainly save people from impasse while teasing human ethics and dignity. Women don’t always make decisions on behalf of embryos for the interests of embryos but probably for the interests of women themselves or others. Medical institutions challenging unknown fields may bring professional honor to them, but may also pose challenges to the ethical baseline of the whole human society. The law is not all-purpose, so there must be a blank space for legislation. It is necessary to judge whether women’s right to reproductive self-determination is effective in accordance with medical ethics. Therefore, it is necessary to improve the ethics committee system to strengthen the review of women’s right to reproductive self-determination, and clarify the following rules: the avoidance system should be adopted for the ethics committee. The members of the ethics committee should be diverse and representative in terms of profession, gender, nationality and age, and be composed of experts in medicine, law, ethics, sociology and other related fields. It shall supervise the whole process of events with disputes over reproductive ethics, and inform, explain, demonstrate and review ethical issues. The decisions made by the ethics committee should be respected by both medical institutions and women.

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