Introduction
Recently, "IVF found that the embryo was misplaced 8 years after birth" appeared on the hot search. The son was born by Chen Dong and his ex-wife through IVF in a third-class hospital in Anhui. The court found that the hospital was medically wrong. On February 17, 60-year-old Chen Dong was still campaigning for his child's affairs.
Is "Can't find out" the end of the matter?
If you want to find out the whereabouts of your child, can you appeal again after the first-instance judgment?
What should happen to the child that Chen Dong is currently raising going?
Beijing Traffic Radio's "1039 Morning News" program invited Liu Xin, professor of China University of Political Science and Law, and Wang Yue, professor of the School of Medical Humanities of Peking University, to discuss together.
IVF was discovered 8 years after birth and mistaken
The hospital advises to be open-minded
The general event is as follows: 11 years ago, Chen Dong and his ex-wife gave birth to their son Xiaoxuan through test-tube surgery in the First Affiliated Hospital of Anhui Medical University due to infertility after marriage. 8 years later, they accidentally discovered that Xiao Xuan was not related to them, and the hospital put someone else's embryo in the belly of his ex-wife. After securing the evidence, the couple filed a lawsuit against the hospital.
During the litigation, the report issued by the judicial appraisal agency showed that the possibility of Xiaoxuan making mistakes in the production process was extremely low; In embryo cryopreservation, hospitals have problems such as duplicate numbers, imperfect embryo thawing records, and failure to reflect the verification process, and there are medical errors, and the causal relationship between the fault and the consequences cannot be clear, but there is a high degree of certainty between them.
The court then determined that the hospital's diagnosis and treatment and nursing process were all at fault, and based on the analysis of the fault situation, combined with daily life experience, it was highly probable to presume that there was a causal relationship between the medical fault and the actual consequences. The hospital bears 100% compensation for the damage consequences claimed by the couple and compensates 640,000 yuan for various losses.
After the first trial, Chen Dong asked the hospital to find out who Xiao Xuan's biological parents were, where his embryos had gone, and whether his children were alive. But the hospital said it could not identify the child's biological parents or where their embryos had gone. The director of the hospital's reproductive center also said that "life should be open-minded, there is no need to care":
(Image quoted from the Internet)
Director Wei:
This kind of accident cannot be denied, it is extremely rare. I went to their culture room and searched repeatedly, but I couldn't find it, all the jars were brought back, and then all of them were found, no, there was no embryo from you, and they later thought that your embryo was not good. The embryos were all during the screening period, signed by two people. Therefore, you look at the court and dare not say 100%. Because follow the operation, that's right.
There are many things you can encounter in life, like a lot of experience in your life, in fact, in the end is a tolerance, I can reflect with the hospital about your previous things, in fact, in the end, people are open-minded.
The hospital was clearly at fault
Criminal liability may be instituted
Today, 60-year-old Chen Dong is still campaigning for his children. He said that he still hopes to find Xiaoxuan's biological parents and confirm whether his embryo has a child alive, just in case the child is seriously ill and needs a relative matching to save his life.
Looking at this incident, based on the existing facts, Liu Xin, director of the Research Center for Medical Law and Ethics at China University of Political Science and Law, believes that the hospital's fault is very obvious, and it can be said that this reproductive center seriously violated some national laws and regulations on medical and health management, and it is natural to judge that it should bear full responsibility:
Liu Xin:
One aspect is that you look at its liquid nitrogen tank that stores embryos, a tank can be placed several times, each mention can put a lot of tubes, and its number is numbered by date, it is numbered by date, that the same day may collect multiple subjects of embryos or sperm, is completely confusing. Therefore, the appraisal agency believes that its numbering method has no unique direction, and it is completely possible to be confused.
On the other hand, we can also see what the patient said, when the sperm was taken to the window of the reproductive center, no one cared, which is completely likely to be mistaken, not to mention man-made destruction.
Wang Yue, a professor at Peking University's School of Medical Humanities, also said that the hospital was clearly at fault. In this case, the medical staff not only truthfully informed the parties of the actual situation of poor embryo culture, but also used other embryos for assisted reproductive technology without the consent of the parties, which seriously violated the standards of human assisted reproductive technology behavior and the ethical principles of informed consent. He believes that in addition to civil compensation, it may also be possible to pursue the criminal liability of hospitals:
Wang Yue:
Medical institutions fail to preserve embryos in accordance with the norms, fail to provide effective traceability case information and records, and fail to prove the accurate information of the embryo, which should be said to be a violation of the "Human Assisted Reproductive Technology Specifications" and "Human Assisted Reproductive Technology Management Measures", in addition to civil compensation, the corresponding administrative organs can warn the medical institution, impose a fine of less than 30,000 yuan, and give administrative sanctions to the responsible person.
Then, when the guardianship and parental authority of the parties are harmed due to serious medical negligence, should the corresponding criminal responsibility also be pursued? Our criminal law is indeed blank. I personally believe that new crimes can be established through amendments to investigate the criminal responsibility of relevant seriously irresponsible parties, which can play a better deterrent effect, and will also make medical institutions more cautious and standardized in the implementation of artificial assisted reproductive technology.
In particular, it should be noted that sometimes the harm of such guardianship and parental authority may be greater than the simple disability, and the harm to a person and a family will be greater, so it should receive legal attention and corresponding institutional arrangements.
The doctor said that it was impossible to find the embryo
In response to the hospital's statement that the embryo could not be found, in Professor Liu Xin's view, it is indeed difficult to check, but saying that it is obviously not fulfilling the obligation to find it, and there is no substantive search:
Liu Xin:
Because the liquid nitrogen tank where the embryos are stored, it will put a large number of allogeneic fertilized embryos, take it and you will look at the number, just look at the number, how do you know who is who? That is, the hospital did not really look for it.
In the report, some experts said that this can be completely recovered, that is, take the information of the person who received the fertilization operation that day to do paternity testing, if it is wrong in this link, of course, it can be found, but in fact it can happen in front, sperm eggs because your label is not clear, there is no unique directionality, if you are wrong in the previous link, then the scope of this error may be greater.
And the hospital itself also said that it is likely that the embryos of Chen Dong and his wife were unsuccessful, so they didn't use it and used someone else's. If that's the case, from the point of view of mistakes, the scope of this mistake is very large.
There is no uniform national process for assisted reproductive technology
Professor Wang Yue said that in 2011, the mainland was in the early stage of the application and development of artificial assisted reproductive technology, there was a chaotic management system and illegal implementation of assisted reproductive technology, and there was no standardized basis for the process and supervision. At present, the mainland still has few and broad rules for ensuring the accurate process of embryos, and it is necessary to further improve relevant laws and regulations and formulate detailed and standardized behavior standards. The National Health Commission has also initiated the formulation of the Regulations on the Administration of Assisted Reproductive Technology (Draft):
Wang Yue:
According to the 2003 Code of Human Assisted Reproductive Technology, there must be a complete and sound rules and regulations for artificial insemination, and there are detailed regulations for the operation.
In practice, it is generally guaranteed through the following processes: single tube and single dish for medical equipment; Egg retrieval, semen optimization treatment, in vitro fertilization, embryo culture, transfer, to embryo freezing and thawing of the whole process of double check signature; As well as manual dual-check or chip scanning code verification are indispensable.
It should be said that the provisions of these systems may sometimes have problems in the implementation process, so I personally think that what is more important is the clarification of legal responsibility, especially the setting of new crimes of criminal responsibility, which can avoid similar tragedies in the future.
Or the whereabouts of embryos can be found through social forces
Professor Liu Xin also said that the country does not have a unified standard, only general or general regulations, and the specific process of implementing reproductive assistance technology in each hospital is different. He believes that according to the current litigation procedure, it is unlikely that Chen Dong will recover his embryo, and the appeal will end here:
Liu Xin:
Because now it is a civil lawsuit, the civil lawsuit itself and our procedural principles are who claims who gives evidence in terms of evidence, and from the perspective of the reproductive center, now I think he does not have the enthusiasm to present evidence, anyway, he has been judged to be responsible. Therefore, even if the appeal is made again, this work will end here, and there can be no deeper progress.
Even if we say that we apply to the court to investigate ex officio, in fact, as a civil judge and civil court, his investigation authority, investigation experience, and investigation ability are limited.
Professor Wang Yue also believes that under the existing legal framework, it is impossible to find the whereabouts of the embryos, but it is possible to appeal for higher civil compensation, and at the same time, he called for the creation of new criminal law crimes to prevent similar incidents from happening again, or that the whereabouts of embryos can be found through social forces:
Wang Yue:
Because of the criminal law charges, it is convenient for the public security organs to file a case and investigate this matter, and now it is difficult for the public security organs to find the corresponding legal basis to file a case to pursue the criminal responsibility of the parties, and it is difficult to use this public power to find out the facts.
However, it is not ruled out that it can be solved by social forces, such as whether it is possible to understand which families did assisted reproduction during this period, and whether it is convenient to find the embryos at that time, and whether it is wrong to give to other families.
The investigation can continue through both administrative and criminal proceedings
However, Professor Liu Xin said that we can think about how to trace the whereabouts of embryos from another perspective, including two ways, one is through administrative procedures and the other is through criminal procedures. If you check through the administrative process, it looks like this:
Liu Xin:
Relevant reports mentioned that the local health administration has paid attention, and it is not enough to say that one concern is enough, because this is a serious medical malpractice incident, and the health administrative department should immediately file a case for investigation and immediately order the human assisted reproduction center to stop all work and rectify. Therefore, I think that there is a suspicion of inaction by the health administration here.
Now in response to this matter, we have to go through administrative procedures to investigate, and as the parties themselves, we can also report it. Then the administrative department initiates the administrative investigation procedure, you can directly intervene in this reproductive center, and then check his relevant files, relevant records, find relevant personnel to ask and talk, including his liquid nitrogen tank, if necessary, even we have to visit the previous party, if necessary, we can even do the corresponding paternity test. Of course, if you do it from the administrative procedure, its mandatory is worse, and he must obtain the consent of these parents to do it, so this is a little more difficult.
However, if these parents know that it is possible to make a mistake, I think everyone is willing to do it together, after all, they really want to find out whether this child is mine.
The tracing of criminal procedures is as follows, Professor Liu Xin introduced:
Liu Xin:
I think this case is a criminal offense. There is a medical malpractice crime in our Criminal Law, and whether this case constitutes a medical malpractice crime may be a bit far-fetched, because the provisions of the Criminal Law on the crime of medical malpractice, Article 335 of the Criminal Law, it requires that the consequence is the death of the patient or serious damage to the patient's physical health, so it may be almost meaningless in terms of consequences.
However, there is another crime in Article 134 of our Criminal Law, called the crime of major production liability accident. The crime of major production liability accident is that the relevant production unit violates the safety management regulations, causing casualties or other serious losses.
In this incident, the hospital made people's sperm and eggs wrong, the children were wrong, this is a major loss, so, from this point of view, we should go to the public security organ to report criminal intervention, criminal intervention is of course much greater than administrative procedures, and then further to trace, to investigate, to verify the relevant situation, I think this strength will be greater, so the possibility of finding will be greater.
Where is this child going?
Some experts said that if the hospital knows who the child's biological parents are, whether it should tell the child is an ethical issue discussed in the academic community, and the regulations of different countries are different. So what about this child at the moment? Is he considered the child of Chen Dong and his wife without any blood relation? In this regard, Professor Wang Yue said that according to the existing laws and regulations, this child is the legitimate son of Chen Dong and his wife:
Wang Yue:
In this case, it should be said that according to the provisions of the 1991 Letter of the Supreme People's Court on the Legal Status of Children Born by Artificial Insemination during the Existence of the Relationship between Husband and Wife, if both parties agree to perform artificial assisted reproduction during the existence of the relationship between husband and wife, the children born should be regarded as legitimate children of both husband and wife, and the relevant provisions of the Marriage Law apply to this right and obligation between the parents.
Therefore, the people's courts should still uphold the principle of maximum protection of children's interests and respect for children's right to survival and development, and at present, they should still raise the child.
Chen Dong's ex-wife said on the 21st that after the incident was reported, the hospital met with Chen Dong and had reached a preliminary agreement, and said that the feelings between the two for the child would not change, and they would treat the child as always. This is perhaps the most gratifying aspect of this messy incident. However, the whereabouts of the embryos, who Xiao Xuan's biological parents are, whether the punishment imposed by the hospital is limited to the first-instance verdict, and how to avoid similar incidents from happening again are still mysteries to be solved. It is hoped that the relevant departments can effectively take responsibility and give a clear explanation to the public.
At the end of the day, children are the most innocent
What do you think about this?
Content transferred from: 1039 News Morning Bus WeChat public account
Source: Beijing Traffic Radio