If the spouse dies during the embryo transfer operation, and the party requests to continue the operation, how will the people's court handle it?

Ms. Wang alleged: In 2018, Ms. Wang and her husband reached a medical service contract with a hospital in Xiamen, stipulating that a hospital in Xiamen would provide embryo freezing, storage, and transfer services for the couple. Later, Mr. and Mrs. Wang performed the first embryo transfer operation in a hospital in Xiamen, but failed to conceive. In April 2020, Mr. and Mrs. Wang went to a hospital in Xiamen again for a physical examination, and planned to perform embryo transfer surgery again in May 2020, but Mr. Wang died unexpectedly on May 6, 2020. Wang's daughter repeatedly asked to continue the operation, but a hospital in Xiamen refused to continue to perform the medical service contract on the grounds that her spouse had died. Wang's continued completion of the operation after being widowed is not only to inherit her husband's bloodline, but also to her husband's last wishes, which entrusts all the hopes of both families, and is also a legal way to realize her reproductive rights, and there is no violation of ethics and relevant legal rules.

A hospital in Xiamen argued that after a special discussion by the medical ethics committee of a hospital in Xiamen, all the participants in the meeting believed that it was not appropriate to continue to perform the contract. First of all, Wang's husband died unexpectedly, and Wang's daughter should belong to the category of single women. According to the social welfare principle in the "Ethical Principles of Human Assisted Reproductive Technology and Human Sperm Bank" promulgated by the Ministry of Health, a hospital in Xiamen cannot perform embryo transfer surgery for Wang Mou. Secondly, the principle of informed consent in the above-mentioned ethical principles stipulates that human assisted reproductive technology can only be implemented after the voluntary consent of both spouses and the signing of a written informed consent form. Now Wang's husband has passed away and she is unable to sign the relevant documents, and the necessary procedures for the operation cannot be completed. Thirdly, the principle of the protection of offspring in the above-mentioned ethical principles stipulates that medical personnel are obliged to stop the implementation of assisted human reproductive technology if there is evidence that the implementation of the technology will cause serious physical, psychological and social harm to the offspring. If Wang's daughter gives birth to a child through embryo transfer surgery, the child will be born without a father, and growing up in a single-parent environment will easily have a negative impact on her physiology, psychology, personality, etc.; Although Wang's in-laws are willing to help raise and take care of the child, the two elderly people are already some old after all, and it is objectively difficult to take care of the child until the age of 18; And there is no evidence to prove whether Wang's daughter is materially prepared for the arrival of a new life. In summary, a hospital in Xiamen stopped the embryo transfer operation of Wang's daughter, which was in line with relevant legal provisions and ethical principles. Emotionally, a hospital in Xiamen sympathized with his plight and could understand his actions of filing a lawsuit against the hospital, but the hospital could not break the legal provisions and relevant ethical principles and ask the court to give reasonable judgment guidance.

After trial, the court found that Wang and Wang registered their marriage in 2015, and did not give birth to children after marriage, nor did they adopt children. In early September 2018, the two began to be treated at a hospital in Xiamen due to infertility and requested in vitro fertilization-embryo transfer (IVF-ET) surgery.

On November 26, 2018, Mr. and Mrs. Wang signed a "Informed Consent Form for Voluntary Acceptance of IVF Treatment", which stated: "Our wife, Mrs. Wang, and husband Wang, because they could not conceive smoothly, voluntarily underwent routine in vitro fertilization-embryo transfer after careful consideration, and authorized a hospital in Xiamen to exercise the diagnosis and treatment of IVF for our couple. "The hospital has clearly informed the following...... 1. Basic process: completely different from natural pregnancy, IVF-ET needs to carry out various auxiliary examinations to eliminate contraindications - drug injection superovulation - multiple B ultrasound and endocrine monitoring - egg retrieval - semen collection and processing - in vitro fertilization - embryo culture - embryo transfer - drug luteal phase support postoperative monitoring and pregnancy establishment, timely blood test and B ultrasound monitoring of embryo growth and development and other ......", Article 21 of the informed consent form "The rights of our couple" states that Mr. and Mrs. Wang have the right to informed consent and the right to make final treatment decisions", "have the right to freely choose the treatment of their gametes and embryos, but they are not allowed to buy or sell ......".

In January 2019, a hospital in Xiamen conducted the first egg retrieval for Wang Mou's daughter, but no usable embryos were obtained. On July 30, 2019, Mr. and Mrs. Wang signed the second "Informed Consent Form for Voluntary Acceptance of IVF Treatment", which is consistent with the foregoing. On the same day, Mr. and Mrs. Wang also signed the "Informed Consent Form for Voluntary Acceptance of Intracytoplasmic Sperm Microinjection-Embryo Transfer (ICSI-ET)", indicating that they were willing to accept the transfer in a hospital in Xiamen. On August 13, 2019, a hospital in Xiamen conducted a second egg retrieval on a woman named Wang, and then froze 2 cleavage embryos (grade 3) and 2 blastocysts (4CC). On September 28, 2019, Mr. and Mrs. Wang signed the "Informed Consent Form for Voluntarily Accepting Embryos/Blastocyst Thawing and Transfer", which stated that "if you are not pregnant, the frozen embryos will be thawed and resuscitated and then transferred, and the remaining frozen embryos will continue to be cryopreserved until there are no remaining embryos". On October 4, 2019, a hospital in Xiamen performed the first thawing and transfer of the aforementioned two cleavage embryos on the same day. After a period of transfer, the embryo is aborted and aborted. On April 16, 2020, Ms. Wang went to a hospital in Xiamen for follicle monitoring, and planned to transfer blastocysts in May 2020. On May 6, 2020, Wang Mounan died unexpectedly.

After Wang's death, Wang's daughter asked a hospital in Xiamen to continue to perform the medical service contract and carry out embryo transfer surgery. On July 11, 2020, the Medical Ethics Committee of a hospital in Xiamen issued the "Medical Ethics Review Opinion", which stated: "The result of the discussion of the Ethics Committee of this hospital: according to the provisions of Document No. 176, this hospital will not give transplantation", and the approval opinion of the director of the ethics committee is "this hospital shall comply with the judgment of the court".

It was also ascertained that Wang was the only son in the family. During the trial of this case, when questioned by the court, Wang's daughter once again made it clear that she was willing to carry out embryo transfer surgery voluntarily and was willing to give birth to and raise a child that Wang might have through artificial assisted reproductive technology. Wang's father and mother, and Wang's father and mother all expressed their support for Wang's continued embryo transfer operation in a hospital in Xiamen, and were willing to take care of and raise the children born through embryo transfer with Wang's daughter.

On September 1, 2020, the Siming District People's Court of Xiamen City, Fujian Province, rendered the (2020) Min 0203 Min Chu No. 12598 judgment: A hospital in Xiamen should continue to perform the medical service contract with Wang on the effective date of the judgment and perform embryo transfer surgery for Wang Wang. After the judgment was pronounced, neither party appealed, and the judgment has taken legal effect.

[Reasons for the Adjudication]

The effective judgment of the court held that Article 8 of the Contract Law of the People's Republic of China stipulates: "A contract established in accordance with law shall be legally binding on the parties." On November 26, 2018, Mr. and Mrs. Wang signed the "Informed Consent Form for Voluntary Acceptance of IVF Treatment", requesting in vitro fertilization-embryo transfer (IVF-ET) surgery, which was accepted by a hospital in Xiamen, cultivated and frozen embryos for Mr. and Mrs. Wang, and completed the transfer of some embryos.

Wang Mounan died suddenly in an accident, and whether the litigation contract was terminated should be comprehensively judged based on the agreement between the parties and the circumstances of the case. According to the "Informed Consent Form for Voluntary Acceptance of IVF Treatment" signed by Mr. and Mrs. Wang on November 26, 2018, The in vitro fertilization-embryo transfer (IVF-ET) operation that Mr. and Mrs. Wang wanted to carry out in a hospital in Xiamen is a complete process that includes various auxiliary examinations to eliminate contraindications - drug injection superovulation - multiple B ultrasound and endocrine monitoring - egg retrieval - semen collection and processing - in vitro fertilization - embryo culture - embryo transfer - drug luteal phase support - postoperative monitoring and pregnancy establishment, embryo transfer is only one of the links, and the ultimate goal is to use artificial reproductive technology to achieve childbearing. The above-mentioned informed consent form should be regarded as the overall consent of Mr. and Mrs. Wang to the IVF-embryo transfer contract. Before the first embryo transfer operation on September 28, 2019, Mr. and Mrs. Wang signed the "Informed Consent Form for Voluntarily Accepting Embryo/Blastocyst Thawing and Transfer", which stipulated that "if there is no pregnancy, the frozen embryos will be thawed and resuscitated and then transferred, and the remaining frozen embryos will continue to be cryopreserved until there are no remaining embryos". Since Ms. Wang underwent follicle monitoring in April 2020 and planned to transfer blastocysts in May 2020, it should be determined that Ms. Wang and her husband have made preliminary preparations for the next embryo thawing and transfer. Based on the overall consent of Mr. Wang to the medical service contract for in vitro fertilization-embryo transfer, the consent to the subsequent embryo transfer at the time of the first embryo transfer, and the preparatory work before the second embryo transfer of Ms. Wang, it is judged that the continuation of the embryo transfer operation is in line with Mr. Wang's wishes. Wang died for some reason and failed to sign the "Informed Consent Form for Frozen Embryo Thawing and Resuscitation - Transfer" in the upcoming embryo transfer operation, but the above-mentioned informed consent form in terms of the significance of its signature is to determine Wang's consent to the use of embryo disposal, and second, to the woman's consent to the medical risks faced by the woman when undergoing medical surgery. The second level of informed consent is attached to Wang, the direct object of embryo transfer surgery, so the failure to sign the above-mentioned informed consent form does not affect Wang's request for a hospital in Xiamen to continue to perform the obligation to carry out embryo transfer surgery in accordance with the contract. A hospital in Xiamen did not request to terminate the contract after Wang's death, and its claim that the continued performance of the contract violated the principle of informed consent lacked basis and was not accepted.

According to the first paragraph of Article 110 of the People's Republic of China Contract Law, if one of the parties fails to perform a non-monetary debt or the performance of a non-monetary debt does not conform to the agreement, the other party may demand performance, unless it is legally or factually unable to perform. The blastocyst in dispute was an embryo that had been fertilized and was frozen by a hospital in Xiamen, and there were objective conditions for the continuation of embryo transfer, and there was no obstacle to the inability to perform in fact. Therefore, whether the contract in this case should continue to be performed should be considered whether there is a legal obstacle to the continued performance of the disputed contract. With regard to the opinion of a hospital in Xiamen that Wang was a "single woman" after being widowed, and that the hospital could not implement assisted reproductive technology on her in accordance with Document No. 176, otherwise it would violate the principle of social welfare, the court held that the first paragraph of Article 51 of the Law on the Protection of Women's Rights and Interests of People's Republic of China (amended in 2018) stipulates that women have the right to have children in accordance with relevant state regulations, and also have the freedom not to have children, and there is currently no legal prohibition on whether to allow the implementation of artificial assisted reproductive technology on widows after the death of their husbands. The medical ethics principles involved in the litigation are the administrative norms of the health administrative departments for medical institutions, and should not be used as a basis for restricting the basic reproductive freedom enjoyed by citizens. Mr. and Mrs. Wang entered into a medical service contract for artificial assisted reproduction with a hospital in Xiamen due to infertility problems, Mr. and Mrs. Wang had not given birth to children before, nor had they adopted children, and a hospital in Xiamen had failed to carry out artificial reproduction surgery for Mr. and Mrs. Wang, and continued to carry out artificial reproduction surgery did not violate family planning laws and regulations. Single women are not allowed to use assisted human reproductive technology in order to avoid the separation of childbirth and marriage, resulting in the disintegration of the family, the basic unit of social stability. Artificial reproductive technology was originally invented to solve infertility, and the widowed single woman requested to continue to transfer the embryo that had been fertilized with her husband for fertility, and the probability of occurrence was low, and the artificial reproduction method was different from the natural reproduction in addition to the reproductive mode, and the "posthumous child" birth that occurred due to widowhood was no different, and there was no impact on the social order. As a widowed single woman, Wang is different from ordinary single women. Wang is an only son, and Wang and her daughter voluntarily continued to carry out embryo transfer surgery to bear children for Wang after his death, continuing the family bloodline, which is in line with general social ethics and morality, and should be respected. The defense of violating the principle of social welfare put forward by a hospital in Xiamen was not accepted.

With regard to the issue of a certain hospital in Xiamen claiming that the embryo transfer at issue violated the principle of protecting offspring, the court held that artificial reproduction after death would objectively cause the consequences of having no father as soon as the child was born, and there were certain difficulties in raising and educating them, but it was inappropriate to deny the reproductive rights of the surviving spouse simply on this basis. In fact, there are many cases of pregnant women giving birth to posthumous children after the death of their husbands, and children from single-parent families may still grow up healthy. Of course, while emphasizing reproductive freedom, we must pay attention to the fact that the consequence of reproduction will be the birth of an independent life, and that reproductive freedom is accompanied by reproductive responsibility, and that careful consideration should be given to the well-being of future generations, and a balance should be struck between reproductive freedom and child protection. Due to the current prohibition of surrogacy in mainland China, in vitro embryo transfer mainly involves the reproductive rights of mothers and the protection of offspring children. The mental, economic, social pressure and birth risks brought about by single parent pregnancy and childbirth are mainly borne by the mother, and at the same time, whether the children in the single-parent family can grow up smoothly, the mother's love factor is very important, so the mother is the biggest stakeholder in the choice of embryo transfer, and it is also the key factor for the smooth and healthy growth of the child in the future. The mother's right to reproductive choice can only be denied if there is conclusive evidence that the embryo transfer will have a serious adverse effect on the offspring. In this case, when questioned by the court, Wang once again made it clear that she was willing to continue to give birth to and raise a child that might be born through artificial reproductive technology, and it had been 3 months since Wang's death, indicating that she had carefully considered whether to continue to carry out embryo transfer and to give birth to and raise her children in the future. Wang's parents and in-laws, as elders, are still young and have the ability to help Wang's raise their children, and they have clearly expressed their support for Wang's continued embryo transfer to have children, and agreed to cooperate with Wang's daughter to raise their children, which can help the healthy growth of children who may be born in the future. At present, there is no evidence to show that Wang's daughter lacks the ability to raise her children, and the defense of a hospital in Xiamen that it violates the principle of protection of future generations is not accepted.

To sum up, Wang's request for a hospital in Xiamen to continue to perform the medical service contract and perform embryo transfer surgery is in line with the contract between the two parties, has the conditions for objective performance, and does not violate the prohibitive provisions of laws and regulations and social order and good customs, and should be allowed.

[Judge's Afterword]

Liu Jianfa

Vice President of the Binhai People's Court of the Siming District People's Court of Xiamen City, Fujian Province, and a post judge.

This case involves the question of whether the widow's unilateral request for the hospital to continue the embryo transfer operation to have a child should be supported due to the death of the husband and wife who received artificial assisted reproductive technology treatment in the hospital and formed frozen embryos. In this case, it was held that a widow is not the same as a "single woman" in the general sense, and that the widow's request to the hospital to continue the embryo transfer operation in accordance with the contract should be supported unless there is clear evidence that the embryo transfer will have a serious adverse impact on the offspring, provided that the husband's willingness to continue the embryo transfer operation is clearly inferred from the husband's death and does not violate the family planning policy.

1. Implement the "principle of social public interest", correctly balancing the relationship between widows' reproductive rights and the public interest of the state's reproductive order

In recent years, the number of human assisted reproduction disputes in mainland China has been increasing, and the legislation in the field of human assisted reproduction is relatively lagging behind, making it difficult to keep up with the pace of technological development. In the case that the legislation has not yet been perfected, the administrative supervision regulations and medical ethics rules formulated by the health administrative department for the institutions, medical institutions and their personnel who implement assisted reproductive technology are an important source of norms for the implementation of human assisted reproductive technology, and are also an important source of norms for analyzing and evaluating whether the implementation of assisted reproductive technology is in line with the provisions of Article 8 of the Civil Code, which stipulates that "civil subjects shall not violate the law and shall not violate public order and good customs" and Article 109 of the Civil Code to engage in medical and scientific research activities related to human embryos"shall abide by laws, administrative regulations, and relevant state provisions" and "must not violate ethics and morals, and must not harm the public interest". To this end, it is necessary to accurately interpret the medical and health administrative regulations and correctly understand the interests protected behind the regulations. During the trial, it is necessary to carefully analyze and evaluate the boundary between the medical administrative supervision regulations and the protection of citizens' private rights, fully respect and consider the background and normative purpose of the documents formulated by the health administrative departments, avoid easily negating the administrative departments' management regulations on medical institutions, and prevent one-sided severance of the connection between the medical administrative regulations and national laws and regulations. Just as the three principles of assisted reproduction, namely the "principle of social welfare", "the principle of informed consent" and the "principle of protecting offspring", are of great value for us to consider the interests of all parties involved in frozen embryo transfer and safeguard the legitimate rights and interests of all parties in the case of embryo transfer in this case.

Whether a widow falls into the category of "single woman" who prohibits the implementation of assisted human reproduction as stipulated in Circular No. 176 is directly related to the premise of whether assisted reproductive technology can be applied and whether it should continue to be performed. Circular No. 176 stipulates that the main purpose of "prohibiting the use of human assisted reproductive technology for single women" is to ensure the normal family ethical order and the implementation of family planning policies, so "single women" should refer to the situation where a person who has not a spouse requests a hospital to implement human assisted reproductive technology, and widows are essentially different from "single women" here. In the absence of clear provisions on the freezing of embryos by widows at the level of national laws and regulations, the judgment of this case analyzes and demonstrates the conflict between the medical administrative regulations mentioned by the defendant hospital and the reproductive rights claimed by the plaintiff as a citizen, from the aspects of comparison of legal levels, the legislative purpose of medical management norms, traditional reproductive ethics and morality, and the impact on the order of medical administration. After the balance, they are allowed to carry out frozen embryo transfer, avoiding the simplistic treatment of not allowing all of them, reflecting the respect for women's reproductive rights, the protection of the reproductive rights of special groups such as widows and widows who need to have children, and the temperature of justice. At the same time, in the absence of higher-level legal provisions, the handling of this case is limited to the judgment made on the basis of the interests of each case, which is in line with the duty of the judicial organ whose main task is to apply the law to resolve disputes.

2. Implement the "principle of informed consent" to ensure that the transfer of frozen embryos conforms to the true intentions of all parties

Whether the frozen embryo transfer contract is terminated after the death of one of the spouses is the premise and basis for whether the contract should continue to be performed, and it is also one of the legal obstacles to the defendant's allegation that it violates the principle of "informed consent" in Document No. 176 of the Ministry of Health. The nature of the frozen embryo transfer medical service contract is an atypical contract under civil law, and its nature is closest to the entrustment contract, which can be referred to the provisions of the entrustment contract. According to the provisions of the Civil Code on entrustment contracts, the death of one of the spouses does not mean that the contract for frozen embryo transfer is terminated, and the expression of intent of the deceased during his lifetime should still be considered. In the analysis and determination of the expression of intent, the method of "overall consent" combined with "individual consent" should be used to comprehensively examine the embryo transfer intention of the deceased spouse. The judgment of this case regarded a series of consent documents signed by the plaintiff's spouse before his death, especially the "Informed Consent Form for Voluntary Acceptance of IVF Treatment", which fully expressed the intention of the plaintiff and his spouse to carry out the whole process of frozen embryo surgery, as the expression of their overall consent, and regarded the embryo transfer as a part of the integral consent, combined with the expression of intent made by the plaintiff and his wife at the time of the first embryo transfer that "if the plaintiff is not pregnant, he agrees to continue the embryo transfer". It was found that the plaintiff's spouse had the individual consent to continue freezing the embryos. Through the analysis of the overall consent and individual consent, it was determined that the continuation of the embryo transfer operation did not violate the wishes of the deceased spouse, and accordingly, it was determined that the medical service contract for embryo transfer was not terminated and could continue to be performed.

In disputes over a widow's request for frozen embryo transfer, it is often easy to ignore whether the widow herself has the true intention to have children with her deceased spouse through assisted reproductive technology. Due to factors such as the constraints of traditional ethics and morality, the influence of external pressure, or the entanglement of interests, widows sometimes make involuntary decisions to have children without mature consideration or under external pressure. Article 32 of the Law of the People's Republic of China on the Protection of Rights and Interests of Women stipulates that women enjoy the right to have children in accordance with the law and the freedom not to have children. From the perspective of the protection of reproductive rights, the right of widows to have children should be taken into account, but also the freedom of widows not to have children. For this reason, during the trial of this case, the court notified the plaintiff to appear in court in person to participate in the litigation, repeatedly confirmed his true intention before the judgment, set a minimum of at least three months before the death of the plaintiff's spouse, and gave the plaintiff a certain cooling-off period to carefully consider the issue of giving birth and raising children, which is not only responsible for the plaintiff himself, but also responsible for the children born in the future.

In particular, it should be noted that the expression of intent for frozen embryo transfer may change with the performance of the medical service contract, and whether the husband and wife are willing to carry out the frozen embryo transfer should be determined in accordance with the principle of "final agreement", that is, either spouse has the right of veto on whether to carry out the frozen embryo transfer, which is also an important principle that the frozen embryo transfer operation requires both husband and wife to sign an informed consent form before the transfer. Therefore, if it is confirmed that the deceased spouse has clearly expressed no intention to continue to carry out assisted reproductive technology to have children before the trial, or the widow has given up the transfer before the embryo transfer, the claim for continued embryo transfer should not be supported.

3. Implement the "principle of protecting future generations" to protect the legitimate rights and interests of unborn children

A person's birth cannot be chosen by oneself and cannot be agreed to in advance. Whether an unborn child has the right to "consent" is more a philosophical discussion, and in the legal field, it can only be a fictitious "consent": that is, from the perspective of "maximizing the interests of the child", from the perspective of the state and society, whether birth is beneficial to the child, and whether the unborn child is willing to be born from the perspective of a neutral third party.

Widows give birth to children in the event of the death of their husbands, and the children are born without a father, and the absence of paternal love will obviously have a certain adverse effect on the development of the children. But everyone's birth is never the result of their own choice, parents have their own considerations when choosing to have children, and widows are more likely to be deliberate before making a decision to have children. The protection of children born to widows comes mainly from their mothers until they reach adulthood, and the pressure to raise and educate them mainly comes from the mothers, so the decisions should be left to the mothers who have the most stakeholders in the first place. Restrictions on the exercise of the mother's reproductive rights may only be imposed if there is conclusive evidence that the birth will be detrimental to the offspring. Restrictions should generally not be a restriction on childbearing, based primarily on the adverse effects of birth defects, or on the mother's presence in vices such as drug abuse, the possibility of abandonment of children, etc.

Discretionary factors for the protection of offspring may include the willingness and ability of the auxiliary caregiver, who is primarily the parent of the widow and both of her spouses. According to Article 1074 of the Civil Code of the People's Republic of China, grandparents who can afford it have the obligation to support their minor grandchildren whose parents have died or whose parents are unable to support them. At the same time, according to Article 1128 of the Civil Code, grandchildren and grandchildren have the right of subrogation to their grandparents. In order to maximize the interests of the child and avoid possible inheritance disputes in the future, the widowed woman and her spouse's parents may be notified to appear in court for advice when hearing a frozen embryo transfer case.

Case source: People's Court Case Database

Warehousing number: 2024-18-2-137-001

Prepared by: Liu Jianfa, Siming District People's Court, Xiamen City, Fujian Province