Can a widow continue to have the right to frozen embryo transfer?
Compiled from: Wuxi Daily, Lychee News
In May 2017, a couple in Wuxi, Jiangsu, planned to undergo embryo transfer surgery when the wife’s health permitted, as they were unable to conceive. Tragically, the husband died unexpectedly before the surgery could take place. The wife requested to proceed with the embryo transfer, but the hospital refused because her husband’s signature was missing. Subsequently, the wife, Chen, sued the hospital. On June 23, the case was adjudicated at the Liangxi District People’s Court in Wuxi.
Case review
In August 2016, Chen and her husband sought diagnosis and treatment at a hospital in Wuxi due to infertility. Following their doctor’s recommendations, the couple decided to pursue assisted reproduction and underwent embryo transfer procedures, but unfortunately, they did not succeed on the first attempt.
In May 2017, Chen and her husband went to the hospital once again, hoping to undergo another round of artificial assisted reproduction. The hospital separately retrieved eggs from Chen and sperm from her husband, and successfully cultured four embryos. Due to ovarian hyperstimulation after the egg retrieval procedure, Chen developed pleural and peritoneal effusion and was immediately admitted to the hospital for treatment. Regarding the embryos, Chen and her husband requested that the hospital preserve them using cryopreservation technology, and signed an Informed Consent Form for Embryo Cryopreservation, Thawing, and Transfer with the hospital, in which they stated that they would undergo in vitro fertilization at the hospital.
In July 2019, Chen's husband died in an accident. With the support of her father and her parents-in-law, Chen decided to go to the hospital to continue with the embryo transfer procedure. Unexpectedly, the hospital refused her request. To protect her lawful rights and interests, Chen sued the hospital in court.
Hospital's Position
1. The document signed by the husband has expired.
The hospital argued that it could not perform the frozen embryo thawing and transfer for Chen because the "Technical Standards for Human Assisted Reproduction" and "Ethical Principles for Human Assisted Reproduction" stipulate that assisted reproductive technology must strictly adhere to the voluntary principles of informed consent and informed choice. Chen's husband had not visited the hospital for embryo transfer in the two years before his death, and the validity of the informed consent he signed during his lifetime could not extend beyond his death. Moreover, he could no longer sign the embryo thawing and consent form.
The previously signed "Informed Consent for Embryo Cryopreservation, Thawing, and Transfer" by Chen and her husband explicitly stipulated that the initial embryo cryopreservation fee only covered a 3-month storage period. The Chen couple had never paid the embryo cryopreservation fees for these two years, and therefore, the hospital considered that the couple had abandoned the embryos.
2. Chen is currently a single woman.
[3] The hospital believes that since Chen's husband has passed away, Chen is now a single woman.
[4] On one hand, according to the principles of protecting offspring and public welfare in the Ministry of Health's "Technical Standards for Human Assisted Reproduction," the hospital cannot provide assisted reproductive technology to single women.
[5] On the other hand, based on the principle of benefiting the offspring, consideration must be given to whether a child raised in a single-parent environment would be affected physically, psychologically, or in terms of personality.
[1] Court Opinion
1. The contract signed by both parties is legal and valid.
The court held that initially, the Chen couple sought assisted reproductive treatment at a hospital approved and registered by the health administrative department to conduct human assisted reproductive technology due to infertility. The hospital performed a series of medical procedures and froze embryos, establishing a medical service contract relationship between the Chen couple and the hospital. This contract did not violate mandatory provisions of laws or administrative regulations and was lawful and valid.
The judge stated that Chen and her husband entered into the medical service contract with the hospital for the purpose of having children. Although the husband passed away, the fact that the Chen couple jointly underwent two assisted reproductive treatments at the hospital, signed multiple informed consent forms during the treatment, and had embryos cultivated and frozen all indicated the husband's clear intention to have children through human assisted reproductive technology. It could be inferred that continuing the embryo transfer procedure did not contradict the husband's wishes before his death. The reason the embryo transfer was not immediately performed was solely due to the wife's physical condition, and the existing medical service contract had not been completed. Chen's request for the hospital to continue fulfilling the contract previously established with the couple did not violate the true intentions of the parties involved.
2. Not violating the principle of protecting future generations and the principle of public interest
First, the court held that Chen had not given birth to or adopted any children, and that pursuing assisted reproduction did not violate relevant reproductive laws and regulations. It is worth noting that Chen is a “widowed woman,” who should be distinguished from an ordinary single woman seeking human assisted reproductive technology. Therefore, under these circumstances, it does not violate the principle of public welfare.
Second, although the child would be born without a biological father and might grow up in a single-parent family, this does not necessarily mean it would have a significant impact on the child's physical, psychological, or personality development. Currently, there is no scientific evidence to suggest that implementing human assisted reproductive technology would be detrimental to the offspring in terms of medical, parental rights, or other aspects. The hospital continuing to provide human assisted reproductive technology for Chen did not violate the principle of protecting offspring.
Ultimately, on the morning of June 23, the Liangxi District People's Court of Wuxi issued a first-instance judgment, ordering the hospital to continue performing the in vitro fertilization and embryo transfer medical service contract with Chen and to carry out the embryo transfer procedure for Chen.
[1] The author's perspective
The author believes that this is a typical case where human sentiment and ethics have prevailed.
First, in this case, Mr. and Mrs. Chen entered into a medical contract with the hospital and signed an informed consent form. At the time of signing, both parties had the corresponding civil capacity and legal capacity, expressed their true intentions, and there were no grounds for invalidity under the Contract Law of the People's Republic of China. Therefore, the contract was legally established and took effect.
Second, after the contract was established, the parties should fully and actively fulfill their obligations in accordance with the terms agreed upon. In this case, Mr. and Mrs. Chen repeatedly expressed their willingness to undergo embryo transfer and underwent multiple embryo transfer procedures, which can confirm that Mrs. Chen's husband fully consented to the embryo transfer surgery. Additionally, after her husband's death, Mrs. Chen was able to independently accept and complete the procedure. In summary, there were no circumstances in this case that prevented the continued performance of the contract between Mr. and Mrs. Chen and the hospital.
Finally, the right to reproduction is a fundamental human right, but assisted reproductive technology should comply with the principles of safety, effectiveness, and reasonableness, as well as legal and ethical standards, fully safeguarding the health and interests of individuals, families, and offspring, and protecting social public interests. From this perspective, Mrs. Chen is a widowed woman, different from an ordinary single woman, and her husband clearly expressed through his actions before his death that he wished to complete reproduction through the transplant surgery. Therefore, continuing the embryo transfer procedure does not violate the principle of social public interests or social ethics; instead, it truly maximizes the value of the embryo transfer procedure.
