Court dismisses lawsuit over frozen embryo's inheritance rights

A court in Qingyuan, Guangdong Province, has dismissed a lawsuit in which a woman sought to have her son share in her deceased lover's estate by using a frozen embryos to have his child.

In April 2021, the woman surnamed Ling, underwent embryo transfer surgery at a private clinic shortly after her lover, surname Wen, died in a traffic accident. She gave birth to the baby in December.

According to Ling, the embryo was created through a procedure involving sperm from Wen and her eggs. The embryo was later fertilized and frozen at the clinic.

However, Ling failed to provide documentation of Wen's agreement to have his sperm frozen or any agreement between the couple regarding embryo implantation.

Additionally, Wen did not leave any testamentary statement regarding posthumous embryo transplantation.

In August 2023, Ling's son filed a lawsuit with the Qingcheng District People's Court regarding Wen's estate. He demanded compensation from Wen's wife and son for his share of Wen's inheritance including life insurance, property, and company shares.

A local court dismissed the claims, citing lack of sufficient evidence to prove that Ling's embryo transplantation surgery had Wen's consent, and also failure to prove that the sperm used was Wen's.

Meanwhile, Ling's actions, taken without the legal consent of Wen's wife and children after his death, violated the principles of social ethics and should not be legally protected, the local court said.

According to Chinese Civil Code, fetuses have the right of inheritance. However, it does not explicitly stipulate whether frozen embryos have such a right.

Zhao Nuhuan, a lawyer at Shanghai Ronly & Tenwen Partners, said embryos and fetuses have different legal statuses. Frozen embryos represent an early stage of life with significant uncertainty about their future growth and development, she said.

"Granting inheritance rights to frozen embryos under these circumstances could raise a range of ethical concerns," said Zhao. "However, given the potential for frozen embryos to develop into complete life forms, it is worth considering whether to grant them some degree of legal protection under certain conditions such as the right of inheritance."