Research on the human embryo conceived in the context of medically assisted procreation, and which are no longer the subject of a parental project, aims to develop the technology of medically assisted procreation. But the doctrine is divided on the question of the legitimacy of this research. The source of this division is the legal status of the embryo. Is it a thing or is it a person?
If the embryo is a person, research on it is, in principle, prohibited; whereas if the embryo is considered a thing, this research is permitted.
Medically assisted procreation raises many ethical, religious and legal problems, the most important of which is the fate of embryos conceived in the context of medically assisted procreation, and which are no longer the subject of a parental project. The question has arisen as to whether these embryos could be the subject of research.
This study aims to reconstruct the constitutional status of embryos in the era of biotechnology, where in vitro fertilization (IVF), embryo culture, cryopreservation, and embryo research have become commonplace. The current legal order regulates prenatal life in a fragmented manner across different domains. Notably, the Constitutional Court’s 2005헌마346 decision denied the subjecthood of fundamental rights of in vitro embryos prior to implantation and primitive streak formation, adhering to the 14-day rule. However, as technological advancements have enabled research beyond this limit, international research ethics guidelines have reclassified this boundary into an adjustable domain, exposing the rule's nature as a practical compromise. In response, this study proposes the individual continuity of human development—from fertilization to birth—as the core criterion for determining the constitutional status of embryos. By reframing the fertilization theory within the protective framework of human dignity and the right to life under Article 10 of the Constitution, this paper establishes a constitutional baseline for the definition of a human being that remains independent of technological subordination. Furthermore, by defining embryos as provisional and conditional subjects of fundamental rights, this study decouples the recognition of subjecthood from the calibration of protection intensity. It then demonstrates that tiered protection and the balancing of interests are achievable, given the distinct structures of fundamental rights conflicts between in vivo embryos/fetuses and in vitro embryos. Ultimately, this study seeks to present a coherent constitutional baseline regarding the question of 'who is a human being' in the era of biotechnology.
Jun Yeop Kim, Yoo Jin Kim, Seokmin Jang· Catholic Institute of Bioeth...· 0 citations
On the eve of the twenty first century, India is at a tipping point in the regulation of Assisted Reproductive Technology (ART) with two legislation Acts namely, the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021. This formally introduced the idea of regulation in a space that was previously largely unregulated for more than four decades. This review research paper aims to explore and examine the legal and ethical implications of ART in light of ‘human rights’, with a comprehensive analysis, while questioning the ability of the regulatory framework to ensure the reproductive autonomy, dignity and equality of every individual seeking the aid of ART. Based on a systematic review of the constitutional jurisprudence, landmark Court judgments of Indian Supreme Court and various High Courts, as well as peer-reviewed scholarly literature and state-wise epidemiological data, the current research suggests that the 2021 Acts, though a significant improvement normatively, also have constitutionally questionable and ethically unsound structural exclusions, in particular of LGBTQ+ citizens, single fathers, widowed and divorced women, and economically marginalised groups. Specifically, the above cases: Baby Manji Yamada vs Union of India (2008), Jan Balaz vs Anand Municipality (2009), Suchita Srivastava vs Chandigarh Administration (2009), K.S. Puttaswamy vs Union of India (2017), and Arun Muthuvel vs Union of India (2022-2025)– indicate a court that is becoming more open-minded to the idea of reproductive rights as fundamental constitutional rights. The paper also calls for a legislative reform, based on rights that places human dignity, autonomy and substantive equality at its heart.
Shayani Chakraborty, Souvik Roy· Journal of Human Rights Law...· 0 citations
The authors attempt to address several important questions, including the ethical justification and legal certainty of posthumous parenthood, as well as the ethical and medical legitimacy of certain procedures involving unused embryos.
Aleksandra Janković, Ana Čović· Sociološki Pregled· 0 citations
The question of when human life begins is one of the fundamental issues at the intersection of religious ethics, law, and bioethics. This article examines the legal status of the embryo and abortion in Islamic and Jewish legal traditions through a comparative approach. The study analyzes primary religious sources, including the Qur’an and Hadith in Islam and the Torah and Talmud in Judaism, together with classical legal interpretations and contemporary scholarly debates. Using a comparative legal and textual methodology, it explores key concepts such as the gradual status of the fetus and ensoulment in Islamic law, as well as the position and legal status of the fetus in Jewish law. The findings indicate that both traditions regard the embryo as a developing form of human life worthy of protection, yet they differ regarding the stage at which full legal and moral status is attained. In Islamic law, fetal protection acquires greater significance following ensoulment, while contemporary discussions increasingly emphasize the importance of fertilization. In Jewish law, full legal personhood is generally associated with birth, and the fetus is understood primarily in relation to the mother. These differing approaches lead to distinct legal outcomes in matters such as maternal health and fetal abnormalities. The study concludes that, despite their differences, both traditions seek to balance the protection of fetal life with the preservation of the mother’s life and well-being.
Merve Yiğitoğlu, M. Yiğitoğlu· Religions· 0 citations
The contribution addresses the complex issues and legal dilemmas that arise—or will increasingly arise in the future—for courts when dealing with questions of liability related to surrogacy. As explained in the article, the very arrangement per se entails certain risks associated not only with assisted reproduction procedure followed by potential obstetric complications during the childbirth but also generally with the protection of the health of the pregnant woman and the foetus. The contribution explores how questions of liability could be approached through the loss of chance doctrine in tort law, a concept originating in the common law tradition. However, it emphasizes that these approaches are far from straightforward, given the significant evidentiary challenges in establishing causation in medical disputes, as well as the ethical and moral considerations regarding the allocation of responsibility. By analysing these issues, the article aims to provide a conceptual framework for understanding the legal and ethical complexities surrounding surrogacy liability, highlighting the potential role of comparative perspectives and doctrinal analysis in informing future judicial decisions.
P. Gašparová, E. Dosedla, Andrea Erdősová· Bratislava Law Review· 0 citations
This essay argues that the elevation of autonomy from a necessary safeguard to the governing norm of medical ethics leaves important questions unanswered.
Dennis Bielfeldt· Verba Vitae· 0 citations
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