Artificial womb technology has hit the headlines several times over the last few years, with researchers in the United States, Australia and the Netherlands all getting closer to a model ready for testing on humans. The technology is being designed as an alternative to neonatal intensive care, because despite advances in treatments available for preterm neonates, mortality rates remain high and severe long-term complications are common amongst those that survive.
There has been considerable excitement surrounding the recent advances in artificial womb technology. It is thought that the technology could end prematurity as the leading cause of death amongst neonates and provide women with more control over the burdens they experience in reproduction. We often speculate about the benefits new technologies bring without necessarily examining whether these potential benefits will be legally accessible. What’s more, examining the legalities of future reproductive technologies exposes quite how draconian the law surrounding gestation is. This is the focus of my current research: would any potentially liberating choices enabled by artificial wombs actually be available to pregnant people under the current legal framework of England and Wales?
A choice about the duration of gestation
One day artificial wombs might develop to the point of being able to completely gestate a human entity from conception to term. However, the technology as it is currently being designed only demonstrates a possibility of providing an alternative to later-term gestation by taking over the process of gestation when human entities are delivered premature. This could be a major benefit for those pregnant people who want to become parents but cannot, or do not want to, carry a pregnancy to term. This might include people for whom pregnancy is dangerous because of an underlying health condition or specific complications. In these instances, preterm delivery is already not uncommon, and with the introduction of the artificial womb it could become more common as the risks associated with preterm delivery are diminished; allowing pregnant people to prioritise their health and wellbeing without sacrificing parenthood. The technology could thus reduce the burdens on pregnant people by enabling them to opt out of pregnancy earlier, before complications worsen, and at lower thresholds of risk.
The legalities of opting for gestation ex utero (and out of pregnancy)
In England and Wales, it is a criminal offence to ‘procure unlawful miscarriage’ – meaning to bring an end to an established pregnancy in the absence of a legally recognised defence. Does ‘miscarriage’ encompass any ending to a pregnancy, or only those instances in which the pregnancy termination results in foetal death? There are plausible reasons to believe that the law could be interpreted either way.
This raises the question: if any ending of a pregnancy is prima facie criminal, would a doctor have a defence if they performed foetal extraction in order to place a foetus in an artificial womb? Abortion legislation provides a doctor ending a pregnancy with a defence only in a prescribed set of circumstances:
- Before 24 weeks gestation and the risk of termination is less than the risk of continued pregnancy
- Where pregnancy poses a risk to the pregnant person’s life
- Where pregnancy poses grave, permanent damage to the pregnant person’s physical or mental health
- Where there is a substantial risk that the foetus is handicapped
These defences are incredibly limited when thinking about gestation ex utero. The availability of artificial wombs could enable a shift in thinking about the magnitude of risks in pregnancy, but legislation about pregnancy termination has a rigid structure based on risk to life or serious risk to health, and thus might not necessarily allow for the opting for ex utero gestation unless serious risk is evident. Those pregnant people experiencing some of the most severe complications in pregnancy would still benefit from the artificial womb, but the law might prevent those who want to make the choice to gestate ex utero to alleviate the burden of pregnancy on an underlying illness or to avoid specific aspects of later-term pregnancy they believe are adverse to their welfare, from doing so.
How criminal miscarriage is defined matters both conceptually and practically. The way the law is framed means that, if artificial wombs become available, there could be a case for pregnant people having a legal obligation to remain pregnant despite a viable technological alternative to pregnancy.
This has a powerful signaling effect about the female body and its role in reproduction. The way the law is constructed enforces heteronormative values about the female body because it forces female persons wanting to justify their ‘deviation’ from the course of pregnancy, even in those instances in which their life is threatened or where the purpose of ending a pregnancy is to continue gestation ex utero. The law’s construction also subjects pregnancy to excessive medical control because, pregnant people are only allowed to end their pregnancy where this is permitted by their doctor and justified in medical terms.
These laws have not been changed in 29 years, and are regressive, especially if applied in the context of artificial wombs. Artificial wombs bolster the case for decriminalisation of pregnancy termination; it is time we trust women and pregnant people to make decisions about their reproduction and gestation.
This blog is based on open access article: ‘Artificial Womb Technology and the Choice to Gestate Ex Utero: is Partial Ectogenesis the Business of the Criminal Law?’ recently published in the Medical Law Review.