SUMMER REPLAY: When artificial wombs become the new NICUs

What will artificial wombs mean for the status of the fetus?

Research in artificial womb technology has been advancing rapidly. At least two teams have taken lamb fetuses from the edge of viability to birth. Another has grown mouse embryos outside the body for several days.

The ultimate goal is full extracorporeal gestation. But that might take a while. What might happen in the nearer term? Could this technology start to be used with human fetuses for partial gestation?

A full-term pregnancy lasts about 40 weeks. Babies born just after the halfway point can sometimes survive with the help of a skilled neonatal intensive care unit (NICU). But of those who do — less than 50 per cent — many have injuries and disabilities. And fetuses that don't make it that long generally have no hope at all. Will we see artificial wombs take up the work of keeping these much-wanted, very-preterm infants alive and well?

If we do, there will be urgent legal issues to consider. Elizabeth Chloe Romanis is an assistant professor in biolaw at the University of Durham in the UK, whose work concentrates on this field of "ectogenesis." Back in September, 2019, when she was still a doctoral candidate, she presented a fascinating lunchtime seminar at the University of Toronto Faculty of Law, which I was fortunate to attend.

During her talk, Romanis discussed some of the issues that may arise as this technology comes into use with humans. She focused on England and Wales, where (surprise) "procuring a miscarriage" was still a criminal offence. But even in countries like Canada, where there is no abortion law, the advent of this technology will pose interesting challenges.

Below, in an item originally published on September 10, 2019, I highlight a few of the many thought-provoking ideas she raised.

4 minute read

What should we call this fetus-baby?

Early on, there is an embryo. Later, it becomes a fetus. Eventually, with good fortune, a live human baby is born. What, however, is the name for and the status of the entity that is removed from a mother's uterus and placed into a device to continue gestation?

Romanis has created a new word: "gestateling." She writes: "A gestateling is a human being in the process of ex utero gestation exercising, whether or not it is capable of doing so, no independent capacity for life." A unique term is needed, she argues, because the inhabitant of an artificial womb is conceptually distinct from both a fetus and a newborn baby.

When a fetus is removed from the womb in order to sustain life rather than to end it, is it still a termination?

In England and Wales, it is a criminal offence to "unlawfully procure a miscarriage," according to the Offences Against the Person Act, 1861. The Abortion Act of 1967 protects medical professionals under specified circumstances.

But Romanis points out that there is no definition of "miscarriage" in any criminal statute. The meaning of the word remains vague. "Does 'miscarriage' encompass any ending of a pregnancy or only those resulting in fetal death?" she asks. One court challenge determined that it was the ending of an established pregnancy. Would transfer to an artificial womb constitute the ending or the continuation of an established pregnancy?

She says that the word "unlawfully" also muddies things. If a doctor terminates a pregnancy in order to transfer a gestateling into an artificial womb — so, outside the specific defences allowed in the Abortion Act — will it be an offence?

Even in Canada, where abortion was decriminalized in 1988, interesting questions might arise, says Bernard Dickens, professor emeritus at the University of Toronto. The Canadian Criminal Code states that "a child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not (a) it has breathed; (b) it has an independent circulation; or (c) the navel string is severed."

But Dickens points out that some fetal surgeries involve the temporary removal of the fetus from the uterus. Could the artificial womb be similarly viewed — as a transitory intervention? Some people are kept alive on ventilators. Could the artificial womb be seen as a similar type of device? A sort of mechanical surrogate mother?

If the age of viability is pushed back enough, will the artificial womb be seen by some as a required alternative to abortion?

Some people argue that if there is an alternative to abortion, it should be used. In other words, if artificial wombs exist and are safe, then women who might otherwise have chosen to terminate their pregnancies, should instead be required to hand off the pregnancy to this life-sustaining device.

Romanis says that this line of thinking fundamentally misunderstands the reasons women seek abortion and why it is protected in liberal societies. She further points out that transferring a gestateling to an artificial womb would be a much more intricate procedure than an abortion, and therefore not medically comparable.

Apparently this alternative-to-abortion discussion is one of the hottest taking place around artificial wombs. (I admit, it blindsided me. I mean, what?) But as the artificial womb pushes back the age of viability from 22 weeks to 18 and then maybe to 13 — a point in pregnancy at which a larger number of abortions are actually taking place — this argument is likely to become increasingly loud.

Artificial wombs may significantly change the viability threshold, and that may significantly change the debate. [Note: the debate has already changed significantly in some jurisdictions since this piece was first published.]

How much risk need there be to justify an artificial womb?

There are many medical conditions that can make a pregnancy dangerous — things like high blood pressure, diabetes, a placenta that pulls away from the uterus. Decisions about whether to give birth early or not typically weigh the dangers to the carrier of continuing against the dangers to the infant of being born premature. Artificial wombs might well improve outcomes in many of these cases.

But what about less severe instances, where a parent's life is not threatened, only diminished? Some people experience extreme nausea, for instance, or swollen ankles. Migraines, insomnia, anxiety. Are these enough to justify a few weeks in an artificial womb?

How about the social stigma of teenage pregnancy? Could artificial wombs help with that? Or women whose employers are pressuring them to be tiptop around the office? Could they reasonably turn to artificial wombs at some point in their pregnancies too?

Women in England and Wales may not be able to opt for artificial wombs at lower thresholds of maternal risk, says Romanis, because the Abortion Act only justifies ending a pregnancy in instances of severe risk. Romanis believes that abortion should be decriminalized and that, overall, people should have more say in their medical treatment. In Canada, presumably, the question of how much risk is enough risk can be expected to come up.

As Dickens put it, rather understatedly, "There's rich material here for study."

This item was originally published in HeyReprotech on September 10, 2019.

Elizabeth Chloe Romanis. "Artificial Womb Technology and the Choice to Gestate Ex Utero: Is Partial Ectogenesis the Business of the Criminal Law?" Medical Law Review. Spring 2020.