Artificial wombs are on the horizon. Like all exciting new technologies, they will solve some old problems and create many new ones.
Since 2017, two separate research groups have developed artificial womb technology. Both were able to take a lamb fetus from the edge of viability to healthy birth. The ultimate goal is be able to gestate entirely outside a body, but that is still some way off.
Not so distant, however, is the prospect that artificial wombs might soon be used to rescue human pregnancies — specifically, ones that are faltering about halfway through gestation.
A full-term pregnancy lasts about 40 weeks. Babies forced out of the womb just after the halfway point can sometimes survive with the help of a skilled neonatal intensive care unit (NICU). But only about half do, and of those, many have injuries and disabilities. And fetuses who 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 offspring alive and well?
The idea of artificial wombs opens up many big questions. The mind jumps immediately to the longer term: fetuses gestating entirely outside a mother's body, men not needing women to grow their children, surrogates launching twins or triplets then transferring them into their own individual artificial wombs halfway through the process… But even if artificial wombs are only used to sustain fetuses from the midpoint of pregnancy to full-term, there are urgent legal issues to consider — ones I did not even think to worry about.
As it happens, Elizabeth Chloe Romanis, a doctoral candidate at the University of Manchester in the UK, has been doing much of that preemptive thinking. Last week, I attended a lunchtime seminar at the University of Toronto Faculty of Law, where she discussed some of the issues that may arise as this technology comes into use.
She focused on England and Wales, where (surprise) "procuring a miscarriage" is 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, I highlight a few of the many thought-provoking ideas she raised.
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 considered 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 ones 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 where 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.
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 typically weigh the dangers to the mother 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 mother's life is not threatened, only diminished? Some women experience extreme nausea, for instance, or badly swollen limbs. 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 tip top 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, women should have more say in their medical treatment.) In Canada, presumably, we can expect the question of how much risk is enough risk to come up.
As Dickens put it, rather understatedly, "There's rich material here for study."
Elizabeth Chloe Romanis. "Artificial Womb Technology and the Choice to Gestate Ex Utero: Is Partial Ectogenesis the Business of the Criminal Law?"
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