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Commentary on ‘Gestation, Equality and Freedom: Ectogenesis as a Political Perspective’
  1. I Glenn Cohen
  1. Harvard Law School, Cambridge, MA 02138, USA
  1. Correspondence to Professor I Glenn Cohen, Harvard Law School, Cambridge, MA 02138, USA; igcohen{at}law.harvard.edu

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It is a pleasure to comment on Giulia Cavaliere’s ‘Gestation, Equality and Freedom: Ectogenesis as a Political Perspective’ in what one might say is ‘enthusiastic disagreement’. The enthusiastic part is because the article is deserving of much praise for adding an important feminist and political theoretical perspective on ectogenesis. The disagreement may come more from disciplinary differences (I am a bioethics-trained law professor, not a scholar in feminist perspectives in bioethics) or disposition (I am more of a pragmatist, and Cavaliere reads to me more of a radical in the best possible sense).

As I understand her argument, Cavaliere intends to attack two common (but not the only) arguments in favour of research into ectogenesis—that is, gestation of a human fetus outside the womb—one that sounds in the potential of the technology to promote equality, the other that it has the potential to promote liberty. On the first her critique is that the risks and burdens of gestation for women are most pronounced for the worst off, but ectogenesis is unlikely to be used by them. On the second her critique is, inter alia, that treating ‘ectogenesis as a means to address workplace inequalities calls for solutions that change the way society reproduces itself rather than a labour market that prevents equal treatment of men and women’.

My critiques are that she (1) Undercounts the potential benefits of ectogenesis for gender equalising. (2) Sets up far too high an argumentative hurdle for the technology’s permissibility. (3) Does not adequately consider the risks of ectogenesis for women’s abortion rights.

Undercounting benefit

While there is some more capacious language in her article, it is fair to say her main focus is the use of ectogenesis by heterosexual couples (and perhaps single women). That focus misses the way in which ectogenesis may become an important option for groups that experience significant discrimination—including as to reproductive technologies—gay men and some trans individuals. Such individuals must currently rely on surrogacy to reproduce. Many have moral concerns about surrogacy, and one major advantage of ectogenesis is to offer an alternative that is equality and freedom promoting as to these groups.

The Argumentative burden

Imagine one is trying to decide whether to allow a technology to be used. To be clear no one is requiring that it be used, but some say they should be permitted to elect to use it for the sake of promoting their freedom or equality. How high of an argumentative burden should those seeking to use the technology have to surmount for use to be permitted? Cavaliere constructs it as surprisingly high.

She writes:

Documented evidence shows that women belonging to ethnic minorities, poor and disabled women are at a much higher risk of experiencing complications during gestation and childbirth and of dying as a result of these complications … But, at present, it seems that ectogenesis would be accessed by—and promote the equality of —only certain women. Further, within equality-promoting and freedom-promoting arguments in favour of ectogenesis, the universal desirability of ends such as career advancements is taken as a given.

Despite this, it is unclear whether all women would value these ends and whether women who find meaning and self-realisation in gestation and childbirth would necessarily connotate these experiences in such negative terms.

Fair enough, but surely not every technology, reproductive or otherwise, has to be equality promoting for every or even most women to be permissible to use—the Perfect cannot be the enemy of the Good. At one point the author notes ‘it is unclear whether severing the tie between biological reproduction and women would be sufficient to obtain equality in social reproduction. To achieve this kind of equality, it seems that more than ectogenesis would be necessary’. I am in heated agreement on the descriptive claim but left cold by the normative implication. Achieving complete equality in social reproduction seems like a worthy goal, but why should we reject a technology simply because it does not fully achieve it? Why not applaud it as a step along the way of a much bigger struggle?

As she frames the case (more on that below) the availability of this technology is Pareto Superior—some women (and others, I would say) are made better off, no one is made worse off—even if doesn’t perfectly promote interests of all women. But what reproductive technology has ever met that latter high bar? Certainly not In Vitro Fertilization (IVF), and yet most people, I would think, do not view this as an affirmative reason to reject IVF. Indeed, even outside of reproductive technologies, it is hard to imagine interventions that would meet the high argumentative bar she sets for ectogenesis.

Undercounting the risks

In fact, though, I think she is wrong to construct this as a case of Pareto Superiority (my term, not hers, to be sure)—she also undercounts the risks. It is not merely that ectogenesis will fail to promote the interests of all women—some women are fertile and for social and for cultural reasons prefer ordinary pregnancy—but the technology actually poses a risk for some women. As I have argued elsewhere1, for legal systems that tie the right to abortion to non-viability of the fetus, ectogenesis may make all fetuses now viable and thus most abortions impermissible. Ectogenesis may reintroduce arguments that fathers should have strong (or even equal) say on abortion since the key difference, women’s gestational burdens, might go away. Finally, it would force defenders of the abortion right to defend abortion from an idea of ‘my body, my choice’ to instead ‘a right to terminate the life of the fetus’, a much more philosophically and politically difficult line of argument. Of course, these are advantages not disadvantages for those who want to curb abortion, but given the tenor of the rest of her argument I suspect that is not the case for Cavaliere.

As I said at the start, it may be more of a dispositional and disciplinary difference but it concerns abortion rights being undermined that for me pose the greatest threat of ectogenesis to women’s equality rather than concerns about the failure to maximally benefit all women.

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Footnotes

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  • Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.

  • Competing interests None declared.

  • Patient consent for publication Not required.

  • Provenance and peer review Commissioned; internally peer reviewed.

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