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Partial ectogenesis: freedom, equality and political perspective
  1. Elizabeth Chloe Romanis
  1. Centre for Social Ethics and Policy, Department of Law, University of Manchester, Manchester M13 9PL, UK
  1. Correspondence to Elizabeth Chloe Romanis, Centre for Social Ethics and Policy, University of Manchester Manchester School of Law, Manchester M13 9PL, UK; elizabeth.romanis{at}manchester.ac.uk

Abstract

In this commentary, I consider how Giulia Cavaliere’s arguments about the limited reach of the current justifications offered for full ectogenesis in the bioethical literature apply in the context of partial ectogenesis. I suggest that considering the extent to which partial ectogenesis is freedom or equality promoting is more urgent because of the more realistic prospect of artificial womb technology being utilised to facilitate partial gestation extra uterum as opposed to facilitating complete gestation from conception to term. I highlight concerns about potentially harmful social narratives surrounding pregnancy and about the current legal framework surrounding gestation limiting access to technology in the advent of partial ectogenesis. I do not advocate that these concerns mean that we ought not develop artificial wombs, but like Cavaliere I suggest that we must be mindful of these concerns, and I posit that legal reform must accompany technological developments. Ectogenesis as a political perspective, through which we consider the value in social reproduction and the experiences of pregnant people, is useful to prevent political capture of this technology for regressive policies. Using this perspective to examine the law is also a useful tool to expose just how restrictive the law is in relation to gestation and female reproductive health.

  • ethics
  • feminism
  • law
  • reproductive medicine
  • social aspects
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Introduction

While Cavaliere narrows her focus in Gestation, equality and freedom: ectogenesis as a political perspective’, to considering the justifications offered for full ectogenesis,1 it is notable that her arguments about the limited reach of these justifications could have even greater implications in the context of partial ectogenesis (the continued gestation of a fetus after it has been removed from a pregnant person’s womb). There is greater urgency in considering these issues in this context because partial ectogenesis will be possible long before complete ectogenesis. Recent studies2 have demonstrated some proof of principle for gestation ex utero but are being designed as a replacement for neonatal intensive care (for partial ectogenesis), rather than as an alternative to pregnancy.3 Furthermore, in partial ectogenesis there necessarily remains a pregnant person whose rights and freedoms are impacted by the use of, and by narratives surrounding, the artificial womb. The justifications for ectogenesis that Cavaliere labels as ‘freedom-promoting’ and ‘equality-promoting’ have been, or plausibly could be, advocated in the context of partial ectogenesis. In this commentary, I highlight concerns about potentially harmful narratives about pregnancy that might result from partial ectogenesis, and about limited or unequal access to technology enabling a choice about the duration of pregnancy. Like Cavaliere, I do not advocate that these concerns mean we should not develop artificial wombs, but in the introduction of this technology we must be mindful of its capacity to perpetuate stigma and inequality and take steps to mitigate this.

Freedom

It has been argued that partial ectogenesis offers pregnant people an increasing range of choices about pregnancy, and thus is freedom promoting. With the availability of artificial wombs people experiencing pregnancies that are, or are perceived as, dangerous might welcome the opportunity to opt to end their pregnancy (opting out of gestation) without necessarily having to make the decision not to reproduce.4 5 These arguments assume the availability of such choices both legally and socially. Access to technology during pregnancy is strictly medically controlled (and equally dictated). Doctors are installed by the law as gatekeepers to decisions about ending pregnancy.1 and childbirth,2 and the law is likely to place doctors in the position of gatekeepers to partial ectogenesis as well.5 The suggestion that persons with female biology, predominantly women, will be subject to a lesser burden in pregnancy because of partial ectogenesis has little merit, unless there is legal reform to address the fact that pregnant people themselves are not legally empowered to determine the level of tolerable risk in pregnancy.5 Legal reform is also necessary to mitigate how social circumstances may limit women’s freedom to make the choice to opt for assistance with late-term gestation. It may be that pregnant people wanting to opt for extra uterum gestation for health reasons would be subject to the same stigma as women who request a caesarean (in place of vaginal delivery). These women are often labelled selfish, or ‘too posh to push’3 ,6 despite the reality that those who make this decision do so because they believe it is best for their well-being.7 Social conditions can make decisions about a pregnancy much harder for pregnant people to access and this will be no less true for people considering ectogenesis (full or partial). The law perpetuates harmful social conditions by labelling decisions about pregnancy as requiring explanation and supervision, thus subjecting pregnant people to unwarranted stigma.8

It is also possible that constructing the artificial womb as an ‘alternative’ to later-term gestation may come to limit pregnant people’s freedom. Cavaliere highlights the risk that ‘certain women, especially from disadvantaged groups, would be regarded as substandard gestators’ and notes the potential for ‘increased control and pressure to use ectogenesis to secure the safety of the fetus’.1 Ectogenesis is frequently cited as a welcome development to provide a more secure ‘uterine experience’9 for a fetus when maternal behaviour is thought to be concerning, for example because of substance misuse.9 10 The narrative of an accessible ‘alternative’ can be mechanised as a powerful tool for increased monitoring of pregnant women. In the context of pregnancy false alternatives are frequently deployed to regulate behaviour; pregnant people are systematically denied access to abortion after ‘viability’ because it is advocated that the fetus could survive in an alternate space (and this is enshrined in law),4 and pernicious narratives persist about birth control and the necessity of abortion.

Legal reform must accompany technological developments. A reproductive agenda that is genuinely freedom-promoting must place emphasis on scaling back excessive medical control over, and legislative interference into, female reproductive health, and foster trust in women and pregnant people to make decisions for themselves.

Equality

Cavaliere explains that the proposals for ‘state sponsored ectogenesis’ by Kendal3 and others are infeasible, and thus there are likely to be financial barriers to accessing ectogenesis.1 Such concerns are also evident in the context of partial ectogenesis, because if the technology has the capacity to be revolutionary in minimising the risks that pregnant people have to tolerate in gestation,5 or the likelihood of human entities dying after delivery due to prematurity, equal access to such technology must be ensured. In public and private health systems alike, there are already significant inequities in access to prenatal and postnatal care, as well as neonatal intensive care.11 Horn and I have argued that these disparities risk worsening if some pregnant people have the means to opt out of full-term pregnancy and others do not.11

Political perspective

Cavaliere concludes that ‘ectogenesis should be defended as a provocation, one that demands: better medical and social services for gestating women; a decrease in the medical hazards associated with gestation and childbirth; better working … conditions for future mothers, gestating mothers, mothers and women more generally; and a true redistribution of the burdens of responsibilities of social reproduction’.1 Ectogenesis makes for an interesting theoretical perspective to highlight how present conditions (including gestation taking place inside a person of female biology) have resulted in some structural inequalities. Examining the law surrounding partial ectogenesis is useful to demonstrate quite how restrictive the law is in relation to gestation and female reproductive health.5 Historically, technology has been politically captured to afford increased legitimacy for measures that subject pregnant people to greater control. Better neonatal intensive care has resulted in increased legal restrictions on abortion,5 and birth control has resulted in legal and political manoeuvres to determine who is allowed to reproduce.12 In the literature, as well as those writing from the perspective that ectogenesis presents a possible tool for female liberation,3 there are equally those claiming that ectogenesis is a justification for restricting access to reproductive healthcare (namely, abortion).13 Carefully framed political provocation, analysing ‘the risks and burdens of pregnancy and childbirth, as well as the unfair distribution of childbearing responsibilities between men and women’1 through the prism of value in social reproduction, can prevent political capture of technology. Focusing on the extent to which society’s treatment of the (potentially) gestating person, both before, during and after gestation, has resulted in structural inequality in the labour market and beyond, emphasises the importance of good reproductive healthcare to better guarantee equality and freedom.

References

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Footnotes

  • Twitter @ECRomanis

  • Contributors ECR is the sole author.

  • Funding This study was funded by Wellcome Trust (208245/Z/17/Z).

  • Competing interests None declared.

  • Patient consent for publication Not required.

  • Provenance and peer review Commissioned; internally peer reviewed.

  • In English law there is no right to pregnancy termination (potentially inclusive of ending to a pregnancy in order to opt for gestation extra uterum5) outside of emergency circumstances. A doctor merely has a defence to the crime of procurement of miscarriage under the Offences Against the Person Act 1861 and/ or child destruction under the Infant Life (Preservation) Act 1929 in a list of prescribed, and heavily medicalized, circumstances that are listed in s.1 of the Abortion Act 1967.

  • National Institute of Health and Care Excellence14 guidelines currently recommend that it is good practice for doctors to offer a choice in childbirth,15 but English law is clear, following R(Burke) v General Medical Council (2005) EWCA Civ 1003, that a doctor is not legally required to provide any particular medical intervention in the absence of an emergency. A doctor cannot be compelled to comply with a pregnant person’s choice, for example, to opt for caesarean in place of vaginal delivery.7

  • Women frequently report being ‘shamed’ by medical staff for wanting a caesarean birth.15

  • The use of viability to regulate abortion is prevalent of the law of multiple jurisdictions, including the US following the explicit Supreme Court ruling in Roe v Wade 410 U.S. 113. 1973. An implicit viability threshold is also installed in English law because of the much-narrowed grounds for legally permissible abortion after 24 weeks in s.1 of the Abortion Act 1967.

  • For example, the British Parliament explicitly chose to amend the viability threshold in English law from 28 weeks in the Infant Life (Preservation) Act 1929 to 24 weeks in the 1990 amendments (s.37 of the Human Fertilisation and Embryology Act 1990) to s.1 of the Abortion Act 1967 because developments in neonatal intensive care meant an increased likelihood of survival at an earlier point in gestation.

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