Access to technology: legal and ethical limitations

The law has long limited groups of people’s access to reproductive technologies. Until 2019, single people were indirectly prevented from using surrogacy in the UK because it was much more legally complex for them.xvii Ethical and socio-political debates about access to surrogacy are ongoing,xviii and similar questions are raised about access to UTx13 43 44 and artificial placentas.16 21 This context serves to illustrate the extent to which the law dictates who can access reproductive technologies (including assisted gestation) already. AGTs in development raise some new questions building on these live debates.

An artificial placenta introduces a form of ending a pregnancy without ending gestation.3 16 This technology has enormous potential in aiding pregnant people experiencing a dangerous, but wanted, pregnancy.3 16 There is also speculation about its use in broader circumstances (for social or personal reasons),21 which raises the question about when pregnant people would,16 and should,21 be empowered to opt-out of gestation. While these might be ethical questions, examining the circumstances in which technology ought to be used speaks to how current law needs to be reformed—or how future regulation needs to be envisaged.

This question about a moral right to opt out of gestation,xix can actually be described as a much broader one—is there a moral right to access any form of assisted gestation where it is not strictly clinically necessary? However, that this right has been framed differently in different contexts has meant that how it may have been conceptualised does not marry. For example, some have argued that any person (carrying a pregnancy) should be afforded the right to access artificial placenta technology with no qualification on the reasons for that choice.16 21 45 Some have specifically argued that artificial placentas are a form of assistance healthcare that all people with female physiology are entitled to because of the ‘pathological nature of gestation and childbirth’.45 However, to couch a right to use an artificial placenta in these terms has problematic implications. It does not reflect the lived experiences of all pregnant people (though some feel this way)46 and denigrates claims made about the value of pursuing pregnancy/gestation and thus potentially access to other forms of AGT.46 This framing could have a serious negative impact on how pregnant people are treated because ‘alternatives’ are available.46 47 Pain and suffering in pregnancy/childbirth would consequently not be attended to/treated as willingly (and note there are already problems with the extent to which pain is not appropriately treated in birth,48 especially among minorities)49 given that it could be conceptualised as a choice a person has made. Furthermore, such framing has serious implications for how we conceptualise of other AGTs. It might make UTx and surrogacy harder to justify as they would more explicitly be seen only as a cause of pain and suffering—and in the case of surrogacy specifically on the part of another person.xx Some scholars would accept these consequences as they argue explicitly that surrogacy/UTx is problematic.50 However, such an approach denies the lived experiences of people who willingly undertake surrogacy for others,51 or those who want to experience pregnancy through UTx.18 Thus, framing the right to opt out of gestation in this way is not a good basis for enabling access to AGTs based on its minimisation of different individual needs and preferences.

Alternatively, this question of a right to assistance with gestation is also explored in the UTx literature, though the question is put differently; is there a positive right to experience gestation that people can rely on to claim a right to UTx in place of gestational surrogacy?43 Alghrani has conceptualised this right as a possible natural extension of the principle of procreative liberty.43 O’Donovan, centring the subjective experience of those who need assistance to gestate, has explored the experiential value of UTx as allowing individuals to experience gestation themselves.18 Conceptualising of the right to assistance as being based on the right to experience the embodiment of gestation needs further interrogation for its potential consequences. Does this overvalue pregnancy to the degree that it ‘shames’ individuals who do not/cannot physically gestate? Such framing might have the unintended consequence of amplifying specific social narratives of pronatalism and of shaming certain technological assistance in pregnancy and birthing (this already impacts on people who have a caesarean rather than vaginal delivery).52 Persons who opt for surrogacy or artificial placenta rather than UTx could be ‘shamed’ for not having sustained gestation themselves.

Perhaps the moral right to carry/or not to carry a pregnancy can be considered as a part of the moral/legal right to become a parent. But this still leaves questions; if this is how a right to make decisions about how to gestate, much like how parents are socially afforded significant freedom to parent in different ways,53 is grounded, this could have a negative impact on surrogates and their bodily autonomy because of the implication that intended parents ought to be involved in matters of the gestation. Furthermore, it would likely be a conceptual failure to characterise a decision about gestation as a matter related to ‘parenting’ in any sense since before birth there is no entity that can be ‘parented’ as such.54

There has also been discussion on the limits of any (potential) moral right to seek assistance with gestation. Concerns about the invasiveness of the fetal extraction process for gestation extra uterum in an artificial placenta are most often raised as reasons why artificial placentas are not an alternative to abortion.,6 23 46 55 56 These same concerns, however, might also be raised when questioning whether it is justified in instances when pregnancy is progressing well, but a person wants to opt-out of pregnancy in favour of extra uterum gestation. Alghrani has questioned whether partial ectogestation should be restricted only to those pregnant persons who have a demonstrable medical need for assistance with gestation during their pregnancy.57 These concerns about the justification of the use of technology echo those raised in the UTx literature about the invasiveness and riskiness of the procedure (for donor and recipient)44 when there are other forms of AGTs (gestational surrogacy) available – though these will not always be available or desirable alternatives.18 43 The concern in the context of surrogacy is that the risk of another person potentially being exploited might outweigh any claim to a right to assistance with gestation.58It is clear that separate debates are ongoing about the ‘appropriate’ use of these assistance technologies where they are not understood to be, in narrow clinical terms or on the basis of some particular social conventions, ‘necessary.’ These debates would benefit from convergence. At root, these questions are fundamentally the same; they are about rights to assistance with gestation, how this might be understood and framed, and potential limitations.

Ultimately, it is difficult to reach any conclusions about rights to undertake or to forego gestation (in ethical or legal terms) in the case of any one form of AGT without this necessarily, by virtue of consistency, impacting on conclusions about access to other AGTs.4 Without considering these technologies as a genus there is the potential for a hierarchy of assisted gestations to be established where conceptualisations of rights to or not to gestate are at odds. Further, rights to opt-in or opt-out might be thought dependent on the absence of comparable alternatives.44 What ‘comparable’ means to individuals will be up for debate. Surrogacy, for people wanting to become parents, might be considered an alternative route to parenthood, but not to some of the more physical aspects of being an ‘expectant parent’ because of the absence of the experience of gestation. There is ethical debate about the ethics of using a surrogate when UTx is available (and vice versa),18 19 59 the same discussions would likely surround the advent of artificial placentas,4 considering the ethics of using a surrogate where a person could themselves be pregnant58 a short time before opting for machine assistance.

The use of AGTs, and how such uses are ethico-medically and socially explained and justified, may also change the way that gestation is broadly conceptualised. Some have expressed concern that alternatives in this context, including surrogacy and ectogestation, enable more public interference in human creation, could be to the detriment of pregnant people’s rights. In particular, the expectations placed on them.41 42 46 47 60 Specifically surrogacy61 and ectogestation46 62 may intensify the ‘maternal-fetal conflict’ model of pregnancy that ‘implies the existence of two mutually distinct and disinterested patients with potentially hostile interests’61 and results in pregnant people being coerced into behaving in ways that prioritise the fetus over themselves. Since there is more control that can be exercised over gestation when machine-facilitated, the conceptual separation of gestation from pregnancy is imperative to prevent excessive social and legal regulation of pregnant people. How this conceptual distinction might be socially and legally cemented needs investigation.

Access to technologies: social and financial limitations

In addition to whether options are/ought to be legally accessible, there are broader questions about access. These result from the fact that AGTs (especially where the use is for ‘non-clinical reasons’) may not be publicly funded.42 60 63 This is not to say that public funding for ‘non-clinical reasons’ should be precluded, especially since what would be determined a ‘clinical reason’ might be construed narrowly to the detriment of the lived experience of individuals needing assistance with gestation.16 However, in a publically funded health system where there is competition for resources AGTs for less urgent clinical reasons (or social reasons) are unlikely to be prioritised.42 60 Thus they would only be available to people able to afford them, which could have huge ramifications for equality.21 If ectogestation is only available to wealthier people, this could increase disparities that already exist in pregnancy outcomes.60 Richer people would have choice about how much of the physical and physiological burden of reproductive labour to bear and poorer people would not, potentially even when their pregnancy is difficult. Similarly, UTx offers a choice about pregnancy that if only available to richer people results in an unequal disparity of reproductive experience. Equally, there exist concerns about who surrogacy is accessible to, and the resulting demands that are made of socially disadvantaged people in order to assist. Surrogacy can be expensive, and so some argue that it enables richer people to pressure poorer people into performing gestational labour for them.64

Concerns about inequality of access to choices about gestation, and associated wider implications, arise in the context of all AGTs. Given that from the perspective of a service user surrogacy, AGTs may exist as a spectrum of options, there is a need to be attentive to the realities of who they are accessible to so that a genuine choice can be made, both by the person seeking assistance and a potential other person willing to render assistance.19 For this reason, an investigation of these technologies collectively that examines them in a manner attentive to their wider social implications will enrich conversation about equality of access.

Birth registration: parenthood and origins

Questions of parentage and origins that arise from the use/potential use of AGTs speak to important aspects of individual identity including who they are, and how they are defined in relation to others. Concerns about the attribution of legal parenthood, and specifically motherhood, have long been apparent in the surrogacy context and are emerging about UTx. In the UK, a mother is the person who undertakes gestation.xxi This attribution of motherhood has been widely criticised in the surrogacy context for failing to account for the intentions of both intended parent(s) and surrogates assisting in gestation.8 65 A strictly biological definition fails to account for the broader circumstances surrounding reproduction, and privileges heteronormative accounts of reproduction in which a person with female physiology can undertake gestation themselves. It also fails to recognise the care work that goes into the rearing of children beyond gestating.41 60 In response to potential concerns about the absence of a ‘mother’ if the person who gestates as a surrogate is not recorded on a birth certificate, the Law Commission/Scottish Law Commission notes that ‘there already exist “legal fictions” around parenthood.9 There are proposals to recognise ‘at birth legal parenthood’ for intended parents.10

Questions have also been raised about legal parentage when gestation is undertaken by a machine. Most commentators consider the case of complete ectogestation in which gestation takes place entirely extra uterum, where a gestateling3 ,22 might appear legally ‘motherless’, or, to have a machine for a mother.5 66 In partial ectogestation, the initial gestation of the human entity in the pregnant person’s body (before the artificial placenta ‘took over’) would likely be sufficient to identify that person as the legal mother.5 67 Though there would still be the matter of when legal parentage is afforded. There are reasons to believe that a gestateling would not be recognised as ‘born alive’ even though delivered from a pregnancy15 68 69 (though this is a disputed claim).70 Parenthood is a relational status54 55 assigned on the basis of a person’s caring relationship with an existing entity. It is therefore arguable that legal parental rights/responsibilities cannot be assigned, since there is no ‘born child’ to which they would relate, as a gestateling remains isolated and ‘unborn’ because they are not interacting with their external environment.2 69 The potential use of AGTs raises questions about who the parents are in different ways, but the important point is that given that gestation is how legally a person’s relationship as a ‘mother’ is recognised, a lot is at stake for individuals in how these technologies are used.

There is scope for assisted gestation to reorient our thinking about the relationships and identities produced throughout gestation in non-gender-essentialising ways.71 The definition of legal mother has been claimed to be ‘de-gendered’ in that a mother is the person who gestates irrespective of their gender.xxiii However, this has forced some trans-men into being formally identified as mothers when they want to be recognised as fathers.xxiv The ‘mother is always certain’ demonstrates the reinforcement of gender in reiterating a link between having the physiology to become pregnant and a term that remains gendered in its widespread use.4 72 73 ,xxv The legal definition of mother has ramifications for UTx if this enables cis-men to undertake gestation in reproductionxxvi since they might find themselves both legal mother because of their role in gestation and legal father because of a genetic contribution.xxvii Thinking about innovative applications for AGTs can enhance conceptual discussion about gestation and gender. As Horn argues, imagining how ectogestation could redistribute reproductive labour ‘will be most generative if we begin the project of disentangling gender from reproduction by rejecting binary understandings of human reproductive roles’ and acknowledge ‘that we already live in a world in which men, non-binary and gender-queer people give birth and in which many women cannot or do not gestate’.71

Where AGTs are used there are also questions about a ‘right to know’ gestational origins.74 75 Wade has suggested that the birth certificate could have annotations to provide additional, relevant information to individuals ‘about the manner of their birth’,75 and of who may have contributed to their creation. This information, where it relates to a donated uterus or a machine, might be thought as important to individuals as knowing about the involvement of a surrogate in their birth. Legal and social issues about the assignment of parenthood, the social importance that might be placed on (information about) gestational origins, and the impact on potential future children, affect all forms of AGTs and require further investigation. Considering these technologies together in this investigation will help the development of a more coherent account of whether there is (and to what extent there is) a right to know about one’s gestational—as opposed to genetic—origins.

Agreements: making and enforcing arrangements

Since the use of AGTs will often involve the labour of other persons; whether a person donating an organ, performing reproductive labour for another, or a person responsible for the management of an artificial placenta, it will inevitably involve arrangements made between persons. Conversations about the extent to which there is interference with the private arrangements in this context are ongoing, but should be broadened to encompass new possibilities. Both the Law Commission and the All-party Parliamentary Group on surrogacy have recommended that the law rendering surrogacy agreements unenforceablexxviii be revisited as it renders all stakeholders vulnerable.9 10 There are other plausible agreements that individuals could make surrounding other AGTs. For example, people could attempt to make conditional their uterus donation, or an intended parent might ask a surrogate to opt for extra uterum gestation after a period of time. Legal interference with such arrangements requires consideration; this is especially important if these technologies are not publicly funded, or funds are limited to cases deemed (socially or clinically) to be more important. There remains a lively debate about the extent to which surrogates should be compensated because of the potential for exploitation and the exacerbation of certain inequalities.76 Fundamentally, conversation about how private arrangements can be made are about where there may need to be some ethical/legal limitations on the uses of technologies because of the potential vulnerability of involved parties. Additionally, if use of one technology is limited, this might lead to a use of another as the service user seeing them as alternatives may see this as performing a function in the event that their intended use in another context is not permitted. If there is a prohibition on payment for uterus donation, this could increase the likelihood of that person being asked to act as surrogate instead (or vice versa).Consequently, it is useful to think about private arrangements concerning AGTs within the context of these as a potential spectrum of options.