Artificial Wombs and Abortion Rights
I. Glenn Cohen is a professor at Harvard Law School and the faculty director of the Petrie‐Flom Center for Health Law Policy, Biotechnology, and Bioethics. DOI: 10.1002/hast.730
Abstract
In a study published in late April in Nature Communications, the authors were able to sustain 105‐ to 115‐day‐old premature lamb fetuses—whose level of development was comparable to that of a twenty‐three‐week‐old human fetus—for four weeks in an artificial womb, enabling the lambs to develop in a way that paralleled age‐matched controls. The oldest lamb of the set, more than a year old at the time the paper came out, appeared completely normal. This kind of research brings us one step closer to providing excellent quality of life for premature newborns, but it also portends major legal and ethical questions, especially for abortion rights in America.
perspective
In a study published in late April in Nature Communications, the authors were able to sustain 105‐ to 115‐day‐old premature lamb fetuses—whose level of development was comparable to that of a twenty‐three‐week‐old human fetus—for four weeks in an artificial womb, enabling the lambs to develop in a way that paralleled age‐matched controls. The oldest lamb of the set, more than a year old at the time the paper came out, appeared completely normal. This kind of research brings us one step closer to providing excellent quality of life for premature newborns, but it also portends major legal and ethical questions, especially for abortion rights in America.
To understand this, suppose that a pre‐viability fetus could be moved from the mother's womb to an artificial one by way of a minimally invasive surgery beginning at eighteen weeks. In Planned Parenthood v. Casey, the U.S. Supreme Court reaffirmed viability as the defining line in the state's power to regulate abortion. Except under special circumstances (such as when abortion is necessary to save the life of the mother), the state is free to completely prohibit abortion after the viability point, whereas it faces a more demanding test in imposing pre‐viability restrictions. How would an artificial womb inflect the state's ability to regulate pregnancy under existing law?
One possibility is that the state may, as before, prohibit abortion outright only after viability but that it may require transfer to an artificial womb instead of abortion for women between eighteen weeks and viability. A second possibility is that artificial wombs would change our understanding of viability. That is, while an eighteen‐week‐old fetus would not be viable under the traditional definition of viability, we may understand it as viable once transfer to an artificial womb was possible; therefore, the state could prohibit both the transfer to an artificial womb and the abortion at eighteen weeks. A third possibility is an expansion of postviability pregnancy rights—that states that would have prohibited abortion outright after viability would now be forced at least to allow women to transfer the fetus to the artificial womb as an alternative.
It is hard to know which of these readings is the most consistent with existing law or (and the two may be different) which would be the most likely to hold sway given the current composition of the Supreme Court. This may depend, in part, on how invasive the hypothetical transfer surgery would be: the more invasive, the stronger the constitutional claim that woman could not be forced to undergo it. Perhaps this claim would find support in the right to refuse treatment.
The intersection of abortion, artificial wombs, and paternal rights is also uncertain. In Missouri v. Danforth, the Supreme Court rejected one state's paternal veto on the provision of abortion on the ground that when a father and mother disagree on whether abortion should go forward, only one can prevail, and “as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor.” If transfer to an artificial womb were possible, the tiebreaker could go away, in which case it might be constitutional for a state to prohibit abortion when a father objected and to permit only transfer to an artificial womb.
Part of what makes all of this so hard is that, both legally and ethically (think of Judith Jarvis Thomson's seminal article), the abortion right has been most vigorously defended as a right not to be a gestational parent, not as a right not to be a legal or genetic parent. That is, the right enjoyed by women is a right to stop gestating, not a right to end the existence of the fetus. The artificial womb would allow women to exercise the first right without the second. Defending a right to abortion when transfer is possible would change the moral terrain—unless my argument about invasiveness works. “My body, my choice” would instead become a right to terminate the life of the fetus. A defense along these lines could still be possible on the philosophical level, but seems a much harder sell legally and politically.
