By Manasi Singh
Reproductive rights have been a heavily controversial topic in the United States for several decades. In Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court overturned two past decisions: Roe vs. Wade (1973) and Planned Parenthood v. Casey (1992).[1] While these cases are broadly remembered for upholding the right to abortion, the intricacies of these cases are where we get into discussions about the definition of legal personhood regarding a fetus and the legal and ethical implications of that definition.
Prior to the Dobbs decision, abortion jurisprudence said that the state could not impose an undue burden on a woman’s right to an abortion before the fetus is viable, with the implication that states may restrict abortion access after viability.[2] This theory of viability was based in the Casey decision. While the Dobbs decision now makes it a mostly moot point, it does beg the question of how we define personhood as a general legal term, specifically in the context of fetuses.[3]
Medicine today is on the path toward ectogenesis, which is gestation that takes place entirely outside the body.[4] In other words, artificial wombs may become a realistic medical option in the near future. This type of technology would allow conception and fetal development to occur outside the human body. It would also allow for a fetus to be transferred from its womb into an artificial womb for the remainder of its gestation.[5] These possibilities would serve many benefits such as removing the need for a surrogate, drastically increasing survival chances for premature babies, and effectively eliminating the health and career risks that are most commonly associated with pregnancy.[6] However, these benefits should not distract from the variety of complex legal questions that this technology raises.
While there are several legal and ethical considerations, three encompass the conversation most broadly. This is not a comprehensive list by any means, but I believe the most likely legal issues to arise out of the development of artificial wombs include: (1) the balance of maternal, paternal, and state interests in the fetus, (2) the enforceability and validity of contracts regarding fetuses in artificial wombs, and (3) the creation of new liability concerns and the exacerbation of existing liability concerns with fetuses in artificial wombs. This list reveals an interesting phenomenon, which is that all these issues require assessing the value and autonomy of a fetus independent of its relationship to the physical body of a biological mother. This takes us back to our earlier conversation about the viability doctrine. This doctrine may not be a constitutional standard anymore. Still, discussions about viability will come into play again when we attempt to resolve some of these issues being brought by artificial womb technology.
[1] Dobbs v. Jackson Women’s Health Organization, 142 U.S. 2228, 2241 (2022).
[2] Planned Parenthood v. Casey, 112 U.S. 2791, 2804 (1992).
[3] Id. at 2807.
[4] Jessica H. Schultz, Development of Ectogenesis: How Will Artificial Wombs Affect the Legal Status of a Fetus or Embryo?, 84 Chicago-Kent L. Rev. 877, 878 (2009).
[5] Id. at 879.
[6] Seppe Segers, The Path Toward Ectogenesis: Looking Beyond the Technical Challenges, 22 BMC Medical Ethics 59, (2021), https://bmcmedethics.biomedcentral.com/articles/10.1186/s12910-021-00630-6#citeas.
Image Source: https://rewirenewsgroup.com/2012/02/23/what-do-artificial-wombs-mean-women/