There’s a scientific development on the horizon that could upend the abortion debate: artificial wombs.
The research remains preliminary, but in April a group of scientists at the Children’s Hospital of Philadelphia announced amazing advances in artificial womb technologies. The authors explained how they had successfully sustained significantly premature lambs for four weeks in an artificial womb they had designed.
This enabled the lambs to develop in a way very similar to lambs that had developed in their mothers’ wombs. Indeed, the oldest lamb — more than a year old at the time the paper was published — appeared to be completely normal.
The technology included placing the premature lambs in a “biobag” containing a bath of simulated amniotic fluid, regularly replenished, with an oxygenator circuit connected to the lamb via the umbilical cord.
The lambs were at a stage of development comparable to that of a 22- to 24-week-old human fetus. Babies born at that stage of gestation have very high mortality rates —roughly 70 percent at 22 weeks — and almost all who survive have long-term health problems. The immediate hope is that artificial wombs could raise the survival rate of human fetuses and improve their lifelong health substantially.
The Supreme Court’s decision in Planned Parenthood v. Casey treats “viability” — when a fetus can survive outside the womb — as the important constitutional dividing line for individual states’ ability to restrict abortion. US states have much more power to restrict abortion after viability than before (although even post-viability there are important constitutional carve-outs, including for abortions to protect the health of the mother).
If — and it is a big “if” — artificial wombs were to become available for human fetuses, we face the following question: Could anti-abortion laws require pregnant women whose fetuses are not yet viable to transfer the fetus to a nurturing site outside the body, possibly by way of minimally invasive surgery? The right to abortion would thereby be restricted.
Let me be very clear: The technology is not ready for human use, which means major changes in abortion policy are not imminent. But that doesn’t mean we shouldn’t begin to wrestle with the implications of such foreseeable medical advances. (And of course, whatever you think of abortion, we should celebrate this kind of research for the benefit it can offer to the families of premature infants.)
The overarching right to abortion can be divided into three distinct rights
Why is this technology relevant to abortion? The reason is that — as I have argued elsewhere — the constitutional right to abortion in America actually amounts to a conjunction of three separate but overlapping “rights not to procreate.” First, there is a right not to be a gestational parent: That is, a woman has the right to stop gestating, or carrying a fetus to term.
Second, there is a right not to be a legal parent: The law cannot force on a woman, against her wishes, the legal duties of parenthood. Finally, the right to have an abortion implies a right not to be a genetic parent — for there to be no child that comes into being that is her genetic offspring.
Typically, when a woman has an abortion, she is able to prevent all three kinds of parentage: She stops gestating the child, there is no child that bears her genetic code that comes into existence, and (therefore) there is no child the law recognizes as her child.
In some cases, however, the rights come apart. Take gestational surrogacy. In one version of such a case, a father who intends to raise a child provides his sperm and a mother who intends to raise the child provides her egg. The egg is then fertilized outside the body (in vitro) and then implanted in another woman. That second woman is the gestational surrogate, carrying the child to term, even though she is not the genetic mother.
Suppose the surrogate decides she wants to have an abortion. She would be exercising her right not to be a gestational parent. But that abortion would not represent an exercise of her right not to be a genetic mother; after all, whether the child is born or not, it is not her genetic child.
Additionally, according to the law in many states where surrogacy is practiced — California, for example — if the child were born, the gestational surrogate would not be the legal mother either. So her abortion would not be an exercise of a right not to be a legal parent either.
Fair enough, you might say: The three rights are unbundled in the unusual case of gestational surrogacy, but what does that have to do with most pregnant women in America? This is where the artificial womb comes in. Imagine, as proposed above, that a fetus could be moved from the mother’s womb to an artificial womb through a minimally invasive surgery beginning at 18 weeks of gestation.
How anti-abortion legislatures might respond to the advent of artificial wombs
Now imagine a US state were to pass a law decreeing that although abortion is available up to that 18-week threshold, once transfer to an artificial womb is possible, a woman who wants to stop gestating cannot abort. She can either continue her pregnancy or transfer the fetus to the artificial womb. This would effectively preserve her right not to be a gestational parent — as she can stop gestating by transfer to the artificial womb — but not her right not to be a genetic parent. That’s because a child would come into being with her genetic code that she does not want to exist. (It is unclear whether she would also be considered the legal parent in such a case, so let’s put that to one side.)
For those who support abortion rights in America, this scenario raises a crucial question: Do they support the right of women to control only whether they gestate or, additionally, a right to terminate a fetus whether or not gestation is involved?
Certainly, the rhetoric of abortion rights in America focuses on avoiding unwanted gestation — think of the slogan “my body, my choice.”
Artificial wombs may lead to a revisiting of the argument posed in one of the most famous articles ever written about abortion, “A Defense of Abortion,” by Judith Jarvis Thomson, first published in 1971. Thomson’s article, which features one of the most famous thought experiments in bioethics, is similarly focused on the right not to gestate.
Artificial wombs and the case of the kidnapped violinist
Thomson seeks to argue that even if a fetus is a person, women should still have the right to abort. Let me (all too briefly) recap the case she makes:
Thomson asks us to imagine that one morning you wake to find you’ve been kidnapped and hooked up to an unconscious famous violinist. (Whether you are male or female is irrelevant.) The violinist is dying from a rare kidney disease, but he will survive if you allow him to use you as a human dialysis machine for nine months. Should you unhook yourself, the violinist will die. The violinist is not at fault for your predicament. The kidnapping and dialysis coupling was instead the work of the Society of Music Lovers, who are devoted to the man’s music and to saving his life.
Thomson concludes that it is intuitively obvious that one has a right to disconnect oneself from the violinist in this situation, that the violinist’s need for your help, however pressing, does not create an obligation upon you to sustain him. While it would not be immoral for you to disconnect, you also may stay connected. But that would be a “supererogatory” moral act (above and beyond one’s moral obligation).
If you agree with Thomson on the case of the violinist, she concludes, you must also agree that a woman has a right to be free of a fetus, even if you believe the fetus to be, like the violinist, a “person,” with all the rights that word entails. (Thomson did not in fact assert that an early fetus has such rights; she was granting one premise of her pro-life opponents’ argument.)
As Thomson herself puts it:
I am not arguing that people do not have a right to life. … I am arguing only that a right to life does not guarantee having either a right to be given the use of or a right to be allowed continued use of another person’s body — even if one needs it for life itself. So the right to life will not serve the opponents of abortion in the very simple and clear way in which they seem to have thought it would.
Thomson’s approach is not without its critics. Some commentators have suggested the thought experiment works as an analogy to abortion following a rape but does not fit every abortion. But my purpose here is not to delve into these objections.
Instead, I want to emphasize how Thomson’s influential argument, as she herself recognizes, is an argument only for a right to disconnect: It’s the right to not gestate, not a right to terminate the fetus. To put the point in terms of Thomson’s hypothetical: If you find yourself hooked up the violinist, the state should protect your right to disconnect the violinist and attach him to an actual dialysis machine, but that does not imply you have the right to disconnect him and kill him.
In a world of artificial wombs — the world that may be opening up as a result of the recent research on premature lambs — a woman might have a right to stop gestating (to transfer the fetus out of the body to an artificial womb) but not a right to terminate the fetus as well.
Distinguishing between ceasing gestation and terminating a fetus could have some important implications for paternal rights. Both typical pro-choice arguments and, indeed, even a decision of the US Supreme Court have rejected the idea of a paternal veto on abortion. In Planned Parenthood of Central Missouri v. Danforth, the Court put it this way: “[A]s 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.”
But if it became possible to transfer the fetus to an artificial womb, a man opposed to his wife’s (or other sex partner’s) abortion might be able to make a case along the following lines: “No one is forcing you to gestate the fetus, and after we transfer the fetus to an artificial womb, you and I are on equal footing. At that point, the disagreement is: I want to be a genetic parent; you do not. Given this tie, the state should favor life.”
How might one resist this argument? Earlier, I asked you to imagine that transfer to an artificial womb happened via a “minimally invasive surgery”: something on the order of laparoscopic surgery to remove a small tumor. If the surgery were more invasive, as seems plausible, one might think it was just as much a violation of a woman’s right to control her body as forcing her to continue gestation.
And perhaps one might think even a minimally invasive surgery is morally problematic, given the rights we enjoy in most circumstances to reject forced medical treatment of almost any sort. But what if, to really get sci-fi, the transfer worked like the transporter in Star Trek? A tingle and then it’s gone. Would the arguments against mandated use of the artificial womb still hold water?
Confronted with the argument that transfer to an artificial womb could be made mandatory, a different strategy might be to stand up and defend abortion as a right not to be a genetic parent — full stop. The asserted right, in other words, would extend further than the right not to be a gestational parent and include a right to terminate the fetus. In Roe v. Wade itself, the Supreme Court speaks about the burden of motherhood — not merely the burdens of gestating — as underlying the abortion right:
Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.
The references to the burdens of caring for a child who is already born, and the psychological distress for a family of an unwanted child go beyond a mere focus on the burdens of carrying the child.
It is subsequent cases and the modern abortion rhetoric that have focused more on the physical burdens of gestation. The advent of artificial wombs may press those defending a woman’s right to abortion to return to these earlier themes. But such arguments are more complicated and fraught. As we have seen, they put mothers and fathers on much more of an equal plane when it comes to abortion, and men might well argue that non-gestational burdens fall on both sexes.
The questions raised by artificial wombs also reopen the question of whether the right to abortion at all hinges on the availability of adoption. Once we go beyond the burdens of gestation as the justification for abortion and instead turn to the psychological, financial, and social burdens of unwanted parenthood, the potential of adoption to reduce — but not completely eliminate — some of those burdens may become relevant.
It seems an unalloyed good that prematurely born fetuses may eventually have a greatly improved chance to live and thrive. But welcome new advances also sometimes raise new questions. Here, these laudable medical advances also reopen a host of complicated questions about one of the most hotly contested issues in politics, law, and ethics.
I. Glenn Cohen is a professor at Harvard Law School and faculty director of the school’s Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics. This piece draws on an argument he recently made in the Hastings Center Report. Find him on Twitter @CohenProf.
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