Emerging Legal and Bioethical Debates in Ectogestation

Abstract:

After decades of research, clinical availability of partial ectogestation facilitated by artificial womb technology (AWT) now appears imminent. The AWT poised to enter clinical use is both practically and conceptually distinct from other reproductive technologies. Legal regimes governing pregnancy and childbearing draw on a variety of complex and at times contradictory frameworks, and introduction of AWT will require application of these already convoluted legal regimes to situations they were not designed for. Furthermore, AWT may change collective ideas about gestation and childbearing in ways that give rise to new kinds of laws and regulations governing pregnancy and pregnant people. Uncertainty surrounding reproductive policy in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization means that the consequences of AWT are both less predictable and more likely to be influenced by policymakers and activists seeking to restrict reproductive rights. The purpose of this paper is first to situate AWT within existing legal frameworks governing gestation and reproduction and then, because those frameworks are insufficient to accommodate the novelty of AWT, to explore related bioethical debates likely to inform legal developments. In Part I, we describe the legally and ethically salient features of artificial womb technology and policy debates that may flow from them. In Part II we provide further background on the science and expected uses of AWT. In Part III, we identify different interests and interest holders implicated in these policy debates and assess how they relate to each other and to ectogestation. In Part IV, we examine existing law and legal principles that policymakers may draw on in response to novel questions raised by ectogestation. Finally, in Part V we explore gaps in the law where resolution of legal uncertainty implicates longstanding bioethical questions.