Why don’t we just…
decriminalise gestation?

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In the last few years, teams of research scientists in the US, Australia and the Netherlands have been working hard to develop an artificial womb – a machine capable of facilitating the process of gestation (emulating a pregnancy) outside the body. These devices are being developed as an alternative to neonatal intensive care.

Current technologies have limitations that mean that mortality rates remain high after pre-term delivery and pre-term neonates that survive often have long-term health needs. It is thought that a machine capable of continuing the process of gestation ex utero will be able to improve prospects for premature neonates by creating a safe environment in which their bodies can continue to mature as if they hadn’t been born. Some scientists are estimating that an artificial womb might be available for testing on humans in the next five to 10 years.

It is hard not to be excited about artificial wombs. If they work, they will do amazing things to help parents of babies born premature and women experiencing dangerous or difficult pregnancies, by offering them a choice about how to gestate their foetus. It is not uncommon for pregnancies to become difficult – for example, where women have underlying illnesses or develop health conditions while pregnant. For these women, an artificial womb would allow them to protect their own health without losing their foetus. In future, women might even be enabled to decide how long they would like to be pregnant for in order to minimise some of the burdens they experience in reproducing. Women could opt for an extraction procedure (akin to a caesarean section) to transfer their foetus to an artificial womb to continue gestating. Would such a choice, however, be legal?

Most people are surprised to learn that all termination of pregnancy remains a criminal offence in England and Wales. The Offences Against the Person Act 1861 criminalises any premature ending of a pregnancy. The Abortion Act 1967 provides doctors with a defence in a limited set of circumstances: before 24 weeks’ gestation where the risk of termination is less than that of continued pregnancy; where pregnancy poses a risk to a pregnant woman’s life; where pregnancy poses very serious risk to the pregnant woman’s physical or mental health; or If there is a substantial risk that the foetus is disabled.

This legal framework does ensure that pregnant women have access to abortion early in pregnancy, and that women experiencing a dangerous pregnancy can access abortion or, if possible, premature delivery and neonatal intensive care unit treatment. However, the law is still incredibly regressive because the healthcare women are receiving is labelled criminal and is permitted only because the law provides an “excuse” for their choices.

The law as written seemingly prevents those who might want to access an alternative form of gestation (an artificial womb) to alleviate the burden of pregnancy on their health or welfare from making that choice. Since opting for ex-utero gestation is a form of ending a pregnancy it may only be permissible when pregnancy is really dangerous. In regulating pregnancy so strictly, such that access to a technological alternative to gestation might not be legally permitted, the law sends a powerful message about the role of the female body.

There is a compelling campaign, led by the British Pregnancy Advisory Service, to decriminalise terminations of pregnancy because labelling women and their doctors as criminals for accessing or providing reproductive healthcare is wrong. Artificial wombs add to the case for reforming the law because they illustrate how little control women are afforded over their own bodies. The law reinforces heteronormative values about the female body by forcing women and doctors to explain why pregnancy should be ended from a set list of reasons even in those situations where their lives are threatened or where they intend for gestation to be continued ex utero. How and if women gestate is no business of
the criminal law. The law needs to change.

Elizabeth Chloe Romanis is a lawyer and bioethicist at Manchester University. You can read the paper on which this article is based at bit.ly/33o31R0

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