Artificial Wombs and Decriminalizing Abortion

After the announcement of the successful animal trials of a partial artificial womb in 2017, an image of a tiny pink lamb fetus floating in a transparent bag briefly became ubiquitous.¹ Mortality and health complications for premature babies born before 28 weeks remain high, in large part because their fragile lungs have not yet developed to the point that they can function outside the liquid environment of the uterus. Artificial wombs are set to improve health outcomes for babies born on the cusp of viability (24–26 weeks) by replicating this environment, submerging the fetus in artificial amniotic fluid so it continues to grow as though it had not yet been born. Global research toward a prototype is ongoing amid hopes that human trials might commence within five years.

Despite the fact that we are in the early days of this technology, and it may never be widely used, academics and journalists alike have been quick to argue that the artificial womb will force us to reconsider moral, legal, and ethical justifications for abortion.² The argument goes something like this: artificial wombs could protect a pregnant person’s autonomy by allowing them to have a fetus removed from their body, while also protecting fetal life by allowing the fetus to be extracted to grow through ectogenesis instead of being terminated. Therefore, the technology should be welcomed by both those who support abortion rights and those who oppose them.

The tone of these claims frequently brings me back to eighth grade, when male classmates would shrug and mutter “just saying” to deflect outraged responses to something deeply offensive that they had indeed, just said. We are supposed to accept the statement “after artificial wombs, abortion won’t be permitted” as a neutral, disinterested philosophical musing. But there is no neutrality here. To understand abortion as a “debate,” rather than as a vital form of healthcare, is to take a political position. To imagine a future in which abortion is “over,” even as people are still fighting for basic access to this care, and are still criminalized for ending unwanted pregnancies, is a callous game. And it exemplifies a contradiction that we often see in conversations about new technologies. Tools that, in their novelty, allow us to imagine a different kind of future, instead get co-opted in the service of projecting the restrictions of the past. We can imagine a future in which infants are gestated through ectogenesis, but not a future in which pregnant people are granted full autonomy over their bodies.

What is also striking about claims that artificial wombs will bring about the end of abortion is the way that commentators (often writing from a US context), frequently imply that it is universally true that technologies that improve a fetus’s chances of survival at earlier stages outside of the womb will subsequently undermine legal protections to abortion.

In American abortion jurisprudence, it is true that abortion is regulated in such a way that if artificial wombs allow viability (the point when a fetus has a chance of survival outside the body) to occur at earlier stages of gestation, states have a potential case for restricting access to abortion earlier. Under Roe v. Wade and subsequent Supreme Court rulings clarifying the Court’s position on abortion, fetal viability constitutes the point at which “the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe” abortion unless necessary for the mother’s health or life. But this does not mean, as the “just saying” articles on the subject imply, that artificial wombs will end both the need and justification for abortion. Instead, it simply reflects what Black feminists organizing for reproductive justice have argued for years: that reproductive rights jurisprudence in the United States on its own has never been good enough to protect reproductive freedoms in practice. A right to abortion has to be accompanied with positive resources for safe, accessible, and culturally competent forms of care whether a person continues or ends a pregnancy in order to be meaningful.

But even if we focus solely on abortion rights in American law, as the If/When/How: Lawyering for Reproductive Justice organization has commented, this “jurisprudence remains an insufficient bulwark against the criminalization of people for self-determining their reproductive lives,” precisely because it was constructed to be this way.

When lawyers and legal scholars started to unpack the Roe v. Wade judgment in the early 1970s, it was the Court’s calculated attempt to acknowledge “both sides” of the abortion “debate” by weighing the woman’s privacy right against the fetus’s increasing capacity for life that prompted these scholars to arrive at the conclusion that artificial wombs were the end game that would resolve the problem.³ The technology, they reasoned, would make it possible for a woman to be either “feticidally womb-empty” or “nonfeticidally womb-empty” and the law would compel her to the latter.⁴ Accepting the terms of a Supreme Court ruling that ultimately framed reproductive rights as always contingent, always subject to criminalization and gatekeeping, always primarily a moral “debate,” with two sides, these authors looked to a technological future as the ultimate and only “resolution.”

Like the commentators who latched on to ectogenesis in the 1970s, today’s proponents of the idea that “if ectogenesis is available, we are morally obliged to utilize it for unwanted pregnancies rather than aborting the foetus” seem determined to ignore the socially, culturally, and temporality contingent nature of abortion rights.⁵ The fact that contemporary abortion rights could be undermined by the artificial womb’s potential capability to change fetal viability is not evidence that those rights should be abolished with the introduction of this technology. On the contrary, it highlights the problematic limitations of the way abortion rights have been constructed into law in the first place.⁶ It is an indictment of the cruelty and paternalism of the continued criminalization of abortion, a criminalization which disproportionately impacts Black and Indigenous women and women of color, young people, low-income people, new and undocumented immigrants, and LGBTQ+ people.

To understand the possibility that artificial wombs could undermine reproductive rights is contextual rather than inevitable, we can look at the contrasting example of Canada, where abortion is legal throughout pregnancy. Canadian legislation has not constructed a fetus’s capacity for survival as the point at which a pregnant person’s right to abortion may be curbed. This does not mean, as alarmists would have it, that people come in droves to terminate fetuses in the third trimester of pregnancy (the vast majority of abortions in Canada occur in the first trimester).⁷ Instead, the legalization of abortion throughout pregnancy is a way of framing the procedure as a medical concern, not a moral one. While significant barriers to abortion access in Canada remain (reminding us again, that law on its own is never enough), abortion jurisprudence in this context protects pregnant people from criminalization. And this approach to abortion in law, as primarily a form of healthcare rather than as a stigmatized, criminalized procedure, creates a circumstance in which artificial wombs are unlikely to result in subsequent legal restrictions on abortion.

In 1995, Australian bioethicist Leslie Cannold gathered the opinions of a group of women on artificial wombs as an alternative to abortion.⁸ Cannold’s work was in dialogue with her colleagues Peter Singer and Deane Wells, who had epitomized the blithe “just saying” bro-bioethics approach to artificial wombs by declaring that the technology would allow pro-choice and antiabortion proponents to “embrace in happy harmony.”⁹ Cannold’s interviewees, both those who identified as pro-choice and those who identified as antiabortion, roundly rejected this hypothesis. As it turned out, the musings of philosophers on how to bring about the end of abortion had little to do with how people who had intimate knowledge of abortion and pregnancy actually felt.

Legal scholars have floated various proposals for how abortion rights could be protected with the introduction of artificial wombs: perhaps the fetus could be redefined as property, or abortion could be articulated as a negative right to avoid parenthood,or we could redefine the use of gestational limits in law to mean that a fetus was only really viable when it could survive without significant medical intervention.¹⁰ But if we want to ensure that technology that improves chances of survival for wanted, prematurely born babies does not subsequently challenge abortion rights, the answer stops at reframing abortion as medical care, not moral quandary. While we look to a future of artificial wombs then, we also need to look to a future of decriminalizing abortion, of granting pregnant people greater autonomy over their bodies, and of protecting reproductive care across the lifespan.

Claire Horn

Claire Horn is a Wellcome ISSF fellow at Birkbeck School of Law. She is currently writing a book about artificial wombs.

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