Dr Elizabeth Chloe Romanis, from Durham Law School, explores the future of gestation and its legal and ethical implications as part of a recently published book, Biotechnology, Gestation and the Law.
As a leading researcher in reproduction and the law and author of the book, Chloe uses her extensive expertise to question whether a fundamental rethink of reproductive regulation is needed in a world of developing reproductive technologies.
To make a baby, there must be a successful gestation. Gestation is the process of becoming before birth in which an embryo is transformed into a mature human fetus that can be capable of surviving birth. At the moment gestation can only be sustained by a human pregnancy by persons with bodies assigned female at birth.
Reproductive technologies have helped lots of people struggling with involuntary childlessness (whether for biological, social, or psychosocial reasons) to have children. IVF and gamete donation have made it possible for us to assist with conception during reproduction.
However, these technologies are little help for people experiencing involuntary childlessness because they (or their partner) can’t sustain a pregnancy, a technology enabling gestation is the reproductive assistance they need.
For some time, the only option for people who need assistance with gestation is surrogacy, which is tightly regulated and sometimes comes with additional complications. There are, however, novel forms of technologies enabling gestation on the horizon that may offer further alternatives.
Uterus transplantation is the transplant of a functioning uterus into a body absent of a uterus. The procedure has been successfully performed over 100 times worldwide, with the first in the UK taking place in 2023.
The procedure has thus far only been performed in people assigned female at birth. It is not impossible, however, that a uterus could one day in the future be transplanted into a transgender woman or even a cisgender man to enable them to sustain a pregnancy.
Partial ectogestation, the use of an artificial placenta to facilitate the continued gestation of an underdeveloped human entity, is another exciting prospect. There is proof of principle from animal trials conducted around the world and in 2023, the US Food and Drug Administration discussed the ethical issues in the possibility of first-in-human-use.
While envisaged as a technological solution to prematurity, such technology might also introduce reproductive choices for some people about gestation – for example, how long they want to be pregnant for.
Finally, there is the much more science fiction prospect of complete ectogestation – the use of technology to facilitate the entire process of human gestation from scratch to baby.
While some of these technologies remain some way off in terms of their use to support human reproduction they raise some exciting prospects that we can and should speculate about.
This speculation is important, I argue, both in terms of ensuring we consider the ethical implications of technologies in development and because using these technologies to think about what the world looks like now can reveal some of the critical assumptions that we make about reproduction (and how we regulate it).
Technologies enabling gestation introduce the possibility of gestations we have never seen before and that change its very nature. Uterus transplantation introduces the possibility of unsexed gestation: it could become a process that can be facilitated by a pregnancy in any and all bodies regardless of their physiology and sex assigned at birth.
Ectogestation, whether partial or complete, introduces the prospect of gestation beyond bodies at all. Both technologies, therefore, introduce all sorts of fascinating ethical, legal, and socio-political questions about the becoming at the beginning of life with significant contemporary relevance – these are the questions I explore in my new book ‘Biotechnology, Gestation, and the Law’.
Technologies enabling gestation do not just afford people the opportunity to become parents – they offer people the ability to have or avoid certain experiences in making babies.
Those desperate to experience pregnancy could seek out uterus transplantation, those wanting to become pregnant but wanting to avoid pregnancy could seek out partial or complete ectogestation.
How do we decide who gets to have those experiences? What do we do about the inevitable issues of stratification and inequalities where some people have access and others do not?
Technologies in all bodies or beyond bodies also raise broader questions about whether they have emancipatory effects – what are the impacts of the ability to better distribute gestational work?
The law in many jurisdictions uses ‘gestation’ as the criterion by which to afford the legal status of mother to a parent.
There has been significant critique of this rule for some time – it should not be thought of as necessary that a person sustains a pregnancy to be considered the parent of a child.
Moreover, the gendered language used for a person who sustains a pregnancy is problematic for some birth-givers who want to be recorded as simply ‘parent’ or the father of their child.
Technologies enabling gestation in different bodies and beyond bodies both amplify these contemporary challenges and raise new ones that should give us cause to pause for reflection. Who are the parents where there is no person who facilitates gestation, rather it is facilitated by a machine? Why is it that the law uses ‘gestation’ as the criterion for legal motherhood?
In my book I address these and other questions. I argue that thinking about technologies enabling gestation and the possibilities they raise makes visible the extent to which biological essentialism underpins contemporary legal and social regulation of human reproduction.
Notions of what is biologically possible are used to police reproductive desires and decision-making in terms of access to technologies and their implications.
Instead of imagining that technologies enabling gestation can be neatly integrated into existing legal frameworks (which is hard to imagine as they were designed with questions about human conception rather than gestation in mind), we should use these technologies as an opportunity to fundamentally rethink how we regulate reproduction.
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