Not of woman born: a scientific fantasy.

Author:Hendricks, Jennifer S.

ABSTRACT

This Article explores the legal implications of a scientific fantasy: building artificial wombs that could gestate a human child from conception to birth. Because claims about the technological possibility of artificial wombs in the foreseeable future are likely overstated, the .focus of the Article is the effect that the fantasy of artificial gestation has on the legal discourse about pregnancy and reproduction today.

The Article first places the fantasy of artificial gestation in the context of theories about reproduction that western science has propounded. The history of scientific theorizing about reproduction is a history of scientists emphasizing the male contribution and minimizing the degree to which men are dependent on women for the creation of their offspring. Feminist scientists and philosophers of science have demonstrated how this sex-based ideology has skewed and hampered scientific efforts to understand the biology of reproduction. Despite the progress that has been made, scientific pronouncements about the prospects for building artificial wombs continue to reflect the biases that have historically plagued reproductive science, making it likely that those prospects are systematically overstated

The Article then turns to how the prospect of artificial gestation affects legal discourse about reproduction. For example, legal scholars increasingly cite the prospect of artificial wombs as a solution to the controversy over abortion, since the fetus could survive without requiring the pregnant woman to sustain it. Pregnant women seeking abortions could instead be required to choose between continuing the pregnancy or undergoing an extraction procedure in which the embryo or fetus would be transferred to an artificial womb. This predicted "solution" informs legal analysis of the scope of reproductive rights today by constructing the woman and the fetus as separate individuals with opposing interests. Similarly, comparisons between mechanical and human gestators shape legal rhetoric about commercial surrogacy and the legal control of pregnant women.

Feminist legal theory has demonstrated that the idealized autonomous individual is a myth," the fantasy of artificial gestation is a psychic representation of that myth. This myth both reflects and contributes to an ideology that minimizes the importance of the human connection of pregnancy.

"A theory about the stars never becomes a part of the being of the stars. A theory about man enters his consciousness, determines his self-understanding, and modifies his very existence." (1)

CONTENTS INTRODUCTION I. THE FANTASY OF ARTIFICIAL GESTATION A. What Is An "Artificial Womb"? B. Uses and Benefits of Artificial Wombs C. Technological Prospects II. THE FANTASY AS A DREAM DIARY A. From Ancient Times: Theorizing Reproduction Through Aristotle's Dichotomies B. The Modern Era: Preformation and Genetic Determinism C. The New Epigenetics: Science Resists the Dichotomies III. THE FANTASY MADE REAL A. Abortion 1. The Preformationist Rhetoric of Abortion 2. Path Dependence and the Moral Status of Embryos 3. Alternatives to the Maternal-Fetal Conflict Model B. Commercial Surrogacy 1. Cost and the Globalization of Surrogacy 2. The Preformationist Rhetoric of Surrogacy 3. Responses to Epigenetics 4. Artificial Gestation and the Ethic of Care CONCLUSION INTRODUCTION

This Article explores the legal implications of a scientific fantasy: the fantasy of building artificial wombs that could gestate a human child from conception until birth. (2) Fantasy refers not only to an ambition, but also to the creation of "unrealistic or improbable mental images in response to psychological [or, in this case, ideological] need." (3) Skeptical of claims that artificial gestation will be possible in the near future, this Article focuses on the effect that the fantasy of artificial gestation has on legal and scientific discourse about pregnancy today.

Part I describes the current lay of the land with respect to artificial womb technology: its definition, potential uses, and stage of development. This Part also explains some of the reasons for skepticism about claims that artificial gestation is imminent.

Part II places the fantasy of artificial gestation in the context of theories of reproduction that have been propounded by western science. The history of scientific theorizing about reproduction is a history of scientists emphasizing the male contribution and minimizing the degree to which men are dependent on women for the creation of their offspring. In recent decades, feminist scientists and philosophers of science have demonstrated how sex-based ideology has skewed and hampered scientific efforts to understand the biology of reproduction. Nonetheless, scientific pronouncements about the prospects for artificial gestation continue to reflect the biases that have historically plagued reproductive science, making it likely that those prospects are systematically overstated.

Part III shows how belief in the prospect of artificial gestation shapes current legal discourse and practices regarding reproduction. For example, legal scholars increasingly cite the prospect of artificial wombs as a solution to the controversy over abortion, since the fetus could survive without requiring the pregnant woman to sustain it. (4) Pregnant women seeking abortions could instead be required to choose between continuing the pregnancy or undergoing an extraction procedure in which the embryo or fetus would be transferred to an artificial womb. This predicted "solution" informs legal analysis of the scope of reproductive rights today by constructing the woman and the fetus as separate individuals with opposing interests. Similarly, comparisons between mechanical wombs and human gestators shape legal rhetoric about commercial surrogacy and the legal control of pregnant women.

The fantasy of artificial gestation is both an artifact and an implement of a particular ideology of reproduction. This fantasy posits the embryo and fetus as essentially separate from the pregnant woman. This model of reproduction makes artificial gestation appear possible. Belief in artificial gestation, in turn, reinforces the underlying ideology, undermining alternative models of reproduction and gestation. In brief, the fantasy of artificial wombs is a psychic representation of our cultural myth of individual autonomy; (5) invoking the fantasy further entrenches the myth.

  1. THE FANTASY OF ARTIFICIAL GESTATION

    This Part introduces the scientific and bioethics literature that proposes the creation of artificial wombs. Part I.A discusses the meaning of the term "artificial womb," focusing on the use of artificial wombs for ectogenesis (human reproduction that occurs entirely outside the body). Part I.B summarizes the benefits that proponents cite to justify the development of artificial womb technology. Part I.C describes the technical barriers to artificial gestation and argues that proponents tend to emphasize the challenges of providing basic fetal life support but gloss over the developmental challenges that ectogenesis would entail. This point provides the foundation for Part II, which shows that this imbalance in emphasis reflects long-standing gender bias that has frequently skewed reproductive science.

    1. What Is An "Artificial Womb "?

      If a child could be created from gametes, without ever growing inside a person, the device that accomplished this feat would be considered an artificial womb. Such freestanding gestation is the ultimate goal of a few scientists who have designed their research specifically to that end. (6) The technology that might accomplish this goal comes from two more general lines of research. First, the technology of in vitro fertilization and other research on embryos has lengthened the period of time that a fertilized egg can be kept alive and developing in a laboratory. Second, medical science strives to save premature infants at increasingly early points of delivery. If these two lines of research eventually met somewhere in the middle, we would have artificial wombs capable of complete ectogenesis--the creation of a human child without any period of gestation in a woman's body. (7)

      At least some proposed uses for artificial wombs are more akin to neonatal medicine. An embryo or fetus that began its development inside a woman might be transferred to the device at some point during pregnancy. (8) That possibility raises the question: What are the features that would make such a device qualitatively different from current neonatal intensive care practices and thus warrant the designation "artificial womb"? The distinction might lie in the nature of the technology, the gestational age and moral status of the fetus, or the practical impact of the technology.

      With regard to the nature of the technology, techniques for rescuing premature infants might look like "artificial wombs" if they more closely resembled natural gestation. Many current treatments for premature babies resemble ordinary life support, only on a smaller scale. These techniques, however, may be reaching their limits. In the decades since Roe v. Wade, (9) the threshold of fetal viability has barely moved, although survival rates for infants past that point have greatly improved. (10) Many scientists believe they are reaching the limit of current technological approaches for sustaining premature infants, due to the need for a minimum level of lung development before an infant can tolerate artificial ventilation. (11) To move the point of viability further back in pregnancy would require a quantum leap, a qualitatively different technology that would more closely mimic the womb and thus support the infant more comprehensively. It might involve providing oxygen other than through the lungs, and it might require submersion in a liquid that simulates amniotic fluid. (12) This technology might strike us as visually very...

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