Not of woman born: how ectogenesis will change the way we view viability, birth, and the status of the unborn.

• Author: Steiger, Eric

1. INTRODUCTION II. HISTORICAL AND MEDICAL BACKGROUND III. CURRENT LAW IV. PROBLEMS WHEN ECTOGENESIS IS APPLIED TO THE CURRENT LAW A. Termination Rights Over an Ectogenetic Fetus B. Birth and the Ectogenetic Fetus C. Viability and Ectogenesis V. WAYS TO ADAPT THE LAW TO ACCOMMODATE ECTOGENETIC TECHNOLOGY A. Property Theory as Applies to Developing Fetuses B. Parents' Reproductive Rights C. "Birth" and "Viability VI. PROBLEMS ARISING FROM ADAPTING THE LAW TO ACCOMMODATE ECTOGENESIS A. People or Property B. Changing the Definitions of Birth and Viability C. Equal Treatment for Equal Levels of Development VII. CONCLUSION I. INTRODUCTION

   Over seventy-five years ago, Aldous Huxley envisioned a future in which the creation of human individuals is not left to chance and sweaty biology, but is a feat of engineering individuals to established specifications. (2) Huxley described a process by which human ova are fertilized in-vitro, then "budded" through an imaginary technique into multiple copies, and finally grown into identical twins in incubators, entirely absent of a mother's womb. (3) While many of Huxley's predictions about the future have come to pass, such as helicopters, the assembly line, and indeed, in-vitro fertilization, the prospect of ectogenesis, of gestating a child completely outside of its mother's uterus, is still within the realm of science fiction. (4) However, that may not be the case for much longer.

   Scientists predict that safe, reliable, and complete ectogenesis will be available within the next thirty years, and perhaps within as little as ten or five. (5) Researchers have already achieved great strides towards this goal, developing a microfluidic chip that mimics the biological process of fertilization, making in-vitro fertilization more successful, (6) and successfully keeping fetal goats alive for weeks using an artificial placental While it is unquestionably a matter of years before the technology exists to gestate complete human beings ectogenetically, the legal questions surrounding such a process are complex enough to require consideration sooner, rather than later.

   One of the most interesting legal questions presented by the advent of ectogenesis is that of "personhood." Under the United States Constitution, citizens are defined by having been "born or naturalized in the United States and subject to the jurisdiction thereof." (8) A child of ectogenesis, having never been carried in a uterus, would never be born in the traditional sense. (9) Huxley's term "decanting" seems more appropriate. (10) While statutory modification should never be undertaken lightly, it appears that simple (by federal standards) legislation could close this particular loophole when the time comes to recognize fully mature ectogenetic infants as having been "born."

   However, far more nuanced questions are raised by a fetus's status prior to decanting. (11) The United States Supreme Court has expressly declined to consider fetuses as people, denying them protection under the Fourteenth Amendment. (12) Traditionally, a fetus's protection, especially that of one not developed enough to be viable outside the womb, has been inextricably entwined with that of its mother. (13) In recent years, however, fetuses, and even embryos, have been granted certain independent protections, such as restrictions on abortions, and in some cases going so far as to be statutorily defined as people between in-vitro fertilization and implantation. (14)

   Functional ectogenesis will require a reexamination of the status of developing embryos and fetuses in several important ways: medically, ethically, socially, and legally (15) Paramount to this consideration is the development of a fetus into "personhood," such that it gains protections under the law. (16) Under the current law, a fetus is considered a person once it becomes viable outside the womb, subject to certain exceptions. (17) However, the fundamental point of ectogenesis is that it renders a fetus "viable," albeit with technological assistance, from the moment of fertilization. (18) As such, the legal definition of viability will need to be adapted to conform with ectogenetic technology. (19) Ironically, the only sensible way to define viability without dismantling the current rights to abortion is by returning to the bright-line standard of development established in Roe v. Wade. (20) While the rigid trimester system of Roe has been overturned. (21) Congress must, with the help of the medical profession, establish a point during fetal development at which the fetus is considered "viable," and thus protected by the Fourteenth Amendment.

   Furthermore, while a pre-viable fetus in utero is not considered a person, it does carry protection, both in the form of fetal protection statutes and by virtue of the protection granted to the mother. (22) In order to maintain equality between a previable ectogenetic fetus and one carried in the womb, legal protections must be established to safeguard a developing ectogenetic baby. (23) These protections must accurately derive from existing fetal development law, and account for both the state's interest in protecting nascent life, and the parents' interests in maintaining control over their potential offspring. (24) In establishing these protections, it becomes necessary to determine exactly what legal status a pre-viable developing fetus actually has: while the Roe Court has ruled that it cannot be a person, (25) courts and legislatures have granted and upheld rights and protections for a developing fetus far beyond those normally extended to personal property. (26) If a fetus in utero is "quasiproperty," somewhere between a person and a chattel, it is important to know exactly what rights and protections are to be applied to it, and why, so that similar rights and protections can be applied to a fetus developing ectogenetically. (27)

   This note will provide an overview of the concept of ectogenesis, the current state of the science and law involved, and some broad predictions about the need for change in the law to accommodate scientific developments in the near future. Part II will explore the origins of ectogenesis in literature and examine the current state of the debate, as well as the current state of medical progress towards a working artificial womb. It will also examine some of the reasons for and against ectogenetic development. Part III will examine the current law regarding fetal status and legal personhood before birth. Pan IV will apply the law as it is currently situated to a future in which ectogenesis is commonplace, and examine the problems that arise as a result. Part V will propose changes in the law to accommodate for such a future. Part VI will address potential problems that may occur as a result of those changes, and suggest possible solutions to those problems.

2. HISTORICAL AND MEDICAL BACKGROUND

   Ectogenesis is the complete development of a mammalian fetus in an artificial uterus. (28) This process is thought to still be decades away from fruition, but breakthroughs in medical and neonatal technology are bringing it closer to a reality. (29) Reproductive therapy is one of the most lucrative forms of medical practice, and technology enabling more consistent and convenient reproduction is constantly being refined. (30)

   The earliest known proposal for an ectogenetic process comes from the 16th century occultist Paracelsus. (31) Paracelsus's formula involved creating a "homunculus" by sealing semen in the womb of a horse and allowing it to "putrefy for forty days" on a diet of human blood. (32) The process's success rate has never been documented, but seems dubious.

   The modern ectogenesis debate began during the 1920s in the arena of pulp science fiction magazines. (33) The editors of magazines such as Amazing Stories often published the latest research of the time, and specifically tied their fiction into the current trends. (34) The beginnings and early advances in the sciences of genetics and tissue culture spawned the earliest debates on reproductive technology, including cloning, genetic engineering, and ectogenesis. (35) The term "ectogenesis" first appears in J.B.S. Haldane's "Daedalus, or Science and the Future." (36) Haldane proposes eliminating pregnancy as a means of improving the human race eugenically through regulating reproduction. (37) "Daedalus" is presented as a historical account of biological progress throughout the twentieth and twenty-first centuries, tracing the biological innovations that lead to ectogenesis as standard practice. (38) "As we know, ectogenesis is now universal, and in this country less than 30 per cent of children are now born of women." (39) While Haldane's prediction of the end result of experiments in ectogenesis has not yet come to pass, many of his statements regarding yet-to-occur milestones along the way have been eerily accurate. (40)

   One of Haldane's predictions that did immediately occur was the vocal outcry in response to his proposal. (41) Over the following six years, five essays were published in direct response to "Daedalus," questioning Haldane's proposals and the consequences of his predicted developments. (42) The most famous product of those early ectogenesis debates is Aldous Huxley's Brave New World. (43) Juxtaposing the automation and mass-production principles of Henry Ford's assembly line with his predictions for advances in biotechnology, Huxley presents a world in which people are grown to order, in batches of ninety-six, to fulfill specific roles. (44) Specially tailored to fit the work assigned to them, Huxley's humans are a chilling set of inhuman components engineered to fit a niche. (45) This dehumanizing picture of ectogenesis warned a generation of the dangers of biotechnology, tabling the debate for over forty years. (46)

   Modern biotechnology is increasingly close to enabling extrauterine gestation. (47) On July 25, 1978, Louise Brown...