Kaustubh Kumar

Recent reports and research depict that Artificial Womb Technology is certain to be employed in the near future. In the light of the same, this piece highlights the legal and ethical challenges that such technology poses and also discusses the possible solutions to resolve the same.

Introduction

In September 2020, the Government of India introduced the Assisted Reproductive Technology (Regulation) Bill, 2020. It defines Assisted Reproductive Technology (hereinafter referred to as ART) as an umbrella term including all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the zygote or the embryo into the ‘reproductive system of a woman.’ The attempts for the enactment of a legislation to regulate the clinics offering fertility treatment dates back to 2008, but even today India has no such regulations. The absence of any regulations provides full-fledged freedom to the clinics to indulge in malpractices for their benefit.

One such evolving technology that is likely to create a void in the existing laws for its exploitation is the Artificial Womb Technology (hereinafter referred to as AWT). Currently, AWT is at a nascent stage. However, it is speculated that it is likely to become a prominent method soon. Recently, scientists in the Netherlands said that they would develop an artificial womb within ten years that could save the lives of premature babies. Whenever technology expands its ambit, ethical and legal issues come at the forefront to obstruct the path of rapid advancement. Moreover, the current laws are ill-equipped to deal with the problems that AWT might pose in the near future. Hence, before the advent of artificial wombs into the human reproductive regime, certain ethical and legal issues need to be addressed, as prevention is always better than cure.

This paper endeavours to elucidate the benefits of AWT by showcasing how it is likely to help premature babies and their families, single parents, and working women. Further, delineating how AWT is likely to increase inequality in society and snatch away the abortion rights of women put forth some legal and ethical issues likely to surface in the future. Towards the end, it attempts to provide an insightful conclusion backed with solutions to address the intricacies that are likely to arise because of AWT.

Artificial Womb Technology (AWT)

This technology is being designed to enhance the treatment mechanisms for severely premature newborns. The process of growing a baby outside the natural womb is known as gestation ex utero (ectogenesis), which is used for the development of premature babies. Partial ectogenesis is already in practice where premature babies are transferred from the natural womb of the mother to humidicribs for the continuation of their growth. However, the upcoming AWT would not only limit itself to facilitate premature children, but it may even provide a platform to parents to hire artificial wombs, like they hire womb of any other woman in surrogacy, to carry the foetus on behalf of them.

In 2017, where a premature lamb spent four weeks in an artificial womb made up of plastic bag containing amniotic fluid where it grew normally, and in 2019 where AWT broke its 4-minute mile by maintaining an extremely preterm lamb foetus (equivalent to the 24-week human foetus) with the help of an EVE platform (an artificial placenta-based life-supporting platform) bolster the claim that soon after the advent of artificial wombs, it would become as common as In Vitro Fertilization and surrogacy. Moreover, it may potentially affect natural human procreation as it offers an alternative for women to bypass the pain that they suffer during the delivery of a baby.

Advantages of AWT

The advantages of AWT are similar to that of any other assisted reproductive technology as it provides an alternative for infertile couples to bear a child. Further, it would also provide a simple way for single men and gay/lesbian couples to become parents rather than opting for surrogacy or any other method. It would also help fertile women, who, for personal or health reasons do not prefer to/or are unable to bear a child. For instance, a working woman has to compete at her workplace and also take care of her family and the same not only takes a toll on her physical health but also affects her mental health. Thus, carrying a child would exacerbate her situation. However, the AWT is likely to mitigate such issues.

Furthermore, an artificial womb can provide an optimum environment for the foetus to develop. If the woman faces any serious health hazard after getting pregnant, the foetus can be shifted to an artificial womb in order to protect the life of the child in utero, thereby continuing its development without any risk to its physical health. Moreover, AWT would also make it easier to perform foetal surgeries, if needed. Thus, AWT might act as a linchpin in protecting the foetus as well as saving the healthcare expense of families that they bear due to premature births of babies and other external risks.

AWT: Ethical and Legal Issues

The first ethical issue that AWT would pose is the rise in inequality among the wealthy and the poor in society. The rich may prefer AWT that would affect the income of the pharmaceutical industry, doctors, and hospitals. As a consequence, the prices of medicines and other devices and fees of the doctors and hospitals would increase, which would in turn severely affect the poor strata of society. As this technology is likely to be very expensive, at least in the initial years, the economically backward sections of the society might altogether be deprived of access to such facilities. Differences between nutrition level and exposure to pathogens would also increase among the children of wealthy and poor strata of the society as AWT would provide the appropriate amount of nutrients and hormones artificially for the development of the foetus in the artificial womb, and the foetus will also be free from any external risks.

Some consider AWT as being against the natural process of human procreation. Further, even though AWT would provide an alternative for women to bear children, it is also likely to affect the dynamics of parenthood. In today’s scenario, women have some control over their pregnancy as they bear the child. However, this would change when foetus can survive equally outside the body. It would offer a new form of equality to both the mother and father of the foetus. AWT would also snatch away the right to abortion from women. The right to abortion is an amalgamation of three rights viz. right not to be a gestational parent, right not to be a legal parent, and right not to be a genetic parent. Women are likely to get compelled to gestate the baby through an artificial womb due to family pressure, which would violate their second and third rights under the right to abortion. As a result, the pro-life activists are welcoming this process as an alternative to abortion.

Furthermore, the parents in dispute might also abandon the baby, the way they abandon the children born out of surrogacy. There also exists a risk of ‘commodification’ as clinics providing artificial wombs might indulge in the sale and purchase of children. With the help of AWT, parents can also observe their foetal development in real-time. In India, gender discrimination is already prevalent at the mass level as parents prefer sons over daughters. Thus, it might give a boost to such ill-practices suppressed by the legislations since 1994. These issues need to be taken seriously as it would not only affects the rights of women and children but also pose a threat to the social fabric which binds the society together.

Conclusion and Solutions

Even though the use of AWT would be expansive from protecting premature children to giving birth to a healthy child, situations described above along with some unprecedented issues would mushroom. To deal with such circumstances, the AWT needs to be treated as an Assisted Reproductive Technology (ART) under any special law or amended legislation. The definition of ART as mentioned in the 2020 Bill needs to be expanded to include an ‘artificially developed’ reproductive system of women to cover AWT. Moreover, it can be foreseen that special clinics would be set up to provide the facilities of AWT to the public at large. These clinics can be regulated legally hand-in-hand with the clinics providing for ART.

The Government of India has banned commercial surrogacy and the production of children through surrogacy for sale, prostitution, or any other form of exploitation. Likewise, it might also go one step ahead and prohibit AWT from giving birth to a child by limiting the use of AWT to protect premature babies and for infertile parents or single parents. However, it is likely to affect the rights of women who do not want to reproduce. AWT would also lead to an increase in illegal sale, purchase, export, and import of gametes and embryos, which needs to be dealt with as an offence and strict penalties need to be imposed to prevent any such malpractice. Further, for single parents, it needs to be maintained that the person who donates their sperm/eggs respectively to help that single parent will have no relation with the child born out of AWT.

The legislators can bring in AWT within the ambit of contracts in a similar way it covers surrogacy. The contract between clinics providing AWT and parents hiring artificial womb should be made enforceable, as per the Indian Contract Act so that when any dispute arises, the matter can be settled easily without any harm to the child born out of the artificial womb. It can also establish authorities at the state level monitored and controlled by an apex central authority. The state authorities would keep a check on the AWT clinics in a specified area and also maintain a register containing data of all the parents opting for AWT and children born out of the same. With this, the commodification of children would get restricted to a considerable extent.

The legislators should consider the child developing inside the artificial womb as a ‘child developing inside the natural womb of the mother’ to provide equal control to the mother that she possesses while pregnancy. The appropriate provisions of the Medical Termination of Pregnancy Act should be applied in the most suitable way to deal with the abortion of such children by shifting the emphasis from women’s control over their bodies to the right to have control over parenthood destiny to protect the right to abortion. AWT is certain to happen, thereby sooner or later, the policies and laws must be equipped to deal with it. Predicting the future circumstance and bolstering the dynamic nature of the law, India must legislate an ART Act covering AWT before it is actually put into practice.

Kaustubh Kumar is a law student at the National University of Study and Research in Law, Ranchi.