Artificial Womb Technology and the Constitutional 
Guarantees of Reproductive Freedom
by Michelle Hibbert, Esq, Steptoe & Johnson LLP

In July 1997, Japanese scientists announced that they successfully "delivered" goats sustained prenatally for up to three weeks in a plastic tank of fluid.  This tank of fluid, an "artificial womb," is an attempt to technologically recreate the maternal womb and sustain developing fetal life. Arguably, the legal system is unequipped to deal with all of the implications of fully gestating fetal life in machines.  For example, there can be no doubt that the Constitution protects reproductive freedom.[1]  A state may not impermissibly infringe on decisions "central to personal dignity and autonomy,"[2] such as the right to interracially marry,[3] use contraceptives,[4] and make decisions about whether and how to bear, beget, and bring up one's children.[5]  Could the government, however, infringe on the right to "ectogenesis," where a machine replaces maternal gestation entirely? 

Even though the Supreme Court has established that activities impacting whether, when, and if to have children are constitutionally protected, it has not yet had occasion to address the how and what of reproduction.  However, at least two federal cases suggest that that the constitutional right of reproductive freedom includes the use of medical technology to assist one in exercising this right.[6]  

In Lifchez v. Hartigan, a federal court struck down the Illinois Abortion Law as being unconstitutionally vague and an impermissible infringement on a woman's fundamental right to privacy and reproductive freedom.[7]  The court found the law vague because it failed to distinguish between prohibited "experimental" and permissible "therapeutic" medical procedures; thereby the law could infringe on a woman's right to use medically assisted reproductive technologies, such as in vitro fertilization, embryo donation or embryo freezing.[8]  Additionally, the court held that the use of these and other technologies, such as amniocentesis and chorionic villi sampling, were encompassed within a woman's fundamental right to privacy and reproductive freedom.[9]  The court reasoned:

It takes no great leap of logic to see that within the cluster of constitutionally protected choices that includes the right to have access to contraceptives, there must be included within the cluster the right to submit to a medical procedure that may bring about, rather than prevent, pregnancy.[10]

Similarly, in Jane L. v. Bangerter, the Tenth Circuit Court of Appeals struck down the Utah Abortion Act as unconstitutionally vague because of its ban on non-therapeutic fetal experimentation.[11]  This court also held that the cluster of constitutional rights regarding family- and procreation-protected fetal medical procedures that would "facilitate both current and future pregnancies."[12]

Thus, according to Lifchez and Jane L., privacy and liberty encompass the right to make myriad reproductive decisions, including the right of an infertile couple to utilize medically assisted reproductive technologies.  The right to decide in what manner to reproduce may also, therefore, include the manner in which one sustains and gestates embryos.   

Therefore, the argument would follow, the artificial womb may represent the only mechanism by which some persons can or will choose for exercising their constitutional right to choose how to beget children.  For instance, where the woman genetically parenting the embryo cannot medically initiate or sustain a pregnancy, clearly the artificial womb represents an alternative means by which her children can attain life.  Artificial wombs may also represent the only means of begetting children in cases where the intended parents of the resulting children are single men, single women, or even gay or heterosexual couples who are unwilling to hire a human surrogate to act as the host for their genetically related or adopted embryo. Thus, courts may find that just as the Constitution protects decisions regarding the prevention and termination of pregnancies from undue state influence, the Constitution should protect one's right to maternally or mechanically initiate and sustain pregnancies from undue state influence.

Alternatively, courts may decide that the gestation of embryos in artificial wombs is so unlike traditional childbearing that their use cannot be covered by the Fourteenth Amendment's right to reproductive freedom.  First, the Framers of the Constitution likely did not have ectogenesis in mind when they granted citizens the right to privacy.  Neither is the use of an artificial womb to gestate children deeply rooted in this country's tradition or in the conscience of the people.  "[T]he Constitution does not require things which are different in fact or opinion to be treated in law as though they are the same."[13]  Mechanic is different in fact than maternal gestation.  In opinion, mechanic gestation might not be viewed as the "bearing" of children as used in Fourteenth Amendment jurisprudence.  

Ectogenesis severs the inextricable link between one's right to privacy, bodily integrity, and matters relating to pregnancy.  Upon implantation, the artificial womb disassociates both genetic parents from the developing fetus and therefore eradicates any parental bodily integrity issue traditionally involved in pregnancies. Similarly, because gestating fetuses are not constitutionally protected persons, constitutional protection of bodily integrity cannot be asserted on their behalf.[14]  Due to this absence of any claimed bodily integrity or personal-autonomy issues, which could be tied to fetuses gestated in artificial wombs, courts may be persuaded to reject bestowing any sort of fundamental-right protection on the use of artificial wombs.

It may turn out that scientists just won't ever be able to perfect the technology to allow children to be born mechanically.  It may turn out that society is unwilling to accept the mechanic bearing of children. However, it is irresponsible to wait until the first child is born of ectogenesis before discussing how the law will, or should, treat that new form of assisted, and collaborative, reproduction.