College of Law Faculty Scholarship

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Abstract

This article explores the legal implications of a scientific fantasy: the fantasy of building artificial wombs that could gestate a human child from conception. It takes as its touchstone a claim by sociologist Barbara Katz Rothman, who writes, “Every human child has a right to a human mother.”

While the article discusses the legal principles that would apply to artificial wombs, it is skeptical about the technological possibility of artificial wombs in the foreseeable future. Accordingly, the focus of the article is the effect that the fantasy of artificial gestation has on the legal discourse around pregnancy and reproduction today.

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

The article then turns to how legal discourse uses the prospect of artificial gestation to shape current practices regarding reproduction and control of women’s bodies. 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 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.

Finally, the article reconsiders this legal-technological discourse about gestation from the perspective of a feminist project of re-visioning the human condition as one of mutually dependent relationships rather than autonomous individuality. Feminists have demonstrated that the autonomous individual is a myth; the fantasy of artificial wombs is a psychic representation of that myth. It constructs motherhood in a way that minimizes the importance of the human connection of pregnancy. A child born through natural gestation or through individual-initiated artificial gestation enters the world with a claim to that connection; for the state to create a child through artificial gestation would be to create an intentional orphan, the family-level equivalent of a stateless person. Therefore, although this Article tentatively concludes that artificial gestation should be permissible as a means for individuals to reproduce, it rejects state-mandated gestation as a moral alternative to abortion. Every child may not be entitled to a human gestator, but every child is entitled to a human parent, in the fullest sense of the word.

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