public law,

My Body, My Choice: How Might Artificial Wombs Endanger the Viability Doctrine? Limits to Abortion, Criminalisation and Reconciling the Maternal/Fetal Balance

By James Brown Apr 06, 2021
I. Introduction

Scientific research suggests that the implementation of artificial wombs for human fetuses (ectogenesis) is foreseeable within the next few decades,1 having already been used successfully for lamb fetuses.2 However, the current law is ill-equipped to deal with the conflict of rights which will ensue. Ectogenesis will reshape pre-natal viability and procedures, decreasing the mortality rate of extremely premature fetuses. As such, it will have a direct impact on the stage at which a fetus is deemed to be viable.3 Under the current law, viability is an important criterion for criminalising the termination of an unborn fetus. This article focuses on how Artificial Womb Technology (AWT) may limit the right to abortion. Furthermore, it will argue that reform is required to rebalance the maternal/fetal interest in abortion law, specifically focusing on how future legislation should classify AWT in order to restore the doctrine of viability.

While this article recognises that abortion is an ethically-charged issue, it does not aim to discuss the ethical implications of abortion. Instead, it will focus on proposing a solution to ensure that the right to abortion is protected in the advent of AWT, and to shed light on an impending dilemma with huge legal implications on the current application of abortion laws.

II. The Offence of Child Destruction

Section 1(1) of the Infant Life (Preservation) Act 1929 vides that:

“Any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty… of child destruction.”

Whilst originally this was not intended to be concerned with abortion,4 it is now accepted that an unlawful abortion could fall within the scope of this offence. In C v S,5 a putative father challenged the potential abortion of his unborn child. The courts contemplated whether an abortion would constitute a criminal offence under the IL(P)A 1929. Both the High Court and Court of Appeal found that the child was not capable of being born alive, and the doctor would thus not be guilty of the offence. The extensive and detailed judicial application of the aspects of the born alive test in this case indicate that the courts did not preclude the possibility that the offence (under the IL(P)A 1929) could apply to abortion.6

The applicability of child destruction to unlawful abortion was confirmed in Rance v Mid-Downs Health Authority.7 Brooke J, in determining whether an abortion of a disabled fetus was lawful, stated that the abortion would be “prima facie rendered lawful under… the Act of 1967, provided it did not involve the destruction of the life of a child ‘capable of being born alive,’ contrary to section 1 of the Act of 1929”.8 He applied the born alive test stating that “The question of mixed fact and law” is whether the fetus  “would have been a child capable of being born alive”.9 Whilst the fetus was not found to meet this threshold, Brooke J’s application of the test evidences that an unlawful abortion could fall within the scope of the child destruction offence.10

Further evidence of the applicability of child destruction to abortion was given in a Parliamentary debate in 1988. Lord Skelmersdale expressed the notion that “because of the interaction between” the IL(P)A and the Abortion Act (AA) 1967,11 child destruction has evolved into a possible prosecutorial tool against unlawful abortion by placing “a de facto limit below which a doctor performing an abortion has the benefit of an automatic defence.”12 Essentially, the offence of child destruction catches any procedures which fall outside of the AA 1967’s criteria.

Furthermore, the AA 1967 supports the notion that the offence of child destruction is still relevant today. Section 5 states that:

“(1) No offence under the Infant Life (Preservation) Act 1929 shall be committed by a registered medical practitioner who terminates a pregnancy in accordance with the provisions of this Act.

(2) For the purposes of the law relating to abortion, anything done with intent to procure a woman’s miscarriage … is unlawfully done unless authorised by section 1 of this Act”.

As such, the AA 1967 restricts the scope of the offence of child destruction but does not replace it. It indicates the offence is still very much relevant to abortion if the procedure is performed outside of the conditions provided by Section 1.  Accordingly, when Section 5 was inserted into the AA 1967 in 1990, Parliament made the express decision to retain child destruction’s applicability to abortion. Thus, the IL(P)A 1929 implies that a viable fetus has an interest in life, which may only be circumscribed in the circumstances provided by paragraphs (b) to (d) of S1(1) AA 1967.

Strangely, the Abortion Act never became the sole authority on abortion by replacing the IL(P)A, especially considering the intermission between the latter and the enactment and amendments to the former. Romanis argues that this was a deliberate decision by the legislature.13 This is an ostensible indication of Parliament’s intention to continue to criminalise the abortion of viable fetuses, by, in theory, not instating the Abortion Act as the sole authority, but essentially as a defence to child destruction. Evidence of this ‘deliberate decision’ can be demonstrated in a 1988 debate rejecting the report of a Select Committee which suggested the IL(P)A’s ‘born alive’ test be disengaged from Section 5(1) of the AA 1967.14 Lord Robertson fervently objected to this, asserting that “a cardinal principle is that abortion should not be allowed where the child is capable of being born alive.” 15 He suggested that the AA 1967’s viability threshold is meant to serve as an “upper limit”, and thus to depart from the IL(P)A’s test was “wrong”.16 Therefore, Romanis is well-founded in her argument that the legislature deliberately maintained the distinction between the two Acts.

In plain, the offence of child destruction seems to affirm the importance of the viability doctrine within English law. The purpose of criminalising the abortion of a viable fetus is, prima facie, the protection of the fetus. Accordingly, a maternal/fetal balance can be observed as an interest of the law. 

III. The Right to Abortion

In contrast, the right to abortion protects a woman’s autonomy and has been recognised as a fundamental right in many states.17 The Roe v Wade 18 decision in the United States is an illustration of this - the Supreme Court recognised that abortion was within the constitutional right of privacy, stating that “the right of personal privacy includes the abortion decision”.19

Under  English law, the AA 1967 legalises abortion in a broad range of circumstances provided in Section 1(1)(a)-(d): when it is clear that continuing the pregnancy involves risk to the woman, which must become even graver after the twenty-four week threshold, or that the fetus suffers from severe abnormalities. The legality of abortion in these circumstances essentially provides a defence to the child destruction offence under the IL(P)A 1929.

Moreover, it is a well-established principle that the fetus has no legal personhood, under any circumstances, before birth.20 In Paton v British Pregnancy Advisory Service Trustees,21 the court held that, as a matter grounded in common law, “The foetus cannot… have a right of its own at least until it is born and has a separate existence from its mother”.22

However, after viability, which is the point from which the fetus is developed enough to live “indefinitely outside the womb by natural or artificial life-supportive systems”,23 the IL(P)A 1929 implies that a fetus gains  an interest to be born by imposing criminal sanctions on its killing, providing the fetus with what is possibly the only legal protection it will receive pre-birth.

Correspondingly, some academics argue that abortion is not a right in the UK, instead, it is merely a procedure that can take place if the correct medical criteria (set out in Section 1 of the AA 1967) are met.24 The weight of this argument is reinforced by the aforementioned criminalisation of any abortion performed outside of the context of the AA 1967. Nevertheless, such a viewpoint ostensibly discounts the importance of human rights jurisprudence, which indicates that access to abortion is gradually evolving into a positive right.

For instance, the European Court of Human Rights has recognised that access to legal abortion is linked to the right to private life under Article 8 of the European Convention on Human Rights. In Tysiąc v Poland,25 the court held that a state cannot escape a procedural obligation to make abortion available where the law allows it. Whilst this is a development in Strasbourg’s abortion jurisprudence from the decision of Brüggemann and Scheuten v Germany,26 which held that a woman’s choice with her pregnancy is not concerned with Article 8, it focuses on the procedural aspects of the law, and suggests that Strasbourg is reserved in deciding “substantive violations” of abortion as a fundamental right.27 In Tysiąc, the court accepted that a state cannot prohibit abortion for therapeutic reasons (to protect the mother’s life). Here, the state still owes procedural safeguards due to its “measures affecting fundamental human rights”.28 However, it was asserted that “once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it”.29 Strasbourg’s stance, therefore, affirms “that women’s right to access legal abortion may not be illusory”,30 but for now is unprepared to address any substantive issues of abortion.

Accordingly, abortion is a right which is becoming increasingly recognised by law. This could be threatened if English law cannot keep pace with the technological advancements in the field of neonatal care.

IV. Implications of Artificial Womb Technology
IV(a). The change in viability and the effect on criminalisation
(i).  Impact of  AWT on the viability doctrine

AWT will inevitably have implications on the doctrine of viability. Viability is a seemingly blurred concept as a judicial tool,31 yet tries to classify fetal status upon which the legality of an abortion is usually based. In the UK, the AA 1967 places viability at twenty-four weeks, before which most abortions should take place to avoid prosecution. However, the real question of viability is naturally much more nuanced, and each case has its own subtleties which make a certain answer almost impossible.32

AWT would further impede this because a fetus would reach viability before the AA 1967’s twenty-four week threshold in the sense that “if removed, it could fully gestate” within ectogenesis.33 To that end, Parliament might consider removing the threshold as it will no longer be an accurate reflection of viability. While this may appear speculative, it seems a likely course of action considering that AWT will destabilise the current understanding of viability which is integral to abortion law.34 Accordingly, the retention of any quantitative measure of viability will become very difficult where an embryo could be deemed viable from conception. Furthermore, unless Parliament can find another way to balance the rights of the mother and fetus without the doctrine of viability, which risks being made obsolete by AWT, it is possible that they will elect to retain the pre-existing ‘capable of being born alive’ test under the IL(P)A 1929. This is again likely due to the discretionary nature of the test, which may allow the question of viability in the era of AWT to be dealt with by the scientific understanding at the time. As many academics have agreed, “there is not a sufficient replacement for the standard of viability” and any possible alternatives “are flawed” in the absence of abortion jurisprudence not based upon viability.35 Consequently, the most desirable solution to this dilemma would be to somehow retain viability, or the balance of interests would shift entirely to the mother or fetus, undercutting the temporal compromise that the law has endeavoured to achieve.

(ii).  Will the IL(P)A's  'capable of being born alive threshold' limit access to abortion if AWT is deemed a factor of viability?

If Parliament opts to retain the ‘born alive’ test, it will be deleterious to abortion access. Fetal viability would be considered on a case-by-case basis, depending on factors such as abnormalities. The lack of a clear and quantitative threshold would naturally leave the question of viability to the courts unless Parliament expressly rejected viability as a judicial tool upon the advent of AWT. As Sir John Donaldson MR stated in C v S, the IL(P)A test, whilst being subject to medical evidence, “essentially depends upon the interpretation of the statute and is a matter for the courts”.36 However, increased judicial discretion would render courts the gatekeeper to abortion. Judges are not medical professionals and often rely on medical evidence, which would suggest that a fetus is always ‘capable of being born alive’ with AWT. Therefore, women would have no time to reflect on the reasons (financial or otherwise) for which they may seek an abortion (after previously having twenty-four weeks) before abortion is criminalised under the IL(P)A. With over 99% of abortions taking place within the limits set by the current AA 1967 twenty-four week viability threshold,37 this would substantially limit access to abortion.  Appropriately, this may be averse to fetal interests as well, as mandating a woman to give birth on account of viability regardless of her reasons for seeking abortion could have negative effects on the quality of the child’s upbringing. 

If AWT becomes an admissible factor of viability in a judicial context, it will criminalise a substantial amount of abortions, for the reasons stated above. This could represent a shift in the law of abortion, from being rooted in feminist theory, to having a pro-life stance, and is a further reason that a solution must be obtained to address the pending legal concerns of AWT. This may be obviated should AWT be inadmissible as evidence of viability, and this idea will be developed further in this paper.

IV(b). The socioeconomic implications of limited access to abortion

As it has been identified, the current application of viability in the context of AWT will become obsolete, and its retention may substantially limit access to abortion. Therefore, AWT is far from settling the abortion debate. Accordingly, Schultz believes that in the U.S., where some States are hostile towards abortion, the expedition of viability may give them an opportunity to “dramatically limit abortion” under its current application.38 Whilst there is no evidence that the UK will intentionally act in the same way, it is necessary to address the implications of limiting abortion.

The law desires a balance between maternal and fetal interest. However, with AWT, the balance would tip towards the fetus, which not only comprises issues of autonomy, but other socioeconomic factors. Women seek abortions for a variety of reasons: For example, a study identified that 40% of women (the highest portion) sought abortion for financial reasons.39 If a woman without the means to raise a child is denied abortion as a result of AWT’s expediated viability, “implications for the well-being of their offspring” may arise,40 such as financial hardship during childhood, development issues caused by a lack of parental affection and more.41

Although a common counter-argument is that women desiring abortion would have the option to gestate ex-utero for adoption, a woman may actually seek abortion to avoid genetic motherhood and “rid herself of the burden” of knowing she has an existing child.42 It is also strange that whilst AWT will affect the theoretical viability of the fetus and have the effect of limiting abortion access, many women would not have the financial means to access AWT. Thus, the limit they may face to abortion access is based upon an unachievable standard of viability. 

Another important point is that abortions will occur unsafely if they are unduly limited. 43 This will undoubtedly lead to a lot of expense in treating complications from unsafe abortion, which is estimated to affect around 20-50% of women who have one.44

Clearly then, the law must change to attempt to reconcile the balance of maternal/fetal rights in the face of an endangered viability doctrine. However, if a meaningful viability mechanism cannot be retained, this balance becomes extremely difficult and the law will most likely tilt to either a feminist or pro-life stance. 

It is a well-established common law principle that legal personhood is crystallised at birth.45 Therefore, the right to life under Article 2 of the ECHR does not extend to a fetus;46 an interpretation not without contention. For example, Judge Mularoni’s dissent in Vo v France 47 asserted that a lack of personhood should not disqualify all recognition and protection for the fetus’ right to life.48 She draws upon the Oviedo Convention to substantiate her pointwhich regulates the use of potential prenatal genetic modifications and wider misuse of biotechnology in order to protect the interests and dignity “of everyone, including the unborn”.49 This suggests that the unborn does not necessarily lack protections associated with a right to life. Her argument is convincing, as it highlights that there is a propensity to ‘cherry-pick’ when the unborn is protected, e.g. not against abortion but against the misuse of biotechnology.  Nevertheless, a distinction should be made that in an abortion context, a conflict of rights would arise were the fetus given a right to life against the mother’s autonomy. Meanwhile, in terms of the protection that Oviedo supplies (against biotechnological abuse), there is no clash of rights between the unborn and any immediate person. 

Accordingly, if a fetus were to be given legal personhood, the right to abortion could be sidestepped completely. Despite this, Romanis has correctly identified that if a fetus is extracted from the womb to be placed into an artificial womb, it has been born by the definition of birth under Section 41 of the Births and Deaths Registration Act 1953, which is “a child born alive”.50 As a fetus placed into ectogenesis will not be dead, this definition will have been fulfilled, possibly affording it legal personhood. This would be the first instance in which a gestating fetus would have personhood under the law. Some believe that this is justified, as Colgrove asserts that fetuses taken from the womb to be placed within ectogenesis “are newborns (although very young ones)”.51 Nevertheless, to give personhood to a fetus being placed into AWT would eliminate the mother’s ability to terminate the pregnancy without committing infanticide. This poses the question as to whether a woman’s autonomy and choice to abort should extend to when the fetus is no longer the subject of her womb, which seems foreign to the ‘my body, my choice’ doctrine. Nevertheless, as discussed, abortion is mainly sought for reasons that have nothing to do with the woman’s body, but instead her circumstances. Therefore, to afford legal personality to the subject of ectogenesis would reject this and subvert the temporal balance in law between the maternal/fetal rights and risk the fetal interests outweighing the mother’s. 

Therefore, it is advisable that Parliament should address the definition of birth to make sure it cannot afford personhood to fetuses being placed into ectogenesis. A definition should classify AWT as merely an extension of the womb, unlike regular incubation, so birth cannot occur until a fetus is alive outside of the womb or any device acting as such. 

V. Looking Forward: Defining AWT as the Female Womb

Clearly, the many implications of AWT threaten viability, and destabilise the maternal/fetal balance. At first glance, the concept of viability will simply cease to be compatible with the context of abortion law once AWT is available. With viability from any stage of pregnancy, it is no longer a question, and so can no longer be a meaningful tool to balance the interest of the fetus against that of the mother. Consequently, without a meaningful standard of viability, the law must evidently shift to either retain the mother’s right to abortion (to avoid complete criminalisation of abortion) and eliminate the interests of the viable fetus, or vice versa. 

However, this article suggests a re-conception of the viability threshold. The law generally aims to balance maternal/fetal interests through the viability standard.52In the U.S., where abortion is deemed a constitutional right, landmark decisions such as Roe v Wade,53 Planned Parenthood v Casey54 and Gonzales v Carhart55 highlight the importance of viability as a tool to maintain the maternal/fetal balance. The viability thresholds in English law observed in the Abortion Act and IL(P)A are just further proof of the integration of the viability doctrine within abortion jurisprudence.

Therefore, retaining the doctrine of viability would be the most legally desirable outcome. Hence, Parliament should anticipatorily elect to not differentiate an artificial womb from a natural womb. This could be achieved by the insertion of a statutory provision into the Acts governing abortion, the AA 1967 and the IL(P)A 1929. Such a provision would classify AWT as the natural womb, or an extension thereof. Accordingly, there would be no differentiation in terms of the law of abortion between the wombs, and AWT could not be considered as a factor in viability. Following this approach, fetal viability would be judged against its chance of survival if it were to be removed from ectogenesis

This would allow for the retention of viability, along with the statutory thresholds of the Abortion Act and IL(P)A. In essence, this approach would maintain the status quo and the manner in which abortion law is currently applied. Some may argue that this would be a missed opportunity to reform the law under a complete feminist stance, which would consolidate abortion as an absolute and unlimited right. Yet with only 0.1% of terminations taking place after the twenty-four week threshold in England and Wales in 2018,56 and 80% occurring before even 10 weeks,57 changing the law in a feminist direction and destabilising the sacred balance of interests would only make a trivial difference compared to upholding the viability doctrine via the proposed solution. In practice, the likelihood of late abortion based upon choice, and not necessity, is hypothetical, and such an approach would not have a detrimental effect on the pro-choice campaign.

VI. Conclusion

To conclude, AWT poses some dilemmas for the future, and will deem current legislative thresholds on viability obsolete. An analysis of the right to abortion has characterised it as evolving into a widely recognised right, and thus Parliament should act quickly on the ways to reconcile the relationship between AWT and abortion. Furthermore, if the laws are not amended, the viability doctrine will become ephemeral under AWT and will pose grave implications to women’s autonomy and access to abortion, including its criminalisation thereof.

Furthermore, whilst it is deemed legally desirable to balance the interests of the mother and the fetus, such a balance will be unable to be founded upon viability if AWT is deemed to be a factor thereof, and the concept will become superfluous. Therefore, to restore the balance, Parliament should consider approaches to AWT which retain the viability doctrine, which many argue is irreplaceable.58 This paper has suggested that the most simplistic approach to this is for a statutory provision to clarify that an artificial womb is to be treated no differently as the mother’s womb. Therefore, the AWT is not to be considered a factor of viability.

[1] Kayleen Devlin ‘The World’s First Artificial Wombs for Humans’ BBC (London, 15 Oct 2019) accessed 20 Oct 2020.

[2] DS Davis, ‘Could we be Marsupials? Very Premature Babies and Artificial Wombs’ (2019) 49(1) Hastings Centre Report 3.

[3] Clare Booth, ‘Artificial Wombs: What Happens if we Expand Fetal Viability?’ (UChicago TripleHelix, 16 Jan 2019) accessed 16 Feb 2021. 

[4] See the comments of Lord Russell, HL Deb 6 December 1928, vol 72, col 444.

[5] [1988] QB 135.

[6] ibid [145]-[149] (Heibron J).

[7] [1991] 1 QB 587.

[8] ibid [605] (Brooke J).

[9] ibid.

[10] ibid, see questions 1-6 at 606 & 607.

[11] HL Deb 25 March 1988, vol 495, col 432.

[12] ibid.

[13] E C Romanis, ‘Challenging the ‘Born Alive’ Threshold: Fetal Surgery, Artificial Wombs, and the English Approach to Legal Personhood’ (2019) 28 Modern Law Review 1, 22.

[14] Select Committee on the Infant Life (Preservation) Bill, Report of the Select Committee on the Infant Life (Preservation) Bill (HL) with Evidence(HL 1987-88 50-I).

[15] HL Deb 25 March 1988, vol 495, col 414.

[16] ibid.

[17] M Berer, ‘Abortion Law and Policy Around the World’ (2017) 19(1) Health and Human Rights Journal 13.

[18] 410 US 113 (1973).

[19] ibid [154] (Blackmun J).

[20] Re MB (An adult: medical treatment) [1997] EWCA Civ 3093.

[21] [1979] QB 276.

[22] ibid [278] (Sir George Baker P).

[23] Viability, Black’s Law Dictionary (6th Ed, 1990).

[24] R Scott, ‘Risks, reasons and rights: The European Convention on Human Rights and English abortion law’ (2016) 24 Modern Law Review 1.

[25] (2007) 45 EHRR 42.

[26] 3 EHRR 244.

[27] C Zampas and J M Gher, ‘Abortion as a Human Right – International and Regional Standards’ (2008) 8(2) Human Rights Law Review 249, 279.

[28] Tysiąc (n 25) [119] (Bratza P).

[29] ibid [118] (Bratza P).

[30] Zampas & Gher (n 27) 279.

[31] L Han, M Rodriguez and A Caughey, ‘Blurred Lines: Disentangling the Concept of Fetal Viability from Abortion Law’ (2018) 28(4) Women’s Health Issues 287.

[32] Dominic Wilkinson, ‘Viability and the Abortion Debate – What Really Matters?’ (Oxford Practical Ethics, 19 May 2008) accessed 22 Dec 2020.

[33] J Schultz, ‘Development of Ectogenesis: How Will Artificial Wombs Affect the Legal Status of a Fetus or Embryo?’ (2009) 84(3) Chicago-Kent Law Review 877, 886.

[34] ibid 886 & H J Son, ‘Artificial Wombs, Frozen Embryos, and Abortion: Reconciling Viability’s Doctrinal Ambiguity (2005) 14 UCLA Women’s Law Journal 213, 218.

[35] Schultz (n 33) 902.

[36] C v S (n 5) [151] (Sir John Donaldson MR).

[37] Department of Health & Social Care (DHSC), ‘Abortion Statistics, England and Wales: 2018’ accessed 19 Jan 2021.

[38] Schultz (n 33) 887.

[39] M Biggs et al, ‘Understanding why women seek abortions in the US’ (2013) 13(29) BMC Women’s Health 1.

[40] S Miller et al, ‘The Economic Consequences of Being Denied an Abortion’ (2020) National Bureau of Economic Research Working Paper 26662, 30.

[41] Z Dytrych et al, ‘Children Born to Women Denied Abortion’ (1975) 7(4) Family Planning Perspectives 165, 171.

[42] Schultz (n 33) 887.

[43] T Joyce, ‘The Supply-Side Economics of Abortion’ (2011) 365(16) New England Journal of Medicine 1466, 1468.

[44] M Gebremedhin et al, ‘Unsafe Abortion and Associated Factors Among Reproductive Aged Women in Sub-Saharan Africa: A Protocol for Systematic Review and Meta-Analysis’ (2018) 7(130) Systematic Reviews 1, 2.

[45] Paton (n 21) & Attorney General Ref (No 3 of 1994) [1997] UKHL 31.

[46] Vo v France(2005) 40 EHRR 12 & Paton v United Kingdom (1980) 3 EHRR 409.

[47] ibid.

[48] ibid, O-IV25.

[49] ibid, O-IV20.

[50] Romanis (n 13) 1.

[51] N Colgrove, ‘Subjects of Ectogenesis: Are ‘Gestatelings’ Fetuses, Newborns or Neither?’ (2019) 45 Journal of Medical Ethics 723, 724.

[52] P Harris, ‘Compelled Medical Treatment of Pregnant Women: The Balancing of Maternal and Fetal Rights’ (2001) 49(1) Cleveland State Law Review 133.

[53] Roe (n 18).

[54] 505 US 833 (1992).

[55] 530 US 914 (2000).

[56] DHSC (n 37).

[57] ibid 12.

[58] Schultz (n 33) 902.

Article by James Brown
LLB (University of Huddersfield) '20