Professor Letlhokwa George Mpedi is the Vice-Chancellor and Principal of the University of Johannesburg.
He recently published an opinion article that first appeared in the Daily Maverick on 05 April 2023.
Ectogenesis, the process of growing a foetus outside of a human body, will in the coming years likely be as common as donors and surrogacy are today. However, if this is to be an enduring reality, we must ask the difficult legal and ethical questions.
Vacuum-sealed bags of pink lamb foetuses floating in the fluid that moves with each breath you take attached to machines in a lab sound like a horrific scene out of a science fiction movie. But in 2017, this remarkable sight represented the first example of an artificial womb.
We are on the brink of new and exciting technology that once could only be conceived of in our imaginations — and alongside this, there are various ethical and legal conundrums. Lab-created humans spur fears of an Orwellian future.
Yet, in our fears of a dystopian future, we too often ignore the wonder and opportunity. It is perhaps in delving into the conundrums these developments present that we can see this potential.
Artificial wombs are devices that can grow a foetus outside the body of an organism to term. The eight lambs grown by researchers at the Children’s Hospital of Philadelphia (Chop) in the United States were kept in these artificial wombs for four weeks. During this time, the lambs grew wool coats, gained weight and opened their eyes.
As the research suggests, this provides a glimpse into the future for humans. The technology is currently focused on transferring an organism from a subject into an artificial womb. Realistically, growing an organism completely in an artificial womb will not likely be a reality for some time.
As the team in Philadelphia argued, the artificial womb could thus change the very face of neonatal intensive care. The World Health Organization (WHO) reports that around 300,000 deaths happen globally each year due to pregnancy complications. Additionally, premature neonates born earlier than 22 weeks have no hope of survival.
This technology certainly represents an exciting new frontier for pregnancy and for those seeking alternative routes to conception. Ectogenesis, the process of growing a foetus outside of a human body, could help those who cannot get pregnant, provide solutions for redefined family units and save premature babies’ lives.
There are certainly arguments to be made for the process – and as many in the field will tell you, in the coming years this will likely be as common as donors and surrogacy are today. However, if this is to be an enduring reality, we must ask the difficult legal and ethical questions and perhaps begin to consider our responses.
Ethically, there are certainly concerns that this technology goes against the very process of human procreation. For example, what implications does it have on the dynamics of parenthood? Does it change the very nature of the relationship between the mother and child?
Furthermore, will this process give rise to inequality, as there are likely to be disparities in access? How do we combat concerns that babies will be treated as commodities? Could this lead to new forms of human trafficking? How do we ensure that this does not become an exercise in eugenics?
As we research further into the field and consider human subjects, does this technology satisfy the four principles of bioethics: autonomy, beneficence, nonmaleficence, and justice?
From a legal standpoint, currently, there are limited ethical conditions and human embryos can only be grown for 14 days. The 14th day is the point at which a spherical embryo starts to form a body and when cells begin taking on characteristics.
With more research and acceptance of this process, how will the law adapt? Firstly, pregnancy laws will need to be reformed. How do we approach abortions, for instance? Could this be used to amend abortion laws?
In South Africa, for instance, women can terminate a pregnancy without reason in the first 13 weeks. Until 20 weeks, the pregnancy may be terminated only under specific conditions. Over 20 weeks, the termination will only be considered if her or the foetus’ life is in danger or there are likely to be severe congenital disabilities.
What is the future for these laws with the advent of artificial wombs and how do we safeguard current processes? When is the foetus endowed with the legal rights of a person? How will parental disputes be handled if they arise? How do the rights of men change? Who bears liability in the case of damage or death? Will wrongful death statutes apply? How will we approach maternity and paternity leave?
As a country, we will need to rethink our surrogacy law in the future, particularly Chapter 19 of the Children’s Act which deals with surrogate motherhood. This chapter, as it stands, caters for surrogacy through people and does not extend to artificial wombs.
In addition, social partners will need to debate the conditions of service. These conditions include leave from work for would-be parents to attend to or even bond with their unborn children growing in artificial wombs. This might be a necessary factor to consider, given some arguments raised that unborn children bond with their mothers and can recognise their voices even before birth.
As Jessica Shultz argued as far back as 2009, “the development of ectogenesis will increase, rather than resolve, the complexity of issues regarding reproductive rights and the legal status of an embryo or foetus.”
As we hurtle towards this technology, admittedly, we are faced with more questions than answers. However, as other technologies of the Fourth Industrial Revolution (4IR) have demonstrated, we need sound ethical frameworks. This will be the basis for our approach to regulation. This will require the legal fraternity to keep up with developments in the space and respond accordingly.
While there are broad ethical frameworks in place, it is imperative that we get more specific as these technologies shift from theory to practice. Artificial wombs could indeed be our future realised very soon — the question remains, are we ready for it?
As Elvin Stackman of the National Science Foundation once said, “science cannot stop while ethics catches up — and nobody should expect scientists to do all the thinking.”
*The views expressed in this article are that of the author/s and do not necessarily reflect that of the University of Johannesburg.