By Allison Milbrath, Ilona Cenolli, and Zaina Mahmoud
What does it mean to be born? The answer to this question, and why it matters, might not be as straightforward as it first appears.
Our new paper explores how the speculative development of ectogestation-enabling technologies (EETs), which aim to support human gestation outside the body by mimic uterine conditions, requires us to re-examine some of our basic biological and legal assumptions about the beginning of life.
Ectogestation is separated into two categories. In full (or complete) ectogestation development occurs completely outside the body. Partial ectogestation, gestation starts in a pregnant before the developing human entity is transferred to an EET to continue gestation to (or near to) full term.
The EETs currently in development describe their intended use as supporting development for “extremely premature infants” – but if a foetus is still developing, albeit outside the body (ex utero), can it be considered as born? If these technologies progress sufficiently to allow for full ectogestation, what legal status would the developing human hold, and, without a pregnancy, could it be considered legally as born?
Our understanding of the potentially destabilising nature of EETs developed from an original research report by Dr. Zaina Mahmoud for the Center for Bioethics and Health Policy mapping the architecture of legal parenthood across eight contrasting jurisdictions – the UK, Belgium, the Netherlands, Japan, China, Iran, California, and Cuba — and analysing how each would respond to full ectogestation.
Originally, we intended for this comparative work to contextualise our research on exploring the impact of EETs on parenthood in the UK, where legal parenthood is assigned at birth based on the individual who carried and gave birth to the child. What became clear was how many significant assumptions underpin the concept of “birth” and how widely the implications extend across legal systems.
Regardless of their grounds for attributing parenthood, most jurisdictions rely on “birth” as the single, observable event from which legal personhood – and therefore one’s rights, obligations, and legal relationships like parenthood – arises.
Conceptually, the notion of “birth” does a lot of heavy lifting: it marks the physical separation of a developing human entity from a pregnant person, the end of gestation (i.e. the process by which that entity physiologically transitions from a foetus to a neonate), and the establishment of the entity’s individual legal status.
Where some or all gestation development occurs via ectogestation, what should be considered birth? Would it be the placement of a developing entity into an EET, it’s removal at full term gestation, or marked by another milestone altogether? That an ectogestative birth event cannot be neatly categorised within existing legal parameters causes a cascade of interlinked implications, which we’ve illustrated across the determination of parenthood, personhood, and citizenship.
In many jurisdictions, although not all, determining legal parenthood is contingent on an identifiable “legal mother,” defined as the person who has gestated and birthed. This enables the recognition of other parents, such as their spouse, or the transfer of parenthood to another (e.g. in cases of adoption or surrogacy). A gestation-based approach, which already faces critique as misaligned with lived reality in the cases of surrogacy or gender-diverse parenthood, is particularly vulnerable to changes enabled by EETs. As these legal frameworks currently stand, the absence of a gestating individual could leave a resulting child without legal parents or postpone their legal recognition.
Even jurisdictions that do not adhere to a gestational model of parenthood may be affected through cross-border reproductive arrangements and citizenship law. In addition to when and to what parents someone can be said to have been born, there are also questions around where. Imagine a device being moved between countries during gestation: is this akin to a person travelling while pregnant, or should it be considered something distinct? If a foetus is considered “born” after transfer from a pregnant person to an EET in one country, but “born” after full gestational development in another, can legal human rights justifiably attach at different stages based only on one’s location?
Further questions arise when the developing human entity can be separated and live independently from the EET. Which citizenship laws apply and how? Can citizenship be inherited if no legal parent can be identified where legal frameworks require a gestational parent? What existing complexities already present within cross-border reproduction or paediatric critical care might we need to anticipate concerning the use of EETs?
We do not propose one obvious answer to the question of when someone has been born in such instances. Rather, that ad hoc adaption of existing legal models, both within and between jurisdictions, is unlikely to adequately address the challenge EETs pose to the internal logic and assumptions which underlie our current paradigms. We hope this paper illuminates the interrelated complexity of the implications of EETs, and wider dialogue across disciplines and countries is essential for progress.
Paper title: Birth, interrupted? How ectogestation unsettles the legal foundations of personhood, parenthood and citizenship
Authors: Zaina Mahmoud, Allison Milbrath, Ilona Cenolli
Affiliations: ZM: School of Law and Social Justice, University of Liverpool, Liverpool, UK; AM and IC: Center for Bioethics and Health Policy, London, UK; IC: King’s College London, London, UK
Competing interests: This work was funded by the Center for Bioethics and Health Policy as part of a consultancy agreement on legal mapping and ELSI analysis of the impact of ectogestation on defining parenthood, as part of the ‘The Implications of Ectogestation for Defining Parenthood’ project.
Social media accounts of post authors: www.linkedin.com/in/allison-milbrath