Suppose technology advanced to the point at which a pregnancy could be terminated at any stage, with the extracted zygote, embryo, or fetus then transferred to an artificial womb where it could gestate to term. Could states then constitutionally mandate “fetal rescue programs” as a way to potentially eliminate legal abortion?
While the premise may sound like something right out of a Margaret Atwood novel, it is not some feminist dystopian nightmare; nor, for that matter, is the possibility of artificial wombs or gestation solely the creation of science fiction. The scenario is, as Professor Stephen Giles argues in the recent article “Does the Right to Elective Abortion Include the Right to Ensure the Death of the Fetus?”, a possible legal path forward for anti-abortion advocates to either render Roe v. Wade irrelevant or overturn it altogether.
Giles, who teaches at Quinnipac University School of Law, makes the argument for protecting fetal rights at the point of conception once technology has advanced to the point of being able to gestate humans in entirely “artificial” environments. According to Giles, this brave new world of ectogenesis will benefit women by eradicating the need for legal protections for abortions. That’s because, as Giles explains, modern technology currently limits reproductive choices. There is no way to end a pregnancy—other than via live birth and adoption—in a way that does not terminate the fetus, he writes.
And this is a problem for Giles. In addition to insisting on (incorrectly) using “fetus” to “refer to the human organism at every stage of development from conception to birth,” Giles also creates two “categories” of abortions as a way to automatically assign a morality to the procedure: apparently good “fetus-sparing abortions,” in which the physician attempts to terminate a pregnancy by somehow removing the zygote, embryo, or fetus “intact and alive,” and bad “fetus-killing abortions,” where the objective “is to kill the fetus either before or during its removal from the woman’s body.”
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At this point, without the technology for a zygote, embryo, or fetus to survive outside the womb, “In practice, elective abortion inevitably results in fetal death,” writes Giles. “For that very reason, the woman has no choice in the matter: Should she elect to terminate her pregnancy, the fetus will die even if she wants it to survive.”
Presumably, the patients Giles has in mind here are women who allegedly terminated pregnancies because they were not “ready” to parent, either for financial or emotional reasons. In other words, they were uncomfortable with the thought of terminating their pregnancies, but saw no other choice. In turn, he notes there is a stigma associated with carrying a pregnancy to term and then relinquishing parental rights in adoption. While it sounds like he’s trying to be sympathetic to these patients by painting them as grieving would-be mothers, his so-called “solution” for the “problem” of these women choosing abortion is, of course, to take that choice away.
That solution, as he sees it, is what he calls a “fetal rescue” program, in which the state bears the burden and expenses of gestating the terminated pregnancy, including the burden and expense related to caring for any live birth that results. Here’s Giles’ proposal:
It [fetal rescue program] puts the woman in what we might call the gestate-or-relinquish dilemma: carry the fetus to term or relinquish it to the state prior to viability for attempted rescue via AW [artificial womb]. The gestate-or-relinquish dilemma can best be characterized as a pre-viability, pre-natal version of the raise-or-relinquish dilemma. Like its post-natal analogue, it frustrates the woman’s interest in ensuring the death of the fetus. If she opts not to carry the fetus to term, she must relinquish it to the state, and if AW succeeds, her biological child will be raised by others.
According to Giles, these state-mandated, state-funded, and state-run fetal rescue programs would resolve any social stigma surrounding carrying a pregnancy to term and relinquishing parental rights via adoption because a patient would have the ability to effectively, privately “terminate” their pregnancy in a way that doesn’t “kill” it.
We must consider, however, that pregnant people’s bodies are already battlegrounds under the law, and that the very idea of the state stepping in and “rescuing” fetuses as early as conception completely erases women’s reproductive privacy rights—the rights that Roe v. Wade are supposed to enshrine.
Also, what, if any, legal rights would spouses, partners, parents, or other family members have to the pregnancy developing in the artificial womb? If lawmakers refuse to fund social service programs now, what makes us think they’ll do so in the name of “fetal rescue?” And should the state refuse to bear the full cost of these programs, who do we think will shoulder that burden the most? Poor people. People of color. People with disabilities. The very same people with limited reproductive freedom and autonomy right now.
More importantly, Giles’ argument presumes without question that once a person is pregnant they somehow “owe” the state a live birth. This is a presumption with immediately dangerous consequences playing out in places like Tennessee, Alabama, Wisconsin, and Indiana, where prosecutors and judges are incarcerating women for being a perceived threat to their developing pregnancy.
It would be easy to write off Giles’ fetal rescue program as the stuff of theocratic sci-fi fantasy. To do so, however, would dangerously underestimate the political willpower of the anti-abortion movement, which has made significant gains peddling abortion restrictions—such as informed consent requirements and parental involvement laws—dressed up as “solutions” to the problem of patients “struggling” with the decision to end a pregnancy.
To be clear, advances in reproductive technology like the artificial womb have tremendous promise in improving the lives of many. But when scholars like Giles argue there is a “problem” with women having full autonomy over their reproductive selves, and that the legal “solution” is for the state to leverage that technology to remove that autonomy in the name of “expanding” choices for women, it’s imperative for reproductive rights advocates to take that argument seriously and head-on, lest we risk losing those rights altogether.