The advent of Artificial Wombs - are we nearing more restrictive abortion laws in England and Wales?

Artificial Wombs (AWs) are a highly anticipated technology capable of facilitating gestation ex utero. Researchers have created the ‘biobag’, a closed fluid circuit that mimics the function of the placenta. The biobag is currently able to sustain lamb fetuses at 15/16 weeks gestational age for 13-25 days. The next step for this technology is to support the development of human fetuses. This is an ever-nearing reality, as in 2022 Vitara Biomedical secured $25 million of funding to advance their technology, with the aim of beginning human clinical trials this year. The development of AWs raises several questions, but this blog post will focus on the potential impact AWs might have on the viability threshold and consequently abortion care. It will address the fact that although AWs may trigger the reconceptualisation of viability, this should not result in more restrictive abortion regulation.

How Artificial Wombs could cause the collapse of the viability threshold

Viability is widely considered to denote when a fetus is ‘capable of being born alive’ and consequently able to survive independently of the womb. This general definition means that the threshold of viability is a moveable construct. In England and Wales, a fetus born at 24 weeks has <54% chance of survival, therefore viability can be considered to arise around this point. However, this threshold has the potential to change given technological developments in neonatal care, including ectogestation.

If AWs do improve survival rates for neonates born on the viability threshold, they will likely also be able to support neonates born even earlier. This means that a fetus born alive prior to 24 weeks and then sustained in an AW would be considered viable. Thus, AWs have the potential to cause a significant reduction or even erasure of the established viability threshold. This could lead to significant limitations on abortion access.

Abortion Access in England and Wales

Abortion is a criminal offence, but the Abortion Act 1967 (AA 1967) (as amended by the Human Fertilisation and Embryology Act 1990) provides a number of legally permissible defences that permit the lawful termination of a pregnancy. The construction of the AA 1967 means ‘every pregnancy is lawfully terminable within the first 24 weeks.’ However, the Act reinforces an implied viability threshold, as after 24 weeks abortion is only possible under a very limited set of circumstances. Such limitations on abortion care after 24 weeks may be informed by current understandings of viability and when it arises. If AWs have the potential to alter the viability threshold, and this may put pressure on abortion regulation to be reconsidered.

Potential Restrictions to abortion access

Potential restrictions to abortion access that could arise with the advent of AWs include:

1. Lawful abortions could be subject to a very limited set of circumstances from an earlier gestational age, such as when transfer to an AW is possible.

Abortion care is harder to access from 24 weeks, which can be considered generally to reflect when viability arises. Consequently, if viability were to arise when a fetus was capable of being transferred to an AW, abortions could be more heavily regulated from that point. However, this would only arise if gestatelings (fetuses gestating in an AW) were considered viable when capable of being transferred to an AW. Although this would likely be the case under the currently accepted definition of viability, this is reductionist and must be revised in anticipation of AWs. A more applicable definition of viability would concern when a fetus can sustain itself independently - irrespective of where that gestation is taking place. If viability is redefined, AW technology would not have a drastic impact on the viability threshold, as gestatelings would not be considered viable when in an AW as they are not self-sufficient. This would mean pregnant people would retain their fair decision-making-time regarding abortion.

Consequently, it is unlikely abortion access would be restricted more heavily from when transfer to an AW could take place.

2. Lawful abortions may no longer be permitted, and transfer to an AW could be required.

The possibility of mandated transfer can be criticised as it equates AW transfer and abortion. To enforce such a restriction on abortions would be unpracticable. This is as the majority of abortions are carried out prior to 10 weeks following an extremely safe and non-invasive procedure that involves taking two tablets (mifepristone and misoprostol). This must be contrasted with the invasive c-section procedure required for AW transfer, which would likely occur around 21 weeks gestational age. Furthermore, 209,917 abortions were carried out in England and Wales in 2020, given the cost and resources required to gestate over 200,000 fetuses in AWs each year, AWs cannot be considered an alternative to abortion. Finally, requiring transfer to AWs in place of abortion completely violates the pregnant person’s bodily autonomy and would likely be met with social outcry. Consequently, abortion care will likely remain accessible despite the advent of AWs.

AWs have the potential to lead to the erasure of the viability threshold, and consequently infringe on abortion access. In seeking to resolve this potential dilemma, it may be necessary for viability to be redefined, so it is not rendered obsolete by AWs. In light of this, abortion care in England and Wales is likely to withstand the advent of AWs.