Artificial womb technology, pregnancy, and EU employment rights

Abstract

This article considers challenges for the European Union (EU) maternity and pregnancy rights framework when faced with advances in reproductive technology. Specifically, we consider how the introduction of the ‘artificial womb’ technology, an alternative to bodily gestation, would impact the availability of rights that exist under the maternity and discrimination framework. Employment rights in the EU context have already been confronted by the challenges of advancements in reproduction. We use the case law on in vitro fertilization (IVF) and surrogacy as a baseline for unpacking the challenges that ‘artificial wombs’ will bring. This analysis of the legal framework on maternity rights and sex discrimination will highlight potential avenues for integrating this technology and ensuring the continuation of rights for those opting for it. We advocate against the stratification of maternity and pregnancy rights based on the reproductive and gestational choices made by the pregnant person.

Ethical, Translational, and Legal Issues Surrounding the Novel Adoption of Ectogestative Technologies

“…50 It is worth stressing that in that regard one should pay continued ethical attention to socio-cultural dynamics and stratified structural contexts that shape choice and agency, propelled by technological developments, that may accrue pressures on pregnant persons. 35,[51][52][53][54] As mentioned above, the concern that it is often disadvantaged groups that are more likely to experience preterm birth and need prenatal care, is particularly important as this technology is developed. 22,39 Some have suggested that we must be attentive to this in the development of this technology to ensure that such stakeholders are centred rather than exploited.…”

“…That said, facilitating choice, while considering an individual's circumstances, is ethically important as an exponent of the prima facie value attached to autonomy, which can only potentially be justifiably overruled in view of "good moral reasons" reflecting other basic ethical principles like safety and equity of access. 35,44,59 Societal Dialogue and Value Sensitive Design While the time frame for the clinical introduction of the recent proof of concept studies remains unclear, it is nonetheless to be expected that they will induce a further dissemination of research into the feasibility of potential human application. Future research trajectories may range from securing survival at the limit of viability to completely mimicking gestation.…”

“…[94][95][96][97] Here as well, respecting autonomy to protect personal choice about reproductive projects should be balanced against other moral considerations like equity of access. 35,57 For our present purposes, it is most relevant to consider these (albeit speculative) perspectives through the lens of so-called "soft impacts" as part of a comprehensive technology assessment that includes awareness of wider concerns, such as how this emerging technology might affect existing practices, routines and norms. 104 This includes attention to how visions of ectogestation may have a fallout in terms of how "responsible motherhood" is conceptualized (think of admonitions to secure an optimal gestational milieu), how we deal with existing reproductive stratification (think of racialized and gendered disparities), and how existing frameworks and practices may seem illequipped to respond to lived experiences of pregnancy and maternity (think of challenges in terms of workers' rights during pregnancy).…”

“…104 This includes attention to how visions of ectogestation may have a fallout in terms of how "responsible motherhood" is conceptualized (think of admonitions to secure an optimal gestational milieu), how we deal with existing reproductive stratification (think of racialized and gendered disparities), and how existing frameworks and practices may seem illequipped to respond to lived experiences of pregnancy and maternity (think of challenges in terms of workers' rights during pregnancy). 22,33,35,39,53,58,105,106 While such soft impacts are largely hypothetical and difficult to corroborate, it is important to delicately include them in ethical assessments to increase awareness and avoid later public discontent. Theoretical scenarios for ectogestation as a reproductive option for diverse motivations (eg, freedomand/or equality-promotion) may offend the moral convictions of some while pleasing the views of others.…”

“…32 Further, the physical impact of the surgical translocation may possibly compromise a person's eventual later reproductive trajectory and is generally compounded by the ethical challenge to justify whether the burdens are proportionate to the envisaged clinical benefits. [33][34][35] We will return to the moral relevance of this surgical intervention below, when we discuss AAPT as a means to advance prenatal therapy. Yet, it may already be noted that the ethical discussion of ectogestation's potential to ameliorate neonatal outcomes in case of extreme prematurity, along with moral questions of what it means for medical personnel and future parents to "do good" in this respect, will be complicated by the ambiguous perception of the invasiveness of the surgical intervention and considerations of the pregnant person's autonomy.…”