Case Western Reserve Law Review
Jennifer S. Hendricks, Not of Woman Born: A Scientific Fantasy, 62 Case W. Res. L. Rev. 399 (2011), available at https://scholar.law.colorado.edu/faculty-articles/161.
This Article explores the legal implications of a scientific fantasy: building artificial wombs that could gestate a human child from conception to birth. Because claims about the technological possibility of artificial wombs in the foreseeable future are likely overstated, the focus of the Article is the effect that the fantasy of artificial gestation has on the legal discourse about pregnancy and reproduction today.
The Article first places the fantasy of artificial gestation in the context of theories about reproduction that western science has propounded. The history of scientific theorizing about reproduction is a history of scientists emphasizing the male contribution and minimizing the degree to which men are dependent on women for the creation of their offspring. Feminist scientists and philosophers of science have demonstrated how this sex-based ideology has skewed and hampered scientific efforts to understand the biology of reproduction. Despite the progress that has been made, scientific pronouncements about the prospects for building artificial wombs continue to reflect the biases that have historically plagued reproductive science, making it likely that those prospects are systematically overstated.
The Article then turns to how the prospect of artificial gestation affects legal discourse about reproduction. For example, legal scholars increasingly cite the prospect of artificial wombs as a solution to the controversy over abortion, since the fetus could survive without requiring the pregnant woman to sustain it. Pregnant women seeking abortions could instead be required to choose between continuing the pregnancy or undergoing an extraction procedure in which the embryo or fetus would be transferred to an artificial womb. This predicted "solution" informs legal analysis of the scope of reproductive rights today by constructing the woman and the fetus as separate individuals with opposing interests. Similarly, comparisons between mechanical and human gestators shape legal rhetoric about commercial surrogacy and the legal control of pregnant women.
Feminist legal theory has demonstrated that the idealized autonomous individual is a myth; the fantasy of artificial gestation is a psychic representation of that myth. This myth both reflects and contributes to an ideology that minimizes the importance of the human connection of pregnancy.
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