Leiden Law Blog

Artificial Womb Technology and Children’s Rights: Complete Fantasy or Future Reality?

Posted on by Capucine Page in Private Law
Artificial Womb Technology and Children’s Rights: Complete Fantasy or Future Reality?

Artificial Womb Technology

These three words sound like a new invention from a far-away planet, which are nothing more than the fantasy of a couple of doctors and dreamers. This technology refers to the gestation of an unborn child within a machine instead of a human being.

This ‘fantasy’ is getting closer to being a reality, in that doctors have recently been able to gestate lamb foetuses for 4 weeks in an incubator. Not only did the lambs survive, but doctors believe that they will be able to use this Artificial Womb Technology for highly premature children within three to five years (The Guardian, 2017). As doctors are not known to stop after one successful medical advancement, it is highly plausible that they will try to go further and find a way to fully gestate a child through the use of such technology. The most realistic question does not seem to be whether it will happen, but when it will happen.

From a children’s rights perspective, the consequences of such technology would be countless. The milestone instrument in the field of children’s rights is the Convention on the Rights of the Child. Even though this Convention was not written under the assumption that children would be gestated in an artificial womb, many of the rights pertained to this Convention would still be impacted. It could most certainly lead to the sale of children. Governments would have to determine whether or not parents should go through an accreditation process to be allowed to have access to such technology. It will also be necessary to acknowledge the risk that parents may reject the unborn child whilst still in the machine. The moment from which these children are entitled to rights must also be determined. And so on. As part of a more extended study (this blog is based on the LLM Thesis ‘Artificial Womb Technology and the Safeguarding of Children’s Rights Through an Analysis of the Right to Identity’), only consequences impacting the child’s right to identity have been analysed. And they are many.

Child’s Right to Identity

A child’s identity can be defined as the sum of all the characteristics – moral, physical, psychological, cultural, societal, and so on – that a child can possibly have, and which define a child as unique. Moreover, all those identities can be re-categorised into two main dimensions: a fixed and a dynamic one. The first dimension is unique to a child and is not susceptible to change over time. It refers, for instance, to the child’s biological identity (who are the child’s genetic parents), and also to the child’s national identity (what is the child’s nationality), conceptional identity (how was the child conceived), genetic identity (what are the child’s genetic particularities), etc. The second dimension is fed by the former and by interactions with others, within a group, a society, a culture, a religion, a school, etc. If a child cannot know some elements of his or her fixed identity, it might impair the construction of his or her dynamic identity.

For example, say that a child does not know his or her biological parents. The child may have difficulties accepting and identifying with the culture and environment in which his/her social parents are living, because the child may always wonder whether his/her situation would have been different if he or she had been raised by his/her biological parents. The child’s biological identity will have impacted the child’s social and cultural identity by not identifying to the environment he or she is living in (see for instance Stewart, 1992). 

Children are in a continuous process of development. To be able to do so harmoniously, they should have all the keys in hand. Depriving them of one element of their identity can not only have a devastating impact on their identity as a whole, but also on their life. For those reasons, the child’s identity should be regarded as a right; not only because it needs to be protected, but also because it allows the child to exist, to be whoever he or she wants to be, and to be respected for that.

Artificial Womb Technology would have an impact on many fixed aspects of the child’s identity. The child’s genetic parents might be different to the parents who legally and socially care for him or her. For this reason, the child might have genetic particularities that he or she is unaware of if he or she does not know who his/her biological parents are. The child’s manner of conception will obviously be original. As he or she will not be born after being extracted from a human womb, there are chances that the child will be parentless. If the child is conceived and born abroad, he or she might not get a nationality.

The impact of Artificial Womb Technology on the child’s fixed identity will, most likely, also impact his/her dynamic identity, which will affect the child’s identity in its entirety, and might hamper his/her ability to build him/herself. But most of all, the consequences of Artificial Womb Technology on the child’s identity reflect and embrace all the consequences that the various forms of Assisted Reproductive Technology may have on the identity of children born through such technology.

Artificial Womb Technology: Fantasy, Reality, or Wake-up Call?

Artificial Womb Technology would be a form of Assisted Reproductive Technology. As is the case with In Vitro Fertilisation and gamete donation, the child’s biological and genetic identity would be impacted. And in the same way as surrogacy, the child’s conceptional, family, national, and legal identity would or could be impacted. Artificial Womb Technology simply heightens all the difficulties encountered in the field of Assisted Reproductive Technology.

After all, whether Artificial Womb Technology will become a reality or stay in the realms of fantasy does not matter so much. What matters most is that it sheds light on the importance of the child’s right to identity. It highlights the fact that little has been done to protect such right for children already born through Assisted Reproductive Technology, and that much more needs to be done. It shows that, as the field of Assisted Reproductive Technology gets more and more visibility, the same should be done for the rights of children born through such technologies, and specifically, in terms of their right to identity. Steps must be taken to legislate in this area, sooner rather than later. Because the right to identity is, most certainly, very much anchored in the reality of children. 

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