HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Monday, July 26, 2021

Ectogenesis: Is There a Constitutional Right to Substrate-Independent Wombs?

Brit Benjamin (Santa Clara University), Ectogenesis: Is There a Constitutional Right to Substrate-Independent Wombs?, U. Md. L. J. Race, Religion, Gender & Class (2020):

As ectogenetic technologies (“artificial wombs”) inch closer to perfection on a years-not-decades timescale, moral panic from scholars and legislators urge the conclusion that we must ban voluntary reproductive applications. Bioethicist fear mongering, natural human discomfort with transgressive technology, and the general legislative history surrounding reproductive biotechnology all suggest that ectogenesis will not be casually accepted into the lawful repertoire of available reproductive tools.

However, Americans enjoy robust protections of procreative and child-rearing autonomy, as established and expanded in Meyer v. Nebraska, Griswold v. Connecticut, and their progeny. Individual liberty under the Due Process Clause endures when public opinion is at its nadir.

This paper makes a straightforward argument: the existing substantive due process jurisprudence protects the right to use ectogenetic technology for reproduction. There can be no logical exclusion of artificial wombs from this realm of protection, as no valid and articulable governmental interest would override the individual’s fundamental right in reproductive and child-rearing autonomy. Reproductive freedom and privacy, as protected under the Due Process Clause of the 14th Amendment, necessitate the protection of the use of artificial wombs as a valid reproductive choice.

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