Is a ‘Gestateling’ a Fetus or a Newborn? Potential Problems Concerning the Introduction of Artificial Amnion and Placenta Technology

In 2017 a team in Philadelphia published research indicating that they had successfully created a prototype ‘biobag’ which continued the gestation of extreme premature lambs. The intention of this work is to help treat extremely premature newborns, who are not developed enough for neonatal intensive care, at around 23 weeks.

There have been other prototypes, yet the Philadelphia model remains the leading example of artificial amnion and placenta technology (AAPT) – named this as it attempts to mimic the function of the placenta and the amniotic sac. The most likely use of this technology, even though it is still theoretical, is by taking a fetus which has reached a certain point of gestation (the Philadelphia team have suggested somewhere around 23 weeks), removing it from the pregnant person and then placing it inside the biobag so that it can continue the process of gestation as if it was still in utero. This differs from the current treatment available to premature newborns as neonatal intensive care only helps support newborns that are already able to perform, to a degree, certain life functions such as breathing. AAPT will be a significant development in the treatment of premature newborns, as prematurity is still the leading cause of neonatal mortality in the developed world.

However, the advent of this technology will cause many legal issues. One of the main issues is the question of whether the subject once placed within the biobag – the ‘gestateling’ – would be considered a legal person and therefore a newborn. A fetus that is in utero does not have legal personhood (Paton v British Pregnancy Advisory Service Trustees [1978] 3 WLR 687 (QB)), yet once that fetus has gone through birth and has been born alive, the now newborn has full legal personhood. Common law has focused on the importance of the physical separation (R v Ann Crutchley (1837) 7 Car & P 814, 173 ER 355) between the pregnant person and the fetus, generally concluding on a location-based definition of birth which is not inclusive of any of the biological changes which occur during the birth process. The definition of being ‘born alive’ is even more unclear, with modern common law focusing on the importance of breathing; although there is a lack of clarity about the impact of ventilation (C v S (Foetus: Unmarried Father) [1988] QB 135 (CA) Civ) . A gestateling that has been removed from a pregnant person yet has not completed its gestation and still relies on the AAPT to perform its life functions is not clearly a fetus or a newborn, and is therefore in almost a liminal stage between the two; despite legal personhood being a binary concept.

My MJur research is focused on the whether it would be possible to ‘switch off’ AAPT once a gestateling was inside, focusing on how end of life law and abortion law would determine the legality of doing this. Inevitably, the above question concerning the legal status of the gestateling is significant to my research as abortion law is only applicable to fetuses and end of life law is only applicable to people who have been born alive. Thus, the importance of determining the gestateling’s legal status is paramount. My research will discuss this issue, focusing on questioning if the gestateling has been ‘born alive’, before exploring both eventualities in the context of switching off the AAPT. This will include situations concerning conflict between genetic parents, bringing into question the fundamental ‘bodily autonomy’ argument which underpins abortion law, situations regarding gestatelings that have been discovered to have disabilities, whether they be terminal such as anencephaly, or a condition such as Down’s Syndrome which is still life-limiting but varies in severity . 

The issue of switching off AAPT has been questioned in academic discourse however, there is not yet published in-depth research into what the legal process may look like using current law. My research aims to bridge this gap and add to the debate surrounding AAPT.