Justice Jay Mitchell, writing for the majority, pounced on what he called the “latent implication” of the defense’s argument. What about a baby growing to term an artificial womb? Would it also not count as a person, he asked, just because it’s not “in utero”?
According to their ruling, the wrongful-death act “applies to all unborn children, regardless of their location,” and “no exception” can be made for embryos regardless of their age, even if they’ve been in deep freeze for a decade. Nor does the law exclude any type of “extrauterine children” science can conceive.
It’s common for judges to wrestle with complex questions as they try to apply old laws to new technology. But what’s so unusual about this decision is that the judges ended up giving opinions on technology that hasn’t been fully invented.
“I think the opinion is really extraordinary,” says Susan Wolf, a professor of law and medicine at the University of Minnesota. “I can’t think of another case where a court powered its ruling by looking not only at technology not actually before the court, but number two, that doesn’t exist in human beings. They can’t make a binding decision about future technology that is not even part of the case.”
Bad law or not, the question the Alabama justices ruled on could soon be a real one. Several companies are actually developing artificial wombs to keep very premature infants alive, and other research labs are working with fluid-filled bottles in which they’ve grown mouse embryos until they are fetuses with beating hearts.
One startup company in Israel, Renewal Bio, says it wants to grow synthetic human embryos (the kind formed by stem cells) until they are 40 days old, or more, in order to collect their tissue for transplant medicine.
All this technology is racing along, so the question of the moral and legal rights of incubated human fetuses might not be hypothetical for very long.
Among the dilemmas lawyers and doctors could face: If a fetus is growing in a tank, would a decision to shut off its support systems be protected under liberal states’ abortion laws, which are typically based on the rights of a pregnant person? Would a fetus engineered solely to grow organs, lacking a brain cortex and without sentience, also still be considered a child in Alabama?
