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Medical law expert on womb transplants, unisex pregnancy, and the ‘right to gestate’

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Medical law expert on womb transplants, unisex pregnancy, and the ‘right to gestate’

Shutterstock

Could a womb be transplanted into a transgender woman – or even cisgender (non-transgender) men? Could pregnancy soon be unisex? These questions may sound as though they come from a sci-fi novel, but this week these speculative questions were seriously posed in mainstream media.

Vincent, the first child born following a uterine transplant, was born in Sweden in 2014. This marked the end of a long and hard-fought global race to perform the first “successful” human uterine transplant. Swedish research trials recently reported there have now been six healthy live births via womb transplants. These are the only successful human attempts so far, but globally teams are seeking to emulate the success of Sweden. Clinical trials of uterine transplantation are underway in North America, Europe and Asia.

The primary purpose of a human uterus transplant is to restore fertility in female patients. Prior to the success of these trials, for a woman lacking a functioning uterus the only way genetic motherhood could be achieved is through surrogacy. And, as a path to parenthood, surrogacy is far from unproblematic. It can be an emotionally draining method of founding a family and in the UK the practice is shrouded in legal uncertainty.

Furthermore, research demonstrates that many women attach a great importance to the experience of gestation and pregnancy. Womb transplantation allows women suffering from infertility due to womb abnormalities the unique experience of gestation, pregnancy and childbirth. But the technology also raises broader societal concerns as to whether publicly funded healthcare systems such as the UK’s National Health Service (NHS) should fund such procedures. Just as the state helps fund IVF for women who cannot conceive, I have argued that there are strong grounds to allow for public funding for those who cannot gestate.

Are womb transplants comparable to IVF? Shutterstock

But these developments also raise further questions. Unlike the transplantation of other vast organs, womb transplantation is not intended to save life, but to create life. If women can receive womb transplantation, some have queried whether the procedure may also work in trans women and, even more controversially, in men. Mats Brannstrom, who led the Swedish trial, has said his inbox is now inundated: “I get e-mails from all over the world on this, sometimes from gay males with one partner that would like to carry a child”.

While in theory a womb transplant in trans women and men may be possible, in practice there are anatomical barriers that would have to be overcome due to differing shape of the pelvis, which in trans women is much narrower than those in cis women. But there is no reason to think such barrier might not be overcome.

In the UK, the Gender Recognition Act 2004 gives trans women who have gender reassigned the same rights as their female counterparts. So if womb transplantation becomes clinical treatment in the UK for women who are unable to gestate, could a trans woman claim, under this legislation, that she too has a right to a womb transplant?

While some have advocated the “reproductive needs” of trans women, who may have strong desires to experience gestational motherhood, it has also provoked opposition. Julie Bindel reportedly stated: “This is not about transgender rights — it’s about a twisted notion as to what constitutes a ‘real woman’.” A debate is now needed on whether it can be claimed that there is a right to gestate under the umbrella of procreative liberty or the right to a private family life. And if such a right to gestate does exist, does it applies only to those born female, or trans women and men also?

A right to gestate

In light of womb transplant technology we need to address whether or not there is a right to gestate, not whether or not the NHS should fund it – the question that has so far dominated media coverage. Finite public resources should not be invoked as a smokescreen to mask prejudices towards gender reassigned individuals who parliament has given clear rights to. If it is decided that women should be allowed womb transplants on the NHS, it follows given the legislation enacted by parliament that trans women have the same rights as their female counterparts.

In terms of the overblown hype over cisgender men becoming pregnant, even if womb transplantation in a male body becomes scientifically feasible, it would only be possible for men to carry a pregnancy if an IVF embryo was implanted into the womb. In the UK, assisting a male to become pregnant does not fall within the specified activities for which a licence can be granted to a fertility clinic when “bringing about the creation of embryos in vitro” under the Human Fertilisation and Embryology Act 2008. Therefore, implantation of an IVF embryo in order to assist a man to experience pregnancy, in the absence of a licence, would be liable to imprisonment or a fine upon conviction.

Almost 40 years ago, the birth of Louise Brown, the world’s first “test-tube baby”, prompted ethical and legal discussions and debates. As womb transplants move from science fiction to science fact, it is clear that reproductive science continues to propel us into uncharted territories and tests the very essence of legal and ethical principles, such as the right to procreative liberty and the right to private and family life. Does this encompass a right to gestate? It is clear that not all would interpret such a right, if there is one, as encompassing unisex gestation.