Wombs from the Tomb? Exploring the Law and Ethics of Uterine Transplants

Reproductive medicine is a rapidly changing discipline with ambitious developments that have changed the landscape of parenthood for many. The world’s first baby conceived via in vitro fertilization (IVF) was born less than forty years ago. The advent of so called “test tube babies” seemed like science fiction, yet IVF is now often a more popular option for dealing with infertility than the centuries old practice of adoption. Although there remain some religious objections to IVF, it is now quite widely accepted and embraced by many cultures. In the United States, those who can afford IVF (who are usually those who have insurance coverage for it) often take advantage of it. In fact, well over five million babies have been born via IVF worldwide to date. Gestational surrogacy is another practice that would not have been possible without IVF. IVF is the backbone of the multi-billion dollar surrogacy industry. It is with this perspective that this Article considers recent reports related to uterine (or womb) transplants. Many reproductive medicine developments end up becoming common pathways to parenthood. Swedish researchers reported the first live birth from a uterine transplant in the Fall of 2014. The baby was borne to a 36 year old woman, who received the uterus from a 61 year old family friend who had two children already. After the uterus was removed from the donor (which is a very invasive and dangerous procedure), it was surgically implanted in the recipient. Uterine transplant recipients must undergo IVF to attempt to achieve their pregnancies, as the implanted uterus is not attached to the fallopian tubes. In the Swedish research experiment, the living donors donated their wombs to the women who were born without uteruses. The British Research Authority recently approved a research project allowing uterine transplants from brain dead donors to women who for medical reasons do not have a functioning womb. The British Research Authority did not allow live donors due to the extensive surgery required for this elective procedure. One in 5000 women is born without a uterus, and many others have to have their uterus removed due to cancer and other ailments. Although this development could help these women carry a genetically related child, many questions whether this is a good use of scarce health care and research funds and whether this creates a slippery slope about the feats one will go through to achieve biological parenthood. The advent of uterine transplants brings with it a host of legal and ethical concerns, similar to other advances in fertility. This Article is one of the first in the legal literature to consider the numerous legal and ethical issues raised by uterine transplants, including how uterine transplants may change the surrogacy industry, affect transgender individuals and their capacity for reproduction, and what legal restrictions should exist for uterine donors. This Article examines how uterine transplants could change health law, including criteria for coverage by insurance for such procedures, physicians’ duties of care and informed consent, and organ donation rules for living and dead donors. Women who have already had children and who are considered hysterectomy candidates would be potential donors of uteruses. Depending upon how this technology develops, it is theoretically possible that transgender women or even men could be recipients of uteruses. Again, although this seems improbable at the time of this writing, society had the same impression of IVF just 38 years ago when Louise Brown was the first test tube baby. This Article considers whether an uterus market could develop in poorer countries and if being a uterus donor would actually be more dangerous and invasive for poor women than serving as a gestational surrogate. There are several significant bioethical concerns raised by uterine transplants. Given that an uterus is not needed to save a life, just to create a life, the ethics of uterine transplants is at best murky. It is possible that allowing uterine transplants as an acceptable pathway for motherhood increases the vulnerability of infertile women who are willing to undergo risky transplant surgeries to satisfy the quest for biological motherhood. Additionally, women who receive such transplants need to take immunosuppressive drugs to ensure that the uterus is not rejected. There is a concern about whether such drugs could harm the developing fetus, and how to weigh that with the desire for biological motherhood. Of course, there is also the “ick” factor involved when menopausal mothers donate their wombs to their infertile daughters in order to help these women have their grandchildren. These invasive and risky transplant surgeries will only be utilized by those who can afford them; either via personal wealth or more likely, by expansive insurance coverage. This further exacerbates the divide between those who can afford to try for biological children and those who must “settle” for adoption or being childless. Finally, this Article considers how uterine transplant would affect family law, including laws of parentage and surrogacy. When a grandmother donates her uterus to her daughter and that results in a successful pregnancy, should the parentage or custodial rights for the grandmother be given greater priority than in more typical grandmother relationships? Additionally, given that surrogacy is illegal is many countries, it is possible that uterine transplants would provide the only option for biological parenthood for those in such countries. This Article considers the risks and benefits of uterine transplants as compared with gestational surrogacy, and argues that legally allowing surrogacy may be more beneficial, when contrasted with the serious potential risks of uterine transplants to the donor, recipient, and potentially the baby borne to one with a uterine transplant. In the transgender community, however, there is much excitement about the potential of a transgender woman to carry a child just as a cisgender woman. This potential complicates the legal and bioethical picture of this technological innovation. This Article is one of the first in the legal literature to fully explore the legal and bioethical implications of womb transplants.