Book Review: Biotechnology,Gestation,and the Law

Introduction

‘Biotechnology, Gestation, and the Law’ – Elizabeth Chloe Romanis’ recent attempt to offer a comprehensive review of gestation in the law – includes both broad conceptual reflections and detailed analyses with regard to the legislative framework of England and Wales. With this monograph, Romanis, who is an Associate Professor in Biolaw at Durham University, aims to illustrate how the current and potential impact of biotechnologies, and more precisely of ‘technologies enabling gestation’ (TEG), is determined by the social and legal contexts in which they are situated.

Summary of chapters

The book begins with an introductory chapter presenting the technologies Romanis focuses on in this work (namely surrogacy, uterus transplantation (UTx), and ectogestation) and the value of anticipatory reflection, not only in preparing for potential future scenario but also in analysing current approaches and narrative around procreation.

Chapter 2 clarifies the author’s understanding of pregnancy as a ‘state of being’ and its distinction from gestation, viewed as a “generative process between conception and birth” (p. 29). This chapter, which includes both legal and philosophical reflections, also defends the parthood model of pregnancy, framing the foetus as part of the pregnant person, and uses it to argue against the common narrative that ‘mothering’ begins during pregnancy.

In Chapter 3, Romanis claims that TEG – defined as “all technologies that enable people to procreate who otherwise may not be able to or would not be able to do so in a way that met their specific needs or desires in procreating” (p. 61) – should be considered a genus of technologies, parallel to those enabling conception. Such a classification, which highlights how these technologies relate to one another, can help assessing the value of gestation (and pregnancy) as well as clarifying the similarities and differences among alternative methods.

In Chapter 4, Romanis argues that the emancipatory potential of novel and speculative TEG would be considerably restrained unless significant efforts are made to challenge biological essentialism – both socially and legally. If introduced within the current legal framework, we could expect access to these technologies to be granted only in cases “mimicking “natural” procreation” (p. 25). Evidence of this can be found in the common framing of UTx and the (currently under development) artificial amnion and placenta technologies (AAPT) as high-tech solutions for medical problems – addressing, respectively, the procreative desires of cis women without a functioning uterus and the issues related to premature birth. Such a narrow scope – and its legal implications – severely limits these technologies’ potential to disrupt conservative gender norms. Romanis expands on these claims in Chapter 5, arguing that UTx and ectogestation should not be promoted as tools to achieve sex and gender equality, since this “equality cannot and does not result directly from the availability of these technologies nor should we take it that introduction of these technologies is necessary for emancipation” (p. 108).

Chapter 6 provides an interesting analysis of the mater semper certa est maxim and of how it is currently used to impose legal parenthood (more specifically, motherhood) on those who give birth, particularly in English law. Romanis meaningfully highlights how the law promotes gestational essentialism and discriminates among kinship groups, legitimising only some as ‘families’. The second half of the chapter discusses whether the norm of assigning parenthood based on gestation could lose its (already questionable) grounding with the advent of novel gestation methods – particularly those involving artificial gestation.

In Chapter 7, Romanis emphasises the importance of protecting bodily autonomy, while also advocating for a view of abortion rights that goes beyond the termination of a pregnancy. She stresses how anti-abortionists often disproportionately blame those who become pregnant while withholding the responsibilities of those who impregnate them, and points out their failure to acknowledge the significant roles that social norms, structural injustices, and the ‘gender dynamics around sex’ play in these scenarios. Romanis also objects to the framing of (partial) ectogestation as the solution to the abortion debate, arguing that – while it may be a welcome alternative for some – it should not become a mandatory step for all those wanting an abortion, since it would entail forcing an invasive surgery.

The book concludes with a brief summary of its main arguments.

Analysis

This brief review cannot address every argument developed in the book; instead, I focus on providing a general assessment by identifying the most and least convincing aspects of the text.

First, who is the intended audience for this book? Initially, I assumed that fellow scholars in reproductive ethics would be the ideal readers. However, for those already familiar with most of the literature Romanis cites – including her own prior work – this text may come across as an expanded collection of her writings, which does not introduce substantially new arguments. Where I think this book can shine is slightly beyond our niche academic area: ‘Biotechnology, Gestation, and the Law’ can be a valuable resource for medical, legal, and ethics scholars interested in procreative ethics, thanks to both Romanis’ arguments and her carefully curated bibliography. Moreover, it may serve as a useful tool for policymakers seeking a deeper understanding of a crucial and rapidly evolving area of debate. Romanis’ approach and reasoning extend beyond English law, which makes this work relevant internationally and reflects one of the book’s key messages, namely that different social and legal contexts affect the availability, accessibility, and broader impact of TEG (and any technology, really) in different but comparably significant ways – something policymakers must not ignore.

Second, which sections are the most compelling? Romanis persuasively highlights oppressive and discriminatory aspects of the law, which she describes as “a significant source of oppressive logics that are fundamentally sexed” (p. 118), grounded in bionormativity, and aiming to preserve the cis-heteronormative family model. She provides several effective examples, such as policies demanding sterilisation to officialise a gender reassignment as a means to “protect any future child from the potential dangers of having a trans parent, in particular a parent who has played a non-normative role” (p. 95). ¹ Romanis sharply critiques the transphobic framing of transgender and nonbinary people as ‘less fit to parent’, and warns about the risk of such a narrative being extended to restrict the use of TEG outside of the reproductive binary. Other powerful sections include her analysis of how the law, when constructing and regulating the foetus differently in different contexts, “always disadvantages pregnant people because their needs are considered less material” (p. 47), and her discussion of the risks of State and medical gatekeeping towards reproductive technologies. In the latter, Romanis argues that “the framing of the state or clinicians as collaborators affords them too much power and legitimates intrusion into decisions that we ought to shield from external interference and public–political interference. Furthermore, it ignores the socio-political realities of the ways that states design and weaponize procreative policies to the detriment of marginalized groups” (p. 85). These analyses, grounded in real-world cases, demonstrate the deep interconnections between social norms and legal frameworks and are a core strength of Romanis’ work.

Finally, what do I find less convincing? I feel ambivalent about Romanis’ position on discussing full ectogestation in this book. While she never opposed all speculative ethical analysis towards it, she previously claimed that the literature’s focus on full ectogestation is harmful, for reasons including the false implication of such technology’s inevitability – dismissing ‘scientific realities’, the focus of the ethical permissibility of abortion, and the suggestion that it would bring gender equality. ² I believe full ectogestation to be an incredibly useful subject of anticipatory reflection, both as a future possibility and as a lens through which to call attention to current socio-political and ethical issues. For instance, as argued by Giulia Cavaliere, the demands of ectogestation offer grounds to engage “with the risks and burdens of pregnancy and childbirth, [. . .] the unfair distribution of childrearing responsibilities between men and women [,] women’s positions in society, their role in social reproduction and the effects of having such role on their lives at home and in the workplace”. ³ Differently from Cavaliere, though, I think that calling for ectogestation does not constitute a distraction from more pressing issues and has value beyond representing a provocative demand for a society that does not penalise mothers, and women in general. Therefore, I appreciate its inclusion in the book but, considering that the premises on which she based her previous arguments have not changed, I am unsure of why Romanis discusses ectogestation at the same level as other existing TEG, or why she defines it as a ‘novel technology’ since at the moment, ectogestation – especially if complete – is not even a prospective one, both for legal (as she mentions, it would actually be unlawful to pursue ectogestation under current laws), technical, and socio-political reasons. Given Romanis’ commitment to resist speculations misrepresenting the status of potential future technological possibilities, I would have expected a more explicitly separate discussion, distinguishing available or developing technologies from others which are not, such as complete ectogestation or UTx in people assigned male at birth.

Moreover, when discussing whether abortion rights would be limited to the right to terminate pregnancy should partial ectogestation become possible, Romanis claims that should not be the case, since imposing ectogestation would imply forcing pregnant people to have a Caesarean section instead of less invasive abortive methods. I found her confidence surprising. I wholeheartedly agree with her view that ‘‘decisions about how to end a pregnancy are as much a matter of bodily autonomy as the matter of deciding to end the pregnancy’’ (p. 183) and that ‘‘[f]orcing someone to have an invasive surgery must be considered to be as serious as forcing them to continue a pregnancy unwillingly and, of course, would go against norms of consent and constitute a major human rights violation’’ (p. 183). Nonetheless, she seems to overlook that people are already forced to remain pregnant against their will, which makes me fear that a further limitation of bodily autonomy is not such an unthinkable possibility. Her optimism does not last long, as she brilliantly points out that ‘‘it is hard to imagine that a state which now has the power to force a pregnant person to be a walking womb against their will would give them the “option” of an extremely expensive, less proven way to gestate’’ (p. 196). In addition, Romanis does not address an alternative, crucial scenario: what happens if a foetus is transferred to an AAPT before the legal abortion limit (assuming such a limit continues to exist), and the parents later request its death? ⁴ How to handle such cases would have been a relevant topic for Romanis to address, especially considering how strictly laws regulate abortion practices. In cases where abortion would imply the death of the foetus directly, and not as a consequence of pregnancy termination, its legality should be grounded in something other than the right to bodily autonomy. While I cannot summarise the debate here, the literature suggests various alternatives, such as a right not to be biological parents (or any sort of parent, I would add), a right to genetic privacy, and a right over one’s property, as well as more significant reforms, such decriminalising abortion altogether. ⁵

Lastly, Romanis successfully argues that, even if some technologies could – in theory – change the traditional course of gestation, it would be naïve to expect them to be able to disrupt gestational and procreative norms “without accompanying radical reform to social understandings of reproductive roles and of procreation beyond the binary and the legal frameworks that both dictate and enforce them” (p. 123). This makes sense, considering the existing “hostile legal culture towards procreation outside the cis-heteronormative binary, particularly when people seek to break the confines of biosex”. Many supporters of ectogestation such as myself would agree that its mere existence would not be sufficient for gender justice; however, I found her argument that ectogestation is also not necessary unconvincing. This position implies that social and legal reform alone could achieve full emancipation, ignoring the fact that some harms are intrinsically tied to the embodied nature of pregnancy and can only be addressed by externalising gestational labour. As argued elsewhere, ⁶ claiming that focusing on “solving the capacity to become pregnant rest in the idea that biological function assigned female is inferior” (p. 115) problematically fails to recognise that a gestating individual cannot be spared all risks by simply improving the environement in which they are pregnant. In short, I find it disingenuous to claim that full ectogestation is generally presented as a technology that would undoubtedly and directly bring gender equality, without the need of any other measure; arguing that developing an extra-corporeal method of gestation is an insufficient but necessary component of the journey towards liberation and gender justice does not deny the existence of several concerns related to the exacerbation of current inequalities, which should indeed be granted serious consideration. As Romanis herself acknowledges that TEG are “important and equality-enhancing interventions for marginalized individuals (including gender minorities)” (p. 26), it is unclear why she claims that considering them “as mechanisms for sex and gender equality [would] overstate their capacities” (p. 26).

Conclusion

‘Biotechnology, Gestation, and the Law’ brings together Romanis’ years of legal and ethical research on gestation and reproductive technologies, offering a solid theoretical reflection informed by empirical studies and her legal expertise. I particularly recommend it to those working in medical, legal, and ethical fields, as well as policymakers interested in emerging TEG, both from scientific and socio-political perspectives. Readers already deeply familiar with this niche area of research may find it more useful as a summary than as a source of original arguments.