Wednesday, August 21, 2019

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Vernellia Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

Article Index

The Impact of Medical Technology

Each day brings medical advances that blur the bright line third trimester rule of Roe v. Wade and turns back the viability clock established in Planned Parenthood v. Casey. To start, there is a significant difference in the survival rate of premature infants now compared to the early nineteen seventies when Roe was decided. At the time of Roe v Wade, fetuses/infants born before twenty-four weeks had very little chance of survival. By 1989, the age at which a fetus could be expected to have a reasonable chance of survival had moved below twenty-four weeks. Today, over fifty percent of those infants survive, although some with seriously compromised health.

Medical technology has always had a significant impact on the survival rates of preterm infants. For instance, the development of antibiotics and blood transfusions, advances in the prenatal and neonatal technology, increased understanding of the physiology and pathology of the newborns, and the development of the subspecialty in pediatrics of neonatologist significantly increased the survival rates of preterm infants. Perhaps the most significant development in the survival of preterm infants has been the medical specialty neonatologist and neonatal intensive care unit. Neonatal intensive care units developed in the nineteen fifties and nineteen sixties provide specialized care of ill or premature infants. They provide better temperature support, isolation from infection risk, specialized feeding, respiratory support and access to specialized physicians, equipment and resources. Over the next ten to twenty years, premature infants will survive at increasingly younger development and at an increasingly higher rate.

In addition, during the next twenty years it is predicted that an artificial womb capable of sustaining a fetus to term will become reality. There are many potential uses for an artificial womb including providing a drug/alcohol free environment during gestation; turning multiple pregnancies from fertility treatment to a single pregnancy; as an alternative to human surrogacy and, of course, as an alternative to fetal termination.

Professor Hung-Ching Liu, the director of the Reproductive Endocrine Laboratory at Cornell University's Center for Reproductive Medicine and Infertility in Manhattan, has already developed an artificial womb and brought rodents to term in the artificial womb. This is significant because rodents' reproductive processes are very similar to those of humans. Similarly, Dr. Yoshinori Kuwabara, a Japanese Professor of Obstetrics at Juntendo University, delivered goats from an artificial womb after just three weeks of gestation. In fact, researchers believe that they will have a functional artificial womb for humans in ten to twenty years. Scientists are now developing the artificial womb for use in cases where the woman is ill and can no longer carry the fetus, or where the fetus is ill and needs to be removed from the woman's womb and cared for where it can be easily monitored. While the development of the artificial womb has focused on the health of mother and child, there is no reason an artificial womb could not be used to bring a child to term in cases where a woman wants to terminate her pregnancy and the father (or the state) wants the infant born alive. Artificial wombs may make it possible that viability will occur near the moment of conception. If a safe transfer technique is developed then even an “embryo [could] gestate to full term outside the mother's womb and inside a separate and discrete man-made womb.” Finally, an artificial womb might not be required if scientists can develop a technique for transplanting a fetus from a birth mother to a surrogate.

Regardless of the final form it will take, developing neonatal technology including artificial wombs makes it inevitable that the fetal termination decision will be separated from the fetal extraction decision; late-term abortion is an example of this coming dilemma.

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