By I. Glenn Cohen
It is estimated that roughly one in five hundred U.S. women suffer from Uterine Factor Infertility — they were born without a uterus, they lost their uterus, or their uterus no longer functions. Until very recently, this essentially meant that pregnancy was not an option for these women. Because of uterus transplants, this is beginning to change. Such transplants raise a host of legal and ethical questions, which I will preview in this piece.
In December 2017, the first birth from a uterus transplant in the U.S. occurred at Baylor University Medical Center in Texas. The world’s first happened in Sweden in 2014 when a mid-30s women successfully gave birth by Caesarean section after a transplant from an unrelated woman in her 60s. Both of these involved living uterus donors, but in 2019 the U.S. had another first (this time at the Cleveland Clinic): a child born from a successful uterus transplant where the uterus came from a deceased donor, literally life born from death.
In the future, it may be possible to transplant a uterus on to the pelvis of a person assigned male at birth to enable them to get pregnant — though the science is not there quite yet. (For simplicity, through the rest of this article, I will refer to uterus transplant recipients as women, as this largely reflects the current reality — but similar, although not identical, issues will arise in a potential future where individuals assigned male at birth are the recipients of uterus transplants.)
Uterus transplants represent the intersection of two areas I write on, organ transplant and reproductive technologies1, but the combination raises some distinct issues, as I noted in a recent paper on these transplants as part of a special issue of the Chicago Legal Forum:
As strange as it sounds, would it better to get needed uteruses from the dead rather than the living? Should uterus donors be paid? For deceased donors, is a general authorization (as with kidney donors) good enough, or should there be a requirement that authorization be given to this specific organ to be donated? Do private or public payers have an obligation to pay for these transplants as they would kidney or liver transplants, or should we think about them more like infertility treatments or even plastic surgery (to use a purposefully provocative comparison)? How, if at all, does the answer differ if the ultimate transplant recipient is a man or trans?
These are all interesting and difficult questions, but here I want to focus on what might be thought of as a more basic question that we may need to resolve before answering some of these others: how do we conceive of the rights claim of women seeking to have a uterus transplant? This could be in the form of either negative liberty (i.e., freedom from state restriction on the transplant being performed) or positive liberty (i.e., a claim for the state to pay for the transplant as it would other health care needs).
I argue that the best way to understand the rights claim — at least in places like California, where commercial surrogacy is also a possibility — is as a right to experience pregnancy. To see this, it is useful to recognize (as I argued 15 years ago in the Stanford and Southern California Law Reviews) that we have to unbundle the concept of a right to procreate and right not to procreate into constituent parts based on the interest claimed by the procreating person. For a woman seeking a uterus transplant, she is not arguing for a right to parent simpliciter — that could be achieved by adoption, where available. Nor is she claiming a right to be genetic parent, because, where commercial surrogacy is available, that could be achieved by fertilizing her egg through in vitro fertilization and implanting it in a gestational surrogate (commercial or non-commercial). Instead, she is seeking to experience pregnancy itself, typically on top of the desire for genetic or legal parenthood that will typically follow.
Why do I say “on top of”? Because one can imagine some very interesting hypotheticals that even further unbundle the interests. Imagine a woman who suffers uterine factor infertility and seeks a uterus transplant in order to become a gestational surrogate. The child will not be her genetic child (in the sense that the egg of the intended mother, not her egg, is used) nor will the resulting child typically be her legal child (at least in states that enforce surrogacy agreements or decide parenthood based on the so-called “intent” rule). Thus, this hypothetical illustrates the right to experience pregnancy severed from the other rights in the most direct way.
How should one react to the “strength” of the interest in this case? Does the answer differ from a negative liberty versus positive liberty perspective? That is, one could say the state should not interfere in her getting a transplant with willing parties, but nor should it pay for her to do so just so she can become a surrogate. If we are not impressed by the right to experience pregnancy standing alone, as far as rights claims go, does it pick up strength when connected to rights to be a genetic or legal parent — the case of the woman who wants a transplant to have her “own” children? But why should the whole be more than the sum of the parts, when the “remainder” (everything but experiencing pregnancy) could be achieved without transplant? Does anything shift if we adopt more of a disability/normal species functioning lens to the rights claim? If so, would that differentiate claims by men or trans individuals to these transplants?
These are very hard questions — I try to provide some answers, but I am still not sure they are the right ones — but properly characterizing the rights claim is a necessary first step before the law can resolve the other open questions.
1. I should add the usual disclaimer that while I sit on the ethics committee of OPTN/UNOS the views expressed herein are mine and mine alone.
