By Anna Nelson
Traditionally, maternity and other parental leave protections have been predicated on expectations of linear and uncomplicated experience of birth. This has created challenges when babies are required to spend time in Neonatal Intensive Care Units (NICU), especially where these stays are prolonged. In response to these concerns the UK recently passed the Neonatal Care (Leave and Pay) Act 2023.
The passing of the Neonatal Care (Leave and Pay) Act 2023 was a significant step forward in labor law rights for those whose infants require a hospital stay upon delivery (though the provisions within it are not expected to come into effect until April 2025). This Act created statutory entitlement to up to 12 weeks of neonatal care leave, and pay for qualifying parents, as well as providing protection from redundancy during this time. While the right to neonatal care leave is a “day one right,” the statutory right to Neonatal Care pay will be contingent upon meeting minimum service (26 weeks) and pay criteria. This means that not all parents will be protected from the financial worries associated with taking leave during their child’s stay in hospital.
In this blog, I will look at whether the protections within this Act would be sufficient if Artificial Amniotic and Placenta Technology (AAPT) were to become available for use in humans. AAPT, sometimes called “artificial womb technology,” is a developing technological innovation which would “closely reproduce[s] the environment of the womb” so as to support neonatal maturation, and reduce the mortality and morbidity rates associated with extremely premature birth. This is an expansive topic, and the purpose of this blog is to identify some key considerations and questions rather than to provide comprehensive answers!
Would it be covered at all?
Some scholars — such as Romanis — have drawn a distinction between traditional neonatal intensive care techniques and AAPT. This distinction is contested by others (e.g., Colgrove), and, notably, many of the scientists involved in developing this technology characterize this as an extension of existing neonatal intensive care. Would the classification of AAPT as neonatal intensive care, or as something distinct, impact access to Neonatal Care rights and entitlements?
The 2023 Act itself does not define the parameters of “neonatal care” — leaving this to be defined by (at time of writing, future) regulation (80EF(6)(a)). However, I would suggest that any definition is likely to encompass the situation where life is being sustained by AAPT, for the simple reason that, as with ‘traditional’ NICU methods, ongoing hospitalization will be required for the use of AAPT. The process of facilitating extra-corporeal gestation using AAPT will be complex, requiring specialized knowledge and technical precision. Thus, as with ‘traditional’ neonatal care techniques, it will need to be administered by expert clinicians in the hospital setting.
Extending survival: sufficient protection?
The 2023 Act only provides for 12 weeks of neonatal leave, and the right to pay during this time will not be universal — rather it will be contingent upon meeting minimum service and pay requirements. The potential financial and emotional burdens of these limitations may be of particular concern in the context of AAPT, which could result in longer hospital stays.
Initially, AAPT is expected to be used in those instances where delivery from the human womb occurs at the “border” of viability, between around 22 and 24 weeks estimated gestational age. However, De Bie et al. have noted that if this kind of technology is proven “efficacious” at this stage, it may be adapted to support those delivered at an earlier gestational age. This has the potential to expand the population of parents whose pregnancy ends with prolonged hospitalization of their child, and to lengthen the duration of hospital stays (the term “child” is used here in recognition of the fact that in reality parents are extremely likely to identify the entity being sustained by AAPT as their child; conceptually speaking I agree with Romanis’ conclusion that this entity would have a status distinct from that of a neonate). As AAPT develops and pushes the survival boundary to an earlier stage in gestation, there may be a need to reconsider the duration of the rights afforded by this legislation to ensure sufficient protection is offered to parents.
It is, however, worth noting that regardless of whether the whole period of an AAPT-related hospital stay would be covered by the new Neonatal Leave protections, the introduction of AAPT would increase the significance and reach of the obligations imposed on employers by the 2023 Act.
Protecting all family forms?
Another important question is the extent to which the existing law would afford sufficient parental leave rights to families beyond the “traditional” nuclear familial unit consisting of two parents. In the context of parental leave, same-sex parents are afforded equal family leave rights as their opposite-sex counterparts and would have equal access to the rights and protections contained within the 2023 Act. Steps have also been taken to accommodate the less fixed reality of modern families; where they meet the relevant employment conditions, both the biological father of the child and the partner of the birthing parent have a right to take paternity leave.
However, in general, the law in the UK continues to privilege monogamous relationships — meaning those who seek to form parenting units outside of these normative boundaries may have trouble accessing the same levels of protection. This is illustrated, for example, by the fact that a child can only have two legal parents — regardless of the social parenting configuration or reproductive realities of their family.
The exact details of who will qualify as a “neonatal parent” for the purposes of the 2023 Act will be set out in regulation in due course — but it seems unlikely that any broader definition of “parent” will be adopted here than has been used in other parental leave regulation. This will mean that some members of poly- or other more expansive parenting units will have to rely on the understanding and good will of employers. This may be a worrying prospect for some, as polyamory remains stigmatized in many settings.
What about parents who opt for AAPT?
I have made the case elsewhere for AAPT to become available as a matter of request where a person finds pregnancy unacceptably burdensome, for reasons which extend beyond “clinical indication.” This raises a very interesting question in relation to parental leave: would the extended rights and protection afforded by the 2023 Act extend to the situation where a person has chosen to prematurely end bodily gestation? This question is particularly important in light of the fact, highlighted by Hooton and Romanis, that traditional maternity leave provisions are unlikely to offer sufficient protection for those opting to end bodily gestation early through the use of AAPT.
As noted above, the exact definition of the “neonatal care” has yet to be determined. This definition will likely be instructive in determining whether someone who opts for AAPT beyond a recognized “clinical indication” would qualify for the Act’s protection. Were clinical indication to be a necessary precursor for Neonatal Care leave and pay, then careful consideration would need to be given to determining what amounts to such an indication — and care should be taken not to unduly restrict this “clinical indication” along narrow physiological lines.
This blog has raised a number of questions about who would have access to extended parental leave if AAPT is used. These questions are pertinent, as the regulation that will construct the exact parameters of access to Neonatal Care leave and pay in the UK has yet to be written. It is likely that the use of AAPT will create an emotionally strenuous situation for parents, regardless of their reason for using this. Therefore, parental leave rights should be carefully evaluated in light of this developing technology to support affected families.
Anna Nelson is a Teaching Associate in the department of Law at the University of Manchester.