Equal Protection and Ectogenesis
Brit J. Benjamin | 23 Vand. J. Ent. & Tech. L. 779 (2021)
Ectogenesis is the gestation of a fetus in an artificial womb. This suite of technologies, now in use to preserve the lives of premature infants, is on the cusp of being a viable method of reproduction from conception to term. This Article argues that an equal protection challenge to a ban on utilizing ectogenetic technologies should be analyzed under intermediate or strict scrutiny. Should the US Supreme Court apply the rational basis or rational basis “with bite” standard of review to such a challenge, the petitioner should prevail.
The nature of ectogenesis is a technological alternative for a sex-specific organ. Intermediate scrutiny is well suited to address the discriminatory intent and effect behind denying access to ectogenesis, particularly against the backdrop of an extensive history of bipartisan legislative support for other artificial organs like the pancreas, kidneys, and heart. Strict scrutiny further supports protecting access to ectogenesis, as the fundamental right to procreative freedom necessarily encapsulates choosing the method of gestating one’s offspring.
While there are legitimate state interests in regulating the practice of medicine and ensuring the safety of reproductive biotechnology, prohibiting the use of ectogenesis on the grounds of preserving the natural order or moral disapproval would fail under even the most deferential rational basis review standard. Considering the immutability of reproductive roles, as well as the significance of the right to choose one’s method of reproduction, if the Court applies this deferential standard, the rational basis should “bite.”
Under the aforementioned standards of review, access to these important reproductive biotechnologies should be protected. Whether the Court finds invidious gender discrimination, the infringement of the fundamental right to procreate, or impermissible moral condemnation, it is likely that a ban on ectogenesis would be found to be unconstitutional.
Brit J. Benjamin