Successful Artificial Womb Advances the Frontiers of Birthright Citizenship

In July 2019, a team of medical scientists published this stunning research finding: CONCLUSION: For several decades, there has been little improvement in outcomes of extremely preterm infants born at the border of viability. In the present study, we report the use of artificial placenta technology to support, for the first time, extremely preterm ovine fetuses (equivalent to 24 weeks of human gestation) in a stable, growth-normal state for 120 hours. With additional refinement, the data generated by this study may inform a treatment option to improve outcomes for extremely preterm infants.

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In “The Unborn Citizen” I argue that Alabama's legal declaration that an “unborn child” has rights from the moment of conception means that that the unborn child also has birthright citizenship. 

My editors have pushed back—as they should— to say that my legal inference is not adequately supported. (The context for my research is whether the “unborn child” of an unlawful immigrant woman has birthright citizenship—and thus, whether her mother could legally be deported, and whether her mother is entitled to lawful employment to support her child.)

This is a new frontier, whatever our views may be. I welcome your feedback.

For now, here is my “medical research” answer to my editors:

In any event, reproductive technology will eventually vindicate my point that birthright citizenship can be legislated for an unborn child.  Artificial wombs are already being used for temporary periods when pregnancies encounter medical emergencies.  Even in that short time when an unborn child is transferred to an external machine, one can reasonably say that the child is born provided that it meets medical criteria for viability. When this technology advances to the point that an in vitro embryo can be entirely gestated in a machine, the definition of “birth” and “born” will likely be the subject of serious policy debates. Does the unborn child’s mother have any right to terminate this extracorporeal gestation— and going further, does this unborn child have a right, independent of her mother, to medical care?  

For now, Alabama has implicated in utero birthright citizenship by erasing the line between conception and birth, and treating the former the same as the latter for purposes of creating a host of undefined constitutional rights that await further explication. In its abortion law, Alabama defines “unborn child” and “woman” without any limitation— in particular, without restriction pertaining to alienage.