By Victoria Hooton and Elizabeth Chloe Romanis
The emergent Artificial Amnion and Placenta Technology (AAPT) provides an illuminating example of how the EU maternity leave framework has become unable to support modern pregnancies and family structures.
AAPT is designed to facilitate partial human gestation outside the body (i.e., ectogestation). The idea is that it would be able to replace conventional neonatal intensive care to improve morbidity and mortality that remains a constant risk in NICU. It is also hoped that the technology might be able to “take over” gestation in circumstances where a person is experiencing a wanted but dangerous pregnancy. This technology is currently being trialed on animals in several countries around the world with successful results (most notably in the public domain is the EXTEND therapy device at the Children’s Hospital of Philadelphia). Researchers at CHOP anticipate that they may soon test the technology on human preterm neonates.
If the technology develops to the point that it is no longer considered experimental, there has been some speculation that AAPT (for partial ectogestation) could relieve the burden of gestation for those not able or not wanting to undertake a complete pregnancy. Ectogestation will clearly impact how their pregnancy is received societally, including in the workplace.
For decades, the European Union (EU) has provided a framework of protection for pregnant workers, in the form of prohibition of pregnancy discrimination and provisions aimed at securing pregnant workers welfare and maternity leave. In an article for the Journal of Law and the Biosciences in 2021, we considered in detail how this framework may interact with the use of AAPT as an alternative to gestation and highlighted the most critical challenges for users of AAPT to assert their pregnancy-based rights in Europe. In this blog post, we briefly summarize some of our thoughts about maternity leave.
By far, the largest obstacle to AAPT users in the European Union having the same substantive rights as those able and willing to undertake bodily gestation would be the current conceptualization of maternity leave. Article 8 of the Pregnant Workers Directive (1992) entitles pregnant workers to 14 continuous weeks of maternity leave, 2 of which are compulsory, “allocated before and/or after confinement.” This right is granted primarily to a) protect workers from the strain of work when they are physiologically “vulnerable,” either during pregnancy or after giving birth, and also b) to allow the parents of newborns time to bond with and care for their infant.
The problem we envisage with utilizing confinement (childbirth) as the temporal indicator of the right to maternity leave is that it is not clear when birth will be considered to have happened during the AAPT process. In AAPT, the fetus is delivered from the pregnant person, likely by caesarean section, sometime after it has fetal physiology but before the completion of the full gestational period. The remaining period of gestation is then sustained by the machine. It is difficult to say when “birth” occurs during this process, but two temporal points might be appropriate. Extraction of the fetus from the pregnant person is a birth from the perspective of the pregnant person, however, it is not when the entity is born (existing ex utero in the external environment), which occurs when gestation ends, marked by removal from the AAPT (Romanis 2018; 2019; 2020). This means that there is, where this technology is used, “a gap between ‘delivery’ after which there needs to be recovery, and ‘birth’ after which there is a newborn to care for.” This has significant implications for maternity leave. If we assume that for maternity law to be fully effective, parents should be allowed both recovery and bonding time, the allocation of a continuous period of 14 weeks would fail to meet one of these objectives irrespective of which potential interpretation is taken.
Should the law take the “being birthed,” that is, the transferal of the fetus to the AAPT, as the key point for maternity leave, this means that maternity leave would start sometime before or at the 24-week mark. After this, 6 weeks of maternity would be used for recovery from surgery. During the remaining 8 weeks of continuous maternity leave, the AAPT user would be (potentially) able to interact with the technology but would have no physical born child to care for until week 39, at which point their (EU law statute-based) maternity leave would have run out. On the other hand, should the law recognize that the temporal trigger for maternity leave is when a child is born (meaning emerging from gestation, occurring at the removal from AAPT), maternity leave will run from before or after the 39th week of gestation. In such a case, maternity leave would not be applicable during the required 6-week recovery period after extraction. The 14 weeks of leave could be used for bonding and caring time, but an alternative would have to be used for the recovery period.
To bring EU maternity leave law in line with advancements in reproductive technology, we suggest that it should be possible to split the leave allocated. In doing so, weeks could be reserved for recovery and child rearing/bonding, even when these processes cease to be continuous, due to the use of AAPT. This is likely to be only one of many changes in the EU pregnancy protection framework that are necessary to accommodate the needs of workers using a broad range of established and emerging reproductive technologies.
Victoria Hooton is a Research Fellow at the Max Planck Institute for Legal History and Legal Theory, Germany
Elizabeth Chloe Romanis is an Associate Professor of Biolaw at Durham University, UK.
