In machina: A cursory consideration of artificial wombs and the South African ethico-legal landscape

Abstract

Preterm birth, defined by the World Health Organization as any birth occurring before 37 weeks of gestation, remains a significant global health challenge, contributing to high rates of neonatal mortality and long‐term complications. In this context, artificial womb technology – or ectogenesis – offers a transformative intervention capable of sustaining extra‐uterine gestation and improving outcomes for extremely preterm infants. This article explores the legal, ethical and societal implications of introducing artificial wombs in South Africa, where existing laws regulating pregnancy, birth and personhood are ill‐equipped to address this technological shift. In particular, the definitional limits of the Choice on Termination of Pregnancy Act, the conditional nature of the nasciturus fiction, and the ambiguity surrounding parental authority and legal guardianship over gestatelings, is analysed. I argue for the development of a bespoke legal framework to regulate ectogenesis, rather than amending existing pregnancy or birth legislation, and propose a set of principles to guide future regulation. Additionally, I highlight how access to artificial wombs may reinforce healthcare inequality if limited to private medical settings. By proactively addressing the legal and policy challenges posed by ectogenesis, South Africa can advance a rights‐based approach to reproductive healthcare while preparing for the ethical and legal complexities of this emerging technology.

This article utilised a qualitative, doctrinal research methodology based on desktop analysis. The research involved the critical examination of primary legal sources such as constitutional provisions, statutes and relevant South African case law. Secondary sources included scholarly articles in medical law, bioethics and reproductive justice, particularly those addressing emerging technologies, e.g. ectogenesis. Comparative perspectives from jurisdictions such as the United Kingdom, the Netherlands, and the United States were also consulted to contextualise the legal challenges within broader international debates. Sources were selected using targeted searches of legal databases and peer‐reviewed journals, with priority given to academic work that engages directly with the ethical, legal and regulatory dimensions of artificial womb technology.