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Ethical issues

Fetal Pain Again
By Stuart Derbyshire
July 2010

This article was first published on www.spiked-online.com

In 1997 the Royal College of Obstetricians and Gynaecologists (RCOG) produced a report on fetal awareness (1). For the 1997 report, eleven experts examined the evidence for fetal awareness and especially concentrated on the possibility of the fetus feeling pain. The 1997 report drew a number of important conclusions but the most salient was that the connections necessary for pain are not developed before 26 weeks and so the fetus 'cannot be aware of sensory stimuli before that time' (p. 23).

The need to update the 1997 report arose as a consequence of the House of Commons Science and Technology Committee examining the issue of abortion shortly after the 40th anniversary of the 1967 Abortion Act. The Science and Technology Committee produced a report, Scientific Developments Relating to the Abortion Act 1967 and in response the Minister of State for Public Health recommended that the RCOG review the 1997 RCOG report. Subsequently a new committee of twelve experts, including myself, was formed to examine the question of fetal awareness. Similar to 1997, the committee paid special attention to the question of fetal pain (2).

The 2010 report is a major update on the 1997 report and includes a glossary, a discussion of neurobiology and clinical practice and information for women and parents. The 2010 report on fetal awareness was also accompanied by a second report examining termination of pregnancy for fetal abnormality (3). Similar to the 1997 report, the 2010 report on fetal awareness concludes that the necessary connections for pain are not intact before 24 weeks and so, ' the fetus cannot experience pain in any sense prior to this gestation' (p. viii). Unlike the 1997 report, however, the 2010 report also concludes that fetal pain is highly unlikely after 24 weeks both because important neural development is ongoing and because the fetus remains asleep and sedated in the womb.

It is worth highlighting a number of strengths of the 2010 report. Both the 1997 and 2010 reports stood above the political arguments about abortion and refrained from commenting on the ethics of abortion. No attempt was made to create an argument for or against abortion at any gestational age and the committee took the correct view that abortion is not a question that can be resolved by science. Science may be useful in informing the decisions of policy makers but science cannot decide if abortion is right or wrong or whether it should be legal. The moral status of abortion and its legality are questions that can only be addressed via moral and political debate. The fact that the fetus does not feel pain does not negate objections to abortion based on the perceived sanctity of fetal life and does not negate any other religious, moral or political objection to abortion.

Unlike the 1997 report, the 2010 report does not entirely avoid the issue of how we define pain. In my opinion, how we define pain is absolutely critical. If we define pain as the response to something painful, such as a scalpel or a needle, then it is evidently the case that the fetus feels pain from a very early gestation (around 8-10 weeks) when the fetus first demonstrates responses to such stimuli. Defining pain as the response to something painful was the approach taken by Stuart Campbell when I debated him on BBC News 24 (4). Unfortunately, defining pain as the response to something painful is tautological and much too permissive. Even fruit fly larvae will bend and roll away when close to a naked flame but it is unreasonable to assume that the fruit fly larvae rolls away because it hurts. The roll is much better understood as a mind blind protective reflex. Mind blind reflexes also occur in humans and are generally associated with activity in the spinal cord and lower parts of the brain (the brainstem). Getting beyond a reflex response requires some psychological content that is generally agreed to require the higher neural centres of the brain. And that pushes pain out to at least 24 weeks when those centres develop and connect to the skin. Even after 24 weeks, however, there is still good reason to assume that the fetus is not psychologically complex enough to experience pain, as the report notes:

"The fact that the cortex can receive and process sensory inputs from 24 weeks is only the beginning of the story and does not necessarily mean that the fetus is aware of pain or knows that it is in pain. It is only after birth, when the development, organisation and reorganisation of the cortex occurs in relation to the action and reaction of the neonate and infant to a world of meaning and symbols, that the cortex can be assumed to have mature features. The cortex is an important step beyond the spinal cord and brainstem because it facilitates pain experience by enabling the higher functions of cognition, emotion and self-awareness that are realised in the postnatal environment" (p. 10).

Sensory experience is not something that falls directly out of a stimulus and neural tissue but is something that is always embedded in thought and context. There is no such thing as the pure experience of a packet of sensation; a touch is never just a touch. A touch on the knee can be an intrusion, an expression of concern or an overture to something more erotic. In each case the precise physical contact can be identical but the experience and feeling is very different. Ascribing pain or any other sensation to the fetus means ripping that sensation away from any situation, because 'situations' do not exist for the fetus, and in so doing we rip at the sensation itself.

The 2010 report also draws very solid conclusions regarding the use of fetal analgesia. Instead of focussing on pain the report recommends focussing future investigations on the practicalities and risks of administering fetal analgesia, the uncertainties over long-term effects for therapeutic interventions and the evidence for benefits to the fetus. The report notes that there is currently very little evidence of fetal analgesia providing any benefit to the fetus and concludes that, 'on the basis of 'first do no harm', prior to the procedures described in this report, analgesia is no longer considered necessary, from the perspective of fetal pain or awareness' (p. 24).

Finally the 2010 report was thoroughly peer reviewed before being finalised. The reviewers were selected for their expertise and included reviewers on both sides of the abortion debate. Notably, Dr. Kate Guthrie, a prominent supporter of abortion, and Professor John Wyatt, a prominent opponent of abortion, both provided their comments on a late draft of the report.

Undoubtedly there remain some significant problems with the 2010 report. Although the report notes that development continues after 24 weeks and also notes the psychological nature of pain experience, which cannot develop in utero, the report draws an obvious distinction between pre and post 24 weeks. That distinction was particularly noticeable in the RCOG press release, which noted that 'the fetus cannot feel pain before 24 weeks' but also that 'more research is needed into the short and long-term effects of the use of fetal analgesia post-24 weeks' (5). The press release implied that pain occurs post 24 weeks and the report itself can be seen as sometimes supporting pain after 24 weeks and sometimes not.

The emphasis in the report on fetal sleep and sedation throughout pregnancy was perhaps an attempt to step around the ambiguity of what happens after 24 weeks. If the fetus is asleep and sedated throughout pregnancy then it doesn't matter whether the fetus can feel pain or not because we don't feel anything when asleep. In my view it is not at all clear what 'sleep' really means for the developing fetus and I suspect that the notion of fetal sleep and sedation will come under increasing scrutiny over the next few years. Fetal sleep and sedation can not entirely resolve the tension over consciousness, pain and awareness because sleep itself raises an argument over the nature of consciousness and awareness.

That there are some remaining tensions and ambiguities is not surprising. To provide a consensus on fetal pain would require consensus on the biology of pain, the psychological content or nature of pain and on the development of human consciousness both in and out of the womb. As one of my colleagues recently suggested, hell will likely freeze over before that happens. Consensus is, in any case, overrated. The point is not to provide a consensus statement that closes down debate but to provide a document that cogently summarises the key points and research to date. The 2010 report does that beautifully and is an important document for the arguments and debates that will follow.

Stuart WG Derbyshire is a Senior Lecturer in the School of Psychology, University of Birmingham. He was a member of the Working Party providing written contributions and attending each of the four meetings between July 2008 and July 2009.

1. Royal College of Obstetricians and Gynaecologists. Fetal Awareness: Report of a Working Party. London: RCOG Press; 1997.

2. Royal College of Obstetricians and Gynaecologists. Fetal Awareness Review of Research and Recommendations for Practice: Report of a Working Party. London: RCOG Press; 2010.

3. Royal College of Obstetricians and Gynaecologists. Termination of Pregnancy for Fetal Abnormality in England, Scotland and Wales: Report of a Working Party. London: RCOG Press; 2010.

4. 'No foetal pain before 24 weeks'. http://news.bbc.co.uk/1/hi/health/10403496.stm

5. http://www.rcog.org.uk/news/rcog-release-rcog-updates-its-guidance

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