Fetal pain and abortion

By Stuart WG Derbyshire and John C Bockmann.

In the early 1990s new techniques for fetal surgery emerged and a group working at Queen Charlotte’s Hospital were posed a question by their pregnant patients that they had not previously considered: will it hurt the fetus when you inject it? Obviously the surgeons could not ask the fetus or provide any other direct answer to the question, and so they did the next best thing. After inserting a needle into the fetus they measured whether the fetus responded with hormonal changes that might be expected with pain, and found that they did. The evidence, however, was not accepted as demonstrating pain because hormonal responses are too general. The same changes, for example, will occur when having surgery under a general anaesthetic, when it is known that pain is not experienced.

That was 1994, and in the subsequent 25 years argument has continued as to when and if the fetus ever becomes neurologically and psychologically sophisticated enough to experience pain. In 2016, one of us, John Bockmann, began a masters focusing on fetal pain and read the work in the field. When reading an article in The New York Times (The First Ache) he noticed that Stuart Derbyshire appeared to have softened his position on the timing of pain in the newborn. He wondered if there was any further wiggle room and dropped Derbyshire an email. The email sparked a three year discussion resulting in a JME article.

The two authors have always differed on their views of abortion, but both agreed that the issue of fetal pain was fascinating in its own right. How do we decide what is necessary for pain? How do we relate the neuroscience to the phenomenology – the what it is like to feel pain? Both of us agreed that there was a tendency to lean too heavily on the neuroscience because it is essentially unknown how neural activity translates into phenomenal experience. But one of us (Derbyshire) maintained that enough was known to view the cortex as necessary for pain. The cortex is the rippled outer layer of your brain that is associated with most higher level thinking and feeling. The cortex remains immature and disconnected prior to 24 weeks gestation, and so if the cortex is necessary for pain then fetal pain is not possible before 24 weeks.

Recently, however, the necessity of the cortex has been called into question by a study demonstrating pain experience in patients missing most of the cortical areas believed to be necessary for pain. A further study demonstrated activation of those same cortical areas in patients receiving noxious stimuli but unable to experience pain. Thus pain can be experienced without the cortex and activation of the cortex doesn’t necessarily generate pain. These studies brought the two authors into closer alignment because structures other than the cortex, which mature before 24 weeks, may be sufficient to support pain experience.

Opposition to the idea of fetal pain also followed an understanding of pain as involving reflective conscious, or subjective, experience. When you experience pain you typically know that you are in pain and the pain experience dominates your ongoing conscious activity. That unwelcome intrusion is part of the suffering that is typical of pain. The broadly accepted professional definition of pain includes reference to the sensory and affective components of pain, emphasises that pain is always subjective, and states that pain does not require tissue damage. That definition has clear value, especially for patients who experience pain without obvious injury or disease. Their pain can be accepted as real despite the absence of injury or disease.

A possibly unwanted side effect of defining pain as subjective, however, is that it raises the bar for pain experience unreasonably high for organisms suffering injury. A pain that just is a response to injury without any subjective realisation of the pain, can be understood to accompany tissue damage in organisms that are not capable of reflective consciousness. And that pain can be supported by structures less advanced than the cortex, such as the brainstem, midbrain, and subplate that show clear evidence of maturity by 18 weeks gestation. Clinicians and pregnant women might be concerned to prevent such pain experience despite the absence of a reflective conscious awareness.

Abortion provides an obvious situation where such concern is likely to arise. We have divergent views on abortion with one of us seeing abortion as an ethical necessity for women to be autonomous and one of us seeing abortion as ethically incompatible with good medical practice. Thus we have quite different views for how the possibility of fetal pain might be approached by pregnant women and abortion providers. We both agree, however, that different views regarding abortion should not influence open and frank discussion about the possibility of fetal pain. Scientific findings pertinent to the question of fetal pain, and philosophical discussion of the nature of pain, should be assessed independently of any views about the rights and wrongs of abortion. We have discussed these issues since 2016 and recent findings have made a joint position possible. The main paper is our combined effort to reconsider the possibility of fetal pain regardless of any concern to support or undermine abortion practice.

Paper title: Reconsidering Fetal Pain

Author(s): Stuart WG Derbyshire, John C Bockmann

Affiliations: National University of Singapore, Department of Psychology and A*STAR/NUS Clinical Imaging Research Centre, Singapore; US Army Fort Drum, New York.

Competing interests: SWGD was a member of the RCOG panel that produced the 2010 report. He has written on fetal pain since 1994 and has consulted for a variety of pro-choice charities in the UK and the USA and has provided evidence for lawmakers in the UK and the USA. He has never received any fee or gift-in-kind for those services. JCB has no conflicts of interest to declare.

Social media accounts of post author(s): Twitter: @painfulgains (SWGD)

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