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After Three Decades The Department of Health Recognises Fetal Pain

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The eighteenth century philosopher, Jeremy Bentham, wrote of animals: ‘The question is not Can they reason?, not Can they talk?, but Can they suffer?’ Professors Glover and Fisk, in their 2005 paper Fetal Pain: Implications for research and practice’ say that this caused a change in attitude towards animals and their treatment that is continuing today, so that in the UK, even frogs and fishes are required by Act of Parliament to be protected by anaesthesia from possible suffering due to invasive procedures.

So why not human beings?”

Within the living memory of some clinicians, medical students were taught that unborn babies didn’t feel pain.

It was in the mid 1980s that Professor ‘Sunny’ Anand raised the issue of fetal pain. The then MP David Alton raised the issue in parliament in 1988 and subsequently established a Commission of Inquiry with CARE on Human Sentience Before Birth. It still took until 1997 for the first official investigation by the RCOG which recommended that those carrying out diagnostic or therapeutic procedures on the fetus in utero at or after 24 weeks should consider the need for fetal analgesia – notably specifying diagnostic and therapeutic procedures, and omitting terminations. After the Science and Technology Committee’s paper on abortion in 2007, the Department of Health commissioned a review by RCOG which was published in 2010.

This RCOG report remains in place as the official position on fetal awareness.

The report, however, immediately drew both national and international criticism, including that of Peter Saunders the then CEO of CMF [here, here and here], for, among other things, its assertion that a fetus remains in a permanent unconscious state and does not reach consciousness until birth. This conclusion continues to contradict the established understanding of scientific and medical literature on life in utero (see here, para 4).

The assertion that the fetus does not have consciousness is based on, in the words of the RCOG 2010 report: ‘good’ and ‘increasing’ evidence. However their citation is one paper from 1986 which was an experiment on sheep fetuses exposed to low oxygen levels. This, needless to say, comes nowhere near the tissue trauma of a surgical procedure in utero. On this basis, mothers have been assured that there is no need for fetal analgesia during an abortion or fetal surgery, at any gestational age.

However, it now seems the Department of Health has now done a U-turn despite maintaining their denial of fetal pain, even up to January 2019.

Following an announcement that fetal surgery to address spina bifida in utero will be made routinely available on the NHS, the Government was asked about fetal pain relief in such cases. In response, a written parliamentary answer 14 February, states that:

Pain relief for the unborn baby will be delivered intra-operatively. This is administered before the fetal surgery, after the uterus is opened…The surgery takes place between 20 and 26 weeks of gestation.

During these same gestational ages in England and Wales last year 3,564 unborn babies were aborted without pain relief, mostly by dilation and evacuation (D&E), a ‘dismemberment’ abortion, where, in the words of the RCOG ‘the fetus is removed in fragments’ or by injecting the unborn baby’s heart with potassium chloride. According to BPAS, it can subsequently ‘take several hours for the fetal heart and movement to stop’.

No doubt in the coming weeks, the Government will be asked to extend its use of fetal painkillers to all invasive procedures in utero, including terminations. But from what gestational age will they consider and will they err on the side of caution? Some studies have found evidence for the possibility of fetal pain at 15 weeks gestation. There is still enough time for the current NICE Consultation on Terminations, which is due to be published later on this year, to amend current advice that fetal analgesic such as fentanyl be given prior to a late term abortion. The Department for International Development, who rely on the RCOG for their abortion guidance, should also consider funding for fetal painkillers for the late term abortions that the UK funds overseas.

There is also still time for clinical guidelines to be amended in the Republic of Ireland for late term abortions. It was only a few months ago that, to their shame, in the Dáil members of the Irish Parliament laughed at the suggestion of fetal pain relief and the amendment was dismissed, apparently without having checked for evidence.

Additionally, there must be extra support offered to mothers and relatives who trusted and followed the Government advice that their unborn baby will not feel a thing. Even without an official response, there are excellent charities in the UK who specialise in post abortion counselling such as We Are Open, Rachel’s Vineyard and ARCH.

So, after three decades of lobbying by clinicians, mothers, politicians and pro-life groups, the Department of Health now recognise fetal pain and recommend the use of fetal analgesia from at least 20 weeks gestation – a victory for both women and their unborn babies. However, in doing so, they unearth a truth that RCOG has spent thirty years denying, covering up and burying.

Surely in order to achieve the best patient care and to restore trust, the way forward now is for a comprehensive, fully transparent review around fetal awareness by a multidisciplinary team that includes expertise in paediatrics, fetal surgery, neurology and anesthesia. Having established the scientific evidence, they should use this to inform a compassionate clinical approach and recommend a start point for fetal analgesia that errs on the side of caution.

James Evans is a biology teacher with a background in genetics

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