In March, the state of Utah passed into law a requirement that a physician who performs an abortion at 20 weeks’ gestational age or older must administer “an anesthetic or analgesic to eliminate or alleviate organic pain to the unborn child.” The law, the first of its kind in the country, once again thrusts the concept of fetal pain into the limelight and raises questions for physicians about the practice of providing pain relief to a fetus.
The law, known as the Protecting Unborn Children Amendments, has been called a “message bill” sponsored by pro-life state Sen. Curtis S. Bramble and signed by pro-life Gov. Gary Herbert, both of the Republican party. However, Utah is not alone in its stance on fetal pain; according to the Guttmacher Institute, a nonprofit reproductive health policy and research organization, 12 states ban abortion at 20 weeks’ gestational age or older on the grounds that the fetus can feel pain at that point in gestation.
Those in favor of the law say it protects the fetus. Those against it say the law is founded on nonmedical, biased positions.
What Is the Science?
The debate is clearly drawn by long-hardened political opinions, but the science of when a fetus can feel pain is directed by the development of the fetal cerebral cortex, which one might think would be beyond interpretation. Not so.
Jennifer Popik, a spokeswoman for National Right to Life (NRTL), stated in an email: “By 20 weeks after fertilization, all the physical structures necessary to experience pain have developed. Unborn children at 20 weeks’ fetal age react to painful stimuli, and their hormonal reactions consistent with pain can be measured. For the purposes of surgery on unborn children, fetal anesthesia is routinely administered and is associated with a decrease in stress hormones compared to their level when painful stimuli are applied without such anesthesia.”
To support this assertion, NRTL points to research that shows a fetus at 20 weeks’ gestational age will react to painful stimuli by recoiling, for example; that pain receptors are present in the fetus; and that nerves are linked to the brain’s thalamus and subcortical plate by no later than 20 weeks. The group maintains a website with a listing of citations (www.doctorsonfetalpain.com), many of which discuss early reactions to painful stimuli.
However, the American Congress of Obstetricians and Gynecologists (ACOG) vehemently disagrees with the conclusions of these findings. Mark S. DeFrancesco, MD, MBA, president of ACOG, has issued his own statement on the topic, maintaining that “robust scientific evidence has thoroughly discredited the concept of fetal pain at 20 weeks of gestation. This is not a matter that is subject to interpretation; rather, it is directly related to the natural development of the fetus’s brain and nervous system, which do not have the capacity to process, recognize, or feel pain during the second trimester.”
Perhaps the most seminal work on fetal pain is titled “Fetal Pain: A Systemic Multidisciplinary Review of the Evidence” and published in JAMA (2005;294:947-954). The article’s authors assert: “The capacity for conscious perception of pain can arise only after thalamocortical pathways begin to function, which may occur in the third trimester around 29 to 30 weeks’ gestational age. … Tests of cortical function suggest that conscious perception of pain does not begin before the third trimester. Cutaneous withdrawal reflexes and hormonal stress responses present earlier in development are not explicit or sufficient evidence of pain perception because they are not specific to noxious stimuli and are not cortically mediated.”
ACOG, which represents 58,000 OB-GYNs and women’s health practitioners, points out that its counterpart in the United Kingdom, the Royal College of Obstetricians and Gynaecologists (RCOG), reached conclusions that are similar to those of the JAMA authors in its 2010 publication, “Fetal Awareness: Review of Research and Recommendations for Practice”:
“In reviewing the neuroanatomical and physiological evidence in the fetus, it was apparent that connections from the periphery to the cortex are not intact before 24 weeks of gestation and, as most neuroscientists believe that the cortex is necessary for pain perception, it can be concluded that the fetus cannot experience pain in any sense prior to this gestation. After 24 weeks there is continuing development and elaboration of intracortical networks such that noxious stimuli in newborn preterm infants produce cortical responses. Such connections to the cortex are necessary for pain experience but not sufficient, as experience of external stimuli requires consciousness.”
The RCOG report also points to increasing evidence that “the fetus never experiences a state of true wakefulness in utero and is kept, by the presence of its chemical environment, in a continuous sleep-like unconsciousness or sedation. This state can suppress higher cortical activation in the presence of intrusive external stimuli.”
The Complexity of Pain
Fetal pain proponents state that the use of anesthesia during surgery on unborn fetuses that are not being aborted is evidence that physicians are mitigating fetal pain. The JAMA article refutes this assertion, stating that anesthesia is used for other purposes unrelated to pain reduction, such as to inhibit fetal movement and achieve uterine atony to improve surgical access to the fetus and prevent contractions or placental separation.
“Pain is a complex phenomenon,” said Clifford Gevirtz, MD, MPH, medical director at Somnia Anesthesia, in New Rochelle, N.Y.; an attending anesthesiologist at Planned Parenthood of New York City; and a member of the advisory board of Anesthesiology News. Dr. Gevirtz also is board certified in pain management. “It’s not a single nerve firing; it is rather the interpretation of stimuli from the periphery all the way up to the brain. If the brain is not developed, you’re not getting the same concept of pain that an adult or child would think of.”
Dr. Gevirtz stated that developmental embryology clearly shows that the connections to the brain required for pain are not made until 26 weeks or thereafter and that actions of the fetus, such as recoiling, are reflex arcs. Studies also indicate that pain is a subjective and emotional experience that requires consciousness for the recognition of something as painful.
“This [law] has nothing to do with safety,” said Dr. Gevirtz. “This is just another means of increasing costs and decreasing access.”
Abortions at 20 weeks’ gestational age are rare, accounting for about 1.2% of all abortions performed, according to the Centers for Disease Control and Prevention’s voluntary reporting data. Often these are wanted pregnancies that are being terminated because an ultrasound at 18 to 20 weeks’ gestation has uncovered a fetal anomaly that affects the fetus’ viability. Because of the emotional and physical discomfort of the procedure, some form of pain management for the woman undergoing the abortion is acceptable and standard practice. How to administer anesthesia to the fetus is unclear.
Uncertainty Over Fetal Anesthesia
Manuel Vallejo, MD, president of the Society for Obstetric Anesthesia and Perinatology and chair of the Department of Anesthesiology at West Virginia University, in Morgantown, finds the concept of “fetal anesthesia” problematic because even if a woman is required to receive general anesthesia, most medications will cross over to the fetus while some will not, “in varying degrees,” so there’s no way to regulate the procedure entirely. Not only would more intense forms of anesthesia, such as general anesthesia, be more costly and require a longer recuperation period for the woman, but Dr. Vallejo expressed concern that the risks of general anesthesia to the woman would be much greater.
“The risk of a difficult airway is increased and the risk of aspiration is increased,” he said. “In fact, the risk of a difficult airway intubation or failed intubation is quoted to be one in 2,500 in a normal adult and more like one in 250 in a pregnant mom.”
He recommends placing the care of the woman first, using monitored anesthesia care supplemented with paracervical block in conjunction with light sedation, which maximizes the benefits and minimizes the risk to the woman while providing appropriate anesthesia.
“If you can take care of the mom by not having her feel any pain, by not having her have a stressful response to the procedure, such as high blood pressure and a high heart rate, that’s what’s best for the fetus, too,” he stated. “What’s best for the mom is what’s best for the fetus, and that’s a combined medical decision between the patient and the physician.”
Leah Torres, MD, MS, an OB-GYN and reproductive health specialist based in Salt Lake City, agrees. Dr. Torres is an outspoken opponent of Utah’s new law. She states that before its passage, when conducting a 20-week abortion, she would routinely administer analgesia or anesthesia to the patient, namely, the mother. This consisted of day-before local anesthesia and cervical laminaria placement and then local anesthesia with moderate IV sedation the day of the abortion monitored by a nurse in an outpatient clinic.
Now, she is uncertain what her procedure must be.
“What is a fetal dose of fentanyl? What is a fetal dose of analgesia? And how do I administer it? Through the IV of the mother? Do I administer it directly into the amniotic cavity through the abdominal wall of the mother?” Dr. Torres asked. “As far as I’m concerned, they’re imposing experimentation on pregnant people because there’s no standard of care for this.”
The confusing language of the Utah law gives weight to the idea that its aim is to limit abortion access, not to advance medical best practice. This seems most apparent in the law’s amendment of the informed consent requirement, which strikes down language that previously mandated a woman be informed of the medical risks associated with administering an anesthetic or analgesic. Now, a woman either consents to the fetus receiving analgesia or anesthesia or she does not undergo an abortion.
In an op-ed she wrote for CNN, Dr. Torres recalled how she watched a baby die during labor because the patient did not give consent for an emergency cesarean delivery. Under the current Utah law, a woman forfeits that same autonomy in the case of an abortion. Pro-life advocates state this is a protection of the autonomy of the fetus; Dr. Torres said it is a violation of the autonomy of her patient, the woman.
The Utah law will likely affect only a relative few abortions in that state, with an article in The New York Times noting that only 17 abortions in Utah were performed in all of last year at or beyond 20 weeks’ gestation. One thing is certain: The debate over the advent of fetal pain will continue. In the meantime, the Utah law is on the books.