Respecting women's rights and fetal value: reflections on the question of fetal anesthesia.

Earlier this year, Senator Sam Brownback, a Republican from Kansas, introduced the Unborn Child Pain Awareness Act (S.51).

The introduction of legislation by those opposed to legal abortion that would require doctors to not only inform women that fetuses post-20 weeks might feel pain and to offer women the option of anesthesia for the fetus, but also to do so in ways that were profoundly insensitive to women, made us aware of the medical discussion that was going on about this issue. However, before we could decide what position we might have on any specific piece of legislation, we needed to better understand the science and develop an ethical position on the matter.

Having done that to the extent possible (data on this matter is limited and more suggestive than definitive), we have come to the following conclusions:

1. The question of whether or not fetuses can feel pain in what is best described as a "gray zone" (20-26 weeks) is not "junk science," but a legitimate area of scientific inquiry with medical specialists, who have no axe to grind regarding abortion, working to figure this out. The impetus comes primarily from those engaged in fetal surgery as well as in the field of pain studies and fetal development. At present, there are those who believe it is possible that fetuses about 20 weeks' gestation might feel pain and those who believe it is not possible. Much of the speculation depends on how one defines pain, definitions that are themselves speculative.

We have concluded that it is possible but not probable that fetuses in the range of 20-26 weeks experience pain, and that even that possibility should lead us to act with caution and aim to diminish or eliminate possible fetal pain during abortion.

2. In spite of serious attempts to find out if fetal anesthesia represented any significant risk to women's health, we have been unable to get concrete responses to this question from experts. It has been indicated that the low number of cases in which fetal anesthesia has been administered makes it difficult to answer this question. Speculation runs in the direction of minimal risk, given the small amount of anesthesia used. Some fetal surgeons believe the anesthesia given the woman crosses the placental barrier; others disagree. Some fetal surgeons provide anesthesia for the fetus; others do not.

We support federally funded research into this matter for both fetal surgery and abortion.

3. In our experiences in the provision of abortion services, a significant number of women who had decided to have an abortion were interested in knowing about the fetus. They asked about fetal size, level of development and awareness and asked: "Will my fetus (or baby, the term we have heard women use most often) feel pain?"

4. We are guided by several values: first, the belief that women should be fully informed about all aspects of the abortion they are seeking and that informed consent means more than a description of the medical procedure and the risks and complications. It should include relevant biological, psychological and ethical information, which includes accurate information about the fetus. We believe women should be presented with the range of options for types of procedures and anesthesia, with the decision left to the woman. For example, while it is true that complication rates from abortion where women receive local anesthesia are lower than where general anesthesia is provided, we believe women should be given the information and the option.

We think informing women of the state of the medical discussion on fetal pain, the various opinions about this and allowing them to choose whether or not they want anesthesia for the fetus is consistent with our values regarding informed consent.

Our second commitment is to compassion and the alleviation of suffering and to abortion provision that is as physically and emotionally as painless as possible for all concerned.

We draw two conclusions from this: first, that fetal anesthesia should be available if, after being informed of the possibility that fetuses feel pain, women choose it. Second, that women need to be provided with this information in ways that are sensitive to their mental health needs and emotional state at that time. The requirement of sensitivity to women's feelings should not lead to the assumption that women cannot handle this information or to an overly protective approach in which the information is withheld.

We are also committed to the integrity of the relationships between health care providers and clients and to the client's right to privacy. Thus, the ways in which the medical profession and law deal with how this information will be provided and the extent of professional or government oversight of individual implementation strategies are important to us.

Should there be standards of care or legislation related to this matter, we think they need to protect that privacy and respect the legitimate need for implementation strategies that vary according to the needs of each woman. At the same time, we do not believe that medical privacy is the highest of the values to be considered in this matter and would not use this argument as a way of opposing the legislation.

5. Based on the position outlined above, we strongly urge the professional organizations involved in the provision of abortion services to adopt standards of care that honor these principles.

6. At the same time as we support a prochoice position that reflects concern for the fetus as well as for our primary commitment to women's rights, we believe it is time for those who are opposed to abortion to work in ways that also acknowledge women's rights and values. In that context, we note several major problems with the legislation that has been introduced by Senator Brownback, who is opposed to abortion in almost all circumstances:

a. While Senator Brownback seeks to offer fetal anesthesia to mitigate pain that a fetus may feel during an abortion procedure at or after 20 weeks, S.51 presents unbalanced research findings as assumption of fact. While CFFC believes that the possibility of fetal pain should lead us to act with caution and aim to diminish or eliminate possible fetal pain during abortion, we also believe that it is vital that any potential legislation presents an accurate presentation of medical evidence and does not selectively present evidence to pursue a political agenda.

b. The bill includes no provision to provide funding for fetal anesthesia, and thus undercuts the ability of women, once informed of possible pain, to actually choose anesthesia. We strongly urge the sponsors to include a provision for funding.

c. The bill does not reflect the same sensitivity for women seeking abortions or the health care professionals that provide them as it does for fetuses. Its provisions for a specific "speech" to be read to women and over-zealous use of written consent forms violates the most fundamental principles of patient care and the dignity of human persons. Each woman is a unique individual and doctors must be able to make judgment calls about how and when to present information to women. We urge the sponsors to remove any requirements for a predetermined speech.

d. The bill's single-minded focus on the fetus to be aborted is a disservice to other fetuses. We urge the sponsors to include fetal surgery and childbirth as points at which women would be informed of possible pain and also be offered the option of government-funded fetal anesthesia, so long as such anesthesia does not present a significant health risk to the fetus or woman.

e. The sponsors should eliminate civil sanctions against doctors related to the implementation of the bill. Such penalties are more appropriately a matter for the accrediting bodies for doctors, nurses and counselors. Civil sanctions also compromise the doctor-patient relationship by instilling fear in the doctor that even appropriate behavior will be misinterpreted by courts.

We recognize that the issue of whether or not fetuses might feel pain and what should be done about it is complex. Each of the points we raise above leads to many other questions, comments and ideas and to different conclusions about what is ethically required or whether there is a role for legislation at all. We have chosen to focus on and stress the overarching principles most important to us and the messages that would flow from them rather than on a legal approach. While we recognize that with legislation, the devil is in the details, and we respect others' need to focus on those issues, our interest is to express our values and vision clearly and forcefully.