Viability, Fetal Pain, InUtero Surgery, and Roe v. Wade.

Editor's note. The following is excerpted from the testimony of Dr. Jean A. Wright, presented at a Senate Judiciary Committee hearing that took place January 21. Dr. Emery is an Associate Professor of Pediatrics and Anesthesia at Emory University School of Medicine in Atlanta.

Mr. Chairman and members of the committee. My name is Jean A. Wright, M.D., M.BA. I am a practicing pediatric intensive care physician. I am board certified in pediatrics, anesthesia, and in both sub-boards of critical care medicine. I would like to focus my remarks today from the perspective of a practicing pediatrician and clinical investigator. I was a pre-medical student in 1973, and my own personal career in medicine since then, in many ways, parallels the changes that have taken place since the Roe v. Wade decision.

Although I have spent the majority of my career in the academic medical center, the knowledge available to me today as a practicing clinician is as available to all physicians and to much of the public as well (due in part to the Internet). I am speaking for myself, and not on behalf of any organization.

I would like to focus my remarks on the changes we have seen in the field of pediatrics, particularly the areas of neonatology, surgery, anesthesia, and intensive care. Medical knowledge in those areas provides a new standard of science upon which a very different conclusion might be reached if Roe v. Wade were decided in 1998, rather than the limited information that was available in 1973.

The Science of Neonatology: A New Definition of Viability for the Premature Infant 

In 1973, neonatology was in its early years as a separate subspecialty of pediatrics. The understanding of the physiology of the pre-term infant, and the equipment, medications, physicians, and specialized units available to care for them were present, but limited or primitive. By contrast, today there are thousands of neonatologists, hundreds of neonatal intensive care units, and breaking discoveries in the world and womb of the developing fetus and neonate....

In 1973, the scientific discussion heavily focused on the issues of fetal viability. At that time, the common understanding was that infants born before 28 weeks could not survive. Today, that age of viability has been pushed back from 28 weeks to 23 and 24 weeks. And some investigators are working on an artificial placenta to support those even younger.

In fact, while the number of children that are born and survive at 23 to 28 weeks gestation are still a minority of the infants in a NICU, they are common enough that the colloquial term "micro-preemie" has been coined to describe them, and an additional body of neonatal science has grown to support the care of the very premature infant. So in 25 years, we have gone from a practice in which infants once thought to be nonviable are now beneficiaries of medical advances that provide them with every opportunity to survive.

The Science of Anesthesia: A Better Understanding of the Development of Pain Perception

1. The new knowledge of the development of pain in the fetus.

... Several types of observations speak for the functional maturity of the cerebral cortex in the fetus and neonate. First are reports of fetal and neonatal EEG patterns, including cortical components of visual and auditory evoked potentials, that have been recorded in pre-term babies of less than 28 weeks gestation. Cortical evoked potentials to somatosensory stimuli (touch, pain, heat, cold) were also recently documented in pre-term neonates from 26 weeks gestation.

Ultrasonographic findings report specific fetal movements in response to needle punctures in utero (Robinson and Smotherman, 1992; Sival, 1993). Moreover, a controlled study of intrauterine blood sampling and blood transfusions in fetuses between 20 and 34 weeks of gestation showed that hormonal responses that were consistent with fetal perception of pain, and were correlated with the duration of the painful stimulus (Gianna-koulopuolos et al., 1994).

Pre-term neonates born at 23 weeks gestation show highly specific and well-coordinated physiologic and behavioral responses to pain, similar to those seen in full-term neonates, older infants, and small children (Pain in Neonates, Anand and McGrath, 1993).

All of the scientific references I have just made are from research breakthroughs in the last 10 years. This information was not available in 1973. As a result of this newly emerging understanding of fetal pain development, Anand and Craig, in a 1996 editorial in the journal PAIN, called for a new definition of pain, a definition that is not subjective, and that is not dependent on the patient's ability to provide a self-report.

2. Increased sensitivity to pain in pre-term infants.

Contrary to previous teachings current data indicate that pre-term neonates have greater pain sensitivity than term neonates or older age groups. Several lines of scientific evidence support this concept....

[S]tudies ... indicate the presence of the pathways needed for the conduction of pain, and a lower pain threshold in pre-term neonates, with the occurrence of further decreases in pain threshold following exposure to a painful experience (Fitzgerald).

The Science of Pediatric Surgery and Pediatric Anesthesia: New Concepts of Fetal Surgery and Perinatal Hospice

In the early 70s, many pre-term infants were considered too ill to tolerate the effects of anesthesia in order to undergo their needed surgery. Even by the early 80s (the time I entered my first years as a pediatric anesthesiologist), pre-term infants still received minimal anesthesia in the operating room and NICU. It wasn't until two landmark articles published in 1987 ... that the practice of pediatric anesthesia began to change broadly.... Today we are the beneficiaries of an enormous fund of new medical knowledge, and I believe we should incorporate that into our approach to protecting the life of the unborn.

Furthermore, places such as the University of California, with its Fetal Surgery Center, are doing just that. Exciting surgical advances which allow for the surgeon to partially remove the fetus through an incision in the womb, fix the congenital defect, and then slip the "pre-viable" infant back into the womb should make us reconsider the outcome and viability of many pre-term infants, particularly those with challenging congenital defects.

And should a family be stricken by the terrible news that their anticipated newborn has a condition that is likely to be fatal upon delivery, the concept of "perinatal hospice" is now available. Many grieving parents have relayed to me how precious those few hours were when they held their newly delivered baby in their arms before it died. For a few hours, they were a family. The family was able to embrace its newest member, celebrate its short life, and then move on to the grieving stage. Just as adult hospice programs have helped many of us deal with the last days and hours of a loved one's life, hospice care in the NICU can bring meaning to a very dark hour in a family's life.

The Changes in Public Attitude on Abortion: Decreased Total Numbers and Decreased Support

Popular polls and population surveys indicate that the country has changed its opinion regarding abortion. As reported ... in the Journal of the American Medical Association, the number of abortions in this country has decreased. In the Atlanta Journal, on January 16, they report that since 1989, "supporters of generally available legal abortion have slipped to 32% from 40%, ... and those who said abortion should be available [but under more restricted circumstances] have increased to 45% from 40%" in 1989 (quoting a New York Times/CBS News poll). Perhaps one of the many reasons that have led to these changes in public opinion is the overall concern our citizens have demonstrated towards other vulnerable segments of our population now is being applied to the unborn child....

Conclusions

The scientific literature reviewed above and my clinical experience in the delivery of anesthesia and the care of critically ill and injured children lead me to believe that:

1. Many infants considered nonviable in 1973 are viable in today's world of advanced neonatal care.

2. There is a growing body of literature regarding the care needed for the survival of the "micro-preemie."

3. The anatomical and functional processes responsible for the perception of pain are developed in human fetuses that may be considered candidates for abortions, particularly late-term "partial-birth abortions." At this stage of neurologic development, human fetuses respond to the pain caused by needle puncture in utero in a similar manner as older children or adults, within the limits of their behavioral repertoire.

4. The threshold for such pain perception is lower than that of older pre-term newborns, full-term newborns, and older age groups. Thus, the pain experienced during abortions by the human fetus would have a much greater intensity than any similar procedures performed in older age groups.

5. Current methods for providing maternal anesthesia during "partial-birth abortions" or other forms of abortion are unlikely to prevent the experience of pain and stress in the human fetuses before their death occurs, particularly those by partial decapitation.

6. New techniques have allowed some forms of fetal surgery to provide a more promising outlook for children previously thought to have life-threatening congenital deformities.

7. Our understanding of the psychosocial needs of the family are better now, and we offer perinatal hospice care as a way of bringing meaning and purpose to a very dark time in the life of a family.

The science referred to in this presentation is a reflection of the science of the 1980s and 1990s. The medical profession did not know this in 1973. Those who made the Roe v. Wade decision did not know it. But history constantly reveals a pattern of how difficult it is for society to change paradigms once believed....

Today we are hearing evidence, both medical and legal, that was not available to our counterparts in 1973. We cannot change the [past] ramifications of their decision, but we can make better and more informed decisions today. Just as the incoming tide raises the level of the water in the harbor and in doing so all the beats rise to the same new level, so should we allow the tide of new medical and legal information to serve as a tide to raise both our medical and legal understanding of the unborn, and in doing so, lead us to making better decisions for this vulnerable population.