House of Commons - Science and Technology

Select Committee on Science and Technology Twelfth Report

2 Upper gestational limit

20. The upper gestational limit on most abortions in the UK is 24 weeks 0 days.[14] There are no time limits in cases where, if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped, or where termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman or to save her life, or if the continuance of the pregnancy will involve risk to the life of the pregnant woman greater than if the pregnancy were terminated.[15] We have approached the issue of the upper time limit in three areas that are informed by scientific, medical and social scientific evidence. These areas are: neonatal survival rates and foetal viability, foetal consciousness and pain, and the reasons why women present for late abortions.

Neonate survival rates

DEFINING VIABILITY

21. The Abortion Act 1967 originally stipulated a 28 week upper gestational age limit on abortions. That is the same age that was used in the Infant Life (Preservation) Act 1929 as "prima facie proof that […] a child was capable of being born alive". In the 1980s, the Royal College of Obstetricians and Gynaecologists (RCOG) set up a working party to look at the survival rates of neonates born before 28 weeks. The working party's report, Fetal Viability and Clinical Practice (1985), noted significant progress in neonate survival rates and recommended that the age at which a foetus should be considered viable should be 24 weeks.[16] In 1990, Parliament decided, on a free vote, to amend the Abortion Act 1967 to lower the time limit from 28 to 24 weeks.

22. The term 'neonatal viability' has been subject to a range of interpretations. At one extreme a baby could be defined as viable simply because it was born showing signs of life, for example, breathing or a heart beat, even if it were, say, an anencephalic newborn which lacked most of the cerebral hemisphere but was capable of using its lungs.[17] At the other extreme, it could mean that a baby is capable of surviving through childhood with no or minimal disabilities.[18]

23. This range of definitions raises related problems in pinpointing an 'age of viability'. The age of viability could be:

the minimum gestational age at which any neonate could survive;
the gestational age at which a particular neonate could survive; or
the gestational age at which the majority of neonates could survive.[19]

24. It is important to distinguish between foetal viability and neonatal viability. Neonatal viability is based on survival rates among live-born infants, whereas foetal viability expresses survival in relation to foetuses who are alive and variable times during the pregnancy.

25. The national EPICure study from 1995 (see paragraph 31) reports that at 20-22 weeks 89% of babies are born dead, while at 23 weeks, 61% of babies are born dead, dropping to 40% at 24 weeks.[20] Of these, some would have been dead at the commencement of labour (intra-uterine death), and can not be included in the denominator for foetal survival, and the rest would have died during labour. EPICure 1 did not distinguish these two groups, so we can only conclude from EPICure 1 that foetal survival rates are much lower than neonatal survival at 22 weeks, significantly lower at 23 weeks and still considerably lower at 24 weeks.

26. EPICure has traditionally been reported as the proportion of neonates who survive out of those born alive (or who have been admitted to NICUs), but not including those who died during labour. This is therefore neonatal viability, not foetal viability.

27. We took evidence from Professor Neil Marlow, President of the British Association of Perinatal Medicine (BAPM), who told us that viability "is the capability of surviving the neonatal period and growing up into an adult".[21] Professor John Wyatt, Professor of Neonatal Medicine at University College London, agreed: "it is the ability to survive and grow up into adult life with optimal medical care".[22]

28. This use of viability is not the same as the legislative language: 'capable of being born alive'. However, as is pointed out in the BMA's paper on Abortion time limits,[23] some legal cases have also suggested that viability does not equate solely with being born alive.[24]

29. Gestational age is not the only factor that determines the likely outcome of an extremely preterm birth. Factors such as birth weight, whether it is a multiple pregnancy and sex of the foetus also affect the likely outcome.[25] Further, there is always a problem that development is continuous and varies from individual to individual, so any demarcation is bound to be arbitrary.[26] The BAPM uses the concept of a 'threshold of viability', which it puts between 22 and 26 weeks of gestation in the developed world, and, quoting the WHO, between 22 and 28 weeks in the developing world.[27] The Nuffield Council on Bioethics in their recent report uses the same time period and describes it as "borderline of viability".[28]

EVIDENCE OF MEDICAL ADVANCES

30. Between 1967 and 1990 there were clear advances in neonatal care which ultimately led to the reduction of the 28 week gestational upper limit to the current 24 week limit. Since 1990, improvements have continued to be made, and the nature of these improvements are discussed below.

National and regional studies

31. The most comprehensive analysis of the survival rates of extremely preterm babies was conducted by the EPICure group, which is led by Professor Kate Costeloe of Homerton Hospital in London, Dr Alan Gibson of the Royal Hallamshire Hospital in Sheffield and Professor Neil Marlow of the University of Nottingham. The EPICure study looked at every baby born at 25 weeks 6 days or less gestation in the UK and Ireland between March and December 1995. The health of each child was then assessed at 1 year, 2½ years, 6 years and 10 years. The following table shows the immediate and 6-year outcomes of premature births, averaged across the UK and Ireland:Table 2: EPICure - Summary of Outcomes among Extremely Preterm Children

Outcome 22 weeks
(N=138)
23 weeks
(N=241)
24 weeks
(N=382)
25 weeks
(N=424)

Number (per cent)

Died in delivery room 116 (84) 110 (46) 84 (22) 67(16)

Admitted for intensive care 22 (16) 131 (54) 298 (78) 357(84)

Died in Neonatal Intensive Care Unit 20 (14) 105 (44) 198 (52) 171(40)

Survived to discharge 2 (1) 26 (11) 100 (26) 186(44)

Deaths post-discharge 0 1 (0.4) 2 (0.5) 3(0.7)

Lost to follow-up 0 3 (1) 25 (7) 39(9)

At 6 years of age:

Survived with severe disability 1 (0.7) 5 (2) 21 (5) 26(6)

Survived with moderate disability 0 9 (4) 16 (4) 32(8)

Survived with mild disability 1 (0.7) 5 (2) 26 (7) 51(12)

Survived with no impairment 0 3 (1) 10 (3) 35 (8)

Source: Marlow N, D Wolke, M Bracewell, M Samara, for the EPICure Study Group, "Neurologic and Developmental Disability at Six Years of Age after Extremely Preterm Birth", New England Journal of Medicine, vol 352 (2005) pp 9-19

It needs to be noted that this table gives two values for neonatal viability (survival): neonatal survival at birth where the denominator is all those born alive, and neonatal survival from NICU where the denominator excludes those who die before admission. Foetal viability is not given in the above table (but see paragraph 25 above).Table 3: Effect of choice of denominator on neonatal survival statistics

Definition Denominator Survival at 22 weeks Survival at 23 weeks Survival at 24 weeks

Neonatal survival from ITU Admissions to NICU (includes transfers in of "outborns") 10% 20% 33%

Neonatal survival at birth All live births (includes those who die in delivery room) Less than 1% 11% 26%

Foetal survival All births where foetus alive at onset of labour Less than 0.1% Approx 4 to 7% Approx 13 to 20%

Source: EPICure 1.

Note: 24 weeks means 24 weeks 0 days to 24 weeks 6 days

32. Professor Neil Marlow warned us not to be too reliant on these 1995 data to determine the current survival rates of very premature babies born in the UK: "I think the survival rates are becoming out of date".[29] This view is echoed by the Nuffield Council on Bioethics which says that the 1995 data are the best available in terms of disability but less helpful in respect of survival.[30] Professor Marlow went on: "What we have seen, certainly in the Trent region of the UK, are significant trends in [improved] survival at 24 weeks but we have not seen those at 23 weeks".[31] The RCOG told us that Trent survey data suggest that "survival in the last 10 years has risen to 40% of neonatal intensive care admissions at 24 weeks, although there has been little improvement in survival at gestations below this".[32] Figure 4 shows neonatal survival at 22-26 weeks gestation by week from the EPICure study and from The Trent Neonatal Survey. In order to make like-for-like comparisons, the EPICure data is that reflecting survival rates for babies admitted to NICUs, and thus excluding babies who died in the delivery room but were alive at the start of labour, which is why the figures are higher than for neonatal viability at birth.[33]

Figure 5: Combined EPICure and Trent Neonatal Survey data on survival by gestation week

Source: Professor Neil Marlow, with permission (see fn 34)

33. To assess recent advances in neonate survival on a national level, a new EPICure study is underway, dubbed EPICure 2, which will assess outcomes for every baby born at 26 weeks 6 days of gestation or less in England during 2006. The new study will include more variables than the original, including a breakdown of newly developed geographically-based neonatal networks and of individual neonatal intensive care units (NICUs). Although the results of this study are not yet published or peer-reviewed,[34] we have been told that they show considerable improvements at 24 and 25 weeks of gestation. However, we were also told by the BAPM that:

early indications are that, for infants below 24 weeks of gestation, the survival to discharge home was very similar between the cohort of 1995 and that of 2006. Headline figures of approximately 10-15% survival were found. This is important for those working in perinatal care, who in general, do not believe that the survival for babies born below 24 weeks of gestation has improved to such an extent that they would see any value in redefining the lower limit of viability. Naturally a small number of these infants below 24 weeks of gestation do survive but BAPM would be concerned that a lowering of the legal definition of viability would imply that quality survival has improved for infants below the present limit of 24 weeks. The evidence for the UK population, to date does not support this.[35]

34. This view was confirmed in oral evidence by Professor Neil Marlow who is one of the lead investigators of the EPICure study.[36]

35. Caution needs to be applied to unpublished data (see footnote 34) but the least the Committee is able to conclude is that we have not heard any evidence from EPICure that survival rates below 24 weeks gestation have significantly improved and we draw this to the attention of the House.

36. We understand that the EPICure 2 results will not be published for some time. It is unfortunate that the published data may not be available in time fully to inform debate in the House. We hope that the emerging findings are published as soon as possible.

Individual neonatal intensive care units and results from abroad

37. Professor Wyatt told us:

It is important to differentiate between two types of study. There is a kind of study that involves the testing of the outcome of an entire population, often a geographically defined population, so all the pregnancies in an area are enrolled and the outcome of those pregnancies, including the babies born at the limits of viability, is then assessed. There are other kinds of studies based at single centres and often centres of excellence in order to see the level of [survival] that is [possible] with optimal care.[37]

38. Of course it is the case that that the data from centres of excellence will be included within the national or regional studies and will in any event influence the average. Nevertheless, it is useful to explore whether there is evidence of significantly different outcomes and whether this is in any event a useful basis to guide public policy.

39. In his written evidence Professor Wyatt stated that "Data from a prospectively-defined long-term follow-up study at the Neonatal Intensive Care Unit at University College London Hospital has shown survival rates in the period 1996 to 2000 of 42% at 23 weeks and 72% at 24 weeks."[38] The reference given is to a 2004 abstract (Riley et al, 2004) which does not contain the data mentioned. Professor Wyatt also told us in oral evidence that the denominator in the Riley study was all live births,[39] but the denominator of that study was in fact admissions to NICU which will include transfers and exclude deaths in the delivery room (see below). In a further two memoranda to the Committee, Professor Wyatt clarified that the 42% survival figure for 23 weeks had not been published in a peer-reviewed journal and confirmed that it was not even in the abstract given as a reference.[40] He further explained that he had "for the benefit of the Committee" therefore gone back to reanalyse the data prospectively collected in 1996-2000 and excluded transfers and added back in deaths in the delivery room.[41]

40. These data therefore represent, according to Professor Wyatt, all babies that were born at UCLH, including those that showed signs of life but died before admission to the NICU, between 1996 and 2000:[42]Table 4: Survival rates at UCLH by gestation week

Gestational age
(completed wks)
Total born alive
at UCLH
Number survived
to 1 year of age
Percentage
Survivors

22 8 4 50%

23 13 6 46%

24 22 18 82%

25 26 20 77%

Source: SDA 38A

41. These impressive survival figures are higher than the national average but they illustrate a difficulty with data on extremely premature neonates at individual hospitals which is that there are very few births at these gestations and consequently the confidence we can place on the percentages is quite low. This is demonstrated very clearly in these data, where the chance of survival appears higher at 22 weeks than 23 weeks and at 24 weeks than 25 weeks, which is obviously not the case. As Professor Wyatt put it: "If you have a very small number, you have a large statistical error".[43]

42. During our evidence sessions, Hope Hospital in Salford was raised as a unit with particularly good survival at 23 weeks but we have not been able to establish a source -published or otherwise - for such a report.

43. A study by Hoekstra et al (2004) shows higher survival rates, but for a much larger sample size.[44] Medical records were examined of 1036 infants who were born at 23-26 weeks of gestation and were admitted to the Abbott Northwestern Hospital and Children's Hospitals and Clinics of Minneapolis between January 1986 and December 2000. The survival-to-discharge rates for the years 1996-2000 at 23, 24, 25 and 26 weeks were 66% (number of patients = 53), 81% (n = 97), 85% (n = 115) and 93% (n = 117). It is difficult to make a direct comparison between these results and the UK results since the denominator used in this study (admissions to neonatal ICU) is different from the denominator (which is all births where newborns show signs of life) used in the most commonly cited EPICure results. In this case, the authors have included 135 infants which were born at other units, for which information about the level of medical intervention offered post birth was not available, and according to evidence from the Trent Neonatal Survey, those 135 "outborn" infants are likely to be hardier than the average of the infants in the study as they have been judged fit enough to transfer and have survived the transfer.[45] The main difficulty is - as set out in below - that such studies from the US and Australia where there is a far greater centralisation of specialist care than in the UK, have confounding factors related to patient selection and possibly different inclusion criteria.

44. We consider all attempts to study and record survival and to inform policy as to foetal viability useful. However, in terms of policy-making, the EPICure study, supplemented in respect of neonatal survival from NICU by the published data from the Trent Neonatal Survey (TNS), has the following advantages over other claims:

a) Evidence-based policy should be based on carefully-designed, peer-reviewed studies. Such studies will have prospectively designed inclusion criteria, end-points and time periods and will include statistical advice to ensure their power to identify statistically significant findings is adequate. It is worth noting that large studies like EPICure and the TNS are prospectively designed in this way, go through the peer review process in order to obtain funding, and publications resulting from these studies have also been peer reviewed. This point is well put by Field and Draper in a very recent paper where they say:

Direct comparisons of neonatal outcomes at any level (unit, regional or international), require detailed validation and standardisation to ensure 'like for like' evaluation. Reported variation in neonatal performance may be either real or the result of one or more artefacts of the data collection. These issues need to be understood in order for an accurate interpretation to be made. [...] Problems arise when the question being addressed has been poorly framed or the data used to answer it has been inappropriately chosen. Comparisons using questions based on clearly defined standardised outcome measures and good quality prospective data collection are a much better way to proceed .[46]

b) It is clear from the numbers in the EPICure study that the breakdown of results from individual hospitals are usually too small to be statistically significant—this is demonstrated in the survival rate figures that we received for UCH. In the extreme case a hospital with one baby born at 23 weeks who survives will have a survival percentage of 100%. One set of triplets born at these gestations - who because of low birth weight have a very poor prognosis - will radically alter the success rate of a unit. The EPICure authors looked at this issue in some detail and while not ruling out a potential beneficial effect if there was a major rationalisation and centralisation of neonatal services, concluded that:

In 1995 only 15 hospitals had 10 or more intensive cots and, after postnatal transfer, ongoing intensive care for the infants in this study was provided by no fewer than 137 NNUs. Only 16 units reported >10 births within the gestational age range of the study during the 10-month period and only 8 had >5 survivors; the highest number in a single centre being 10. This emphasizes the impossibility, in the United Kingdom or Ireland, of making reliable predictions of survival and morbidity using data from a single institution and the need for aggregated data to provide reliable information for clinicians and parents.[47]

c) It seems difficult to identify a reasonable class of units that will be better performers since the Trent Neonatal Survey report in their 2006 report that once transfers were excluded there was no detectable difference between large units (like Nottingham and Leicester) and smaller units in overall survival below 29 weeks.[48] The EPICure study published in 2000 looked for differences in outcomes between large units and smaller ones and reported "There was no difference in survival between institutions when divided into quintiles based on their numbers of extremely preterm births or admissions." This is confirmed by studies designed to look for this effect published by the TNS team.[49]

The issues raised in the above three points have been thoroughly debated previously in the scientific literature. They are best summarised by the comments of Dr Elizabeth Draper, the Leicester epidemiologist, who responded to propositions from three individual units from across the world:

We do not agree with Ferriman et al that hospital based data are an acceptable alternative. The small numbers make the predictions far less accurate and the inevitable referral bias also has a marked effect on the results of each unit […] All three letters report survival rates higher than those from Trent. None provides data relating to the outcome of all babies, of the relevant gestation, alive at the onset of labour. This is essential if any comparison is going to compare like with like […] Variation in how these infants are defined and treated will, however, affect survival rates for "liveborn infants." In units where all liveborn infants are not necessarily admitted to neonatal units or seen by a paediatrician, the sickest infants may not be classified as liveborn, and survival rates will seem more favourable. We have recently reported data supporting this concept. This study showed that babies aged 28 weeks or less who had been transferred postnatally for intensive care had significantly better survival rates than predicted from scores for disease severity and better than infants whose whole course was in a tertiary centre. These seemed to be simply a selected group.[50]

d) In terms of assessing the viability of babies at particular gestational ages, the baseline that EPICure uses for the data, which is all babies showing signs of life at birth (neonatal viability at birth), is more appropriate than all babies admitted to intensive care (neonatal survival from NICU).

e) The issue of viability is informing the outcome of a nationwide UK policy (indeed criminal law) on abortion time limits and it seems appropriate when imposing such a task on the data to use national average data, rather than to select an individual unit with better figures in the year chosen or to use data from another jurisdiction.

f) As far as UK goes, the only data that has been published and peer-reviewed is the national and some of the regional survey data. The Science and Technology Committee has set a high store on the need for evidence underlying Government policy to be peer-reviewed and published and the same should apply to Parliament.

45. We therefore reach the conclusion that the national and regional surveys of outcomes for very premature neonates are the best basis for establishing the limit of foetal viability. We draw this to the attention of the House and invite members to consider our conclusions when they consider the best basis for determining foetal viability.

46. Having considered the evidence set out above, we reach the conclusion, shared by the RCOG and the BMA, that while survival rates at 24 weeks and over have improved they have not done so below that gestational point. Put another way, we have seen no good evidence to suggest that foetal viability has improved significantly since the abortion time limit was last set, and seen some good evidence to suggest that it has not. We draw this to the attention of the House and invite Members and the Government to consider our conclusion when deciding when a foetus becomes viable.

47. The Minister of State, the Rt Hon Dawn Primarolo MP, told us that the Government view on the relationship between the 24 week limit and viability was that:

In this very complex area with regards to time and viability, we are following the medical consensus, and that medical consensus still indicates that, whilst improvements have been made in care, at the moment that concept of viability cannot continually be pushed back in weeks: it is a matter of development and therefore survival rates.[51]

48. We make no conclusion on the legal upper limit for abortion but instead invite Members of Parliament to consider the role played by foetal viability, among other factors, in that decision and to consider our analysis.

Consciousness

FOETAL PAIN

49. We received written submissions on this matter from Dr Stuart Derbyshire. Professor Maria Fitzgerald, who appeared as an oral witness, is a recognised expert in neuro-developmental biology and has been successful in a number of grant applications to the MRC in this area.[52] Although we did not receive evidence from Professor Sunny Anand, nor did any of those originally submitting evidence refer to his work or publications, we did consider a review article co-authored by him which was published recently,[53] together with submission from Dr Stuart Derbyshire which offers commentary upon it and refers to Dr Anand's earlier work in this area.[54] We note that the main thrust of his important previous work has been to show neonates have better outcomes when provided with anaesthesia and analgesia during surgery and other stressful procedures and that noxious stimuli during gestation can have a detrimental impact on the long-term development of an infant; we have been unable to see the direct relevance of this work to the question of abortion.

50. Pain is "an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage".[55] We may never know whether foetuses feel pain. As Dr Stuart Derbyshire puts it: "Subjective experience, including pain, cannot be inferred from measures of anatomy, stress hormones and fetal movements because these measures do not account for the contents of experience in general, and of pain in particular".[56] However, there are a number of ways that we can infer whether a foetus feels pain. We raise three here: (1) the sensory pathways argument; (2) the chemically depressed awareness argument; and (3) the developmental psychology argument.

Sensory pathways

51. Dr Stuart Derbyshire put forward an analogy for pain:

Although the analogy is quite oversimplified, it is not unreasonable to think of pain as being similar to a fire alarm. The pain stimulus is the same as hitting the red button, the electric cable to the alarm is the same as the connection between nerve endings and the brain and the alarm itself is the brain ringing out pain. Answering the question of whether the fetus feels pain can then be answered, in part, by considering the development of this 'alarm' system.[57]

52. He goes on to describe the development of the 'alarm system', which we have paraphrased:

a) Naked nerve endings that lie free in the skin begin to form from about 7 weeks gestation; these cells do not mature until 24-28 weeks gestation.

b) The spinal cord, the major 'cable' from the 'buttons' to the brain, does not mature until around 24-28 weeks.

c) Some projections from the immature spinal cord reach the thalamus (the lower 'alarm') of the brain at about 7 weeks gestation.

d) The very first projections from the thalamus towards the cortex (the higher 'alarm') are apparent from about 12-16 weeks gestation but these are projections into the subplate. The subplate is a 'waiting compartment' where fibers accumulate and mature before penetrating the cortical plate developing above.

e) Thalamic connections do not penetrate the cortical plate until 26 weeks gestation.

53. The RCOG set up a working party in 1996 to look at foetal pain and awareness. Although their 1997 report concluded that it was unlikely that pain could be felt before 26 weeks, it did point out that more research was required, including on the development of sensory pathways.[58]

54. It has been pointed out that foetuses do demonstrate 'stress responses' to invasive procedures. Increased production of cortisol and â-endorphin and the redistribution of blood towards vital organs have been reported.[59] However, Dr Derbyshire explains that these physiological changes

are elicited at the subcortical and brainstem level and do not require cortical input and thus do not provide evidence for pain experience. Cortisol and endorphin are significantly elevated during surgical procedures carried out under general anesthesia, and in brain dead patients during organ harvesting, despite cortical activation in these patients being profoundly suppressed.[60]

55. To put it another way, "the fetal stress response must not be used to imply that the fetus perceived pain at a conscious level".[61] We need to distinguish, as Lowery, Anand and colleagues put it, between conscious pain (which is perception of pain with an emotional response) and subconscious pain (which is a physiological stress response to a stimulus).[62]

THE CHEMICAL DEPRESSION OF AWARENESS

56. It may be that the sensory pathways argument is redundant. First, it is based on the assumption that the foetal brain works in the same way as an adult brain. This may not be the case: it may be that other structures in the brain participate in sensory awareness.[63] Second, evidence suggests that the foetus is heavily sedated by a cocktail of chemicals in the brain.[64] Professor Maria Fitzgerald explained to us that we know this from two areas of study:

One is from work on sheep foetuses and is by Professor David Mellor in Sydney, a huge body of work studying all of the hormones that are perfusing the brain in a foetal lamb and measuring brain activity over the whole gestation period. We know it as well from the work of Professor Lagercrantz at the Karolinska Institute who also measured equivalent hormones in human foetuses. There is very strong evidence that the foetus is effectively asleep. It is like you asking if a man who is deeply sedated feels the same as a man who is not. It is that kind of question.[65]

57. The fact that foetuses show reflex (not involving the cortex) actions—for example, physically recoiling or scrunching up the face at unpleasant stimuli—does not necessarily mean that foetuses are conscious or that the cerebral cortex is involved. Professor Fitzgerald provided an example that quadriplegics, whose connections between the spinal cord and the brain have been damaged so that they are unable to move or feel anything below the spinal cord lesion, will still recoil if someone puts a needle in their toe.[66]

DEVELOPMENTAL PSYCHOLOGY

58. The final argument may, in turn, make the previous two arguments redundant. Its basis is the distinction between conscious pain and subconscious pain, and that conscious pain can only be felt in the context of subjective experience. Dr Derbyshire puts it thus:

Pain is not merely the response to physical injury or disease but is a higher order experience including emotional, cognitive (thinking) and sensory components. It is not something that we experience raw and then interpret post-hoc. The interpretation is the experience. […] At birth and afterwards there is a massive increase in sensory input and this acts as a form of 'neuronal crowd control'. Repeated sensory input during this critical period of development results in generation and stabilization of functional brain circuits with unused pathways being eliminated. This internal organization of inputs helps the differentiation and creation of feeling so that the feeling of hunger, for example, can be separated from feelings of cold.[67]

RELEVANCE TO THE UPPER GESTATIONAL LIMIT

59. Foetal pain is obviously something that should be considered in clinical practice; for example, in 2001 the RCOG issued a letter to its members advising them that for all abortions at 22 weeks or more, the method chosen should ensure the foetus is born dead and to consider the instillation of anaesthetic and/or muscle relaxant agents beforehand.[68] The relevance of foetal pain to the upper gestational limit is based on the premise that pain is a marker of consciousness.[69] We conclude that, while the evidence suggests that foetuses have physiological reactions to noxious stimuli, it does not indicate that pain is consciously felt, especially not below the current upper gestational limit of abortion. We further conclude that these factors may be relevant to clinical practice but do not appear to be relevant to the question of abortion law.

60. We invite Members of Parliament, when considering the role, if any, of questions relating to pain, to clinical practice or abortion law, to consider our conclusions.

4-D IMAGES AND FOETAL CONSCIOUSNESS

61. 4D images are 3D images that move in real time. 4D images of foetuses, a technology pioneered by Professor Stuart Campbell among others, show incredibly detailed images of 12 week foetuses appearing to stretch, kick and 'leap', 18 week foetuses opening their eyes and 26 week foetuses appearing to scratch, 'smile', 'cry', hiccup, and suck. It has been suggested that these images have altered the public perception of foetuses in a significant way,[70] although this assumption has not been examined formally. We did not receive any written evidence from Professor Campbell, although we did ask some of our witnesses to comment on his work.

62. While 4D imaging is a useful technology in terms of identifying anatomical abnormalities,[71] there have been no published scientific papers marking a contribution of 4D images to the scientific understanding of the neurobiology of foetal development and consciousness. Professor Maria Fitzgerald, from University College London, told us that "In terms of 4D imaging, I do not think it has told us anything about the development of the nervous system. An image of a body tells you nothing about the nervous system."[72] Professor Marlow added that "[4D imaging] is helpful in terms of prediction of abnormality and therefore one is able to see structures that one would not see in ordinary, two dimensional, real time, 3D ultrasound. I do not think it tells us any more about foetal development than we probably knew already."[73] This position is further supported by Professor Wyatt: "at the moment I think the consensus is they do not add a great deal in terms of the science."[74]

63. We conclude that while new imaging techniques are useful tool in diagnosis of foetal abnormality, there is no evidence they provide any scientific insights on the question of foetal sentience. We invite MPs to consider our analysis when approaching this issue.

Reasons for late presentations

64. One of the key issues relating to the time limits on abortion is the reasons why women present for late abortions. The evidence we received on this issue was from the most recent survey, although it should be treated with caution since it has not been peer reviewed. However, it is undergoing the peer-review process and the full report, including the methodology, is available online.[75]

65. In this research, Dr Ellie Lee and colleagues argue that there are many factors that contribute to second trimester abortions. They found that 13 different reasons were selected by a fifth of the sample of 883 women who had terminated a pregnancy at 13 or more weeks.[76] These reasons were:Table 5: Result from survey on reasons for late presentation

Reason	Percentage
I was not sure about having the abortion, and it took me a while to make my mind up and ask for one	41
I didn't realise I was pregnant earlier because my periods are irregular	38
I thought the pregnancy was much less advanced than it was when I asked for the abortion	36
I wasn't sure what I would do if I were pregnant	32
I didn't realise I was pregnant earlier because I was using contraception	31
I suspected I was pregnant but I didn't do anything about it until the weeks had gone by	30
I was worried how my parent(s) would react	26
I had to wait more than 5 days before I could get a consultation appointment to get the go-ahead for the abortion*	24
My relationship with my partner broke down/changed	23
I was worried about what was involved in having an abortion so it took me a while to ask for one	22
I didn't realise I was pregnant earlier because I continued having periods	20
I had to wait more than 7 days between the consultation and the appointment for the abortion*	20
I had to wait over 48 hours for an appointment at my/a doctor's surgery to ask for an abortion	20
Respondents could give more than one reason *Adjusted for missed appointments

Source: SDA 02

66. There are a number of findings from this study, and others like it,[77] that are worth consideration:

a) many women who present for late abortions do so because they did not know they were pregnant or did not know that their pregnancy was as far advanced as it was;

i. abortions at over 18 weeks of gestation are particularly associated with women who take a long time to discover that they are pregnant;

ii. women who had an abortion at over 21 weeks had reached a gestation of at least 18 weeks 2.5 days prior to taking a pregnancy test, compared with 9 weeks of gestation for those who had abortions at 13-15 weeks;

b) many women present for late abortions because they struggle to take the decision to have an abortion.

67. The definition of a late presentation varies across Europe since different countries have different abortion time limits. It is worth considering whether a lower gestational limit "sharpens the mind"[78] of women considering whether to have an abortion. Dr Ellie Lee told us that she was not aware of any studies that showed that; however, different abortion laws create abortion tourism:

[J]urisdictions which have stricter controls around second trimester abortion generate abortion tourism. Lack of access to all sorts of reproductive health services creates tourism. Women travel to other countries. We know there is an inflow of women for example from France to this country for second trimester procedures.[79]

68. There have been reports of women going to Spain after 24 weeks although no figures are available.[80]

69. We believe that consideration of these matters and the production of guidance would be better enhanced by better collection of data relating to the reasons why women present for late abortions and how many women travel overseas for late abortions, and appropriate analysis of such data, with due regard to the need to protect the confidentiality of patients.

70. We invite Members of Parliament to consider what research has to say about the impact that an alteration on the upper time limit would have on those women who present late for abortions.

14 SDA 01A; Q 329 [Ms Cohen] Back

15 Abortion Act 1967 as amended. Back

16 SDA 01 para 18 Back

17 Example from Abortion time limits: a briefing paper from the BMA, BMA, May 2005, p 16 Back

18 SDA 13 para 8 Back

19 SDA 13 para 8 Back

20 EPICure study, Paediatric 2000 paper Back

21 Q 1 Back

22 Q 6 Back

23 www.bma.org.uk/ap.nsf/Content/AbortionTimeLimits Back

24 For example, in a case before the English courts in 1988 [ C v S [1988] QB 135, [1987] 1 All ER 1230.] and the earlier American case of Roe v Wade [Go to reference 37] the notion of being capable of 'meaningful life' is introduced. In the Roe v Wade judgment it was said: 'With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the foetus then presumably has the capability of meaningful life outside the mother's womb'. Mr Justice Brooke, in the 1991 legal case of Rance v Mid-Downs HA , stated that "[T]he word "viable" [means] "capable of living" … In my judgment the word 'viable' was simply being used [by Parliament] as a convenient shorthand for the words 'capable of being born alive'." Back

25 Draper ES, B Manktelow, DJ Field & D James, "Prediction of survival for preterm births by weight and gestational age: retrospective population based study", BMJ, vol 319 (1999) pp 1093-97 Back