Select Committee on Science and Technology Minutes of Evidence

Examination of Witnesses (Questions 40-59)


15 OCTOBER 2007

  Q40 Mrs Dorries: How do you know that?

  Professor Fitzgerald: I am trying to give you a rational argument. If we do not know something, we have to use our rational, scientific approach to this. If you take a very tiny, newborn baby, not a foetus—and this has been shown by Oberlander in Canada in a beautiful study—if you give them a painful stimulus, they will scrunch up their face and they will move their limbs and cry. We have shown this. There is no question but that those infants have a response to pain. However, that response is the same if they are extensively brain damaged, if the white matter tracts in their brain, the main roadways if you like, take all the information above this level. The response is exactly the same until the babies are 32 weeks. Then you begin to see a big difference. I am not playing God here. I do not know how human consciousness emerges. I do not think anybody knows that. We have to be quite rational about this. If a lot of responses are exactly the same when there is no cerebral function, it is reasonable to infer that they are reflexes. They are carried out at the level of the spinal cord and at the level of the brain stem. That is the lower bit of your brain in your neck. They are very organised, sophisticated reflexes. They give you an emotional reaction. They would give me an emotional reaction. You look at them and you construct something out of them. The foetus is not conscious—that is what I believe—because its brain is not connected together.

  Mrs Dorries: Can I ask Professor Wyatt as a neonatologist what his opinion is on that?

  Q41  Chairman: Is this a specialism of yours?

  Professor Wyatt: It is not a special area. I am aware that this is a matter of great scientific controversy and that there are differences between experts in this field about whether the deep structures within the brain may participate in the sensory awareness or not. Ultimately, of course, we cannot know what it is like.

  Q42  Chairman: Are you aware of another study which contradicts the Canadian study which Professor Fitzgerald commented on?

  Professor Wyatt: I am aware of a recently published review article which reviews evidence in this area and which suggests that the deep structures may play a role in pain awareness but this is a matter of scientific controversy which I am not an expert on.

  Q43  Dr Harris: Professor Wyatt, you are quoted in The Times on 3 October 2006 saying, "The link between the cortex and the rest of the body does not come into play until 23 to 24 weeks when the first connections are created." That was from a Science Media Centre briefing you gave in relation partly to these scans. Is that still your view?

  Professor Wyatt: That is a matter of scientific record. Professor Fitzgerald is the expert on that. That is the point at which the first projections of the cortex—

  Q44  Dr Harris: The Guardian reported that briefing as your colleague, Donald Peebles, a consultant in foetal medicine at UCL, saying, "The temptation is to associate with regard to these scans foetal movements with adult movements." I think that is a step which is extraordinarily dangerous. I do not think in scientific terms he has shed any light whatsoever on the debate about the 24 week limit. You are cited as agreeing that the ultrasound images made no fundamental difference to the scientists' understanding of neuroscience. Is that an accurate reflection of your views?

  Professor Wyatt: The question was whether, as we have just discussed earlier, the 4D images increased the scientific understanding of the foetus's behaviour and at the moment I think the consensus is they do not add a great deal in terms of the science but they clearly have altered public perceptions.

  Q45  Dr Harris: I am keen to stick to the science. It is a science committee. On the EPICure studies, Professors Wyatt and Marlow, if you get an average figure from EPICure of between 10-15% and some centres are higher than that for whatever reason—there are multiple reasons why that might be; they might be receiving at their tertiary centres referrals of babies who are hardy enough for transfer to start with so that will not be the average baby—does that suggest to you that there will be centres at the lower end in order for the average still to be 10 to 15%? Is that your finding from EPICure one?

  Professor Marlow: From the first EPICure study, there is no doubt that within different regions of the country there was a wide variation in outcome. That reflects the attitudes and the services available at the time.

  Q46  Dr Harris: Even at 24 weeks, if the overall survival is 60% and some are at 90, some might be as low as 10, 15 or 20. If you chose that as the basis, then 24 would not even be viable if you chose it hospital by hospital.

  Professor Marlow: That is one interpretation of it, yes.

  Q47  Dr Harris: The BAPM, of which you are president, in their evidence said to us, "BAPM has recently completed a further survey on the outcome for babies under 26 weeks in 2006 and the results of this work, EPICure two, are just becoming available. We will not be able to quote the exact outcomes for babies in EPICure two as the data is being analysed. However, 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." Would you accept that evidence?

  Professor Marlow: I would accept that. That refers to the survival of babies admitted for intensive care. One has to understand that clearly the base population will change your survival because many with low gestations will sadly die in the delivery room immediately after a live birth. A further proportion will die during labour. When a woman presents in labour at 23 weeks, the overall survival with very low gestations is considerably lower than that quoted.

  Q48  Chris Mole: At 22 weeks, what proportion of babies need some intervention to start life?

  Professor Marlow: All.

  Q49  Chris Mole: 100%?

  Professor Marlow: Yes.

  Q50  Chris Mole: No babies are born naturally at 22 weeks?

  Professor Marlow: They may be born naturally but they do not survive without support.

  Q51  Dr Harris: If I were to say to you that a definition of viability for legal purposes would be it is the lower point at which a baby would have a reasonable chance of surviving without significant abnormality or impairment, would you say, based on the data you are aware of that is in the public domain such as that I have discussed, Professor Marlow, that that would indicate that 24 weeks is right; or would you say it should be different based on that particular definition?

  Professor Marlow: In my opinion, 24 weeks is the lowest gestation rate at which we routinely will expect a good outcome.

  Q52  Dr Harris: Professor Wyatt, you are able I hope to send us the abstract of the data in your unit that you referred to in your paper?

  Professor Wyatt: Yes.

  Q53  Dr Harris: What was the denominator for that? Was that 40 or 42% survival at 23 weeks of all babies showing signs of life in the delivery room or was it a proportion of those admitted to neonatal intensive care directly or by transfer?

  Professor Wyatt: The denominator was all babies born alive in the labour ward in the hospital at UCL.

  Q54  Dr Harris: Do you accept there is another problem with the variability? If there is a unit that is very keen to resuscitate as much as possible, for whatever motives, that might well drive the percentage figures down because there will be a broader base for babies that are found to have signs of life and then are intervened on? Do you accept—it should not be a controversial point—that that is another reason for the wide variability possibly between countries and centres?

  Professor Wyatt: It really repeats the point I made earlier. The ethical attitudes towards any individual baby will change the outcome. Such studies as there suggest, I think not surprisingly, that where there is a more active interventionist policy that does not lead to a lowering of the figure. That leads to an improved survival. Where there is less interventionist policy there tends to be reduced survival.

  Q55  Chairman: Professor Fitzgerald, crucial to this inquiry is the fundamental question at what time does the foetus feel pain. Clearly, the comments you have made to us earlier have said that your guesstimate, if you like, your professional advice to the Committee is that, given the current state of the science, you feel that the foetus does not feel pain certainly at, say, 24 weeks. Does it at 30 weeks? What is the difference? What happens in that period of time?

  Professor Fitzgerald: It is really important, without going on about this too long, to define what you mean by feeling pain. There is reacting to pain. I do not think anybody denies that from quite an early age—literature suggests it can be as early as 13 weeks—a foetus will show a reflex reaction to pain. It is very important we separate that out from whether they are feeling it or not. The only way we can answer the question of whether they are feeling pain or not is to understand something about the activity in the brain in a foetus. If you examine the activity in the brain in a preterm born baby, we have shown that at 24 weeks there is evidence of cortical activity. That is right at the highest level of the brain, I guess. That is measured by blood flow though. It is not a direct measure of the neurons or the nerve cells. There is a sign the blood flow changes in the brain. I am not at all of the view that there is no brain activity in a 24 week baby. What I am arguing is that we simply cannot extrapolate back into foetal life. It is inappropriate. We do not understand enough about it. I was asked how can it be that if a foetus is basically drugged and asleep it can show these reactions. An adult who is fast asleep shows very strong reflex reactions. If you were to try this on a partner or a friend, if they are really fast asleep—it is really true; people do not believe it—it is an absolute fact that if somebody is deeply asleep, if you tweak their toe, they will show a very strong bodily reaction but they will not wake up and they will not remember. It is really important that we separate out the body's reaction to whether a foetus is feeling something or not. The current evidence suggests that even if they do—I understand that some people would rather take the line that we do not know so they do—the foetus is really in a very heavily sedated state anyway.

  Q56  Dr Spink: Answers from parliamentary questions from me very many years ago revealed that very minor, totally insignificant abnormalities such as a hair lip or a cleft palate were used as excuses for many abortions at that time. Are you happy with the current legal definition of impairment, disability or handicap that is used in terms of abortion, all of you? You can say yes or no.

  Jane Fisher: From our standpoint, dealing with women struggling with decisions about what to do about their pregnancy after being given a diagnosis, we can safely say that there are not legions of women who are making easy decisions based on so-called trivial reasons. Women and their partners and wider families struggle hugely after something is diagnosed in their unborn baby. They do not take it lightly. The law as it stands at the moment is open enough to allow them with their clinicians to make the decisions that are right for them in their unique circumstances.

  Q57  Dr Spink: Are you happy with the current legal definition of impairment, disability or handicap?

  Jane Fisher: Yes.

  Professor Fitzgerald: It is not my area of expertise so I am answering from a personal point of view. I am happy with it.

  Dr Guthrie: We have discussed it at the faculty and we are happy, given what my colleague has said. We support the current view as it is.

  Professor Marlow: It is very difficult to be very much more specific than the current law. As such, I am content with it.

  Professor Wyatt: The wording of the Act is extremely vague. Therefore, it is left very much to the discretion of the clinician as to how this is precisely interpreted. My understanding is that it has never been tested in court as to precisely the meaning of these words. Again, this is a personal view and I wish to make it plain that I am giving evidence as a personal individual and not as a representative of any organisation. My own personal belief is that it would be helpful for the profession if the wording could be made more precise to give people what Parliament's intention is as to what these words should mean.

  Q58  Dr Turner: I would like the panel's views on how useful they think the RCOG/BMA guidelines are in helping clinicians and parents come to a decision on termination.

  Professor Fitzgerald: That is not my area of expertise.

  Jane Fisher: We would only speak within the context of termination for abnormality and we do not see a problem with the guidelines as they stand.

  Dr Guthrie: Can I ask which aspect of the RCOG and BMA guidelines?

  Q59  Dr Turner: For instance, whether treatment of any detected abnormality either in utero or after birth is possible, the child's potential for self-awareness, suffering that might be experienced, the whole range of guidelines which are much more familiar to you than they are to me.

  Dr Guthrie: When we are talking about foetal abnormality, it is such a complex area. Patients are very dependent on the information they get from their clinician, which is not just their obstetrician but also their paediatrician, information on what is known about the pregnancy, what potentially may be the circumstances for the child when it is born, going to the internet and anywhere else. There is a whole load of information which will help them reach their ultimate decision. That is why it is so difficult to pin it down.

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