Examination of Witnesses (Questions 40-59)
PROFESSOR MARIA
FITZGERALD, JANE
FISHER, DR
KATE GUTHRIE,
PROFESSOR NEIL
MARLOW AND
PROFESSOR JOHN
WYATT
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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