'I Don't Feel Your Pain'

Call it the Golden Retriever Rule: “Do unto others, as you would do unto your pet.” It's a fairly minimal standard of morality, to treat other human beings the way we treat an animal. And yet that is all that is required by the proposed Unborn Child Pain Awareness Act, sponsored at the federal level by Sen. Brownback, R-Kan., and similar legislation that has already been passed in a handful of states.

Such legislation requires that when a woman seeks an abortion after 20 weeks gestation, she be told that her unborn child might feel pain, and that anesthesia is available. In a late-term abortion, the living unborn child is torn limb from limb. If it were legal to do this to a pet — which it isn't — at least the pet would be anesthetized first.

Someone might object: How do we know that an unborn child at 20 weeks feels pain? We don't know this. In fact, we never really know that someone else is in pain. But the unborn child possibly feels pain, and, when it comes to feeling pain, the benefit of the doubt has to go to the being that might suffer it. It's more humane to be safe than sorry.

Yet how do we know that it is even possible that the unborn child feels pain? From analogies and external signs. The unborn child is a living animal, and other living animals experience pain. Also, the unborn child can move, and thus she presumably has some kind of rudimentary sense of touch; but feelings of touch imply the possibility of feeling pain. Moreover, mothers develop a bond with the child in their womb, but how could a relationship develop if there were no sharing of experiences — if the unborn child were merely a kind of robot?

These commonsense inferences are supported by recent scientific discoveries. For instance, at 20 weeks the developing child withdraws from noxious stimuli; she shows an elevated heart rate and quicker breathing; she furrows her brow and grimaces; she shows a hormonal response similar to how we respond when in pain. The eminent specialist on fetal pain, Dr. K.S. Anand, speaks of “a converging series of considerations” which, in his view, indicate that an unborn child feels pain perhaps as early as 16 weeks after gestation.

But, again, it is more humane to be safe than sorry, and therefore the burden of proof is surely on those who claim that the unborn child feels no pain.

This is the context in which we must place the recent article on fetal pain, published in the prestigious Journal of the American Medical Association — not a new study, but a “review of the literature,” which aims to summarize previous studies.

The authors wonder how physicians should view Unborn Child Pain Awareness legislation. After a review of the medical literature, they claim that “pain perception before 29 weeks' gestation is unlikely.” And, in light of this, they oppose Unborn Child Pain Awareness legislation: “Because pain perception,” they write, “probably does not function before the third trimester, discussions of fetal pain for abortions performed before the end of the second trimester should be non-compulsory.”

Responses to the article tracked the red state / blue state cultural divide.

The mainstream media interpreted the article as yet another example of how “science” contradicts the moralism of “anti-abortion” activists. The alternative media dismissed the article as pro-abortion propaganda, especially after it became known that two of the authors had not properly disclosed their ties to the abortion industry.

It turned out that one author, Eleanor Drey, directs the largest abortion clinic in San Francisco, specializing in late-term abortions. The article's lead author, Susan Lee, had previously worked as an attorney for the National Abortion Rights Action League (Naral), writing amicus curiae briefs which challenged laws against partial-birth abortion.

But everyone neglected the arguments of the article. When the abortion-industry ties of the authors became known, the Journal's editor, Catherine DeAngelis, stood by the article nonetheless, saying that it had survived peer review and therefore met high standards of scientific rigor.

But was this so? Pro-lifers need to ask this, since the Journal article will certainly be cited as debate over Brownback's legislation heats up.

A review article is only as good as its method of analysis. In fact, the review in the Journal of the American Medical Association is unsound because it uses a faulty premise and a poor method; it neglects some of the most important evidence; and its conclusions are illogical.

Faulty assumption

The article uses a criterion of pain perception which is appropriate, if at all, to a mature human being, and then it assumes, without justification, that this should be the standard as well for a developing human being.

In a mature human being, the article claims, pain perception requires the functioning of a fully developed, direct neural connection between pain receptors and the sensory cortex of the brain; because this kind of connection is not in place until 29 weeks, an unborn child cannot feel pain before then.

But it is far from clear that this sort of connection is necessary for pain perception, even in mature adults. The article's authors assert this premise uncritically. But other brain structures are strongly activated by pain and perhaps make an independent contribution to conscious awareness of pain — as is commonly seen in stroke victims, who can experience pain even without any sensory cortex.

Yet even if such a connection were necessary for pain perception in a mature adult, it would be hazardous to apply the same criterion to an unborn child, because the same biological function can be carried out by different physiological means at different stages of development.

For instance, in a mature human being, a heart must have four chambers to pump blood well. But when the heart first appears, at 21 days after conception, it has only one chamber. It would be absurd to argue that, in spite of appearances, the heart is not pumping, because it lacks four chambers.

The same principle presumably holds for pain perception. Generally, in embryonic development, more primitive functions arise before higher functions. Pain seems to be a relatively primitive function because it is a constant throughout the animal kingdom and is seen in animals without a developed cortex, such as reptiles. It would not be surprising if, early in development, an unborn child could sense pain in a manner roughly analogous to that of non-human animals lacking a developed cortex.

Dr. Anand speaks of a series of “converging” arguments which, taken together, suggest that the unborn child feels pain. The Journal authors, in contrast, adopt an inappropriate “divide-and-conquer” strategy. They point out, correctly, that sometimes a child withdraws from a painful stimulus as a mere reflex; therefore, they argue, when the unborn child withdraws from a noxious stimulus, this is not proof of pain.

Sometimes hormone levels increase in the absence of pain: Therefore, they say, increased levels are not proof of pain. Sometimes a child grimaces spontaneously: Therefore a grimace is not proof of pain. And so on.

But in medical science, it is inappropriate to reason in this way. The various signs need to be considered together. A physician might just as well argue that it is “unlikely” that a patient presenting with fever, a cough, chest pain, loss of appetite and exhaustion has pneumonia, because each of these can occur in the absence of pneumonia.

Incomplete evidence

Perhaps the most relevant data, involving babies prematurely born before 29 weeks' gestation, was not considered in the article. It is obvious to medical personnel working in the neonatal intensive care unit (NICU), that these infants do experience pain, and lots of it. Researchers have even devised pain scales in studies of pain management in these babies. And yet the Journal authors neglect this data — not surprising, perhaps, for an analysis carried out by persons who believe that a baby before birth is a non-entity compared with a born baby, and who stand to profit from this belief.

Unjustified conclusions

Even if the evidence were inconclusive, the most that the Journal authors could reasonably conclude was that “we don't know” whether unborn children can feel pain before 29

weeks. Their conclusion, that “pain perception is unlikely,” is completely unjustified. “Absence of evidence is not evidence of absence,” as scientists say.

The article's political conclusion similarly does not follow: “Discussions of fetal pain for abortions performed before the end of the second trimester should be non-compulsory.”

Suppose your dentist says, “It is unlikely that you will feel pain during this procedure; only one in four patients does.” Would it follow that you shouldn't request Novocain, or that he shouldn't discuss pain with you?

In the same way, even if pain were “unlikely” before 29 weeks, the Unborn Child Pain Awareness act would still be humane and ethical.

Since we can't rule out pain, the benefit of the doubt should go to the unborn child who might have to suffer it.

Michael Pakaluk, Ph.D. is an associate professor of philosophy at Clark University. Peter Morin, MD. Ph.D. is a researcher and neurologist at Boston University School of Medicine.