When new guidance relating to the outcome and medical care of babies born extremely prematurely was recently released, it led some to call for UK abortion law to be revised.
This was because one of the new recommendations from the British Association of Perinatal Medicine is that it is sometimes appropriate to provide resuscitation and active medical treatment for babies born at 22 weeks gestation (four and a half months before their due date). This is a week earlier than was recommended in the last version of the framework, published in 2008.
The argument goes that the new guidance creates a “contradiction in British law” because extremely premature infants can now be resuscitated before the point in pregnancy where abortion law changes. A spokesperson for campaign group Right to Life UK said: “In one room of a hospital, doctors could be working to save a baby born alive before 24 weeks whilst in another room a doctor could perform an abortion which would end the life of a baby at the same age. Surely this contradiction needs to end?”
Currently, in England, Scotland and Wales, abortion is legally permitted before 24 weeks of a pregnancy as long as two doctors certify that the broad conditions of the Abortion Act 1967 are fulfilled. After 24 weeks, abortion can only take place if a stricter set of conditions apply – for example where the pregnant woman’s life is at risk, or the child would be born with a severe disability. A cut off of 28 weeks was set in the original act, reduced to 24 weeks in 1990.
The question is: given the new UK neonatal guidelines, does the cut off needs to be revised again?
Nothing has changed
One reason not to review the law is that the fundamental issues have not changed overnight, or indeed over the last 20 years. It has been possible for more than two decades for extremely premature infants before the 24-week cut off point to survive.
For example, one in ten 23-week infants treated in a UK neonatal unit survived in the early 1990s. In 2006, there were 238 babies at 22 and 23 weeks admitted to neonatal intensive care units in England (69 survived) – just under two in ten.
While survival rates have improved for these extremely premature births, most babies born at these gestations still, sadly, do not survive even if intensive care is attempted.
While some claim that the law is contradictory, there is, in fact no inherent contradiction. It is true that doctors will attempt to save the lives of some babies born before 24 weeks, where that is what parents wish. However, the very high risk of mortality or very serious complications means that intensive care treatment is not always provided. If parents do not wish for their baby to receive intensive treatment it is ethical to provide palliative care at delivery, and the revised framework supports this.
This reflects the ethical importance of respecting the wishes of parents when it comes to treatment that is so risky and uncertain. Arguably, if a woman decides not to continue a pregnancy at 22 or 23 weeks’ gestation, and obstetricians support this choice, that is completely consistent with the ethical framework that applies in newborn care.
The important question that underlies all of this is why the law relating to abortion should have a 24-week cut off in the first place. The current law appears to be based on the idea that “viability” changes the ethical considerations around abortion.
It is also often deeply unclear both what is meant by “viable”, and why this is relevant to the ethics of abortion. Is a 22-week foetus/baby viable? They could survive – if their parents want to undergo highly intensive treatment, and if that treatment is available (in most parts of the world it isn’t). However, three out of four babies will not survive, even if this is attempted. Some might regard such infants as viable, while others would not.
While pro-life advocates are opposed to termination of pregnancy at 23 weeks, they are also opposed to abortion occurring at 20, 16 or 12 weeks. Viability is of no relevance if you have the view that the foetus has a right to life. On the other hand, those who support women’s right to choose sometimes argue that abortion should be allowed past 24 weeks. The importance of respecting a woman’s autonomy does not change just because a foetus could, in theory, survive if they were born prematurely and actively treated.
On either of the most prominent (and opposing) views, viability does not affect the ethics of abortion.
Reasons not to change the law
There are some other good reasons not to change the rules around abortion. The number of women who terminate their pregnancy between 20 and 24 weeks is actually very small (about 1% of all terminations in England and Wales in 2018).
Many of those who have abortions after 20 weeks have not learned until a very late stage that they were pregnant. Others have learned on their 18 week ultrasound scan that their foetus has a potentially serious medical condition. It can take several weeks for such women to receive specialist advice on the likelihood of their infant having serious problems and what those would involve. Not all women in such cases choose to terminate their pregnancy, but the decision is one that is often difficult and takes time. If the abortion time limit is reduced it will impair the ability of such women to make informed and considered decisions.
Whatever your view on abortion, that would be a serious problem.