An online article posted yesterday in NewScientist raises some interesting issues that will no doubt be the subject of much debate in days, months and years to come – does a fetus feel pain and if so, when? The true focus of this article was the recent (April 13, 2010) passage of new legislation in Nebraska, which essentially prohibits abortions after 20 weeks. Ostensibly, Nebraska has become the first state to ban abortions on the basis that fetuses feel and appreciate pain.
The law, according to a report in LifeSiteNews.com, goes into effect on October 15, 2010, and has, at a minimum, the following legal implications:
Abortionists who break the law would face a Class IV felony charge, which carries a penalty of a five year maximum prison sentence, $10,000 fine, or both. Women who obtain abortions of their unborn children would face no criminal penalties.
I say “at a minimum” since there are other civil law implications arising from the rationale behind this legislation. One of those issues often litigated throughout the various courts of the United States is a parent’s right to sue for conscious pain and suffering for fatal or non-fatal injuries to a fetus. That analysis is beyond the scope of this blog. What is of present importance is the so-called ‘science’ behind this legislation and the response of the scientific community that may well have far-reaching implications in the field of civil litigation.
Before engaging in this discussion, note well: it is not my intention (or desire) to become embroiled in the abortion issue. That is not what we do in our firm. It is the state of science that intrigues me in terms of how that may have relevance to what we do – litigate civil cases involving matters such as fetal death in utero or death or injuries sustained by fetuses due to the negligence of third persons (e.g. medical malpractice, catastrophic automobile accidents and the like).
Apparently, the ‘scientific basis’ for this Nebraska legislation is the research of Kanwaljeet “Sunny” Anand, a professor at the University of Arkansas for Medical Sciences. Dr. Anand testified in 2004 on the federal partial birth abortion ban. He provided his opinion testimony that after 20 weeks gestation, an unborn child would experience “severe and excruciating pain” from an abortion.
Dr. Anand’s opinions are not without numerous critics. What is significant, however, is that even many scientists, who challenge Dr. Anand’s opinions that 20 weeks of gestation is the point at which a fetus can feel and appreciate pain, do accept the proposition that there is a point in the life of fetus where they can and do appreciate pain and suffering.
One of the opinions expressed in that paper defines what is at the center of this discussion – what is meant by ‘perception of pain’?
Pain perception requires conscious recognition or awareness of a noxious stimulus. Neither withdrawal reflexes nor hormonal stress responses to invasive procedures prove the existence of fetal pain, because they can be elicited by non-painful stimuli and occur without conscious cortical processing.
In the NewScientist posting, Dr. Rosen provided rebuttal statements to the premise inherent in the Nebraska legislation that fetal pain occurs at 20 weeks of gestation.
Dr. Rosen states, “The first brain pathways associated with pain perception “are not complete before approximately 29 weeks of gestation”, so although fetuses develop brain wiring from about 23 weeks onwards, the connections are not there to enable them to experience pain.”
Whether it is at 20 weeks or 29 weeks, one common principle exists – according to a number of scientists, there is a point prior to birth that a fetus can appreciate pain from a medical-scientific standpoint – the ‘wiring’ is in place. If this is true scientifically, how does this affect the right of recovery by a parent or the estate of an injured fetus in those jurisdictions permitting conscious pain and suffering damages for injuries to a fetus?
For instance, if a fetus is at 35 weeks gestation and by all other accounts is totally viable with ‘the wiring in place,’ does that fetus and/or the parents have a claim for conscious pain and suffering should injury to the fetus occur?
Does any jurisdiction recognize the right of a fetus to recover for injuries sustained in utero? Absolutely – it just depends which jursidiction(s) you are considering. For example, the District of Columbia, in 1946, was the first jurisdiction to recognize the right of a fetus to bring a separate cause of action (Bonbrest v. Kotz). This was an action for damages being brought on behalf of a fetus allegedly injured ‘in the process of being removed from its mother’s womb.’ “Under the civil law and the law of property, a child en ventre sa mère is regarded as a human being from the moment of conception.”
In 1984, the D.C. Court of Appeals, relying in large part on Bonbrest, stated:
Although this court has never considered this question, we note that every jurisdiction in the United States has followed Bonbrest in recognizing a cause of action for prenatal injury, at least when the injury is to a viable infant later born alive.
Note the key conditions: “…when the injury is to a viable infant later born alive.
This posting is already perhaps too long – this topic is multi-faceted and more the subject of a treatise, white paper or a law review article, not a blog. What is apparent (at least to me) is that this new Nebraska legislation will undoubtedly rekindle the fires of fascinating litigation about fetal rights, fetal and parental causes of action and fetal pain and suffering claims. Stay tuned – there will undoubtedly be much more to come.