Fetal Pain

Human fetus, age unknown

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The state of Nebraska has added a (seemingly) new phrase to the abortion debate, namely “fetal pain.” The gist of the view is that abortions after twenty weeks should not be allowed on the grounds that the fetus might feel what is happening to it.

While it is not known exactly when a fetus can feel pain, the Journal of the American Medical Association asserts that it is unlikely that the fetus feels pain prior to twenty eight weeks. The question of when a fetus has sufficient neurological development that would allow it to experience pain would certainly seem to be an empirical matter. Of course, the situation can be made more complicated by bringing in metaphysical concerns about when the fetus has a mind that can actually experience pain and suffer from such pain (there might be an important distinction between feeling pain and suffering from pain).

Determining when the fetus can feel and suffer from such pain does seem important. After all, many moral arguments are based on the capacity of beings to experience pain. For example, stock arguments in the moral debate over the treatment of animals rest on the fact that many of the ways we treat animals (such as how we raise them as food) causes them pain and suffering.

If the pain and suffering of animals matters morally, then it would certainly seem that the pain and suffering of fetuses would also matter morally. In fact, many of the arguments for not harming or mistreating animals based on their capacity to feel pain could be modified slightly to serve as arguments against harming fetuses that can feel pain.

Of course, this means that objections raised against pain/suffering based arguments in the case of animals could often be modified for use against the pain/suffering based arguments regarding fetuses.

On a logically irrelevant note, this could mean that folks who are pro-choice but against animal suffering might find their own arguments against mistreating animals re-purposed to argue against abortions. Likewise, folks who are anti-abortion but argue for the moral acceptability of (mis)using animals might find their arguments for allowing animal suffering to be re-purposed and used against their anti-abortion views.

Getting back to the main discussion , it does seem that pain and suffering are morally relevant. Intuitively, this makes sense. To steal an approach from Hume, simply think of your own pain and suffering and see if you can regard these as good things. It is also easy enough to take advantage of numerous existing arguments for pain and suffering having negative moral value (Mill is the obvious choice here). Naturally, there are also good arguments against this, but it hardly seem foolish to consider that inflicting pain and suffering tends to be morally wrong.

If this is granted, then abortions that cause pain and suffering to the fetus would certainly seem to have a morally negative element well worth considering. However, this would hardly be a morally decisive point. After all, the mere fact that something causes pain and suffering does not automatically make it wrong or unacceptable. One reason for this is that pain and suffering are typically taken as having relative rather than absolute weight. In other words, pain and suffering on the part of one party is usually weighed against positive value or against the pain and suffering of another party. For example, when arguing about animal testing in the context of medicine, the pain of the animals is typically matched against the gain to be had from the medicine.

In the case of abortion, the pain and suffering of the fetus would be weighed against other factors, such as the pain and suffering of the woman. This is, of course, old moral ground that has been debated extensively. In many cases the suffering the woman (or girl) would undergo would far outweigh the pain and suffering of the fetus, thus allowing the abortion to occur. If someone argued that the fetus has an absolute right not to suffer or feel pain, then the obvious counter is to inquire why the same would not apply to the woman as well and why such a clash between absolutes should be settled in favor of the fetus. After all, the burden of proof would seem to rest on those who claim an unborn and unfinished being has a greater moral status than a person.

I suspect that the main result of the introduction of “fetal pain” into the legal battle will not be a significant change in the ethical debate. Rather, the main impact will be that a (seemingly) new rhetorical tool (or weapon, depending on your view) is now available.

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  1. I am wondering what difference it makes to this question if it were, as a precaution, against pain, possible to anesthetize the fetus prior to abortion. Assuming this is possible without harming the carrier of the fetus.

  2. Most people who are pro-choice set a time limit to when abortions can be performed, a limit that can only be passed in special cicumstances such a danger to the life of the mother or a deformed fetus. That limit is often prior to 20 weeks and almost always prior to 28 weeks, so there would be a danger of fetal pain (which could be anesthetized, as Don suggests) only in special cases. The limit generally has to do with the question of when the fetus is viable outside of the womb; I’m not sure exactly when that would be, given state-of-the-art medical technology. Certainly before 28 weeks, possibly before 20 weeks.

  3. This is annoying. If this is their qualification, what is keeping them from coming up with anesthetized abortions? Unless the quality of feeling pain is supposed to be the thing that makes someone a person of worth. And is this about simple pain itself existing or the knowledge of that pain (I feel like that happens after 28 weeks)?

  4. Methinks this comment deserves a few distinctions: pain versus needless pain (i.e. cruelty), and an awareness versus a reaction. Suppose that there is a slug that reacts to an acidic solution. Further suppose that slug’s tissue response is similar to tissue response in sentient beings (say, reptiles.) Do we, or should we, care if some nasty, brutish and British child enjoys torturing garden snakes?

    Suppose we ‘somehow’ (a fav word of Plato, I might add) establish that snakes do not have awareness but that cats and dogs do. Should SPCA regs (or similar animal protection law) overlook tortuous behaviour to the ‘lower life-forms’?

    And to join issue: assume that the foetus develops from a slug-like organism to a canine-like organism. Where do we mark-off “Below this point pain is acceptable” and “Above this point, not”?

    To answer the question about the child, I think we should care (and for a reason that Plato uses.) The nasty, brutish and British child will damage his own soul. What proof do we have of that? Look around, eh? But if you do live in a more perfect part of the world, consult Books VIII and IX of the Republic.

  5. As Don points out, anesthesia seems to remove the question of cruelty.

    Is the point of this to suggest that pain represents a level of consciousness, thus indicating life at the level of consciousness?

    I’ve often wondered what might be said about the development of the nervous system in this regard. Perhaps the concept of being brain-dead would also be relevant. Insufficient brain-wave activity would be that where pain response in the lower levels of the nervous system would not raise any conscious perception of pain.

    So, is this discussion up to a point where measurement of brain-wave activity might be relevant?

  6. Don,

    In this case, there would be no pain and hence the pain argument would not apply.

  7. Laura,

    It could be argued various ways:

    Option 1: It is the pain that is bad. Since anesthesia can prevent the pain, an abortion performed with the fetus unable to feel pain would not be wrong.

    Option 2: It is the capacity to feel pain that makes the abortion wrong. The fact that the pain is prevented does not diminish the capacity of the fetus and hence the action is wrong because it would have inflicted pain.

    Option N: Other options.

  8. Ripis,

    If snakes did not feel pain and did not suffer, then we could not be cruel to them in that sense. Kant would, however, argue that we should still keep such laws in place. This is because harming snakes would damage our humanity, etc.

  9. TesserID,

    Yes, determining whether the fetus can feel pain or not might well involve checking for brain activity. In fact, it probably does.

  10. Mike,
    As between object (the snake) or subject (nasty little boys), where do we ground the cruelty? It may well be that snakes do not feel pain but do exhibit ‘pain behaviour’. So a nasty little boy can cruelly enjoy making a snake squirm even though the cruelty does not reside “snake-side”. Similar a nasty little boy may cruelly enjoy video game death and killing, and not “be cruel” even as he harms his tender psuche.

    Where is this going? To this: any behaviour which encourages an individual to enjoy apparent or real suffering of an apparent or real living being ought to be controlled, and sometimes punished. Such a rule would, I believe, also ‘capture’ sex and violence porn. So that’s good.

  11. I am quite sure that getting born is a frightful and painful experience for the foetus, considering what it has to go through.
    So if the foetus-feels-pain argument is right, we actually should abort all foetuses before they can feel pain in order to save them from suffering?
    It shouldn’t get any curiouser.

  12. Ripis,

    Excellent question. On the one hand, it seems absurd to say that a person can be cruel to an object. After all, this would seem to be on par to asserting that a person could cause, for example, an iPad to suffer. On the other hand, it does seem to make sense to regard behavior as cruel even when the object cannot actually suffer from the cruelty.

  13. Saskia,

    That is an impressive reductio.

  14. Re:- Mike LaBossiere April 7th
    “On the other hand, it does seem to make sense to regard behavior as cruel even when the object cannot actually suffer from the cruelty. “

    I am not sure it makes sense to speak of behaviour as cruel when it is applied to inanimate objects. How ever we could well substitute the word abusive here. Thus the needless abuse of any object animate or inanimate, such that destruction or harm is caused, to it is to be abhorred. I note in this connection that tennis players can be penalised during a match for racket abuse.

  15. Re:DON BIRD “I am not sure it makes sense to speak of behaviour as cruel when it is applied to inanimate objects. How ever we could well substitute the word abusive here.”

    Well… OED says “cruel, a. Of persons (also transf. and fig. of things): Disposed to inflict suffering; indifferent to or taking pleasure in another’s pain or distress; destitute of kindness or compassion; merciless, pitiless, hard-hearted.”

    As per the “destitute” option, ‘cruelty’ exists in the heart of he who has a capacity to be cruel.

  16. Don Bird & Laura

    While I can understand lay people thinking it is relevant I’ve never understood why any pro’s would think fetal pain argument is at all relevant as far as existential rights.

    From what I’ve understood from Rights theorists and the connection between rights and desires, is that sentience only gives a right not to suffer, and it is only persons with the sophisticated desire for continued existence that have existentially rights.

    So the only thing that matters as far as the foetus is that it doesn’t suffer. But the problem for Pro-Choice and Liberal Philosophers has always been that neonates and some infants aren’t persons either.

    Now if abortion is justified on the twin premises of the foetus not being a person and bodily autonomy Tooley’s argument regarding infanticide is strong and counterarguments concerning viability, birth and being closer to attaining personhood are plainly ad hoc fallacies.

    “So, is this discussion up to a point where measurement of brain-wave activity might be relevant?”

    Not relevant if you are using the personhood justification

  17. Re:-TesserId 9th April
    Rights activists maintain “that sentience only gives a right not to suffer, and it is only persons with the sophisticated desire for continued existence that have existentially rights. “

    If this were the case than we could put those thus afflicted of whom there are at a guess, many thousands, into some system medical experimentation thereby releasing many animals, who are sentient, from this burden. Additionally those who are not suitable could be destroyed, thus saving the huge medical cost of their keeping them alive. I find it rather difficult to muster a persuasive argument against this, other than one based on pure emotional factors and the fact that Adolf Hitler had similar plans.

    I am not sure about the measurement of brain activity. For the simple reason that even if the neural correlates of consciousness are eventually completely identified we will still be left with the hard problem of consciousness. This briefly stated being that how does the irritation of nervous tissue give rise to anything so remarkable as a state of consciousness in which we experience red roses hear beautiful music etc.?

  18. Don I agree, unless I’m missing something rights based only on desires is deeply flawed, but then again most of the philsophy justifying abortion is deeply flawed.

    Though overall, having said that both sides make plenty of flawed arguments.

    Tooley is on the money but isn’t eeven consistent himself in the end when I think he limiits infanticide to within the first month.

  19. A few things I am reading today… « Living Journey - pingback on April 15, 2010 at 9:13 pm
  20. Since there is such a disconnect between those concerned about fetal pain – and fetal rights -and those concerned about animal rights, can I ask some “stupid” questions?

    How do we know animals feel pain? (Like we do)

    Why do we care? (Experimentation, food slaughtering, hunting, entertainment- dog fighting)

  21. Steve,

    If you assume we feel pain, then we “know” animals feel pain for the same reason. I think another human is in pain based on behavior. If an animal behaves in a similar way (for example, thrashing around while making horrible noises), then I infer it feels pain.

    More scientifically, animals seem to have all the neurological hardware needed to experience pain. That is, they have analogous parts to the parts humans have that are associated with experiencing pain.

    As far as why do we care, one possibility is sympathy grounded in evolution. Another is ethics-after all, there are good arguments that pain is bad and something we should care about (see, for example, Peter Singer’s work on the subject of animals).

  22. Wow, so it’s really that baseless and “squishy”?

    So Michael Vick isn’t such a bad guy after all, cause the idea that he did anything wrong is all assumption and inference, but nothing we can know and nothing we can objectively assess.

    As for fetuses, the Royal College of Obstetrics just said no pain before 24 weeks, despite what you see, what you infer from the thrashing about in response to painful stimuli, what you might assume, etc. I guess I am now at the point where I believe you cannot feel pain unless you can do differential calculus. Even at that point, I see no reason to care… Outside of an immortal soul, what am I missing?

  23. Mike granted but even Singer’s work says that animals have no ‘right’/interest in life so as long as they are killed humanely it isn’t a problem.

    So what I cannot work out os why in an age of anestesia does fetal pain have any relevance at all when they can be killed painlessly?

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