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Abortion time limit

May 2008
(This briefing paper applies to Great Britain)

The BMA does not support a reduction in the current 24-week time limit. It is the BMA’s view, based on the peer-reviewed published UK data, that there is no evidence of significant improvements in the survival of extremely preterm infants to support reducing the 24-week limit for legal abortion.

This briefing paper summarises the BMA’s position on:

• The 1967 Abortion Act
• Viability in relation to termination of pregnancy
• Why women have later abortions
• Access to contraception
• Fetal experience
• The legal background

The Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990)
The BMA believes it is important to keep legislation and public policy under review but also believes that there is a responsibility for policy makers, health professionals and parliamentarians to base discussion on factual information. With the review of the Human Fertilisation and Embryology Act, calls to review the current 24-week time limit under the Abortion Act 1967 (as amended by the Human Fertilisation and Embryology (HFE) Act 1990) have gathered momentum; fuelled, in part, by concerns regarding fetal viability and fetal experience. The BMA, (go to reference 1) in 2005, prepared a detailed briefing paper on abortion time limits that considered published data on survival rates and the longer-term health of babies born at early gestation in the UK; fetal pain; and the reasons why women have second and third trimester abortions. (Go to reference 2) The BMA’s current policy, debated at its annual conference in 2005, is that there should be no reduction in the current 24 week limit under the Abortion Act 1967.

Viability
When the 24 week limit was approved by Parliament in 1990, a key argument was that this was the stage at which the fetus was considered to be viable. It is the BMA’s view, based on the peer-reviewed published UK data, that there is no evidence of significant improvement in the survival of extremely preterm infants to support reducing the 24-week limit for legal abortion. The view that survival rates below 24 weeks gestation have not improved significantly since 1990 is shared by the House of Commons former Science and Technology Committee, the Royal College of Nursing (RCN), the Royal College of Obstetricians and Gynaecologists (RCOG), the Faculty for Sexual & Reproductive Healthcare (FSRH) and the British Association of Perinatal Medicine.

“Viability” is difficult to define. It can mean that the fetus is capable of being born alive although many severely premature babies die in the delivery room. Or it can mean that an infant is capable of surviving into childhood with no, or minimal, disabilities. Severely premature babies who survive often have long term health problems stemming from the lack of lung and brain development. The current legislative focus on viability has concentrated on gestational age alone. Factors such as birth weight, whether it is a multiple pregnancy and the gender of the fetus affect the outcome in any particular case. (Go to reference 3) Even if a fetus reaches a gestational age which is considered the minimum for viability, many other factors come into play, such as whether that particular fetus can survive. Another factor to consider in discussing viability is whether “fetal viability” relates to the minimum stage possible for any fetus to survive, whether it refers to the viability of a particular individual fetus, or whether it refers to the stage at which the majority survive. In our view, a useful definition of viability is not the earliest point at which any infant might survive but rather the point at which the premature infant has a reasonable chance of surviving, without a very serious or life-threatening abnormality.

The main multi-centre UK studies on survival are the EPICure and Trent health region studies.

Trent health region studies
The first Trent study looked at all live births, stillbirths, and late fetal losses from 22 to 32 weeks’ gestation, in European and Asian mothers in the Trent region, excluding those with major congenital malformations. This original study considered live births, stillbirths and late fetal losses in women resident in the Trent health region in the 1990s. (Go to reference 4) A subsequent study (go to reference 5) conducted between 2000-5 of all infants born in the same region at a gestational age between 22 and 25 weeks plus 6 days concluded that there had been a substantial improvement in the survival of infants born at 24 and 25 weeks. Published in May 2008, the second Trent study compared data on the survival of premature babies in the later period of 2000-5 with the data from the original 1994-9 research. An extract comparing outcomes for extremely premature infants between 1994-9 and 2000-5 in the region is given below:

Comparison of outcomes and days of care for extremely premature infants alive at onset of labour in Trent, 1994-9 and 2000-5
Outcome	Gestational age (completed weeks)				Total
	22	23	24	25
Alive at onset of labour
1994-9	142	206	237	270	855
2000-5	119	164	258	256	797
1994-2005	261	370	495	526	1652
Live births (% of infants alive at the onset of labour)
1994-9	81 (57)	148 (72)	198 (84)	255 (94)	682 (80)
2000-5	69 (60)	131 (80)	227 (88)	242 (95)	669 (84)
1994-2005	150	279	425	497	1351
Admitted to neonatal intensive care (% of live births)
1994-9	15 (19)	81 (55)	165 (83)	229 (90)	490 (72)
2000-5	9 (13)	65 (50)	198 (87)	225 (93)	497 (74)
1994-2005	24 (16)	146 (52)	363 (85)	454 (91)	987 (73)
Survived to discharge (% of admissions)
1994-9	0	15 (19)	40 (24)	119 (52)	174 (36)
2000-5	0	12 (18)	82 (41)	142 (63)	236 (47)
1994-2005	0	27 (18)	122 (34)	261 (57)	410 (42)

Comparison of the data gathered in the 1990s and from 2000-5 indicates that during the 12 years covered by the research, none of the 150 infants born at 22 weeks actually survived, even though 24 were admitted to the intensive care unit. In all categories, some infants were not admitted to intensive care either because they were too sick to be resuscitated or attempted resuscitation in the delivery room was unsuccessful or it was considered inappropriate. Of the 370 babies born at 23 weeks gestation over the 12 year period, only 27 survived long enough to be discharged from hospital. In 1994-9, 81 were admitted to neonatal intensive care but only 15 survived (19%). In 2000-05, 65 were admitted to intensive care but a similar percentage survived (12 babies or 18%). Overall of the 23 week gestation infants admitted to intensive care, the researchers found that in the later period there had been “no significant improvement in survival to discharge since the 1994-9 study”. Survival among the 24 week gestation group, however, had virtually doubled from 24% in the 1990s to 41% in the later period. The researchers concluded that the data “showed no improvement in the survival of babies admitted to neonatal intensive care before 24 weeks’ gestation”. The results are being interpreted as indicating that there are biological barriers to lowering the gestational age for viability which technology is unlikely to overcome in the foreseeable future.

The EPICure studies
There have also been two EPICure studies (go to reference 6). The first EPICure study looked at the survival and later health status at 2½ and 6 years old of children born at 25 weeks or less gestation over a 10 month period in 1995 in the United Kingdom and Ireland. This table shows data obtained from the study of the children at the age of 6.

Summary of Outcomes among Extremely Preterm Children
Outcome	22 weeks (N=138)	23 weeks (N=241)	24 weeks (N=382)	25weeks (N=424)
Number (per cent)
Died in delivery room	116 (84)	110 (46)	84 (22)	67(16)
Admitted for intensive care	22 (16)	131 (54)	298 (78)	357(84)
Died in Neonatal Intensive Care Unit	20 (14)	105 (44)	198 (52)	171(40)
Survived to discharge	2 (1)	26 (11)	100 (26)	186(44)
Deaths post-discharge	0	1 (0.4)	2 (0.5)	3(0.7)
Lost to follow-up	0	3 (1)	25 (7)	39(9)
At 6 years of age:
Survived with severe disability	1 (0.7)	5 (2)	21 (5)	26(6)
Survived with moderate disability	0	9 (4)	16 (4)	32(8)
Survived with mild disability	1 (0.7)	5 (2)	26 (7)	51(12)
Survived with no impairment	0	3 (1)	10 (3)	35 (8)

The EPICure study has been repeated but recent results are not yet published. EPICure2 analysed all severely premature births in England in 2006 and compared survival outcomes with those born in 1995. Preliminary indications are that it too found no significant improvement in the survival rate of very premature babies over the last decade.

The Trent and EPICure studies drew on large numbers of babies. Some studies have also been carried out in small units but, in our view, their data are less useful. The Trent study authors highlighted how “data from single centre studies are impossible to interpret as improved outcomes are more likely to reflect inclusion and selection bias than differences in approaches to management or availability of resources. “ The House of Commons former Science and Technology Committee also noted that breakdown of results from individual hospitals are usually too small to be statistically significant.” (Go to reference 7)There was, for example, media coverage (go to reference 8) of data from one single-centre study - University College Hospital London (go to reference 9) - but as the study notes itself “single centre cohort studies suffer inevitably from the problem of possible selection bias, denominator imprecision and small numbers”.

Why women have later abortions
There is very little documented evidence available about why women seek abortions in the second
trimester of pregnancy. Outlined below are four main reasons why women have abortions in the second trimester which, the BMA believes, re-enforces the need to retain the 24-week limit.

• Diagnosis of fetal abnormality - many abnormalities are not diagnosed until the latter part of the second trimester and time is needed to consider the news, to come to terms with it and make a decision about how to proceed. Some cases of second trimester abortions are because of the diagnosis of a maternal infection that is known to cause abnormalities in the fetus.
• Failure to recognise the pregnancy earlier – these are often younger women, whose bodies are still developing, and pre-and peri-menopausal women, who do not expect to be pregnant at this stage of their lives. Women may fail to recognise the pregnancy earlier because of irregular, infrequent periods, failed contraception (particularly with methods that can cause amenorrhoea or irregular bleeding) or denial of the pregnancy (sometimes associated with occasional episodes of bleeding that are interpreted as menstruation).
• Delay in seeking abortion due to personal circumstances - delays are often due to the woman’s apprehension (including difficulty in confiding in parents or partner), failure of anticipated emotional or economic support (from family, partner, or employer) or an unanticipated change in the woman’s socio-economic circumstances (in relation to her partner, parents, or others dependent on her).
• Difficulty in accessing abortion - some women make a decision to have an abortion earlier in pregnancy but experience delays in accessing the service.

Access to Contraception and Family Planning advice

Although this briefing is about abortion time limits, the BMA emphasises its strong support for the provision of good quality contraceptive services and advice as a way of minimising the need for abortion. The BMA has long-standing policy (since 1992) supporting the education of young people in particular on the subject of responsibility in relationships and maintaining reproductive health. Unplanned and unwanted pregnancies disrupt women’s lives and often cause great distress. The BMA welcomes the fact that the government allocated an additional £26.8 million to improve access to contraception in 2008 and will carry out an evaluation of various innovative ideas and pilot schemes.

Fetal experience
The House of Commons former Science and Technology Committee questioned the relevance of fetal pain to the question of abortion law, (go to reference 10) but as fetal pain is used as one of the arguments to reduce the 24-week time limit, this briefing will cover the issue.

Interpretation of the evidence on fetal pain is conflicting, with some arguing that the fetus has the potential to experience pain at ten weeks’ gestation, (go to reference 11) others arguing that this stage is not reached until 26 weeks’ gestation and still others arguing for some unspecified gestational period in between. (go to references 12, 13) It has been argued, however, that those who adopt a stage early in fetal development confuse the notion of pain – as an experience – with reflex or hormonal “stress” responses. (Go to reference 14) The Royal College of Obstetricians and Gynaecologists, following a detailed review of the evidence, argued that there is no possibility of fetal awareness before 26 weeks:

“It is possible by direct means to identify the minimum stage of structural development that is necessary – but not that which is sufficient – to confer awareness upon the developing fetus. This minimum stage of development, with structural integration of peripheral nerves, spinal cord, brain stem, thalamus and, finally, the cerebral cortex, has not begun before 26 weeks’ gestation.” (Go to reference 15)

Although debate continues about whether, and if so when, the fetus can experience pain, current mainstream professional guidance suggests that a fetus cannot begin to have the possibility of experiencing pain until after 26 weeks’ gestation. The BMA’s view is that even if there is no incontrovertible evidence that fetuses experience pain, the use of pain relief, when carrying out invasive procedures, may help to relieve the anxiety of the parents and of health professionals. (Go to reference 16)

Confusion about the ability of the fetus to experience pain and to experience “human” emotions has been exacerbated by media coverage of the 4D scanner. The equipment produces detailed 3D/4D images showing fetuses apparently exhibiting behaviours such as yawning at 18 weeks, and smiling, blinking and crying at 26 weeks, behaviours that could be interpreted as being associated with human emotional responses. Commentators have pointed out however that although not immediately apparent when viewing these clips, they are, in fact, video loops, with the same movements shown again and again. Thus, the “waving” fetus is an illusion created by showing the movement of the fetus’ arm, from left to right across its body over and over again. (Go to references 17 and 18) The Royal College of Obstetricians and Gynaecologists and the Faculty of Sexual & Reproductive Healthcare note that “4D imaging does not increase our scientific understanding of fetal awareness”. (Go to reference 19)

The Legal Background
In England, Scotland and Wales the Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990) permits the termination of pregnancy, by a registered medical practitioner, up to 24 weeks’ gestation where:

“the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family”.

Pregnancy may lawfully be terminated up to birth where:

“the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or

“the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or

“there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.”

In 2006, for women resident in England and Wales, 2948 abortions were performed at 20 weeks and over (1.5% of total performed). Of these, 1262 were performed at 22 weeks and over (0.7% of total performed) and 136 at 24 weeks and over (majority performed due to fetal abnormality). 149 abortions were performed where the woman’s life was at risk or to save the woman’s life. (Go to references 20 and 21) In Scotland (go to reference 22) 175 abortions (1% of the total performed) were performed at 18 weeks and over.

For further information please contact the Parliamentary Unit:
Email: parliamentaryunit@bma.org.uk

References:

1. The BMA is an independent trade union and voluntary professional association which represents doctors from all branches of medicine across the UK. It has a total membership of over 138,000. BMA policy is made at its ARM which is a transparent and democratic process for forming policy. Motions are debated at the ARM and voted upon by locally, regionally and nationally chosen representatives after informed debate, with opportunities to hear all viewpoints.
2. This document is available to MPs on request or can be found on the BMA website at http://www.bma.org.uk/ap.nsf/Content/AbortionTimeLimits. British Medical Association. Abortion time limits: a briefing paper from the British Medical Association. London: BMA, 2005.
3. Draper E S, Manktelow B, Field D, James D. Prediction of survival for preterm births by weight and gestational age: retrospective population based study. BMJ 1999;319:1093-7. cited in: Royal College of Obstetricians and Gynaecologists. The investigation and management of the small-for-gestational-fetus. Guideline no. 31. London: RCOG Press, November 2002;8
4. Draper E S, Manktelow B, Field D, James D. Prediction of survival for preterm births by weight and gestational age: retrospective population based study. BMJ 1999;319:1093-7.
5. Field DJ, Dorling JS, Manktelow BN, Draper ES, Survival of extremely premature babies in a geographically defined population: prospective cohort study of 1994-9 compared with 2000-5, BMJ, published 9 May 2008.
6. Costeloe K, Gibson AT, Marlow N, Wilkinson AR. The EPICure Study: Outcome to discharge from hospital for babies born at the threshold of viability. Pediatrics 2000;106(4):659-71; Wood N, Marlow N, Costeloe K, Gibson A, Wilkinson A, for the EPICure Study Group. Neurologic and Developmental Disability after Extremely Preterm Birth. N Engl J Med. 2000;343:378-84; Marlow N, Wolke D, Bracewell M, Samara M, for the EPICure Study Group. Neurologic and Developmental Disability at Six Years of Age after Extremely Preterm Birth. N Engl J Med 2005;352:9-19.
7. Table taken from: Marlow N, Wolke D, Bracewell MA, Samara M for the EPICure Study Group. Neurologic and Developmental Disability at Six Years of Ageafter Extremely Preterm Birth. Op cit: 17.
8. House of Commons Science and Technology Committee. Scientific Developments Relating to the Abortion Act 1967: Twelfth Report of Session 2006-07, Volume 1. London: TSO, 2007:p20.
9. See, for example – Smith R. Survival of early babies ‘doubles’. The Daily Telegraph, 1 February 2008:1; and Laurance J. Doubling of baby survival rates stirs abortion debate. The Independent, 1 February 2008.
10. Riley K, Roth S, Sellwood M & Wyatt JS. Survival and neurodevelopmental morbidity at 1 year of age following extremely preterm delivery over a 20-year period: a single centre cohort study. Acta Paediatrica. 2008;97: 159-165. Available at http://www.blackwell-synergy.com/doi/full/10.1111/j.1651-2227.2007.00637.x (accessed on 9 April 2008).
11. House of Commons Science and Technology Committee. Scientific Developments Relating to the Abortion Act 1967: Twelfth Report of Session 2006-07, Volume 1. Op cit: p25.
12. McCullagh P. Fetal Sentience. London: The All-Party Parliamentary Pro-Life Group, 1996; and Anon. Antiabortionists hijack fetal pain argument. BMJ 1996;313:188.
13. Anand KJS. Fetal Pain? Pain Clinical Updates: International Association for the Study of Pain. Volume XIV, No 2, June 2006.
14. Glover V, Fisk N. Fetal pain: implications for research and practice. Br J Obstet Gynaecol 1999;106:881-6.
15. Lloyd-Thomas A, Fitzgerald M. For debate: reflex responses do not necessarily signify pain. BMJ 1996;313:797-8.
16. Royal College of Obstetricians and Gynaecologists. Fetal Awareness. Report of a Working Party. London: RCOG press, 1997:3. The Working Party Report was re-affirmed in a RCOG statement in 2007 which stated “In the drawing up of its evidence it conducted a review and did not uncover any new work of direct relevance to issues surrounding fetal pain and fetal awareness that could require alteration of the position in the RCOG’s Working Party Report Fetal Pain (1997).” RCOG statement on 'Abortion concerns' (Letters to the Editor, Times, Tuesday 30 October 2007, p.16).
17. British Medical Association. The law and ethics of abortion – BMA views. London: BMA, November 2007: p5-6.
18. Kirklin D. Guest Editorial: The role of medical imaging in the abortion debate. J Med Ethics 2004; 30:426.
19. Royal College of Obstetricians and Gynaecologists (RCOG) and the Faculty of Sexual & Reproductive Healthcare (FSRH) press release. Joint RCOG/FSRH statement on developing 4D imaging technology and its implications on fetal sentience, 22 October 2007.
20. Department of Health. Abortion statistics. England and Wales, 2006. Statistical Bulletin 2007/01. London: DH, 2007.
21. Department of Health. House of Commons Science and Technology Committee inquiry into the scientific developments relating to the Abortion Act 1967: list of written evidence. 2007: memorandum1, p1.
22. ISD Scotland. Scottish Health Statistics. Edinburgh: ISD Scotland, 2006.