Less than an animal?

It is surely wrong that animal foetuses enjoy more protection under the law than human ones

Artillery Row

In April 2022, the Animal Welfare Sentience Act became law. The Act made provision for “an Animal Sentience Committee with functions relating to the effect of government policy on the welfare of animals as sentient beings”. It is of course right and proper that scientific understanding concerning animal sentience is regularly reviewed to inform our approach to animal welfare.

However, as I argued while the Act was making its way through Parliament, the creation of this Committee left a gaping contradiction in law since there is no mechanism by which the sentience of the human foetus is given similar consideration.

Abortions are allowed in this country, effectively on demand even for healthy babies, up until 24 weeks gestation

In March 2020, I, alongside a cross-party group of Parliamentarians from both Houses, commissioned an All-Party Parliamentary Group (APPG) report into foetal sentience. The report noted that “it surely cannot be right that the killing of ‘protected animals’… is subject to tighter legal regulation dealing with both the place where they are killed and the manner of their killing, to ensure that it is humane, than the law governing the lawful killing of human foetuses.” Particularly striking is that the definition of ‘protected animals’, as set out by the Animal Scientific Procedure Act 1986, includes all vertebrate animal foetuses subject to research from two-thirds gestation – in other words, unborn animals are offered some protection in law.

However, let us not forget that, when it comes to human beings in this country, babies with disabilities, including Down’s syndrome, club foot and cleft lip and palate, can be aborted right the way up to birth. As the APPG report noted, “it is strange but true that in these situations a dog foetus at seven weeks gestation will have more protections in law than a human foetus.” Given that the report found that some experts believe the human foetus may be able to experience pain from as early as 12 weeks, and even the least conservative estimates believe foetal pain is possible from 24 weeks or shortly afterwards, this is an anomaly that needs to be corrected.

It is for these reasons that I am supporting Lord Moylan’s Foetal Sentience Committee Bill in the House of Lords, which has its Second Reading later this week. The Bill is very moderate – it simply seeks to “make provision for a Foetal Sentience Committee to review current understanding of the sentience of the human foetus and to inform policy-making”. Since such a committee already exists with regard to animal sentience, it is difficult to see how anyone could object to a similar committee, informed by appropriate specialists, being established to regularly review our understanding of the sentience of the human foetus, an area where our knowledge is incomplete and disputed.

However, what we do know ought to give us pause for thought. In written evidence provided to Parliamentarians, the British Association of Perinatal Medicine acknowledged that “foetuses born as early as 22 weeks gestation do show physical and physiological responses to pain, and there is no reason to think that foetuses at this gestation are any different.” This is particularly significant since abortions are allowed in this country, effectively on demand even for healthy babies, up until 24 weeks gestation. Leading neonatologist Professor John Wyatt, Emeritus Professor of Neonatal Paediatrics, Ethics & Perinatology at University College London, shared similar testimony, explaining “I think from my observation of extremely premature babies that they are sentient, they are conscious, and they are responsive to their environment.”

Unborn babies should not be denied rights enjoyed by animal foetuses

Of course, other experts may take a different view. But the purpose of establishing a Committee is precisely to ensure that all perspectives are considered and Parliament has access to sufficient information to determine policy. Indeed, the issue is especially pertinent at the moment with an amendment having been tabled in the House of Commons to the government’s Criminal Justice Bill that would lower the abortion time limit for healthy babies from 24 to 22 weeks.

When it comes to such an important issue, Prof Wyatt told the authors of the APPG report “I think we should play safe, we should give the foetus the benefit of the doubt. We should assume that it is capable of experiencing pain and unpleasant sensations, and we should then treat the foetus appropriately, which would if necessary be with strong pain relief medication or with anaesthesia.” This ‘precautionary principle’ is exercised elsewhere in medicine when there is doubt and seems eminently sensible. Indeed, when it comes to foetal pain, the NHS already recommends pain relief for unborn babies undergoing surgery for spina bifida from 20 weeks gestation, even though surgical abortions can take place at the same gestational age without pain relief. This reveals a current inconsistency in medical practice.

There is much more to learn about foetal sentience. A 2010 academic study of twin foetuses at 14 weeks gestation found that the twins’ hand movements toward self were more calibrated than movements to the uterine wall and movements toward the co-twin showed even greater care – could these perhaps be indicators of sentience early in the second trimester of pregnancy?

There are human rights considerations here also: the Preamble to the UN Convention on the Rights of the Child, to which the UK is a signatory, states that the child “needs special safeguards and care, including appropriate legal protection, before as well as after birth”. These responsibilities highlight the importance of objective and adequate research in this area if we are to meet our obligations in law.

Abortion is a sensitive issue. Policy is too easily determined by ideology rather than science. A Foetal Sentience Committee of the kind for which Lord Moylan will be arguing this week would allow some objectivity to inform our policy in this area, where, it should be remembered, UK laws are extreme compared with most of our European neighbours – our 24-week limit is double the average upper time limit for abortions in European Union countries. Lord Moylan’s proposal is both necessary and overdue, and I shall therefore be supporting his Bill this week. Unborn babies should not be denied rights enjoyed by animal foetuses.

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