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Small survivors: How the disputed science of fetal pain is reshaping abortion law

Published: Monday, Sept. 2 2013 9:10 p.m. MDT

All smiles now, Caleb (above left) and Julian Puente play with their younger brothers Jack and Christian, three years after being born at 26 weeks and five days gestational age.

Ian Puente

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The baby blankets had elephants, giraffes and clowns. The nurses wore colorful scrubs. But the attempts at cheer in a sterile NICU room awash in the bluish light used to treat jaundice struck the parents as oddly macabre, and the efforts were certainly lost on the tiny patients.

Ian Puente spent three months with his wife, Melissa, at the Kaiser Permanente Neonatal Intensive Care Unit in Woodland Hills, Calif., coaxing their twins, Caleb and Julian, through premature birth and major surgeries. Caleb had a heart ligation to close a valve just a week after birth, a common preemie procedure. Julian had his cecum removed two weeks later, a much more invasive step.

"The hospital tried to create a warm environment, but it didn't really work," Ian said.

Not that they weren't happy to be there. A generation ago, they would not have been alive at all. The Puente twins were born at 26 weeks and 5 days of gestation. The date is exact because the twins were conceived in vitro.

Back in 1972 the Supreme Court in Roe v. Wade ruled that a state could regulate abortion only after a child could survive outside the womb. The court held that point of "viability" to be 28 weeks, which at the time was about right.

Since then, technology has steadily eroded the foundations of Roe v. Wade, beginning with viability outside the womb. By 1992, the Court simply acknowledged reality when it bumped the limit down from 28 to 24 weeks. But survival outside the womb was only part of the story.

Advances in fetal surgery were making it possible to address serious problems in the womb, often weeks before the infant could survive outside of it. Fetal surgery made possible new ways of thinking about life within the womb, altering politics and shaping new research agendas.

Then came the question of pain. Anesthesia is now routine for both neonatal and fetal surgery, but a generation ago newborns were thought to not perceive pain, and they routinely underwent surgery without anesthesia.

"It gives me chills to think of newborns in surgery without anesthesia," Ian said, after witnessing the struggles of his own sons.

Today newborn and fetal anesthesia are routine, but the logic behind the latter is hotly disputed.

The Puente twins were thus born into a scientific, ethical and legislative no-man's land, the front edge of abortion politics where doctors dispute whether a developing child can feel pain, while legislatures reshape law on the assumption they can. This summer, Texas became the 13th state to rely on fetal pain theory to ban abortion after 20 weeks.

Both sides are very aware that abortion politics and policy turn on how the humanity of the fetus is perceived by science and, thence, by the general public.

"Fundamentally, I'm a scientist," said Maureen Condic, a neurobiologist at the University of Utah Medical School, who has recently taken a prominent role arguing for the reality of fetal pain. "And whatever views I hold, if the scientific evidence were to contradict them, the other views would fall."

What does the science say? That depends on who you ask — and how you phrase the question.

Surrogate measures

For the Puentes, there is no doubt that their twins felt pain at birth.

At birth, they didn't have the strength to cry or squirm or even grimace, Melissa said. But she soon came to recognize signs of discomfort in their facial muscles, especially in the eyelids. When they were at ease, she said, "their eyelids are smooth and facial muscles are relaxed." But after surgery their muscles tightened and their eyelids appeared stressed. "It was obvious he was in pain," she said of one son.

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