Stuart Derbyshire is an associate professor at the National University of Singapore. He specialises in the study of pain. Derbyshire’s CV shows strong pro-choice credentials: he has served as an expert consultant for Planned Parenthood of Virginia and Planned Parenthood of Wisconsin, as well as for the (libertarian) Pro-Choice Forum in the United Kingdom. In 2004, he testified in the Virginia State Senate in opposition to House Bill 1315, which required that every pregnant person considering abortion have the opportunity to view an ultrasound image of the foetus as a component of informed consent. He has previously written about the importance of pro-choice politics. Derbyshire being pro-choice meshes well with much of his research up to this point, which has a strong focus on what is sometimes termed ‘prenatal perception’; that is, whether foetuses can feel pain. 

Anyone even mildly involved in the abortion debate has encountered the pain question. Whether foetuses can feel pain, or at what stage they feel it, or how they experience that pain, or even how to define ‘pain’ or ‘perception’ has been hotly contested. Pro-lifers shout about the evidence of Professor Kanwaljeet Anand, a foetal surgery expert at the University of Tennessee, to the US Justice Department, that foetuses were sensitive to pain from 20 weeks of development. Pro-choicers point to … well, pretty much every other study. Because, if we’re being honest, the vast bulk of reliable research up to now suggests that the nerve circuitry for pain isn’t properly developed until 24 weeks or later (into the third trimester). The ideal pro-life response to this is to argue, instead, that the question of pain is irrelevant. Why should a possible sensation of pain make it wrong to take a human life? Opposition to abortion is not based on the fact that it may be a painful process for the preborn child, but on the fact that we feel the preborn child has a legal and moral right to life, notwithstanding its stage of development. 

But let’s face it: it is relevant. Prenatal pain isn’t some dry, theoretical point. It’s a gut instinct thing. If foetuses can feel pain, abortion is no longer just flushing some alien, unwelcome cells out of a body. If foetuses can feelthe pain being ejected, or vacuumed out, or surgically dismembered, as the case may be, abortion just becomes that little more barbaric, doesn’t it?

Except of course, foetuses can’t feel pain, right? Not properly, anyway, not how we proper humans do, right? Or not until super late on in a pregnancy when it’s illegal in like all jurisdictions to get an abortion anyway, so the whole ‘pain’ thing just isn’t an issue, right? There’s reliable research that says that. Right?

Right. And much of that reliable research, which has plumped upon 24 weeks as the cut-off point for prenatal perception, has been generated by Stuart Derbyshire. Here he is in 2006: ‘The neural circuity for pain is immature. More importantly, the developmental processes necessary for the mindful experience of pain are not yet developed’ (‘Can fetuses feel pain?’ (2006) 332(7546) British Medical Journal). And in 2007, where his submission to the Science and Technology Committee of the British Parliament reads ‘we can be […] positive that the fetus is not conscious and, therefore, cannot experience pain […] [F]etal pain is a moral blunder based on the false equivalence between observer and observed that misses the whole point and process of development’. In 2008, he says ‘We may be confident the fetus does not experience pain because unique in utero neuroinhibitors and a lack of psychological development maintain unconsciousness and prevent conscious pain experience’ (‘Fetal Pain: Do We Know Enough to Do the Right Thing?’ (2008) 16(31) Reproductive Health Matters 117). He was a member of the Working Party of the Royal College of Obstetricians and Gynaecologists that produced a Report in 2010 stating ‘[i]n reviewing the neuroanatomical and physiological evidence in the fetus, it was apparent that connections from the periphery to the cortex is necessary for pain perception, it can be concluded that the fetus cannot experience pain in any sense prior to this gestation’.

So it’s worth sitting up and taking notice when Stuart Derbyshire comes out with a paper (published in the prestigious Journal of Medical Ethics last week) that says, actually, he and the rest of the medical community may well have been wrong about that whole 24 weeks thing, and that foetuses are probably able to feel pain from as early as 12 weeks in utero. 

(Incidentally, the finding isn’t the only interesting thing about this paper. Derbyshire wrote it with a medic called John Bockmann. From the paper’s description of Bockmann, he seems pretty pro-life believing ‘that abortion violates the ethical principle of non-maleficence and ought to be restricted and discouraged’. Derbyshire remains pro-choice. Seems like they likely have some good tips on how to have civil, constructive conversations with people about abortion when those people fundamentally disagree with you).

This is what Derbyshire and Bockmann have to say (read the original paper in full for references, footnotes etc.):

Often it is stated that there is a consensus that pain is not possible before the development of the cortex, and before the periphery is connected to the cortex through the spinal cord and thalamus. Those developments are broadly not apparent before 24 weeks’ gestation and so many medical bodies and press reports state that pain is not possible before 24 weeks’ gestation, which is the point at which most abortions cease to be legal in most parts of the world. 

Arguably, there never was a consensus that fetal pain is not possible before 24 weeks. Many papers discussing fetal pain have speculated a lower limit for fetal pain under 20 weeks’ gestation. We note in passing that vote counting and consensus is perhaps not the best way to decide scientific disputes. Regardless of whether there ever was a consensus, however, it is now clear that the consensus is no longer tenable.

The reason that this 24-week quasi-consensus is no longer tenable, they suggest, is because research placing pain perception as arising only at 24 weeks or later has generally relied on the necessity for a developed cortex (the cortex is the outer layer of the cerebrum) to experience pain. However, Derbyshire and Bockmann now point to numerous recent studies which, they say, undermine this stance. 

Even if the cortex is deemed necessary for pain experience, there is now good evidence that thalamic projections into the subplate, which emerge around 12 weeks’ gestation, are functional and equivalent to thalamocortical projections that emerge around 24 weeks’ gestation. Thus, current neuroscientific evidence supports the possibility of fetal pain before the “consensus” cut-off of 24 weeks.’

From one of the leading pro-choice voices on the question of foetal pain, this paper is obviously extraordinary. Derbyshire is brave enough, here, to run against much of the medical and political consensus and to engage with the possibility that some of his previous work may have been based on incorrect assumptions. In 2006, Derbyshire wrote that ‘proposals to inform women seeking abortions of the potential for pain in foetuses are not supported by evidence. Legal or clinical mandates for interventions to prevent such pain are scientifically unsound and may expose women to inappropriate interventions risks and distress’ (‘Can fetuses feel pain?’ (2006) 332(7546) British Medical Journal). In 2020, he writes, or at least is prepared to put his name to, a paper that says, ‘both authors agree that it is reasonable to consider some form of fetal analgesia [anaesthetic for foetuses] during later abortions’. It is a courageous standpoint, and clearly comes from someone who truly embraces the scientific method. 

It is important to stress the limits of using this paper in the abortion debate to prove or disprove any kind of point. The writers are cautious, making no entirely definitive pronouncements. Their position is well summarised in this paragraph towards the end:

Overall, the evidence, and a balanced reading of that evidence, points towards an immediate and unreflective pain experience mediated by the developing function of the nervous system from as early as 12 weeks. That moment is not categorical, fetal development is continuous and not an event, and we recognise that some evidence points towards an immediate and unreflective pain not being possible until later.47 Nevertheless, we no longer view fetal pain (as a core, immediate, sensation) in a gestational window of 12–24 weeks as impossible based on the neuroscience.

Pro-lifers can’t answer the pain question by waving this paper around and proclaiming, ‘See, foetuses definitely feel pain at 12 weeks’. But when the pain question comes up, they can point to it and say, ‘There is strong evidence, from good, reliable researchers, that they might’. And that’s when the real question comes up: what do post-repeal Ireland and it people do with this possibility? Do we ignore it, choosing, instead, to follow what might now be seen as out-of-date science, and continue to perform procedures on entities that may feel, to an excruciating extent, the pain of that procedure? Do we push to mandate foetal analgesia (anaesthetic in the womb) for post-12 week abortions? Does informed consent require people seeking abortion to be told that the foetus might feel their life being taken? I don’t have the answers to those questions. But it’s worth asking them. It is worth being willing to engage with the pain question, with any question that makes up the complicated tapestry of the abortion debate. Like Derbyshire, it is worth keeping our minds open, and considering that, maybe, there’s a chance we could have been wrong all along.