Viability and the abortion debate – what really matters?

MPs in the House of Commons will debate tomorrow whether the cut-off for legal abortions in the UK should be reduced. Currently abortions are permitted up to the 24th week of a pregnancy, and some MPs have argued that this should be reduced to 20 weeks or below. Advocates and opponents of the change have pointed to scientific evidence about the viability of infants born extremely prematurely at 22, 23 and 24 weeks. They seem to believe that if we can answer the scientific question of whether such infants are viable, that will resolve the question about whether or not abortion is permissible at that stage.
That might be the case if there were a consensus on what viability means, and why it is important in questions about abortion time-limits. But, as this article will highlight, there is no such consensus, and it is not straightforward why viability should matter. So far in this public debate there has been little or no mention of the important questions – what is viability, and why is it important in abortion law?

What is viability?
One thing that is clear from the recent debates is that viability is not clear-cut. There is no single point in time at which we can say that fetuses become ‘viable’. No matter where we draw the line, it would be absurd to think that fetuses at one moment were not viable, but that the next day (perhaps changing at the stroke of midnight) they gain viability. This is partly because there is variation between fetuses in maturity and strength. It is also because it is not clear what sense of viability we are referring to. Large studies of premature infants in the UK (such as the EPICure study) have shown no change in survival of the most premature infants (those less than 24 weeks) in the last decade. Only a tiny proportion of infants born at this age survive, and many of those who do survive have substantial disability. So if, by ‘viability’, we mean that the majority of such infants survive if born at this age, it is clear that infants less than 24 weeks are not viable.
But other studies from neonatal intensive care units with extensive experience of looking after infants born at 22 and 23 weeks have demonstrated that some of these infants can survive, and a number of these survivors do so without overwhelming disability. On this basis some have argued that 23 and 22 week infants are ‘viable’, meaning that survival is possible in some of them if full intensive care is provided.

So extremely premature fetuses at 22 to 24 weeks are viable in one sense, and not in another. If we are to decide whether or not abortion should be lawful at this stage we need to know why viability is important in abortion decisions.

Moral status.
Many of the arguments both for and against a change in the time-limit on abortion seem to assume that viability is important in deciding how we should treat fetuses. Viability appears to alter what is sometimes referred to as ‘moral status’. If they are viable we should not kill them. But it is not clear why viability makes this difference. When we think about why we should not kill someone, the reasons that we might think important include the fact that they do not want us to do it, that we will deprive them of future life, and that the process of killing them will cause them to suffer. All of these reasons ground moral status, but insofar as they apply to a fetus, they apply equally to a fetus at 20 weeks (who is clearly not viable), or to a fetus at 30 weeks (who is clearly viable).
Moral status is sometimes related to the natural order of things. So if it is a fact of nature that fetuses of a certain stage are viable, then perhaps this means that we should not interfere with nature by terminating a pregnancy after this point. However there is nothing whatsoever ‘natural’ about saving the life of extremely premature infants. Infants born at this stage require multiple complex and intensive interventions to keep them alive. They require artificial lubricants for their lungs, since they are not ready to breathe air yet. They survive only by virtue of weeks and months of diligent application of artificial life support. If natural viability confers moral status, then abortion may be permissible until a much later stage when premature infants can survive without intensive medical treatment (perhaps 34 weeks).
It might be thought the viability question relates to a general duty to save the lives of those whose lives can be saved. For example doctors are morally obliged to try to save the life of a patient with a treatable life-threatening condition, but don’t have a duty to try to save the life of someone who has a terminal illness. However if it were this sense of viability that is relevant, then almost all fetuses have a “condition” that is treatable. Continuing the pregnancy will save their lives. If the fact that their lives can be saved confers moral status, then perhaps abortion should not be permitted at all.

Consistency
It is hard to see how viability confers a change in the moral status of fetuses. But one reason for treating fetuses differently once they can survive outside the womb might be consistency. So, for example, it might be felt to be inconsistent if in the neonatal intensive care unit doctors were pursuing all available means to save the life of an infant born prematurely at 23 weeks, while in a different part of a hospital another 23 week fetus were aborted. There is some force in this type of argument. In general we should treat like cases alike. And if we do not, then we need to provide a justification.
There may well be morally relevant differences between the fetus that is aborted at 23 weeks, and the extremely premature infant who is looked after in intensive care. These might warrant different treatment. However it is enough here to note that, at least in terms of how neonatal intensive care is provided in most places in the UK there is no fundamental inconsistency with abortion law. Most mothers with fetuses of 22 or 23 weeks choose to continue their pregnancy. A small number, for a variety of reasons choose to terminate.
When mothers go into premature labour at 22 or 23 weeks, if there is time, a specialist paediatrician will talk to her and her partner about their fetus’s chances of survival, and what would be required if they are to survive. In the face of the need for months of intensive care, and a high chance of the infant dying or surviving with significant impairment, many parents choose not to use extraordinary measures to keep their infant alive. Professional guidelines in the UK, USA and many other countries support the right of parents to decide whether or not doctors should try to resuscitate their infant if he or she is born before 24 weeks. This notion of a parental right to decide resuscitation for extremely premature infants is consistent with the idea of a women’s right to choose whether or not to continue a pregnancy prior to 24 weeks.

The need for a dividing line
If viability does not provide a strong reason in itself for prohibiting abortion, it may nevertheless provide a convenient dividing line. Many people feel that there is a difference between early abortions and late abortions. This can be based upon a vague feeling that there is something more wrong about killing a fetus that looks like a baby, than an embryo that is just a collection of very primitive organs. In the second half of pregnancy fetuses start to develop the ability to feel pain, so it is possible that fetuses might suffer from late abortions. There are also differences in the strength of attachment that mothers feel towards their fetuses. If a mother miscarries at 20 weeks or later it can result in much greater sense of loss than a miscarriage in the early stages. Most, if not all, women would think much harder about terminating a pregnancy at a later stage than a pregnancy that is only a few weeks old.
All of these reasons mean that many people find a difference between early and late abortions, and mean that many who would support a woman’s right to choose, would nevertheless feel concerned about permitting late abortions.
So one reason that the law on abortion may have been based upon viability is that it allows a dividing line to be drawn that will prevent a large number of late abortions. This sort of dividing line can be likened to the law on driving. Allowing people to drive once they have passed their 18th birthday prevents a large number of young people from driving unsupervised when they are not mature enough to safely drive on public roads. The cut-off is arbitrary, in the sense that it could have been defensibly set at a different place, but there is nevertheless a good reason for having one.
If the time-limit for abortion is like the age-limit for driving, then we may be able to justify having a limit, even if it is hard to justify putting it at one particular point in time. If we are to decide where the cut-off should be we need to look at the reasons in favour and against different limits.

Reduction in abortions
One reason (and it may be the main reason) for a reduction in the time limit on abortions is that it will reduce the number of abortions. Some women who would previously have been permitted to have an abortion may not be able to if the time limit is changed. So some of the advocates of a change in the law have pointed to the high rate of abortions performed in the UK each year (190,000), and argued that this justifies a tightening of abortion law.
However a reduction in the time-limit for legal abortion is likely to have only a very small impact upon the number of abortions in the UK. Just over 1% of all abortions in the UK take place after 20 weeks. It is likely that other measures would have a much more significant effect on the overall number of abortions, and the number of later abortions. For example educating for teenagers about safer sex, providing better and more easily available contraception to young women, increasing the availability of emergency contraception (the morning-after pill).
On the other hand reducing the time-limit for legal abortion is likely to negatively affect a number of women. Many of those women who have abortions after 20 weeks do so because they have not learned until a very late stage that they were pregnant. Others have learned on their 18 week ultrasound scan that their fetus may have a serious medical condition. It often takes several weeks for such women to have repeat scans, and receive specialist advice on the likelihood of their infant having serious problems. Not all women in such cases choose to terminate their pregnancy, but the decision is one that is often difficult and takes time. If the abortion time-limit is reduced it will impair the ability of such women to make informed and considered decisions.

If the law on abortion is to be changed we need to be clear why it should be changed. I have argued that using viability as a cut-off for legal abortion is ultimately arbitrary, though it may still be defensible. The scientific evidence about the survival of extremely premature infants does not settle the ethical question of how we should treat fetuses. Furthermore, the controversy about how to interpret those studies obscures the questions that should receive most attention. But then they are the harder ones.