"My goal as a physician/attorney/child advocate was to help all medical people recognize that the fetus has the capacity to feel pain and that something has to be done about that if you’re going to do painful surgery."


Summer/Fall 2002

When is a Fetus Old
Enough to Need an Advocate?

A Catholic anesthesiologist and children’s advocate finds himself on a surprising side of the debate over partial birth abortions.

An interview with Dr. Tim McDonald

Pediatric anesthesiologist Tim McDonald ’79 doesn’t assist with partial birth abortions. His religious beliefs and convictions as a child advocate won’t allow it. But the University of Illinois Hospital in Chicago where McDonald teaches and works does perform the procedure when the life of the mother is endangered.

Following one such operation in late May, McDonald spoke with the anesthesiologist who had assisted with the procedure. She shared her concern and frustration at having to administer, at the mother’s insistence, a general anesthetic—risky for women in the late stages of pregnancy.

“Well, think of it this way,” McDonald told his colleague. “At least you had anesthesia on board so that the fetus went to sleep before its own dismemberment.”

McDonald says the doctor was stunned.

“She looked at me, her eyes got as big as saucers, and she said, ‘Oh my God, I never even considered that.’”

But Tim McDonald has. The doctor and Loyola Law School grad’s writings on the subject have appeared in law journals and medical textbooks. He believes that, as a pediatric anesthesiologist dedicated to the relief of pain, he is ideally situated to teach obstetricians, and sometimes legislatures, about the existence of fetal and newborn pain and the simple methods available to alleviate it.

That conviction drove him to surprising conclusion in 1999 as he pondered the issue of partial birth abortion and wrote an essay for the Children’s Legal Rights Journal entitled “When is a Fetus Old Enough to Need an Advocate?” The Catholic pro-life supporter suddenly found himself opposing the ban being championed by his usual allies. He talked with Wabash Magazine about how he arrived at his unexpected position on this difficult and controversial issue.

What stirred you to write this essay and drew you into the debate over partial-birth abortion?
As a pediatric anesthesiologist and a lawyer, I’ve tried to prepare myself to be the best pediatric advocate I can be. I followed the congressional hearings—a friend of mine testified there—and they brought out the demagoguery that I believe occurs on both the extreme conservative side and the extreme liberal side of this issue. So I decided to write this law review article. It looks at the legal and medical issues and tries to undermine the demagoguery on both sides and to focus on what I believe is a more important ethical issue—fetal pain.

I made two assumptions in the article. First, that, constitutionally, a woman is always going to have a right to an abortion. Second, that there will always be situations in which that abortion will take be performed beyond the point at which the fetus has the capacity to feel pain.

And that point is when?

Most articles in the literature suggest that at 18 weeks, everything is in place for the fetus to experience pain. Unquestionably at 22 weeks, but probably at 18 weeks. Recent studies show that the 18-week fetus responds to painful stimuli by withdrawing and has the increase in blood hormone concentrations associated with a painful experience in a human. So there appears to be behavioral as well as physiological evidence that they have the capacity to experience pain. And that’s a period of time when a lot of people—even in the institution I’m in—will do a termination.

Do most doctors accept this pain as fact?

That’s the troubling part—even during the congressional hearings, obstetricians who testified were unwilling to concede the capacity of the fetus to feel pain. That belief has gone on for years within the obstetrical community, at least until the last decade. In fact, until recently, all newborn circumcisions were done with nothing being given to the little boys for pain. The argument in the literature was that the baby doesn’t have the capacity to experience pain. The research clearly shows that’s not true.

So now we’ve got two issues: the health of the mom, and pain control for the fetus. You can put the mom to sleep long enough for general anesthesia affects the fetus—the fetus goes to sleep, and then you do the termination. But putting a mom to sleep at 18 to 22 weeks brings substantial risk of death to the mom. And if you give the mom a spinal or epidural, the anesthetic doesn’t reach the fetus.
So how do you get pain control to the fetus? If you ban the partial birth abortion, then you have to do something else to evacuate the fetus. And all the other things you can offer are pretty brutal—injecting chemicals into the amniotic fluid that causes the skin to slough off the fetus, essentially causing the fetus to be burned.
So if the conservatives had succeeded in banning the partial birth procedure, they would have been condemning the mom to a riskier anesthetic and they still wouldn’t have dealt with the pain experienced by the fetus.

I’m assuming the partial birth abortion does?
During a partial birth abortion, the doctor dilates the cervix just enough to get in and bring out a portion of the fetus and dismember it.

Yes. Some obstetricians I’ve talked to will cut the umbilical cord and allow the fetus to bleed to death before dismemberment. It’s a very gruesome thing.

But as I was writing this article about abortion and fetal pain, I realized that of all the procedures, this was the one that gives us the best access to the fetus so that we can provide anesthetic. If the obstetrician has access to the umbilical cord, you could inject a potent narcotic into the cord to deaden any sense of feeling that the fetus would have. Or you could inject a high dose into the thigh or arm.

As it turns out, of all the termination procedures available, the one that has been singled out as the one to ban is probably the one that affords the obstetrician with the greatest chance to provide pain relief.

Are these partial birth abortions done only in situations where the mother’s life is threatened?
Actually, that’s the even more disgusting part. The doctors who testified before Congress said they would do it for any congenital anomaly the child has. The way Roe vs. Wade was settled, any time that the life or health of the mother is threatened, they can terminate the pregnancy. And obstetricians have said, “Look, if the mom can’t handle a child with an anomaly, then we’re going to terminate for the health of the mother.” One of the obstetricians who testified said he’d even done it for cleft lip, cleft palate, which is fixable.

This is all very troubling. But my goal as a physician/attorney/child advocate was to help all medical people recognize that the fetus has the capacity to feel pain and that something has to be done about that if you’re going to do painful surgery.

I would think anybody hearing this would say, “I’m not doing this.” Was that part of the point of your article?
I think there’s this denial about what going on, and that’s the demagoguery on the left. You sure as heck don’t want the public thinking about this, and you don’t want to think about this yourself. This could have a real chilling effect on moms wanting to have this procedure done. If they knew that the little being inside them could feel pain, maybe they wouldn’t terminate after all.

Or they might say, “as long as we can make the procedure pain-free, let’s go ahead and do it.”
That’s right. But there’s still pretty strong resistance to the notion that these little beings feel pain. It’s denial. People don’t want to think about it.

One of the issues that deeply concerns me regarding termination at will is this dehumanization of the fetus. You don’t want to think about it as a human, you don’t want to think about it feeling pain, so you de-humanize it.

As a child advocate, one of my fears is that you sometimes see that dehumanization extended into the newborn period, where you see adults treat children like chattel. You’ve heard all the horror stories: the baby born to the lady who no one knew was pregnant, and she wraps up the baby and throw it in a dumpster. Why? Because it wasn’t a being to her. It was a thing. A tumor. You get rid of it.

The more we fail to address the humanness of the fetus as it develops, the more I fear that this indifference can occur. And it’s something that, unfortunately, is in my backyard.

You said that you were surprised with the conclusion you arrived at in your essay.
When I heard the description of the procedure I figured I’d support the ban. When I showed my wife the conclusion I reached, she said, “I can’t believe you concluded that.” She was troubled by the logic of my argument. It’s hard to refute as long as you accept the premise, which is that women will have the constitutional right to terminate a pregnancy. And you can’t just continue to say, “No, they should never be allowed to do that,” and never get to the next step of at least trying to prevent pain to the fetus.

In this country right now, you could not do a late term abortion on a dog—and therefore the puppies—without a general anesthesia. You would not be allowed to do that to the dog. But there are no such laws to govern the behavior of physicians terminating pregnancies.

So what needs to be done?

We need to minimize any risk to the mother. And, where we have documented scientific evidence that shows the stage at which the fetus has the capacity to feel pain, physicians must do everything possible to provide pain relief to any fetus past that stage, regardless of what is going to happen to it. I feel pretty strongly about that.


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