Unborn Child Pain Awareness Act Unaware That Pain Discrimination Begins at Week 35


According to scientists, recent results show that the human brain may first begin to discriminate touch from pain during weeks 35 37 of gestation in the human fetus. However, anti-abortion activists have contended that a fetus can feel pain as early as week 20 of gestation. Bills by like-minded legislators have been and still are under consideration by Congress to attempt to put into law the stipulation that before receiving an abortion, a woman must be advised that an abortion procedure will cause pain to her fetus. This bill is currently under the title “Unborn Child Pain Awareness Act of 2011.”

Unborn Child Pain Awareness Act of 2011

The Unborn Child Pain Awareness Act of 2011 has been around as early as 2004 when Representative Christopher Smith (R-NJ) introduced to the 108th Congress H.R. 4420─the Unborn Child Pain Awareness Act of 2004. The bill was not passed, but has gone through repeated submissions−−no fewer than eight times─by other representatives and senators.

Currently, the Unborn Child Pain Awareness Act of 2011 is up for consideration by the 112th Congress championed by Senator Mike Johanns of Nebraska. Co-sponsors of the bill include senators John Boozman (AR), Richard Burr (NC), Thad Cochran (MS), Mike Crapo (ID), John Ensign (NV), Michael Enzi (WY), Lindsay Graham (SC), Chuck Grassley (IA), Orrin Hatch (UT), James Inhofe (OK), Johnny Isakson (GA), Jon Kyl (AZ), Jerry Moran (KS), James Risch (ID), Pat Roberts (KS), John Thune (SD), David Vitter (LA) and Roger Wicker (MS).

According to a press release from the office of Senator Johanns when he introduced the bill to Congress last year, “Medical research has taken a quantum leap forward in recognizing that unborn children feel pain. It is time to acknowledge this reality in law and in practice,” said Johanns. “This is not a pro-life or pro-abortion issue; it is an issue of human compassion. My legislation simply says mothers have a right to be informed and to show compassion by requesting pain medicine for their babies if they do not choose life. States are leading the way by passing similar legislation and we, as a civilized nation, should do the same.”

Since then, the bill has been referred to the Senate committee, read twice, and then referred to the Committee on Health, Education, Labor and Pensions. Committees are essentially "mini Congresses" where bills begin by being considered by one or several congressional committees which then may or may not "report" the bill as being favorable or unfavorable to the Senate or House for full consideration. Most bills never receive any committee consideration and may languish until the bill expires when the current Session of Congress ends. This was the fate of earlier Unborn Child Pain Awareness bills that never made it past the reviewing committees with the exception of one instance in 2006 when it failed to garner a 2/3 vote during a roll call vote in the House of Representatives.

However, this has not prevented states from enacting their own version of the Unborn Child Pain Awareness law. In 2010, the Nebraska Unicameral passed a law completely banning abortions after 20 weeks on the basis that the unborn child can feel pain. Nebraska is unique in that its legislature is a single-house (unicameral) system and is the only one in the U.S. Arkansas, Georgia, Louisiana, Minnesota, Oklahoma and Utah have also passed similar Unborn Child Pain Awareness laws in their state legislatures.

In a recent study published in the journal Current Biology, researchers have determined that important neurologic developmental events occur during weeks 35-37 as evidenced by brain responses to both non-painful and painful stimuli that are identifiable in specific regions of the brain. Prior to 35 weeks, painful and non-painful stimuli appear to result in non-localized bursts of neuronal activity over the entire brain.

The research was conducted on 46 infants (21 of which were pre-term) ranging in gestational age from 28 weeks to full term at 37 weeks, with a few that were delivered late at 45 weeks gestational age. Noninvasive electroencephalogram (EEG) recordings of their brain neuronal activities were made in response to both non-painful touches and clinically-essential painful heel sticks used for blood sampling.


What they found was that the neuronal responses changed from a same-response state to both non-painful and painful stimuli prior to 35 weeks gestation, to a differing-response state to both non-painful and painful stimuli after 35 weeks of gestation. These responses manifested as non-localized brain activity prior to 35 weeks, to localized brain activity following the 35th week of gestational development.

According to a statement made by Dr. Rebeccah Slater, UCL Neuroscience, Physiology and Pharmacology, "Premature babies who are younger than 35 weeks have similar brain responses when they experience touch or pain. After this time there is a gradual change, rather than a sudden shift, when the brain starts to process the two types of stimuli in a distinct manner."

The researchers interpret their findings with three points:

• The human brain may discriminate touch from pain from 35 37 weeks gestation.
• Before 35 37 weeks, touch and noxious lance evoke nonspecific neuronal bursts.
• After 35 37 weeks, touch and noxious lance evoke modality-specific potentials.

In conclusion, there is little doubt that this research will provoke conflicting views about pain perception in fetuses and how it should apply toward creating laws. It’s not a simple question and even scientists find it to be a head-scratching problem. The point though, however, is that if scientists do not have an exact answer, then how can legislators make informed decisions and pass policy with a clear conscience? Perhaps conscience can be as vague as pain in some instances.

The authors of the study contend that it is still unknown exactly what and how a developing fetus feels when exposed to any kind of stimulus at any time during its development. It is not clear how we can define a developing fetus’s perception to pain or if it is even physiologically possible for pain to exist when a developing nervous system lacks direct somatic to cortical connections early in fetal life.

For now, we have to wait for science to find the answers we need and until then accept the question as an existential one: If a tree falls on someone in the woods who lacks a developed nervous system, is there still pain?

A Shift in Sensory Processing that Enables the Developing Human Brain to Discriminate Touch from Pain; Current Biology, 08 September 2011 http://www.cell.com/current-biology/abstract/S0960-9822(11)00885-2

Unborn Child Pain Awareness Act of 2011: Reference