Evidence mounts for viability of babies not considered legally 'human'

A new study published Sept. 8 found that more infants born before 28 weeks gestation are surviving without disease or other complications compared to 20 years ago. The findings cast further doubt on the adequacy of the viability standard for protecting the unborn.

The study, published in the Journal of the American Medical Association, examined 35,000 premature births between 1993 and 2012 at 26 U.S. centers participating in the Neonatal Research Network. It broadens a previous study published in May that found an increased survival rate for infants born at 22 weeks. The May study examined 5,000 infants born at 27 weeks or earlier between 2006 and 2011.

More than 450,000 infants are born prematurely in the United States every year. While the previous study showed improvement in survival rates for infants born at 22 weeks gestation, the latest study shows a greater upward trend. In 1993, only 52 percent of infants born at 24 weeks survived. But in 2012, 65 percent survived. And the percentage increase in healthy premature infants is even more significant: 47 percent of infants born at 27 weeks in 2012 survived without major illnesses compared to 29 percent in 1993.

“Extremely pre-term babies born before the 28th week are now surviving in greater numbers, and their outcomes are better when you look at the illnesses they have” in neo-natal intensive care units, Rosemary Higgins told The Washington Post. Higgins oversees the Neonatal Research Network, a program funded by the National Institute of Child Health and Human Development.

Though prematurely born infants still face respiratory struggles due to under-developed lungs, medical advances have improved their chances of survival. More doctors prescribe antenatal steroids to women who may give birth prematurely. The steroids help stimulate an infant’s lung development. In 1993, only 24 percent of women at risk for a premature delivery were prescribed the steroids, compared to about 87 percent in 2012, according to the study.

The increase in premature infant survival also coincides with increasing cesarean sections, the authors said. Physicians may be more likely to perform the surgery than before, which results in a less traumatic birth for the infant, Higgins said.

Despite the new research, babies are still only legally considered viable at 24 weeks. But Dr. Edward Bell, co-author of the May study, told The New York Times that 22 weeks should be the new viability standard. “I guess we would say that these babies deserve a chance,” he said.

In July, a federal appeals court struck down a North Dakota law prohibiting abortions after detecting a fetal heartbeat, usually around six weeks gestation. Though the court struck down the law, the justices called the viability standard “unsatisfactory.” It strips states of their right to determine their own standards for protecting the unborn and fails to consider advances in fetal medicine, the justices wrote.

“As IVF and similar technologies improve, we can reasonably expect the amount of time an ‘embryonic unborn child’ may survive outside the womb will only increase,” the ruling states. “The viability standard will prove even less workable in the future.”