Last week, Michael Leavitt, the secretary of the U.S. Department of Health and Human Services, declared that his agency is going to "aggressively enforce" the Born-Alive Infants Protection Act of 2002. The act defines an infant as a "member of the species homo sapiens who is born alive at any stage of development." The act further defines "born alive" to mean any infant who "breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion." When he signed in the legislation in 2002, President George W. Bush declared, "This important legislation ensures that every infant born alive—including an infant who survives an abortion procedure—is considered a person under federal law." The law entitles such newborns to emergency medical care and to protection against child abuse.
Given the current state of the medical arts, a premature, extremely low birth weight infant's chances of surviving are not good. At about 21 weeks, a fetus measures 8 to 10 inches long and weighs a pound or less and, its chances of surviving are essentially zero. At 22 weeks of gestation, the chance of survival is between 0 and 10 percent; at 23 weeks, the possibility rises to between 10 and 35 percent; and at 24 weeks, there is a 40 to 70 percent probability of survival.
Even though some very premature newborns may be able to survive, parents have to take into account some other sobering facts when considering whether or not to resuscitate or direct that extraordinary medical interventions be used to sustain their lives. For example, at a recent neuroscience conference at MIT, Michael Crawford, director of the Institute of Brain Chemistry and Human Nutrition at the London Metropolitan University pointed out that recent statistics show that 89 percent of infants born at 23 weeks of gestation suffer some brain damage; the number falls to 80 percent at 24 weeks, and to 68 percent at 25 weeks. The damage ranges from profound retardation to various learning disabilities in childhood. Even if such newborns escape significant brain damage, Crawford asserted that essentially all end up with various behavioral deficits. This is because their newborn brains are far from developed and modern newborn intensive care units have not devised good ways to supply the nutrients needed for proper brain growth. Crawford also pointed out that the incidence of cerebral palsy has increased 3- to 4-fold since the 1960s because modern neonatal medicine is now able to rescue very premature brain injured infants from death.
The current ethical guidelines of the American Academy of Pediatrics leave the decision to initiate resuscitation up to parents and suggest that "noninitiation of resuscitation for newborns of less than 23 weeks' gestational age and/or 400 g[rams] in birth weight is appropriate." Such newborns are offered "comfort care." Since these are the current professional guidelines, the Born Alive Act does not necessarily change anything about how medical care is offered to any very premature infants.
However, the Born Alive Act is on a collision course with constantly improving medical technologies, raising the question of whether or not the Act mandates that premature infants must receive any conceivable medical intervention that might enable them to survive. For example, Trinity College health policy analyst James Hughes, in his book Citizen Cyborg, outlines a futuristic scenario in which a woman decants a difficult pregnancy to an artificial womb at 8 weeks of gestation and then decides to terminate the fetus at 12 weeks. "Is it just the parents' property or is it a premature baby with a right to life?," asks Hughes. It would seem that the Born Alive Act would require that the 12 week fetus in this case be treated as a premature baby and would forbid a woman to terminate her extra-uterine fetus. After all, the 12 week gestational fetus is outside her womb and has a beating heart.
Current law effectively leaves the disposition of frozen embryos produced to treat infertility in the hands of would be parents. Parents can decide if embryos will be implanted, donated, or destroyed. Similarly, parents bear the responsibility for deciding what measures should be taken to treat very premature newborns. Frozen embryos, futuristic 12 week gestational fetuses in artificial wombs, and 21 week newborns "born alive" are not "viable" without the application of extraordinary medical ingenuity. No matter what medical miracles become available, the decision of whether or not to apply those technological miracles to help bring a new child into the world should remain in the hands of parents and their physicians, not politicians.