Liam Gibson, blogpost

Animals such as octopuses, crabs and lobsters are to receive increased legal protection under draft legislation making its way through the House of Lords. The Animal Welfare (Sentience) Bill means that when UK government policy is being formulated or applied it must consider any potential “adverse effect on the welfare of animals as sentient beings”. 

Originally the Bill only applied to “vertebrates” – meaning creatures with backbones – “other than homo sapiens”. However, following the publication of a report from the London School of Economics (LSE), this definition will be expanded. Cephalopods and molluscs, such as octopuses and squid, and crustaceans, such as lobsters, crabs and crayfish, are now to be regarded as possessing sentience.

Molluscs and crustaceans to hold a legal status higher than that of an unborn child

 Having complex nervous systems means these creatures are capable of perceiving sensations; so, logically, they can also experience pain. But the statutory recognition of octopuses and lobsters as sentient beings also effectively means that molluscs and crustaceans will hold a legal status higher than that of an unborn child threatened by abortion. 

Scientists at LSE admit that there is no consensus on whether invertebrates actually are sentient, but the government has followed its recommendation to give these animals the benefit of the doubt. 

"No doubt about the physiological development of the unborn child"

There is, however, no doubt about the physiological development of the unborn child. By six weeks after conception, the basic human nervous system is established.[1] The cortical structure responsible for thinking, memory and higher brain functions also begins to form around this time.[2] Babies as early as eight weeks exhibit reflex movement during invasive procedures.[3] In 2006, two studies using brain scans found a “clear cortical response” and concluded there was “the potential for both higher-level pain processing and pain-induced plasticity in the human brain from a very early age”.[4]

Children as young as 18 weeks can be operated on for dozens of conditions while still in the womb and pain relief is routinely administered as standard medical practice.[5]  Despite this, courts in the UK have systematically undermined the legal status of unborn children and denied them the right to life guaranteed by Article 2 of the European Convention on Human Rights. But this anomaly may become increasingly unsustainable in the light of scientific advances.

In 1992, a Norwegian man brought a case to the European Court of Human Rights after his girlfriend aborted their 14-week-old baby.[6]  While the case was ruled inadmissible, due in part to insufficient evidence, the Court accepted in principle that the abortion of an unborn child capable of feeling pain could amount to cruel and inhuman treatment prohibited by Article 3 of the Convention. Unlike the other provisions of the Convention, Article 3 is absolute – torture, inhuman or degrading treatment can never be justified. There are no exceptions. 

Since 1992, the evidence of foetal pain has put the scientific debate beyond dispute. Writing about the issue, Dr Grégor Puppinck of the European Centre for Law and Justice believes that a similar case today could have a very different outcome:

"Possibly, a father or grandparent of an unborn child will one day complain before the Court in order to save the life of their child. All that a father or grandparent would have to do is fax a letter to the Court under article 39 of the Rules of the Court, requesting it to take urgent and interim measures in order to avoid the realisation of a serious and imminent risk of breach of a fundamental right…the Court could also order, under article 39, that the in utero embryo or foetus should not be destroyed until it assessed the compatibility with the Convention of this abortion.

All the father or grandparent of an unborn child would have to do is to request that the rights to life (Art. 2) and to physical integrity and dignity (Art. 3) of their unborn child or grand-child be preserved, and that their right to family life (Art. 8) be protected…This procedure has never been used yet, but it could be effective. It would be consistent with the original meaning of the Convention and with the Court’s own case-law.[7]

Mammals even during foetal stage can "experience pain, suffering and anguish"

And it is not just in the UK where science is forcing a change in attitude towards the treatment of animals. From 2022, Germany will ban the killing of male chicks by the poultry industry.[8] And, since chicken embryos are sensitive to pain when just seven days old, by 2024, they too will receive the protection of the law. 

EU legislation also recognises that mammals even during the foetal stage can “experience pain, suffering and anguish”. DIRECTIVE 2010/63/EU “on the protection of animals used for scientific purposes” confirms that: “Scientific evidence also shows that procedures carried out on embryonic and foetal forms at an earlier stage of development could result in pain, suffering, distress or lasting harm…”[9]

Scientific research has altered how invertebrate animals like molluscs and crustaceans are regarded in law. While the abortion industry has stripped unborn children of their human rights, scientific reality will eventually make it impossible for the courts to defend this position. In fact, the tide may have already begun to turn. 

In the coming months, the U.S. Supreme Court will rule on whether Mississippi’s restrictions on abortion are compatible with the American Constitution. One of the issues the judges will consider is the research into foetal pain, evidence which was unknown in 1973, when Roe v Wade was decided. 

Any honest examination of this evidence can lead to only one conclusion: regardless of the stage of their development, their state of health or the circumstances of their conception, unborn children are fully human and as such deserve equal protection under the law.  

1. BM Carlson, Patten’s Foundations of Embryology, (6th edn) (McGraw-Hill, 1996); E Nikolopoulou et al, Neural tube closure: cellular, molecular and biomechanical mechanisms, Development, 144, 552, 2017.
2. I Bystron et al, “The first neurons of the human cerebral cortex,” Nature Neuroscience, 9, 880, 2006.
3. Y Ohashi et al, “Success rate and challenges of fetal anesthesia for ultrasound guided fetal intervention by maternal opioid and benzodiazepine administration,” J Maternal-Fetal Neonatal Medicine, 26, 158, 2013.
4. R Slater et al, Cortical Pain Response in Human Infants, J Neuroscience, 25, 3662, 2006; M Bartocci et al, “Pain Activates Cortical Areas in the Preterm Newborn Brain,” Pain, 122, 109, 2006.
5. See, eg, MV Ramirez, “Anesthesia for fetal surgery,” Colombian Journal of Anesthesiology, 40, 268, 2012; KM Tran, “Anesthesia for fetal surgery,” Seminars in Fetal & Neonatal Medicine, 15, 40, 2010; U Schwarz and JL Galinkin, “Anesthesia for fetal surgery”, Semin Pediatr Surg, 12, 196, 2003; KJS Anand and PR Hickey, “Pain and Its Effects in the Human Neonate and Fetus,” N Engl J Med, 317, 132, 1987.
6. H v Norway, 17004/90, Decision of inadmissibility of the former Commission of 19 May 1992 at 167 
7. Grégor Puppinck, “Abortion and the European Convention on Human Rights” 3, 2, Irish Journal Legal Studies, 190
8. Clare Marie Merkowsky, “Germany bans killing chick embryos because they feel pain, but still allows abortion of humans”, 16 June 2021, Lifesite News https://www.lifesitenews.com/news/germany-bans-killing-chick-embryos-because-they-feel-pain-but-still-allows-abortion-of-humans/
9. Directive 2010/63/EU of the European Parliament and of the Council of 22 September 2010 on the protection of animals used for scientific purposes. 9. https://www.legislation.gov.uk/eudr/2010/63#