New abortion restrictions pose a serious threat to fetal surgery

The concept of fetal surgery captures the imagination when, from time to time, it makes the headlines. Few pregnant mothers will need the assistance of fetal medicine specialists; fewer still will need a fetal surgeon to save their children. But it can offer parents-to-be a sense of hope: In the appropriate circumstances, doctors may be able to help before the child is even born. Now, anti-abortion laws intended to protect the unborn may do the exact opposite by threatening this already-challenging field.

Operating in utero supposes a willingness, on the part of the mother and the medical team, to do everything possible to help an unborn child. One would think, therefore, that fetal doctors and opponents of abortion are aligned. While the ultimate goal may be the same, however, fetal surgery cannot happen without maternal autonomy: It means that a pregnant woman, of her own free will, places her life in the hands of the surgical team. As fetal and pediatric surgeons, we are ever aware of our responsibility to offer all possible options, in a nondirective way and based on sound medical evidence. Challenging a mother’s reproductive freedom, as the Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization ruling has done, betrays the trust between patients and their health care providers.

Legislating prenatal medical care and criminalizing termination will also have unexpected consequences for the fetus, precisely the one whose well-being these new laws are supposed to protect. Many of the restrictive laws that are being proposed in the wake of the Dobbs decision pose a real threat to the health of the unborn child. They create a state of ambiguity for doctors; this, in turn, will lead to second-guessing and delays in treatment.

When discussing the possibility of fetal surgery (or any intervention, for that matter), we always discuss the risks. First, of course, are the surgical risks to the mother, which are kept to an absolute minimum: After all, she is the one undergoing the operation, even though she herself is not ill. The risk to the fetus is more significant; it is a fragile being whose natural, protective environment is breached in the course of an invasive procedure. Since fetal surgery is indicated for only life-threatening or catastrophic conditions, however, the alternative (not intervening at all) is much worse, and most would accept a substantial surgical risk to the fetus.

The risk to the pregnancy itself may not be as obvious. The more invasive the procedure, the greater the risk of losing the entire pregnancy. Cutting through the uterus can cause premature labor; if this occurs too early in pregnancy, the newborn baby cannot survive outside the womb. After a minor procedure, like an amniocentesis, or “amnio,” when a fine needle is inserted in the uterus to test the amniotic fluid, the risk of losing the pregnancy is very low. After fetal surgery, that risk can be 10% or greater, even if the operation itself was a success and the fetus is seen to improve. Will physicians be discouraged from intervening, for fear that postoperative pregnancy loss will be interpreted as willful termination? Will they be advised that not intervening may be legally safer?

Most debates around abortion oppose the rights and well-being of the mother against those of the fetus. In twin pregnancies, that argument is more complicated: The well-being of one twin can conflict with that of the other, and strict interpretation of a law meant to protect the fetus may lead to impossible dilemmas. If one fetus has a life-threatening condition, should you operate (or deliver early) to save it, at the risk of harming the unaffected twin? Or should you protect the healthy twin, condemning the sick one? Such a situation requires careful ethical consideration based on sound medical advice, rather than an unrealistic edict to “save both fetuses.”

In twin-to-twin transfusion syndrome (TTTS), a condition seen as often as one in 10 identical twin pregnancies, excess blood from one fetus flows toward the other twin, endangering both. If TTTS is severe, in utero laser surgery can block the blood flow between the twins, but any fetal operation may cause pregnancy loss. Will intervention be allowed if only one twin shows signs of suffering? Or should you wait until they are both in heart failure, even though their chance of survival is now lower?

New laws meant to preserve fetal life at all costs have already led to scientific misinformation, such as the suggestion that an ectopic pregnancy (growth of a fertilized egg cell in the fallopian tube, rather than in the uterus, putting the woman at a high risk of sudden, severe bleeding and death if not treated in a timely fashion) should simply be surgically transferred to the uterus — a medical impossibility. It is not difficult to see how coercing doctors to perform dubious interventions would place mother and child at risk.

Fear of prosecution may limit a physician’s ability to offer sound, evidence-based medical information, especially when the news is not good. If a doctor tells a couple that their fetus with trisomy 13 has a very slim chance to survive beyond infancy, might that be interpreted as recommending termination, effectively imposing a gag order on honest medical advice?

Ambiguous laws around reproductive care lead to uncertainty and fear. They may push doctors and scientists to abandon fetal research in favor of “safer” fields of study. With that attitude, a couple who lost two children to Pompe’s disease would not have had the chance of having a healthy newborn, following in utero treatment with a novel enzyme-replacing therapy. This remarkable feat of medical ingenuity was the result of intense collaboration between several advanced clinical centers and the culmination of years of basic science research. Stifling innovation will hamper current and future forms of fetal intervention, robbing fetuses and children of lifesaving treatments.

Society has a responsibility to protect its members, and just laws ensure that everyone enjoys the right to be healthy and safe. Laws built on incomplete or erroneous information, however, can have unintended consequences and harm the very individuals they are designed to protect.

Francois I. Luks is a professor of surgery, pediatrics, and obstetrics & gynecology at the Alpert Medical School of Brown University and the pediatric surgeon-in-chief at Hasbro Children’s Hospital in Providence, Rhode Island. He is the director of the New England Fetal Treatment Program of New England and has been performing in utero surgery for more than two decades. Tippi MacKenzie is a professor of surgery at UCSF and director of the Eli and Edythe Broad Center for Regeneration Medicine and Stem Cell Research. Her team develops and implements new fetal therapies for patients with genetic diseases. Thomas F. Tracy Jr., M.D., MBA, is the executive director of the American Pediatric Surgical Association and its president-elect. He has served as chief medical officer at Penn State Hershey Medical Center, the Miriam Hospital, and Rhode Island Hospital.