“Baby Born at 22 Weeks”: Survival Rates, NICU and Comfort Care

When the Stitch Doesn’t Hold, Part 7 · 17 min read · Published November 2026 · Reviewed November 2026 · Next review May 2027

By Dr Rosemary Listing, PhD (Law) · Medical negligence specialist, in practice since 2013 · Of Counsel, Peter Evans & Associates

If you are reading this in a hospital bed, I am so sorry. You are being asked to make some of the hardest decisions a parent can make, very fast, with numbers that feel impossible. If you are reading it afterwards, I hope it helps you understand what happened and what was, or wasn’t, explained to you. And if you are a grandparent or a partner, reading so that you can help, thank you. Your presence matters more than you know.

This article is part of a series on failed cerclage and second-trimester loss, but it is for any family facing a birth at 22 or 23 weeks. It covers what happens before birth, the survival and disability figures from Australian guidance, the choice between intensive care and comfort care, how practice differs between states, and how the law looks at these decisions.

Why I can write this

I have been a medical negligence lawyer since 2013 and have worked on many hundreds of claims, a great many of them about pregnancy and birth. My doctorate looked at patterns of failure in medical negligence. I am not medically qualified. The figures here come from Safer Care Victoria’s guidance and parent information, Western Australia’s 2024 guideline, the NSW and ACT consensus statement, and a 2023 review in RANZCOG’s O&G Magazine, all listed at the end. Your own team can tell you how these apply to your baby.

Start with your question

• What is the survival rate for a baby born at 22 weeks?
• What about 23 weeks?
• What should happen before the birth?
• Intensive care or comfort care: how do we choose?
• Why do hospitals and states do it differently?
• How long would my baby be in NICU?
• Should we have been offered intensive care?

What “the edge of viability” means

Safer Care Victoria notes that the gestation at which active care is considered has steadily fallen over the past four decades [1]. A 2023 review in RANZCOG’s O&G Magazine found that there is “no standard approach to these extremes of viability”, that Australian guidelines have generally recommended palliation below 23 weeks, and that Victoria had recently moved to include 22 weeks in the zone of parental discretion [2].

The numbers: survival at 22 and 23 weeks

Numbers at this gestation are small, and they vary with where a baby is born, whether steroids were given, birthweight, whether it is a single baby or twins, and sex [1]. Please read them as a rough guide, not a prediction for your baby.

Source: Safer Care Victoria, parent information sheet for babies born at 22 weeks, December 2020 [3].

Of babies born at 22 weeks who survive to go home, Safer Care Victoria’s information, drawn from 53 survivors in eight high-income countries, says about 2 in 10 have no disability, about 4 in 10 have mild or moderate disability, and about 4 in 10 have severe disability, which can affect movement, speech, learning, behaviour, hearing or sight [3]. Western Australia’s 2024 guideline reports local data of around 4 in 10 babies surviving at 22 weeks, with 6 in 10 survivors having no disability at two years, but notes this reflects a small number of babies with favourable factors [4].

At 23 weeks, the outlook is better. In Victoria between 2009 and 2017, 45% of babies born alive at 23 weeks received active care, and half of those survived to one year; at 22 weeks, only 5% received active care, and none survived to one year [2]. In Western Australia between 2004 and 2010, survival at 23 weeks was 45.8%, and 68% of survivors were free of moderate or severe disability [2].

These figures change as care improves, and a figure from one state or decade may not reflect your hospital today. Ask your team for their own current numbers.

What should happen before the birth

If there is time before your baby is born, three things matter most.

• Transfer to a tertiary hospital. Safer Care Victoria says active care at 22 weeks should be considered only in ideal circumstances, such as birth at a Level 6 tertiary centre [1], and its parent information explains that the team may advise moving you before birth if it is safe [3]. Western Australia’s guideline says birth outside its tertiary hospital carries a significantly higher risk of death, and that transfer should be pursued whenever possible [4].
• Steroids. Steroid injections help a baby’s lungs, and having them is part of the “ideal circumstances” in the figures above [3]. Western Australia’s guideline says that when birth is likely within seven days, steroids should be given as soon as possible [4].
• Counselling with a neonatologist. Western Australia’s guideline says counselling should be given by a consultant neonatologist whenever possible, ideally with the obstetric team, using local data, with time to decide and a follow-up conversation [4]. Safer Care Victoria says decisions should reflect each woman’s circumstances [1].

Safer Care Victoria’s information is honest about timing: if a baby is born before transfer is possible, comfort care from birth may be the only option [3]. That is why these conversations should begin as soon as early birth looks possible, not when labour is already established.

Intensive care or comfort care

In plain terms: both are loving choices. Neither is giving up.

The choice is made by parents together with the healthcare team, based on the risk of death or of surviving with major disability [3]. You can change your mind, but should tell the team as early as possible [3]. Some families choose intensive care with a plan to review it if things go badly. Some choose comfort care so that their baby’s whole life is spent being held. Some have the choice made for them by timing. All of these are real, and none is wrong.

Questions to ask

• “Can we speak with a consultant neonatologist, as well as the obstetrician?”
• “What are your hospital’s own results at this gestation?”
• “Would moving to a tertiary hospital change our options? Is there time?”
• “Have I had steroids? Should I?”
• “If we choose intensive care and things go badly, what then?”
• “If we choose comfort care, where will we be, and who will be with us?”

If you choose comfort care

Comfort care is not doing nothing. Safer Care Victoria describes holding your baby, bathing and dressing them, having family visit, and creating memories, with the team’s help if you want it, and keeping your baby with you for as long as you wish [3]. Babies born this early may live for minutes or hours. Many families describe that time as the most precious of their lives. You can ask for photographs, hand and footprints, a lock of hair, a blessing or ritual, and for other children and grandparents to meet your baby.

If your baby was born alive, at any gestation, their birth and death are registered, and you may be entitled to leave and payments. The series article “Is 20 Weeks a Miscarriage or a Stillbirth?” explains certificates, funerals, leave and payments.

If you choose intensive care

At 22 weeks, Safer Care Victoria says to expect at least five months in a specialist neonatal unit [3]. Some babies survive for days or weeks and then die from serious complications [3]. Many families describe NICU as a rollercoaster: good days, frightening days, and the long wait for milestones like the first cuddle or the first feed. Ask about skin-to-skin contact, expressing breast milk, the social worker, and parent accommodation. Miracle Babies Foundation’s 24-hour NurtureLine, 1300 622 243, supports families in NICU [5], and my series on HIE after birth includes articles on the first week in NICU and early intervention and the NDIS that may help later.

Why it depends on where you are

Practice varies across Australia, and families are often not told this.

The NSW and ACT consensus dates from 2006. Practice has moved since in other states, and individual NSW hospitals may follow newer local policies.

The O&G Magazine review observed that Australia’s approach to extreme prematurity appears more conservative than some other high-income countries, such as the UK and Sweden [2]. That isn’t, by itself, a sign that your care was wrong. But it does mean the options you were given may have depended on your postcode and your hospital, and you are entitled to understand why.

What to look for in the records

My guide to getting and reading your birth records explains how to request them, and the Information and Privacy Commission explains your right to your own health information in NSW [7].

How the law looks at it

I want to say this carefully. Decisions at 22 and 23 weeks are among the hardest in medicine, guidance genuinely varies, and many good clinicians would make different choices. A baby who doesn’t survive at this gestation is, sadly, the most common outcome, and that is not negligence. The legal questions are narrower.

Standard of care. Under section 5O of the Civil Liability Act 2002 (NSW), care isn’t negligent if it was widely accepted in Australia by peer professional opinion as competent practice [8]. Because practice varies between states, an expert would ask what was widely accepted at your hospital, at that time. Questions often focus on the earlier links: whether symptoms were acted on, whether transfer was considered when there was time, and whether steroids were given.

Consent and information. Under Rogers v Whitaker [1992] HCA 58, you are entitled to be told about material risks and reasonable options [9]. Whether active care at 22 weeks was a reasonable option for you depends on where you were and the circumstances. At 23 weeks, it more often is.

Causation. This is often the hardest part at 22 weeks. In Australia, losing only a chance of a better outcome isn’t enough: Tabet v Gett [2010] HCA 12 [10]. If, even with ideal care, fewer than half of babies survive, it can be very hard to prove that better care would probably have changed the outcome. That is a painful legal reality, and it is why the questions in these cases often focus on earlier care, when a pregnancy might have continued to a safer gestation.

Who can claim. If a baby was born alive and died, the family may have a claim under the Compensation to Relatives Act 1897 (NSW), as well as the mother for her own injury. If a baby survives with lasting injury, the child may have a claim, and their time limits don’t always wait until they turn 18, so please ask early. The series article “Can I Sue the Hospital for My Miscarriage or Stillbirth?”, my page on pregnancy loss and stillbirth claims and my guide to time limits in NSW explain more.

In my practice

When families come to me after a birth at 22 or 23 weeks, they almost never start with the birth. They start with the days before: a phone call, a scan, a stitch, a symptom. That is usually where the real questions sit. By the time a baby is being born at 22 weeks in a hospital without a neonatal intensive care unit, the chain of small events that led there has mostly run its course: symptoms reassured, transfer not raised while there was time, steroids not started. I have learned to be honest with families that the law is often unable to help with the last hours, and to look carefully, with them, at the weeks before. And sometimes, as for the family in the stories, what matters most isn’t a claim at all, but being able to say out loud that a choice existed.

Both can be true

The paediatrician who sat on the end of the bed may have been kind, careful and following local practice, and the family may still have deserved to hear that other hospitals do things differently. Comfort care may have been the right choice, and it may still hurt that it wasn’t yours to make. You can be grateful for every minute you had and still want to understand why you had so few options.

The bigger picture

The edge of viability has moved over recent decades, and Australian guidance has moved unevenly with it [1][2]. Victoria’s 2020 guidance included 22 weeks in the zone of parental discretion; its review, due in 2023, was paused [1]. Western Australia’s guideline was updated in 2024 [4]. The published NSW and ACT consensus dates from 2006 [6]. The O&G Magazine review notes that only Victoria and Western Australia had published outcome data for babies born at 23 weeks or earlier [2]. Families in different states are therefore offered different choices, often without knowing it. In NSW, the Select Committee on Birth Trauma reported on 29 May 2024, with 43 recommendations [11].

Support

These services are free.

• Miracle Babies Foundation NurtureLine, 24-hour support for families with a threatened pregnancy or a baby in NICU: 1300 622 243 [5]
• Red Nose Grief and Loss, 24/7 support after the death of a baby: 1300 308 307 [12]
• Bears of Hope, pregnancy and infant loss support: 1300 11 4673 [13]
• PANDA, the National Perinatal Mental Health Helpline, for parents and families: 1300 726 306 [14]
• Pregnancy, Birth and Baby, a free call with a maternal child health nurse: 1800 882 436
• Lifeline, if you are in crisis: 13 11 14

My guide to finding support after birth trauma in Australia has more.

The grandmother in the stories still sings that song sometimes, driving on her own. She sings it for the hour and fifty minutes, and for the choice her daughter would have liked to make.

With care,
Rosemary

Frequently asked questions

When the Stitch Doesn’t Hold: the series

1. “What Happens If a Cerclage Fails?” Failed Cerclage and Losing a Baby in the Second Trimester
2. “Can I Sue the Hospital for My Miscarriage or Stillbirth?” Time Limits and Compensation After a Second-Trimester Loss
3. “Do They Check Your Cervix at the 20-Week Scan?” Short Cervix, Funnelling and Missed Risk Factors
4. “How Do You Know If Your Cerclage Is Failing?” Signs of a Failing Stitch or an Incompetent Cervix, and When They’re Brushed Off
5. “Emergency Cerclage at 20 Weeks”: Rescue Stitches, Bulging Membranes, Risks and Success Rates
6. “My Water Broke at 20 Weeks”: PPROM, Infection After Cerclage and What Happens Next
7. “Baby Born at 22 Weeks”: Survival Rates, NICU and Comfort Care (you are here)
8. “Is 20 Weeks a Miscarriage or a Stillbirth?” Giving Birth, Funerals, Certificates, Leave and Payments
9. “Why Am I So Angry After My Miscarriage?” Anger, Blame and “Is It My Fault?” After a Second-Trimester Loss
10. “Transabdominal Cerclage in Australia”: Before Pregnancy, Success Rates and When It Fails
11. “Pregnant Again After a Second-Trimester Loss”: How Long to Wait, a Preventative Stitch and Progesterone

More: Pregnancy loss and stillbirth claims · Birth trauma and obstetric negligence · HIE after birth · The birth injury map

References

1. Safer Care Victoria, Extreme prematurity clinical guidance (due for review November 2023; review paused).
2. Haakons K, Sharpe J, Koorts P, Pushing the limits of viability: how low should we go?, O&G Magazine (RANZCOG) 25(4), December 2023.
3. Safer Care Victoria, Parent information sheet: babies born extremely preterm at 22 weeks of pregnancy, December 2020.
4. Child and Adolescent Health Service (WA), Extreme prematurity: periviable gestations 22 and 23 weeks, March 2024, amended December 2024.
5. Miracle Babies Foundation, NurtureLine.
6. Lui K et al, Perinatal care at the borderlines of viability: a consensus statement based on a NSW and ACT consensus workshop, Med J Aust 2006;185(9).
7. Information and Privacy Commission NSW, Fact sheet: Accessing your health information in NSW.
8. Civil Liability Act 2002 (NSW), s 5O.
9. Rogers v Whitaker [1992] HCA 58.
10. Tabet v Gett [2010] HCA 12.
11. NSW Legislative Council Select Committee on Birth Trauma, Birth trauma, Report 1, May 2024.
12. Red Nose, Grief and Loss Support Services.
13. Bears of Hope Pregnancy & Infant Loss Support, bearsofhope.org.au.
14. PANDA, National Perinatal Mental Health Helpline.

The stories in this article are composites, drawn from the experiences of many families I have worked with, combined and changed so that no one can be identified. They do not describe any individual client.