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Genug ist genug: a fetus is not a kidney.

Genug ist Genug: A Fetus Is Not a Kidney

The Yiddish expression "genug ist genug" translates roughly into English as "enough is enough." Setting a boundary or horizon rather than advancing a fundamental rule, the expression is an aphorism rather than a moral principle. One suspects it is a universal aphorism, known to parents if not to philosophers in every culture. Its terseness conveys a sense of indignation at a request for tolerance pushed beyond some perhaps unspoken limit.

Surprisingly, when considering the ethics of fetal tissue transplantation, "enough is enough" not only captures the predictable frustration of anti-abortion forces but also resonates strongly for many who are inclined to tolerate abortion politically and legally, if not to welcome it morally. For these individuals, the tremendous new potential for using fetal tissue to treat severe and all-too-common illnesses causes not anticipation but concern.

Why should the development of a form of therapy predicted to be enormously beneficial trouble those who accept legalized abortion and most forms of fetal research? After all, patients with Parkinsons disease, and those with other diseases potentially treatable via fetal tissues, often suffer terribly, and fetal remains, if not used for transplantation, will probably only be discarded. Women have a legal right to abortion, and cadavers, whether fetal or otherwise, cannot really be said to have any interests one way or another. Why, then, should anyone not opposed to legalized abortion object to therapeutic use of fetal tissue?

Framing the issue in this fashion, however, requires accepting a set of "moral blinders" formed by two assumptions: 1) that use of cadaveric fetal tissue for transplantation is fundamentally equivalent to its use in teaching or research; and 2) that this use of fetal tissue can be isolated from its origin in elective abortions such that judgments about the moral status of the fetus and abortion are immune from any bias introduced by successful transplants.

A different moral vision would see in fetal tissue transplantation a problematic conceptual and linguistic amalgamation of transplantation and abortion that renews ambivalance about the legitimacy of society's claims on cadavers, magnifies moral tensions found in prior fetal research debates, and accents widespread concerns about the casual use of elective abortion as a primary means of family planning.

The querulous response "enough is enough" results from an intuition that transplantation of tissue from fetal cadavers threatens ethical values and our social ethods much more powerfully than does either legalized abortion or modest fetal research. These difficulties require restraint in both our language and our practices to prevent harmful shifts in our attitudes toward fetuses and elective abortion while permitting pursuit of medical benefits for those desperately in need.

Marvelous Uses for Fetal Tissue

In order fully to appreciate the powerful motivations toward using fetal tissue, we must abandon any pretense that it holds promise for only a narrow range of diseases. Providing new tissues and cells is a logical response to many types of cellular dysfunction (for example, pancreatic cells in diabetes and dopamine-producing neural cells in Parkinsons disease). Since fetal precursor cells are undifferentiated, they probably have important advantages over fully developed cells. Fetal cells are likely to grow rapidly and integrated with recipients' tissues, producing needed cell products under normal regulatory control.

The biological principle underlying these therapies indeed suggests a much vaster range of possible applications. [1] Other avenues for research include the use of fetal neural cells in the treatment of Huntington disease, Alzheimers disease, spinal cord or other neural tissue injuries, and possibly some forms of cortical blindness. The use of fetal liver cells for treatment of radiation-induced bone marrow failure has been attempted, and these cells may prove helpful for treating other diseases of the bone marrow, such as leukemia and aplastic anemia, or certain hereditary blood and clotting disorders, including sickle cell anemia, thalassemia, and hemophilia. Embryonic and early fetal cells might also be employed in various forms of genetic therapy.

These disorders are not uncommon. There are approximately half a million patients in the United States with Parkinsons disease and slightly more with diabetes. More than one and a half million people have Alzheimers disease and over a million have major blood disorders. Genetic diseases due to biochemical disorders affect approximately one percent of newborns, or some quarter million annually. Taken together, the number of individuals potentially treatable with fetal tissue therefore could reach hundreds of thousands per year.

Fetal Tissue Transplantation Under

the UAGA

A standard means of framing an ethical or policy response to developments in a new field is to draw analogies with a more familiar area. Thus, early in 1987, a group of respected neuroscientists, ethicists and lawyers went on record with the conclusion that retrieval of tissue from fetal remains "is analogous to the transplantation of organs or tissue obtained from adult human cadavers," placing fetal tissue transplantation squarely under the rubric of the Uniform Anatomical Gift Act (UAGA). [2] In fact, stillborn infants and fetuses had been explicitly recognized as potential sources of "anatomical gifts" when the UAGA was originally drafted in 1968, although this initial version was adopted by most states prior to the Supreme Court's 1973 decision in Roe v. Wade. No change in this part of the UAGA was suggested by revisions drafted in 1987, although these did not anticipate the dramatic proliferation of uses now forecast for fetal tissues.

Under the UAGA, either parent as next-of-kin (in the absence of objection from the other) can authorize donation of tissues or organs, and he or she can designate the recipient. The 1987 revisions would prohibit payment for donations intended for transplantation, and under the same revisions (and under similar policies of the Joint Commission for the Accreditation of Hospitals, federal funding provisions, and many state statutes), hospital personnel are required to request that families consider the option of organ or tissue donation on behalf of a deceased relative.

None of these provisions have restrictions that would prevent their application to fetuses. Hence, on its face, the UAGA directly permits donation of fetal tissue to "a designated individual for transplantation or therapy needed by that individual." This would thus permit a woman to conceive and abort a fetus in order to treat a family member, a prospect that has received nearly universal condemnation. Arguably, the required request provisions would also apply to "fetuses and stillborn infants."

The failure of the UAGA to anticipate the peculiar social, psychological, ethical, and political quirks that attend donation of fetal tissue means that special considerations must be brought to it rather than found in it. While placing cadaveric fetal tissue donation within the domain of the UAGA recognizes the special humanity of fetuses, fetal tissue and organ use generally stands apart from and thus should be distinguished from other donations. One particular aspect inspires lingering discord: fetal "gifts" are always authorized by others, and usually by an other who stands in a unique relation to an aborted fetus--the aborting woman-not-to-be-mother.

Under the UAGA, donations from cadavers, including those of stillborn infants and fetuses, may be made by others who have authority to determine the disposition of the body. Because the Act defines donors as individuals making "a gift" of all or parts of their bodies, the implication is often taken that a caring person speaks as a proxy for the deceased individual in authorizing the donation.

Within this model, the ability of the "proxy" to make an authentic gift of fetal tissue depends critically on the prior relation. In cases of spontaneous abortion, mothers who consent to donation of fetal tissue are perhaps no different than other relatives who are faced with the death of a loved one. However, if a woman has opted to end her pregnancy, then ethical objections arise to her claiming the role of "mother" and serving as a proxy for a fetal donation.

It would in general seem desirable to disqualify anyone having agency in another's death from then serving as a proxy for the purpose of making a donation. To participate in another's death is ultimately to objectify that other, to use the other for purposes not of his or her own. Thus, even if one believes elective abortion can be ethically justified (in general, or in specific cases), maternal consent--or indeed, societal consent--to donation still generates misgivings. We here encounter the boundary of genug its genug. The welfare of another being has been sacrificed, however legitimately, for the good of society or someone else. A moral intuition insists that being used once is enough.

In justifying research on living but nonviable fetuses, the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research invoked the concept of parental proxy consent, and two commissioners explicitly premised the validity of such consent on a "principle of proximity." [3] That is, the research envisioned was more acceptable because it involved the development of procedures and therapies that would be used in the medical care of pregnant women, fetuses, and premature infants--communities of beings close to the fetus. Conceptually, the fetus could be seen as a subject who might "want" to help these others.

When Mary Mahowald and her colleagues borrowed this imagery to ground use of fetuses for transplantation, they unintentionally caught themselves in a conceptual bind. They cite Richard McCormick: "With respect to the participation of children in low-risk experimentation, membership in a community may justify the procedure." [4] But in transplantation, the recipient community will largely be older children and adults, so that the justification for these activities resides in the claim society or the human community has on a fetus. In the setting of elective abortion a cruel irony thus emerges: fetuses that have been excluded from membership in the human community by a societally sanctioned maternal decision to abort now have obligations to that same community because of membership in it.

"Consent of a proxy" in this setting collapses into a kind of "moral trapping," a nicety we add to the process to improve its appearances. Beyond the usual problems with proxy consent and substituted judgments for never competent patients, this language is offensive because it glosses over deliberate decisions to use aborted fetuses. When cadavers result from elective abortions, legitimate justifications for transplantation include neither proxy consent nor proximate communities. One can only offer an absence of parental or societal objection to this kind of postmortem handling. It would be better to admit that in this context consent of the subject is meaningless, and that tissue procurement proceeds under a model closer to that of "routine salvage." [5]

From this perspective, routine salvage of fetal tissues should be morally acceptable if routine salvage were standard for other cadavers. Many justifications for using fetal tissue appear implicitly to assume that this is (or should be) the case:

...salvaging of fetal tissue is no different than the salvaging of an organ from a cadaver. The suspect consent of the woman about to abort does not invalidate its moral acceptability because consent is incidental rather than essential to the morality of salvaging cadaver tissue. [6]

In truth, however, there is considerable disagreement at the public policy level about whether organs and tissues should in general "belong" to individuals and their families (and be "donated" as gifts in a symbol of shared community and altruism) or whether they should "belong" to society (and be retrieved as a matter of course in a fashion that would theoretically increase social utility without requiring families to make painful decisions during grief). To make fetuses the harbingers of a move toward routione salvage as a basic mode of cadaveric treatment would therefore manifest a harsh but fairly consistent historical practice of looking first to society's outcasts when new necrogenous materials (such as autopsy specimens) are needed.

Fetal Tissue and the Language

of "Gifts"

The UAGA has established the language and model for transplantation in the United States to be that of "gifts," and the National Organ Transplant Act of 1984 reaffirmed and extended the gift model through prohibiting payments for organs. [7] Conceptually, reliance on the language of gift-giving for sharing of body parts reflects deep cultural attitudes toward cadavers. It should not then be surprising that this language becomes strained when extended to aborted fetuses as a prospective source of organs. Paralleling the problem of proxy consent, difficulties arise from language that would make fetuses equally tissue donations and, at the same time, tissue donors. An even more basic difficulty attends using the language of "gift" for tissue considered by the contributor to be worthless.

Under the UAGA an "anatomical gift" means "a donationof all or part of a human body to take effect upon or after death," and a "donor" means "an individual who makes an anatomical gift of all or part of the [deceased] individual's body." The use of the single term "donor" for both the decisionmaker (the one who makes the gift) and the source of the donation probably derives primarily from the desire to encourage individuals to sign written directives (such as organ donor cards) for themselves. [8]

At the same time, the use of the term "donor" in reference to the source of organs expresses something psychologically siognificant about the continuing identity of a deceased individual and the usual part-to-whole relation of a donated tissue or organ to an individual body. The physical reality of a dead human body gives a sense of continued presence, a concrete wholeness, that death in a sense belies. It is this being that becomes a donor of its charts, as an atom is a donor of electrons in a chemical reaction. This is, of course, to speak in metaphor, for intention is absent. Still, the usage captures an important typological distinction, for if the entire body is donated to science, or to a medical school for anatomical dissection, the meaning of donor shifts. The donor is the patron who bestows the cadaver, the one who has given up something to another.

Is a fetal cadaver, then, a donor, or a donation? It certainly cannot be a decisionmaker, cannot intend to share tissues and organs. Moreover, fetal remains are usually fragmented, hardly a concrete identity. Nonetheless, when its tissues are offered for transplantation, the donated fetal cadaver conceptually stands as an integral whole that can itself serve as a source--of pancreatic tissue, or neural tissue, or of one or more organs (perhaps all, as in multiple organ donations from nonfetal cadavers). Since these are differentiated human tissues and organs, the fetal source partakes symbolically in the same status accorded any other nonvoluntary transplantation "donor."

For clarity, it would help if those who offer others' bodies could be distinguished from autonomous individuals (donors) who freely bestow their own body parts. The former might better be thought of as "contributors," since to contribute is literally to give or supply in common with others. This would underscore that, the language of the UAGA notwithstanding, not all contributions need be gifts. Specimens obtained during surgery or at autopsy are not gifts, for example, for there is no donative intent. [9] When used for research or therapeutic purposes, these might reasonably be termed contributions.

Discriminating between gifts and contributions normally involves considering not only the intent of the giver but also the nature of what is offered. At core, one "gives" something valued to someone who will welcome it. Thus, authentic giving commonly involves some effort or sacrifice; there is an aspect of loss in offering a gift. Beyond that, gifts have special meaning. Gifts bind individuals to one another. Gift-giving therefore commonly takes place within special rituals and dramas. [10]

In these respects, a major problem arises in considering fetal tissue as a "gift" for transplantation purposes because to most women having abortions, fetal tissue has no value. How can something worthless be presented to another as a gift? Where is the sacrifice in conveying to another something otherwise discarded? If I clean out my attic, can I give my junk to someone as a gift?

That researchers and potential recipients now vest some types of discarded fetal tissue with enormous value can thus create a certain cognitive dissonance. How can something be simultaneously "worthless" and "priceless"? Yet resolving this dissonance decisively in either direction seems costly: it would clearly be dishonest to call fetal tissue worthless when it can be used to cure devastating illness, but to attribute its pricelessness to its therapeutic value just as clearly risks depreciation of the fetus in terms of any inherent value.

Rituals and Symbols: Transplantation

and Appropriation

The difficulties we encounter when seeking to handle new fetal tissue options through simple recourse to the UAGA thus manifest a deeper set of issues. These relate in part to a poverty of concepts and language for dealing responsibly with the unique physical and moral status of fetuses, and in part to a lack of congruence between our handling of fetal cadavers and the symbolic demands of transplantation understood as a ritual of appropriation.

If we reject the framework of the UAGA, we seem doomed to accept arguments that implicitly or explicitly equate fetuses with things or beings they are not--among them kidneys, tumors, and discarded surgicl specimens. Yet, biologically, the fetus is not a tissue or an organ, but a body, and morally, the fetus is a developing being and potential member of the human community. Fetal remains accordingly ought to evoke emotions and protections beyond those given tumorous tissue or unwanted organs. Despite their incomplete development, dead fetuses share with other human cadavers features such as a unique genetic identity, a species-specific physical appearance, and a truncated participation in human social relations. Though smaller than other human cadavers, they deserve some form of respect. Perfunctory dicing, shearing, pounding--all perfectly acceptable for an excised tumor or kidney--require special justification when the "tissue fragment" is a fetal corpse. The reality of an antecedent abortion cannot justify the conclusion insinuated by one reporter's only partly facetious inquiry: "Isn't a fetus the same as a kidney?"

The claim that fetuses are merely excised tissue has generated a more troubling line of argument--that fetal parts (in analogy to blood, urine, and semen) constitute "renewable tissue" and are therefore legitimately marketable. [11] But viewing the fetus as tissue to be sold too facilely accepts fetuses as the property of parents, or more specifically, mothers. One's offspring are not generally considered property, and embryos and fetuses are hardly "renewable" in the same sense as are blood cells, plasma, or even sperm and ova. With "ownership" of one's own tissues and organs a controvertible concept, an uncritical adoption of the property approach for the genetically and functionally distinct tissues and organs of the fetus seems particularly unwise.

We must acknowledge, nonetheless, that aborted fetal remains, unlike nonfetal cadavers, are usually unceremoniously discarded. This fact makes the debate over fetal tissue transplantation seem absurd to many researchers. Using language that describes surgical tissue specimens slated for disposal, they assume that "if something useful can be done with it before it is destroyed, so much the better for all concerned." [12] By implication, the absence of burial rituals for fetal remains should silence our qualms about using the tissue for research or transplantation.

In fact, just the opposite may be true. Rather than automatically sanctioning a practice of routinely salvaging parts for transplantation, the absence of any meaningful ritual for disposing of electively aborted fetuses bespeaks important discontinuities between fetal and other cadavers, discontinuities that have both symbolic and moral relevance. Dismemberment alone does not seem to be the critical feature, for although most techniques for first trimester elective abortions do yield fragmented fetal tissue, there are typically no rites for (intact) early spontaneously aborted fetuses either, although often there is grieving. Miscarriages late in pregnancy sometimes generate specific inquiries from parents about what will happen to the body, with cremation after pathological examination the routine and well-tolerated response.

The increased interest in postmortem disposition after miscarriage late in pregnancy, and after miscarriage as opposed to elective abortion, together reveal the key discontinuity between fetal and other cadavers. If an emotional bond has been formed with the fetus, then the fetal corpse is more likely to be perceived as the body of a family member, requiring proper care. If spontaneous abortion occurs before a bond has formed, or if a woman elects to abort, concern about the fetus usually ends with its expulsion from the body. In the case of elective abortion, women may actively erect a mental barrier against further consideration.

Introducing the prospect of transplantation of fetal tissue may effectively dissolve this barrier. A new and not entirely savory link may be formed with an aborted fetus, for it can be defined now as a source of benefit for others. And while this may be true to some extent of all cadavers, in the case of an aborted fetus no other meaning bonds this being to those who would ue it.

A pregnant woman considering elective abortion could have a vested interest in pursuing transplantation--if not for money, then to relieve guilt. It has been suggested that, to shield their decisions from possible bias, women be informed about the option of transplantation only after an abortion, but this simply misses the point because media attention virtually guarantees that knowledge of this option will not come first from obstetricians or clinic personnel. Even if no single woman would list "the opportunity to save somewhat's life with a tissue donation" as her reason for deciding to have an abortion, dramatic transplantation successes with fetal tissue may nevertheless erode individual and societal inclemency toward abortion, making it a more acceptable form of family planning.

Unfortunately, some women have already indicated a willingness to conceive and then abort a fetus for the purpose of donating tissue to a relative to treat a disabling disease, such as Parkinsons. This possibility captures the most odius features of fetal transplantation's potential new meanings for the relation between parents and offspring, and especially between mother and fetus.

As William May brilliantly observes, one of the basic images that lends death its horror is that of the devourer. [13] Particularly powerful and threatening are symbols of the devouring mother. Hence, part of the horror associated with the thought of a woman using a fetus purely to benefit herself or another springs from an ineluctable subconscious association of these acts with a primordial or archetypal image--that of a mother turning and eating her child. The intended benficence of the act is impotent to wash away the defilement implicit in such imagery.

Unfortunately, almost any linking of fetuses with transplantation risks evoking similar associations. Even women who do not directly benefit from transplantation efforts may, by allowing tissue retrieval, seem to "fail to protect" the dead fetus, letting it fall prey to the needs of others. Subliminally, this threatens unconscious beliefs about the role of women as mothers specifically and as protectors of vulnerable beings more generally. No matter that the fetus is dead--mothers should still fend off the scavengers.

In May's analysis of adult organ retrieval and transplantation as a process of consumption, justification and meaning for these acts can be found at the symbolic level: transplantation rites may substitute for burial rituals as a symbolic appropriation-yet-surrender of a lvoed one to death's otherwise meaningless devouring. Ritualized appropriation thus reaffirms the grounds of appropriation. Such rituals are essential to establish that the "person does not belong without limit to his society." [14] For adults, this imagery fits perfectly with the notion of organ donation as gift: "transplantation provides an opportunity to turn a personal and familial tragedy into a marvelous gift of life for others. It is a unique way to affirm and share our humanity." [15]

Erecting Barriers

Prior to having the option of "donation," women routinely furnished tissue from electively aborted fetuses without any thought of "gift." As Angela Holder noted in 1985, "[m]ost research institutions now have on their consent forms for abortions a sentence such as, 'I also authorize the Hospital to preserve for diagnostic, scientific or teaching purposes or otherwise dispose of, in accordance with customary medical practice, the fetal or other tissue or parts removed as a result of the abortion." [16] Thus, women undergoing abortions were regularly requested to authorize any reasonable use that a clinician or researcher would make of the resulting fetal tissue.

The advent of fetal tissue transplantation has caused a loss of innocence. The routine use of fetal tissue for research purposes was undeniably an appropriation, but because no one attributed an inordinate value to the otherwise discarded tissue, the act of furnishing it held little relevance to a woman's entire abortion experience. Any benefit from the tissue was diffuse and statistical, an unimportant by-product that left the value of the fetal cadaver essentially unquestioned. Even the issue of maternal consent was less emotionally charged, because there was no serious conflict of interest, no reason for a woman to consider the eventual disposition of an unwanted fetus when making a decision about contraception or abortion.

If the drama that attends transplantation of fetal tissue directly into a human recipient results not just from novelty, but from a legitimate analogy with other types of organ donation, then this form of routinized retrieval is unsatisfactory. Treating fetal cadavers under a model that approximates routine salvage cannot help but depreciate and objectify them. And it seems truly an open question whether this diminution can be prevented from reflecting similarly on fetuses in general.

In practical terms, the most likely consequence of routine retrieval of fetal tissue for potential transplantation would be to provide a major disincentive to designing programs that would decrease the incidence of elective abortion. Contraception as an alternative means of family planning is often given priority because it does not require women to undergo the experience of an abortion. Life-saving cures resulting from use of cadaveric material might indeed make aabortion, and fetal death, seem less tragic. Enhancing abortion's image could thus be expected to undermine efforts to make it as little needed and little used a procedure as possible.

Fortunately, few deny abortion's poignancy, even among those who demand most forcefully that it be freely available to every woman. Prohibiting direct incentives for women to choose an elective abortion should therefore be relatively easy, and can be accomplished through regulation of human subjects research or through modification of existing laws. [17] Since they have not yet been adopted by the individual states, a rethinking of the 1987 revisions to the UAGA might be valuable. Payments for organs are already prohibited under these revisions, and designation of recipients might simply be eliminated, since arguably this provision poorly serves the social goal of promoting altruism even with adult cadavers. Reconsideration of "required request" provisions should at least clarify whether fetuses and stillborn infants should be included as "patients."

Preventing indirect incentives and subtle changes in social attitudes may prove much more difficult. Since transplantation of fetal tissue would hold out the potential of saving individual and not statistical lives, its impact on attitudes toward abortion would generally be felt more keenly thanthat of other potential research uses. Swedish regulations attempt to deal with this concern by specifying that only half of all "donations" of fetal tissue will actually be used. [18] Similarly, a consent process approved by the institutional review board at Yale University School of Medicine would leave uncertain the precise eventual use of any tissue obtained after elective abortion. [19]

These are important first steps. Still, neither scheme makes a major statement that might dispel the societal approbation likely to attend initial successes with fetal tissue. A better solution, therefore, would be to prohibit fetal cadavers resulting from elective abortion as a source of tissue for users that are likely to evoke images of transplantation and gift--and therefore most likely to influence societal attitudes.

Would this mean excluding fetal tissue obtained after elective abortion from any use in transplantation? Perhaps not. In the past decade, not only research but also some forms of fetal tissue transplantation have gone on without noticeably influencing abortion rates or societal understandings of the practice. It is the move toward one-to-one transfers of fetal tissue to waiting adults that has invited scrutiny of the gift model of the UAGA; perhaps this suggests a path of resolution.

We might, for example, capitalize on our ability to distinguish contributions from donations. Fetal tissue from elective abortions could continue to be used for the former, but it should not be used for the latter, where the gift model requires identification of a source of tissue that can be offered in honest analogy to adult organ "donations."

Donations can be identified through several features. Most important, they are marked in adult organ transplantation by a one-to-one ratio of organs from source to recipient. That is, one "donated" heart serves one recipient. By analogy, transplantation of neural tissue from one fetus into a single patient with Parkinsons would be a donation, while transplantation of pancreatic islet cells from one fetus into many patients with diabetes would be a contribution.

The judgment that authorization to use islet cells can legitimately be deemed contribution relies on the loss of individual identity (fetal or otherwise) that results from disaggregation of pancreatic cells and tissues that are then distributed to multiple recipients under an untraceable anonymity. Although a greater number of recipients may potentially benefit, the benefits, like those of research, become statistical and distant rather than fixed and immediate. Instead of the drama of organ donation, use of cells in this fashion more closely parallels transfusion from such "renewable" stocks are stored blood and plasma products.

The type of tissue or organ under consideration also seems relevant. Not only have organs traditionally been viewed as more "valuable" than cells, but some types of organs also elicit more dramatic emotional appeal. These would therefore require donation under a gift model. Heart and brain seem to be the most obvious examples, with the historic identification of each with the self not only enhancing their perceived value but again suggesting that when source or recipient maintains a clear identity, a gift relation is demanded.

Another feature distinguishing donations from contributions deals with the relation between the populations from which source and recipients are drawn. The more distant the relation, the more gift-like the exchange. For example, using fetal neural tissue to treat elderly patients with Alzheimers would seem to requiire a gift model while using fetal thymic tissue to treat infants with immune deficiencies does not. The concern reflected here is the potential for exploitation of the class that functions as source by tghe class that functions as recipient. The greater the potential for exploitation, the more necessary the protection of a gift relationship. (For adult donations, and therefore metaphorically for fetuses, it is more "generous" to donate to those other than one's closest community.)

Finally, the spotlight of media attention adds a drama to any event. The introduction of any new fetal tissue use therefore calls for treating what might otherwise be routine contributions under the model of "gifts." Explicit recourse to the gift model (and tissue obtained outside elective abortion) would maneuver the fanfare that attends novel uses to stress the importance of separating decisionmaking about elective abortion from use of cadaveric tissue. As public awareness of a new practice fades, so too does its ability to change individual or societal attitudes toward abortion, and so too does the need for reliance on special tissues.

A Compromise Course?

Admittedly, successful employment of the distinction between contributions and donations depends on developing a source of tissue to be used when tissue from electively aborted fetuses is restricted because of imposition of the gift model. Are other sources potentially available? Tissue from fetuses that have been spontaneously aborted has been suggested, but with this source the possibility of fetal abnormality is high. In addition, most miscarriages occur prior to a gestational age that would make them useful for transplantation, and little of the tissue is practically retrievable.

Fetal tissue obtained at the time of surgery for ectopic pregnancy, in contrast, is unlikely to have a substantially increased incidence of chromosomal abnormality, [20] may be more likely to encompass a variety of gestational ages, and can be retrieved at the time of surgical intervention. In ectopic pregnancy, implantation occurs outside the uterus; since in almost all cases, surgical removal of the embryo or fetus is necessary to save the life of the mother (and without removal, both mother and fetus would die), tissues obtained in this context may perhaps legitimately be offered as gifts. Over 75,000 ectopic pregnancies occur each year, and although some require such urgent treatment that consent for fetal tissue retrieval would be impossible, others might allow time to page an investigator and special technician prior to surgery. [21] This would, of course, be much less convenient for clinician-investigators, and would probably require freezing of tissue for later use. On the other hand, freezing fetal tissue is now possible, and might be necessary in any event to insure the safety of the tissue. [22]

Burdening a woman who has just learned of an ectopic pregnancy with a consent discussion about fetal tissue donation may seem a high price to pay for a symbolic statement about fetal value. But when a gift-like donation is at issue, only the use of fetuses that are free of association with elective abortion stands on firm moral ground. These fetuses, at least conceptually, can be seen as "wanted" and capable of sharing fully in the benefits of society had they survived. They have a "proximate community" not only in other fetuses and children but in the entire community they were unable, not unwelcome, to join. Most significantly, they are not as a class at risk of increased exploitation secondary to successes with transplantation: ectopic pregnancy rates are not sensitive to societal attitudes about the worth of fetuses or fetal tissue.

Beyond the strategic motive of avoiding political conflagrations, this compromise course strikes a balance between protecting threatened (albeit possibly minority) values and attaining desired benefits. To proceed apace is to impose a majority view of fetal importance; to retreat from fetal tissue are entirely would be to hold the value of an ideal above the suffering of actual individuals. If discussion is limited to postmortem donation, the conclusion that tissue should be made available seems inescapable. Nonetheless, seeking tissue from fetal cadavers need not dissolve into a licence to use beings that come to be seen as irrelevant except as bits of medicinal tissue, or as more valuable to the community dead than alive.

While inconvenient, this limitation seems workable, treats the fetal "donor" with respect, and gives no appearance of endorsing or encouraging abortion. Indeed, it recognizes the special status of the fetus precisely by refusing to proceed in a routine fashion.

Appearances and Realities

Does allowing contribution of fetal tissue to continue in a relatively unrestricted fashion frustrate the aim of preventing further deterioration in the status of fetuses in society? In part, yes. Such a practice does permit fetal cadavers in many instances to be treated more like surgical specimens than cadavers. But even totally forbidding use of the tissue for research or transplantation would leave perceptions and practices in most abortion clinics essentially unchanged. In most instances, fetal tissue is discharged tissue.

Still, restricting true donations to situations of spontaneous abortion or ectopic pregnancy signals that elective abortion is not considered a completely morally neutral enterprise. That fetuses can be recognized as donors symbolizes a tenuous continuity with the human moral community; that they can in some circumstances be used more indiscriminately indicates that breaks in that continuity can and do occur, and are tolerable though not happily embraced.

Attempts to ban use of tissue from electively aborted fetuses would in practical legal terms probably require banning all use of fetal tissue. Proceeding with transplantation as though the only issue were an innovative use of cadaveric tissue means relying instead on the hope that the experience with fetal research (in terms of a lack of effect on abortion practices) will be replayed in the context of transplantation. Both extremes beckon a bracketing of important realities to reach an either/or solution. A more honest response may imply living with contradictory appearances and inconsistent realities. A willingness to do so may prevent erosion of values that spring from other, and older, fetal marvels. A fetus isn't a kidney, even when we act as if it is....


[1] For one of the earliest discussions of the potential (and ethics) of fetal tissue transplantation, see Maurice J. Mahoney, et al. "The Nature and Extent of Research Involving Living Human Fetuses," in The National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, Appendix: Research on the Fetus, DHEW Publication No. (OS)76-132, Washington, 1976, pp. 1.1-1.48.

[2] Mary B. Mahowald, et al., "Transplantation of Neural Tissue from Fetuses," Science 235 (March 13, 1987), 1307-1308.

[3] The National Commission for the Protection of Subjects of Biomedical and Behavioral Research, Research on the Fetus: Report and Recommendations. DHEW Publication No. (OS), 76-127, Washington, 1975, p. 87.

[4] Mary B. Mahowald, et al., "The Ethical Options in Transplanting Fetal Tissue," Hastings Center Report 17:1 (February 1987), 9-15.

[5] For descriptions of the alternative systems under which procurement may take place, see Arthur L. Caplan, "Organ Transplants: The Costs of Success," Hastings Center Report 13:6 (December 1983), 23-32.

[6] Albert R. Jonsen, "Transplantation of Fetal Tissue: An Ethicist's Viewpoint," Clinical Research 36:3 (April 1988), 219.

[7] P.L. 98-507. The Omnibus Health Bill enacted October 13, 1988 explicitly extended this prohibition to sale of fetal organs and "subparts thereof." (Title 4).

[8] I am grateful to James Childress for pointing out the importance of distinguishing decisionmakers from sources.

[9] Angela R. Holder and Robert J. Levine, "Informed Consent for Research on Specimens Obtained at Autopsy or Surgery: A Case Study in the Overprotection of Human Subjecte," Clinical Research 24:2 (February 1976), 68-77.

[10] Thomas H. Murray, "Gifts of the Body and the Needs of Strangers," Hastings Center Report 17:2 (April 1987), 30-38.

[11] Rorie Sherman, "The Selling of Body Parts," The National Law Journal, December 7, 1987, 1-4.

[12] Holder and Levine, "Informed Consent for Research."

[13] William May, "Attitudes Toward the Newly Dead," Hastings Center Studies 1:1(1973), 3-13; for a critique of May's analysis, see Joel Feinberg, "The Mistreatment of Dead Bodies," Hastings Center Report 15:1 (February 1985), 31-37.

[14] May, "Attitudes Toward the Newly Dead," 8.

[15] Stuart J. Youngner, et al. "Psychosocial and Ethical Implications of Organ Retrieval," New England Journal of Medicine 313:5 (August 1, 1985), 322-23; this article contains a graphic description of the experience of organ retrieval in adults and the need for ritual farewells.

[16] Angelea R. Holder, Legal Issues in Pediatrics and Adolescent MEdicine (New Haven: Yale University Press, 1985), 64.

[17] Mark W. Davis, "Fetal Tissue Transplants: Restricting Recipient Designation," Hastings Law Journal 39:5 (July 1988), 1079-1107.

[18] Lena Johnson, Swedish Ministry of Health and Social Affairs, personal communication.

[19h Robert J. Levine, Testimony presented at the Meeting of the Human Fetal Tissue Transplantation Research Panel, National Institutes of Health, Bethesda, Maryland (September 15, 1988).

[20] See Sherman Elias, et al., "Chromosomal Analysis of Ectopic Human Conceptuses," American Journal Obstetrics and Gynecology 141:6 (November 15, 1981), 698-703.

[21] Hani K. Atrash, et al., "Ectopic Pregnancy Mortality in the United States, 1970-1983," Obstetrics and Gynecology 70:6 (December 1987), 817-22.

[22] Timothy J. Collier, et al. "Intracerebral Grafting and Culture of Cryopreserved Primate Dopamine Neurons," Brain Research 436:2 (December 15, 1987), 363-66; Centers for Disease Control, "Semen Banking, Organ and Tissue Transplantation, and HIV Antibody Teting," Morbidity and Mortality Weekly Report 37:4 (February 5, 1988), 57-8, 63.

Kathleen Nolan is associate for medicine at the Hastings Center in Briarcliff Manor, NY.
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Title Annotation:fetal tissue transplantation
Author:Nolan, Kathleen
Publication:The Hastings Center Report
Date:Dec 1, 1988
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