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Rights, symbolism, and public policy in fetal tissue transplants.

Rights, Symbolism, and Public Policy in Fetal Tissue Transplants

Fetal tissue transplants hold great hope for many patients. Extensive work with animal models has shown that human fetal brain cells transplanted into the substantia nigra of monkeys with exogenously produced Parkinson's disease have restored their function. Physicians expect similar results in humans, to the benefit of thousands of patients. [1] Experimental evidence is also strong that fetal islet cell transplants will restore normal insulin function in diabetics. [2] And fetal thymus and liver transplants may have utility for blood and immune system disorders.

Clarifying the Issues

As with many issues in bioethics, careful analysis will help elucidate the normative conflict, showing both areas of agreement and irreducible conflict. An essential distinction in the fetal tissue controversy is between procuring tissue from family planning abortions and procuring tissue from abortions performed expressly to provide tissue for transplant. Although opponents of fetal tissue transplants have often conflated the two, tissue from family planning aboritons may be used without implying approval of abortions to produce tissue. Indeed, with ample tissue available from family planning abortions, the latter scenario may never occur.

A second important distinction is that between retrieving tissue for transplant from dead and from live fetuses. Only the use of tissue from dead fetuses is at issue. Researchers are not proposing to maintain nonviable fetuses ex utero to procure tissue, or to take tissue from them before they are dead, practices that current regulations and law prohibit. [3]

A third set of tissues concern tissue procurement procedures. If fetal tissue transplants do occur, questions about the timing, substance, and process of consent must be addressed, as well as the role of nonprofit and for-profit agencies in retrieving and distributing fetal tissue. As with solid organ transplantation, effective tissue procurement may occur without buying and selling fetal tissue.

At present there are few legal barriers to research or therapeutic use of donated fetal tissue for transplant. The Uniform Anatomical Gift Act (UAGA) in all states treats fetal remains like other cadaveric remains and allows next of kin to donate the tissue, though a few states have laws banning experimental use of aborted fetuses. [4] Federal regulations for fetal research, enacted in 1976 after careful study by the National Commission for the Protection of Human Subjects of Biomedical and Behavorial Research, permit research activities "involving the dead fetus, mascerated fetal material, or cells, tissue, or organs excised from a dead accordance with any applicable state or local laws regarding such activities." [5]

The most immediate public policy question is whether these rules should be changed to prohibit experimental or therapeutic fetal tissue transplants, as the most extreme opponents urge. A second public policy issue is whether federal funding of fetal tissue research should occur. A third set of policy issues concerns the circumstances and procedures by which fetal tissue will be retrieved.

Tissue From Family Planning


Fetal tissue transplant research for Parkinson's disease, diabetes, and other disorders will use tissue retrieved from the one and a half million abortions performed annually in the United States to end unwanted pregnancies. Nearly 80 percent of induced abortions are performed between the sixth and eleventh weeks of gestation, at which time neural and other tissue is sufficiently developed to be retrieved and transplanted. [6] Abortions performed at fourteen to sixteen weeks provide pancreatic tissue used in diabetes research, but it may prove possible to use pancreases retrieved earlier. [7]

No need now or in the foreseeable future exists to have a family member conceive and abort to produce fetal tissue. The neural tissue to be transplanted in Parkinson's disease lacks antigenicity, thus obviating the need for a close match between donor and recipient. Fetal pancreas is more antigenetic, but processing can reduce this, also making family connection less important.

The key question is whether women who abort to end unwanted pregnancies may donate the aborted fetuses for use in medical research or therapy by persons who have no connection with or influence on the decision to terminate the pregnancy. One's views on abortion need not determine one's answer to this question, because the abortion and subsequent transplant use are clearly separated. But some opposed to abortion object that transplanting fetal tissue involves complicity in an immoral act and will legitimate and even encourage abortion. Analysis of these concerns will show that they are insufficient to justify a public policy that bans or refuses to fund research or therapy with fetal tissue from induced abortion.

Complicity in Abortion

Even proponents of the complicity argument recognize that not all situations of subsequent benefit make one morally complicitous in a prior evil act. For example, James Burtchaell claims that complicity occurs not merely from partaking of benefit but only when one enters into a "supportive alliance" with the underlying evil that makes the benefit possible. He distinguishes "a neutral or even an opponent and an ally" of the underlying evil by "the way in which one does or does not hold oneself apart from the enterprise and its purposes." [8]

On this analysis, a researcher using fetal tissue from an elective abortion is not necessarily an accomplice with the abortionist and woman choosing abortion. The researcher and recipient have no role in the abortion process. They will not have requested it, and may have no knowledge of who performed the abortion or where it occurred since a third-party intermediary will procure the tissue. They may be morally opposed to abortion, and surely are not compromised because they choose to salvage some good from an abortion that will occur regardless of their research or therapeutic goals.

A useful analogy is transplant of organ and tissue from homicide victims. Families of murder victims are often asked to donate organs and bodies for research, therapy, and education. If they consent, organ procurement agencies retrieve the organs and distribute them to recipients. No one would seriously argue that the surgeon who transplants the victim's kidneys, heart, liver, or corneas, or the recipient of the organs, becomes an accomplice in the homicide that made the organs available, even if aware of the source. Nor is the medical student who uses the cadaver of a murder victim to study anatomy.

If organs from murder victims may be used without complicity in the murder that makes the organs available, then fetal remains could also be used without complicity in the abortion. Burtchaell's approach to the problem of complicity assumes that researchers necessarily applaud the underlying act of abortion. But one may benefit from another's evil act without applauding or approving of that evil. X may disapprove of Y's murder of Z, even though X gains an inheritance or a promotion as a result. Indeed, one might even question Burtchaell's assumption that X becomes an accomplice in Y's prior act if he subsequently applauds it. Applauding Y's murder of Z might be insensitive or callous. But that alone would not make one morally responsible for, complicitous in, the murder that has already occurred. In any event, the willingness to derive benefit from another's wrongful death does not create complicity in that death because the beneficiary played no role in causing it.

The complicity argument against use of aborted fetuses often draws an analogy to a perceived reluctance to use the results of unethical medical research carried out by the Nazis. Burtchaell and others have claimed that it would make us retroactively accomplices in the Nazi horrors to use the results of their unethical and lethal research. [9] This ignores, however, the clear separation between the perpetrator and beneficiary of the immoral act that breaks the chain of moral complicity for that act.

Thus one could rely on Nazi-generated data while decrying the horrendous acts of Nazi doctors that produced the data. Nor would it necessarily dishonor those unfortunate victims. Indeed, it could reasonably be viewed as retrospectively honoring them by saying others. The Jewish doctors who made systematic studies of starvation in the Warsaw ghetto to reap some good from the evil being done to their brethren were not accomplices in that evil, nor are doctors and patients who now benefit from their studies. [10]

If the complicity claim is doubtful when the underlying immorality of the act is clear, as with Nazi-produced data or transplants from murder victims, it is considerably weakened when the act making the benefit possible is legal and its immorality vigorously debated, as is the case with abortion. Even persons opposed to abortion might agree that perceptions of complicity should not determine public policy on fetal tissue transplants.

Legitimizing, Entrenching, and

Encouraging Abortion

A second objection is that salvaging tissue for transplant from aborted fetuses will make abortion less mortally offensive and more easily tolerated both by individual pregnant women and by society, and perhaps transform it into a morally positive act. This will encourage abortions that would not otherwise occur, and dilute support for reversing the legal acceptability of abortion, in effect creating complicity in future abortions. [11]

But the feared impact on abortion practices and attitudes is highly speculative, particularly at a time when few fetal transplants have occurred. The main motivation for abortion is the desire to avoid the burdens of an unwanted pregnancy. The fact that fetal remains may be donated for transplant will continue to be of little significance in the total array of factors that lead a woman to abort a pregnancy.

Having decided to abort, a woman may feel better if she then donates the fetal remains. But this does not show that tissue donation will lead to a termination decision that would not otherwise have occurred, particularly if the decision to abort is made before the opportunity to donate the remains is offered. Perhaps a few more abortions will occur because of the general knowledge that tissue can be donated for transplant, but it is highly unlikely that donation--as opposed to contraceptive practices and sex education--will contribute significantly to the rate of abortion. [12]

Nor does the use of fetal remains for transplant mean that a public otherwise ready to outlaw abortion would refrain from doing so. Legal acceptance of abortions flows from the wide disagreement that exists over early fetal status. If a majority agreed that fetuses should be respected as persons despite the burdens placed on pregnant women, such possible secondary benefits of induced abortion as fetal tissue transplants would not prevent a change in the legality of abortion.

Indeed, one could make the same argument against organ transplant from homicide, suicide, and accident victims. The willingness to use their organs might be seen to encourage or legitimate such deaths, or at least make it harder to enact lower speed limits, seatbelt, gun control, and drunk giving laws to prevent them. After all, the need to prevent murder, suicide, and fata accidents becomes less pressing if some good to others might come from use of victims' organs for transplant. In either case, the connection is too tenuous and speculative to ban organ or fetal tissue transplants.

In sum, fetal tissue transplants are practically and morally separate from decisions to end unwanted pregnancy. Given that abortion is legal and occurring on a large scale, the willingness to use resulting tissue for transplant neither creates complicity in past abortions nor appears significantly to encourage more future abortions. Such ethical concerns and speculations are not sufficient, given the possible good to others, to justify banning use of fetal tissue for research or therapy.

Aborting To Obtain Tissue for


Central to the argument for transplanting fetal tissue from family planning abortions has been the assumption that the abortion occurs independently of the need for tissue, and that permitting such transplants does not also entail pregnancy and abortion to produce fetal tissue.

But successful tissue transplants may create the need to abort to produce fetal tissue in two future situations. One situation would arise if histocompatability between the fetus and recipient were necessary for effective fetal transplants. Female relatives, spouses, or even unrelated persons might then seek to conceive to provide properly matched fetal tissue for transplant.

The second situation would arise if fetal transplants were so successful that demand far outstripped supply, such as migh occur if the treatment were advantageous to most patients with Parkinson's disease and diabetes, or if the number of surgical family planning abortions decreased. Pressure on supply might also occur if tissue from several aborted fetuses were needed to produce one viable transplant.

The hypothetical possibility of such situations is not a sufficient reason to ban all tissue transplants from family planning abortions. But should such abortions be banned if the imagined situations occurred? Most commentators assume that conception and abortion for tissue procurement is so clearly unethical that the prospect hardly merits discussion. [13] Accordingly, they would ban all tissue transplants from related persons and deny the donor the right to designate the recipient of a fetal tissue transplant.

Analysis will show, however, that the question is more ethically complicated than generally assumed, and should not be the driving force in setting policy for tissue transplants from family planning abortions.

A Hypothetical Situation

Consider first the situation where a woman pregnant with her husband's child learns that tissue from her fetus could cure severe neurologic disease in herself or a close relative, such as her husband, child, parent, father or mother-in-law, sibling, or brother or sister-in-law. May she ethically abort the pregnancy to obtain tissue for transplant to the relative? Or may a woman not yet pregnant, conceive a fetus that she will then abort to provide tissue for transplant to herself or to her relative?

To focus analysis on fetal welfare, assume in each case that no other viable tissue source exists, and that the advanced state of neurologic disease has become a major tragedy for the patient and family. The woman has broached the question of abortion to obtain tissue without any direct pressure or inducements from the family or orders. Her husband accepts an abortion for transplant purposes if she is willing, but exerts no pressure on her to abort.

The woman is already pregnant. If the woman is already pregnant, the question is whether a first trimester fetus that would otherwise have been carried to term may be sacrificed to procure tissue for transplant to the woman herself or to a sick family member. The answer depends on the value placed on early fetuses and on the acceptable reasons for abortion. One may distinguish between fetuses that have developed the neurologic and cognitive capacity for sentience and interests in themselves, and those so neurologically immature that they cannot experience harm. [14] While aborting fetuses at that earlier stage prevents them from achieving their potential, it does not harm or wrong them, since they are insufficiently developed to experience harm. [15]

Although aborting the fetus at that early stage does not wrong the fetus, it may impose symbolic costs measurable in terms of the reduced respect for human life generally that a willingness to abort early fetuses connotes. Still, the abortion may be ethically acceptable if the good sought sufficiently outweighs the symbolic devaluation of life that occurs when fetuses that cannot be harmed in their own right are aborted. Many persons find that the burdens of unwanted pregnancy outweigh the symbolic devaluation of human life. Others would require a more compelling reason for abortion, such as protecting the mother's life or health, avoiding the birth of a handicapped child, or avoiding the burdens of a pregnancy due to rape or incest.

By comparison, abortion to obtain tissue to save one's own life or the life of a close relative seems equally, if not more compelling. If abortion in the case of an unwanted pregnancy is deemed permissible, surely abortion to obtain tissue to save another person's life is. Indeed, aborting to obtain tissue would seem as compelling as the most stringent reasons for permitting abortion. In fact, many would find this motive more compelling than the desire to end an unwanted pregnancy.

Of course, aborting a wanted pregnancy to prevent severe neurologic disease in oneself or a close relative will hardly be done joyfully, and will place the mother in an excruciating dilemma. A fetus that could be carried to term will have to be sacrificed to save a parent, spouse, sibling, or child who already exists. Such a tragic choice will induce fear and trembling, and engender loss or grief whatever the decision. Yet one cannot say that the choice to abort is ethically impermissible. There is no sound ethical basis for prohibiting this sacrifice of the fetus when its sacrifice to end an unwanted pregnancy or pursue other goals is permitted.

Public attitudes toward a woman aborting an otherwise wanted pregnancy to benefit a family member would most likely reflect attitudes toward abortion generally. Those who are against abortion in all circumstances will object to abortions done to treat severe neurologic disease in the mother or in a family member. Similarly, persons who accept family planning abortions should have no objection to abortion to procure tissue for transplant, since fetal status is no more compelling and the interest of the woman in controlling her body and reproductive capacity is similar.

Since neither group forms a majority, however, persons who object to family planning abortions but accept abortions necessary to protect the mother's health, in cases of rape or incest, or to prevent the birth of a handicapped child will determine whether a majority of people approve. [16] It is conceivable that many persons in this swing group would find abortion to produce tissue for transplant to a family member to be acceptable. The benefit of alleviating severe neurologic disease is arguably as great as the benefits in the cases they accept as justifiable abortion, and more compelling than abortions done for family planning purposes.

Conceiving and aborting for transplant purposes. What is the objection, then, when a woman not yet pregnant seeks to conceive in order to abort and provide tissue for transplant?

In terms of fetal welfare, no greater harm occurs to the fetus conceived expressly to be aborted, as long as the abortion occurs at a stage at which the fetus is insufficiently developed to experience harm, such as during the first trimester. Of course, such deliberate creation may have greater symbolic significance, because it denotes a willingness to use fetuses as a means or object to serve other ends. However, aborting when already pregnant to procure tissue for transplant (or aborting for the more customary reasons) also denotes a willingness to use the fetus as a means to other ends.

As long as abortion of an existing pregnancy for transplant purposes is ethically accepted, conceiving in order to abort and procure tissue for transplant should also be ethically acceptable when necessary to alleviate great suffering in others. [17] People could reasonably find that the additional symbolic devaluation is negligible, or in any case, insufficient to outweigh the substantial gain to transplant recipients that deliberate creation provides.

Many people, no doubt, will resist this conclusion, even if they accept abortion to procure tissue when the woman is already pregnant. Whether rational or not, they assign moral or symbolic significance to deliberate creation, and are less ready to sanction such a practice. Others who accept abortion for tissue procurement when the woman is already pregnant will find an insufficient difference in deliberate creation to outweigh the resulting good. Public accetability of such a practice thus depends on how the swing group that views abortion as acceptable only for very stringent reasons views the fact of deliberate creation for the purpose of abortion. If it would accept abortion to produce tissue when the pregnancy is unplanned, it might accept conception to produce fetal tissue as well.

In sum, deliberate creation of fetuses to be aborted for tissue procurement is more ethically complex, and more defensible, than its current widespread dismissal would suggest. Such a practice is, of course, not in itself desirable, but in a specific situation of strong personal or familial need may be more justified than previously thought. In any case, the fear that fetal tissue transplants will lead to abortions performed solely to obtain tissue for transplant should not prevent use of tissue from abortions not performed for that purpose.

Recruiting Unrelated Fetal Tissue


The strongest case for conception and abortion to produce fetal tissue--if the need arose--is to save oneself or a close relative from death or serious harm. But many patients in need would lack a female relative willing to donate. May unrelated women be recruited for this purpose?

If the hypothetical need arose, a strong case for unrelated fetal tissue donors can be made. If a relative may provide tissue, why not a stranger who chooses to do so altruistically? At this point concerns about fetal status become less important, and the focus shifts toward the welfare of the donor. But the physical effects of pregnancy and abortion to produce fetal tissue are roughly comparable on the effects of kidney or bone marrow donation, though somewhat less since general anesthesia will not be involved. While few unrelated persons now act as kidney donors, there is a national registry for unrelated bone marrow donors. Even if fetal tissue donation were psychologically more complicated, the risks to the woman would appear to be within the boundaries of autonomous choice.

Some persons might object that this will turn women into "fetal tissue farms," thus denigrating their inherent worth as persons. This charge could also be made against any living donor, whether of kidney, bone marrow, blood, sperm, or egg. Insofar as persons donate body parts, they may be viewed as mere tissue or organ producers. Indeed, women who bear children are always in danger of being viewed as "breeders." But such views oversimplify the complex emotional reality of organ and tissue donation and of human reproduction. The risk of misperception does not justify barring women from freely choosing to be fetal tissue donors.

Special attention should be given to consent procedures that will protect the woman from being coerced or unduly pressured by prospective recipients and their families, just as occurs with living related kidney and marrow donors. Waiting periods, consent advisors and monitors, and other devices to guarantee free, informed consent are clearly justified. [18]

The Woman's Right to Dispose of

Fetal Tissue

The UAGA and federal research regulations give the mother the right to make or withhold donations of fetal remains for research or therapy, subject to objection by the father. [19] Yet some ethicists claim that the decision to abort disqualifies the mother from playing any role in disposition of fetal remains. [20] If accepted, this argument would lead either to procuring fetal tissue without parental consent or to a total ban on fetal transplants. But the argument is mistaken on two grounds.

Its major premises is that the person disposing of cadaveric remains acts as a guardian or proxy for the deceased. Since the woman has chosen to kill the fetus by abortion, she is no longer qualified to act as proxy. But this premises is seriously flawed. Deceased persons or fetuses no longer have interests to be protected, as the notion of proxy implies. Control of human remains is assigned to next of kin because of their own interests and feelings about how cadaveric remains are treated, not because they are best situated to implement the deceased's prior wishes concerning disposition of his cadaver. The latter concern is particularly inappropriate in the case of an aborted fetus, which could have had no specific wishes concerning disposition of its remains.

A second mistake is the assumption that a woman has no interest in what happens to the fetus that she chooses to abort. As a product of her body and potential heir that she has for her own compelling reasons chosen to abort, she may care deeply about whether fetal remains are contributed to research or therapy to help others. Given that interest, there is good reason to respect her wishes, as current law does. Indeed, in cases of conflict between her and the father over disposition, one could argue that her interests control because the fetus was removed from her body.

An alternative policy requiring that fetal remains be used without parental consent or not at all is unacceptable. American public policy has vigorously rejected routine salvage of body parts without family consent as a way to increase the supply of organs for transplant. [21] Even presumed consent, which would take organs unless the family actually objects, has been largely rejected. [22] Depriving the mother (and father who agrees to the abortion) of the power to veto fetal tissue transplants would single out fetal tissue for transplant use without family consent. Such a radical change in tissue procurement practice is not needed to satisfy the demand for fetal tissue. It serves only to punish women who abort.

The alternative would be to ban fetal tissue transplants altogether. But this solution burns the house to roast the pig, in effect banning tissue transplants because the parent is not permitted to consent. As we have seen, however, a ban on all fetal transplants is not justified.

In short, the ethical case for denying the woman who aborts dispositional control of fetal remains is not persuasive. She cannot insist that fetal remains be used for transplant because no donor has the right to require that intended donees accept anatomical gifts, but she should retain the existing legal right to veto use of fetal remains for transplant research or therapy. Her consent to donation of fetal tissue should be routinely sought.

The Consent Process and Abortion

If the woman retains the right to determine whether fetal tissue is used for research or therapy, the main ethical concern is to assure that her choice about tissue donation and the abortion is free and informed. A clear separation of the two decisions will assure that tissue donation is not a prerequisite to performance of the abortion. Also, it will prevent the prospect of donating fetal remains from influencing the decision to abort, a preferable policy when sufficient tissue from family planning abortions is available.

To that end, the request to donate fetal tissue should be made only after the woman was consented to the abortion. [23] The alternative of waiting until the abortion has been performed would add little protection and not be practical. In addition, the person requesting consent to tissue donation and performing the abortion should not be the person using the donated tissue in research or therapy, a constrait widely followed in cadaveric organ procurement.

Federal regulations governing fetal research also state that "no procedural changes which may cause greater than minimal risk to the fetus or pregnant woman will be introduced into the procedure for terminating the pregnancy solely in the interest of the activity." [24] While this policy is partially intended to protect fetuses from later or more painful abortions, it also aims to protect women from prolonging pregnancy or undergoing more onerous abortion procedures to obtain tissue.

Some changes in abortion procedures to enhance tissue procurement pose little additional risk and should be permitted. For example, reductions in the amount of suction, use of a larger bore needle, and ultrasound-guided placement of the suction instrument in evacuation abortions would, without increasing risk, facilitate tissue retrieval by preventing masceration of the fetus.

More problematic would be changes such as substitution of prostaglandin-induced labor and delivery or hysterotomy for less risky methods, or postponement of abortion to late in the first trimester or to the second trimester. Apart from her desire to facilitate tissue donation, these changes would not appear to be in the woman's interest.

Asking a woman who is aborting to take on these extra burdens can be ethically justified only if necessary to obtain viable tissue. Because sufficient fetal tissue may now be obtained without increasing the burdens of abortion, the current federal regulations are sound.

A different policy should be considered if changes in timing or method of abortion became necessary to procure viable tissue for transplant. If the need were clearly shown, there is no objection in principle to asking a woman to assume some additional burdens for the sake of tissue procurement. If the womanis already pregnant and determined to have an abortion, the additional risks of postponing the abortion a few weeks or even changing to a prostaglandin abortion would be well within the range of risks that persons may voluntarily choose to benefit others. However, special procedures to protect the woman's autonomy would be in order.

Commercialization of Fetal Tissue

In addition to ethical concerns about fetal and maternal welfare, opponents of fetal tissue transplants have raised the specter of fetal tissue procurement leading to a commerical market in abortions and in fetal tissue.

Paying money to women to abort, or to donate once they abort, is generally perceived as damaging to human dignity, as would be commercial buying and selling of fetal tissue. Such market transactions risk exploiting women and their reproductive capacity and may denigrate the human dignity of aborted fetuses by treating them as market commodities. [25]

Most commentators and advisory bodies that have considered fetal tissue transplants recommend that market transactions in abortions and fetal tissue be prohibited. [26] The National Organ Transplant Act of 1984, which bans the payment of "valuable consideration" for the donation or distribution of solid organs, was amended in 1988 to ban sales of fetal organs and "subparts thereof." [27] Also, several states prohibit the sale of fetal tissue and organs. [28]

At present such policies are easily supported, for they would have little impact on the supply of fetal tissue. There is no reason to think that women who abort unwanted pregnancies would not donate fetal tissue altruistically. Indeed, many women who abort are likely to donate fetal remains in the hope that some additional good might result from the abortion. Paying them to donate--buying their aborted fetuses--is thus unnecessary.

But what if altruistic donations did not produce a sufficient supply of fetal tissue for transplant, or the need for histocompatible tissue required hiring women to be impregnated to produce a sufficient supply of fetal tissue? Would such payments be unethical? Should current legal policy still be maintained? Answering those questions would require balancing the risks of exploiting women and the symbolic costs of perceived commodification against the benefits to needy patients and the rights of women to determine use of their reproductive capacity.

No doubt many people would object to hiring women to become pregnant and abort. However, if pregnancy and abortionto produce fetal tissue is ethically defensible, then money payments in some circumstances may also be defensible, given obligations of beneficence and respect for persons, the lack of alternative tissue sources, and social practices in which some tissue donors are paid. [29] Legal policy might then be reconsidered to permit payments when essential to save the life or protect the health of transplant recipients who lack other alternatives. However, resolution of this difficult issue should await the actual occurrence of the need to pay to obtain fetal tissue for transplant. In the meantime, research and therapy with fetal tissue should proceed without payments to women to abort or to donate fetal tissue.

Current bans on buying and selling fetal tissue do not--and should not--prohibit making reasonable payments to recover the costs of retrieving fetal tissue. The law and ethics of organ procurement allow for payment of costs incurred in the acquisition of organs. [30] Organ donor families, for example, are not asked to pay for the costs of maintaining brain-dead cadavers or for surgically removing the organs that they donate. The same principle should apply to fetal tissue donations. Two related issues concern paying the donor's abortion expenses and paying other tissue retrieval costs.

Paying abortion expenses. Paying the cost of the abortion should occur only in those instances in which the abortion is performed solely to obtain tissue for transplant--a mere hypothetical possibility at present. In that case, paying for the abortion is not a fee to donate tissue, but payment of the costs of acquiring the doanted tissue, comparable to paying the cost of the nephrectomy that makes a kidney donation possible. Other out-of-pocket costs incurred by the donor could also be reimbursed without violating federal law or ethical constraints.

In contrast, when the abortion is performed for reasons unrelated to tissue procurement, paying abortion expenses amounts to paying the women to donate the tissue. This payment would constitute a sale of fetal tissue and should not be permitted if fetal tissue sales are prohibited. [31] The willingness of most women to donate without a fee should make payment of abortion expenses unnecessary.

Retrieval costs and for-profit agencies. In the past researchers have obtained fetal tissue through informal contacts with physicians doing abortions, often in the same institution. More recently, agencies that retrieve tissue from abortion facilities and distribute it to researchers have developed. In some cases for-profit firms that specialize in processing the tissue for transplant may enter the field.

What role will money payments play in the operation of retrieval agencies? Under existing law tissue procurement agencies will be unable to pay women to donate fetal tissue. However, they should be free to pay the costs of personnel directly involved in retrieval, whether employees of the procurement agency or of the facility performing the abortion. For example, a tissue retrieval agency may reimburse the abortion clinic for using its space and staff to obtain consent for tissue donations and to retrieve tissue from aborted fetuses. [32]

In distributing fetal tissue to researchers and physicians, retrieval agencies should be able to recoup the expenses of procuring the tissue, including overhead and other operating expenses of the agency itself. Such payment is consistent with heart and kidney transplant recipients (or their payors) paying for the analogous costs of organ procurement.

If the retrieval agency is a for-profit enterprise, some profit margin should also be recognized in the amount it charges the recipient of the tissue. While some persons might argue that allowing any profit amounts to a sale of fetal tissue that risks treating it as a market commodity, those who organize resources and invest capital to provide viable fetal tissue for transplant are performing a useful social activity. Fears about treating donors and fetuses as commodities might justify policies against buying tissue from donors and abortion facilities. But they should not prevent giving for-profit firms the incentives necessary to organize the resources required to obtain fetal tissue altruistically. Such a practice would be consistent with the role of for-profit physicians, hospitals, drug companies, and air transport services in organ transplantation.

Federal Funding

While existing federal regulations permit transplant research with tissue from aborted fetuses when state law permits, the question of whether the federal government should fund fetal tissue research nevertheless remains. A special panel was recently convened by the National Institutes of Health to advise the Assistant Secretary for Health on whether intramural and extramural research programs involving fetal tissue transplants should be supported. [33] The panel gave a positive recommendation, with restrictions on tissue procurement comparable to the existing federal regulations, but its approval does not guarantee that federal research funding will occur. [34]

Because funding decisions ordinarily do not infringe constitutional rights, the government is not obligated to fund fetal tissue research (or therapy), no matter how desirable it appears. [35] However, the arguments strongly favor supporting such research. Of overriding importance is the potential benefit to thousands of patients suffering from severe disease. Federal funding will also allow the government to play a more active oversight role thanif it leaves the field entirely to private funding, as occurred with in vitro fertilization research. [36]

The arguments against federal research funding come from right-to-life groups that would remove the federal government entirely from any financial support of abortion in the United States. Research funding, however, does not subsidize the abortions making the tissue available. Nor, as we have seen, does it place an imprimatur of legitimacy on abortion, or encourage to any great extent abortions that would not otherwise have occurred.

If the politics of abortion lead to withdrawal of direct government funding of research with tissue from family planning abortions, the government should not penalize institutions that conduct such research with nonfederal funds by denying them other research assistance. The symbolic gains of refusing to fund other medical research in institutions doing nonfederally funded research with aborted fetuses are too few to justify the burden on researchers. Clearly at that point the link to abortion is too attentuated to claim complicity in or encouragement of it.

These same issues will be refought if fetal tissue transplants became a proven therapy for Parkinson's disease, diabetes, or other disorders. While the government is not constitutionally obligated to fund a given therapy, the case for federal funding of treatment is even stronger than for funding of research, because the benefits to patients are clearer. A policy of denying Medicare or Medicaid funding for safe and effective fetal tissue transplants would deprive needy patients of essential therapies simply to avoid speculative concerns about complicity and encouragement of abortion. A more prudent approach would be to fund all therapies that meet the general funding standards for these programs. Alternatively, the government's funding policies should distinguish between therapies dependent on tissue retrieved from family planning abortions and those dependent on tissue from abortions performed to provide tissue for transplant.

Legal Bans on Fetal Tissue


While the UAGA in every state permits the mother to donate fetal tissue for transplant research and therapy, eight states ban the experimental use of dead aborted fetuses. [37] None of these laws distinguish tissue from family planning abortions and abortions performed solely to obtain fetal tissue. Six of the eight states ban experimental but not nonexperimental use of aborted fetuses. None ban similar uses of other cadaveric tissue, including cadavers that resulted from homicide. [38]

As a policy matter, the case for a legal ban on all research uses of dead fetal tissue is weak. Given that the use of fetal remains from lawful abortions is at issue, such laws are difficult to sustain. They purport to show the state's respect for prenatal life, but they do it insuch an irrational way that they are clearly vulnerable to constitutional attack on several grounds, including vagueness, irrationality, and interference with the right to abort and the recipient's right to medical care. [39] A case invalidating the Louisiana law will be a potent precedent in future attacks on these laws. [40]

Even laws that prohibited intrafamilial donations or donor designation of recipients, which aim to prevent women from conceiving and aborting to produce fetal tissue, would be vulnerable if such practices were necessary to provide transplants to sick patients. [41] If the woman is already pregnant, such laws would prevent her from aborting to provide tissue. If not yet pregnant, they would arguably interfere with marital and procreative privacy or the recipient's right to life and medical care. A state's interest in preventing women from becoming "tissue farms," from abusing the reproductive process, or from being pressured to donate would not justify intrusion on such fundamental rights when the patient had no other alternative. [42]

Symbolic and Rights-Based


Ethical concerns should not bar research with fetal tissue transplants as a therapy for serious illness. Although many persons have ethical reservations about abortion, a wide range of opinion would likely support many research uses of fetal tissue, particularly when the abortions occur for reasons other than tissue procurement.

The use of fetal tissue inevitably implicates the strong feelings that abortion engenders. The disparate issues raised, however, can be treated separately, so that ethical concerns and the politics of abortion do not impede the progress of important research. For example, transplants with fetal tissue from family planning abortions do not necessarily entail approval of pregnancy and abortion undertaken to produce tissue for transplant. Nor will recognizing the woman's right to donate fetal tissue cause fetuses to be bought and sold, or women to be paid to abort.

In the final analysis, fetal tissue transplants raise symbolic questions as well as questions of rights. The symbolic issues raised by fetal tissue transplants cut in many directions. Sorting out symbolic and rights-based concerns will help to respect both important ethical values and the need for progres in medical science.


The author gratefully acknowledges the helpful comments of Richard Markovits, Douglas Laycock, Michael Sharlot, Alan Fine, Albert R. Jonsen, George J. Annas, Arthur L. Caplan, Pat Cain, and Jean Love on a much longer version of this article.

[1] Alan Fine, "The Ethics of Fetal Tissue Transplants," Hastings Center Report 18:3 (June 1988), 5-8.

[2] Kevin Lafferty, statement to the Fetal Tissue Transplantation Research Panel, National Institutes of Health, September 15, 1988.

[3] 45 CFR 46.209; John A. Robertson, "Relaxing the Death Standard for Pediatric Organ Donations," in Organ Substitution Technology: Ethical, Legal, and Public Policy Issues (Boulder, CO: Westview Press, 1988), 69-77.

[4] John A. Robertson, "Fetal Tissue Transplants," Washington University Law Quarterly 66:3 (November 1988) (forthcoming).

[5] 45 CFR 46.210.

[6] Stanely K. Henshaw et al., "A Portrait of American Women Who Obtain Abortions," Family Planning Perspectives 17:2, (1985) 90-96.

[7] Lafferty, "Statement."

[8] JAmes Burtchaell, "Case Study: University Policy on Experimental Use of Aborted Fetal Tissue," IRB: A Review of Human Subjects Research 10:4 (July/August 1988), 7-11.

[9] Burtchaell, "Case Study," 10; Phillip Shabecoff, "Head of E.P.A. Bars Nazi Data in Study in Gas," New York Times, March 23, 1988, 1.

[10] Leonard Tushnet, The Uses of Adversity: Studies of Starvation in the Warsaw Ghetto (New York: Thomas Yoseloff, 1966); "Minnesota Scientist Plans to Publish a Nazi Study," New York Times, May 12, 1988, 9.

[11] Tamar Lewin, "Medical Use of Fetal Tissue Spurs New Abortion Debate," New York Times, Aug. 16, 1987, Al.

[12] John A. Robertson, "Fetal Tissue Transplants."

[13] Mary B. Mahowald, Jerry Silver, and Robert A. Ratcheson, "The Ethical Options in Transplanting Fetal Tissue," Hastings Center Report 17:2 (February 1987), 9-15; Mark Danis, "Fetal Tissue Transplants: Restricting Recipient Designation," Hastings Law Journal 39:5 (July 1988), 1079-1107.

[14] Clifford Grobstein, Science and the Unborn (New York: Basic Books, 1988).

[15] John A. Robertson, "Gestational Burdens and Fetal Status: A Defense of Roe v. Wade," American Journal of Law and Medicine 13:2/3 (1988) 189-212; John Bigelow and Robert Pargetter, "Morality, Potential Persons, and Abortion," American Philosophical Quarterly 25 (1988), 173-81.

[16] See, for example, "America's Abortion Dilemma," Newsweek, January 14, 1985, 22-26.

[17] John A. Robertson, "Embryos, Families, and Procreative Liberty: The Legal Structure of the New Reproduction," Southern California Law Review 59 (1986), 939-1041.

[18] John A. Robertson, "Taking Consent Seriously: IRB Interventions in the Consent Process," IRB: A Review of Human Subjects Research 4:5 (May 1982), 1-5.

[19] Uniform Anatomical Gift Act, 8A U.L.A. 15-16 (West 1983) and Supp. 1987) (Table of Jurisdictions Wherein Act Has Been Adopted); 45 CFR 46.207(b).

[20] Burtchaell, "Case Study," 8; Mary B.Mahowald, "Placing Wedges Along a Slippery Slope: Use of Fetal Neural Tissue for Transplantation," Clinical Research 36 (1988), 220-23.

[21] John A. Robertson, "Supply and Distribution of Hearts for Transplantation: Legal, Ethical, and Policy Issues," Circulation 75 (1987), 77-88.

[22] Robertson, "Supply and Distribution"; Department of Health and Human Services, Organ Transplantation; Issues and Recommendations, Report of the Task Force on Organ Transplantation, April 1986, 30.

[23] 45 CFR 46.206(a).

[24] 45 CFR 46.206(a)(4).

[25] Margaret Radin, "Market Inalienability," Harvard Law Review 100 (1987), 1849-1931; Thomas H. Murray, "Gifts of the Body and the Needs of Strangers," Hastings Center Report 17:2 (April 1987), 30-38.

[26] Fine, "The Ethics of Fetal Tissue Transplants"; Mahowald, Silver, and Ratcheson, "The Ethical Options."

[27] 42 U.S.C.A. No. 247e (West Supp. 1985).

[28] 28. Ark. Stat. Ann. [section]82-439 (Supp. 1985); Ill. Stat. Ann. ch. 38, [section]81.54(7) (Smith-Hurd 1983); La. Civ. Code Ann. art. 9:122 (Supp. 1987); Ohio Rev. Code Ann. [section]2919.14 (Page 1985); Okla. Stat. tit. 63, [section]1-753 (1987); Fla. Stat. Ann. [section]873.05 (West Supp. 1987); Mass. Gen. Laws Ann. ch. 112, [section]1593 (19640); Me. Rev. Stat. Ann. tit. 22, [section]1593 (1964); Mich. Comp. Laws Ann. [section]333.2690 (West); Minn. Stat. Ann. [section]145.422 (West Supp. 1986); N.D. Cent. Code [section]14-02.2-02 (1981); Nev. Rev. Stat. [section]451.015 (1985); R.I. Gen. Laws [section]11-54-1(f) (Supp. 1987); Tenn. Code Ann. [section]39-4-208 (Supp. 1987); Tex. Penal Code Ann. [section]42.10, 48.02 (Vernon 1974 and Supp. 1988); Wyo. Stat. [section]35-6-115 (1986); 18 Pa. Cons. Stat. 3216 (Purdon 1983). See also "Note, Regulating the Sale of Human Organs," Virginia Law Review 71 (1985), 1015-38.

[29] John A. Robertson, "Technology and Motherhood: Legal and Ethical Issues in Human Egg Donation," Case Western Reserve Law Review 39:1 (1988) (forthcoming).

[30] National Organ Transplant Act, 42 U.S.C.A. 274e (West Supp. 1985).

[31] National Organ Transplant Act.

[32] National Organ Transplant Act.

[33] G. Kolata, "Federal Agency Bars Implanting of Fetal Tissue," New York Times, April 16, 1988, 1.

[34] "Fetal Tissue 'Acceptable' for Research," Washington Post, September 17, 1988, 1; Barbara Culliton, "White House wants Fetal Research Ban," Science (Sept. 16, 1988), 1423.

[35] McCrae v. Harris, 448 U.S. 297 (1980); Beal v. Doe,432 U.S. 438 (1977); Poelker v. Doe, 432 U.S. 519 (1977) (per curiam).

[36] John Fletcher and Kenneth Ryan, "Federal Regulations for Fetal Research: A Case for Reform," Law, Medicine, and Health Care 15:3 (Fall 1987), 126-28.

[37] 37. Ark. Stat. Ann. [section]82-438 (Supp. 1985); Ariz. Rev. Stat. Ann. [section]36-2302 (1986); Ind. Code Ann. [section]35-1-58.5-6 (West 1986); Ill. Ann. Stat. ch. 38, [section]81-54(7) (Smith-hurd 1983); La. Rev. Stat. Ann. [section]1299.35.13 (West 1986); Ohio Rev. Code Ann. [section]2919.14 (Page 1985); Okla. Stat. tit. 63, [section]1-735; N.M. Stat. ann. [subsection]24-9A-3, 24-9A-3,24-9A-5 (1986).

[38] A Missouri law bans use of fetal tissue produced for transplant purposes, but not fetal tissue from family planning abortions. Missouri HB No. 1479 (1988).

[39] Robertson, "Fetal Tissue Transplants,"; "Note: State Prohibition of Fetal Experimentation and the Fundamental Right of Privacy." Columbia Law Review 88 (1988), 1073-1109.

[40] Margaret S. v. Edwards, 794 F.2d 944 (5th Cir. 1986).

[41] Robertson, "Fetal Tissue Transplants."

[42] Danis, "Fetal Tissue Transplants."

John A. Robertson is Baker & Botts Professor at the University of Texas School of Law, Austin, TX. He was a member of the NIH Panel on Fetal Tissue Transplantation Research.
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Author:Robertson, John A.
Publication:The Hastings Center Report
Date:Dec 1, 1988
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