Editor’s note: This write-up is part of a Health work Blog Symposium on wellness Law stemming from 4th Annual wellness Law Year in P/Review conference organized by the Petrie-Flom facility for health and wellness Law Policy, Biotechnology, and also Bioethics at Harvard regulation School. Holly Fernandez Lynch created an introductory short article in January 2016 and you can access a full perform of symposium pieces here or by clicking on the “The health Law Year in P/Review” tag in ~ the bottom of any type of symposium post. Friend can also watch the video of the presentation on which this article is based.

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In 2013 the center for clinical Progress appeared to have actually secured tax-exempt standing for a fake company it collection up dubbed Biomax Procurement Services. The company"s "representatives" contacted the non-profit women’s health and wellness provider to plan Parenthood staffers and also led them right into conversations the were secretly recorded. The result, according to your website (as report by CNN), to be "a 30-month-long investigative journalism research by The center for clinical Progress, documenting just how Planned Parenthood sell the body parts of aborted babies."

The videos to be edited down and released progressively in a method designed to paint Planned Parenthood in the worst light. While some have dubbed it a “hoax,” that’s no a word i would use in this case. When I think of an excellent journalistic hoaxes i think that Orson Welles’s battle of the worlds (though more recent historical work says that the scare it resulted in may have actually been mythological). Rather what taken place here, I want to suggest, is what ns will contact a “manufactured controversy.”

Manufacturing Controversy

Planned Parenthood got US $528 million of government money in 2014, much of the going to salary for solutions that include contraception and also cancer screenings, i beg your pardon it offers largely to bad women. Abortions are only performed at about fifty percent of the 700 clinics, constituting about 3 percent that its services. Planned Parenthood claims that at the moment the videos were videotaped its programs that carry out fetal tissue to research facilities took place in only two states—California and Washington—at about only a half-dozen that its health and wellness centers. So best off the bat, once we talk about fetal tissue programs, we are talking around a really small part of what planned Parenthood does.

Nevertheless, what, if anything, did Planned Parenthood carry out wrong in the videos displayed by the facility for medical Progress (and what a exorbitant Orwellian name by the way!)? The videos display the Center’s David Daleiden utilizing a fake identity (for i beg your pardon he has actually now to be indicted) do the efforts to entice Planned Parenthood staffers into talking around how money gets paid come abortion providers who take nominal reimbursements for relocating body tissue from clinics to research facilities. Part of the video shows Deborah Nucatola, an elderly director of clinical services at the planned Parenthood Federation the America, informing undercover activists the tissues have the right to be obtained for fees in the $30 to $100 range.

To watch the news reports you might have thought this woman was breaking the law. The most shocking thing about the debate is the the activities were unquestionably legal. Here is the pertinent statute (emphasis mine):

42 U.S. Code § 289g–2 - Prohibitions concerning human fetal tissue

(a) Purchase of organization

It shall it is in unlawful for any person come knowingly acquire, receive, or otherwise transfer any kind of human fetal tissue for an important consideration if the carry affects federal government commerce.

(b) Solicitation or acceptance of organization as command donation for use in transplantation

It shall it is in unlawful for any person come solicit or knowingly acquire, receive, or accept a donation of person fetal tissue for the function of transplantation the such tissue into one more person if the donation affects interstate commerce, the tissue will certainly be or is derived pursuant come an induced abortion, and—

(1) the donation will be or is make pursuant to a promise to the donating individual the the donated tissue will be transplanted into a recipient stated by together individual;

(2) the donated tissue will certainly be transplanted into a relative of the donating individual; or

(3) the human who solicits or intended acquires, receives, or accepts the donation has noted valuable factor to consider for the costs linked with such abortion.

(c) Solicitation or acceptance of organization from fetuses gestated because that research functions

It shall be unlawful for any person or entity connected or engaged in interstate commerce to--

(1) solicit or knowingly acquire, receive, or accept a donation of person fetal tissue understanding that a human being pregnancy was deliberately initiated to provide such tissue; or

(2) intended acquire, receive, or expropriate tissue or cells acquired from a human embryo or fetus that was gestated in the uterus of a nonhuman animal.

(d) Criminal penalties for violations

(1) In general

Any person who violates subsection (a), (b), or (c) shall be fined in accordance v title 18, subject to i (2), or imprisoned because that not much more than 10 years, or both.

(2) Penalties applicable to persons receiving factor to consider

With respect come the imposition the a good under paragraph (1), if the person connected violates subsection (a) or (b)(3), a fine shall be enforced in an quantity not less than twice the amount of the an important consideration received.

(e) Definitions

For purposes of this section:

(1) The hatchet “human fetal tissue” has the an interpretation given such term in ar 289g–1 (g) that this title.

(2) The hatchet “interstate commerce” has actually the definition given such term in section 321 (b) of location 21.

(3) The hatchet “valuable consideration” walk not include reasonable payments connected with the transportation, implantation, processing, preservation, top quality control, or warehouse of person fetal tissue.

That last i is essential. The word "reasonable" is important since payments that room reasonable room not treated together “valuable consideration” and thus no violating the statute. I have actually seen no legal authority saying the $30-$100 selection in the video falls outside the kingdom of “reasonable payments.” nothing in the regulation specifies exactly how much is reasonable; there is no charge master or compendium that fees.

But exactly how much, if any, of the was apparent from the conversation in the media?

Political Football

Certainly this was not the conversation in the politics realm. Instead the fetal tissue sale issue became one more cudgel to use versus Planned Parenthood, and also quickly the special, of the issue got swamped by the larger abortion politics.

In the Republican discussions it became a inquiry of who can denounce to plan Parenthood for its sins with much more gusto. Ns think the winner was Carly Fiorina. As CNN among others report in the September 16, 2015 Republican Debate, Carly Fiorina stated “As regards plan Parenthood, anyone who has watched this videotape, I challenge Hillary Clinton, Barack Obama come watch these tapes.” She continued, “watch a fully formed fetus ~ above the table, its love beating, its foot kicking when someone claims we have to keep it lively to harvest that is brain.”

Sadly for Fiorina, there to be no such photo in the material related come Planned Parenthood exit by the Center. To offer her the benefit it is feasible she was referring to a different video, though news sources argued that video clip was itself of rather dubious fact value.

But fact is often the an initial casualty in this season’s main debates, whichever side of the aisle one is on.

The Real conflict (We currently Had)

As a bioethicist, what to be perhaps many upsetting come me to be the method the kabuki political theatre obscured the fact that there was a real collection of ethical questions to it is in discussed.

These room questions around complicity. For those who think abortion is serious wrong, in what methods does the use of tissue from abortion do the user or downstream beneficiary of study complicit in that sin?

This is an amazing question the bioethicists have wrestled through for a long time. Yet when it pertains to law, the is one the law has clearly resolved in a method that allows fetal organization use.

As my girlfriend Alta Charo noted in a piece for The Washington Post:

Fetal tissue research is legit in all but a grasp of states, and it has been conducted in the unified States, through federal support, for decades, other than for a brief moratorium on the use of nationwide Institutes of health and wellness funds in the 1980s. The is regulation by federal law, and also was funded by the Clinton, bush 43, and Obama administrations, many recently to the song of about $76 million per year.

In 1975, the nationwide Commission for the defense of human Subjects that Biomedical and also Behavioral research studied the question and also released a report finish the exercise was ethical. We had a quick moratorium the was ultimately finished by the 1992 NIH Revitalization Act the received broad bipartisan support, consisting of that of councilor Mitch McConnell. And while the Dickey-Wicker modification prohibits the NIH from funding “research in i m sorry a human embryo or embryos space destroyed, discarded, or knowingly subjected to risk that injury or fatality greater than that permitted for research study on fetuses in utero,” the is no the law regarding fetal tissue research.

So the is difficult to see the present round of discussion over plan Parenthood to it is in much much more than a naked assault on it together an school that performs abortions, and also not really about fetal tissue very much in ~ all.

Fetal organization is and will continue to be an essential input in several of our most crucial research, together Meredith Waldman freshly summarized in Nature:

In 2014, the NIH funded 164 tasks using the tissue, in ~ a expense of $76 million… analysis of the NIH tasks shows the the organization is supplied most greatly for study on transmittable diseases, particularly HIV/AIDS; in the research of retinal function and disease; and also in research studies of normal and also anomalous fetal development.

But nothwithstanding the great of fetal tissue, plan Parenthood was required to adjust its policy.

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Oct 13, 2015, plan Parenthood announced it will maintain programs at some of its clinics the make fetal tissue available for research, however will no much longer accept any reimbursement to cover the costs of those programs. The is the biggest legacy the this controversy.