Analysis Law and Policy

No, Donating Fetal Tissue Isn’t Illegal

Jessica Mason Pieklo

Both federal and state law allows providers to facilitate fetal tissue transplant and donation and even charge for the process, a point anti-abortion advocates would like to ignore. Planned Parenthood broke no laws.

See more of our coverage on the misleading Center for Medical Progress video here.

While the Center for Medical Progress touts its smear video of a Planned Parenthood executive discussing fetal tissue donation and Republicans across the country call for investigations into the reproductive health-care provider, here is an important fact to keep front and center: Based on everything CMP has released so far, Planned Parenthood broke no laws.

Federal law regulates the use of fetal tissue for research or transplant, and as far as federal statutes go, this one is pretty clear. It’s a crime for anyone to buy or sell fetal tissue for profit. It is not a crime to donate and transfer that tissue for research or transplant into another organism or tissue.

Donating any tissue or organ for research or transplant is an expensive process, which is why the law specifically states those involved may make and receive “reasonable payments associated with the transportation, implantation, processing, preservation, quality control, or storage of human fetal tissue.” The costs for various fetal tissue parts that Planned Parenthood’s senior director of medical services Deborah Nucatola discusses in the video? Those are costs related to transportation, processing, preservation, and other expenses associated with biomedical research and practice. Why are there a range of numbers that differ depending on the fetal part? Because the law grants practitioners flexibility in setting those costs, with the key point that they are “reasonable.”

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Federal law is also clear that providers cannot change abortion procedures specifically to accommodate fetal tissue collection needs. This means, for example, a provider cannot change from a D and E abortion to a D and C abortion specifically to accommodate a donation or transplant request. Providers can, however, make sure their specifically chosen procedure is done in a fashion that accommodates a patient’s transplant or donation request.

What kind of fetal tissue can be used for donation or transplant? According to the statute, fetal tissue for donation or transplant can come from spontaneous abortions, induced abortions, or stillbirth. The law prevents patients and providers from intentionally aborting for the purposes of harvesting fetal remains. But the most important factor governing the regulation of fetal tissue donation and transplant is whether the pregnant patient consents to the donation and transfer of the fetal remains.

In addition to the specific federal statute, all 50 states and the District of Columbia have adopted the Uniform Anatomical Gift Act, which also governs tissue and organ donation for therapeutic and research purposes from all dead humans, including aborted fetuses. Many states specifically require pregnant patients consent to the transplant or donation prior to the abortion as opposed to after.

There are two key takeaways here, both of which the anti-choice community has ignored entirely in its latest attempt to take out Planned Parenthood.

One: Both federal and state law support fetal tissue transfer and donation because, like organ and tissue donation generally, such donations are critical to medical advances that help everyone, including those who oppose abortion.

Second: Patient wishes and informed consent always come first, second, and last in the conversation about whether or not to terminate a pregnancy and what to do with those remains if termination takes place.

One final point. Anti-choice activists and lawmakers have since Roe v. Wade attacked biomedical research as a means of restricting abortion access. These strikes include federal restrictions on stem-cell research; state-level “fetal remains disposal” laws; and attempts to criminalize aborting for purposes of donating fetal remains. CMP’s latest attempts fall into a long-line of anti-science, anti-fact campaigns designed to elevate religious and moral beliefs about the worth of a fetus over the legal and moral rights of women.

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