FETAL TISSUE TRANSPLANTATION: 
		    PART II. ETHICAL ISSUES 
 
                    by Keith A. Crutcher, Ph.D.

	In the first installment in this series, we examined some of 
the scientific and clinical issues relating to the use of fetal tissue 
transplantation.  In this essay we will look at many of the ethical 
issues surrounding this topic.  One might hope that the scientific or 
medical establishment would be at the forefront of hosting open 
discussion but, with few exceptions, the opposite has been the case. 
In this article we will examine the ethical issues that arise when 
establishing a policy of using aborted fetal tissue for research or 
therapy.

Protecting the patient: are transplants effective? 
 
	One of the first ethical dilemmas surrounding the use of any 
new procedure to treat any diseases arises from consideration of the 
effectiveness of the treatment.  If there is no compelling evidence 
that the procedure will work, how can one justify the use of such 
procedures on patients?  As outlined in the last issue of the SFL 
newsletter, there is little evidence that such transplants will work 
or, if they do, that they will provide a better treatment than current 
therapies do.  Nevertheless, a number of centers are carrying out 
these costly surgical procedures.  An additional problem of 
establishing new clinical procedures is that it is difficult to obtain 
informed consent in such cases.  Usually the patient is desperate for 
any measures that might be effective.  When it comes to neurological 
diseases there is the additional limitation that many of these 
patients suffer from cognitive impairments that limit their ability to 
understand either the treatment procedure or the risks involved. 
 
	The protection of patients is not an ethical issue limited to 
fetal tissue transplantation.  Unlike the situation for approval of 
new drugs, there is no federal oversight for the implementation of new 
surgical procedures.  As long as a physician is willing to perform the 
operation, the patient agrees and the procedure is approved by the 
local institutional review board (IRB), an experimental procedure can 
be undertaken.  The ultimate success or failure of the procedure is 
determined by the medical community (or the willingness of insurance 
companies to reimburse the costs).  This partly explains why some 
medical procedures are retained even when there is little evidence of 
therapeutic potential (frontal lobotomy is an example from an earlier 
time).  The importance of this consideration for evaluating fetal 
tissue transplantation is that such operations will no doubt continue 
to be carried out even if there is only weak evidence for 
effectiveness.  In other words, the fact that a procedure is in use 
cannot be taken as evidence that it is effective or that it has 
potential effectiveness.  The only means of establishing whether a new 
procedure is effective is to undertake double-blind randomized 
clinical trials.

Protection of the fetus:  
    Can abortion be separated from the use of fetal tissue?   
 
	There are unique issues surrounding the use of aborted fetal 
tissue. First of all, for those who consider elective abortion 
immoral, the dependence of a medical procedure on an immoral act 
effectively undermines its ethical justification (3).  The rationale 
that those who will benefit from the abortion play no role in the act 
of abortion is suspect.  A similar defense was used by scientists and 
physicians in Nazi Germany who argued that the decision to kill was 
not theirs; they were simply taking advantage of the availability of 
unique material (2).  Some of the medical experiments were undertaken 
with the rationale that the information would benefit others, e.g., 
the hypothermia experiments that were conducted to help downed airmen 
survive in cold waters.  Similar arguments are made today by 
proponents of fetal tissue research who claim that it would be immoral 
not to use the tissue because it would otherwise be discarded (14). 
 
 	Furthermore, the theoretical separation between the practice 
of abortion and the use of aborted tissue is simply that, theoretical. 
There must be close cooperation between the providers and the users of 
the tissue.  In order to be useful for transplantation, for example, 
the tissue must remain sterile(5).  Such precautions are not taken for 
routine abortions.  The possibility that the abortion procedure itself 
may be altered in other ways is not simply speculative since one study 
already involved the acquisition of fetal brain tissue prior to 
completing the abortion (15).  In fact, the most compelling evidence 
supporting the lack of separation between abortion and subsequent 
acquisition of fetal tissue is that the abortionists are often listed 
as co-authors on the papers describing the results of fetal tissue 
research (10,15, 18).  This is direct academic compensation for 
services provided and demonstrates that any barrier between the two is 
purely hypothetical. 
 
	It also seems extremely unlikely that the separation between 
the practice of abortion and the use of the resulting tissue will be 
maintained by the public.  The perceived societal benefits of abortion 
will likely have an impact on society's attitudes towards abortion an 
on an individual's decision to abort.  (This is the basis of the 
current administrative ban on federal funding of fetal tissue 
transplantation.) Certainly, those who have ambivalent feelings about 
the morality of abortion may take some solace in the notion that 
individuals could benefit from the availability of the tissue. 
Whether individual women would consider such benefits in their 
decision to abort is currently a matter of speculation.  However, 
explicit recognition of the dependence of fetal tissue research on 
society's continued acceptance of abortion is evident in the 
sponsorship of a symposium on "The politics of abortion: the impact on 
scientific research" by NARAL, an organization that has argued that 
abortion and the use of fetal tissue are separate issues. 
 
	The possibility that fetal tissue research would have an 
impact on a woman's decision to abort was considered by the 1988 NIH 
panel convened to assess the status of fetal tissue research.  Many 
members of the panel felt it was demeaning to women to think that the 
use of aborted tissue would have some bearing on their decision to 
abort.  However, there have been women who have stated their 
willingness to abort for the purpose of providing tissue and Dr. 
Healy, the recently-appointed director of the NIH who also served on 
the NIH panel, recently stated her dismay at learning that some women 
hold such views.  The only poll that has addressed this issue directly 
demonstrated that 9% of the women who responded (31 out of 280 women 
interviewed) would be willing to "get pregnant and abort the fetus" to 
obtain tissue for treatment of their mother or father (17). 
 
	On the other hand, the dismay expressed by Dr. Healy, and the 
proposed guidelines that were adopted by the NIH panel and 
incorporated in House Bill 2507 that prevent a woman from aborting for 
the purpose of donating tissue, are difficult to understand if a woman 
has a right to abortion based on her freedom of choice.  Proponents of 
fetal tissue usage have not usually addressed the question of why the 
government should be allowed to intervene in a woman's decision to 
abort when the tissue will be used for medical purposes.  It is not 
obvious why a woman should not be allowed to conceive and abort if her 
motivation is based on the humanitarian desire to provide tissue for 
medical benefit but she should be allowed to abort for reasons such as 
sex selection.  In fact, rules that prevent a woman from donating 
tissue to a relative, such as those proposed by the NIH panel and 
adopted by the recently-passed House Bill, are unlikely to be upheld 
in the face of existing legislation permitting abortion as well as the 
standard practice of permitting donors to specify recipients in 
virtually every other area of organ and tissue donation. 
 
	Furthermore, there are significant questions remaining as to 
whether a woman should be denied potential benefits accruing from the 
abortion.  If a patient is to receive medical treatment as a result of 
fetal tissue obtained from a woman who decided to have an abortion for 
some other reason, does this imply that the woman should be denied 
compensation?  Certainly the medical team who performs the 
transplantation and, theoretically, the recipient of the tissue will 
benefit financially and medically, respectively, from the aborted 
tissue.  Why shouldn't the woman who donates the fetal tissue also 
benefit?  Much of the precedence for these considerations stems from 
cases such as that of John Moore whose cells were used to generate 
income for the scientists who used his spleen cells for research, and 
eventual profit, without his consent (13).  Although the California 
Supreme Court overturned the lower court's ruling that Moore had a 
property interest in the tissue, there is likely to be continued 
debate on whether individuals retain property rights over "bodily 
products". 
 
Criteria for determining death 
 
	Two principal issues stem from consideration of the 
established practice of organ and tissue donation as practiced in 
other areas, i.e., criteria for determining death of the donor and 
obtaining appropriate consent.  Regarding the criteria for defining 
fetal death in order to obtain "cadaveric" tissue, there are 
inconsistent guidelines currently in use.  Most commonly the cessation 
of circulation is considered to be sufficient for obtaining fetal 
tissue (1, 11). Establishing fetal death is necessary because the 
tissue to be transplanted must be kept alive in order for it to be 
useful.  Somewhat surprisingly, Rep. Waxman (D-Calif.), who sponsored 
the House bill to overturn the federal ban on fetal tissue 
transplantation, continues to refer to "dead tissue" in spite of 
learning that the tissue is of no value for transplantation if it is 
dead (8). 
 
	The criteria used for determining death in mature organ and 
tissue donors has come to rely heavily on the concept of brain death. 
This is partly due to the fact that the neurological capacities of the 
individual are commonly accepted as vital to "personhood".  It is also 
the case, however, that mature brain tissue does not show the same 
capacity for growth and repair that the fetal brain does.  In other 
words, there is no medical motivation for altering the criteria for 
brain death.  However, reliance on "brain death" criteria for 
obtaining tissue from a fetus would interfere with the acquisition of 
living brain tissue for transplantation.  The use of "cessation of 
circulation" to define death is convenient for transplantation 
purposes because the fetal brain is much more resistant to anoxia and 
ischemia than is the mature brain.  This is born out by studies such 
as the one carried out by Adam et al. in which aborted fetuses (12-21 
weeks of gestation) were used for studies of fetal brain metabolism 
(1,16).  Even though "studies were initiated after the fetal heart 
beat had ceased", brain metabolism was maintained for an hour and a 
half by perfusion of the decapitated head.  In a more recent study, 
brain tissue was obtained from fetuses aborted via prostaglandin 
infusion.  The fetuses were said to be "dead on expulsion" yet neural 
tissue was viable even when harvested several hours after expulsion of 
the fetus (7).  The extent to which the "dead" fetus retains pain 
sensibility is unknown but it is interesting that some proponents of 
fetal tissue usage have suggested that anesthetics might be needed to 
circumvent the possibility of fetal pain and suffering (12).

Informed consent of the donor 
 
	The guidelines currently in use for regulating organ and 
tissue donations from competent and incompetent individuals are 
usually based on the Uniform Anatomical Gift Act.  The acquisition of 
tissue or organs from individuals incapable of providing consent 
depends on obtaining "next-of-kin" consent, the presumption being that 
the closest living relative is best able to represent the interests of 
the donor.  In the case of fetal tissue donation, the relevant 
next-of-kin is usually the mother and current practice requires 
consent of the mother before using aborted fetal tissue for research 
or therapy.  However, it is difficult to understand how the mother who 
consents to the death of her offspring can be assumed to represent the 
interests of the fetal donor (6).  The mother may have incentives to 
donate the tissue to alleviate ambivalent feelings about consenting to 
the abortion but it is difficult to see how she represents the 
interests of the fetus. 
 
	An alternative proxy might be identified among those relatives 
who object to the abortion but it would be difficult to establish such 
an individual's suitability.  Some argue that whatever interests the 
fetus has are abrogated by the decision to abort and that further 
violation of any interests is not possible.  However, even victims of 
homicide are treated with respect and dignity when it comes to 
harvesting organs or other disposition of bodily remains.  In fact, 
some states have laws that require respectul treatment of fetal 
remains in recognition of the humanity of the aborted fetus. 
 
	A more bizarre justification for tissue removal from aborted 
fetuses is the assumption that the fetus would donate if it could 
(presumed consent).  This is the basis on which cadaveric corneas are 
usually acquired in the U.S. and provides the basis of much organ 
donations in France.  Again, it is difficult to follow the logic of 
presumed consent in the case of the aborted fetus because the 
assumption would be that if the fetus could give his or her opinion on 
the abortion question that no consent would be provided for the 
procedure that leads to the availability of the tissue.

Summary 
 
	Ethical issues pertaining to the used of aborted fetal tissue 
include questions of consent, criteria for determining fetal death and 
the moral relevance of the procedure (abortion) that makes the tissue 
available.  Many of the scientists and physicians using aborted fetal 
tissue feel that it would be immoral not to take advantage of the 
available tissue.  A similar argument was made by Nazi physicians and 
scientists (2, 4).  One might ask, however, why the contemporary 
medical establishment does not question why so much fetal tissue is 
available.  This may reflect a more general belief that the scientific 
and medical communities have limited responsibility for providing 
socially-responsible leadership.  More cynically, one might wonder 
whether the benefits to be gained by harvesting the victims of 
socially-sanctioned "termination" of life prevent objective evaluation 
of the policies in force.  In the next installment we will examine 
some of the political ramifications of these issues.

References