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
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
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
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
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
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.
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.
1. Adam, P.A.J., N. Rih, E.-L. Rahiala and M. Kekomki, Acta Paediatrica
2. Alexander, L., New England Journal of Medicine, 241: 40, 1949.
3. Bopp, J., Jr. and J.T. Burtchaell, This World, Summer, No. 26, pp. 54-79, 1989.
4. Brennan, W., Medical Holocausts I: Exterminative Medicine in Nazi Germany and
Contemporary America, Nordlund Publishing International, Inc., New York, 1980.
5.Brundin, P., Bjorklund, A. and Lindvall, O., Prog. in Brain Res. 82:707-714, 1990.
6.Burtchaell, J.T., IRB: A Review of Human Subjects Research, 10:7-11, 1988.
7.Detta, A. and E. Hitchcock, Brain Res. 520:277-283, 1990.
8. Fetal Tissue Transplantation Research, Proceedings of Hearing before the
Subcommittee on Health and Environment, (serial no. 101-135), April 2nd, 1990.
9. Koistinaho, J., K. Hatanp and A. Hervonen, Experimental Neurology, 107:277-280,
10.Lindvall, O., S. Rehncrona, P.Brundin, B. Gustavii, B. stedt, H. Widner, T.
Lindholm, A. Bjrklund, K.L. Leenders, J.C. Rothwell, R. Frackowiak, C.D. Marsden, B.
Johnels, G. Steg, R. Freedman, B.J. Hoffer, . Seiger, M. Bygdeman, I. Strmberg and L.
Olson, Prog. Brain Res. 82:729-734, 1991.
11. McCullagh, P., The Foetus as Transplant Donor: Scientific, Social and Ethical
Perspectives, John Wiley & Sons, Chichester, Australia, 1987.
12. Mahowald, M.B., J. Silver and R.A. Ratcheson, Hastings Center Report, Feb., pp. 9-
13. Moore v. Regents of the University of California, 202 Cal. App.3d 1230, 249 Cal.
Rptr. 494 (1988), reh. granted, 252 Cal. Rptr. 816, 763 P.2d 479 (1988); Moore v. Regents
of the University of California, Supreme Court of the State of California, case No.
S006987, July 9, 1990.
14. Neural Grafting: Repairing the Brain and Spinal Cord, OTA Report, Superintendent
of Documents, Government Printing Office (GPO stock # 052-003-01212-0), 1990.
15. Olson, L., I. Strmberg, M. Bygdeman, A.-Ch. Granholm, B. Hoffer, R. Freedman
and . Seiger, Exp. Brain Res. 67:163-178, 1987.
16. Rini, S., Beyond Abortion: A Chronicle of Fetal Experimentation, Magnificat Press,
17. Sanberg, P.R., Lancet 335:1594, 1990.
18.Widner, H., P. Brundin, S. Rehncrona, B. Gustavii, R. Frackowiak, K.L. Leenders, G.
Sawle, J.C. Rothwell, C.D. Marsden, A. Bjorklund and O. Lindvall, Trans. Proc. 23:793-
Taken from October, 1991, Vol. 1, Issue 2 of _Science for Life_
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