The word «embryo» is used to refer to human life in its first eight weeks; the word «fetus» is used for the period from that point until birth.

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1 Dwyer, Ethical Considerations in Fetal Transplants [5.4.1] 1 1 There are a number of distinct moral questions which concern the status of the human embryo or fetus The apparently irreconcilable differences of those involved in the abortion debate are evidently based on different views of the status and rights of the human fetus. 1.2 There is also the question of the permissibility and the limits of medical experimentation on the human fetus Such experimentation takes place either when the fetus is still in the uterus, or after the removal of the fetus from the uterus (presumably through abortion). In this latter case, different moral issues are involved, depending on whether the fetus is viable or not viable There is the further question of using parts, members, or tissue from a human fetus for transplants (either to infants born with defective members, or as a source of specialized tissue which is needed by human beings of any age) This last possibility is one in which great abuses are possible, and it is an area in which the law must attempt to foresee and prevent these abuses Although related, these questions are distinct, and it is only the one mentioned in 1.3 which will be discussed here. These notes are obviously not intended as a blueprint for legislation, but rather as a discussion of only a few of the major moral and ethical issues involved. 2 Some preliminary observations: 2.1 Although there is a connection between law, on the one hand, and the Comment [COMMENT1]: This is the text of the letter to Senator Torres, on January 14, 1988, in answer to his request for a position paper on the problem, which might guide the committee of which he was the chair. 1 The word «embryo» is used to refer to human life in its first eight weeks; the word «fetus» is used for the period from that point until birth. 2 There is some debate about the precise meaning of «viability.» Here the term «not viable» means «not capable of living (even with life support systems of some kind) outside the uterus.» In general, a fetus is not viable before about the twentieth week of gestation; however the issue is complicated by the fact that, as medical technology advances, the fetus will be viable at earlier stages. 3 Cases have come to light in South America, where women were being offered free abortions, so that the fetal tissue provided in this way could then be used for the manufacture of cosmetics. It would be difficult to imagine a greater misuse of what is already a form of human life.

2 Dwyer, Ethical Considerations in Fetal Transplants [5.4.1] 2 moral or ethical order, on the other, it is not the purpose of law, generally speaking, to force or coerce people to act in a morally good way, or to secure the observance of what some or most in society feel to be morally correct conduct. 2.2 The purpose of civil law is to protect the real rights of human persons and to prevent the violation of these rights. When rights are in conflict, it is the function of law to protect the more fundamental or important rights, particularly of those without political or economic power. 2.3 It is also the purpose of law to create an ambience or milieu in which human rights are generally respected, and to prevent the decline of respect for authentic human values This is by no means a simple task. Legislation can have farreaching effects which are often not foreseen or intended by the legislator. A given law may intend to benefit a particular group in need, or to benefit the common good, but the law may come to be interpreted as allowing conduct which, in point of fact, threatens the common good and is destructive of certain fundamental values on which human social existence rests. Cases such as those referred to in footnote 3 are not far-fetched. 2.4 In a pluralistic 4 society, civil law should not attempt to impose the convictions of one group (even a relatively large one) on the society as a whole There is good reason for this: unless law rests on a very broad consensus (that is, considerably more than a slim majority), it will not succeed in protecting the rights of anyone; rather, it will draw law in general into disrepute, and 5 thereby inflict great harm on the society. This is true even though the goal of such legislation is noble and even though the rights it intends to protect are very real. 2.5 Therefore, if legislation dealing with the use of the human fetus or of 4 In ethical and moral discussions, a «pluralistic» society is one in which various religious and ethical systems compete for the allegiance of the populace, and no one ethical or moral system enjoys overwhelming popular support. 5 It is for this reason that, although the writer is Catholic and subscribes to Catholic principles in medical ethics in general and on abortion in particular, these notes attempt to build on what I feel is a general consensus in American society.

3 Dwyer, Ethical Considerations in Fetal Transplants [5.4.1] 3 fetal tissue for transplant purposes is required, it can be only for one or both of these reasons: Such practices might violate the rights of the fetus or of those responsible for the fetus Such a use of the fetus might foster so cavalier or contemptuous an attitude toward life, that it would have long-term destructive consequences for society. For example, if the use of the fetus for purposes of providing material or organs for transplantation were to be regarded as a purely medical question, without any moral significance, it might happen that a doctor would encourage the abortion of a fetus because of the need for its tissue in an operation (on another human being) who the doctor feels is more worthy of life. 6 For this reason it is appropriate to have the law establish certain safeguards regarding the methods of acquiring the fetuses which are to be used for transplants. 2.6 For this same reason, it is absolutely essential that the decision to perform therapeutic or elective abortion not be made by the same individual or group who will be involved in the use of fetal tissue or organs for transplantation. It is appropriate for civil law to insist on this requirement Ideally, the decision on the permissibility of using fetal tissue or organs for transplantation should be made by a standing committee on medical ethics in the hospital or research institute in question, and the law should insist that complete records of such decisions be kept and submitted to independent review boards at regular intervals. 2.7 Furthermore, to limit the possibility of abuse, the law should stipulate that no financial consideration be offered to those whose aborted fetuses might be used for purposes of transplantation, or to the medical personnel who supply them. 3 It seems clear that there are several individuals who may have real rights in the situation under discussion here, and the law should strive to protect these rights. 6 It is possible to imagine cases in which this might occur, but which would fall far short of the perversion mentioned in footnote 3. Such cases might actually pose a greater ethical or moral danger, precisely because the assault on fundamental human value is neither as clear-cut nor as obvious.

4 Dwyer, Ethical Considerations in Fetal Transplants [5.4.1] The first is the fetus itself, 7 a form of human life which will ordinarily grow into a full human being, unless the process is somehow interfered with Others who may have real rights are the parents, who have contributed the cells which stand at the origin of this embryonic or fetal life. It seems arguable that the mother, who has continually given of her very substance in the nourishing of the new life would have special rights here. 7 Despite the accessibility of abortion, at least early in pregnancy, there has been some tendency in American jurisprudence, even in recent years, to recognize that the fetus, under some circumstances, is the subject of real rights. The Roe vs. Wade Supreme Court decision of 1974 asserted that states did not have the right to legislate against abortion which takes place before the fetus reaches viability. The implication seems to be that, from the moment at which the fetus reaches the viable stage, it could be appropriate for civil law to protect its rights. 8 This last clause is essential, because even though the fetus has been aborted, it may still be the subject of legal rights. The obligation of medical personnel to save the life of the viable fetus (an obligation referred to in footnote 12 below) implies such rights. Furthermore, in several recent cases in which pregnant women suffered miscarriage or death in auto accidents, the courts have imposed settlements which explicitly recognized the rights of the fetus.

5 Dwyer, Ethical Considerations in Fetal Transplants [5.4.1] 5 4 Apart from the question of individual rights, there is danger of the most serious kind in allowing human beings, at any stage of development, to be used for any purpose. Human beings are ends in themselves, never mere means, and this is the reason for viewing experimentation 9 on human beings, even in the earliest stages of their growth, with the greatest suspicion. It is proper for civil law to attempt to identify forms of conduct which promote this utilitarian view of life and to proscribe such forms of conduct by making them illegal. It is appropriate for law to promote respect for generally accepted norms about the value of human life It is a good thing for law to promote a general respect and reverence for life, because this is the only basis on which specific legislation dealing with the protection of life and of bodily integrity can rest Both British and American government committees on medical ethics have affirmed in recent years 12 that the primary obligation of the doctor, when confronted with a viable fetus is to save the life of such a fetus. This is the case, whether the abortion has been spontaneous (miscarriage) or intentional (therapeutic or elective). 9 The assumption behind this statement is that the medical experimentation referred to is not therapeutic (intended to benefit the individual on whom it is performed), but rather is intended to further general medical knowledge or to benefit the common good. 10 Note carefully that this does not imply that human rights or values depend for their existence on the consensus of society. They do not. But what is in question is not the existence of those rights, but the appropriateness of law as a means of defending and promoting them. 11 In general, whenever legislation dealing with the complex questions of bioethics is being evaluated, it will be wise, not simply to consider specific groups which may benefit at the moment from such legislation, but to consider also the broader question of whether such legislation may, despite the good intentions of the legislator, diminish the reverence and respect for human life which is a fundamental human value and a most important aspect of the common good. 12 In England, the Peel Committee of the Royal College of Obstetricians and Gynecologists published its report in May 1972; in the U.S., the Department of Health, Education, and Welfare published guidelines in the Federal Register, November 1973.

6 Dwyer, Ethical Considerations in Fetal Transplants [5.4.1] It seems clear that the restatement of this obligation should be included in any legislation dealing with the question of the use of the fetus as a source of organ transplants. 5.2 This would also find support in the Roe vs. Wade decision mentioned above, in footnote 7. 6 When there is question of using members or tissue of a non-viable fetus for purposes of transplantation, the case does seem different. 13 In many cases, the fetus will be clinically dead, if the same criteria are used to determine death as are generally used at the end of life In such cases, the same norms could be applied as are used in the case of cadavers. Here the fetus itself is obviously not capable of making a choice, while alive, to allow its bodily parts to be used for transplant purposes. Can the parents, or at least the mother, make such a decision? There are ethical problems here, but it would seem that the practice could not be ruled out, provided that the law insists on certain stringent precautions These would include the conditions noted above in another connection: no remuneration for those who would in any way be connected with the supplying the fetus which is to be used for purposes of transplantation Also included would be the legal prohibition of prolonging the 13 Note that this question can be answered independently of why and with what justification the abortion took place; it may have been a spontaneous abortion (miscarriage), or it may have been based on a deliberate decision, with or without medical indications. However, extreme caution is called for, because there is a real danger that the desire for fetal tissue or organs may be a motive for having or counseling abortion. In such a case, the question could not be answered independently of why the abortion took place. 14 It is often suggested, not without reason, that when brain activity ceases, although vegetative life may continue, the life is no longer properly human. This is not to deny that life may be properly called human from the moment of conception, or, more reasonably, from the moment of implantation. But to use verifiable brain activity as a criterion seems to rest on a solid consensus and therefore to be a practical way of protecting the dignity of at least some human life. Furthermore, since conscious, personal existence seems to depend on brain activity, there is clearly a sense in which a fetus at this stage of development is personal in a fuller sense than is the case at earlier stages of development.

7 Dwyer, Ethical Considerations in Fetal Transplants [5.4.1] 7 life of the aborted fetus, so as to use it as a source of tissue or organs for undetermined future needs. 6.2 One form in which this question has arisen recently is that of using the organs of anencephalic 15 infants for purposes of transplantation. The case is apparently different from that under discussion here, since it deals with defects in the new-born and not with an aborted fetus However, because such infants ordinarily die very quickly, once the umbilical cord has been severed, practically speaking, the case resembles that of the aborted, non-viable fetus. For this reason, the ethical problem in itself is not different from that discussed in 6.1. above. Here the same question as that implied in above is often raised: may the fetus be kept alive (either for a short period or indefinitely) to provide tissue or organs needed either by specific children who are waiting for transplants, or for other unspecified future recipients? It seems clear that this practice, which has been described as a «harvesting of the (clinically) dead» manifests a utilitarian and impersonal view of human life, which is liable to have the most serious consequences for society and should be forbidden by law. 15 The term refers to those children born without a brain. Ordinarily, in the absence of this most basic element of the human nervous system, such infants die almost immediately.

8 Dwyer, Ethical Considerations in Fetal Transplants [5.4.1] 8 7 One final case should be noted. It is already possible to «grow» a human being under laboratory conditions, by joining sperm and ovum and then providing an environment with proper nutrients. 16 It seems very clear that such a «fetus» is not a proper source of organs for transplant purposes, but it seems even clearer that such a situation should not be allowed to arise in the first place. 7.1 That is, regardless of what direction legislation takes on such questions as in vitro fertilization and surrogate motherhood, the law 17 should definitely reject attempts to keep the fertilized ovum alive beyond the moment when it might be used for implantation into the uterus of a surrogate or of its natural mother. 16 At present it does not seem possible to continue this process of growth in a laboratory to the point where the fetus would be capable of functioning in the same way as an infant who had undergone normal gestation. But, given the rapid developments in medical technology, such frightening possibilities will probably be realizable in the near future. 17 This paper does not attempt to take a position on the questions of in vitro fertilization or of surrogate motherhood. But, in passing, we might note that there are extremely strong ethical and legal arguments against surrogate motherhood. On the other hand, when there is question of implanting a zygote (fertilized ovum) in the womb of a woman, one of whose ova has been fertilized in vitro by a sperm cell of her husband, although there are still ethical and moral questions which, at the very least, counsel extreme caution, nevertheless, the arguments against the practice do not seem to be cogent enough to warrant legislation.

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