RESEARCH ON THE FETUS - National Institutes of Health

IV.
LEGAL ISSUES
Papers on the legal issues involved in research on the fetus were prepared
for the Commission by Professor Alexander M. Capron, University of Pennsylvania
Law School, and Assistant Dean John P. Wilson, Boston University School of Law.
Both papers are structured, at least in part, according to categories of research,
that is, whether the research is therapeutic or nontherapeutic, whether the fetal
subject is viable, nonviable or dead, and whether it is inside or outside the
uterus. The interests of the fetus at different stages of development are balanced
against the interests of other parties, and the protection of fetal interests
is addressed in discussion of appropriate consent requirements. A summary
of both papers follows.
The Dead Fetus. The Uniform Anatomical Gift Act (UAGA), which has been
adopted in all fifty states and the District of Columbia, permits research on
the dead fetus and the products of conception, provided consent has been given
by either parent and the other parent has not objected. Professor Capron states
that the UAGA should be read in the context of common law requirements on consent;
thus, the authorization should be "informed" and "voluntary." In the latter
regard, consent should not unnecessarily be sought immediately before or after
an abortion. Dean Wilson suggests that it is wise to require the consent of
both parents.
Aside from the UAGA, Professor Capron points out that the statutes of
five states presently impose varying degrees of restriction on research on the
dead fetus (Massachusetts, South Dakota, Illinois, Indiana, and Ohio); all of
these restrictions apply only to the products of induced and not spontaneous
abortions. Other laws that might affect research on the dead fetus are the grave
robbing statutes, which would apply only when the consent required by the UAGA
has not been obtained. As a matter of medical practice, however, maternal consent
is not generally sought for postabortion examinations. (Both authors note
and discuss a pending Massachusetts case.)
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