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243  Memo on Legislation on Fetal Research
     September 10, 1973

     I have been deeply concerned about the haste with which a bill to
prohibit experimentation on human fetuses, has been rushed through
legislative consideration without a careful examination of all of its
implications. Certainly no testimony has been offered to suggest that
there are impending evils about to be perpetrated which would require
such hasty legislative action.

     I will not repeat arguments that have already been presented
about the potential importance of research on fetal specimens for
medical advances that may be of utmost importance improving the health
of future born children.

     My concerns have to do with unforeseen and possibly unintended
side-effects of this legislation whose actual impact on the conduct of
research is very difficult to analyze .  As far as I know, this is the
only legislation that would make a crime of acts not out of their
actual character but only when done in the context of experimentation.
I am not aware of any part of this law, or any other, that places any
statutory hinderance on the use of life-fetuses for propaganda, 
instruction, or even entertainment. To single out experimentation as the
context of criminal action is a remarkable precedent for legislative
body to take in expressing its opinion of the value of medical
research.  If there are specific acts that ought to be prohibited,
then they should be defined in terms of the damage that they do rather
than because the person responsible for them is interested in enlarging
human knowledge and the possible control of disease rather than 
other lawful aims.

     Recognizing the very great importance of continued research on
fetal tissue specimens, committee members have reportedly assured 
researcher witnesses that the bill is not intended to impede studies
along these lines.  However, the language of the bill leaves any
investigator of human fetal tissues in a very difficult situation
since he has no way of knowing what will be regarded as experimentation,
nor of the procedures he is expected to follow prior to the
death of the fetus, at which time it is asserted he would be allowed
to obtain tissue samples.  For example, would not the very act of
listening for the fetal heart beat in order to achieve compliance with
the legislation be an act of experimentation within the meaning of the
law? Indeed, since many behavioral science investigators are being 
enjoined to follow the same procedures in survey work as their 
laboratory colleagues, the mere counting of aborted fetuses or other 
collection of descriptive statistics, might be likewise regarded as 
forbidden experimentation.

     If the legislature indeed means to make a special case of 
forbidding acts for research purposes but not for others, it certainly
should make a more careful inquiry as to the grounds which will define
certain behavior as criminal, and other as lawful.

     I urge you to delay final action on this bill until all its
implications have been carefully examined so that the legislator's
acts correspond to its knowledgeable will.  If there were any prospect
of significant confrontations with its asserted central purpose,
within the State of California, the mere fact that the bill has 
proceeded this far is likely to be an effective deterrent during the
period of further examination.  I do not believe there is any substance
to this concern but if there is, the very fact that the matter has
been brought up should quiet any fears on the subject.
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