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Controversial videos released by an anti-abortion group have highlighted the murky guidelines for using fetal tissue for research purposes.
The group, called the Center for Medical Progress, has accused Planned Parenthood of selling aborted fetuses for a profit, a charge Planned Parenthood has denied. One of its videos, recorded in secret and released July 14, 2015, shows members of the anti-abortion group posing as tissue brokers discussing terms for procuring fetal tissue.
To some, it appeared that Planned Parenthood was proposing to illegally sell tissue, prompting lawmakers in several states to launch investigations and Republicans in Congress to attempt cutting off more than $500 million in federal money. But Planned Parenthood maintains that its process is legal and limited to a handful of states.
Confused about what’s going on? We’re here to help. Here’s our rundown of eight things we know — and don’t know — about fetal tissue donation and Planned Parenthood.
1. It is illegal to sell fetal tissue. But donations are legal.
The National Institutes of Health Revitalization Act of 1993 allows a woman to consent to donating fetal tissue after an abortion. The federal law sets restrictions that prevent the woman from knowing or having a say in how the tissue is used, or profiting from it.
Fetuses also can’t be aborted for the specific purpose of using tissue, especially to sell it. The option can’t be discussed with the woman until after she has decided to have an abortion.
Researchers have used fetal tissue since the 1930s; experimentation on the tissue was instrumental in eventually developing the polio vaccine. Current studies are using the tissue to research diseases like AIDS, muscular dystrophy and Parkinson’s disease.
2. The law allows for "reasonable" fees to cover the group’s costs of donating the tissue.
Part of the video shows Deborah Nucatola, senior director of medical services at the Planned Parenthood Federation of America, telling undercover activists that tissues can be obtained for fees in the $30 to $100 range. Activists against abortion rights point to this as proof that Planned Parenthood is "selling the body parts of aborted children."
But the 1993 law also makes allowances for "reasonable payments associated with the transportation, implantation, processing, preservation, quality control, or storage of human fetal tissue."
The fees Nucatola discusses in the video likely fall under that definition, experts told PolitiFact.
3. Nothing specifies how much appropriate fees should be.
What counts as a "reasonable payment" is not explicitly outlined in the law. Organizations don’t have to publicly report how much they are charging buyers that process the tissue and isolate specific cells before selling them to researchers. Activists in the videos were posing as brokers and went back and forth with Nucatola to get her to disclose Planned Parenthood’s fees.
"The amounts she cites do not appear to be out of the ordinary, but no one knows because there is no registry or compendium of fees charged by organizations (or) institutions supplying fetal tissue," said Arthur Caplan, director of the Division of Medical Ethics at New York University’s Langone Medical Center. "When she haggles about fees, that does not appear to me to be trying to profit."
4. There are no regulations for what brokers charge researchers, either.
While abortion clinics or hospitals sometimes provide tissue directly to researchers, organizations or private companies like the tissue brokers mentioned above often act as middlemen. Profiteering may be occurring on this level, Caplan said.
Caplan said brokers can resell tissue to researchers at what seem like fairly high markups, but "regulations don't exist on fees, so what they charge is set by market."
California-based StemExpress is one such broker and is cited in one of the Center for Medical Progress videos as contracting with Planned Parenthood for fetal tissue. The company charges fees for many kinds of human cells, from $100 for a vial of peripheral blood to $24,000 for a vial of highly concentrated fetal liver cells. The company reported $2.2 million in revenue in 2013, according to a profile in Inc. Magazine.
Prue Talbot, the director of the Stem Cell Center at the University of California, Riverside, agreed with a StemExpress statement that said research methods and expensive medical equipment are expensive. Talbot said skilled technicians that can isolate and preserve specific kinds of cells also command high salaries, driving up costs.
5. Political pressure is driving the issue in some states.
Since the videos were released, at least 12 states, including Florida, Texas, Georgia and South Carolina, have called for investigations into the organization’s tissue program.
States follow the federal law, but Wisconsin legislators have vowed to ban fetal tissue donation in the fall. Louisiana Gov. Bobby Jindal, a presidential candidate, canceled his state’s contract with Planned Parenthood even though the two facilities in that state don’t offer abortion services.
"It is against the law for any organization to sell body parts," Florida Gov. Rick Scott said on July 29. "If a Planned Parenthood office is not following the law, we will move quickly to take legal and regulatory action against them."
Florida's health services agency announced Aug. 5 that three facilities would be cited for performing second-trimester abortions without a proper license and a fourth will be cited for improper recordkeeping following its investigation.
6. Planned Parenthood says it only has donation programs in a few states. But we don’t know which ones.
Planned Parenthood president Cecile Richards has said her organization conducts tissue donations in "less than five" states.
But no one — not from Planned Parenthood, its state affiliates or companies that procure the stem cells — will disclose the states where this happens.
A spokeswoman for the Planned Parenthood Federation of America, the organization’s national wing, cited security concerns. So far, affiliates in Maine, Vermont, New Hampshire, Indiana and Florida have denied having any form of a tissue donation program.
7. Federal law does not require Planned Parenthood to disclose this information on their tax forms.
You may think that because Planned Parenthood receives federal money, it has to disclose more information about its business, including the fetal tissue donation locations.
But that’s not the case.
Planned Parenthood is a network of affiliated organizations that cooperate with each other, led by the Planned Parenthood Federation of America. As a registered 501(c)(4) nonprofit, each affiliate only has to release a yearly tax report called a Form 990. On the 990, those affiliates have to list their five largest contractors, but don’t have to provide any other details about their operations.
8. Abortions do not make up the majority of Planned Parenthood’s services. But neither do mammograms.
The tissue donation controversy has reignited the country’s abortion wars, with advocates and critics alike slinging statistics about what Planned Parenthood really does.
In a recent interview with GOP presidential candidate Mike Huckabee, Fox Business reporter Smith said "almost 95 percent of all their pregnancy services were abortions."
That rates False. The cherry-picked statistic traces back to a political action committee that opposes abortion. By the group’s measure, which considered only Planned Parenthood’s reported abortions, prenatal care services and adoption referrals, abortions made up 94 percent of Planned Parenthood’s "pregnancy services." But the majority of Planned Parenthood’s work does not focus on prenatal care, and the group does not keep records on how many pregnant women it refers to outside health care providers.
Democratic presidential candidate and former Maryland Gov. Martin O’Malley went the opposite direction, telling reporters "97 percent of the work that Planned Parenthood does is about mammograms and preventative health."
That rates Half True. The 97 percent figure accounts for services other than abortion, including contraception, STD testing and treatment, cancer screenings, and more. Preventive care comprises about 85 to 90 percent of all their services. Mammograms are part of that group, but Planned Parenthood doesn’t offer mammograms. They perform breast exams and give referrals to outside clinics that provide mammograms.
Editor's note: Hours after this story was published, Florida announced the results of its investigation into Planned Parenthood. The piece has been updated.
The Advocate, "Gov. Bobby Jindal cancels state contract, says Planned Parenthood not worthy of getting state assistance," Aug. 4, 2015
The Economist, "The tissue trade," Aug. 1, 2015
The Blaze, "Planned Parenthood Sells Dead Baby Parts, And That Shouldn’t Shock You At All," Jul. 14, 2015
The Christian Science Monitor, "Planned Parenthood under fire: Is fetal tissue donation legal?," Jul. 17, 2015
U.S. Government Printing Office, "Prohibitions regarding human fetal tissue," 2010
Huffington Post, "McConnell Voted In 1993 To Legalize Fetal Tissue Donations After Abortion," Jul. 24, 2015
Uniform Law Commission, "Anatomical Gift Act (2006) Summary"
U.S. Department of Health & Human Services, "National Institutes of Health Revitalization Act of 1993, Part II - Research on Transplantation of Fetal Tissue," June 10, 1993
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WCSH Portland, "Planned Parenthood: no tissue donations in NNE," Aug. 1, 2015
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Fox 59 Indianapolis, "State wraps up its investigation into Planned Parenthood, says group in compliance," Jul. 30, 2015
Sacramento Business Journal, "StemExpress wins court order in video flap with anti-abortion group," Jul. 29, 2015
New York Times, "Fetal Tissue From Abortions for Research Is Traded in a Gray Zone," Jul. 27, 2015
Washington Post, "Congressional, state investigations into Planned Parenthood underway after undercover video goes viral," Jul. 15, 2015
Milwaukee Journal-Sentinel, "Assembly GOP lawmakers vow to quickly pass fetal tissue bill," Jul. 29, 2015
USA Today, "States play catch-up on stem cells," Dec. 17, 2004
NewsOK, "Kansas ban on profiting from fetal tissue sales in spotlight," Jul. 22, 2015
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Inc., "Stem Express," 2014
Stem Express, "Statement of StemExpress Concerning Recent Media Stories," Jul. 16, 2015
Planned Parenthood Federation of America, "Form 990, Planned Parenthood Federation of America, Inc.," 2013
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Phone and email interviews with Catherine Lozada, Planned Parenthood Federation of America, July 30, 2015
Phone interview with Prue Talbot, director, Stem Cell Research Center at the University of California, Riverside, July 30, 2015
Email interview with Liz Clark, Planned Parenthood Federation of America, July 26, 2015
Email interview with Damien Filer, Florida Alliance of Planned Parenthood Affiliates spokesman, July 29-30, 2015
Email interview with Arthur Caplan, director of the Division of Medical Ethics at New York University’s Langone Medical Center, July 30, 2015