Fetal Researchers Go Under the Law

Sometime early next year, Newman A. Flanagan, assistant district attorney, may go before the Suffolk County Superior Court and argue that four doctors, all once associated with Boston City Hospital, are guilty of having carried off a human body without authorization for purposes of dissection. Flanagan says the case is very simple, and his explanation suggests that the alleged crime is not much different from the acts of graverobbing the involved statute was meant to halt when it was introduced in 1837.

But when Dr. Leonard D. Berman, assistant professor of Pathology; Dr. Leon D. Sabbath '52, then associate professor of Medicine; Dr. David Charles, and Dr. Agnetta Phillipson were indicted last April in connection with their fetal research, the concern that swept the medical community was not so simple. The doctors' experiments--published in The New England Medical Journal in June of 1973--had involved abortions, and area researchers saw the indictments as an effort by the authorities in this largely Roman Catholic community to arrest all fetal research. As Rudolph Pierce, Berman's attorney, said last week, "The issue here is not the direct legal one but the underlying emotional one." And in what is partially an effort to keep the emotional issues out of the courtroom, Pierce and his colleagues have filed a motion to change the venue of the trial, to a neighboring county.

The indictments capped a two-month investigation by the district attorney's office that was prompted by the publication of the paper, a study of the effect on a fetus of penicillin administered to the pregnant woman. The four defendants were not only charged with carrying off the tissue, but in a separate count with "aiding" the alleged transport. In a related case, Dr. Kenneth Edelin, chief obstetrician at BCH, was charged on the same day with manslaughter, in connection with the "death" of a 24-week-old fetus.

The D.A.'s actions outraged experimenters. Some doctors said the charges against their four colleagues amounted to a count of illegal abortion for a method of research they argued was standard. Scientists reported that the indictments successfully dissuaded further fetal experimentation at the time.

Since then, fetal research has been limited by the adoption this summer of a fetal-research bill by the Massachusetts legislature. This bill requires "parental consent" before a doctor may experiment on a fetus and prohibits both the culture of live fetal tissue after abortion and experimentation on a fetus while it is still in the womb.

Flanagan says now that the indictments were not aimed at the scientific community. "A lot of people want to tie this up with fetal research," he said last week. "But this doesn't have anything to do with fetal research."

The case "in a nutshell" for Flanagan is that the doctors allegedly conveyed dead human tissue to the laboratory for dissection without securing authority. What "authority" means in this situation is that the involved fetuses, all allegedly 20 to 24 weeks old, did not have death certificates filed in their "names." Flanagan says that if the tissue had first been delivered to the Pathology Department at BCH--as it is supposed to be transferred--pathologists would have filled out death certificates and the alleged dissection would thus have been authorized. The "obvious crux" of the case, says Flanagan, is that the doctors failed to obtain such authorization.

The defense hopes that Flanagan will never get to explain his "obvious crux" before a jury, and it has submitted a barrage of preliminary motions in an effort to have the case thrown out of court. In a lengthy motion to dismiss, filed July 22, the lawyers say that the indictment is "vague," hence unconstitutional, because, they allege, it leaves their clients in the dark as to just what they are charged with.

Furthermore, there "exists no permissible or compelling state interest in proscribing the alleged conduct" of the defendants, the defense wrote. The attorneys claim that their clients are victims of selective enforcement of a statute that has not been invoked in 50 years, for behavior they say is "in accordance with accepted medical practice."

The defense lawyers also contend that the indictments invade the right to privacy between a physician and patient. All motions will be debated in preliminary hearings before a judge not yet named and at a time not yet decided. "These constitutional questions are our strongest hope prior to trial," Neil L. Chayet, Charles's attorney, said last week.

Should they be tried, though, the doctors appear prepared to argue their innocence on all fronts, from a possible refutation of Flanagan's simple grave-robbing case, to a complicated justification of their alleged conduct from a medical ethics standpoint. Chayet said last week that a "number" of researchers--none of whom he would name--had offered to testify for the defense, and that as a result the defense's stance on medical ethics would be "formidable and considerable." The motions do imply, however, that the lawyers expect the trial debate to descend into an argument over the abortion issue--and they are ready for such a confrontation.

For instance, throughout the documents, the defense seeks to establish that a woman has the right to determine "the circumstances and procedures of the termination of her pregnancy in consultation with her physician...including the right to participate in medical and scientific research and to allow the abortus to be used in connection therewith."

Along this line, Chayet says, the defense may cite the U.S. Supreme Court's landmark decision of Roe v. Wade in January 1973 and also a Massachusetts Supreme Judicial Court finding of July 1974 in Doe v. Doe. The Supreme Court's "abortion decision" asserted that a woman has the right of privacy to terminate a pregnancy with the approval of a physician. The majority opinion in the latter case held that this right obtains even where a husband objects. "In both cases a great deal of authority is given to the mother," Chayet added. A national commission is now considering resolutions that would limit the authority a woman has to permit research on her fetus, but its findings would ostensibly have no effect on the case of the four Boston doctors.

In fact, the question of maternal approval would not necessarily surface in a trial. But even so, Flanagan's basic case of unauthorized conveyance of dead human tissue will almost surely broach another "difficult" issue, linked with abortion, that could become the focus of a trial.

And this is the question of just when dead fetal tissue becomes the tissue of a deceased human being.

The Supreme Court, in that 1973 decision, implied that this transition occurs at gestational age 24 to 28 weeks, as this is the period when a fetus grows "viable"--when it can live away from its mother. Associate Justice Harry A. Blackmun '29 thus ruled that abortions should be allowed through the 24th week of pregnancy, at which point the state's "legitimate interest in protecting the potentiality of human life" would overcome the right of the mother as an individual.

The Massachusetts legislature appeared to endorse this standard when it voted on July 18 to prohibit abortions after the 24th week of pregnancy unless the woman's life is in danger. The doctors' attorneys also appear to accept this definition and in the motions carefully refer to the involved fetuses as "alleged human bodies."

But Newman Flanagan does not buy the 24-week dividing mark. He refers to Chapter 46 of the state's General Laws, which recognizes the age of 20 weeks as the point at which all aborted fetuses must have birth and death certificates filed. Furthermore, Flanagan's own definition of "viability" is not as complicated as that of the Supreme Court: "If those fetuses [20 weeks or older] were born alive and kicking, then they have every right that you and I have as citizens of Massachusetts." And since all the alleged aborted fetuses in this case were 20 to 24 weeks old at delivery, according to Flanagan, they were all human beings and their tissue in turn was deceased human tissue when the four doctors allegedly carried it away for dissection.

Chayet said last week that the defense has yet to sit down with Flanagan and discuss the case, but a key question in the motion for a bill of particulars asks the state to disclose the "date(s) on which the Commonwealth contends the alleged decedent named in the indictment became a human body, human being, or person." Whether the lawyers will accept Flanagan's "live-and-kicking" thesis remains to be seen, but it's a good bet that Flanagan will make his case first as the prosecutor in the Edelin man-slaughter trial, which begins probably in October and could raise the same thorny issue.

Whether the BCH doctors case turns on the "when-does-life-begin" question is uncertain, mainly because the indictment itself is open to so many different interpretations. Flanagan admits that this point may become "the meaty part of the thing," but before he gets to say so in the Suffolk County Superior Court, the defense is determined that "the thing" will never come to trial