Actually, the Planned Parenthood Body Parts Business is Likely Very Illegal

By Rachel Alexander Published on July 15, 2015

The Center for Medical Progress released an undercover video this week showing Planned Parenthood’s Senior Director of Medical Services, Deborah Nucatola telling actors posing as potential buyers from a startup biologics company how they can buy fetal body parts from the organization. She dances around the legalities, but drops numerous hints throughout the conversation that Planned Parenthood is not really complying with the law.

It is a federal felony “to knowingly acquire, receive, or otherwise transfer any human fetal tissue for valuable consideration if the transfer affects interstate commerce.” (42 U.S. Code 289g) In this context, the term “valuable consideration” means significant profits; it does not include “reasonable payments associated with the transportation, implantation, processing, preservation, quality control, or storage of human fetal tissue.” Planned Parenthood’s defense, in essence, is that they’re just charging to cover the costs of transportation, etc. They made this assertion in their official response to the undercover video, claiming that the $30 to $100 offered per fetus in the video was referring to transportation costs, not actual payment for the fetuses.

But the Center for Medical Progress obtained a flyer from StemExpress, LLC, which buys fetus body parts from Planned Parenthood. It clearly references the profitability aspect:

This flyer advertises 4 different times the financial benefit that Planned Parenthood clinics can receive from supplying fetal tissue, with the words: “Financially Profitable,” “Financial Profits,” “financial benefit to your clinic,” “fiscal growth of your own clinic.” The advertisement carries an endorsement from Planned Parenthood Medical Director Dr. Dorothy Furgerson.

In the video, Nucatola says that Planned Parenthood charges $30 to $100 per fetus, and the way she discusses it in the video, it sounds like regular payments for a product, and not like she is referring solely to shipping. She implies that the cost varies according to what part is wanted, stating that most people want livers — leading one to figure that livers cost more since there is a higher demand. The cost seems rather high just for shipping, and why not a set rate if it’s just a matter of shipping costs?

In 2000-2001, Miles Jones, a man who sold fetal body parts and bragged about his high profits in an expose by 20/20 was investigated. He charged rates like $75 per eye. The charges were curiously dismissed by a prosecutor who offered no explanation other than no federal laws were violated.

There are at least three other areas of the law that bear on the subject. In two cases, Planned Parenthood may be free and clear (though even there this is far from clear). In the third area, it’s hard to see how Planned Parenthood isn’t violating the law.

42 U.S. Code 274e prohibits the purchase of human organs, including any organs derived from a fetus, for the purposes of human transplantation. Supposedly, the fetus parts are being sold only for research, not for transplantation. If so, then this particular law would not apply. But some consider the question far from closed.

42 U.S. Code 289g prohibits fetuses from being harvested solely for research, from a pregnancy “deliberately initiated to provide such tissue.” Currently, it is legal for the government to fund fetal tissue research, due to President Clinton lifting the ban on such in 1993. It is also legal for Planned Parenthood to ask women after an abortion has been performed if they want to donate the body to research. But do they always wait until afterwards? They have been accused, in the past of jumping the gun here.

And then there’s this: Nucatola says in the video that an ultrasound is used so that the abortionist is “cognizant about where you put your graspers” and discusses how to pull the fetus out of the womb feet first so the head is left intact. It sounds like she is describing partial-birth abortion, illegal since 2003, which uses ultrasound guidance to convert the fetus to breech position to extract the intact fetus up to the head. Additionally, when asked about partial-birth abortion, she implies that she is violating the law. “The Federal [Partial-Birth] Abortion Ban is a law, and laws are up to interpretation,” she says. “So if I say on day one, that I do not intend to do this, what ultimately happens doesn’t matter.”

Some conservative analysts have concluded what Planned Parenthood is doing is perfectly legal, but this may simply be because they are giving the organization the benefit of the doubt in its explanations, and perhaps in some cases because the analysts don’t have a strong background in law and so can be bluffed.

Not all have been willing to give the organization the benefit of the doubt, however. Insight Magazine offered a report a few years ago suggesting that Planned Parenthood has developed an elaborate procedure for getting around the plain intent of the law:

Because the sale of human tissue or body parts is prohibited by federal law, the traffickers have worked out an arrangement to expedite the process from which they all benefit and still remain within current interpretations of the law. For instance, the harvesters receive the fetal material as a “donation” from the abortion clinic. In return, the clinic is paid a “site fee” for rental of lab space where technicians, employed by the harvesters, perform as many dissections as necessary to fill researcher manifests. The harvesters then “donate” the body parts to the researchers and, rather than pay the harvesters for the actual body parts, “donate” the cost of the retrieval (a service) via a formal price list.

The fiction is that under this mutually acceptable agreement, no laws are broken: No body parts from aborted fetuses are sold.

The operative word here is fiction.

In the 20/20 expose, when asked why Planned Parenthood hasn’t been prosecuted for this, correspondent Chris Wallace responded, “We couldn’t find anyone in the federal government enforcing those laws.” This represents an intrinsic problem with today’s American legal system. A powerful organization like Planned Parenthood can find complicit prosecutors and judges willing to look the other way using technical legal jargon that the public doesn’t understand. Everyone dutifully agrees with the legal system that Planned Parenthood must not have been technically violating the law — despite all the hints, wink-winks and nods. The prosecutor in the Jones case likely decided that Jones was charging a “reasonable”fee,” even though everyone knew otherwise.

Every few years the subject of selling fetal body parts comes up again in a high-profile way like this, and nothing is done about it, other than congressional investigations that go nowhere. It is time to start educating people about the misuse of the law. Sen. Ted Cruz and La. Governor Bobby Jindal are both calling for an investigation, and the House Judiciary Committee has said it is starting one. The investigation needs to include a close look at the complicity of the legal system.

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