42 U.S.C. § 289g

Fetal research

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(a) Conduct or support by Secretary; restrictionsThe Secretary may not conduct or support any research or experimentation, in the United States or in any other country, on a nonviable living human fetus ex utero or a living human fetus ex utero for whom viability has not been ascertained unless the research or experimentation—(1) may enhance the well-being or meet the health needs of the fetus or enhance the probability of its survival to viability; or(2) will pose no added risk of suffering, injury, or death to the fetus and the purpose of the research or experimentation is the development of important biomedical knowledge which cannot be obtained by other means.(b) Risk standard for fetuses intended to be aborted and fetuses intended to be carried to term to be sameIn administering the regulations for the protection of human research subjects which—(1) apply to research conducted or supported by the Secretary;(2) involve living human fetuses in utero; and(3) are published in section 46.208 of part 46 of title 45 of the Code of Federal Regulations;or any successor to such regulations, the Secretary shall require that the risk standard (published in section 46.102(g) of such part 46 or any successor to such regulations) be the same for fetuses which are intended to be aborted and fetuses which are intended to be carried to term.(July 1, 1944, ch. 373, title IV, § 498, as added Pub. L. 99–158, § 2, Nov. 20, 1985, 99 Stat. 877; amended Pub. L. 100–607, title I, §§ 156, 157(b), Nov. 4, 1988, 102 Stat. 3059; Pub. L. 103–43, title I, § 121(b)(1), June 10, 1993, 107 Stat. 133.)Editorial NotesAmendments

1993—Subsec. (c). Pub. L. 103–43 struck out subsec. (c) which directed Biomedical Ethics Advisory Committee to conduct a study of the nature, advisability, and biomedical and ethical implications of exercising any waiver of the risk standard published in section 46.102(g) of part 46 of title 45 of the Code of Federal Regulations and to report its finding to the Biomedical Ethics Board not later than 24 months after Nov. 4, 1988, which report was to be then transmitted to specified Congressional committees.

1988—Subsec. (c)(1). Pub. L. 100–607, § 157(b), substituted “24 months after November 4, 1988” for “thirty months after November 20, 1985”.

Subsec. (c)(2). Pub. L. 100–607, § 156(1), substituted “24-month period beginning on November 4, 1988” for “thirty-six month period beginning on November 20, 1985”.

Subsec. (c)(3). Pub. L. 100–607, § 156(2), substituted “1990” for “1988”.

Statutory Notes and Related SubsidiariesNullification of Certain Provisions

Pub. L. 103–43, title I, § 121(c), June 10, 1993, 107 Stat. 133, provided that: “The provisions of Executive Order 12806 (57 Fed. Reg. 21589 (May 21, 1992)) [formerly set out below] shall not have any legal effect. The provisions of section 204(d) of part 46 of title 45 of the Code of Federal Regulations (45 CFR 46.204(d)) shall not have any legal effect.”

Executive DocumentsExecutive Order No. 12806. Establishment of Fetal Tissue Bank

Ex. Ord. No. 12806, May 19, 1992, 57 F.R. 21589, which established a human fetal tissue bank, was nullified by Pub. L. 103–43, title I, § 121(c), June 10, 1993, 107 Stat. 133, set out above.

Federal Funding of Fetal Tissue Transplantation Research

Memorandum of President of the United States, Jan. 22, 1993, 58 F.R. 7457, provided:

Memorandum for the Secretary of Health and Human Services

On March 22, 1988, the Assistant Secretary for Health of Health and Human Services (“HHS”) imposed a temporary moratorium on Federal funding of research involving transplantation of fetal tissue from induced abortions. Contrary to the recommendations of a National Institutes of Health advisory panel, on November 2, 1989, the Secretary of Health and Human Services extended the moratorium indefinitely. This moratorium has significantly hampered the development of possible treatments for individuals afflicted with serious diseases and disorders, such as Parkinson’s disease, Alzheimer’s disease, diabetes, and leukemia. Accordingly, I hereby direct that you immediately lift the moratorium.

You are hereby authorized and directed to publish this memorandum in the Federal Register.

William J. Clinton.

Notes of Decisions

Cited in 9 cases, 1969–2020 · leading case: James Sherley v. Kathleen Sebelius, 689 F.3d 776 (D.C. Cir. 2012).

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James Sherley v. Kathleen Sebelius, 689 F.3d 776 (D.C. Cir. 2012). · cites it 2× “204(b) and [42 U.S.C. § 289g(b)].” Id. At the time of the adoption of the first Dickey-Wicker rider, scientists had not yet isolated embryonic stem cells (ESC), and the original enactment was apparently directed at another type of research performed on human embryos in the field…”

Trs. of Indiana Univ. v. Terry Curry, 918 F.3d 537 (7th Cir. 2019). · cites it 2× “18‐1146, 18‐1247 & 18‐1308 21 it a federal crime to sell fetal tissue for “valuable considera‐ tion,” regardless of source, see 42 U.S.C. § 289g–2(a), so “sell” is not at issue here.”

Planned Parenthood of Grt TX v. Courtney Ph, 981 F.3d 347 (5th Cir. 2020). “” 42 U.S.C. § 289g- 1(c)(4); see also 45 C.”

Rubinstein v. Mayor of Baltimore, 295 F. Supp. 108 (D. Maryland 1969). · cites it 2× “In the light of 42 U.S.C. § 289g, it is clear that, the delegation of decision-making power in this case by the Surgeon General to the National Institute of Child Health and Human Development is authorized by Congress.”

Trs. of Indiana Univ. v. Terry Curry (7th Cir. 2019). · cites it 2× “18‐1146, 18‐1247 & 18‐1308 21 it a federal crime to sell fetal tissue for “valuable considera‐ tion,” regardless of source, see 42 U.S.C. § 289g–2(a), so “sell” is not at issue here.”

Planned Parenthood of Grt TX v. Courtney Ph (5th Cir. 2020). “” 42 U.S.C. § 289g- 1(c)(4); see also 45 C.”

— 42 U.S.C. § 289g(b) — 1 case

James Sherley v. Kathleen Sebelius, 689 F.3d 776 (D.C. Cir. 2012). “204(b) and [42 U.S.C. § 289g(b)].” Id. At the time of the adoption of the first Dickey-Wicker rider, scientists had not yet isolated embryonic stem cells (ESC), and the original enactment was apparently directed at another type of research performed on human embryos in the field…”

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