Earlier today, an undercover video released by the Center for Medical Progress shows a national-level executive of Planned Parenthood admitting that the abortion provider sells intact fetal body parts.

The video is posted below. If you haven’t watched it already, I’d recommend you do. Warning: it is profoundly disturbing. You will want to read the rest of this article to help explain how this practice exists and why it is still, sadly and shockingly, legal.

The discussion in the video is graphic, gruesome, and disturbing. What’s even more shocking is that this practice may actually be legal under current federal law.

The following is an attempt to examine the contents of this video in the context of the law. I’m grateful for the Center for Medical Progress for exposing this practice. They have performed and invaluable service by creating this video. I think we should clearly understand the truth of the situation, not because it demonstrates that the horrific practice of Planned Parenthood is still, unbelievably, protected under federal law.

Selling Fetal Body Parts

In light of the discussion, the video mentions two federal laws related to organ selling. Unfortunately, neither of these laws appear to be applicable to this issue or to the discussions in the video.

42 U.S. Code 274e prohibits the purchase of human organs, including any organs derived from a fetus, for the purposes of human transplantation. Because the fetal tissue is likely to be used for research purposes rather than be transplanted into a living human, this law most likely does not apply.

42 U.S. Code 289g covers the prohibitions regarding human fetal tissue and states that, “It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human fetal tissue for valuable consideration if the transfer affects interstate commerce.”

In each of these laws, the term “valuable consideration” does not include “reasonable payments associated with the transportation, implantation, processing, preservation, quality control, or storage of human fetal tissue.”

In the video the representative from Planned Parenthood (PP) makes it clear that the clinics “do not want to be perceived as, ‘This clinic is selling tissue, this clinic is making money off of this.’” Provided that the price set by the clinics is considered “reasonable payment” for the services listed above, the PP affiliates are likely not violating any federal laws.

This law (42 U.S. Code 289g) prevents the solicitation of fetal tissue for transplantation and the “solicitation or acceptance of tissue from fetuses gestated for research purposes.” What this means is that a buyer cannot solicit fetal tissue for transplantation or use tissue from a fetus that is known to have been created solely for the purpose of aborting the baby and extracting its tissue and/or organs.

But this seems to cover only human tissue that was acquired when the pregnancy was “deliberately initiated to provide such tissue.” Tissue donated after an abortion for research purposes appears to be completely legal under federal law.

On March 22, 1988, the Assistant Secretary for Health of Health and Human Services (HHS) for the Reagan administration imposed a temporary moratorium on federal funding of research involving transplantation of fetal tissue from induced abortions. On November 2, 1989, the HHS secretary extended the moratorium indefinitely. On Jan. 22, 1993 President Bill Clinton lifted the moratorium. The policy has not changed since.

Because of this change, tissue and organs from aborted fetuses may be used for therapeutic purposes provided the material was freely donated by women following their decision to terminate (because of 42 U.S. Code 289g it is illegal for a clinic to ask for approval prior to the abortion).

The organs and tissue may be used provided the woman who had the abortion and is donating the tissue made in writing and signed a declaration that:

“(A) the woman donates the fetal tissue for use in research described in subsection (a);

(B) the donation is made without any restriction regarding the identity of individuals who may be the recipients of transplantations of the tissue…”

The Partial-Birth Abortion Question

The video also raises questions about whether the clinics are using an illegal partial-birth abortion in order to protect the organs for resale. 18 US Code 1531 prohibits partial-birth abortion and states that:

The term “partial-birth abortion” means an abortion in which the person performing the abortion—

(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus;

Because the PP representative says that ultrasound is used so that the abortionist is “cognizant about where you put your graspers” it is unclear on whether she is describing a partial birth abortion or a procedure that is taking place entirely inside the womb. The way she has framed the statement, however, provides her with sufficient plausible deniability. I believe it would be a mistake to place too much weight on such an ambiguous statement.

So what does all this mean? It means that this despicable practice of selling the body parts of aborted children is likely to be legal and an accepted, if not common practice, among abortion providers. The video should serve as a disturbing wake-up call for the pro-life community. We are justified in being outraged by the trafficking in human parts by Planned Parenthood and their justification of the practice and we should be outraged at the federal government that made it legal to traffic in the sale of aborted human flesh. What’s more we should call on our legislators to act to both defund Planned Parenthood and to ban the sale of fetal tissue. 

Editor's Note: ERLC and Focus on the Family are hosting the first ever Evangelicals for Life event next year in Washington DC on January 21-22nd, featuring Russell Moore, Roland Warren, David Platt, Kelly Rosati, Ron Sider and others.