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in postnatal research. Note, however, that they would have the right to include them in minimally risky research on the ground that no ethical or legal duty would be violated in doing so.

However, this regulation is not justified in situations where the pregnancy will not go to term. In such cases, strictly speaking, there is no risk of harm to the fetus, because a previable fetus is insufficiently developed to have interests in its own right, and thus cannot be harmed. The National Commission, however, took the position that all fetuses should be treated equally—those going to be aborted should be treated the same as those going to term. Under the Commission's understanding no research could be done on fetuses going to be aborted that could not be done on fetuses going to term. Treating all fetuses the same overlooks the fact that nontherapeutic research on fetuses going to term could affect the interests of offspring, whereas research on fetuses to be aborted cannot hurt future offspring, much less previable fetuses, which are nonsentient and do not have interests.

There is one possible risk with nontherapeutic research on fetuses going to be aborted that is of ethical concern. That risk is that the woman who consents to that research might change her mind about abortion after the experimental procedure has begun. If so, research begun with no intention of harming offspring could end up harming children who are later born. Of course, once the experimental procedure has begun, the woman might be reluctant to change her mind precisely because of risk of harm to offspring. To make research ethically acceptable on fetuses going to be aborted, the experimental procedure should be administered shortly before the abortion or in other circumstances in which it is very clear that the pregnancy will in fact be terminated, and that the woman has had sufficient opportunity to contemplate that decision. Researchers and reviewers should assure that this condition is met.



§ 46.207(a); § 46.208(a).


This statement assumes a certain view of why viable fetuses are protected. If protection is based on sentience alone—an interest in avoiding pain and suffering—they may not also have an interest in coming to term.

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