Advancing Clinical Research with Pregnant and Lactating Populations Overcoming Real and Perceived Liability Risks (2024) / Chapter Skim
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Appendix C: Commissioned Paper: State Statutes Regarding Fetal Research, Fetal Personhood, Fetal Homicide and Child Abuse/Neglect & Substance Abuse
Appendix C: Commissioned Paper: State Statutes Regarding Fetal Research, Fetal Personhood, Fetal Homicide and Child Abuse/Neglect & Substance Abuse
Pages 289-362
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From page 289... ...
Specifically, it covers statutes that implicate research involving a fetus (excluding statutes solely applicable to embryonic stem cell research) , statutes focused on child endangerment that might be applicable to a fetus, and those implicating fetal personhood and fetal homicide.
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(1) Fetal Research To address the possible effect of state laws on clinical studies involv ing pregnant women, we searched the legal databases for state statutes that explicitly prohibit or limit research on pregnant women and/or fetuses/embryos.
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by a pregnant woman; in some states, such an act is prosecuted as child abuse/neglect. To identify statutes on child abuse/neglect and substance abuse, we searched the legal research databases for "child abuse," "child welfare," or "child neglect." We did not necessarily distinguish between civil and criminal actions.
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Code § 13A-6-1 Ala. Code § 26-15-3.2 – 3.3 "No person shall use an An "unborn child" is "a The homicide statute defines It is a felony to expose a child unborn infant, living or human being, specifically "person" to "include an unborn to "a controlled substance, deceased, in research or including an unborn child child in utero at any stage of chemical substance, or drug experimentation." in utero at any stage of development, regardless of paraphernalia .
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. remains of a deceased unborn infant for research, therapy, transplantation, experimentation, or any other prohibited purpose under this chapter." Alaska None found Alaska Stat.
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of Navajo, 182 treatment to the pregnant woman otherwise permissible under Ariz. 190, 894 P.2d 733 or unborn child, or is the unborn state law, until ongoing (Ct.
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An act that causes the as a result of the pregnant abortion." death of an unborn child in utero mother's knowingly using if the act was committed during a an illegal substance before "A person shall not buy, legal abortion to which the woman the birth of the child; or sell, give, exchange, or consented, including an abortion (b) At the time of the birth barter or offer to buy, sell, performed to remove an ectopic of a child, the presence of give, exchange, or barter pregnancy or other nonviable an illegal substance in the any fetus born dead as a pregnancy when the embryo is not mother's bodily fluids or result of a legal abortion going to develop further".
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Code Ann. § 5-10-101 to legal abortion or pathologist 5-10-105 examining the outcome of a Causing "the death of a person" legal abortion; (2)
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ny person "It is unlawful for any of a human being, or a fetus, with who, under circumstances or person to use any aborted malice aforethought." conditions likely to produce product of human The statute "shall not apply to any great bodily harm or death, conception, other than person who commits an act that willfully causes or permits fetal remains, for any type results in the death of a fetus if .
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Ann. § 18-6-401 § 25-2-111.5 "A person commits child "No physician or institution abuse if such person causes that performs procedures an injury to a child's life or for the induced termination health, or permits a child A02260_Advancing_Clinical_Research_AppC.indd 298 of pregnancy shall transfer to be unreasonably placed such tissue for valuable in a situation that poses a consideration to any threat of injury to the child's organization or person life or health, or engages that conducts research in a continued pattern of using fetal tissue or that conduct that results in transplants fetal tissue for malnourishment, lack of therapeutic purposes." proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or serious bodily injury to a child.
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2010) (affirming a murder "Child means any person conviction for the death of an under eighteen years of age infant who was born alive but who has not been legally died due to deprivation of oxygen emancipated.
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Code Ann. § 7-2086.01 None found None found D.c.
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§ 390.0111 (6) None found Fla.
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. "Unborn child" unborn child." excessive physical or mental means a member of the pain." species Homo sapiens at any "Voluntary manslaughter of an Ga.
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of the pregnant woman, or person an individual abuser while Wade. authorized by law to act on her the child was in utero." behalf, has been obtained" or "is implied by law." A "market area controlled substance" is defined as "a specified controlled substance or marijuana." continued PREPUBLICATION COPY -- Uncorrected Proofs 303 3/20/24 3:04 PM
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. which results in the death any child to suffer, or inflicts PREPUBLICATION COPY -- Uncorrected Proofs same meaning as "fetus" interests, in the event of its of a human being." thereon unjustifiable physical and "unborn child," which subsequent birth." pain or mental suffering, or each mean "an individual having the care or custody of organism of the species any child, willfully causes or Homo sapiens from permits the person or health fertilization until live birth." 3/20/24 3:04 PM
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. no person shall child" each mean "an Protective Act, "‘‘ abused" knowingly aid or abet individual organism of the means any case in which a any such sale, transfer, species Homo sapiens from child has been the victim distribution, other unlawful fertilization until live birth." of conduct or omission disposition, acceptance, use or attempted use of the resulting in skin bruising, body or bodily remains of bleeding, malnutrition, burns, an aborted infant.
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. no person shall knowingly experiment A 1991 opinion by the upon an unborn infant who Idaho Attorney General is intended to be aborted contends that the state A02260_Advancing_Clinical_Research_AppC.indd 306 unless the experimentation has "a compelling interest is therapeutic to the unborn in protecting potential infant." human life from gestational drug abuse and in further protecting a child's right to be born with a sound mind and body.
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This Section does to an abortion that results in the corporal punishment, female not prohibit reimbursement death of her unborn child, nor genital mutilation against the for removal, storage, or does they apply to acts that "were child; giving child access to transportation of embryonic committed pursuant to customary controlled substances." or cadaveric fetal tissue for standards of medical practice research purposes." during diagnostic testing or therapeutic treatment." continued PREPUBLICATION COPY -- Uncorrected Proofs 307 3/20/24 3:04 PM
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From page 308... ...
the and civil liability for pregnant mother whose pregnancy is wrongful death and medical terminated; (2) a person who in good malpractice." faith provides medical treatment to a pregnant woman that results PREPUBLICATION COPY -- Uncorrected Proofs in the accidental or unintentional termination of the pregnancy; or (3)
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receive, otherwise transfer, of the species homo sapiens with the knowledge and voluntary or use a fetal body part from fertilization until live consent of the pregnant person, Child abuse means "any in this state, regardless of birth." after the end of the second non-accidental physical whether the acquisition, trimester .
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(3) All cells and tissues external to the fetal body proper." PREPUBLICATION COPY -- Uncorrected Proofs 3/20/24 3:04 PM
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Ann. § 38-2202 including abortion, performed research, laboratory or other citizens and residents of by a physician or other licensed this state, subject only Child neglect "means kind of experimentation medical professional at the request to the constitution of the acts or omissions by a either prior to or of the pregnant woman or her parent, guardian or person subsequent to any abortion United States, and decisional legal guardian; or (3)
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. payment for a against a woman for worsening." pathological examination, indirectly harming her autopsy or postmortem unborn child by failing to examination of the fetal properly care for herself remains." or by failing to follow any particular program of prenatal care." Kentucky None found Ky.
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If the "The offense of feticide shall the child." except to protect or preserve child is born dead, it shall not include acts which cause the the life and health of the live be considered never to have death of an unborn child if those "‘‘Child" means a person under eighteen years of age." PREPUBLICATION COPY -- Uncorrected Proofs born human being, or the existed as a person, except acts were committed during any conduct, on a human embryo for purposes of actions abortion to which the pregnant "‘‘Neglect" means the refusal or fetus in utero, of any resulting from its wrongful woman or her legal guardian has or unreasonable failure of a experimentation or study death." consented or which was performed parent or caretaker to supply except to preserve the life or in an emergency as defined in R.S. the child with necessary to improve the health of the 40:1061.23.
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(a) "committed pursuant to usual and treatment, or counseling experimentation on an customary standards of medical for any injury, illness, or infant born alive shall be Under Louisiana's Pain- practice during diagnostic testing condition of the child, as a imprisoned at hard labor for Capable Unborn Child or therapeutic treatment." result of which the child's not less than five nor more Protection Act, "it is the physical, mental, or emotional A02260_Advancing_Clinical_Research_AppC.indd 314 than twenty years, or fined purpose of the state to assert health, welfare, and safety is not more than ten thousand a compelling state interest in substantially threatened or dollars, or both." protecting the lives of unborn impaired.
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tit. 22, § 1593 None found None found Me.
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Code Ann., Fam. Law § 5-701 "A prosecution may be instituted for murder or manslaughter of "‘‘Abuse" means the physical a viable fetus," if the person or mental injury of a child prosecuted "intended to cause the under circumstances that A02260_Advancing_Clinical_Research_AppC.indd 316 death of the viable fetus, intended indicate that the child's to cause serious physical injury health or welfare is harmed to the viable fetus, or wantonly or at substantial risk of being or recklessly disregarded the harmed." "Child" is defined likelihood that the person's actions as any individual under 18.
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ch. None found Commonwealth v.
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TABLE C-1 Continued 318 Child Abuse/Neglect & State Fetal Research Fetal Personhood Fetal Homicide Substance Abuse This provision does "not prohibit or regulate diagnostic or remedial procedures the purpose of which is: (i) to determine the life or health of the fetus or neonate involved; A02260_Advancing_Clinical_Research_AppC.indd 318 (ii)
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Laws Ann. None found M ich.
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TABLE C-1 Continued 320 Child Abuse/Neglect & State Fetal Research Fetal Personhood Fetal Homicide Substance Abuse of a planned abortion being (b) A medical procedure performed for any purpose performed by a physician or other than to protect the life other licensed health professional of the mother." within the scope of his or her practice and with the pregnant M ich.
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Ann. None found Minn.
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If the proposed research involves aborted fetal tissue, the researcher must provide a written narrative justifying the use of aborted fetal tissue and discussing whether alternatives to aborted fetal tissue, including non-aborted fetal tissue, can be used." Mississippi None found Mississippi includes fetal Miss.
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Code Ann.
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The natural parents 5. A physician using procedures "A person commits the except as necessary to of unborn children have consistent with the usual and offense of endangering the protect or preserve the life protectable interests in the customary standards of medical welfare of a child in the and health of such fetus or life, health, and well-being practice to save the life of the first degree if he or she .
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A02260_Advancing_Clinical_Research_AppC.indd 325 4. Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care." Mo.
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a person for conduct relating to an abortion for which the consent of the pregnant woman or a person authorized by law to act on her behalf has been obtained or for PREPUBLICATION COPY -- Uncorrected Proofs which the consent is implied by law; (b) a person for any medical treatment of the pregnant woman or her fetus; or (c)
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. ." knowledge of the pregnancy." Nevada None found None found Neb.
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hild' means any person A02260_Advancing_Clinical_Research_AppC.indd 328 to (1) Any act committed by who has not reached his the pregnant woman; (2)
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(b) inflicting upon a is not a "human being" within child unnecessary suffering meaning of criminal homicide or pain, either mental or provision of Code of Criminal physical; .
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Ann. § 24-9A-2 None found None found N.M.
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§ 24-9A-5 "A. No clinical research activity involving fetuses, PREPUBLICATION COPY -- Uncorrected Proofs live-born infants or pregnant women shall be conducted unless: (1)
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no procedural changes which may cause significant risk to the fetus or the pregnant woman will be introduced into the procedure for terminating the pregnancy solely in the interest of the research activity.
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C No consent to involve a pregnant woman, fetus or infant as a subject in clinical research activity shall be valid unless the pregnant woman or the parent or guardian of the infant has been fully informed of the following: (1)
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. North None found None found N.C.
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1984) the value of the life of the unborn with a controlled substance, study of a human fetus (holding that the stillbirth child or the pregnant woman;.
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Code Ann. child or vulnerable adult)
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. A person may not use a fetus or fetal organs or tissue resulting from an induced abortion in animal or human research, experimentation, or study, or for animal or human transplantation except for diagnostic or remedial procedures, the purpose of which is to determine the life or health of the fetus or to preserve the life or health of the fetus or mother, or PREPUBLICATION COPY -- Uncorrected Proofs pathological study.
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Code Ann. § 2903.09 woman or induce or cause defined as follows: a pregnant woman to use a ""Unlawful termination of controlled substance, when "(B)
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. Oklahoma None found None found Okla.
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Intentional conduct by an time of the criminal act." adult that results in: (A) Any physical injury to a child; or (B)
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upon any unborn construed so as to extend (relating to voluntary manslaughter child, or upon any child to the unborn the equal of unborn child) ." statute, does not include a born alive during the course protection of the laws and fetus or unborn child, and of an abortion, commits a to further the public policy mother was not perpetrator felony.
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Laws Ann. None found None found 40 R.I.
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In any criminal proceeding the fetus shall be conclusively presumed not to be the subject of a planned abortion if the mother signed a written statement at the time of the study that she was not planning an abortion.".
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From page 344... ...
years of age, to the effect that she consents to the use of her fetus for scientific, laboratory, research, or other kind of experimentation or study; that written consent shall constitute lawful authorization for the PREPUBLICATION COPY -- Uncorrected Proofs transfer of the dead fetus." 3/20/24 3:04 PM
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From page 345... ...
of a person for any medical a viable fetus is a "child" treatment of the pregnant woman within meaning of child or her unborn child; or abuse and endangerment (3) of a woman with respect to her statute, and mother could be charged under statute PREPUBLICATION COPY -- Uncorrected Proofs unborn child." (C)
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Codified Laws § 26-1-2 (1) Intended to cause the death of or do serious bodily injury to the "A child conceived, but not pregnant woman or the unborn born, is to be deemed an child; or existing person so far as may (2)
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apply to "any act or neglect a child "so as to A02260_Advancing_Clinical_Research_AppC.indd 347 without the prior human beings, including the or omission by a pregnant woman adversely affect the child's knowledge and written fundamental and absolute with respect to an embryo or fetus health and welfare." consent of the mother(.) " right of unborn human with which she is pregnant, or beings to life, liberty, and to any lawful medical or surgical Under a 1995 AG opinion, the all rights protected by procedure to which a pregnant term "child" does not include the Fourteenth and Ninth woman consents, performed a fetus, and use of cocaine Amendments to the United by a health care professional by a pregnant women cannot States Constitution." who is licensed to perform such be considered child abuse or procedure." aggravated child abuse under this statute.
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From page 348... ...
to any act or omission by a pregnant women with respect to an embryo or fetus with which she is pregnant, or to any lawful medical or A02260_Advancing_Clinical_Research_AppC.indd 348 surgical procedure to which a pregnant women consents, performed by a healthcare professional who is licensed to perform such procedure." A 2008 AG opinion states that "A pregnant mother who ingests an illegal drug, thereby injuring her viable fetus, can be criminally liable for assault if she intentionally, knowingly, or recklessly causes bodily injury; aggravated assault if she intentionally, knowingly, or recklessly causes serious PREPUBLICATION COPY -- Uncorrected Proofs bodily injury; or reckless endangerment if she places the fetus in imminent danger of death or serious bodily injury." Tenn.
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A person commits "‘‘Individual" means a being who is alive, including "an an offense if the person human being who is alive, unborn child at every stage of knowingly delivers a including an unborn child gestation from fertilization until controlled substance .
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Penal Code Ann.
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§ 76-5-201 Utah Code Ann.
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Code Ann. § 32.1-162.19 None found Va.
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. ." Washington None found None found Wash.
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From page 354... ...
creates an imminent and substantial risk of death or great bodily harm by withholding any of the basic necessities of life, or (b) causes substantial bodily harm by withholding any of the basic necessities of life." State v.
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Code Ann. § 9A.42.100 "A person is guilty of the crime of endangerment with a controlled substance if the person knowingly or intentionally permits a dependent child or dependent adult to be exposed to, A02260_Advancing_Clinical_Research_AppC.indd 355 ingest, inhale, or have contact with methamphetamine or ephedrine, pseudoephedrine, or anhydrous ammonia, including their salts, isomers, and salts of isomers, that are being used in the manufacture of methamphetamine, including its salts, isomers, and salts of isomers." continued PREPUBLICATION COPY -- Uncorrected Proofs 355 3/20/24 3:04 PM
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"[a] cts or omissions of end of the embryonic period and the clothing, shelter, supervision, a pregnant woman with beginning of the fetal period, which medical care, or education, PREPUBLICATION COPY -- Uncorrected Proofs respect to the embryos occurs eight weeks after fertilization when that refusal, failure, or or fetus she is carrying" or ten weeks after the onset of the inability is not due primarily nor to "acts or omissions last menstrual period.
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[A] pregnant woman In re A.L.C.M., 801 S.E.2d 260 and the embryo or fetus she is (W.Va.
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From page 358... ...
Unless an emergency prevents, woman who is pregnant with is performed in a licensed PREPUBLICATION COPY -- Uncorrected Proofs an unborn child that results maternity hospital." in the death of or great bodily "(6) In this section ‘Unborn child' harm, substantial bodily harm, means a human being from the or bodily harm to that unborn time of conception until it is born child." alive." 3/20/24 3:04 PM
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From page 359... ...
Ann. § 939.24 WI defines "criminal recklessness" as including conduct where an "actor creates an unreasonable and substantial risk of death or great bodily harm to an unborn child, to the woman who is pregnant with that unborn child or to another and the actor is aware of that risk." PREPUBLICATION COPY -- Uncorrected Proofs continued 359 3/20/24 3:04 PM
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From page 360... ...
"A person is guilty of murder in "A person is guilty of child "Unborn child means a the second degree of an unborn abuse, a felony punishable member of the species homo child if: (i) The person purposely by imprisonment for not sapiens, at any state of and maliciously, but without more than ten (10)
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"(b) No person shall knowingly .
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PREPUBLICATION COPY -- Uncorrected Proofs A02260_Advancing_Clinical_Research_AppC.indd 362 3/20/24 3:04 PM
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