Jessica Duran underwent an abortion at Southwestern Women’s Options (SWO), an abortion center in Albuquerque, New Mexico, in October 2012. Last week she filed a lawsuit against the abortion center and its licensed physicians in Second Judicial District Court for the County of Bernalillo.
Duran, represented by attorney Michael Seibel, argues that the information she received prior to her abortion did not satisfy the requirements of informed consent law and that SWO failed to disclose its relationship as provider of human fetal tissue to the University of New Mexico.
According to Duran’s complaint, she visited SWO on October 5, 2012, for counseling. While at the center, Duran was given an informed consent form. The form states in part that “tissue and parts will be removed during the procedure, and I consent to their examination and their use in medical research and their disposal by the clinic and/or physician in the manner they deem appropriate.” Duran signed the form on October 10—the day she received her abortion.
The complaint notes that the “custom and practice in the medical community is to provide a separate consent form for the donation of body parts.” By including consent for the donation of fetal tissue in the same form used to secure consent to the abortion, SWO presented to Duran the distinct question of whether she wanted to donate her baby’s body parts as part and parcel of her decision to have an abortion.
SWO not only failed to provide a separate consent form for fetal tissue donation to Duran, it also neglected to present her with several important pieces of information bearing on her decision.
The lawsuit lists several facts that SWO failed to disclose to Duran prior to her abortion:
- Curtis Boyd, the supervisor at SWO, and Dr. Carmen Landau, who treated Duran at SWO, were volunteer faculty members at UNM at the time Duran was treated at SWO.
- SWO was the sole supplier of unborn baby body parts to UNM
- SWO and its physicians and staff collaborated with UNM on its fetal tissue research
- The nature and extent of how her unborn infant baby’s body parts were to be used in fetal tissue research
- A fair explanation of the procedures to be followed and their purposes, including identification of any procedures which are experimental with regard to the donation of her baby’s body parts to fetal tissue research
- An explanation of whom to contact for answers to pertinent questions about the donation of her baby’s body parts
- Donation of fetal tissue was voluntary and her refusal to participate would involve no penalty or loss of benefits
- She was free to withdraw her consent and to discontinue the donation of body parts
- The decision to donate her baby’s body parts was separate and distinct from the consent for the termination of the pregnancy
In short, the clinic failed to disclose its vested interest stemming from its collaboration with UNM on fetal tissue research in securing not only Duran’s abortion, but also her donation of fetal tissue. SWO presented the two distinct decisions to her as a package deal, without informing her that donation of fetal tissue was voluntary, and refusal to donate the baby body parts would not prejudice consent for the abortion.
At the time of her abortion, the gestational age of Duran’s baby was estimated at 13 weeks and three days. Records indicate that UNM picked up two fetal tissue specimens from SWO on October 17—one week after Duran’s abortion—including an 11.5-week-old baby and a 12.7-week-old baby.
After later requesting the disposition of her baby’s body parts from SWO and not receiving an answer, Duran concluded that her baby’s body parts were among those used by UNM for fetal tissue research because the specimens UNM picked up from SWO after her abortion were in the approximate gestational age range of her aborted baby.
In a press release on December 5 announcing the lawsuit, Duran lamented, “I was deceived when I was in an emotional, vulnerable and desperate state. The very people who advertise they offer women ‘the right to choose’ at Southwestern Women’s Options violated my right to choose.”
In the lawsuit, SWO is charged with unfair trade practices, unconscionable trade practices, failure to secure informed consent, and negligence. Duran seeks an injunction against the physicians and SWO preventing them from “seeking the donation of unborn baby infant body parts” until they comply with “the Maternal, Fetal and Infant Experimentation Act, provide proper informed consent, and comply with all State and Federal Laws regarding fetal tissue research, and … disclose their personal and financial interests to all potential patients.”
Duran’s legal challenge comes on the heels of a criminal referral by the Congressional Select Panel on Infant Lives to the attorney general of New Mexico to investigate SWO and UNM. The Select Panel advised that SWO and UNM may have violated the state’s Spradling Act, which “prohibits making anatomical gifts of the remains of any fetus that is the product of an induced abortion,” and may have violated federal law that forbids receiving “valuable consideration” in exchange for human fetal tissue.
The lawsuit highlights growing concern regarding abortion businesses and fetal tissue procurement companies. An estimated one million abortions take place in the United States every year, meaning that abortion clinics must dispose of about 2,700 baby bodies every day.
The problem of fetal disposition was considered in a recent research paper, Fetal Disposition: The Abuses and The Law, by Charlotte Lozier Institute Associate Scholar Kristi Burton Brown, J.D. She notes that while “universities and fetal parts buyers … purchase or otherwise obtain fetal organs and body parts from abortion facilities,” the researchers only make use of certain parts and the burden of disposing of the bulk of fetal tissue is left to abortion centers.
State laws regarding fetal disposition and donation of fetal tissue for research vary widely. Brown notes that in the abortion industry, “If something is cheap and even arguably legal, abortion facilities will likely take advantage of it.” This has led to practices such as those employed in Detroit, Michigan, wherein abortion facilities flushed baby parts through garbage disposals and into the sewer system.
Brown offers several recommendations in her paper that address both the disregard for the dignity of fetal remains demonstrated by abortion centers and the kind of malpractice evidenced by Jessica Duran’s lawsuit. She proposes that laws:
- Limit fetal disposition to burial or cremation and require that each fetus be disposed of individually
- Include human fetuses in the definition of “human being” or “human body” in disposition statutes
- Require abortion centers to inform the mother in writing that she must consent to the method of disposal for her child’s body, and list out the options for her to select—either individual burial or individual cremation
- Mandate regular and unexpected inspections of abortion centers to insure compliance with fetal disposition requirements
The ongoing congressional investigation, Duran’s lawsuit, and Brown’s paper all suggest that abortion centers are adept at circumventing poorly enforced or poorly written laws in service of their bottom line.
By taking advantage of women like Jessica Duran for their own material benefit and by treating the remains of unborn children like garbage to be thrown in the trash rather than human remains to be treated with respect, abortion businesses send the message that profits are more important to them than women.
Tim Bradley is a research associate at the Charlotte Lozier Institute.