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Source: Republican National Coalition for Life FaxNotes, 3-23-01
Subject: "When Does a Fetus Become a Newborn Baby?"
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When Does a Fetus Become a Newborn Baby?

HHS Regulation Says Not Until He is "Viable"... Every now and then over the
past 28 years since Roe v. Wade, a story emerges about tiny newborn babies
being left to die in hospitals, abandoned by parents unwilling to deal with
their physical problems, and uncared for by medical personnel caught between
their own consciences and
hospital rules.  The famous "Baby Doe" case comes to mind.  In that case,
which took place in Bloomington, Indiana, a baby was born on April 9, 1982
with Down Syndrome and his parents refused to allow a doctor to correct a
defect in the esophagus that prevented eating.  He died of starvation on
April 15, 1982.  Baby Doe was left to die, unattended and deprived of even
water to moisten his little eyes.  Protests from pro-life groups, Congressman
Henry Hyde and others led to an executive order, issued by President Reagan,
notifying hospitals receiving federal aid that they may lose their funding if
they withheld food and medical treatment from
handicapped babies.  Despite efforts by the Reagan Administration to prevent
more abuses of this type, the U.S. Supreme Court, in a 5-3 decision, struck
down a protective regulation that had been issued by HHS.  The extent of
protection for the children was left undefined.  

Yesterday, Jill Stanek, a labor and delivery nurse at Christ Hospital in Oak
Lawn, Illinois, briefed Capitol Hill staffers and others on her experience
with her hospital's policy of performing live birth abortions in which labor
is induced, the baby is delivered prematurely, sometimes alive, and then left
to die.

The reaction of most people when they hear stories like these is to say,
"Wait a minute!  Once a baby is born, he's a citizen of the United States,
right?"   "He's protected under the Constitution, right?"  Wrong.

How are we wrong?  Why is the practice of infanticide legitimized in
America?  The answer may lie, at least in part, with a quarter-century-old
regulation established by the Department of Health and Human Services (then
known as the Department of Health, Education and Welfare) in 1975.  It came
to light during the review by the new Bush administration of thousands of
Clinton-imposed federal regulations issued in the final days of his
presidency.  The regulation in question, a "final rule" of the Department of
HHS number 45 CFR Part 46, RIN 0925-AA14 is found in the January 17, 2001
issue of the Federal Register, Volume 66, Number 11.  Initially adopted in
1975, it was revised and, if not for the Bush 60-day-hold, would have become
effective on March 19, 2001.

HHS regulates research involving human subjects through regulations like the
one in question, which pertains to research involving fetuses, pregnant
women, and human in vitro fertilization.  It was revised to allow pregnant
women to participate in research, particularly with respect to treatment of
HIV infection.  It also sets forth the rules under which fetuses can be
experimented upon.  Our alarm bells went off when we saw the term "fetus"
applied to a baby after delivery!

As we all know, the term "fetus" is used to describe one stage in the
development of a human being.  While still in the womb, he is called a
"fetus," but once born (delivered) he is no longer called a "fetus" but as a
"neonate," a "newborn," or the more familiar term,  BABY!

In the Clinton regulation, HHS has used definitions substantially the same as
those established in 1975.  A fetus is defined as ". . . the product of
conception from implantation until a determination is made after delivery
that it is viable."  Let's repeat that.  Until a determination is made after
delivery that it is viable.  So, according to
this agency of our government, a mother does not give birth to a "baby."  She
gives birth to a "fetus" whose status as a human child has to be determined
by somebody saying he is "viable."

A nonviable fetus is defined as "a fetus after delivery that, although
living, is not viable."  He is born, he is alive, but he is not "viable" so
he's still a fetus even though his mother, who isn't familiar with HHS
regulations, thinks she just gave birth to a baby.

HHS defines "viable" in the regulation in this way:  "Viable as it pertains
to the fetus means being able, after delivery, to survive (given the benefit
of available medical therapy) to the point of independently maintaining
heartbeat and respiration.  If a fetus after delivery is viable then it is a
child as defined by Sec. 46.402 (a)."   Evidently this means that babies
confined to neonatal intensive care units, who cannot breath on their own and
who need extraordinary care to maintain other bodily
functions, are not officially recognized as "babies" or "children" by the
United States government, but remain "fetuses" until designated "viable" by
somebody whose status the regulation does not make clear.

We all know that the life of a fetus is not protected under the law in our
country because, as the Supreme Court said in Roe v. Wade, he is not "a
person born or naturalized" and therefore does not come under the protection
of the Fourteenth Amendment.  We now have discovered that for 26 years,
babies who are delivered alive but considered not viable according to HHS are
designated as fetuses, not children.  Is that the answer to how unwanted
little babies at Christ Hospital can be legally abandoned and left to die? 
While millions of loving parents have and will pay any price for the finest
medical care for their precious premature babies, what about
those who are poor, frightened, alone and without insurance?  Are their
babies being allowed to die?

In a letter dated March 14th to Secretary Tommy Thompson from Reps. Joe Pitts
(R-PA), Chris Smith (R-PA), James Barcia (D-MI), and John Shadegg (R-AZ), the
Congressmen said, "If this rule is allowed to proceed, the position of the
federal Department of Health and Human Services with regard to "human
research subjects" will be that babies born alive are not necessarily
children.  This cannot and should not be the position of an agency tasked
with defending children and protecting life."

It is right that the Bush administration has suspended the revision of HHS
Regulation 45 CFR Part 46.  It should be abolished along with the original
regulation that has been in force since 1975.  We expect nothing less of the
Bush administration than to completely revise the federal approach to babies
born alive so that they are respected and protected as members of the human
family and "persons born" under the United States Constitution.

The temporarily suspended regulation can be found at
http://www.access.gpo.gov/su_docs/fedreg/frcont01.html.

HHS Secretary Tommy Thompson - Phone: 202-690-7000
President George W. Bush - 202-456-1414
Fax: 202-456-2461

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