STATE OF NEW MEXICO OFFICE OF THE ATTORNEY GENERAL ~ eet HECTOR H. BALDERAS ATTORNEY GENERAL January 4, 2018 Committee on Energy and Commerce United States House of Representatives 2125 Raybum House Office Building Washington, DC 20515-6155 Dear Committee Members: This letter is in response to two non-confidential criminal referrals sent to the New Mexico Office of the Attorney General on June 23, 2016, and on December 21, 2016, by the Select Investigative Panel of the House Committee on Energy and Commerce. The first referral sought review of potential criminal violations of the Jonathan Spradling Revised Uniform Anatomical Gift Act. NMSA 1978, §§ 24-6b-1 (2007), ef seq. The second referral sought review of potential criminal violations of the Maternal, Fetal and Infant Experimentation Act. NMSA 1978, §§ 24-9-1 (2007), et seq. Based on the information received and for the reasons detailed below, we do not believe that the referrals’ allegations amount to probable cause for a criminal violation of either act. It is important to note that a civil review was also undertaken by our office for potential violations of state law. This civil review also found insufficient evidence to find a violation of either act. I. The Spradling Act Under the Spradling Act, a person commits a felony when that person “for valuable consideration, knowingly purchases or sells a part for transplantation or therapy if removal of a part from an individual is intended to occur after the individual's death.” NMSA 1978, § 24-6B-16(A) (2007). For there to be probable cause of a criminal violation, there must be evidence supporting each element set out in this statute. First, the person must “purchase” or “sell” an organ or tissue for “valuable consideration.” § 24- 6B-16(A). Because the terms “purchase” and “sell” are not specially defined in the Spradling Act, these terms are presumed to carry their ordinary meanings. E.g., State v. Stephenson, 2017— ‘TOLL FREE -841.255.9210 + TELEPHONE: (505) 490-1060 + FAX: (505) 490-4883 + www.nmag gov MAILING ADDRESS: P.O. DRAWER 1508 + SANTA FE, NEW MEXICO 87504-1508 STREET ADDRESS: 408 GALISTEO STREET « SANTA FE, NEW MEXICO 87501NMSC-002, 389 P.3d 272. Both terms imply a direct exchange where each party acquires something of value expressly conditioned on that party giving something of value in return. The referral alleges that as part of their training, University of New Mexico (“UNM”) medical residents and fellows worked rotations at Southwestem Women’s Options (“SWWO"), and that some staff physicians at SWWO served as unpaid volunteer faculty at UNM and received access to UNM programs and facilities. Nothing in this information, however, tends to suggest that these arrangements were direct quid pro quo exchanges for tissue. While both SWWO and the UNM Health Sciences Center (UNMHSC”) may have benefited in a variety of ways as a result of broad collaboration, such relationships between healthcare providers and research institutions appear to be common in the medical field. The fact that this collaboration existed does not convert the simultaneous donation of tissue into a purchase or sale within the meaning of the statute. Any other reading of the statute would suggest that institutions could only transfer tissue if they did not have any other collaborative relationships. We do not believe this was the result the legislature intended in crafting the statute. Cf. State v. Jade G., 2007-NMSC-010, § 15, 141 N.M. 284 (goal of statutory interpretation is to give effect to the legislature’s intent). Furthermore, additional information provided by other members of the Select Investigative Panel suggests that SWWO physicians were only a small portion of the entire volunteer clinical faculty program. This further undermines any inference that these positions were consideration given in direct exchange for tissue. Second, the purchase or sale must have been for “transplantation or therapy.” § 24-6B-16(A). The referral alleges that UNMHSC used fetal tissue for research and educational purposes but does not allege that UNMHSC used that tissue for “transplantation or therapy.” The plain reading of the statute suggests that the legislature intended only to criminalize purchases or sales for these specified purposes. NMSA 1978, § 12-2A-19 (1997) (“The text of a statute or rule is the primary, essential source of its meaning.”). The legislature’s omission of the terms “research” and “education”—terms it used elsewhere in the Spradling Act—suggests that the omission was intentional, § 24-6B-4 (2007); see also Jade G., 2007-NMSC-010, § 16 (courts presume legislature's omissions to be intentional). It appears that the legislature intended to only to criminalize the transfer of tissue when the transfer ‘was a direct, quid pro quo exchange for valuable consideration and only when the tissue is intended for use in transplantation or therapy. Thus, even if the factual allegations contained in the referral were proven to be accurate, they do not establish probable cause that UNMHSC and SSWO violated the criminal provision of the Spradiing Act. § 24-6B-2.I The Maternal, Fetal and Infant Experimentation Act ‘The Experimentation Act restricts clinical research activities related to “fetuses, live-born infants, [and] pregnant women,” including standards for informed consent. NMSA 1978, § 24-9A-5 (1979). Knowing and willful violation of the Act is a misdemeanor. NMSA 1978, § 24-9A-6 (1979). The Act, however, specifically provides that it does not apply to a fetus or infant that does not “exhibit{] heartbeat, spontaneous respiratory activity, spontaneous movement of voluntary muscles or pulsation of the umbilical cord if still attached to the infant ex utero.” NMSA 1978, § 24-9A-1(H) (2007). Further, the Act’s definition of fetus limits its scope to a fetus “from the time of conception until the expulsion or extraction of the fetus or the opening of the uterine cavity.” § 24-9A-1(G). Based on these definitions, it appears that the Maternal, Fetal and Infant Experimentation Act was never intended to regulate fetal tissue resulting from spontaneous or non-spontaneous abortion. Because the referral’s allegations relate to fetal tissue resulting from abortion, these allegations do not establish probable cause for a criminal violation of the Act. ML. Conclusion The referrals also alleged potential violations of federal law. As a state law enforcement agency, our office has no power to bring prosecution under federal statutes. Therefore, our office takes no position on any potential violations of federal law as alleged. Because the information provided does not indicate that a violation of state law occurred, our office cannot proceed on the criminal referral, However, we welcome any additional inquiries and are willing to work cooperatively with the United States Department of Justice in any future or ongoing investigations. Should you have any questions or concerns about this letter, please do not hesitate to contact us. Sincerely, Struc Thastor ‘Tania Maestas Deputy Attorney General cc: Honorable Marsha BlackburnSTATE OF NEW MEXICO OFFICE OF THE ATTORNEY GENERAL HECTOR H. BALDERAS ATTORNEY GENERAL January 4, 2018 Ms. Tara Shaver 10212 Teal Road SW Albuquerque, NM 87121 Dear Ms. Shaver, This letter addresses the complaint filed with the New Mexico Office of the Attomey General (“OAG") alleging that Southwestern Women’s Options (“SWO”) and the University of New Mexico Health Sciences Center (“UNMHSC”), violated the Jonathan Spradling Act, NMSA 1978, Sections 24-6B-1 to -24 (2007) (“Spradling Act”), and the New Mexico Maternal, Fetal and Infant Experimentation Act, NMSA 1978, Sections 24-9A-1 to -7 (1979, as amended through 2007) (NMMFIEA”). The allegations are that SWO’s donation of fetal tissue for medical research obtained as a result of induced abortions is unlawful and constitute violations of the Spradling Act and the NMMFIEA. After reviewing your complaint, the OAG does not find a violation of criminal or civil state law, as alleged. ‘The Spradling Act “applies to an anatomical gift or amendment to, revocation of or refusal to make an anatomical gift whenever made.” Section 24-6B-3. The purpose of the statute is to clarify the procedures surrounding organ donation and to make it easier for persons other than the decedent to consent to organ donation without fear of legal prosecution. The Act clearly defines the category of individuals, called “decedents,” that can be the source of an anatomical gift for the purposes of the Act, as follows: “[DJecedent” means a deceased individual whose body or part is or may be the source of an anatomical gift. “Decedent” includes a stillborn infant and, subject to restrictions imposed by law other than the Jonathan Spradling Revised Uniform Anatomical Gift Act, a fetus but not including a fetus that is the subject of an induced abortion. TOLL FREE 1-84255.9210 + TELEPHONE: (505) 490-4060 + FAX: (505) 490-1883 + wwew:nmag.gov MAILING ADDRESS: P.. DRAWER 1508 + SANTA FE, NEW MEXICO 87504-1508 STREET ADDRESS: 408 GALISTEO STREET « SANTA FE, NEW MEXICO 87501Section 24-6B-2(D) (emphasis added). In the absence of legislative history and relevant case law, we are only able to conclude that due to the exclusion of “a fetus that is the subject of an induced abortion” from the definition of “decedent,” the Spradling Act’s provisions do not apply to donations of fetal tissue that are the subject of an induced abortion. SWO stated that they only make donations to UNMHSC of fetal tissue that are the subject of an induced abortion. Since fetal tissue from an induced abortion is not regulated by the Spradling Act, the applicable law is the federal guidelines for conduct of fetal tissue research contained in, 42 U.S.C. § 289g-1 and -2. As state law enforcement agency our office has no power to bring prosecution under federal statutes and we take no position on any potential violations of federal law. Although our conclusion is that the Spradling Act does not apply to fetal tissue that is subject to an induced abortion, even if the Spradling Act did apply to the donations of fetal tissue, we conclude that neither body engaged in the type of activity that would trigger the penalties of the Spradling Act. See § 24-6B-16 (sale or purchase of parts prohibited.); § 24-6B-17 (other prohibited acts). Under the Spradling Act, a person commits a felony when that person “for valuable consideration, knowingly purchases or sells a part for transplantation or therapy if removal of a part from an individual is intended to occur after the individual's death.” Section 24-6B-16(A) (2007). For there to be probable cause of a criminal violation, there must be evidence supporting each element set out in this statute, Under Section 24-6B-16(A), a person must “purchase” or “sell” an organ or tissue for “valuable consideration.” Because the terms “purchase” and “sell” are not specially defined in the Spradling Act, these terms are presumed to carry their ordinary meanings. E.g., State , Stephenson, 2017-NMSC-002, 389 P.3d 272. Both terms imply a direct exchange where each party acquires something of value expressly conditioned on that party giving something of value in return, Nothing in the materials obtained, however, suggests guid pro quo exchanges for fetal tissue. Indeed, there is no evidence that any of the donated fetal tissue was used for any purpose other than research and education. While both SWO and the UNMHSC may have benefited in a variety of ways as a result of broad collaboration, such relationships between health care providers and research institutions appear to be common in the medical field. The fact that this collaboration existed does not convert the simultaneous donation of tissue into a purchase or sale within the ‘meaning of the statute. Any other reading of the statute would suggest that institutions could only transfer tissue if they did not have any other collaborative relationships. We do not believe this was the result the legislature intended in crafting the statute. Cf. State v, Jade G., 2007-NMSC- 010, ¥ 15, 141 N.M. 284 (goal of statutory interpretation is to give effect to the legislature’s intent). ‘TELEPHONE: (505)490-4060 FAX: (505)490-4883 waww.nmag gov MAILING ADDRESS: PO. BOX 1508 - SANTA FE, NEW MEXICO 87504 1508 STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501Additionally, under Section 24-6B-16(A), the purchase or sale must have been for “transplantation or therapy.” The plain reading of the statute suggests that the legislature intended only to criminalize purchases or sales for these specified purposes. NMSA 1978, § 12-24-19 (1997) (“The text of a statute or rule is the primary, essential source of its meaning,”). The legislature's omission of the terms “research” and “education” —terms it used elsewhere in the Spradling Act—suggests that the omission was intentional. Section 24-6B-4 (2007); see also Jade G., 2007-NMSC-010, 16 (courts presume legislature’s omissions to be intentional). Therefore, it appears that the legislature intended to only to criminalize the transfer of tissue when the transfer was a direct, quid ‘pro quo exchange for valuable consideration and only when the tissue is intended for use in transplantation or therapy. Under the Spradling Act, criminal penalties also apply to a person who falsifies or conceals documents of an anatomical gift for financial gain. Section 24-6B-17. Based on the information available at this time there is no basis to support the conclusion that SWO or UNMHSC buys or sells fetal tissue or falsifies documents of an anatomical gift in any way to be criminally liable under the Spradling Act. Thus, even if the factual allegations contained in the complaint were proven to be accurate, they do not establish probable cause that UNMHSC and SWO violated the criminal provision of the Spradiing Act.! ‘The Complaint also alleges a violation of the NMMFIEA. The NMMFIEA sets standards related to clinical research on “fetuses, live-born infants, [and] pregnant women,” including standards for informed consent. Section 24-9A-5. “Knowing and willful violation of the Act is a misdemeanor.” Section 24-9A-6. The Act, however, specifically provides that it does not apply to a fetus or infant that does not “exhibit(] heartbeat, spontaneous respiratory activity, spontaneous movement of voluntary muscles or pulsation of the umbilical cord if still attached to the infant ex utero.” Section 24-9A-1(H). Further, the Act’s definition of fetus limits its scope to a fetus “from the time of conception until the expulsion or extraction of the fetus or the opening of the uterine cavity.” Section 24-9A-1(G). Based on these definitions, it appears that the NMMFIBA was never intended to regulate fetal tissue resulting from an induced abortion, Because the complaint’s allegations relate to fetal tissue resulting from an induced abortion, these allegations do not establish probable cause for a criminal violation of the Act. For the reasons articulated above, the Office of the Attorney General does not find a violation of criminal or civil state law, as alleged. Regarding any potential violations of federal law, as a state law enforcement agency, our office has no power to bring prosecution under federal statutes. * Ttis important to note further that the Spradling Act provides immunity for any person who attempts in good faith to actin accordance with the provisions of the Act. See § 24-6B-16 (“a person is not liable forthe actin civil action, criminal prosecution or administrative proceeding’). TELEPHONE: (505)480-4060 FAX: (505)490-4883 www.nmay gov MAILING ADDRESS: PO, BOX 1508 SANTA FE, NEW MEXICO 87504 1508 STREET ADDRESS, 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501Accordingly, we consider this matter closed. Should you have any questions or concerns about this letter, please do not hesitate to contact me. Sincerely, ‘TELEPHONE: (505)490.4060 FAX: (505)490.4883 wwww.nmag gov MAILING ADDRESS: P.O. BOX 1508 - SANTA FE, NEW MEXICO 87504-1508 STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87301