A Commentary of The National Catholic Bioethics Center on Health Care and the Life Sciences

the ruling. “Disabled people are very much at risk,” she Canada and told the press, “and I think we have to rise up and assert that disabled lives matter.” 3 One may also wonder what Assisted Suicide effect the Court’s decision will have on the medical estab- lishment’s motivation to develop new and more effective pain control regimens. An American group of disability rights advocates called Not Dead Yet played a pivotal role Canada has taken the penny out of circulation. An item in defeating an assisted suicide bill in Colorado. It was this listed at $1.98 or $1.99 now costs the buyer exactly $2.00. same group that protested Peter Singer’s euthanasia posi- Since merchants no longer deal in pennies, one or two tion in his first class at Princeton University. cents shy of $2.00 is close enough to be sold at that price. Life is what we know. Death is not something we know. Being close enough may work for Canadian currency, but This is the problem enunciated in literature’s most it does not work in philosophy. famous soliloquy. For Prince Hamlet, everything has gone Søren Kierkegaard criticized G. W. F. Hegel for mak- wrong. He finds himself in a state of profound mental ing the notion of being so abstract that he identified it with anguish. He contemplates suicide. For him, of course, it nothing. The Danish philosopher compared the Hegelian would not be medically assisted, but with a “bare bodkin.” attitude with that of fruit merchants who do not charge In act 2, scene 1, Hamlet had asked why the Almighty more for produce when it is over the purchase weight has set his canon “‘gainst self-slaughter.” The question is by a small fraction. The difference does not matter. He tantamount to asking why God issued the commandment referred to Hegel’s flagrantly imprecise way of going about “Thou shall not kill.” For Hamlet, death would possibly metaphysics as being “valid only for costermongers, who end “a sea of troubles.” In scene 1 of the following act, his 1 do not take a little discrepancy so seriously.” Needless to philosophical acumen comes to his rescue: “For in that say, in philosophy a small error in the beginning can lead sleep of death what dreams may come when we have to very large errors in the end. shuffled off this mortal coil, must give us pause.” In that Being is not the same as nothing, nor is being alive the pause life gains at least a momentary victory over death. same as being dead. We find the following statement in a It is the sober realization that enables Hamlet to “bear Jewish compendium of ethics: “The erosion of the moral those ills we have than fly to others we know not of.” “Ay, ethic begins when the nearly-dead are equated with the there’s the rub,” he says, the goad that reminds him that dead; this value judgment is then extended to encompass life is preferable to death, even for someone who is suffer- the inferior, the mentally retarded, the disabled or the ing acute and apparently unrelievable distress. Similarly, incurably ill. The undesirable, the unproductive, or the for William Faulkner, “Between grief and nothing, I will alien are then also excluded from their inalienable right take grief” (Wild Palms, 1939). 2 to life.” Just as Hegel’s identification of being with noth- Pearl Buck, author of The Good Earth, looked upon the ing led to his construction of an all-embracing system, so choice for death as abandoning something we know for too can equating the nearly-dead with the dead lead to a something of which we have no knowledge: “At no point, concatenation of moral evils. I repeat, either as life begins or as life ends, for we who Dangers to the Disabled are human beings cannot, for our own safety, be allowed In Canada, discussion concerning the “edge of life” has been reinvigorated of late because of the Canadian July 2015 Volume 40, Number 7 Supreme Court’s February 6, 2015, ruling that reversed the Criminal Code’s ban on assisted suicide. The Court gave Canada and Assisted Suicide Parliament one year to draft legislation that recognizes the Reflections at the Edge of Life right of clearly consenting adults who are enduring intol- erable pain, either physical or mental, to request medical Donald DeMarco, PhD help to end their lives. Regret for Vasectomy The Canadian Supreme Court’s decision raises seri- ous questions about the quality of care in the future for and Tubal Ligation disabled people. Catherine Frazee, spokeswoman for the Marie T. Hilliard, JCL, PhD, RN Council of Canadians with Disabilities, was shaken by

Defending the Dignity of the Human Person in Health Care and the Life Sciences since 1972 Ethics & Medics July 2015 to choose death, life being all we know.” 4 The edge of life may be a time that is close to death. It may be a point of desperation. Or it may be the end of one’s patience. Regret for Vasectomy Whatever the case, it is not to be identified with death. Moreover, it is doubtful that one can identify killing with and Tubal Ligation love. As Shakespeare said, “Love alters not with his brief hours and weeks, but bears it out, even to the edge of doom” (Sonnet 116). John Smith is a widower who married a widow, Mary, nine years ago.1 Together they have been attending classes Compassion Misunderstood to prepare him to be ordained a permanent deacon in the Many who have hailed the Canadian Supreme Court’s Catholic Church. During this time they have begun to decision have regarded it as one that was inspired by appreciate the teachings of the Church on the sanctity of the compassion. Two important responses must be made conjugal act and the nature of marriage as being ordered concerning the popular misunderstanding and misap- to both the good of the spouses and the procreation and plication of this virtue. The first is that compassion is the education of offspring. virtue that allows us to feel another’s pain. By no means is The couple has become aware of the grave and intrinsic killing another person included in the meaning of the evil of a vasectomy and a tubal ligation as mutilating and word. Compassion is a virtue. As such, it is rooted in love. sterilizing procedures that violate bodily integrity and St. Thomas Aquinas argues that compassion can help lift frustrate the natural ends of marriage. Both John and his the burden of the sufferer. Furthermore, he goes on to say, wife have had such procedures after having had children friends can mitigate suffering in another through the pres- and while in their prior marriages. John has been in spiri- ence of their compassionate love (“Utrum dolor et tristitia tual direction and raises this issue with his director, only 5 mitigentur per compassionem amicorum”). to learn that before he can be considered for ordination, he The second reason is historic. Although the his- must have a dispensation from what can be considered an tory of medicine has had its ups and downs, the pre- impediment to Holy Orders. vailing attitude toward the sick and distressed has been by John and Mary discuss this matter and wish to far one of compassion. This time-honored virtue is not one continue his pursuit of Holy Orders, but now Mary has that has been recently discovered. It was because of concerns about the validity of the marriage, since the ster- compassion that hospitals were built, progress in pain ilizing procedures were done before they married. John control was made, and many diseases were eradicated questions whether their current marriage has even been through painstaking research. It is an affront to all those consummated, based on the fact that he had a vasectomy compassionate people who have labored to improve medi- prior to the marriage. They both question whether they cine and offer quality care for people to suggest that they are obligated to pursue surgical reversal procedures, were not compassionate enough to put their subjects to especially since, while Mary is peri-menopausal, she death through medically assisted suicide. The edge of life, potentially is fertile. however one may interpret that “edge,” must coincide with the summit of care. The people who are most distressed They are directed to The National Catholic Bioethics are those who need the greatest care. Center for information on the Church’s teaching on such matters. Before doing so, they had both sought the Sacra- Donald DeMarco, PhD ment of Penance to be reconciled for having had these procedures. Donald DeMarco is a senior fellow of Human Life Inter- national. He is professor emeritus at St. Jerome’s University in Impediments to Holy Orders Waterloo, Ontario; adjunct professor at Holy Apostles College and Seminary in Cromwell, Connecticut; and a regular The Code of Canon Law states that a person who has columnist for the St. Austin Review. Some of his recent writ- mutilated himself or another gravely and maliciously or ings may be found at Human Life International’s Truth and who has attempted suicide is irregular for the reception Charity Forum. of Holy Orders.2 A number of dioceses have been of the opinion that there is a need for a dispensation from the 1 Søren Kierkegaard, Concluding Unscientific Postscript, trans. David F. Congregation for the Clergy before ordination in these Swenson and Walter Lowrie (Princeton, NJ: Princeton University cases. The reasoning is that the dispensation is necessary Press, 1968), 104. 2 Jewish Compendium on Medical Ethics, “A Jewish Statement on the because of the irregularity of having procured a vasectomy; Sanctity of Life,” in Bioethics: Readings and Cases, ed. Baruch A. otherwise, the ordination will not be licit. (This is not a Brody and H. Tristram Engelhardt (Englewood Cliffs, NJ: Pren- question of validity.) tice Hall, 1987), 177. The matter is debated by canonists. The New Commen- 3 Tonda MacCharles, “Supreme Court Strikes Down Assisted Suicide Ban,” Toronto Star, February 7, 2014, A19. tary on the Code of Canon Law notes that some hold that a 4 Pearl S. Buck, foreword to The Terrible Choice: The Abortion Dilemma, vasectomy does not create an irregularity “since it is doubt- ed. Robert E. Cook et al. (New York: Bantam Books, 1968), ix–xi, x. ful that such a procedure is truly physically mutilating.” 3 5 Thomas Aquinas, Summa theologiae I-II.38.3. However, the very fact that dispensations are being sought 2 Ethics & Medics July 2015 and granted by the Congregation indicates that the deci- ­ for the purpose of avoiding children in this marriage. If sion to seek a dispensation is sound. John is advised to these procedures had been sought for that purpose, or a follow diocesan policy on this issue. person who never had children had deliberately sought a vasectomy or tubal ligation, this could be an indication Consummation and Validity of Marriage of a lifelong intention against children, thus invalidating Neither John nor his wife sought the vasectomy or a future marriage. This is not the case here. tubal ligation as a condition for their marriage. The pro- The question of mandating reversal of either of these cedures were done a number of years before each was procedures, either prior to their marriage or subsequent widowed. Canon 1061 §1 defines what constitutes consum- to it, must be analyzed in relationship to the proportion- mation of a valid marriage: ate benefit. Vasectomy reversal success rates are variable. If the spouses have performed between themselves in a There are two procedures for reversal of a vasectomy, human fashion a conjugal act which is suitable in itself the use of which cannot be determined until the patient for the procreation of offspring, to which marriage is is in surgery and the degree of obstruction has been ordered by its nature and by which the spouses become identified: vasovasostomy and vasoepididymostomy one flesh. (for more difficult cases, but with lower success rates 6). It is clear that a tubal ligation does not interfere with the There are great success rates reported, especially by conjugal act. centers marketing their procedures. Success is reported in terms of patency (the presence of motile sperm in the The question is whether the presence of a vaginal ejaculate), and in terms of pregnancy rates one to two deposit of sperm, now absent from John’s semen, during years post reversal. the conjugal act is necessary for consummation of the marriage. The Congregation for the Doctrine of the Faith, Significantly higher patency rates are reported than in its Decree regarding Cases in Which Impotence Renders for pregnancy rates. Since the issue of patency, as being Marriage Null, has responded in the negative to the ques- required for the conjugal act, has been answered in tion of “whether the conjugal act necessarily requires the the negative by the Congregation for the Doctrine of ejaculation of semen produced in the testicles.” 4 What is the Faith, the issue is the potential for pregnancy. In a produced in the testicles is sperm. large Canadian study of 747 vasovasostomies, it was reported that the spontaneous pregnancy rates at one and Thus, the fact that John and Mary have engaged in two years of follow up were 33 percent and 53 percent, the conjugal act in a manner suitable for the offspring of respectively.7 children, even though they are both now sterile, indicates that the marriage has been consummated. However, the What is clear is that numerous reports indicate that question remains as to whether there was an invalidating the success of vasectomy reversal declines over time. intention against children, or deceit, when John and Mary Reversals are more successful during the first ten years were married. after vasectomy.8 The greatest chance of successful preg- nancy occurs if the reversal is performed within three The New Commentary on the Code of Canon Law, in a years of the vasectomy (76 percent).9 However, the reversal discussion of impotence and impediments to marriage is reported to lead to pregnancy only about 30 percent of pursuant to canon 1084, states, the time if done ten years after vasectomy.10 Although sterility itself does not invalidate marriage, it may be a circumstance that suggests an invalidating Reversal of a tubal ligation carries risks, most impor- defect of consent. Sterility is a quality that can seri- tantly the risk of an ectopic pregnancy, which can be ously disrupt the partnership of conjugal life. Hence, a life threatening. There is great variation in pregnancy marriage may be invalid because of deceit, if, to induce success rates (40 to 75 percent if under thirty-five years the other party to marry, one party deliberately fails to of age), with a dramatic decline by thirty-eight years of disclose his or her sterility (c. 1098). Voluntary steriliza- age).11 tion (tubal ligation or vasectomy) shortly before or after marriage may be an index of an intention against the Thus, requiring a reversal of a vasectomy or a tubal good of children (c. 1101, §2).5 ligation as requisite to the validity of the second mar- riage of John and Mary (when the procedures had not At the time of their marriage preparation classes, both been sought to render the second marriage unfruitful) is John and Mary believed it was no longer possible for them unfounded, and creates a standard of validity inconsistent to have children because of their surgically sterilizing with canon law. Most significantly, with the uncertainty procedures. They had even discussed with each other of success in achieving a pregnancy after a reversal, how they would be open to children if for some reason such a requirement violates the moral principle of “Deus the procedures had failed, but they had felt no obligation impossibilia non iubet” (“God does not command of to attempt a surgical reversal. Now they are in doubt as humans things which are impossible to do”). to whether these procedures invalidated their marital consent to be open to children. Marie T. Hilliard, JCL, PhD, RN An important fact in counseling John and Mary is that Marie Hilliard is the director of bioethics and public policy at The neither the vasectomy nor the tubal ligation was sought National Catholic Bioethics Center in Philadelphia. 3 The National Catholic Bioethics Center

6399 Drexel Road, Philadelphia, PA 19151–2511 www.ncbcenter.org

Volume 40, Number 7 July 2015 Views expressed are those of individual authors and may ­advance positions that have not yet been doctrinally settled.Ethics & Medics makes every effort to publish articles consonant with the magisterial teachings of the Catholic Church.

1 Pseudonym, and not a real case, but a case that contains many of Decree regarding Cases in Which the themes raised in questions brought to The National Catholic Impotence Renders Marriage Null Bioethics Center. 2 Canon Law Society of America, Code of Canon Law: Latin-English The Sacred Congregation for the Doctrine of the Faith has Edition, New English Translation (Washington, DC: Canon Law always held that those who have undergone a vasectomy Society of America, 1999), c.1041, §5. All canons mentioned here are from this source. and those who find themselves in similar circumstances, 3 ”Book IV: The Sanctifying Function of the Church: Irregularities such that their impotency is not established with certainty, for Reception of Orders,” in New Commentary on the Code of Canon are not impeded from marriage. Law, ed. John P. Beal, James A. Coriden, and Thomas J. Green (Mahwah, NJ: Paulist Press, 2000), 1219. Furthermore, having examined this position and after 4 Congregation for the Doctrine of the Faith, Decree regarding Cases repeated studies conducted by this Sacred Congregation in Which Impotence Renders Marriage Null (May 13, 1977), AAS and the Commission for the Revision of the Code of Canon 69 (1997), 426. Law, the Cardinals and Bishops, members of this Sacred 5 ”Book IV: The Sanctifying Function of the Church: Marriage,” in Congregation, in the plenary meeting held on Wednesday, New Commentary on the Code of Canon Law, 1286. May 11, 1977, chose to respond to the following proposed 6 Gerald J. Matthews, Peter N. Schlegel, and Marc Goldstein, doubts: “Patency following Microsurgical Vasoepididymostomy and Vasovasostomy: Temporal Considerations,” Journal of Urology 1. Whether the impotence that renders a marriage 154.6 (December 1995): 2070–2073. null consists in the antecedent and perpetual incapacity, 7 Stéphane Bolduc et al., “Factors Predicting Overall Success: A whether absolute or relative, to complete the conjugal act. Review of 747 Microsurgical Vasovasostomies,” Canadian Uro- logical Association Journal 1.4 (November 2007): 388–394. 2. If affirmative, whether the conjugal act necessar- 8 Leon Speroff and Philip D. Darney, “Sterilization,” in A Clinical ily requires the ejaculation of semen produced in the Guide for Contraception, 5th ed. (Philadelphia: Lippincott Wil- testicles. liams and Wilkins, 2011), 381–404. 9 Arnold M. Belker, et al., “Results of 1469 Microsurgical Vasec- Regarding the first: affirmative; regarding the second: tomy Reversals by the Vasovasostomy Study Group,” Journal of negative. Urology 145.3 (March 1991): 505–511. In the Audience granted to the undersigned Prefect of 10 Danielle Roncari and M. Y. Jou, “Female and Male Sterilization,” this Sacred Congregation on May 13, 1977, the Holy Father in Contraceptive Technology, 20th rev. ed., ed. Robert A. Hatcher et al. (New York: Ardent Media, 2011), 435–482. by divine Providence, Paul VI, approved the above decree 11 Richard Sherbahn, “Tubal Reversal Surgery or IVF, In Vitro and ordered it to be published. Fertilization, after Tubal Ligation: How to Get Pregnant after Given at Rome, from the Seat of the Sacred Congregation Your Tubes Are Tied,” Advanced Fertility Center of Chicago, for the Doctrine of the Faith, May 13, 1977. accessed May 21, 2015, http://www.advancedfertility.com/ tubalreversal.htm. Congregation for the Doctrine of the Faith 4

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