The Linacre Quarterly
Volume 35 | Number 1 Article 14
February 1968 Abortion: Part VIII Paul V. Harrington
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Recommended Citation Harrington, Paul V. (1968) "Abortion: Part VIII," The Linacre Quarterly: Vol. 35 : No. 1 , Article 14. Available at: http://epublications.marquette.edu/lnq/vol35/iss1/14 Abortion -- Part VIII 1
RT. REv. MsGR. PAuL V. HARRINGTON, J.C.L.
In accordance with the divine precept "Thou shalt not kill" the Catholic Church has always condemned murder and its kindred crimes against human life, even if that life be still hidden within the sattctuary of the mother's womb. Thus, from the earliest centuries the Church has. added severe penalties to her condemnations of the crime of abortion the nefarious procedure of expelling from the womb of the · mother a child still incapable of extra-uterine existence. The censure and the irregularity man who struck a pregnant woman ... "I , • for abortion as known today did not and the amount of the fine was '•-·. come into existence until the six determined by the social status of ...... ·. ·, o , # I teenth and the thirteenth centuries the woman. If she were of the " . ~ !.' respectively. Abortion, however, highest class and if she were to • ~ :• I was penalized before those times. die because of the injury, the "The Church has always held daughter of the . man was subject in regard to the morality of abor to death. In the Assyrian Code (C. tion that it is a serious sin to destroy 1500 B. C .) , the fetus is referred a fetus at any stage of development. to as a human life and a man; who However, as a juridicol norm in caused an ·abortion by striking a the determination of penalties woman, could be fined, lashed or against abortion, the Church at held for public service. A woman various times did accept the dis who deliberately caused an · abor tinction between a formed and a tion to herself could be subject to non-formed, an animated and a a penalty of crucifixion and .impal non-animated fetus." (Preliminary ing. In the Hittite Code (C. 1300 note) B. C.), in the event of an abortion, I there was provision for a fine to be ANCIENT LAWS determined in accordance with the The J>re-Christian Ancient Laws social status of the mother and the prescribed penalties for abortion. degree of development of the fetus. Among the Oriental laws, the Su The legislation in the Vendidad of merian Code (C. 2000 B. C.) con ancient Persia (no older than 600 tains the most ancient penalty B. C.) warned a pregnant woman which was a fine levied against any one who deliberately or accidentally not to terminate a pregnancy but, struck a woman, thus causing her if she did, both she and the infant's to lose the unborn child. The Code father would be charged with de of Hammurabi (C. 1800 B. C.) liberate murder and subject to a insisted on a fine being paid by the fine or flogging. The person who 1This article is a summary of a doctoral dissertation: "The Crime of Abortion in Canon Law" by Rev. Roger J. Huser, O.F.M., J.C.D. Catholic University of America Press, Washington, D.C., 1942.
FEBRUARY 43 provided the drugs was als·o con ered . the formed fetus and u orn sidered to be guilty. child to be a human being. The Jewish law, accordi; to In the Greek collection of laws, the Alexandrian School, h e1c: hat there is no specific statute against voluntary abortion of a dev{ ,Jed abortion but there is indirect evi fetus was murder since the L ·· of dence in the 9th and ·6th centuries, a human being was sacrifice· In B. C. that abortion was forbidden accordance with the Pales' .ian and penalized. The Greeks were School of Jewish law, wh~d fol the first to ad vise abortion and Hip lowed the Hebrew text ol the pocrates, while he advised against Scriptures, . abortion was not on making abortion drugs available to sidered to be murder. The T
44 LINACRE QuARTERLY Under the Roman law, the un Pseudo-Barnabas Epistle (before born was not considered to be a 132 A.D.) and in the Canones human being because the human Ecclesiastici SS. Apostolorum (C. soul was infused only at the time 300 A.D.). The Apostolic Cousti of birth. The fetus was thought to tutions (C. 400 A.D.), while re be part of the mother and a poten peating the previous directive, all tial person. Even though this were add that the formed fetus possesses the belief, the interference with a a soul and it would be murder to pregnancy was punishable because dispose of it. the father's rights were violated, there "';as danger to the mother, In the East, Athenagoras stated there was bad example or there was about 177 A.D. that the Christians believed that women, who resorted •., a denial of the State's right to chil 'I , • dren. The penalty was either con to abortion, were guilty of homi demnation to the mines, temporary cide. In the \Vest, Tertullian, who or permanent exile or partial for died about the vear 240 A.D., feiture of possess_ion_s. However, if termed deliberate , abortion murder the mother succumbed, the death and, since murder is forbidden, it penalty was denianded. is sinful to destrov the human be ing that is growing in the mother's II womb. He believed that a fetus became a person only after a cer EARLY CHRISTIAN WRfTERS AND tain stage in its development had CONCILIAR LEGISLATION been reached and the destroying . Huser introdues this chapter by of the fetus would be called murder saying: "At its inception Christian after sufficient grmvth had been ity encountered a widespread prac realized. l\1inucius Felix, who died tice of deliberate abortion, and con in the third century A.D. and St. fronted its pagan contemporaries Cyprian, who died in 25 8 A.D. with the novel moral viewpoint claimed that parents, who procure that abortion was a serious sin and an abortion, are guilty of parricide. a heinous crime. Abortion was Hippolytus, who died about 2 3 5 classed by the Church as murder, A.D. considered the intentional because abortion effected the death killing of the unborn child to be of a human person, albeit unborn. murder. In opposition to the Roman law position that abortion Yiolated the These statements, by early Chris rights of others (especially of the tian Fathers, made it possible for ., father), the Church condemned the Councils of the Fourth Century abortion as a violation of the rights to condemn abortion as murder and of the unborn." · . to inflict severe penalties for its commission. The Didache ( 80-100, A.D.) tersely commands "Thou shalt not The Council of Elvira in Spain kill the fetus by an abortion." This was held about the year 300 A.D. same prohibition is found in the Canon 63 states that, if a woman . FEBRUARY 45 conceived as the result of an adul It must be noted that the le s ~ n terous union and killed the product ing of the penance is not to b e n of this conception, she was to be terpreted as indicating that 1 e punished by being ·denied Com crime of abortion 'vas considc ed munion throughout her lifetime to be less serious but rather · ·, •at and even on her death-bed. This the Church alters its policy of 1 ·n is assuredly a n1ost severe penalty ance from time to time in ace• d and, while it could also be imposed ane with what is best for he for infanticide, tradition has always people and their spiritual salvat' n. held that it was used in practice The statute of the Council of to punsh abortion. Also, reference Ancyra, both in its condemna· Jn is clearly made to an adulterous of abortion and in its penalty, as union, but Huser states that the the basis for most of the subseqt nt canon would have applicability also legislation in the Church dow:r to to the killing of a fetus conceived · the l\1iddle Ages. in a legitimate marriage since the primary purpose of this statute is to The answers, given to canor :al preserve the life of the unborn in questions by St. Basil the G t at, fant and not merely to punish (written in 374 and 375 A . 1.) marital infidelity. were considered in the East a.· Je ing equivalent to legislation 1.:: a The Council of Ancyra was held Council and in the \Vest as h a·. ng in Asia l\·linor in 314. A.D. and great importance and influc1 .:c. was the first Eastern Council to Canon 2, concerning abort 46 LINACRE Qu.\.RTE RLY punished those who cooperated in tion and infanticide were included making the abortion possible. as crimes. The penalty was imposed not only on the mother but on the In the replies of St. Basil, only actual father. Punished also were women were punished for the those who manufactured, sold or crime of abortion-the mother who made the poiso~ous drugs ('abor sought abortion for herself and any tifacients) available and these: were woman who made the necessary readmitted to communioi1 only on poisonous drugs available. their dcath~bed. St. John Chrysostom, who died For the first time, clerics were in 407 A.D., spoke of the destruc ... " subject to punishments for any in • ' tion of the unborn as "murder be volvement in an abortion but pre ... fore birth" and stated that he really viously, they would have conic un did not know l\That name to give der the penalty for homicide, :. since .· to this cri1ile because it is "even abortion was always considered, in worse than murder." the Christian era, to be a form of St. Augustine, who died in 430 murder. A.D., indicated that the disposing Finally, this Canon is tradition of a formed fetus was murder but ally interpreted as holding that the destroying of a ·non-formed a husband and wife who attempted fetus was not murder in the eyes to kill or succeeded in killing a of the Jaw. HmYcver, it could be child conceived or born from a inferred, bv this distinction, that leaiti;11ateo marriasre,'-' would aiso in- such could be considered to be cur the penalty since the important murder before God. Further, he purpose of · the statu tc was to pro severdv condemned, in his writing, tect the life of the unborn and the anyone- who intentionally and di infant. rectly interfered with any fetus, whether formed or not. St. 1\Jartin of Braga amplified Canon 21 of the Council of An St. Jerome, who died in 420 cvra. He docs not distinguish be A.D., stated that a fetus became t~veen a conception that occurred a person only after a certain stage in a legitimate marriage and one of development had been reached that resulted from an adulterous and the destruction of a developed union. He said that abortion, at .. fetus was considered to be abortion, tempted abortion, infanticide and murder and parricide. contraceptive practices should be punished and added, for the first In 524 A.D., the Council of time in 'Vestern legislation, that Lerida in Spain, in its second those -\vho cooperated in the crime Canon, legislated penalties against also were subject to the penalty those who succeeded in killing or of abortion. who even attempted to kill a child, whether born or unborn, who was The Trullan Svnod, held at Con conceived in adultery. Thus, abor- stantinople in 692 A.D., repeated FEBRVARY 47 ~ ___ .,...... ___ --- . - the reply of St. Basil the Great re In a collection of Canons, 1 cd garding cooperators in the crime of by the Armenian Church am of abortion and explicitly stated · that uncertain date, there is me n these were subject to the penalties of penalties of nine years pen: ce for murder. and of three years penance or Although the above-mentioned abortion. legislation was adopted at particular The Nomocanon of Gregory · r .or regional Councils, it became the Hebraeus, who died in 12 86 A ) ., law not only of that region but of is the best known of the C ec the universal Church by reason of tions of the Syrian lVIonoph ite its being received and enforced by Church and declares those j di many regions and it formed the viduals to be voluntary murd( rs basis for all legislation on the sub who provide abortifacient dru ~ to ject of abortion up to the Twelfth women. It also states that a £1 · is Century. to be the penalty for all those ·ho Ill effect abortion by bodily violc:. ce. CANONICAL COLLECTIONS UP TO B. Collectious of the ~V e . 7 r11 THE TWELFTH CENTURY Church A. Collections of the Eastenz The Italian Collection, " ich Church appeared about 450 A.D., br · · ~ht It is important to · remember statutes of the Councils of the that, with reference to legislation Eastern Church into Can 1 .cal on abor-tion, none of the Eastern Collections in the ' Vestern Ch1 ch. collections contains any of the leg \ Vith reference to abortion, thr •t al islation from the " 'estern Church. ian Collection quoted the COl · .1cil The outstanding Greek canon of Ancyra with its penalty ot ten ical collection of this period is years of penance and this is t· · be known as the Photian Collection contrasted with a life-time of . en and was made in the year 8 8 3 ance, which had previously i)cen A.D. On the subject of abortion, established by the 'Vestern C nun it includes the statutes from the cil of Elvira in 300 A.D. Council of Ancvra, the Trullan This statute of the Coun iJ of Synod and the wt:itings of St. Basil. i\ncyra was contained in other I tal This collection was recognized as ian collections, notably that of the official law in the Eastern Dionysius Exiguus, who died a-bout Church in 920 A.D. and continues 540 A.D. and the Collectio Qucs to enjoy this recognition even pres nelliana, which was compiled be ently. The legislation on abortion, tween 500 and 550 A.D. as incorporated in the Collection of Photius, is also found in the Peda Canon 2 I of the Council of An lion and in the Sacred Canons, cyra appears in the African, Span which are recognized even today ish and Frankish Canonical Collec by the Greek Orthodox Church as tions but in the latter two collec c~IIections of its official law. tions, there is also incorporated the 48 LINACRE QuA R T E RLY ;• 1' ~ '·.... "'• statutes from the Council.s of Elvira of abortion, were dependent on the I ·,.1··' and Lerida and from the Collection factor of development and anima '('• of St. 1\tlartin of Braga. The quasi tion of the fetus. If the fetus were ,•. .' ~: · ';,., :. official law in the Church in the animated, the ·crime was that of ~ : I' • • 'o • Frankish Kingdom contained only murder and the penance was for j • the statute from the Council of ten years. However, no indication •.· Ancyra but the Psuedo-lsidorian was provided as to when animation Collection of 847-857 A.D. in occurred. cluded the additional references and published them not only in the The very important Decree of Frankish Kingdom but throughout I vo of Chartres, ,vho died in 1116 the entire " 'estern Church. A.D., contains, with reference to abortion, the legislation found in From these Canonical collections, the Councils of Ancyra and Lerida the legislation of the various Coun and in the writings of 1\tlartin of cils on abortion was incorporated Braga, but the new Canon, in into the Capitularies, Penitential serted in the Collections of Regino Books and in Synodal Statutes. and Burchard, is not included in The First Provincial Synod of this present work. However, in ad ~1ainz, held in the ye~r 84 7 A.D., dition to this material, I vo added adopted, as its law on abortion, the statements of the early Fathers legislation of the Councils of An which had never been previously cyra, Elvira and Lerida. incorporated into any Canonical collection :. two quotations from St. The Council of 'Vorms, con Augustine-one in which he con voked in 868 A.D., declared that demns interference with fetal life women who deliberately destroyed and a second in which the distinc their unborn infants were to be tion between the formed and the judged as murderers. non-formed fetus is set forth with The Collections of Regino of the resultant effect that murder Priim (who died in 915 A.D.) involves the destroying of a formed and Burchard of 'Vorms (who died fetus; a text that indicates that ani in 1012 A.D. ) contained the de mation occurs only after a certain crees of the thtee aforementioned stage of development has occurred; Councils and a new canon (the or a declaration by St. Jerome that igin of which is uncertain) which the destruction of a non-fon11ed stipulates that a person, who in fetus is not murder; a letter of Pope terferes with a man or woman so . Stephen V in which it is presumed that they cannot procreate or con that · the crime of abortion is ceive, is to be considered as guilty murder. of homicide. These collections The new Canon of Regino and were important sources for subse Burchard will be found in the sub- · quent legislation on abortion. sequent Decretals of the Popes and At this particular period, the the five texts on abortion, presented penances imposed for the crime by Ivo, will find their way into the FEBRUARY 49 - ... ~ ~ ... -:!~..._.~ ~....._..,.., --.._ .------~- - ---~ ------ very important Decree of Gratian. . tion and Rufinus, about 1 ~ ; 7- The great contribution of Iva to 11 59, in considering a delib1. tte later legislation on abortion is his abortion by the mother upon er introduction into canonical collec self or by another individual 1' · n tions of the distinction between the her, concluded that three year of formed and non-formed fetus, and penance must · be performed if he this had influence and impact on fetus was not formed and the tJ .1al the law up to the present century. penalties for murder if the J ·.us It is to be recalled that St. Basil were formed. The penalties for had rejected this distinction and murder were penances that '2X- it is to be noted that no Council tended from seven years to a II ever had recognized or adopted it. lifetime, depending upon he circumstances. IV The Glossa Or diu aria on . he THE DECREE OF GRATIAN UP TO Decretum of Gratian, which 50 LINACRE QuARTERLY ., . ··~ . the Vulgate Translation, which been introduced by Regina of Priim \ ·...... •, . t··' does not distinguish bet~veen the and now, for the first time, was in ..I' ..' !, formed and non-formed fetus, was cluded in an official collection. incorporated as was the new canon, This canon states that anyone who which had been introduced by does anything to a man or woman i. •.. Regina of. Priim and had been ac or gives them anything to drink cepted by Burchard of \\' orms. This which interferes with the concep compilation holds that murder is tion, the growth or the delivery involved ·when there is an abortion of a child is to be held as a of a formed child and, if this is murderer. deliberate, the penalty is deposi In the Decretal law, abortion, tion for clerics and excommunica ' ,•' I , I •., tion for laymen. If the . fetus is sterilization, contraception and any non-formed, the p enalty is as for interference with procreation was homicide and is to be imposed at considered to be murder. The com the discretion of a judge. mentators on the Decretal laws in terpreted the canons to mean that In this period, there was ac abortion of an animated fetus was ceptance of the distinction between true murder because a IJuman be the animated or forn;ed and the ing was killed and meritrd the full non-animated or non-formed fetus; penalties for murder, which were that abortion of an animated fetus an irregularity in addition to the was murder and the penalty was usual penances for voluntary that for the crime of murder; that murder. The abortion of a non abortion of a non-animated fetus animated ·fetus, sterilization and was quasi-murder and that the pen contraception " 'ere considered to be. alties were similar to but not as quasi-homicide or conditioned or sev~re as those for the crime of interpretative homicide because of murder. the spiritual penances, which were imposed. These were the conclu v sions of Raymond of Pennafort DECR,ETALS OF POPE GREGORY IX (who died in 12 7 5 ), Bernard de UP TO THE COUNCIL OF TRENT Bottone (who died in 1266), C~rdinal Hostiensis (who died in The Decretals . of PoJJe Gregory 12 71), Johannes Andreae (who IX were compiled by St. Raymond died in 1348) and Panormitanus of Pennafort and were promulgated ( who died in 14 53). as an authentic collection of laws for the universal Church ii1 1234. None of the afore-mentioned Two canons on abortion were pub texts, although distinguishing be lished: one was a letter written by tween animation and non-anima Pope Innocent III in 1211 A.D. tion, indicated when animation oc to the Carthusians, in which the curred. However, some commen distinctions between ~nimation and taries on canons, dealing with the non-animation was recognized and question of the infusion of a soul, a second, the canon which had · declared that a male fetus was FEBRUARY 51 without life for the first forty days in, sold or administered poiso .~ us and the female fetus was without drugs must infonn civil authm ies life for the first eighty days. \Vhile before dispensing or administ ng there was divergence on this point, them. most of the commentators accepted the forty and eighty day norm for In addition to the crime of < .or the beginning of life and for the tion and its penalties, the Cm 1cil existence of a true person. How of Avignon in 1326 declared hat ever, all were in agreement that a the securing of an abortion on ·ne person did truly exist after anima self or on another was a sin, " ich tion and any abortion of such a was reserved to the Bishop o his true person was real murder. delegate . for absolution. At ·ast nineteen Synods or Councils, eld H must be pointed out that abor - between the mid-thirteenth a n ~ the tion was considered by all to be a mid-sixteenth centuries, also re serious sin even though the fetus served the sin of abortion tc the was not animated and even though Bishop. true murder was not involved. These distinctions were adopted The Council of Trent die not 1 more for the imposition of pen legislate directly concerning )or alties than to determine. the gravity tion but the penalties it plac1.. on of the sin. homicide would apply to ab< Lion · in the event that the fetus wa ani The· Synod of Riez in 1285 im mated because the common op1 ion, posed a penalty of automatic ex at that time, although not to ni communication, reserved to the mous or universal, held that mly Holy See for absolution, on every the aborting of an animated d us one who was involved in the com was true murder. Such murcl r, if mission of an abortion or a murder voluntary and even if occult was by knowingly assisting, advising, punished by an irregularity an the suggesting or by selling or. provid ~ss of benefice and the exc1 .sion ing drugs. If the person involved from every ecclesiastical ord r or "vas a cleric, he was, in addition office. to the above penalties, deprived of VI any benefice he might hold, de graded and given over to the civil FROM POPE SIXTUS V (15 8'~~ ) authorities. This legislation of the TO THE CODE OF CANON L : W council of Riez did not distingtiish (1918) between animation and non-anima Two important Constitt, tions tion and was adopted almost ver concerning abortion were iss •,_: d by batim by the Councils of Avignon two different Popes within three in 1326 and in 133 7 and by the years of each other: the first , the Synod of Lavaur in 1368. In order Constitution Effraenatam of Pope to forestall the possibility of abor Sixtus V in 1 58 8 and the second, tion or murder, the Council of Riez the Constitution Sedes Aposto lica declared that all persons who dealt of Pope Gregory XIV in 1 5 9 1 . The 52 LIN ACRE QuARTERLY J ' , , ... ' 't •••• • ~. second confirmed the first in its of an animated fetus were: auto : ,,. . ' entirety with the exception of two matic excommunication reserved to ·~ '•:' .. ·. changes or modifications. the local Bishop, irregularity, all ~ .. the penalties which had been legis Pope Sixtus had declared penal ! . : '. · ~ ·:· ~~~ lated by ecclesiastical and civil laws ' . ties for the abortion of a non-ani for voluntary murder, · exclusion mated as well as of an animated from any ecclesiastical office, bene fetus and, in this respect, this fice or dignity and, if clerics are legislation differed from what had involved, deposition and degrada prevailed from the Decree of Gra tion and the transfer to the civil tian in 1140 up to 1588. Also, it authorities for the imposition of con~idered sterilizing procedures civil law penalties. .· . .. and contraceptive practices as crimes with• penalties identical with These two Constitutions with those proposed for abortion and it respect to the irregularity and other imposed these penalties on all who vindictive penalties remained in cooperated in the commission of force and continued to be the law these crimes as well as on the prin concerning abortion until the cod cipal .perpetrators. Pope Gregory ification of the Church law in XIV, in his Constitution, limited 1918 but the censure of excom his law solely to abortion and then munication was modified somewhat only to the abortion of an animated in the Constitution Apostolicae fetus, thus returning to the decrees Sedis of Pope Pius IX in 1869. in force before 1588. In addition, this latest legislation provided that Prior to the Constitution of the penalties for the abortion of a 1 58 8, neither the · law nor the non-animated fetus was what they commentators on the law ever de previously had been. fined abortion but Pope Sixtus V defined this crime as eiectio fetus Secondly, Pope Sixtus had de immaturi or "the expulsion of an creed, as an additional penalty for immature fetus." This implies that abortion, an automatic excommun the ejection is from the womb of ication which was reserved, for its the mother and that the fetus is absolution, to the Holy See except non-viable and cannot live inde .. in danger of death. Pope Gregory pendently outside the mother and XIV changed this slightly so that separated from her. the reservation for absolution was to the local Bishop. · Pope Gregory XIV did not spec ify when animation occurred but In all other . matters, the two the authors commonly accepted the Constitutions coincided and were classical reference of forty days for identical and that of Pope Gregory the male fetus and eighty days for XIV confirmed the legislation of the female fetus and, if any doubt Pope Sixtus V. Henceforth, the arises as to the sex of the fetus, penalties for procuring or cooperat the period of eighty days was ac ing in the procuring of the abortion cepted. The Sacred Congregation FEBRUARY 53 of the Council stated in 1 7 71 that conception of a male fetus and the forty day and eighty day · norm eighty days following the co ·:::ep was the more common and the tion of a female fetus. This pt alty accepted opinion. was not incurred for the ab<. tion of a non-animated fetus. Chis According to the law of Pope particular legislation cant· ned Sixtus V, the actual abortion had until the advent of the Co( · of to result before any of the penalties Canon Law in 1918. The dis were imposed; thus, a mere intent tinction between the animatel and to procure an abortion or an un non-animated fetus in referer; e to successful attempt could not be irregularity continued in orce punished by any of the penalties, even though the distinction l • Jsed either censure or vindictive penal with reference to · the censu · of ties. However, the sin of abortion· automatic excommunication. could still be present even if the attempt was not sucessful and if ' Vhereas Pope Sixtus V h ; ' re the sin were reserved as to its abso served the automatic excomt uni lution by any local legislation, this cation, as regards its absolutif 1, to would have to be considered before the Ho1y See, Pope Gregory XIV absolution were granted. reserved it to the local Bishoj The penalties for the crime of The Constitution Apost licae abortion were imposed on those Sed is, which was issued by i'ope who, ·using any means, whether Pius IX on October . 12, 3 . ~ 69, physical or moral, procured an abor concerned itself specifically and tion either by their own interven solely with censures, partie: lady tion or through the agency of others automatic censures, e.g., e .. _·om and those who assisted or coop munication. Thus, the law with erated in any effective way were respect to vindictive penalties, e:g., also liable to the penalties. irregularity, which were in exis The "procuring" of abortion was tence at the time of the pron ulga interpreted by the authors as refer tion of this Constitution, cont. ;lUed ring to an express or virtual intent in force until the new codifit dtion to obtain an abortion, the use of of the Canon Law in 1 91 8 , since effective m eans and the desire of it was not superseded in the the abortion as an end in itself or interim. as a m eans to achieving some other Pope Pius IX did not rec ;,.; nize objective. the distinction between animated The penalty of irregularity,. and non-animated fetus and thus. which prevented the reception of in the period between 18 6 9 and or the exercise of Holy Orders to 1918, the automatic excommuni those who procured an abortion or cation was incurred for any abor cooperated, was imposed for the tion or for any expufsion from the abortion of an animated fetus mother's W01110 of a non-Yi ab}e which would · be forty days after fetus. No longer did the forty and 54 LINACRE QuART E RLY eighty day rule prevail. The legisla a paper at a medical convention tion of Pope Sixtus Von this point, in which he stated "that a woman which was in force from IS 8 8 un in childbirth could transfer to the til it was superseded by the Con physician the right over her mvn stitution of Pope Gregory XIV in life and that of her child, so that, 15 91 was again the. law of the with her consent, he would act Church from 1869 until 1918. with perfect propriety in either The distinction between anima taking her life by an operation or tion and non-animation continued destroying the child by embryot with reference to the irregularity omy."2 This conclusion had a tre and other vindictive penalties up mendous impact and effect in Eur ope - particularly in England, to 1918 but with respect to the . ' ' . ,.. censure of automatic excommuni France, Germany and Belgium - cation, it was terminated by Pope and the practice . of abortion and Pius IX in 1869. embryotomy spread greatly. Under the legislation of Pope Also, embryotomy was frequently Pius IX, the abortion had to be used during this period in the man effected or accomplished as a result agement of difficult obstetrical sit of the means employed before pen uations. However, as medical alties were incurred. Thus, if the science developed and perfected attempt at abortion failed or if the new surgical techniques - · prin abortion was obtained but as a cipally, symphisiotomy, pubiotomy, result of means other than those ischyo-pubiotomy and improvements employed for that purpose, no pen in the Cesarean Section by Porro alties could be imposed. in I 8 7 6 and Kehrer and Sanger For the completeness of this in 1882-embryotomy was not em study and also to demonstrate that ployed as frequently for medical the Catholic Church has always indications. and everywhere recognized the dig There were some ecclesiastical nity of human life and need to writers who defended the moral respect, guard and protect human propriety of embryotomy and fetus life, particularly of the unborn destroying op~rations on the basis and the newborn,· it is here noted that: the fetus was an unjust ag that from 1872 up to 1902, the gressor to the health and life of Sacred Penitentiary and the Holy the mother and, therefore, could Office gave six replies to . inquiries be destroyed by the mother; in a about the moral licitnes~ of surgical conflict of rights between mother Procedures which destroyed the and child, the stronger right, that human fetus. of the mother to survive should pre \Vhat prompted such a large vail; craniotomy was not a direct number of questions irt this thirty killing of the fetus but a mere re Year period? First, it must be re moval with the subsequent death called that in 1826, Naegele; of being permitted in accordance with the University of Heidelberg, read the principle of the double effect. FEBRUARY 55 It must be pointed out that these teenth century as to whether < not were the private opinions of only embryotomy was equivalen to a few writers and were never recog abortion and therefore was )Un nized or approved by the Church. ished by the censure of excon mn In fact, they were short-lived and ication. Whether embryotom was ultimately condemned by the var or was not abortion, it de£ itely ious replies and decrees of the was homicide and, therefo, ir Sacred Penitentiary and Holy regularity for the crime of n rder Office. was definitely incurred. The replies are as follo·ws: :; There were some canonist who 1) \'Vith reference to craniotomy, were of the opinion that th cen the petitioner was counselled to sure of excommunication '' ~ in consult approved authors and curred by those who perl nned to act wisely (Sacred Peniten embryotomies because: thes( t e ch~ tiary, November 28, 1872); niques were condemned by tr. Holy Office, the death of the fet ~ en- . 2) The licitness of craniotomy can sued, an embryotomy caused · ·· cater not safely be taught (Holy damage . to the child thm mere Office, l\1ay 2 8, 18 84); abortion and deprived thL child 3) On the licitness of other surgi of the opportunity to be b ltized cal operations which involve and, finally, if the censur. were the direct killing of the mother not incurred, there would b- more or of the fetus, reference is inducement to perform th- more made to the Reply of the Holy damaging crime merely tt' avoid Office of l\1ay 28, 1884, in the penalty of excommunic j on. which the licitness of such op The greater number of c; .onical erations cannot safely be taught writers concluded that the . ,~ nsurc (Holy Office, August 19, of excommunication for th: crime 1889); of abortion would not us1, tlly be 4 ) Operations for directly procur involved In embryotomy i> eca usc ing abortion, when the mother most frequently this tc ' niquc and fetus would otherwise per would be employed only in ,1 "ell ish, cannot safely be performed developed and viable fetus dnd, by (Holy Office, July 24, 1895); definition, abortion is the -v jection 5) Acceleration of birth for just of a non-viable or immature fetus. reasons, without ham1 to the In this instance, a penal L. r must life of the fetus, is licit; when be interpreted strictly. However, the mother would otherwise even though the technique'> of em perish, acceleration of birth is bryotomy differ from those used in licit, procuring abortion is not. an abortion, the censure of ex (Holy Office, l\1ay 4, 1898 ). communication and the irregularity There was some discussion d ur would be incurred, if the fet us was ing the latter decades of the nine- non-viable. 56 Another matter of interest and morally allowed. He also held that concern in the latter part of the the fetus could never be regarded nineteenth century was the moral as an unjust aggressor. This theo licitness of extra~ting an ectopic logian would allow the excision if fetus. Beginning in 18 9 3, the entire there was doubt as to the presence subject was discussed in the Eccles of a living fetus because, in that iastical Review. Four prominent situation, the certain right of the moralists participated-Lehmkuhl, mother should prevail over the Sabetti, Aertnys and Eschbach. doubtful right of the fetus. Lehmkuhl opined that the re Eschbach, Rector of the French moval of an ectopic fetus was licit Seminary in Rome, and a champion when there was imminent danger of the rights of the unborn child, of a fatal rupture of the ri1other's held the opinion that the excision organs and there was no alternate was always illicit, regardless of how way to avert this disaster, because it was performed, because it cer it was not clearly proven that this tainly and directly killed the fetus intervention dealt a direct blow to and that this death could not be the fetus. Under these circum justified either by the presumed stances,· the removal couid be mor consent of the fetus or by declaring ally allowed because the death of it a materially unjust aggressor. the fetus 'vas merely permitted as a secondary, accidental and un It was with this background intentional result. Lehmkuhl also that the Holy Office issued three considered that by interpretative replies on the question of ectopic intention, the fetus would agree to pregn.ancies: his deprivation of life in order that I) It cannot be safely taught in he might be baptized and the life Catholic schools that any surgical oper of his mother might be saved. ation which is a direct killing of either child or the pregnant mother is allowed Sabetti held that all operations and this referred to inquiries concerning ectopic fetuses (Holy Office, August for the removal of a non-viable 19, 1889). fetus involved the direct l 58 LINACRE Q u ART ERLY problem of ectopic pregn~ncies by an indirect attack on the conceptus indicating that the decisions of the since this is neither the "fonnal Holy Office referred specifically to object of the intention nor the im the direct removal of the fetus and mediate object of the physical op n.ot to the removal of the tube, eration." The direct object of the which contained a non-viable surgery is the removal of the path fetus. ological tube, which is the proxi mate source of the trouble. All moralists of the late nine teenth and early twentieth cen Even this · indirect attack is al turies would allow the removal of lowed only when a proportionately the tube once it had ruptured caus grave cause is present in the indi ing serious hemorrhage with result vidual case. Bouscaren is careful ing danger to the life of the ·mother. to state that the testimony of medi After perusing the medical litera cal authorities on the facts "does ture and questioning a large num not go so far as to prove that in ber of doctors, Bouscaren con every case and at every stage of cluded that: "It seems impossible ectopic gestation, the danger from to weigh this medical testimony which the mother is to be saved without being made to i·ealize that by operation is proportionate to the what is called 'rupture' of the tube evil effect which the operation is but the last stage of a process entails." which is gradual, and which fre The evil effect which is permit quently, long before the crisis of ted is the certain death of a human rupture, has weakened, riddled and child. The good effect is the saving disintegrated the tube itself. It is of the mother's life. There cannot consequently a gross error to con be any preference given to one life ceive of tubal rupture as the sud over another life since the life of den bursting of an organ which the mother and the life of the child up to that moment had been per arc equal in importance. One life fectly sound . . . " is not weighed against the other Bouscaren judged that some but rather the actual probability times the pregnaqt tube could be of saving one life is weighed against ., removed before actual rupture oc the actual probability of saving the curred because such removal would other. In the typical case, the fetus entail only an i1ldirect attack on has very little chance to reach via the fetus and this could ·be justi bility if the surgery is postponed. fied because a proportionately The following ten conclusions of grave cause for the operation was Bouscaren will be of interest: present. 'Vhereas the removal of I) The excision of an unruptured the fetus from the tube would con pregnant tube containing a non-viable stitute a direct attack on the con fetus, done for the purpose of saving ceptus and, as such, never allow the mother's life, is not a direct but an indirect abortion. Because of its able, the removal of the entire tube, grave consequence for the child, it will With the fetus inside, would be only be illicit unless there exists a propor- FEBRUARY 59 tionatcly grave cause for it. But it will there is, in competent medical or ion, be a licit operation when all the cir good probability of its success ,,. 1out cmnstances are such that there ·exists seriously adding to the danger • the a proportionately grave cause. In all mother. cases, the child, if probably alive, must 7) In cases where the pre ~ mcy be baptized immediately. has gone beyond four month ~· the 2) The proportionately grave cause nearer aproach of the fetus to v1 ,i} ity must consist principally in the neces- will require an even more urgent '? Ces . sity of the operation to save the life sity on the part of the motheJ .lS a of the mother; but the greater prob proportionate cause for the excb . '1 of ability of being able to baptize the child the tube. In such cases, the prol 1ility may also weigh· as an added motive in of her death without an. imn Jiate favor of the operation. operation would have to be pror. tion- ately higher in order to render 1. ; ex- 3) In cases where the mother can be cision of the tube permissible. kept under observation, it will some times be possible to defer the operation 8) In cases where the crisis ol . ubal without great danger. If so, it should rupture or abortion has been afely be deferred. But if in the judgment of passed and the fetus is still ali· and competent physicians the danger is su.ch developing as a secondary abd !l inal that a present operation to excise the pregnancy, the operation should !ways tube offers a notably greater probability be deferred until viability. Only 1 the of saving the mother's life, the opera actual crisis of dangerous h em,. ·hagc tion ·will be permissible, even before can surgical intervention before ' - , bility the rupture of the tube and before the be permitted in these cases; an· then viability of the fetus. the removal of the fetus must . c in cidental and indirect. 4) When the mother cannot be kept under observation the same rule applies. 9) The practice of allowing , 1aturc If, in competent medical opinion, it or viable fetuses to die in the a!• omen is judged prudent to defer the opera ,.vhen they could be removed alin with tion, it should be deferred. If, on the out too greatly increasing the _' anger other hand, as may be the case, a to the mother is to be cuncL 1 ned. present operation offers a notably Where the child has reached '•:lbility greater probability of saving t h e or maturity, the operation to deliver mother's life, the operation vvill be him by cesarean section while st1l! alive permissible. may, and even should be peri ,)rmed (with the mother's consent) if in com 5) The same rule applies where an petent medical opinion the chznce of ectopic is discovered in the course of saving the child by the op er a~ i o n is an operation, when the abdomen has at least equal to the chance tk'lt the been opened for some other cause. If mother may die as a result of the oper the present excision of the tube offers ation. There will, however, be c1 grave a notably greater probability of saving obligation on the part of the mother to the mother's life, it may be done. consent to the operation, only in cases where it is morally certain that the 6) Whenever it is licit to excise the effort to deliver the child alh e and tube, it will also be licit to attempt the baptize him, will be successful. And transplantation of the fetus into the even in this case the greatest prudence uterine cavity, provided it is judged and gentleness must be used in sug that this will not very seriously add gesting or urging the obligation . to the danger of the mother. In addi tion to these cases, it will also be licit 10) In all cases where it is even to attempt the transplantation, even slightly probable that a living fetus has though the absolute excision of the been removed from the mother, care tube would not be allowed, provided must be taken to confer baptism on it 60 LINACRE QuART ERLY immediately. If there is any doubt of to the life of the one or callous in the presence of a living fetus, the con difference to the life of the other. dition 'if you can be baptized' should be prefixed to the form of th ~ sacrament. REFERENCES 2. Bouscaren, Ethics of Ectopic Oper Bouscaren clearly demonstrates ations, 2nd edition, Bruce, Mil his concern for the fetus by sur waukee, 1943. This will be the rounding · the termination of an source for much of the material ectopic pregnancy with necessary on Embryotomy and Ectopic and useful precautions and safe operations. 3. Bouscaren, Canon Law Digest, guards, by stipulating very precise Bruce, Milwaukee Vol. III, p. conditions and by indicating the 669. limited situations in which such a pregnancy can licitly be ended. (NOTE: This historical analysis will Responsible interest and due at continue in the next installment.) tention arc manifested for the life of the mother and for the life of [Monsignor Harrington is Vice-Officialis the child; there is no preference for the Archdiocese of Boston.] To a surgeon . touching life as you do, 1 wonder at your vision of its source: guiding, grafting vessels, your very grasp has known the throb of a heart's hwrz with gifted skill you feel the rhythm and the flow to find a healing course .. or s01netimes pause and !moll' a1zother ask<; the finalzntlse be noll'. Sister Patrick Joseph Dete, O.S.F. Marillac College, Department of Nursing senior student nurse 61