Article I: On Excision of the Diseased Pregnant Uterus

I. The occasion of the dispute was a declaration made by Doctor Pestalozza at the congress of Obstetrics and Gynecology held at Milan, concerning which above: I consulted a theologian of good name, enjoying great authority, concerning a case of removal of a pregnant uterus infected with cancer in the third month of pregnancy. After mature consideration he responded: It is licit to complete the removal of a pregnant uterus infected with cancer, even if the fetus cannot live outside the uterus, because the abortion is only indirect. Therefore, Pestalozza concluded, by parity it is licit to separate the placenta (and consequently the fetus) from the uterus if it is the cause of infection and death for the mother, or even for the fetus, and there is no other means of saving the mother, because the abortion will only be indirect.

Fr. Gemelli responded that he had never considered the excision of an infected pregnant uterus to be an indirect abortion, nor had he ever been able to admit that opinion, but that the excision of the uterus is an altogether direct abortion, as being most certainly to bring death to the fetus.

Now the theologian of good name who had been consulted was Fr. Vermeersch. Hence the occasion for a new and fuller dispute.

II. State of the question. To understand the case well, it is necessary to know that tumors and operations are of two kinds. Namely, one must distinguish benign and malignant tumors. The former can bring danger, but solely through expansion or excessive outgrowth; hence they can be removed without removing the organ which they affect. The latter, malignant tumors, bring danger through infiltration and ramification in the organ and the neighboring region; hence they cannot be removed unless the organ itself, or also the neighboring lymphatic ganglia, is removed.

Of the first kind are myoma, fibroma, and fibromyoma, which are in the myometrium, and rarely also in the endometrium and perimetrium. Hence, for example, there is the operation of fibromyotomy, which removes or extirpates only the tumor. Formerly it sometimes appeared necessary also to remove a pregnant uterus affected by myoma; but today this is no longer true, for the myoma can now be removed without removing either the uterus or the pregnancy.¹ If abortion should occasionally follow because of the handling of the uterus, this is altogether rare and per accidens.²

¹ We spoke according to the former manner of proceeding in little work A, I, q. 5, n. V, 6; and therefore this must be reformed.

² Gemelli, in Nouvelle Revue Théologique, 1933, De l'avortement indirect, pp. 506, 508, and 580.

Of the other kind are epithelioma or carcinoma, adenocarcinoma, and chorioepithelioma; because of their infiltration and ramification, they can be designated by the common term cancer. They cannot be removed unless the organ itself, or also the neighboring lymphatic ganglia, is extirpated. In this case that is done by hysterectomy, that is, extirpation of the uterus.

Now Dr. Gemelli holds that it is illicit to remove a pregnant uterus infected with cancer, and that this is direct abortion; indeed physicians, he says, can scarcely conceive an abortion more direct than the removal of the pregnant uterus, by which death is most certainly and most directly induced in the fetus. But if this were licit, the thesis of Dr. Pestalozza would be justified, and abortion according to a medical or therapeutic indication would also be indirect abortion, which is contrary to the decrees of the Church and the encyclical Casti connubii.³

³ Thus, with respect to the argument of Dr. Pestalozza positing a parity, Gemelli concedes the parity but therefore says that both are prohibited; hence he denies the antecedent. On the contrary, Vermeersch denies the parity and therefore the consequence.

III. Arguments and responses. The principal arguments of Dr. Gemelli can be reduced to the following:⁴

⁴ Cf. Nouvelle Revue Théologique, 1933, De l'avortement indirect and Encore de l'avortement indirect.

A. For abortion to be indirect, the good effect ought to follow from the operation just as certainly and just as immediately as the evil effect. But this principle cannot be applied in the case. For: 1. the abortion and death of the infant are certain, while the safety of the mother is not certain, because perhaps it will be impossible to remove all the ramifications; 2. the causing of abortion and the removal of the tumor are immediate, but by no means the safety of the mother.

B. Therefore it is difficult to conceive a more direct abortion. For first the recirculation of blood between mother and fetus is interrupted, because the arteries are first tied and cut. Hence the fetus is violently deprived of the sole natural means of life, and therefore he does not die but is killed.

C. It cannot be said that the abortion is caused per accidens: for that which necessarily and always follows from the operation cannot arise per accidens.

D. But if it is said that the uterus is pregnant per accidens, this must be denied, since the uterus is ordered by its very nature to contain the fetus. Hence, if it is pregnant, this is altogether per se. Consequently, removal of the uterus and removal of a pregnant uterus are altogether different operations, not because of an accidental effect, but by reason of the matter. A nonpregnant and a pregnant uterus differ intrinsically.

E. Therefore, the death of the fetus is not only permitted, but is voluntary in its cause, since the physician cannot deny that he wills to perform an operation which by its nature and necessarily causes the certain death of the fetus. But if this operation were licit, in the case of grave hyperemesis from intoxication it would also be licit to expel the fetus in order to induce detoxification.

To these Fr. Vermeersch responded:⁵

⁵ In Nouvelle Revue Théologique, 1933, Avortement direct ou indirect?

To A. It is not required that the good effect be equally certain. Theologians do not customarily require this in the traditional explanation of the axiom concerning a cause with a twofold effect. Whether an abortion is direct or indirect does not depend upon the certainty of the effect, but upon the order or direction of the action. Nor is it required that the good effect follow equally immediately according to duration or chronological order; it suffices that it not be procured through the evil effect, or that it be immediate according to the direction of the action and the order of causality. Accordingly, neither certainty nor duration is to be considered, but an immediate order to the good effect, or a mediate order, namely, through the evil effect.

To B. The circulation of the blood, whether in the fetus or in the mother, is proper to each, independent, and closed. There is no relation of circulation between mother and infant. And in the case, the arteries of the mother are tied, not the arteries of the fetus. Hence the fetus is deprived of oxygen and nourishment; but he is not directly reached in himself and in his own elements. Nor ordinarily does he die at once, but he is often expelled alive, although soon to die: if he were viable, he would not be said to be killed, and nevertheless the operation would be the same. Therefore this operation does not wound the fetus, nor does it directly influence him, but it causes the mother not to minister nourishment; and that is licit for the mother if she herself is in danger.

To C. The abortion is per accidens, for the operation would be performed in the same way if the mother were not pregnant. Hence it does not follow per se from the operation, but from the concurrence of another cause, when account is taken of a circumstance independent of the will of the operator, namely, the fact of pregnancy. The per se cause of the excision of the uterus is the per accidens cause of the abortion.

To D. Although the uterus is by its nature destined to contain the fetus, it does not of itself and by its nature contain him, because the uterus does not contain a fetus essentially, universally in every case, or always.

To E. The death of the fetus is not willed, nor is it chosen as an end or a means, but is actively permitted, because it arises from the concurrence of another cause, on account of which there is present an evil effect which the will cannot and is not bound to prevent in acting.

Nor does it follow that, in a case of grave hyperemesis, it is licit to exercise an action upon the placenta to prevent intoxication. The placenta is a part of the fetus; or, although the maternal placenta and the fetal placenta are distinguished, they are nevertheless so intimately joined that it is impossible to reach one without the other, and therefore the fetus is immediately injured. Nor is detoxification produced by that action; rather, the fetus is expelled and detoxification is hoped for through the expulsion. On the contrary, in hysterectomy the uterus is removed, not the fetus; here, however, the fetus is removed.

IV. What is to be judged concerning the controversy? It seems that from the exposition of the arguments it is sufficiently established that the opinion of Fr. Vermeersch is well founded; and before the controversy arose, nearly all the moralists who wrote on this matter held it at least as probable.⁶

⁶ Thus Lehmkuhl, Prümmer, Génicot-Salsmans, Capellmann-Bergmann, Aertnijs-Damen, Ubach, Schilling, Ferreres, Antonelli, Payen in Nouvelle Revue Théologique, 1899 and 1913, Finney in Ecclesiastical Review, 1928, Hürth in Stimmen der Zeit, 1928–29, and likewise in Scholastik, 1932.

Let us return to the principle. A hysterectomy performed upon a pregnant woman before the fetus is viable is an action having two effects: one good, the safety of the mother; the other evil, the death of the fetus. Therefore it can be licit if the four conditions required for it to be licit to place a cause having two contrary effects are present.⁷ Hence:

⁷ A. Janssen wrote well on this matter in Ephemerides Theologicae Lovanienses, 1934: L'hystérectomie pendant la grossesse.

1. There must be a proportionately grave reason, which is ordinarily present if the action is necessary for the life of the mother. Therefore it is illicit if it is not necessary, or if there is no probability of saving the mother or notably prolonging her life (for example, if the cancer is inoperable), and a fortiori if the Baptism of the infant would be prevented by the operation.

2. The intention of the operator must be right; therefore, he must not intend the injury or death of the fetus, but these must occur against his will from circumstances independent of his will, or he must act under compulsion of necessity.

3. The action in itself, abstracting from the circumstance of the fetus, appears not to be evil. For to remove a diseased member in order to save the life of the body is of itself good. And although there is a difference between a hysterectomy performed outside pregnancy and one performed during pregnancy, this difference is merely accidental, not on the part of the operation itself, but from the accidental circumstance of the presence of the fetus. The operation is performed in the same way whether the fetus is present or not. Therefore it is substantially the same. The intrinsic end of the work, namely, is to amputate a diseased organ of the mother, not to injure the fetus; this occurs per accidens because of the fortuitous presence of the fetus.

4. There can be a difficulty concerning the fourth condition: whether the good effect is immediate and not obtained through injury to the fetus. But this also appears to be so, and therefore the abortion is not direct but indirect.

a. For the danger to the mother does not arise from the presence of the fetus, but from the infection of the cancer or from the malignant tumor, which tumor is altogether distinct from the pregnancy and from the fetus; the danger in a pregnant woman from a diseased uterus is altogether the same as that which arises from the same cause in a woman who is not pregnant.

b. The safety of the mother is not obtained from the expulsion of the fetus, but from the excision of the uterus and the extirpation of the diseased member; moreover, safety is obtained in the same way in a nonpregnant woman and in a pregnant woman.

c. To interrupt the pregnancy and expel the fetus cannot save the mother; if this were done and the infected uterus remained, the danger of death would continue.

Therefore, the good effect is not obtained through the evil effect, namely, through the separation, expulsion, or death of the fetus, but proceeds directly and immediately from the very action of excising the uterus. Nor is the expulsion of the fetus considered as the means of saving the mother.

It is no objection, a., that the injury to the fetus chronologically precedes, from the tying of the arteries, whereby the relation of circulation with the mother and the necessary means of life are taken away from him. For this manner of speaking is improper, since the circulation of the fetus is his own and closed, and a relation which never existed cannot be interrupted. Nor is the chronological order to be attended to, but the order of causality: the excision of the uterus and the safety of the mother obtained from it are not effects of the expulsion and death of the fetus; the safety of the mother is obtained directly and immediately from the excision of the uterus, and not through the death of the fetus. The tying of the arteries is not an action complete and total in itself, but an introductory phase of the whole operation. Nor does it affect the fetus, but the mother, although from it there comes about the fact that she does not nourish the fetus; but she is not bound to nourish him with danger to her own life. But if she is saved, this comes solely from the excision of the uterus.

The evil effect is indeed foreseen at the same time; but certainty of the effect does not make it direct: it remains indirect so long as it is not the means of obtaining the good effect, but the good effect is obtained directly and immediately.

You will say: If the uterus were not diseased and the arteries were tied, would not all say that this was direct abortion?

Response. Certainly, but because then there is only one evil effect.

Let the schema, then, be:

It is no objection, b., that there is a difference between a nonpregnant uterus and a pregnant uterus in which the fetus is contained, for certainly the fetus is not present there per accidens.

Response. That the uterus contains the fetus is a natural phenomenon, conformable, namely, to the law of nature, insofar as the uterus is the ordinary and natural seat of the fetus. But the presence of the fetus is not essential to the uterus. What is conformable to the law of nature can be accidental. The essence of the uterus does not require the presence of the fetus. The uterus is not accidental to the fetus, but the fetus is accidental to the uterus. In the same way, that a man be joined in marriage is a natural fact and nevertheless accidental, in no way essential, to man. It is natural under one respect and nevertheless accidental under another.

It is no objection, c., that the evil effect follows per se, directly and immediately, and consequently not mediately and per accidens.

Response. Even if it follows both per se and immediately, the action is nevertheless licit, provided that an equally immediate, proportionate good effect is produced. But if it is said that one action has only one immediate effect and one proximate end of the work, I respond: let it pass; although the assertion does not appear true, nevertheless, granting it, the end of the work and the immediate effect in the case would be the extraction of the uterus; all the others are therefore mediate or accidental.⁸

⁸ These things have not been said from the necessity of the case, since we have already written in the same sense in Summa Theologiae Moralis, I, n. 173. It is no objection that one act has only one immediate effect, which is the end of the work; but the end of the work is one, not two. Even granting this, the principle could be understood of the physical order, so that the act has one immediate physical effect; but we consider only the effects which regard the moral order. Thus it can be said that there is one physical action of dilating, contracting, constricting, repressing, exciting, or greatly agitating, which can nevertheless have a different effect in the different organ which it affects, as in the head or stomach, in the heart, lung, or uterus, and thus equally immediately produce two contrary effects at the same time, one good and the other evil, for example, healing and drunkenness, removal of danger to the mother and expulsion of the fetus. These nevertheless are independent of one another, since one does not proceed through the other.

V. What followed after the controversy? Cerani, in Scuola cattolica,⁹ speaks rather doubtfully: if the operation does not affect the vital elements of the fetus, then it will be licit; perhaps this will become clearer. On the contrary, many stood for Fr. Vermeersch, such as the Austrian physician consulted by him, who approved his opinion; Dr. Van de Loo in R. K. Artsenblad, 1933; Ecclesiastical Review, 1934; Professor Janssen in Ephemerides Theologicae Lovanienses, 1934; Fr. De Boeck in Saint-Luc médical, 1934; and Payen, Déontologie médicale d'après le droit naturel.

⁹ Aborto diretto o indiretto? Ai margini d'una polemica fra P. Gemelli e P. Vermeersch, 1934.

Mancini, however, subtly attacked the liceity of the operation with new arguments, in Palestra del Clero, 20 April 1934, In questione de isterectomia, and 1 January 1935, De Hysterectomia therapeutica utero pleno, and indeed with the following considerations:

A. The fetus in the uterus is distinguished from the mother not only by his own personal life, but also corporally (somatically). Just as a son is something of his father, so a fortiori he must be said to be something of his mother. Therefore, the organs in which he lives are not only the mother's but also the fetus's: they are the mother's insofar as they are parts of her body; they are the fetus's insofar as nature destines them for the life of the fetus. Therefore no action upon the organs of the mother, which directly influence the fetus, can be conceived without itself also having a direct influence upon the fetus. Hence there can be no question of indirect abortion.¹⁰

¹⁰ Likewise, "It does not at all repent me to have said that the uterus is a common good of the gestating woman and the fetus; indeed, I would say that the uterus is the good of the fetus rather than of the gestating woman, because the organs of generation are by their nature ordered to new lives," January 1935. Hence, he adds, at least in the order of execution, direct malice against the life of the fetus is present.

B. In the case, it must not be said that there is one action with two effects, but that the operation has one effect under a twofold respect: insofar as it regards the mother, it can be legitimated; insofar as it regards the fetus, it cannot be legitimated. Therefore this latter respect vitiates the action itself and renders it evil in itself and simply.

C. But if it is said that hysterectomy is performed in the same way in a pregnant woman as in a nonpregnant woman, this is true in the line of surgical art, but not in the ethical and juridical line: in an empty uterus, namely, there is no subject of rights; in a pregnant uterus there is such a subject, whose particular rights cannot be neglected. For the uterus, with all the things which surround it, was given by nature for the life of the infant, for which it is a necessary means.¹¹

¹¹ The fetus does not lack the right to live, even given the extreme necessity of the mother, and therefore neither the right to remain in the uterus. Hence an abortion which is direct as regards execution also becomes direct in the ethical order. The right to live remains, because the right from nature itself is equal for the mother and the fetus. Thus January 1935.

D. Indirect abortion is indeed permitted when the operation does not terminate in organs essential for the uterine life of the fetus, but in other organs which, by a certain reflex action, can determine abortion; in this case it does not carry per se a violation of the rights of the fetus to life and to the means necessary for it. But this cannot be said of an operation which terminates in an organ which nature has destined for the life of the fetus: to render that organ unfit for this purpose cannot be indirect abortion.

From the progress of surgical art, therefore, the notion of direct and indirect abortion must be subjected to revision.

E. A distinction is made in vain between an action which affects the placenta and an action which does not affect it. This distinction could have force if mother and fetus were considered in the abstract as two distinct beings; it does not have force if the coordination of their lives as nature has instituted it is considered in the concrete.

F. Hence, when a theologian asks a physician whether, from such an operation, the possibility of life remains for the fetus, and the physician responds in the negative, it is necessary to conclude to its illiceity, since the imprescriptible right to human life is injured. The fetus has a right to the normal functions of the uterus, so that it is licit for no one to render those functions and the conditions of life impossible.

Fr. Vermeersch responded in Periodica, October 1934, and especially Professor Janssen in Ephemerides Theologicae Lovanienses, July 1934 and April 1935.

To A. It is affirmed only improperly that the organs of the mother are also the fetus's. Mother and son are two distinct beings, not only by reason of person, but also anatomically and physiologically: each has his own life, his own members, and his own vital functions. They have two perfectly distinct bodies, not one body. There is a relation of dependence and necessity on the part of the fetus; but this is a merely extrinsic union, that of the contained to the container. The uterus remains the mother's, but is destined for the fetus, and therefore can be said to pertain to the fetus as food or a house belongs to a man; but it is not an organ of the fetus. It is his external good, while it is an internal good of the mother. The fetus has a certain right to use the uterus for certain and determinate uses, but the right of the mother prevails, since it regards her intrinsic good. And therefore the mother has greater rights over the uterus than the fetus, namely, the right to dispose of the uterus if this is necessary to save her own body, because the uterus is subordinated first and more essentially to the good of the maternal body, of which it is an intrinsic part, just as every part is ordered to the good of the whole.¹²

¹² Similarly, a spouse has a right to the use of marriage, but with the integrity of the person preserved, as St. Thomas has it, Supplement, q. 64, a. 1 and ad 2; and the removal of the genital organ in the man is licit if it is necessary for the safety of the whole body, and nevertheless the seed is destined for the species.

But if no action can be performed upon the uterus without that action also having an influence upon the fetus, from this it is established that there is an action with a twofold effect; but it does not therefore follow that hysterectomy is direct abortion. For it directly and per se reaches the diseased organ of the mother, and only per accidens the fetus, by reason of the special circumstance that he is contained there. Nor does the safety of the mother ever arise from the expulsion of the fetus, but directly from the very nature of the action, as was explained above. Therefore all the conditions of an action with two equally immediate effects, and of indirect abortion, are verified. For this reason, not only in the order of intention but also in the order of execution, there is no direct malice against the life of the fetus, because the good effect is obtained immediately.

To B. It matters little whether they are called two effects or one effect under a twofold respect, for those respects are essentially distinct and thus are two distinct effects. If one effect is posited, it can only be the end of the work, that is, removal of the uterus; but that is rather the action itself or its material object. But there are two further effects obtained equally directly and immediately; hence one can be intended in itself without the other. The action is legitimated and is good because the excision of the uterus is formally intended insofar as it is the sole means of saving the mother. Under the respect of the fetus it is not legitimated; hence if it had only this effect, it could not be licit. But such is not in fact the case, for it has a proportionately grave good effect.

On account of the evil effect it is evil in itself and simply in the physical order; but not in the moral order, if at the same time a proportionate good effect is obtained equally immediately and not through the evil effect.

To C. The action does not differ in the pregnant woman on the part of surgical art; therefore there is no per se difference from its proper object or as regards its substance, and consequently removal of the uterus is not an action evil of itself. From the circumstance of the presence of the fetus, there is an ethical and juridical difference; hence the right of the fetus cannot be neglected. Therefore an action by which he is directly injured is illicit; and for the removal of a pregnant uterus a graver reason is required than for an empty uterus. This is not to be done unless it is impossible to act otherwise, and the rights of the fetus must be preserved insofar as possible. But the right of the fetus does not take away the right of the mother to licit means necessary for life and to the removal of the causes of danger,¹³ and to dispose of her own uterus if this is necessary for preserving the whole body, although indirectly or per accidens this also at the same time injures the fetus. In equal necessity, the right of the mother to her own intrinsic good prevails over the right of the fetus to the same good which is extrinsic to him. The fetus has a right to the uterus, with the fundamental right of the mother to dispose of her own organ for preserving her own life always supposed unimpaired: a right not to be deprived by an unjust action.

¹³ It is supposed that the danger does not arise from the sole presence of the fetus; for then it could not be removed.

To D. The definition of indirect abortion which the author proposes is contrary to the commonly admitted opinion.¹⁴ For it to be direct, it does not suffice that it terminate in organs necessary to the fetus and that the evil effect certainly follow; it is required in addition that there be only one immediate effect, namely, the evil effect, or that the good effect, if there is one, be procured through the evil effect. It is otherwise if there are two immediate effects: one good effect can be intended, and the evil effect not be intended in itself.

¹⁴ Again there is found, says Vermeersch, the same misuse or confusion between an organ of the mother by which the fetus is nourished and an organ which pertains to the fetus as something proper to him.

To E. If there is a real distinction between mother and fetus, one can reach one without directly reaching the other. Hence if one reaches the placenta, he directly reaches the fetus, and there is one immediate effect; if one reaches the uterus, he directly reaches the mother, not the fetus. The placenta is an organ of the fetus or a common organ; the uterus is an organ of the mother. If the mother disposes of the placenta, she does not dispose of her own organ; on the contrary, she does if she disposes of the uterus. And although there is an intimate and indeed necessary coordination between the life of the mother and the life of the fetus, this coordination nevertheless is only accidental, since it pertains neither to the substance of the mother nor to the substance of the fetus. And if it is removed, this can be done indirectly or per accidens, while a proportionate good effect is produced directly and immediately.

To F. Certainty or uncertainty of abortion does not make it direct or indirect. And although it is licit for no one directly, or by an unjust action, to impede the normal functions of the uterus and the possible conditions of the life of the fetus, this is nevertheless licit indirectly and by a just action, which the mother has a right to place.

With the difficulties resolved, our conclusion remains: the extirpation of a pregnant uterus infected with cancer is probably licit.

VI. Corollary. Therefore it is also licit to excise a pregnant uterus if this were necessary for removing a benign tumor, in a determinate case in which, because of special circumstances, the danger to the mother could not otherwise be averted.