Question Two: On Embryotomy, or on Incisions Which Injure the Fetus

I. Embryotomy, by a general name, designates all surgical operations which cut up the infant in the uterus and divide him into parts so that he can be extracted.

These operations can be performed in various ways and by different procedures, which we indicated in the earlier little work A, On Embryology, I, q. 4, n. I.

We inquire here concerning their liceity.

II. History of the question of feticide. Formerly, when it was generally thought that the fetus was not animated from the beginning, it could more easily be doubtful to some whether it was licit to injure or expel a fetus not yet animated by a rational soul. Now, however, the difficulty is greater, because many hold that he is animated in this way from the beginning. This indeed is not certain;¹ but even probable homicide is to be avoided. Thus, for example, one who doubts whether that which moves in the forest is a man or a wild beast cannot injure or kill it, because he cannot expose himself to the danger of killing a man. But even if the fetus certainly were not yet animated by a rational soul, it would be illicit, because the fetus is then a man in proximate potency,² and the unanimated fetus is ordered to the formation of a man; hence his expulsion or killing is equivalent homicide, for it tends to the deprivation of human life and is contrary to the nature of generation.

¹ Cf. little work A, On Embryology, II, q. 4, n. I.

² Thus according to the manner of speaking of St. Thomas, Q. D. de Malo, 15, a. 2.

Nevertheless, not only physicians but even some theologians thought that feticide was licit in certain cases, when it was not possible otherwise to save the mother, and especially when otherwise both mother and fetus would perish. To defend this, they adduced various arguments:

a. The necessity of acting in such a way in order to avoid a greater evil.

b. For in the case in which danger of death follows in the mother from pregnancy itself, the infant is an aggressor against her life, and indeed materially unjust; therefore, just as it is licit to kill a drunk or insane aggressor, so also the fetus who is the cause of death to the mother.

c. All the more because in a conflict of rights the stronger right ought to prevail; but the mother's right to life is of greater force than the infant's right, because the mother is more necessary. Hence the infant also, if he had knowledge, would yield his right, since he would reasonably be bound to do so.

d. Besides, it is not a killing but an acceleration of death, if the infant would nevertheless die with the mother. He is not killed; rather, the mother merely ceases to preserve the offspring, and the mother is not bound to preserve the fetus with danger to her own life.

e. In the case, therefore, the killing is not direct, because it is not intended, but indirect, since it is done from necessity only beyond the intention, for the defense of the mother's life.

Some theologians taught this, at least as probable: some concerning abortion, and even a few concerning embryotomy, for example Ballerini,³ Avanzini, Constantini, and certain others, especially in Italy. But by far the greater number held the contrary.

³ See Annotations on Gury, I, nn. 402–403, where he notes various things; and Work of Moral Theology, II, n. 910 ff.

The Holy Office, having been questioned concerning this matter, responded on 28–31 May 1884 that the liceity of craniotomy could not safely be taught; and on 14–19 August 1889 it extended that response to any operation directly lethal to the fetus or to the gestating mother. But since it had said only "cannot safely be taught," responding to the question proposed to it, "whether it can safely be taught," this was restrictively interpreted by some concerning the safety of the doctrine, not concerning the liceity of the operation, because it had not said "cannot safely be done."⁴ Hence, to the question, "whether an operation of this kind can safely be undertaken," the response was: "In the negative," 24 July 1895, and indeed according to the other decrees cited above.

⁴ Safely, that is, without danger of error; but that which exposes one to error, they say, could be probable and perhaps true.

Nevertheless, physicians continue to think this licit in the sufficiently rare case in which the mother could not otherwise be saved, or if otherwise both mother and infant would die. Indeed, in practice, some physicians do it even if the mother could be saved in another way, but because it is easier. They say that it is not feticide but a medical or therapeutic indication.

Pius XI, in the encyclical Casti connubii of 31 December 1930, attacks this and refutes the arguments usually brought forward:

"As for the medical and therapeutic indication—to use their words—we have already said, Venerable Brethren, how greatly we pity the mother for whom grave dangers to health, indeed to life itself, threaten from the office of nature. But what cause can ever avail in any way to excuse the direct killing of an innocent person? For this is what is in question here. Whether it is inflicted upon the mother or upon the offspring, it is against the precept of God and the voice of nature: Thou shalt not kill!⁵ For the life of each is an equally sacred thing, and no one, not even public authority, can ever have the power to destroy it. Most ineptly is this power invoked against the innocent from the right of the sword, which avails only against the guilty; nor does any right of bloody defense against an unjust aggressor have force here (for who would call an innocent little child an unjust aggressor?); nor is there present any so-called right of extreme necessity which could extend as far as the direct killing of an innocent person. Therefore, upright and skilled physicians laudably strive to guard and preserve the life of each, both mother and offspring; on the contrary, all those would prove themselves most unworthy of the noble name and praise of physicians who, under the appearance of providing medical care, or moved by false pity, would lie in wait for the death of either."

⁵ Exod. XX, 13; cf. Decrees of the Holy Office, 4 May 1898, 24 July 1895, 31 May 1884.

And yet the encyclical—who could have conjectured it?—gave occasion for a contrary interpretation. Thus Dr. Riss in the Münchener medizinische Wochenschrift, 1931: if both must perish and all other means have been employed, then it is not an intended killing, not a direct killing in the sense of the encyclical, or a killing from malevolence, because they do not lie in wait for death. Similarly Dr. Pestalozza, a celebrated professor, wrote an article in L'Osservatore Romano of 22 January 1931, Dopo l'enciclica sul matrimonio cristiano: la parole de la scienza [After the Encyclical on Christian Marriage: The Word of Science], in which certain responses of the more celebrated gynecologists of Italy to certain questions are set forth. Among them Pestalozza himself says: from the progress of medical science, soon there will no longer be a question of medical abortion; today, however, there are still most rare cases in which it is necessary, if the pregnancy necessarily and after a short time tends toward the death of the mother and fetus. In this case abortion does not fall under the Italian penal code, because malice is not present, and therefore neither is a crime. I would presume it to be so also for the Christian conscience, because in the case there is not a direct killing of the innocent, but only the liberation of the woman from a disease which would also bring death to the infant. One who acted thus would not be moved, as the Pontiff says, by false pity, but by a profound scientific conviction and the certainty of saving at least the mother.

Fr. Dr. Gemelli, rector of the University of Milan, responded to him in L'Osservatore Romano of 28 January 1931: Dopo l'enciclica sul matrimonio cristiano. Necessarie precisazioni [After the Encyclical on Christian Marriage: Necessary Clarifications]. Nevertheless, at the congress of the Italian Society di Ostetricia a Ginecologia [of Obstetrics and Gynecology], held in Milan on 18–20 October 1931, Pestalozza again defended the liceity of the operation in this case, because it does not tend to the direct killing of an innocent person, as the encyclical presumes, but has the end of saving the mother from the gravest danger, which would also draw with it the death of the infant. Gemelli again contradicted him, and in this indeed rightly.

III. Embryotomy and every operation directly lethal to the infant is intrinsically evil and unjust, so that in no case, even one of medical indication or necessity, can it be licit. This is certain. It is established:

1. From the decrees of the Church cited above, which concern precisely the case in which, if the operation is omitted, the mother and fetus will perish, and if it is admitted, the mother is to be saved while the infant perishes; and from the encyclical of Pius XI Casti connubii, which speaks explicitly about a case of indication. For a. it excludes this case altogether when it says, "What cause can ever avail in any way to excuse the direct killing of an innocent person?"; b. it affirms that the matter concerns the direct killing of an innocent person; c. it rests upon the decrees of the Holy Office which establish the same; d. it refutes the arguments of the adversaries drawn from the right of the sword, defense against an unjust aggressor, and extreme necessity. Therefore, it cannot be said that the Pontiff adds a restriction and does not condemn the operation in a case of necessity, since he is speaking precisely about it. Those who dare to affirm this insist upon one expression and neglect everything preceding it and the whole context. And although they judge themselves not to be moved by false pity nor to lie in wait for death, nevertheless that pity which is not conformable to right reason and the precepts of the natural law is in truth false; and although they do not explicitly intend to lie in wait for death, nevertheless in reality they do so.

2. Also from manifest reason. Such an operation directly injures the fetus and, through this, effects the good of the mother; hence he who performs it necessarily wills the evil of the fetus as a means of saving the mother. But this is contrary to the principle: Evils are not to be done that goods may come about; or, the intention of a good end cannot make an evil action good. An action is intrinsically evil, namely, when it intends an evil, or its danger, as an end or means; an action which immediately tends to no end except evil. If an action either is evil in itself or has only an immediate evil effect, it is evil even if it is further ordered to a still greater good. On the contrary, it can be good if it also immediately procures a proportionate good effect. This can be presented graphically as follows:

The utilitarians do not understand this. They are wholly occupied with considering the effect: if the same effect is obtained, for them the action will be the same morally. Others are wholly occupied with considering the intention: if the intended end is right, no care is to be taken about the means necessary for obtaining it. Thus many physicians. Now, to estimate the morality of an action, one must consider not so much what the agent intends or what he effects, but what is immediately done and by what means the effect is obtained. But if safety is obtained by an evil action or through an evil effect, the action will always remain illicit.

They say: Therefore, let men perish for the sake of principles.⁶

⁶ In German it would be said: Das ist Prinzipenreiterei [That is pedantic adherence to principles], which in French can be rendered: être à cheval sur les principes [to be rigid about principles].

Response. A moral principle is of greater worth than the physical life of man, just as the moral good of uprightness and virtue is of greater worth than a physical good. Indeed, if a principle is abandoned in some case, logically it will be abandoned in many others, and then many and greater evils will follow for human life, even physical life.

IV. They object: It is not a direct but an indirect killing. For:

1. The death of the infant is beyond the intention.

Response. I distinguish: it is beyond the intention or extrinsic end of the agent, let that pass; beyond the intention or intrinsic end of the work, I deny it, for the operation of itself and necessarily terminates in the death of the infant.

2. The agent does not will this end of the work, but wills it as a mere means to another end.

Response. For a direct killing it is not required that the one operating actually will death as an end; it suffices that he will it as a means for obtaining another end.

3. When someone kills an aggressor, the killing is not direct because the death is beyond the intention, and nevertheless the death of the aggressor is the means of saving life. Therefore, by parity, so also in the case at hand.

Response. According to St. Thomas, II-II, q. 64, a. 7, the killing of an aggressor is not direct when it is not chosen as a means of saving life; rather, there is the action of repelling the aggressor, with a twofold effect: to save the life of the person attacked, but with danger to the aggressor. Moreover, the right of defending oneself in this way is limited to aggression; but in the case of feticide there is no aggression by the fetus.

4. An action which is a per se cause of death is a direct killing; one which is a per accidens cause of death is indirect. But one who intends only to save the mother is a per accidens cause of the infant's death. Therefore, the infant's death is caused by indirect killing.

Response. This is an equivocation. A cause, and an effect, are called per se and per accidens in two ways: either with respect to the intention of the will, or on the part of the work. Hence, although the effect—in this case death—can be called per accidens according to the intention of the will, nevertheless it is per se as regards the nature of the work, if the work is of such a nature as first and per se to produce that one effect, namely death. But this is necessary and sufficient for the killing to be direct.

You will find the other objections indicated above in n. II refuted in our preceding little work A, I, q. 4, n. II.

V. The occasion of the error was both the lax opinion of certain theologians and a somewhat inaccurate and equivocal manner of speaking about direct and indirect killing, as also about direct and per se causality and indirect and per accidens causality, which gives occasion to error.⁷

⁷ Thus, for example, Busembaum, in St. Alphonsus, Th. M., bk. III, n. 366: "It is not lawful to kill oneself directly and intentionally," as if two elements were necessary, including the intention itself. Likewise n. 393: "By direct intention and knowingly, it is never lawful to kill an innocent person...; indirectly and per accidens it is lawful,... by applying oneself to a licit and necessary matter of such great importance that it is equivalent to life." Explanations sufficiently correct follow, but the definitions and propositions can be understood incorrectly; thus n. 394: "He who maliciously procures abortion in himself or another sins gravely."

According to Fr. Vermeersch, there are three acceptations of a per se and per accidens cause and effect:

1. On the part of the intention of the one acting alone, as in Ballerini and certain others: per se, that is, what is intended; per accidens, what is beyond the intention. But this sense, after the decrees of the Holy Office, has already been abandoned and is to be abandoned. Certainly, a good intention alone cannot make an evil action good, or make a direct action indirect. This acceptation is presupposed in the statements of Dr. Pestalozza.

2. From those things which necessarily issue from the cause and follow per se, or from the certainty and frequency of the effect, in which sense Dr. Gemelli sometimes spoke. But the objective certainty is not so much to be considered as the direction of the action: the certainty or frequency, or the probability of the event, does not affect the direction. Wherefore this manner of speaking gives occasion for confusion: an effect is not per se because it is certainly foreseen, but because it is contained in the causality per se, or because the cause is first ordered per se to it.

3. On the part of the intention or end of the one acting together with the nature and end of the work. Hence, for an effect to be indirect and per accidens, it is required that neither the intention of the one acting nor the work of itself tend toward that effect. An effect, for example death, is direct not only if it is sought for its own sake, but also if it is sought in itself although not for its own sake; it is indirect if it is sought neither as an end nor as a means, so that neither the intention of the one acting nor the work itself has one immediate evil effect. Thus Vermeersch.⁸

⁸ On Causality Per Se and Per Accidens, or Direct and Indirect, in Periodica, 1932. Cf. N. R. Th., 1933.

It can be said in this way. Nevertheless, it is preferable to consider only the nature and end of the work. The intention of the one acting cannot change the nature of external operations and things, nor make indirect causality direct, just as it cannot make direct causality indirect. The intention can make the work be done from a good or evil affection; but if the work of itself tends immediately toward one evil effect, the effect will be per se and direct, nor can any intention change this. On the contrary, if the action has two immediate effects, the evil one will be indirect or even per accidens,⁹ provided that the good effect is preponderant or proportionate; nor can this be changed by intention alone. A bad intention, namely, cannot make an action which is not lethal become lethal, or make an indirect killing direct, or make an effect per accidens follow per se. Therefore, one must not consider what the agent intends, but that to which the action is of itself ordered, or that in which it immediately terminates.

⁹ Strictly speaking, an indirect effect and an effect per accidens are not the same. An effect per se, namely one which is of such a nature as to follow from the very nature of the cause, necessarily and always, can be indirect if at the same time the cause is of such a nature as to produce another effect equally immediately from its nature, or in fact produces it. An effect per accidens is one which the cause does not produce from its nature, but which can arise from it when another cause or circumstance concurs.

VI. Observations.

1. The craniotomy which was expressly condemned by a decree of the Holy Office is that which inflicts death. In recent times they already speak of a similar operation by which the cranium is somewhat diminished, but life is preserved. Such an operation is not necessarily illicit, if there is hope of completing it and there is no other means of bringing the fetus to perfect birth.

2. Embryotomy remains illicit even if it is only probable that the fetus is still living, because neither is it licit to expose oneself to a merely probable danger of killing an innocent person.

3. Neither is feticide to be performed in order to avoid the Caesarean operation, which, for that matter, is not much more dangerous. From comparative statistics it is evident that almost as many mothers have died from feticide; for this is not without danger to the mother. In the Caesarean operation, the fetuses saved are computed at 66, 72, and 87 percent, and mothers at 80 percent, so that out of 200 human individuals, 150–170, or 81 percent, are saved; by feticide, 80–90 percent are saved, namely of the mothers, for all the fetuses are killed.

More recent statistical computations for Caesarean section are found to be still more favorable. Antonelli says that 90 percent of mothers are saved; Dr. Frank, 87 percent of infants and 94 percent of mothers; Schmitt and Marc speak of 98 percent of mothers; Dr. Bergmann says that the danger of death for the mother is one-half per 100 if infection is not present, and otherwise no more than 5 percent, while 90–99 percent of infants are saved.

Hence Antonelli acknowledges:¹⁰ "From analogous statistics it follows that almost as many mothers have died in the operation of embryotomy as in the Caesarean operation; the infants, however, as is evident, all died."

¹⁰ Medicina Pastoralis, 5th ed., II, p. 65.

Therefore embryotomy has now been abandoned, but abortion has not yet been abandoned.

To this St. Alphonsus says: There is a twofold opinion. Each is probable, but the second (which holds that direct abortion is illicit) is safer and to be embraced in practice. And he observes: "For why take a drug directly to expel the fetus, when he can and may sufficiently be expelled indirectly?" The doctrine is correct, but the manner of speaking suggests that the matter depends upon intention.

Billuart also, *On Justice*, diss. 10, a. 3: "It is a sin to kill oneself directly and intentionally...; indirectly, by doing or omitting something whence death follows, although not intended," it can be done licitly if "there is a just and reasonable cause for doing or omitting it." Similarly, a. 4: "No one... is permitted to kill an innocent person directly and intentionally; indirectly and beyond the intention it is sometimes permitted...." He indeed explains correctly, according to the principle of two equally immediate effects, but the definitions taken in themselves can be understood badly. Likewise, a. 7: "To procure abortion directly and intentionally is a sin which can be rendered honorable by no good end.... It is also illicit to cause abortion indirectly, namely by doing that from which it is foreseen to follow, although it is not formally intended, unless in a rare case there is a just and grave reason for doing such a thing," as "if it were certain that, the remedy not being employed, the fetus would perish with the mother, and on the contrary it were certain or probable that, the remedy being employed, the mother would be saved..., because in these circumstances the safety of the offspring, who will certainly perish, scarcely enters into consideration, and consequently the mother has the right to take counsel for herself."

Gury, *Th. M.*, I, n. 389: "No one is permitted to kill himself directly, that is, intentionally.... It is never permitted to place an act tending *per se* and immediately toward one's own destruction, unless the act has another immediate good effect.... It is permitted to concur indirectly in one's own killing, or to place an act from which, beyond the intention, one's own death will certainly follow, provided that some good follows equally immediately from the action." Here there is no formal definition of direct and indirect killing, but the author speaks sufficiently correctly.

Lehmkuhl, *Th. M.*, 6th ed., n. 841, has no definition, but places certain propositions:

"II. To cause abortion only indirectly is not illicit if the condition of the mother requires it.

"III. Deliberately to induce abortion seems to be permitted even in the present danger to the mother's life which can be averted only by the expulsion of the immature fetus. In this case there will scarcely be a direct procuring of abortion in the theological sense, any more than yielding a plank to a friend in shipwreck is a direct killing of oneself. In the same way, if the expulsion of the fetus were necessary for the infant's Baptism, this would seem to be an indirect killing, or rather an indirect acceleration of death; but this will scarcely ever occur." (But in the new edition, namely the tenth, after the decree of the Holy Office, he retracted this, saying: it must be held to be a direct killing and therefore intrinsically evil.)

And n. 842: "To others this does not appear to be a direct killing, but a very different means, since the mother merely no longer preserves the infant, but, the fibers having been relaxed, allows him to slip from the uterus and even permits him to perish. That she can cease from preserving the fetus, if she can no longer preserve him without the loss of her own life, ought to be certain to everyone."

But since this is not done by omission alone, but the amniotic fluid is released by puncture, or the natural condition is violently disturbed for the fetus, or he is compelled to leave the uterus and to break the vital bond with the maternal uterus, he adds: "But even then. *Per se* the fetus has a right to that vital element. But can a right be overcome by a prior right, or can the fetus renounce his right? Existence in the maternal uterus is an extrinsic good necessary to the fetus. He can renounce it. And if it is a good intrinsically joined to him, nevertheless, is that which is first touched not the fetus, but something which by equal right pertains to the mother?"

And n. 846: "There is no direct procuring of abortion in the theological sense. This is understood of an expulsion which in the moral sense is a killing of the fetus; but someone would wrongly call that operation a killing of the fetus, which rather ought to be called a permission of death."

But how can the action by which a living infant is attacked be called a mere permission, in the same way as if someone afflicts another with a lethal wound? For the rupture of the membranes is a lethal wound to the infant.

Ballerini, *Opus Theologicum Morale*, II, n. 912:

Abortion is "indirect... when, in order to guard against the disease of the mother, those remedies are to be employed from which it follows beyond the intention." On the contrary, it is "direct when means are employed which *per se* are directed not toward healing the mother's disease but merely toward freeing her... from the fetus.... Moreover, when the remedy *per se* does not tend toward curing the mother's disease, but only toward obtaining birth sooner (note well, the fetus is not viable), abortion can nevertheless in another sense be held to be sought directly or indirectly, regarding, namely, not the material character of accelerating birth, but the will or intention of the one acting"! Behold the perverse notion of direct and indirect abortion, by which the matter is determined solely by subjective intention.

Berardi, *Th. M.*, II, n. 628: "Direct suicide is in inflicting death upon oneself from direct intention"; and n. 661: "Killing is direct or indirect according as the death of one's neighbor is intended or not intended"; and n. 668: "Abortion is direct by intention; indirect beyond the intention."

Noldin, *Th. M.*, II, n. 337: "Homicide is one thing direct and another indirect, according as it is intended in itself or only in the cause from which it is foreseen at least probably to follow"; and n. 342: "The procuring of abortion is direct... if means are employed for this end, that the fetus be expelled; it is called indirect if means are employed for another end, for example, for procuring the health of the mother, from which it is then foreseen that abortion also will follow beyond the intention."

Marc, *Th. M.*, I, n. 741: "Abortion is procured directly if, by design, from any operation whatever the immature fetus is expelled; indirectly, however, if a cause acting of itself upon the mother is placed, but from which harm to the fetus can arise."

The last three authors expound good doctrine and apply the principles correctly; but the definitions could be understood badly. Others do not hand down a definition of direct or indirect homicide.