Procuring abortion (Can. 2350)

341. On ectopic fetuses. a. Ectopic fetuses are those which are found outside their natural place; and since their natural place is the maternal uterus, they are also called extra-uterine fetuses. In the first months of pregnancy it is very difficult to distinguish an extra-uterine fetus from a tumor.

b. If it is doubtful whether that which the mother carries is a fetus or a tumor, and there is no danger in delay, one must wait until the fetus is mature; but in no way is it licit to destroy the supposed tumor by an electric current or by any other means, because in this way the fetus would be directly destroyed if one were present. But if there is danger in delay lest the mother perish, according to the mind of Father Genicot it is licit to extirpate that from which the danger to life arises as a tumor: for the certain right of the mother to her own life prevails over the uncertain right of the fetus, whose existence is doubted.¹

c. If it is certain that an extra-uterine fetus is present, it is not licit to extirpate it, because an innocent person would be directly killed; nor can the extra-uterine fetus be considered more as an aggressor of the mother's life than a uterine fetus who cannot be brought forth into light. But it is licit to cut out the pregnant uterus affected by disease, if, this operation being omitted, the mother's death would certainly follow, although the death of the fetus would also certainly follow. For in this way the death of the fetus follows only indirectly, since the operative action directly and immediately affects not the fetus, but the uterus in which the fetus is enclosed.²

¹ Casus consc., I, p. 159 s.

² Holy Office, 4 May 1898; 5 March 1902.

342. Declarations. Abortion is the ejection of an immature fetus from the mother's uterus. A twofold abortion is distinguished: natural or casual, which happens through natural causes, and artificial or voluntary, which is brought about deliberately.

a. Physiologists call the maternal fruit, before the fifth month from conception, an embryo, and afterward a fetus. The fetus is called mature (by others premature, by others viable) when it can live, even if it comes forth into light before the ninth month of gestation; for the fetus can certainly live outside the maternal uterus if it is brought forth into light after the seventh month of gestation; before that time the fetus is immature, and when it comes forth into light it is almost always going to die.

b. The ancients thought that the male fetus was informed by a rational soul only 40 days, but the female fetus only 80 days, after conception; therefore they distinguished between an animated and an inanimate fetus. For they thought that the soul was not infused into the body before the body itself was formed; but they had learned from Aristotle that male fetuses have a formed body about 40 days, female fetuses about 80 days, after conception. They thought besides that this opinion of theirs was confirmed by sacred Scripture, which, on account of the diversity of sex, prescribed for women a diverse time of purification from this reason.¹ But today the received doctrine is, although it is not demonstrated by a certain argument, that the human fetus is informed and vivified by a rational soul in conception itself, namely when the male seed is united with the female ovum, which union happens some hours, sometimes even some days, after conjugal copulation. Wherefore the distinction between an animated and an inanimate fetus is no longer attended to in theology except in the one case in which canon law retains that distinction, namely where the matter concerns the irregularity to be incurred by those procuring abortion.

c. Abortion is one thing; acceleration of birth is another. For acceleration of birth is called the ejection of a fetus already mature, but abortion is the ejection of an immature fetus; wherefore abortion has place before, acceleration of birth after, the seventh month of pregnancy.

d. The procuring of abortion is one thing direct and another indirect: it is called 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 nevertheless it is foreseen that abortion also will follow beyond the intention.

¹ Cf. Lev. 12:2-5.

343. Principles concerning the procuring of abortion. 1. From a grave cause it is licit to procure premature birth or acceleration of birth. It is licit because from this operation the death of the infant does not follow, but he is only placed in another state in which he can live of himself, since he is supposed viable. But a grave cause is required, because not only is the life of the infant exposed to danger, but the infant brought forth prematurely ordinarily also remains weak; but it is not licit to induce this danger except to drive away a greater danger either of the mother or of the infant.

2. From a proportionately grave cause it is licit to procure abortion indirectly: for from a proportionately grave cause it is licit to posit an indifferent action from which a twofold effect follows, one good, which is intended, the other evil, which from a grave cause is permitted.

Therefore it is licit in a lethal disease of the mother, which cannot be cured in another way, to furnish a remedy which directly and immediately tends to the cure of the disease, even if from it abortion at the same time follows, because the mother is not bound to provide for the bodily life of the offspring with the loss of her own life. But the same is not licit if the disease is not lethal. Indeed, even in a lethal disease it is not licit to furnish such a remedy to the mother if, once the remedy has been employed, the offspring is deprived not only of temporal life but also of eternal life, whereas, the remedy not being employed, the death of the mother indeed is certain, but on the other side the salvation of the offspring is also certain, since the offspring, about to survive the mother, can be baptized. For the mother is bound to prefer the eternal life of the offspring to her own temporal life. Ordinarily, however, the offspring dies before the mother, so that it cannot be baptized even if the mother is permitted to perish.

3. It is not licit directly to procure abortion, even if the fetus is supposed still inanimate. If the fetus is animated, this is the same as taking life from him; for since the fetus can live only in the mother's uterus, to place him outside the uterus is the same as by a positive action to take life from him. But if the fetus is inanimate, yet nevertheless living, homicide properly so called is indeed not committed, but nevertheless mortal sin is committed, because begun generation is destroyed against the end of nature.¹

a. Therefore it is not licit for a pregnant girl to procure abortion lest she lose her reputation or suffer another grave evil: for she would kill the offspring to obtain some good or to avoid some evil, or she would directly procure abortion; for abortion is directly procured whether it is intended as an end or as a means to obtaining another end.

b. Women who, fearing that they are pregnant, try to induce abortion by various means, for example, by washing their feet in cold water, by taking potions harmful to the fetus, by compressing the abdomen, by exercising actions very fatiguing, etc., sin gravely, at least by wicked intention.²

4. Even in this case it is illicit to procure abortion, when the mother is placed in certain danger of life and no other means exists of saving the mother than the procuring of abortion: for the procuring of abortion even in this case is the direct killing of the infant, which always remains illicit, even if through it a great good is obtained.

a. In a twofold case physicians are accustomed directly to procure abortion to save the life of the mother: alpha. when they foresee that a sick mother, on account of the pregnancy itself, will certainly die unless the fetus is expelled; beta. when they notice that the mother, on account of narrowness, cannot bring forth a mature infant, and that she shrinks from a surgical operation, for example, from Caesarean section. In these cases they directly procure abortion, because the means which they are accustomed to employ, namely puncture of the membrane (Eihautstich) and effusion of the amniotic fluid, is equivalent to the direct procuring of abortion and therefore to direct killing. Abortion is also directly procured if the pregnant mother uses a means by which, the fibers of the uterus having been relaxed, the emission of the fetus occurs.

b. There were theologians who thought that abortion could licitly be induced positively where the fetus brings a lethal disease and death itself upon the mother: for they thought that such an abortion is not direct but indirect killing of the fetus, which can be permitted for saving the mother. Namely, the mother who induces abortion either by herself or through another only ceases to preserve the infant in the uterus and thus permits him to perish; but the mother is not bound to preserve the offspring with the loss of her own life.

But this opinion is reproved by a response of the Holy Office. For to the proposed case: Titius the physician, when he was called to a pregnant woman lying gravely ill, commonly noticed that no other cause of the lethal disease underlay it except the pregnancy itself, that is, the presence of the fetus in the uterus ... To save the mother from certain and imminent death he entered upon the way of procuring abortion, employing nevertheless means and operations tending of themselves and immediately not indeed to this, that he should kill the fetus in the maternal womb, but only that it should be brought forth alive, if this could happen, although soon to die, as one which was still altogether immature - to this case, therefore, the Holy Office responded that the stated operations, in the said circumstances, cannot safely be undertaken.³ The reason for this decision seems to be this: that the induction of abortion consists in a positive action by which the fetus is directly ejected and by that very fact killed, from which killing ejection only afterward, as an effect, the safety of the mother follows.⁴

c. If the narrowness of the mother were so great that after the seventh month she could no longer bring forth the fetus, and she were unwilling to undergo any operation, accelerated birth could be admitted between the sixth and completed seventh month, provided at least some slight hope shone forth that the infant could live. For by this reason the safety of the offspring is provided for in the better and more certain way in which it can be done.⁵ But without hope of saving the infant it is not licit to extract even ectopic or extra-uterine fetuses from the womb of the mother.⁶

¹ Therefore this proposition (34) was condemned by Innocent XI: "It is licit to procure abortion before the animation of the fetus, lest a girl discovered pregnant be killed or disgraced."

² The penalties borne against those procuring abortion are: a. papal excommunication reserved to bishops, whether the fetus is presumed animated or not; b. irregularity, if nevertheless the fetus is animated, therefore practically if abortion happens eighty days after conception.

³ Holy Office, 25 July 1895.

⁴ Cf. Bucceroni, Commentarii theol. morales^2 (Romae: Cuggiani, 1890), De procuratione abortus, p. 47 ss.

⁵ Holy Office, 4 May 1898.

⁶ Holy Office, 5 March 1902.

344. On Caesarean operation. 1. That the state of the question may be determined: a. It must be noted that here there is no question of the section of a deceased mother. Elsewhere we have taught that Caesarean operation can and must be performed when the mother is already dead, so that the infant, who is supposed living, may be extracted and baptized.¹ The question here concerns a living mother, who carries an offspring likewise living in the uterus, whom she cannot bring forth by the natural way on account of narrowness. Since craniotomy, which physicians are accustomed to employ in these circumstances, is illicit, for saving the mother only a twofold remedy remains. Either the infant must be extracted by Caesarean section or symphysiotomy, or one must wait until the offspring dies in the uterus, so that afterward, divided into parts, it can be extracted by the accustomed way, if the mother is still alive.

b. It must be noted that a mature fetus existing in the mother's womb can indeed be baptized, but the baptism is not of altogether certain validity. Moreover, in order that Caesarean operation or a similar operation offer hope of a happy outcome, it is required that the mother be robust, the physician very skilled, and that the necessary precautions by antiseptic means can be employed; for if a skilled physician and suitable preparation are lacking, or if the mother is very weakened, the operation is almost equivalent to the direct killing of the mother.

2. Concerning the obligation of undergoing Caesarean operation, it must be said that there scarcely ever exists a certain obligation of undergoing Caesarean or a similar operation. And indeed:

a. If there is indeed hope of saving the mother, but no hope exists of extracting the child alive, the mother cannot be obligated to suffer the operation, because no one is bound to preserve his own life by extraordinary means. Capellmann indeed denies that this operation, with chloroform employed, is to be called an extraordinary means; but it cannot be denied that mothers are affected with the greatest horror of Caesarean operation. But a remedy from which all especially shrink must be called extraordinary, even if pains are prescinded from.²

b. If there is hope of saving the mother and of extracting the child alive, who could have been baptized in the mother's womb, the mother is not bound to undergo incision, even if the child's baptism is doubtful; for in order that someone be bound, with danger to his own life, to assist a neighbor existing in extreme spiritual necessity, it is required both that the hope of saving the neighbor be certain and that the extreme necessity likewise be certain; but neither has place here.

c. If there is hope of saving the mother and of extracting the child alive, who could not be baptized in the mother's womb, there are those who oblige the mother to suffer incision so that the child may be saved from eternal damnation. But a certain obligation can scarcely be established, because there is scarcely ever a certain hope of a happy outcome and therefore of saving the child from eternal death. Wherefore in practice the operation can indeed be advised, but prudence will advise that the confessor abstain from urging the obligation.

d. Indeed, there are not lacking authors who simply deny the obligation of the mother to undergo danger of life so that the offspring can be baptized: alpha. because the lot of infants dying without baptism cannot be called unhappy; beta. because it is only probable that the offspring, afterward having become adult, would attain eternal life.

¹ Cf. De sacramentis, n. 70.

² Capellmann, Medicina past.^6 (Aquisgrani: Barth, 1893), n. 24 ss.

345. On beating. The right in the goods of the body, which the fifth precept protects, can be injured by beating or striking.

1. The power of beating belongs: a. to public authority, which, since it possesses coercive power, can punish evildoers with blows; b. to parents, who can punish immature children, not only to correct them and draw them back from evil in the future, but also to punish them for offenses.

2. The right of beating is not possessed: a. by the master toward servants hired for wages, nor b. by the husband toward the wife; for although he is the head of the family, nevertheless he does not of himself have coercive power over the wife, since she is not a slave, but the husband's companion and mother of the family.

It is licit for no one to beat anyone unless either he is subject to his power, or the consent of him who has the power is present, namely of the father over the son or of the master over the servant; for beating is punishment, but punishment supposes governing power. Therefore teachers can indeed of themselves punish pupils, because they hold the place of parents; but an elder brother by birth cannot punish younger brothers by birth, unless either this has been commanded to him by the father, or he himself rules the family in the place of the father.¹

¹ Cf. Bucceroni, Institutiones theol. moral.^3 (Romae: Typogr. Augustin., 1900), n. 725.

346. On the vexing of animals. 1. To solve the question whether and what sort of sin the vexing of animals is, three principles from moral philosophy must be recalled to mind: a. Animals, since they lack reason and therefore also personality, are not subjects of right; therefore man is held by no obligation either of justice or of charity toward animals. b. Man is lord of animals, as of other things lacking reason, so that they ought to serve him as means for obtaining any licit and honest ends whatsoever.¹ c. Nevertheless the right of using animals is not absolute and unlimited; for man can licitly use them not according to whim, but only according to the prescriptions of reason. Therefore the end for which he uses them ought to be honest and the mode of using them conformable to reason.

2. From these things it follows that the vexing of animals is sin. For he is said to vex animals who inflicts torments or bitter death upon them without sufficient reason. Although man can licitly inflict pains even bitter pains, indeed bitter death, upon animals, provided there is an honest end and the mode of acting is morally necessary for obtaining the end, nevertheless what is done against reason is sin; but it is contrary to sound reason that torments and a hard death be inflicted without sufficient reason.

Therefore, although experiments on the living body of animals (vivisections) for promoting physiological science or medical art are of themselves licit, nevertheless those which either entirely lack an end of true utility or are in no way necessary for obtaining a licit end cannot be excused. But it cannot be denied that the vivisections of many physicians greatly exceed honest limits and have degenerated into mere torture of animals.²

3. The sin which torturers of animals commit does not exceed venial sin: for the use of animals, even if joined with pains, is an indifferent thing; but excess in an action otherwise licit, however enormous, is not a mortal sin. Hence it is also understood why moral theologians, who are chiefly solicitous about mortal violations of moral laws, do not mention the sin of vexing animals.³

This sin is not opposed to a determinate virtue, since it does not violate a determinate obligation, but the general obligation of not acting against the prescriptions of reason. Nevertheless it has a likeness with the sin of cruelty, which is opposed to temperance and specifically to clemency; and insofar as torturers of animals act drawn by pleasure, by which they delight in torments, they commit a sin like savagery.⁴

4. Moreover, a. although animals do not have reason, nevertheless they are endowed with sensation, and therefore they do not lack a sense of pain, which nevertheless in them is much less than in men, both because of the lack of reason and consciousness and because of a body less tender and less perfectly organized. b. In sacred letters animals are exhibited as an object of divine providence, indeed even of compassion, since God is said to hear the young raven crying,⁵ to give food to all in due time,⁶ and to have willed that even animals rest on the seventh day.⁷ By these things mildness and clemency in the use of animals are commended to us.

¹ Gen. 1:26.

² Cf. R. Marty, Ein Wort uber Vivisection (Stimmen aus Maria-Laach, 1881, I, p. 11, 276).

³ Fr. Schmid, Wie ist das Tierqualen zu beurteilen? Priester-Konferenzblatt (Brixen: Weger, 1898), p. 179 ff.

⁴ Cf. Lessius, De iustitia, l. 4, c. 4, n. 43.

⁵ Job 38:41.

⁶ Ps. 103:27.

⁷ Ex. 23:12.

Canon 2350 IV. Procurantes abortum, matre non excepta, incurrunt, effectu secuto, in excommunicationem latae sententiae Ordinario reservatam.

Procurantes—Using physical or moral means with the intention of prematurely causing the ejection of the foetus— i.e, before the seventh month of gestation.

Matre.—Before the Code some authors excepted the mother.

Effectu.—F or the censure to be incurred, it must be certain that abortion followed from the means used. Canon 2385 V. Religiosus, apostata areligione, ipso jure incurrit in excommunicationem proprio Superiori majori, vel, si religio sit laicalis aut non exempta, Ordinario loci in quo commoratur, reservatam.

Question 3. Is a mother procuring abortion for herself subject to excommunication?

Resp. Affirmatively. The mother is no longer excepted.

The delict is supposed as explained by Sixtus V, and consummated by the effect having followed, and indeed in such a way that the very ejection of the fetus, or the abortion itself, is the effect of the procurement by the various means employed - which must be carefully noted. - Cf. Pius IX, Const. Apostolicae Sedis, § 3, n. 2.