From the time the case was
introduced by John of Naples in the early fourteenth century, abortion of the
unanimated fetus to save the life of the mother won considerable support from
theologians. It was accepted first by Antoninus and then by several summists,
namely, Sylvester, Fumus, and Navarrus. Its inclusion by the summists in their
manuals is an indication that it was considered safe to be used in confessional
practice. The question of aborting an animated fetus to save the life of the
mother was raised by a few jurists, but although one of them, Socinus, offered
reasons that might justify such a procedure even from a moral standpoint, there
was no clear evidence that any of them really accepted it. Also, the question
was raised only about the liability of the mother, which seemed to indicate
that there was no question of exonerating the doctor. At about this time, the
middle of the sixteenth century, a Franciscan theologian, Antonius de Corduba
(1485-1578), introduced a distinction into the discussion of abortion to save
the life of the mother that would take on great importance during the next
several centuries.
Corduba introduced his
distinction in responding to the following question: May a pregnant woman in
danger of death take some medicine, or do something (or have someone else do it
for her) that would result in an abortion and the death of an animated fetus?
May a doctor or obstetrician (midwife) do the same? He responds that according
to Sylvester this may not be done. Others, he says without naming them, hold
that the woman herself may do this, but the doctor may not. Corduba himself
says that a distinction must be made. If the medicine, or whatever procedure is
used, is of itself immediately, directly, and principally conducive to the
health of the mother, as, for instance, bleeding, bathing, a cathartic, or a
pain-killer, it is permissible both for the mother and the doctor to (obtain
and) use it. The doctor and midwife may even be bound professionally to give
this help to the mother, just as one is bound to help a neighbor in extreme
danger, or may at least licitly do so, when what he does is otherwise licit.
Corduba argues that this is
permissible since the medicine (or other procedure) is de se salutifera
(naturally therapeutic), even though it accidentally and indirectly causes
death, and the death of the fetus (or some innocent person) follows. He draws
an analogy between this case and a case of defense against unjust aggression in
which an innocent bystander is accidentally killed. He seems to think that
taking the medicine is even more justifiable since the mother has a prior
right (ius potius) to life. The fetus depends on the mother, not
vice versa.
But if the medicine or other
measures causing the abortion are immediately, directly, and principally
conducive to the death of the fetus (de se mortifera), such as poisonous
drugs, beating, dilaceratio, striking the woman, knocking her down, or
trampling on her, neither the woman herself nor the doctor (nor anyone else)
may resort to them even to save her life. Taking the life of another in this
way is not allowed any private person except in just self-defense. Corduba says
that if Sylvester’s condemnation of aborting an animated fetus to save the
mother is understood in this sense, he would agree with it.
Corduba then contrasts this case
with another mentioned by Sylvester.? Sylvester, in dealing with accidental
homicide, had stated that if a person who was struck by another or was trying
to escape such a blow knocked someone else down and killed him, it would not be
considered homicide (and the person would not be irregular), at least unless he
could have foreseen this consequence and avoided it. Corduba speaks more
concretely of a man on horseback fleeing an unjust aggressor who unavoidably
tramples a child in the path of his escape. Corduba would not allow this, and
precisely because he considers the act of the horseman de se mortifera
(in itself lethal). It is not the flight itself he considers de se mortifera
but the proculcatio, that is, the trampling of the child. It falls into
the same category, then, as beating a pregnant woman or giving her a poisonous
drug to cause an abortion. Corduba would allow the horseman to continue his
escape only if he tried to sidestep or jump over the child, even without
success. As long as he does what he can to avoid direct killing of the child,
even if he does not succeed, the death of the child will be unintentional and
his act will be licit. (John Connery, Abortion: The Development of the Roman
Catholic Perspective [Loyola University Press, 1977], 124-26)
Another Spanish Jesuit of that
time, Iloannes Azor (d. 1603), also accepted Corduba’s distinction, and it
would seem, without qualification. He asks specifically whether a pregnant
woman may undergo bloodletting, take baths, cathartics, or pain-killers if
necessary to save her life, even though they may cause an abortion. He cites
John of Naples, Antoninus, and their followers as authors who do not consider
this licit if the fetus is already animated. Another opinion (that of Corduba)
holds that if the mother intends to protect her own life and uses a means which
is not naturally and directly aimed at the destruction of the fetus (as the
above means), it would be permissible By way of illustration he uses the
example of a pregnant woman fleeing, not a wild animal, but a fire or a flood.
If, however, the means are aimed by nature at abortion, the mother would not be
permitted to use them. To the objection that it is permissible to kill the
innocent along with combatants in warfare he answers that this is justified by
the common good. To the objection that it is licit to kill an unjust aggressor
to save one’s life he responds simply that the fetus is not an unjust
aggressor. It is the disease that is threatening the mother’s life; the fetus
is using no threatening force. Azor concludes the section with the statement
that the authors cited for the first opinion above would have no difficulty
about allowing the use of such procedures if the fetus was not animated and
they were necessary to save the life of the mother. Finally, in the next
section Azor makes it clear that the use of procedures or medicines aimed
directly at abortion would be wrong even if the intention were not to kill the
fetus, but to save the mother.
Corduba’s opinion was also
accepted by an English Benedictine theologian. In his Clavis regia
Gregory Sayrus (1570-1602) accepts the distinction of Corduba but with the qualification
that even medicina salutifera may not be used if the spiritual welfare
of the fetus is at stake. Sayrus also raises a further question about possible
remedies in cases of this kind. Corduba had demanded that the medicine (or
other procedure) be principally causativa sanitatis (principally
curative). What if the medicine is by nature as destructive as it is
therapeutic? He is supposing the same situation, namely, that both the mother
and fetus will otherwise die. If she takes the medicine, however, it is not
certain whether the fetus or mother will be saved. Some authors have denied
that it is licit to give the mother medicine in this situation, since in doing
so one is exposing her or the fetus or both to danger of death. Other authors
allow this, arguing that in extreme cases of this type where there is no other
remedy, it is permissible to experiment. It is better than certainly losing two
lives. The opponents would accept this opinion if there were question only of
the mother but do not feel that it can be followed when the life of the fetus
is also at stake.
Sayrus argues that since in this
case there is no hope for either without the remedy, he does not see how any
injury will be done to the fetus if the experiment is used on the mother. But
if the case were doubtful, that is, if it were doubtful whether the fetus would
otherwise die or survive, he would allow the experiment only if the fetus was
not formed. If the fetus were already formed, he would not permit it. Sayrus’
discussion of this case is not as clear as one would like; he seems to be
dealing simultaneously with two distinct questions, namely, the use of means
equally salutifera and mortifera, and the use of doubtful means. (John
Connery, Abortion: The Development of the Roman Catholic Perspective [Loyola
University Press, 1977], 133-34)
Thomas Sanchez, (1550-1610), a
Spanish Jesuit, offers what is perhaps the most thorough treatment of abortion
to save the life of the mother that had appeared up to his time.!! He is the
first author, also, who explicitly accepts the opinion of John of Naples and
his followers regarding the abortion of the unanimated fetus to save the mother
as well as Corduba’s distinction regarding the animated fetus. He goes beyond
those immediate predecessors of his, such as Corduba, who oppose the opinion of
John of Naples and allow only the use of medicina sanativa, even when
the fetus is unformed. Sanchez introduces the subject with the question whether
it is permissible to procure an abortion if this is the only way of saving a
mother’s life.
He begins his response by making
the traditional distinction between the animated and unanimated fetus. If the
fetus is animated, even doubtfully so, all agree that it would be wrong to
procure an abortion, since taking the life of an innocent person is an
intrinsically evil thing. He advises that Simon of Brescia and Marianus
(Socinus) should not be listened to in this regard. As already mentioned, he
was under a misapprehension regarding the opinion of these two jurists due to
Felinus’ misreading of them. Neither actually subscribed to the opinion that
abortion was permissible in these circumstances. Sanchez says that one might
want to prove that it was licit by arguing that the fetus is part of the mother
as long as it is in the uterus, and that it is permissible to sacrifice a part
of one’s body for the good of the whole. This would be true if the fetus were a
real part of the mother and not endowed with a distinct soul of its own. But it
is clear that the animated fetus does not fit this description, so this
argument cannot be valid.
He pursues that same question
regarding the fetus before it is animated with a rational soul and quotes Peter
of Navarre’s statement that it is the opinion of everyone that it is not licit
to procure an abortion of a fetus even before animation to save the life of the
mother. In addition to naming the authorities Navarre quotes in behalf of this
opinion, Sanchez also presents arguments for it from reason. The first is the
familiar a fortiori argument drawn from an analogy with procuring a
seminal pollution. Since this is intrinsically evil and never permitted,
although more remote from the goal of generation than even the unformed fetus,
aborting an unformed fetus would likewise, and fora stronger reason, be
illicit. Also, if abortion of the unanimated fetus were permitted to save the
life of the mother, it would have to be allowed even to prevent a danger that might
come only at the time of delivery. And why would it not be allowed also to
protect the reputation of a woman who had sinned, or even her life when
threatened by an angry husband or father? It makes no difference whether the
danger is present, or in the future, whether it comes from inside or from some
outside source, with or without fault. It is just as permissible for one to cut
off his foot to escape death when he is being held by an enemy (even through
his own fault) as it is to amputate it when diseased.
Sanchez simply denies Navarre’s
statement that all are in agreement that it is wrong to abort an unanimated
fetus to save the life of the mother. His own experience is that no one
disagrees with the opinion that is is permissible. This statement of Sanchez
seems as questionable as Navarre’s original claim. Besides Navarre himself both
Corduba and Vasquez have challenged the abortion of the unanimated fetus to
save the mother. The facts seem to indicate that the opinion of John of Naples
had its followers, but it also met with opposition. The opposition would grow
as the Corduban distinction took hold, providing a different, and more
acceptable, solution for problems that would arise both before and after
animation.
To Sanchez the opinion that
allows the abortion of an unanimated fetus to save the life of the mother is
the more probable opinion. The reason he gives is that abortion in this case
does not involve homicide. Also, since the fetus is part of the mother, not yet
endowed with a rational soul, there is no reason why the mother should be
obliged to continue to protect it when it is the source of imminent danger to
her life, especially since there is little or no chance that it will ever be
animated with a soul of its own if the mother dies. But Sanchez is not willing
to allow abortion in the cases presented above as analogous. He would not allow
it to avoid a difficult delivery because in this case the danger is not present
and the problem can be solved by other means. As for the other cases, the fetus
cannot be considered an aggressor in any sense in these cases. In the present
case, however, the fetus is a quasi-aggressor and the cause of the mother’s
death, and the danger is present and cannot be removed by other means. Although
Sanchez speaks of the unanimated fetus as a quasi-aggressor (like a diseased
member) rather than an aggressor in the strict sense, this statement will
become an issue among later authors. Later authors will also continue to push
the analogy between this case and those where the danger comes from an outside
source.
Another point should be mentioned
in connection with Sanchez’ refutation of the arguments against the position he
has taken. It will be remembered that one argument used by previous authors was
drawn from an analogy with the morality of procuring an emission of semen. The
prohibition here was considered absolute, and it was argued that for an even
stronger reason the prohibition of abortion of the unanimated fetus should be
absolute. Sanchez sees an important difference here. The reason why any kind of
administrative decision allowing the expulsion of semen is denied to man is the
intense pleasure associated with it. The implication is that if this decision
were ever left to man, it could not be controlled. Since there is no such
pleasure associated with abortion, there would not be the same danger. There is
not the same reason, therefore, for an absolute prohibition. So this analogy
cannot be used to outlaw abortion to save the life of the mother.
After his discussion of abortion
of the unanimated fetus to save the life of the mother, he raises the more
difficult question of aborting an animated fetus in the same circumstances. He
asks whether when the fetus is probably animated a pregnant woman or a doctor
may, if her life is in danger, use medicines necessary to save her life but
carrying with them the danger of abortion. He adds that it is commonly stated
that John of Naples and his followers respond negatively to this question.
Sanchez comments that they were speaking rather of the use of genuine
abortifacients. Rather than say they gave a negative response to the above
question, it might be better to say that they did not even consider it. Sanchez
quotes Corduba to the effect that according to some it is permissible for a
woman to use such medicines, but not for a doctor or midwife to give them.
Sanchez is mystified by this distinction.
Sanchez makes use of Corduba’s
distinction between lethal potions and medicines or procedures of a
predominantly salutary nature, condemning the use of the former, but allowing
the latter. He gives his reasons for allowing the use of medicina salutifera,
many of which have already been seen. But he does add a new dimension to the
discussion by appealing to St. Thomas’ article on self-defense. Up to the
present the whole discussion of unintentional abortion has been related to the
question of killing an innocent nonaggressor. Relating it here to the
discussion of self-defense against an unjust aggressor will be a source of
confusion in some later authors, but certainly in the mind of Sanchez the
animated fetus was not an unjust aggressor. In the case in question St. Thomas’
requirement regarding the intention of the agent is undoubtedly fulfilled. It
is aimed at saving the mother rather than the death of the fetus. But it is
aimed in this direction precisely because the means themselves are by their
very nature aimed at this goal. (John Connery, Abortion: The Development of
the Roman Catholic Perspective [Loyola University Press, 1977], 134-38)
The time of infusion of the human
soul has been under discussion during the whole Christian era. For many
centuries, however, the opinion that the soul was infused at the time of
formation was generally accepted. Generally, also, the Aristotelian estimate of
forty and ninety (80) days was accepted as the time of formation, although
after Lessius some theologians showed a preference for the Hippocratic
computation, or that of Lemnius. Aristotle himself held a succession of souls,
postulating first a vegetative soul and then an animal soul before the infusion
of the rational soul, and in this he was followed by St. Thomas and many
scholastic theologians., Theologians like Sanchez, however, considered the
fetus a part of the mother until the rational soul was infused, and so would
not have to postulate a prior vegetative or animal soul for it. In 1620, Thomas
Fienus (De Feynes) (1567-1631), a Belgian physician and professor at the
University of Louvain, wrote a book entitled De formatrice fetus liber
in which he challenged the idea of delaying the infusion of the rational soul
until the fetus was formed.! Fienus held that the soul is infused on or about
the third day after conception.” After ruling out other causes of formation,
that is, the uterus itself, the semen, the generative faculties of the parents,
he concludes that it must result from a soul introduced into the conceptus
about the third day. He deduces this from the fact that the membranum,
which covers the semen and which is completed by the fifth day, begins to form
at this time.? Thus far his opinion would not depart from that of Aristotle.
Where he differs is in postulating a rational soul right from the beginning. He
argues that the same soul that is ultimately responsible for the formation of
the fetus must be responsible for the formation of this membrane, and this must
be the rational soul. A succession of souls makes no sense to Fienus, and he
presents several strong arguments against it. The rational soul, then, which
all agree is the ultimate soul present in the fetus, according to Fienus, must
be there from the beginning.
Fienus realizes that in taking
this position he is opposing what is practically a universal tradition, namely,
that the human soul is infused only after the fetus is formed. So he devotes
considerable time to refuting the authority behind this tradition. The
authority is both sacred and profane. The sacred authority behind the tradition
is that of scripture, the Fathers, and the canons; the profane authority,
Hippocrates, Galenus, and Aristotle. To the familiar objection from the
Septuagint he responds that the Latin (Vulgate) text, which is authoritative in
the Church, makes no distinction between the formed and unformed fetus. Moreover,
even the Greek text does not say that the fetus which is not formed does not
yet have a human soul. All it says is that a fetus that does not yet have motum
et sensum (movement and senses) is not a perfect man, but only imperfect.
Therefore, one who destroys such a fetus should not be given the death penalty,
as though he had destroyed a perfect man. The death penalty should be imposed
only for the destruction of a perfect man, that is, one who has motum et
sensum. As for the argument from Genesis, that God did not breathe a soul into
Adam until he was formed, one cannot argue that because God created Adam this
way, everybody else is produced in the same way. He argues correctly also that
Augustine cannot be cited as an authority for this position, since he was not
at all clear in this own mind that animation did not occur until the fetus was
formed. And the same indecision will be found in Jerome. Fienus adds that not
too much confidence can be put in the opinions of profane authorities, since
they have such a variety of opinions. Strangely enough, he has no response to
the authority of the sacred canons. (John Connery, Abortion: The Development
of the Roman Catholic Perspective [Loyola University Press, 1977], 168-70)
The seventeenth century witnessed
a challenge to the Aristotelian theory of delayed animation. The theory of
early or even immediate animation, first advanced by Fienus and Zacchia, will
eventually supplant the Aristotelian theory. According to these authors the
developments that take place right from the time of conception call for the
presence of a soul. Since the Aristotelian succession of souls made no sense to
either of them, that soul had to be human. This theory met with considerable opposition
from the beginning because it was contrary to the common opinion of theologians
(and everybody else), the practice of the Church, and the common interpretation
of the Exodus (Septuagint) passage in scripture. With such overwhelming
opposition its acceptance would be slow, but by the end of the seventeenth
century authors such as Caramuel and Cardenas felt that the distinction between
the animated and unanimated fetus was no longer of practical significance. It
would take another century, however, before it was generally accepted. (John
Connery, Abortion: The Development of the Roman Catholic Perspective [Loyola
University Press, 1977], 187)
The ancients knew nothing about
the female ovum, and hence nothing about fertilization. Conception occurred
when the semen (they knew nothing either about the existence of sperm in the
semen) was planted in the uterus. The most common opinion, that of Aristotle,
considered the semen the active agent in generation. The catamenia (menstrual
blood) of the woman provided the matter of generation. On the Generation of
Animals, 1.19-20, Works of Aristotle, 5:727-28. (John Connery, Abortion:
The Development of the Roman Catholic Perspective [Loyola University Press,
1977], 319 n 12)
Here is a relevant portion of Aristotle’s On the
Generation of Animals (“De Generatione Animalium”):
Male and female differ in their
essence by each having a separate ability or faculty, and anatomically by
certain [20] parts; essentially the male is that which is able to generate in
another, as said above; the female is that which is able to generate in itself
and out of which comes into being the offspring previously existing in the
parent. And since they are differentiated by an ability or faculty and by their
[25] function, and since instruments or organs are needed for all functioning,
and since the bodily parts are the instruments or organs to serve the
faculties, it follows that certain parts must exist for union of parents and
production of offspring. And these must differ from each other, so that
consequently the male will differ from the female. (For even though we speak of
the animal as a whole as male or female, yet really it is not male or female in
virtue of the whole of itself, but [30] only in virtue of a certain faculty and
a certain part—just as with the part used for sight or locomotion—which part is
also plain to sense-perception.)
