1. Introduction

This paper will not examine all of the juridical and ethical-political problems raised by artificial procreation. Its task is to offer, by the light of Catholic morals and especially by the encyclical Evangelium Vitae (EV), several ethical guidelines for legislators and politicians who may be faced with proposals that seek to ameliorate unjust civil laws which promote artificial procreation.

Evangelium Vitae n.73 affirms that when a legislative vote would be decisive in order to pass a more restrictive law to replace either an already existing more-permissive law or one ready to be voted on, “an elected official, whose absolute personal opposition to procured abortion is well-known, could licitly support proposals aimed at limiting the harm done by such a law and lessening its negative consequences at the level of general opinion and public morality. This is not engaging in illicit cooperation with an unjust law, but rather it is a legitimate and proper attempt to limit its evil aspects.”[1] It is widely known that controversies have arisen concerning the interpretation of this moral solution and, consequently, its exact relevance for analogous situations. It is therefore necessary to clarify several points regarding the meaning and context of the teaching so that it can be applied with well-founded accuracy to the problems that occupy us today.[2]

A primary clarification regards the expression “imperfect laws” which is at times used in reference to EV n. 73. The expression, however, is neither used in the encyclical itself nor by any other magisterial, ecclesial document. The authors who do use it always put it in quotation marks. In fact, it’s an expression that can easily lead to deception. Thus, there are at least two fundamental reasons why it would be better not to adopt it:

1) From the point of view of political ethics, civil laws are just when they correspond here and now to the common good: laws that oppose the essential content of the common good are unjust or grievously depraved.[3] Just laws are always or almost always perfectible, at least regarding their technical-juridical efficacy and expression. Likewise, unjust laws can be defective in lesser or greater degrees. However, a third category that would fall between just and unjust laws does not exist.

2) While EV n. 73 affirms it is good to cast one’s vote in order to eliminate the disordered normative disposition of an unjust law, it does not affirm that the more restrictive law which results is just, or that it is in itself acceptable or defendable. Rather, from the immediate context, and from the entire development of Chapter III of the encyclical, it is evident that a law legalizing abortion, even if it is more restrictive than a preceding law, is an unjust law in all its effects. The teachings of John Paul II do not support a third ethical category of imperfect laws which would fall between just and unjust laws. This observation must be kept in mind in order to avoid many errors of interpretation.[4]

2. Fundamental Moral Principles Concerning Proper Conduct Before Unjust Laws

A second clarification regards the context in which EV n. 73 can be placed. The general context is the moral responsibility that citizens, and in particular legislators and politicians, have towards implementing a sound juridical order in their country. Such a responsibility strives to secure a juridical order that is thoroughly just: this is the goal to be pursued and it must never be renounced. Due to this, a logic of compromise such as the following would be utterly foreign to the perspective of EV: Catholics are absolutely opposed to every instrumentation of human embryos, such as that found in artificial procreation; other citizens, however, don’t believe it is wrong to use and store embryos like spare parts; given that everyone takes part in the State, it would not be just to demand that the law wholly admit either the position of Catholics or that of non-Catholics, since law must be a mediation. This type of reasoning is obviously erroneous because the protection of human life is not demanded by specifically Catholic ethics but rather belongs to the ethical-political culture of any society.[5] Accepting a compromise of this kind would mean becoming an accomplice to a gravely unjust, discriminating principle fatal to those who are subjected to it.In the long run it would jeopardize the fundamentals of social life by putting them up for debate.

Once this crucial point has been clarified, it is necessary to point out that the immediate context of EV n. 73 concerns Catholic moral teaching regarding proper conduct before unjust laws.[6] Catholic morality teaches that unjust laws do not bind one in conscience; quite oppositely, there is a moral obligation to refrain from following their normative dispositions, to oppose them in a civil manner (e.g. through conscientious objection), not to support them with one’s vote, and not to collaborate with their application. Above all, there exists the duty to use all licit means to abrogate them. Regarding this last duty, EV n. 73 teaches that in a situation where it is not possible to entirely abrogate an unjust law, it is good and upright to work for its partial abrogation.

Nonetheless, political strategies that aim to reduce the harm of unjust laws (Harm Reduction or Harm Minimization) are not morally legitimate independently from the means they employ. On the contrary, the political obligation to minimize the negative effects of unjust civil laws is intimately linked with two irrevocable moral principals. The first maintains that, “if it is sometimes licit to tolerate a lesser evil in order to avoid a greater evil or to promote a greater good, it is not licit, even for the gravest reasons, to do evil so that good may follow from it, that is, to make into an object of a positive act of the will something which is intrinsically disordered even when the intention is to safeguard or promote individual, familial, or social goods.” [7] For example, no one could licitly obey an order to kill ten innocent people in order to keep someone else from murdering thirty. The second principle regards cooperation. “It is never licit to formally cooperate with evil,” [8] so it is therefore not morally permissible to collaborate in the promulgation or application of a gravely unjust law. The solution offered by EV n.73 must be interpreted in light of the two above-mentioned moral principles that the encyclical at times presupposes and at other times explicitly expounds.

3. The Foundation of Evangelium Vitae n. 73

Evident in the preceding reflections, EV n. 73’s moral teaching is not founded either on the permissibility of a more restrictive law considered in itself, or the philosophy that one may commit a lesser evil in order to avoid a greater one.In addition, EV n. 73 is in no way founded on a theory of compromise.

Rather, the teaching of EV n. 73 is founded on a judgment concerning the moral object of the action by which the legislator may support a more restrictive law only within the conditions laid forth in EV. The legislator chooses as the moral object of his action to eliminate all of the unjust aspects of the preceding law that he can, here and now, eradicate. He must do so, moreover, without becoming an agent in maintaining the other unjust aspects that he does not desire or accept but which he nonetheless is not in a position to abolish.[9] The real nature and meaning of the legislator’s action is that it is an act that partially abrogates an unjust law. The abrogative act is partial solely because total abrogation would not be possible.

Both the greater, and the “lesser”, evils are done by others.They are evils the legislator of whom we speak is not able to completely prevent. The depraved aspects of the law are eliminated as far as possible while the only thing he does, and desires to do, is to mitigate evil. His action only consists in limiting the evil done by others. Again, this includes the remaining lesser evil that is likewise done by others, not by the elected official of whom we speak. Simply put: it is not morally permissible to directly kill three innocent people, or to be an accomplice in their deaths, so that another person doesn’t kill ten. It is, however, permissible and dutiful to try to thwart the person who intends to kill ten people even if the end result, despite one’s efforts, is that only seven are saved. The action of the person who acts rightly is only the action of saving seven, since saving ten was not possible. The three who were not capable of being saved were killed by the action of another person.

The teaching of EV n. 73 will now be resumed in order to apply it to the laws regarding artificial procreation. It is good and dutiful to use one’s vote to sustain or promote proposals which ameliorate an unjust civil law as long as all of the conditions are met which ensure that one’s political intervention is truly and solely an act of partial abrogation. The conditions which must be met are principally the following: total abrogation of the unjust law is not possible, one’s own vote is necessary to obtain the good sought, with one’s vote one does not become responsible for the unjust normative dispositions which will still be present in the more restrictive law, and finally, that every type of scandal and confusion of conscience be reasonably avoided.

4. Political Applications to the Issue of Artificial Procreation

At this point, one could examine the possibility that, in certain conditions, the common good would not be opposed by a civil law that did not prohibit a form of artificial procreation which, although morally illicit, guaranteed the three following rights in their entirety for every single human embryo: the right to be treated as a subject and not an object; the inviolable right to life; and, finally, the right to be born by and in the same, heterosexual, married couple. [10] Actual civil laws regarding artificial procreation do not, as far as I know, guarantee these three rights. The possibility highlighted above, therefore, refers to a purely theoretical problem that is not necessary to investigate right now.

Presupposing, however, that existing artificial procreation laws are unjust, it remains to clarify how the moral principles explicated above can be applied to them. There are two fundamental criteria: the elected official must not be responsible for the injurious normative dispositions present in the more restrictive law, and furthermore, everything possible must be done to ensure that scandal and confusion of conscience do not arise. [11]

The first principle is relatively easy to apply when political intervention is clearly abrogative from a formal point of view. If a group of elected officials do not have the majority needed to completely abrogate an unjust law but are, for example, able to obtain a majority in order to abrogate two articles of a law which allows “spare embryos” to be created and frozen, these elected officials are obviously only responsible for the abrogation of the two grievously unjust articles.They are not responsible for the rest of the articles to which they did not give their vote when the law was passed by parliament.The partial nullification of an evil is a good that does not require further justification.

At times, however, it isn’t possible to abrogate only part of a law. In order to partially negate a law it must be rewritten so that a new proposal is presented to substitute the old. In situations where this is not possible, what might be possible is political intervention that is not formally, but rather substantially, abrogative. This is not the same as cooperating with parliamentary approval for an unjust law since the only novelty in the approved text is the prohibiting of several gravely unjust practices that previously were legal. [12]

The following example may be posited. A country has an artificial procreation law allowing the unlimited use of human embryos. This country’s parliament has 100 representatives divided into three groups. Group A has 40 members and accepts the existing law without desiring any change. Group B has 30 members who would like a more restrictive law but who would prefer to keep the existing law rather than accept a new one that would completely prohibit in vitro fertilization. Group C has 30 members and is opposed to any type of in vitro fertilization and artificial insemination substituting for the conjugal act.

The representatives in Group C, many of who are Catholics, could legitimately present a new legal proposal prohibiting all of the practices that they have persuaded Group B to join in prohibiting. Once the new proposal has been voted into law by Groups B and C, with the opposition of Group A, the situation is substantially the following:

_ The parliamentary majority which upheld illicit artificial procreation so that it is still legal is formed by Groups A and B (70 members).

_ The parliamentary majority which suppressed the previously legal artificial procreation techniques was formed by Groups B and C (60 members).

_ Group C, containing Catholics, is only responsible for the disappearance from the legal order of several artificial procreation practices that, prior to the new law, were legal. If some legislators of this group either voted against the ameliorating proposal, or abstained, and due to their choices the more restrictive proposal did not pass, their conduct truly and efficaciously sustained the more unjust law at which moment they become jointly morally responsible for it.

_ Group B could have united with Group C in order to abrogate the whole law. They did not, however, desire to do so. Group B is therefore responsible both for the abrogation of several unjust practices as well as for the equally unjust practices which remain in force. A Catholic could not belong to this group.

The licitness for what Group C accomplished is not founded simply on the new law being more restrictive than the old. The foundation is that the moral object of their action consists in abrogating all of the unjust techniques possible to abrogate, without becoming really and substantially responsible for the unjust practices that remain legal. The legality of the practice is sustained in parliament by Groups A and B, but not by C. Group C is not substantially responsible for the negative aspects of the new law even if it seems so formally. The point to bear in mind is that the new law, while declaring unjust practices to be legal, does not permit an injustice that was previously prohibited. It does forbid many grave injustices that were previously allowed.

Yet another kind of situation can briefly be considered. Would it be permissible to promote a restrictive law in a country that, although it has no specific laws regarding artificial procreation, has an extremely permissive and unjust de facto situation? Many distinctions would have to be made in a case such as this. There can be de facto situations which are simply that, situations of fact which can be addressed by rigorously enforcing the existing norms of the juridical system. There are then other situations that are de facto only in appearance. When examined in light of the entire juridical order and health system they are in reality situations dealing with rights.This might occur, for example, if any improvements that the health authorities would like to make are impeded by the existing juridical order. The moral principles expounded above can be applied in cases such as these. However, this must be done with special precautions that are not possible to elaborate upon here.[13]

Lastly, there remains to consider situations involving scandal. Human actions in general, and particularly those of politicians, carry a cultural and symbolic influence. Public morality is extremely important in a culture such as ours based on communication. It is even more significant for the Church and Catholics who, as followers of Christ, must be “lumengentium.” Since scandal and confusion must be avoided whenever possible, it is necessary to anticipate the influence which one’s actions have on a symbolic level. When a politician or group of politicians has the task of partially abrogating an unjust law (according to one of the morally licit ways already considered) it is crucial that the true and substantial nature of the endeavor be explained to everyone who is willing to listen and understand. That which is done must be good in itself, but it must also seem good to everyone with good will who observes it. Ambiguous and equivocal messages must be avoided. [14] There are in fact two burdens to be assumed. In addition to the burden of a genuine struggle against one’s political adversaries, there is also the obligation to communicate lucidly and thoroughly with those who are not adversaries. Otherwise, misunderstandings and confusions will arise.Strenuous efforts must be made to avoid this.

In order to act with necessary clarity, it must be remembered that EV n. 73 intends to resolve a particular problem of conscience for members of a legislative organ in very specific, concrete circumstances. EV n.73 is not proposing an ideal. The ideal is that citizens and politicians with well-formed consciences will persevere so that the entire juridical and political order of their country becomes, not just less unjust and injurious than it was, but actually just. This is the object of their moral responsibility. It is only within the context of the fight for this ideal, which requires opposition to unjust laws, that the aim to partially abrogate unjust laws can be understood. This is the background of the situation proposed by EV n. 73. It cannot be interpreted as a form of compromise with injustice without completely distorting its meaning and intention.

[1] JOHN PAUL II, Encyclical Letter “Evangelium Vitae” On the Dignity and Inviolability of Human Life, 25-III-1995, n.73 (from hereinafter cited as EV).

[2] For a more detailed study of EV n.73 see an earlier work of mine:Evangelium Vitae 73:The Catholic Lawmaker and the Problem of a Seriously Unjust Law, «L’Osservatore Romano» 18-IX-2002 (English edition).

[3] Different types of civil legal injustices are examined in Ética General, 4th revised edition, Pamplona:Eunsa, 2001:271-273.

[4] For more on the problem of imperfect laws see: RODRÍGUEZ LUÑO, A., Leggi imperfette e inique, in PONTIFICIO CONSIGLIO PER LA FAMIGLIA (edited by), Lexicon. Termini ambigui e discussi su famiglia, vita e questioni etiche, Bologna: EDB, 2003: 523-527.

[5] Cf. for example KRIELE, M., Einfuhrung in die Staatslehre. Die geschichtlichen Legitimitätsgrundlagen des demokratischen Verfassungsstaates, 4th ed., Opladen:Westdeutscher Verlag, 1990.Pertinent to this is an interview with Norberto Bobbio published in the «Corriere della Sera» April 6, 1981, in which he says, “It stupefies me that the populace leaves the honor and privilege of declaring that one must not kill to believers”. Equally relevant is an article published by Bobbio in «La Stampa» May 15, 1981, in which he responds to the criticism, begun by Giorgio Bocca, of the interview against abortion cited above. Bobbio writes in the article, “It wouldn’t be useless to remind [Bocca] that the first great thinker who formulated the social contract thesis, Thomas Hobbes, retained that the only right those contracting to enter society did not renounce was the right to life”.For additional information, cf. PALINI, A., Aborto. Dibattito sempre aperto da Ippocrate ai nostri giorni, Roma: Città Nuova, 1992: 72-75.

[6] Cf. EV nn.72-74.On the moral doctrine regarding unjust civil laws see Thomas Aquinas, Summa Theologica, I-II, q.96, a.4, c.; Colom, E., – Rodríguez Luño, A., Scelti in Cristo per essere santi. Elementi di Teologia Morale Fondamentale, Roma: Apollinare Studi, 1999: 288-291; Günthör, A.,Chiamata e risposta. Una nuova teologia morale, 6th ed., Cinisello Balsamo: Paoline, 1989: vol. I, n. 360 e vol. III, nn. 230-243.

[7] PAUL VI, Encyclical Letter “Humanae Vitae” On the Regulation of Birth, 25-VII-1968, n.14.

[8] The encyclical goes on to explain that formal cooperation is: “Such cooperation as occurs when the action done, either in its very nature or by the form it takes on in a concrete context, qualifies as direct participation in an act against innocent human life or as a sharing in the immoral intention of the principal agent. This cooperation can never be justified, neither by invoking respect for another’s liberty, nor by the fact that the civil law has provided for it: one can never absolve oneself from the moral responsibility incurred by one’s personal acts for which each one of us will be judged by God Himself” (n.74).

[9] Cf. FINNIS, J.,Le leggi ingiuste in una società democratica. Considerazioni filosofiche, in JOBLIN, J., TREMBLAY, R. (edited by),I cattolici e la società pluralista. Il caso delle «leggi imperfette», Bologna: Edizioni Studio Domenicano, 1996: 99-114. Finnis correctly explains that the real meaning of the action of a member of a legislative body can be understood only in light of the procedural context and existing legality: «For example: a law of the type: “Abortion is legal until the sixteenth week” is an unjust law.However, a design of the law “Abortion is legal until the sixteenth week” could be proposed (a) in order to permit abortions which previous precedence prohibited, or (b) to prohibit abortions from the sixteenth to the twenty-eight week which previous precedence allowed.Choosing to support the design of law (a) is substantially different from choosing to support the design of law (b). Indeed, that which is under consideration—the object of deliberation in supporting the design of the law—is different in the two cases.In case (a) it consists in supporting abortion, in case (b) it consists in supporting prohibiting abortion, or at least all those abortions which the legislator has the opportunity in that moment to successfully prohibit» (p. 107).

[10] On this point, see CAFFARRA, C., La procreazione artificiale: aspetti etici e aspetti politici, a conference held February 8, 2003 at the Hospital of the Holy Heart of Negrar, Verona (the complete text is available at www.caffarra.it). It treats a delicate theme that cannot be thoroughly studied here. In brief, it is theoretically thinkable that in a certain country, due to its historical-cultural or religious tradition, the majority of citizens would not be likely to understand the negative ethical implications of substituting the conjugal act with artificial techniques in cases of sterility. In this hypothetical situation, it could perhaps not be contrary to the common good to have a law which forbids all artificial procreation practices which do not respect these three rights, but authorizes the practices which do respect them, such as valid artificial insemination and in vitro fertilization using a single embryo (this last one is a hypothesis which, for different reasons, is not currently accepted).

[11] These two principles in some way contain all of the other conditions.If a legislator supports an ameliorating proposal without his vote being determining (that is, necessary) to obtain the majority hoped for, or if it were possible to obtain total abrogation of an unjust law, it’s clear that he then also becomes responsible for the negative effects of the more restrictive law.It’s important to understand the guidelines for a vote to be determining.If it is possible to abrogate some articles of the preceding law without participating in the final vote on the resulting text, the final vote most be avoided. If the more permissive law would be abrogated even if the representative of whom we speak abstains or votes against it, he would generally have to abstain or, respectively, vote against it, in order to faithfully portray his convictions. This doesn’t mean, however, that he absolutely could not support the more restrictive law hypothetically given in this last instance.He could support it so that the great number of votes obtained by the more restrictive law would discourage other legislators from re-proposing a more permissive law within a few months. These, and other possible circumstances, must be prudently evaluated by representatives.

[12] For the technical-juridical aspects cf. EUSEBI, L., Corresponsabilità verso le scelte giuridiche della società pluralista e criteri di intervento sulle c.d. norme imperfette, in López Trujillo, A., Herranz, J., Sgreccia, E. (edited by),“Evangelium vitae” e Diritto (Acta Symposii Internationalis in Civitate Vaticana celebrati 23-25 maii 1996), Città del Vaticano: Libreria Editrice Vaticana, 1997: 389-406.

[13] It is particularly necessary to markedly distinguish this hypothesis from the one I have considered and rejected as the third scenario cited in my work:Evangelium Vitae 73: The Catholic Lawmaker and the Problem of a Seriously Unjust Law, «L’Osservatore Romano» 18-IX-2002 (English edition). «This is the situation of a country where abortion is illegal. Changes in public opinion, the position of political groups, and other factors make it reasonably certain that within a short period of time it will be impossible to prevent the approval of a very permissive law on abortion. The following problem then arises: would it be morally licit to take the initiative, with the intention of forestalling a further worsening of the situation, by promoting a law which decriminalizes abortion in just a few cases – rigorously defined – and which would also contain serious provisions aimed at preventing abortion?» I have held and still do hold that the answer must be negative.

[14] It must be clarified that although working to mitigate unjust laws is good and praiseworthy, the resulting more restrictive law which does not, at the very least, defend every single embryo and the three previously mentioned rights is unjust and one may not collaborate in its practical application.