SPECIAL CONTRIBUTION. On assisted reproduction, religion, and civil law. Howard W. Jones, Jr., M.D. and Susan L. Crockin, J.D.

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1 FERTILITY AND STERILITY VOL. 73, NO. 3, MARCH 2000 Copyright 2000 American Society for Reproductive Medicine Published by Elsevier Science Inc. Printed on acid-free paper in U.S.A. SPECIAL CONTRIBUTION On assisted reproduction, religion, and civil law Howard W. Jones, Jr., M.D. and Susan L. Crockin, J.D. Jones Institute for Reproductive Medicine, Eastern Virginia Medical School, Norfolk, Virginia Received September 7, 1999; revised and accepted November 2, Reprint requests: Howard W. Jones, Jr., M.D., The Jones Institute for Reproductive Medicine, Eastern Virginia Medical School, 601 Colley Avenue, Norfolk, Virginia (FAX: ) /00/$20.00 PII S (99) When the IVF program began at Norfolk, a situation that was completely unanticipated and unplanned for arose. When the plans to begin the program had been nearly completed, the superintendent of the hospital, Mr. Glenn Mitchell, called and said that he thought the hospital should apply to the State Health Department for a Certificate of Need that was required of any hospital that was beginning a new program. He indicated that this was a routine matter, and he thought it could be handled through an administrative channel that was used for simple things in place of the full-scale public hearing channel that he did not think would be required because there certainly was no other program in the United States. However, the agenda of the Hearing Board, according to routine, appeared in the public press with the result that at the administrative hearing there were very severe objections to the program from a number of people under the banner of Right-to-Life. As a result of this, the certificate was denied through the administrative channel, but the hearing officer indicated that there was no reason why the hospital could not apply through the public hearing route. Accordingly, on Halloween Day of 1978, a public hearing was held beginning at 2:00 P.M. lasting almost until 8:00 P.M. The Right-to-Lifers were there in force, but after that hearing and a number of subsequent hearings, a Certificate of Need was granted and the program was initiated at the beginning of However, even after the program began, there were public protests by marchers with placards in front of the hospital and numerous newspaper accounts of the concerns expressed by the protesting group. Even after the first baby was born, after which there was a news conference, there was a protester on the street with a sandwich board castigating the program and giving out pamphlets about the abortions that we were causing. Although a variety of arguments were used, the nub of the protests was the allegation that we were really causing abortions because we transferred a large number of four- to eight-cell developing preembryos that did not implant and, therefore, must be aborted; thus, we were parties to causing abortion. All of this was a surprise to us. In our own minds, we had considered that we were simply extending our efforts to overcome infertility. These efforts had been ongoing for almost 40 years during our activities at the Johns Hopkins Hospital. The extent and vigor of the protest, however, required us to think about the allegation, which, in essence, boiled down to the question of whether we were causing abortions or simply observing the inefficiency of human normal reproduction that results in the implantation and development, on average, of only about one of every five fertilized eggs. In thinking about these matters, it is impossible to escape the question of whether we are dealing with human beings and the question of when does a human life begin. The results of our rumination about these questions are discussed below. While all of this was going on, and after the program was well underway and several 447

2 children had been born, early in 1984, both my wife and I in the same mail received individual letters postmarked, Rio de Janeiro, Brazil and on the letterhead of the Pontifical Academy of Sciences. The letter was signed by Professor Carlos Chagas. Professor Chagas, in his letter, indicated that as President of the Pontifical Academy of Sciences, he was writing to inquire if we were to receive an invitation from the Vatican would we be prepared to meet in the Vatican Garden in November 1984 to discuss the clinical and scientific aspects of IVF so that the moral theologians in the Vatican could make a recommendation to the Holy Sea about the licitness or illicitness of IVF. I read the letter several times, because I was very suspicious of its genuineness. However, Rio de Janeiro, Carlos Chagas, Chagas disease was described from Brazil could there be any relation? The Pontifical Academy of Sciences I had never heard of this organization and the Vatican Garden in November it seemed like a chilly place for a meeting. Before replying to this communication, I showed the letter to several friends, including several Roman Catholic friends, including the Chaplain at the DePaul Hospital of Norfolk. They all said that it was a perfectly legitimate letter, that the Pontifical Academy of Sciences had been established in 1603 during the Galileo affair to advise the Holy Sea about scientific matters. It gradually became inactive but was refounded in 1936 by Pius XI who referred to it as the church s Senatus Scientificus to consider scientific matters of all kinds and to prepare documents for use of the Vatican. We were urged to accept this invitation. We, therefore, did reply to Professor Chagas that in the event we were invited, we would be honored to accept the invitation. In due course, we received the invitation directly from the Vatican and did meet at the Pontifical Academy of Sciences in November The Pontifical Academy of Sciences proved to be housed in an absolutely beautiful small renaissance palace located in the Vatican Garden. The third active gynecologist in the group was Professor Rene Frydman of Paris who was quite astonished at the selection of the gynecological experts. He pointed out that he was a Jew, Georgeanna was a woman, and I was a non-roman Catholic. He thought that the adjective, motley applied to the IVF consultants. The remaining nine participants were mostly moral theologians from within the Vatican, and the meeting was chaired by the President, Professor Carlos Chagas, who was Professor of Pathology in Rio de Janeiro and indeed the son of the Chagas who had described Chagas disease, a parasitic disease that is common in the tropics. At the beginning of the meeting, Professor Chagas explained that we were in search of the truth. He said, these walls have no ears, and the discussion, therefore, should be very free. However, there was a microphone before each seat and he said, Oh, yes, what you say will be recorded, transcribed, and circulated to the members of this commission for accuracy and then printed for the use of the Holy Sea. The first 3 days of the meeting were taken up by a presentation of the gynecologists of exactly how the in vitro process was performed. It took 3 days because we were frequently interrupted by the moral theologians about the details of the procedure. At the beginning of the 4th day, Professor Chagas polled each one of the moral theologians and asked them if they would consider what they had heard as being licit or illicit. All moral theologians present, except one, indicated that they had no objection to anything that they had heard. Most of them said that at the pastoral level if they were approached by a parishioner and asked if using IVF was a sin, they would tell the parishioners that they had not sinned and that they should proceed with the process. There was, however, one dissenter, Monsignor Carlos Cafarra, whom we had met at a meeting in Bari, Italy, in Monsignor Caffara was a papal appointee to the presidency of the John Paul II Society for Marriage and Family, and he objected to the procedure as being outside the bonds of marriage, a position he had explained to us in Bari the year before. This led to a lively discussion of exactly the meaning of marriage and the achievement of pregnancy, and it came down to a statement by Monsignor Caffara that conjugation, i.e., intercourse, after marriage was the only legitimate way to achieve pregnancy and that if it were achieved otherwise it would be outside the bonds of marriage. In the discussion among the moral theologians, Professor Chagas pointed out that he had the left ear of the Pope, but said Monsignor Caffara had the right ear of the Pope. The Vatican experience and the protests in the streets of Norfolk made it clear that there was a segment of the population that believed that in vitro programs were operating in unacceptable areas. Soon after the Vatican meeting, it was, therefore, suggested to the President of the American Fertility Society that it might be appropriate for the Fertility Society to undertake a study of these matters and to make some public statement and perhaps to suggest certain rules of conduct for programs of IVF. As a result of this, I was asked to form a committee to study this matter and this resulted in the publication by the American Fertility Society of a document, Ethical Considerations of the New Reproductive Technologies, a 90-odd page effort that was published as a supplement to Fertility and Sterility in September 1986 and revised in 1990 and Three years after the Vatican meeting in 1984, the congregation for the Doctrine of the Faith issued a document, Instruction on the Respect of Human Life and Its Origin and on the Dignity of Procreation. The document is often referred to as donum vitae. The Instruction rejected IVF and homologous artificial insemination, because they involved 448 Jones and Crockin Reproduction, religion and civil law Vol. 73, No. 3, March 2000

3 the separation between the goods and the meaning of marriage. Because of the conflicting conclusions of the two documents, i.e., the AFS Ethical Committee and donum vitae, the Ethics Committee ( ) of the American Fertility Society was convened and reconsidered the Fertility Society guidelines in the light of the instruction. The committee agreed as follows: The question can be raised about the procedure used by the Congregation of the Faith to derive its conclusions from the stated premises. Thus, while stating that, the individual integrally and adequate considered is to be the basis of the moral judgment, the fact is that most conclusions are based on and referred to past Catholic statements. For reasons set forth previously, the committee reaffirmed the finding of the committee that basic in vitro fertilization with homologous gametes is ethically acceptable. In addition to the reply of the AFS, my wife, Georgeanna, replied in an open letter to the Vatican, entitled, Reply to the Vatican: Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation. In this document, she indicated that if the ultimate goal and meaning of marriage was sexual intercourse, that the time had come, in her opinion, to redefine the goods and meaning of marriage to fit the contemporary understanding of reproductive physiology. The open letter came to the attention of Dr. Giuseppe Benagiano who was then Professor of Obstetrics and Gynecology at the University of Rome. Professor Benagiano was so impressed by the letter that he made a trip to Norfolk and discussed with Georgeanna the possibility of having a second conference that in the event was entitled, The Evolution of the Meaning of Sexual Intercourse in the Human. This meeting was held at the Palazzo Farnese in Caprarola, Italy, on October 19 21, There were some 22 papers presented with discussion and although it was not sponsored by the Vatican, Cardinal Fiorenzo Angelini participated in the discussion as did the Honorable Claudio Martelli, the Minister of Justice of the Italian government. Many, many aspects of intercourse in animals and humans were discussed, but perhaps the nub of the discussion centered around the fact that it was a possibility that the Vatican was currently using what amounted to barnyard physiology. This means that the concept that intercourse is intended entirely for reproduction derives from observation of those animals who exhibit heat and give an external sign of ovulation during which period the female will accept the male and at no other time. On the other hand, in the human, the point was made that conjugal love must be changed to conform to the scientific knowledge of the dual function of intercourse. In the human, intercourse has a unity function of spiritual love and physical pleasure and serves not only for reproduction but also for successful family formation and rearing. The point was made that conjugal love needed to be redefined, as the union of man and woman committed to one another in spiritual love for life and physically through vaginal intercourse and hopefully, but not necessarily, for reproduction. One of the puzzling questions in this whole arena was how it came about that several religious traditions had considered it appropriate to assert jurisdiction in reproductive matters. This question is even more puzzling when it is realized that such jurisdiction is not exercised in any other aspect of medicine, except perhaps at the other end of the spectrum, namely, at the termination of life. I stumbled on an answer to this problem in a book published by John Paul II in 1994, titled Crossing the Threshold of Hope. The title does not seem to describe the content of the book, but in there, John Paul II points out that men turn to religion to solve the mysteries of life. Specifically, he said, men turn to religion to solve mysteries, the meaning and purpose of life, good and evil, the origin and purpose of suffering... happiness, death,... theorigin and the destiny of our existence. Although this is a Roman Catholic statement, other religious traditions as well have given opinions about the licitness of IVF. It is probably fair to say that the nature of the mystery of our origin is quite different to the theologian who likely thinks in terms of the origin of the human spirit, i.e., personhood, in contrast to the nature of the mystery to the biologist who studies to elucidate the laws governing biologic action and is mystified only by the origin of these immutable laws. ACQUISITION OF PERSONHOOD We have considered two (there were other) replies to donum vitae. As previously mentioned, we were surprised that the magisterium of the Roman Church brushed aside the argument that IVF was wrong because it resulted in abortion, which was the principal argument of the original protesters in Norfolk. However, because the abortion issue was, and still is, a consideration in assisted reproduction in the minds of many, it cannot be ignored. Thus, an important theme to the licitness of IVF to the man in the street, if not to the Vatican, is whether it facilitates abortion. Indeed, in the larger sense, the answer to this question is related to one s attitude toward elective termination of established pregnancies. And so, it is necessary to consider the key question of when during development is personhood acquired. What is a person? According to Webster s Collegiate Dictionary, It is a human being, an individual. The individual personality of a human being, one that is recognized by law as the subject of rights and duties. Although a discussion of the issue of the origin of per- FERTILITY & STERILITY 449

4 sonhood can be widely applied, reproductive endocrinologists, of which I am one, are concerned chiefly with this issue during the very early development of the preembryo. Our discussion, therefore, will be limited to the preembryo, which can be defined as that stage of development beginning with the completion of fertilization and ending with the development of the primitive streak. This occurs on about the 14th day of development. There has been much discussion as to whether this interval of development deserves a special status. I believe in the affirmative. It is an interval during which several aberrations of development can occur. It is not until the appearance of a single primitive streak that biologic individuation is guaranteed. Before that time, twinning, or other abnormalities, such as development of a hydatidiform mole or chorioepithelioma can occur. Furthermore, several studies have indicated that abnormal development is a common observation during this period. In addition, it is during this interval that most of the development concerns those products, such as the membranes and placenta, which are discarded at birth, whereas the inner cell mass, which is the anlagan of the real embryo is a minimal part of development during this era. Is the Preembryo a Person? Although modern thought considers this issue in terms of the acquisition of personhood, ancient writers and the medieval church fathers spoke of ensoulment. The concept of ensoulment is seldom used in contemporary discussion, but the older concept of ensoulment is essentially the same concept as the acquisition of personhood, which is used more contemporaneously. Webster s Collegiate Dictionary defines the soul as, the immaterial essence animating principle or actuating cause of an individual life. The acquisition of personhood or ensoulment in classical ecclesiastical terms has been considered by at least three disciplines of our culture. Canon Law according to the classical tradition according to the current tradition Civil Law Natural Reason Canon Law The Classical Tradition The classical tradition goes back to Aristotle and perhaps even before. Aristotle in de anima indicated that each individual acquired in sequence three different souls. First, was a vegetable soul, then an animal soul, and finally at birth a rational soul. Aristotle specified a time sequence. For males, an animal soul was acquired at about 40 days of development, and for females, at 80 days of development. This concept of multiple souls was adopted by the early church fathers and is noted in the writings of St. Thomas, St. Augustine, St. Jerome, and many, many others. Gratian (circa 1140 a.d.) in his decretum summarized the matter. Gratian, who is thought to have been a monk who lived in Northern Italy, apparently codified several revisions of canon law having to do with a variety of ecclesiastrical matters but particularly with regard to abortion. His summary, therefore, is very relevant and authoritative to the matter at hand, as of the 12th century. According to Gratian, abortion is not murder if the soul has not been infused. In other words, he accepts the notion that the soul has not been infused until some point during development. Gratian offers as proof of his statement: [1] the statement of St. Augustine about destruction of the nonanimated fetus; [2] the body must be formed to accept the soul, as for example, Adam; and [3] the statement of St. Jerome saying murder requires a formed fetus. There can be little doubt that the early church fathers and the fathers of the middle ages clearly accepted the notion that ensoulment did not occur until some time during development. We can interpret this in modern terms as saying that the preembryo, and probably the embryo, was not considered by these early church fathers as being ensouled, i.e., they were not persons. Although the above discussion relates to the transmission of Aristotelian views to Christendom, it is relevant to note that the understanding of classical Greece can also be found in the Islamic tradition, as well as others, either from classical Greece or of independent origin. These derivations are wonderfully summarized in The Human Embryo: Aristotle and the Arabic and European Traditions by Father Gordon Dunstan, Professor Emeritus of Moral Social Theology, University of London and Research fellow, University of Exeter, as well as by others. Dunstan stated, The Quran left us no doubt that the fetus undergoes a series of transformations before becoming human (p. 38). Canon Law The Current Tradition All living people have been born and educated in a world in which the tradition of canon law of the Roman Church states that ensoulment occurs with fertilization. This has, therefore, been referred to as the current traditional concept. This concept of personhood was powerfully underlined by Pius IX who convened the 20th Ecumenical Council of the Roman church, commonly referred to as Vatican I, which was in session from 1869 to The approval of the content of several of the popes encyclicals and other writings by Vatican I had the effect of establishing or modifying canon law, which sets forth the basic laws of governance of the Roman church. It is not the goal of this article to detail the many laws (canon) that were promulgated by Vatican I, but it is relevant to mention the contents of Pastor aeternus, which declared that in matters of faith or morals, the Pope could speak with infallibility and Apostolicae Sedis in which punishment is outlined for those who commit 450 Jones and Crockin Reproduction, religion and civil law Vol. 73, No. 3, March 2000

5 certain crimes. The highest punishment of excommunication is prescribed for perpetrators of several acts, including those seeking to procure (provide/bring about) abortion if the desired effect ensues. The significant aspect of Apostolicae Sedis is that it no longer recognized a period during embryonic development before which excommunication did not apply. This has generally been interpreted and often cited as the concept that resulted in the modification of canon law to mean that ensoulment, i.e., personhood was acquired with fertilization. This matter has been thoroughly reviewed in The Crime of Abortion in Canon Law by Father John Houser, as well as others. It is important to recognize a distinction between church legislation (canon law) and church practice as enunciated by clergy in good standing within the church. This is especially true at the pastoral level, but at other levels as well. This view is clarified in Health and Medicine in the Catholic Tradition by Father Richard A. McCormick. It is astonishing to realize that it was as recent as 1869 and after 18 centuries of the classical tradition that canon law concerning punishment was altered from the Aristotelian teaching, which was adopted by the early church fathers to what we now regard as the traditional view of the Roman Catholic and several other religious traditions. Civil Law Generally speaking, American civil law has not recognized the early conceptus as a person or entitled to the full panoply of rights associated with personhood. Before medical technologies introduced the possibility of extracorporeal preembryos, American jurisprudence addressed rights-related issues pertaining to a conceptus or fetus largely in the context of procreative or abortion-related privacy rights of the adults seeking to create or not create a child. As a long line of United States Supreme Court cases made clear, the law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education (Planned Parenthood of Southeastern Pennsylvania vs. Casey, 1992). The Supreme Court ruling in Roe vs. Wade clearly established the preeminent right of a woman to terminate a pregnancy up to the point of viability, yet at the same time acknowledged the state s important and legitimate interest in protecting the potentiality of human life. (1973) The status of preembryos has been the subject of only a handful of lawsuits, all civil suits involving cryopreserved embryos and their disposition after a change in circumstances of the adults involved with them. The three leading cases are Davis vs. Davis (1992), York vs. Jones (1989), and Kass vs. Kass 91 N.Y. 2d 554 (1998). In addition, a growing number of divorce courts are being confronted with these issues, including at least four in Illinois, New Jersey, and Texas and one currently pending on appeal in Massachusetts. In Davis, divorcing couples were unable to agree whether the preembryos should be given to the wife to attempt to conceive and bear a child or children or to the husband to destroy them and avoid unwanted parenthood. The trial court considered the preembryos as persons and awarded custody to the wife. The Supreme Court of Tennessee reversed and squarely rejected any characterization of preembryos as persons under either state or federal law but concluded that they occupy an interim category that entitles them to special respect because of their potential for human life. In the second case, York vs. Jones, a 1989 case involving transportation of a preembryo from one clinic to another, the court considered the preembryos as chattel, that is, possessions in an inanimate sense, belonging to the creators of the embryo and not the clinic holding the embryo. Finally, in Kass, the New York court concluded that a couple s prior expressed wishes in this quintessentially personal, private decision, as evidenced by their written cryopreservation agreement, should control. Although these courts have differed somewhat in their characterization of preembryos and over who should have the right to control them, no court has recognized as persons or entities entitled to the full panoply of rights associated with personhood or even to those more limited rights associated with viable fetuses. U.S. civil law addressing personhood has considered the responsibilities of personhood and the rights appertaining thereto. In this connection, it has recognized a gradation of rights and responsibilities, assigning arbitrary times when rights and responsibilities can be exercised. For example, one does not qualify for an income tax deduction until after birth. One has to be a certain age to drive a car, or to vote, or to be married without permission, etc. Natural Reason Natural reason accepts the fact that biology is unable to identify a point in the development of an individual that signifies the acquisition of what we define as personhood. It furthermore rejects the external infusion of an essence, which can be defined as personhood. Personhood, therefore, develops in a Darwinian sense, i.e., slowly with biological development. This point of view recognizes that, for practical purposes, it is necessary for society to set certain arbitrary times when a person may acquire rights and accept responsibility for various acts, as provided for in civil law, which in an ideal society should express the will of the people and generally does so in a democratically organized society. This point of view is elegantly set forth in Darwin s Dangerous Idea: Evolution and the Meanings of Life by Daniel Dennett, as well as others. A FINAL THOUGHT There is controversy about almost every point discussed above. That controversy whirls in the heads of patients, FERTILITY & STERILITY 451

6 doctors, nurses, and medical support staff, and in the heads of religious counselors, ethicists, philosophers, teachers, legislators, lawyers, judges, and all those who attend cocktail parties, to mention only a few. An examination of the roots of our belief may help in converting controversy to consensus. One thing seems clear: medical caregivers of all levels need to understand why they believe what they believe so that they can discuss the beliefs of their patients with the goal of resolving them to allow reproduction to take place by whatever means on a rational basis. 452 Jones and Crockin Reproduction, religion and civil law Vol. 73, No. 3, March 2000