Analysis: What to make of the CDF's hysterectomy 'responsum?'

Denver, Colo., Feb 26, 2019 / 15:01 pm

The National Catholic Bioethics Center issued a commentary this month in response to a December Vatican document on the moral liceity of hysterectomies in certain medical situations.

The commentary affirmed what other theologians have observed in recent weeks: that it is difficult to understand what situations the Congregation for the Doctrine of the Faith's hysterectomy guidance intended to address, and that in the often-complex world of speculative bioethics, considering the concrete applications of theoretical reasoning is essential to giving clear and helpful moral guidance.

When the Congregation for the Doctrine of the Faith issued in December a 'responsum' saying that hysterectomy is a licit act when a woman's womb is not suited for procreation and medical experts are certain an eventual pregnancy will bring about a spontaneous abortion before viability, many moral theologians expressed among themselves the need for clarity about the document's purpose.
 
Considered narrowly and on its face, of course, the CDF response is true: a hysterectomy is not, of itself, illicit.
 
However, to say that the response's implications are difficult to reconcile with the preceding Magisterium and with moral theology would be an understatement.
 
The CDF was asked if, "when the uterus is found to be irreversibly in such a state that it is no longer suitable for procreation and medical experts have reached the certainty that an eventual pregnancy will bring about a spontaneous abortion before the fetus is able to arrive at a viable state, is it licit to remove it"?
 
In its Dec. 10, 2018 response, published Jan. 3, the congregation responded "yes, because it does not regard sterilization." The response bears the signatures of Cardinal Luis F. Ladaria Ferrer, S.J., prefect, and Archbishop Giacomo Morandi, secretary of the congregation.

The National Catholic Bioethics Center wrote that "while the response affirms that removing a uterus that is incapable of carrying a child to viability is not per se a direct sterilization, it does not offer a comprehensive rationale and explanation – including a full and specific medical scenario – under which performing such a hysterectomy would, in practice, be morally legitimate."

The CDF said its response regards "situations in which procreation is no longer possible," and that it completes responses, "which retain all of their validity," given in 1993 to questions proposed concerning "uterine isolation" and related matters.
 
The 1993 responses stated that hysterectomy is licit when there is a grave and present danger to the life or health of the mother posed by the womb – e.g., it is chosen for a therapeutic reason, to curtail a serious present danger such as hemorrhage which cannot be stopped by other means.

However, the responses also said that hysterectomy and tubal ligation are illicit when they are intended "to prevent a future possible danger deriving from conception" or to avert "the risks of a possible pregnancy" when the womb is "foreseeably incapable of carrying a future pregnancy to term without danger to the mother," because these are direct sterilization. The NCBC's commentary summarized the 1993 responses as stating that hysterectomy "is not legitimate for the purpose of avoiding potential risks or dangers that would arise only if the woman were to conceive a child."
 
In an illustrative note accompanying its 2018 response, the CDF said the question it sought to answer is different from the cases of direct sterilization discussed in the 1993 responses because of "the certainty reached by medical experts that in the case of a pregnancy, it would be spontaneously interrupted before the fetus arrives at a state of viability."
 
The congregation added that the "object of sterilization is to impede the functioning of the reproductive organs, and the malice of sterilization consists in the refusal of children."
 
The CDF argued that hysterectomy in the case under recent consideration is different because in the recently considered scenario "it is known that the reproductive organs are not capable of protecting a conceived child up to viability," or that the reproductive organs "are not capable of fulfilling their natural procreative function."
 
Further, the CDF asserted that "The medical procedure should not be judged as being against procreation, because we find ourselves within an objective context in which neither procreation, nor as a consequence, an anti-procreative action, are possible. Removing a reproductive organ incapable of bringing a pregnancy to term should not therefore be qualified as direct sterilization."
 
The CDF's response would seem to say in effect that "procreation" has not occurred at the moment of fertilization, nor at any point prior to the possibility of the live birth of a child, and says directly that "the objective of the procreative process is to bring a baby into the world."
 
By defining procreation as the live birth of a child, the CDF seems to have allowed for a creative appropriation of its own 1975 document Quaecumque sterilizatio, which said that "any sterilization which of itself, that is, of its own nature and condition, has the sole immediate effect of rendering the generative faculty incapable of procreation, is to be considered direct sterilization … Therefore, notwithstanding any subjectively right intention of those whose actions are prompted by the care or prevention of physical or mental illness which is foreseen or feared as a result of pregnancy, such sterilization remains absolutely forbidden according to the doctrine of the Church."

It is unclear that Cardinal Franjo Šeper, who was prefect of the CDF in 1975, intended to say that "any sterilization which of itself, that is, of its own nature and condition, has the sole immediate effect of rendering the generative faculty incapable of protecting a conceived child up to viability, is to be considered direct sterilization."

Yet, as it defines procreation in this way, that is how Cardinal Ladaria's CDF seems to have retroactively read Quaecumque sterilizatio.

The difficulty in reconciling the 2018 response with the preceding magisterium lies in the object chosen when a woman whose womb is "irreversibly in such a state that it is no longer suitable for procreation and medical experts have reached the certainty that an eventual pregnancy will bring about a spontaneous abortion before the fetus is able to arrive at a viable state" seeks to procure a hysterectomy.
 
The question posed to the CDF in 2018 asked about the physical act of hysterectomy in a certain kind of scenario, but did not give the purpose of the hysterectomy. Ultimately, though, knowing the purpose is necessary for understanding what the moral object is.
 
On the other hand, the questions submitted to the congregation in 1993 all included the purpose of the hysterectomy, enabling identification of the moral object, by using the phrase "in order to ..."
 
The act of performing or procuring a hysterectomy is not per se evil – an organ, even a reproductive one, may be removed to preserve the life or well-being of the human organism of whom it is a part, as demonstrated by the liceity of hysterectomy when a woman faces a life-threatening hemorrhage which can be prevented by the womb's removal.
 
In that case, the moral object of the act is a directly therapeutic hysterectomy to preserve the woman's life, because the very existence of the womb – independent of any possible future pregnancy – is a threat to her life. The sterilizing effect of this act is foreseen, but not chosen.
 
In the case presented to the CDF in 2018, the end is not posed; rather, only the physical aspects of the act are presented.
 
However, the case presents a potential mother who could conceive, but not carry to viability, a child. In seeking a hysterectomy while not pregnant, what end could she be pursuing except to prevent a certain future danger to herself or to a child who is conceived? The womb is not described as itself posing any risk to the woman's health, which would necessitate its therapeutic removal, and indeed the CDF noted that in these conditions there are other options alongside hysterectomy, noting in particular "recourse to infertile periods or total abstinence."
 
The NCBC commented that its ethicists are not aware at this time "of concrete cases that would fit" the criteria given in the 2018 question submitted to the congregation, and noted that "the phrasing of the question and its response, as well as several linguistic formulations in the introduction and illustrative note, raise questions about how to interpret and apply the document."
 
According to the NCBC, the 2018 response "does not overturn any previous Church teachings on direct contraception and direct sterilization or on the circumstances in which hysterectomy is immoral as a form of direct sterilization," nor does it "reject the medical reality of the existence of human beings from the moment of fertilization."
 
Nor does it "reject the moral reality … that 'the human being is to be respected and treated as a person from the moment of conception,'" or say that "women who are unable to carry a child to the point of viability are, by that fact, unable to conceive or gestate a new human child in the womb."
 
"By reaffirming the validity of the 1993 responsa, the 2018 document also reaffirms the Church's perennial condemnation of direct sterilization," the NCBC wrote.
 
The 1993 response "identified the nub of the moral problem: one may not perform any action that results in sterility in order to prevent dangers that would arise only in the event of pregnancy." Commenting on this response, the NCBC said that "The lack of a pathological problem in the uterus itself (apart from future pregnancy) thus implies that its removal is a direct sterilization when the goal is to avoid risks associated with pregnancy. The operative words are not 'risks to the mother' but 'risks … deriving from a possible pregnancy': avoiding risks to the possibly conceived child would not change the moral assessment, since those risks are, by definition, 'deriving from a possible pregnancy.'"
 
"Causing sterility in order to prevent" dangers that would arise only in the case of a pregnancy "constitutes direct sterilization," wrote the NCBC.
 
"Given this, the 2018 responsum does not allow for hysterectomy in cases where its purpose is to prevent dangers, whether physical or psychological, whether to the mother or to the child, that would be expected to arise as a result of a possible future pregnancy."
 
The NCBC added that "the removal of the uterus only serves the end of preventing danger to a child by impeding the natural effects of the sexual act: the conception and gestation of a child. A hysterectomy in order to avoid dangers to the child that would arise during pregnancy is therefore immoral in accordance with the 1993 responsa and the broader moral tradition."
 
Turning to "real-world situations and applications" of the response, the NCBC drew three conclusions from the document and the moral tradition on which it draws. These are: hysterectomy is licit if the womb itself poses a danger to the woman; if no danger arises from the womb in a non-pregnant state, and there is no physiological benefit from its removal, there is no therapeutic rationale to justify its removal under the principle of totality; and if a danger would arise only in the case of pregnancy, "whether to the woman or to the child, it would be unethical to perform a hysterectomy in order to avoid such a danger, following the second response of the CDF in 1993."
 
Given these three conclusions, the NCBC found that the 2018 response "would seem to apply only in cases" in which the womb itself poses no danger to the woman; it is morally certain that a child would miscarry before viability; and there is not an intention to avoid dangers to life or health that would be expected in the case of a pregnancy.
 
"This means that any dangers to the health or life of the woman expected to arise as a result of future pregnancy, and any dangers to a potentially conceived child, should play no role in establishing a therapeutic rationale or 'proportionate reason' for performing a hysterectomy in the nonpregnant state," wrote the NCBC, adding that this "leaves open the question about what medical conditions might satisfy the criteria of the 2018 responsum."
 
The center said that among the scenarios that do not fit the response's criteria are hysterectomy performed in order to avoid several kinds of potential damage to the womb, to avoid "serious congenital defects of a child", or to avoid "prenatal loss of a child." It added that it "looks forward to further clarification regarding medical cases that would unambiguously fulfill the criteria outlined in the responsum."
 
"Nothing contained in the 2018 responsum can be properly understood as modifying previous Church teachings on the topics of contraception and sterilization," the NCBC concluded, "and the document does not imply any rejection of the dignity of the human being from the moment of conception or any denigration of the real participation of the man and woman in the generation of a new human life starting from that moment."
 
So, what to make of the response? It is undoubtedly safe to understand the document in light of the preceding Magisterium, knowing that an act with a sterilizing effect cannot be chosen for its sterilizing effect.
 
A matter of concern to some theologians, however, is how this response might be cited in the future, with its definition of procreation focused on live birth and its seeming opening of the door to a "pastoral" permission for women who can conceive children without being able to carry them to viability to procure hysterectomies to avoid further miscarriages.

Whether further clarity is forthcoming remains to be seen.