Pro Life, Civil Law and Individual Duty
Cardinal Dionigi Tettamanzi
Paradigm for Hierarchical Involvement in the Social Order

On Saturday and Sunday, 11-12 June, 25.9 percent of Italians nationwide voted in the referendum for the abrogation of Law 40/2004 that strictly controls "medically assisted procreation", including artificial fertilization. To change this law, over 50 percent had to participate in this vote. Consequently, the referendum failed.

The Italian Bishops had advised Catholics to abstain from voting. Citing Cardinal Camillo Ruini, Vicar of Rome and President of the Italian Bishops' Conference, Cardinal Dionigi Tettamanzi of Milan explained in an article first published on 25 May in the Italian edition of L'Osservatore Romano that the current law, though imperfect and in need of future improvement, at least "has the merit of safeguarding certain essential principles and criteria".

The position of the Italian Catholic Church on the referendum was that Christians, to protect life, should abstain from voting; Cardinal Tettamanzi observed that this was in this particular case a legitimate decision and not a matter of political disengagement.

His article serves as an effective teaching tool regarding the possibility of hierarchical involvement in critical moral issues affecting our day, and the role that Bishops must exercise in informing the Catholic faithful of their responsibilities in these matters.

In Italy, the debate on the upcoming referendums for the abrogation of Law 40/2004 is growing more and more heated. What is worrisome is not so much the "tone", which makes it difficult to have an open and explicit confrontation that is also responsible and calm, as are the "reasons" adopted to uphold certain positions.

In this context, I have several times wondered — on the one hand, because of my pastoral responsibility and on the other, because of my approach as an academic specialized in bioethical problems — whether it might not be useful to present in a simple way a few thoughts on human life, especially in its early stages.

My starting point is the affirmation that human life is always a good. Indeed, it is the most precious good, because it constitutes the basis of every other good that human beings can enjoy on this earth: freedom, love, peace, health, development, culture, interpersonal relations, prosperity, the religious experience, faith and even other goods.

In particular, the life of each human being is an unconditional good with an exalted individual and social value, unequalled among the living. "The life which God gives man", John Paul II wrote, "is quite different from the life of all other living creatures, inasmuch as man, although formed from the dust of the earth... is a manifestation of God in the world, a sign of his presence, a trace of his glory" (Encyclical Evangelium Vitae, n. 34}.

With this reference to God, I am indeed speaking as a "believer" but at the same time as a "man", since life certainly has a value "which every human being can grasp by the light of reason; thus it necessarily concerns everyone", believers and non-believers alike (ibid., n. 101). I am therefore appealing to human reason, a reason open to the "whole" of reality and thus even dares to wonder about "transcendence".

This is the basic perspective that will guide our reflection, which aims to define how to evaluate human life in its initial stages, and particularly, what responsibility we should assume, especially with regard to medically assisted procreation, controlled in Italy by Law 40/2004.

This brings us face to face with a highly complex and specialized medical, ethical, social and legal issue on which we would like to offer some reflections that I believe to be serious and well-founded, but that claim neither to be exhaustive nor to have an extremely analytical approach. My intention is more modest but hopefully useful: I would like to share, not only with believers but with every human being, certain "reasons" concerning the good of human life and the contribution to the common good that we are all called to make.

Pro life: duty for all

Accepting, safeguarding and promoting human life cannot be considered merely the prerogative of a few individuals, associations or institutions.

Rather, it is a precise moral duty for each one of us — excluding no one — to take on with awareness and to discharge with responsible, clear and firm determination.

It is also a precise civil duty, since accepting, safeguarding and promoting human life is the basic, indispensable condition for achieving the common  good, to which each one of us is called to make our own contribution (cf. Evagelium Vitae, n. 72).

In particular, the social dimension and efficaciousness of this personal commitment, depending on the circumstances, can require various concrete expressions, such as participation an initiative, explicit dissent or merely abstention: all these actions must always comply with what is permitted and legal and with the observance of the procedures with which a nation has equipped itself to achieve the common good through the cooperation of its citizens

Since the good of life is the most common good — because it concerns every individual and, at the same time the whole of society — it follows that safeguarding this intrinsic and integral good of the person from any attempt exploit it, as do certain aims or projects regardless of their importance, is a necessary service to human solidarity.

Gospel of life: for everyone

For this reason the Church, who called by her Lord to serve "the whole" of the person and "every" person, especially when that person is little, we and defenseless, supports those who welcome, nurture and care for human life from conception until death.

In fact, how could the Christian community build peace between nations, help the poor, defend the oppressed and persecuted, teach young people values and uphold authentic cultural and social advancement if it were not at the same time committed to defending and promoting that fundamental, indeed basic, good, which is human life itself?

Moreover, the fact that certain fundamental rights and duties are also proposed and defended by the Church in no way diminishes or, even less, removes their full civil legitimacy and authentically "secular" —that is, non-confessional — nature of the commitment of those who support initiatives designed to safeguard and promote those very rights and duties "which innately belong to the person, rights which every positive law must recognize and guarantee" (Evangelium Vitae, n. 71).

Among these, the issue of human life and its defense and promotion should also be listed. This is not a prerogative of Christians alone but is presented "for everyone", since, "although faith provides special light and strength" for this defense and promotion, as we read further in the Encyclical Evangelium Vitae, "this question arises in every human conscience which seeks the truth and which cares about the future of humanity" (n. 101).

In this sense, the possible cultural and political marginalization of a civil action, in itself legitimate, aimed to promote a juridical order that is fairer and more consistent with human life and dignity, if only because believers identify with it — totally or partially —, would constitute a serious form of ideological intolerance to the contribution of Christians to building society. And democracy itself would suffer for it!

Civil law, moral norm

The safeguarding and care of human life — true moral and civic duties that are inalienable — begin with conception and early embryonic development. During this phase of growth, human life is at its weakest and in need of extreme care. A lack of protection on the part of parents and of attention on the part of doctors or a lack of social and legal protection could entail the risk of irreparably damaging or even destroying the life of the infant conceived.

Today, this risk is increased by the practice of in vitro or artificial fertilization — which is one of the forms of medically assisted procreation — and whose dissemination also in our Country has led to the introduction in Italian legislation of a law that regulates the practice with respect for the "rights of all those involved, including the infant conceived" (Law 40/2004, art. 1, c. 1).

We will now focus our assessment on this specific civil law as a necessary premise for the discussion on the current referendum.

The first essential point concern is connection and distinction that exist between a civil law and a moral norm.

There is a connection between legality and morality: with regard to the reciprocal rights of the individual person and of society, on the one hand it is the task of morality to enlighten consciences and on the other, it is the task of law to clarify and coordinate conduct. Actually, the State is not the original source of human rights but dutifully guarantees them: just as it does not create them, it cannot destroy them. Its precise task is to recognize, protect and promote these rights for the good of all.

In the meaning explained above, there is a connection. However, there is also a distinction between the moral norm and the civil law, the latter whose purpose is solely — and this is the root of both its dignity and its limitations! — to assure the common good.

It follows that "in no sphere of life can the civil law take the place of conscience or dictate norms concerning things which are outside its competence" (Evangelium Vitae, n. 71).

The civil law, therefore, "cannot expect to cover the whole field of morality or to punish all faults. No one expects it to do so. It must often tolerate what is in fact a lesser evil, in order to avoid a greater one" (Congregation for the Doctrine of the Faith, Declaration on Procured Abortion, n. 20).

This is the so-called principle of civil tolerance or lesser evil, by virtue of which civil law is not obliged to prohibit any evil because it is evil, but has the possibility or even the duty to "tolerate" or "permit" certain evils which in the social and cultural situation today indeed prove to be "evil" but, in comparison with other evils, appear merely as "lesser evils".

In this regard, St Thomas Aquinas showed that were human law to claim to prohibit all that is contrary to natural law, it would be responsible for bringing forth even worse evils: deteriora mala prorumperent!

In this perspective one can understand the opinion that Bishops have frequently expressed concerning Law 40/2004: "Many aspects of this law do not correspond with the ethical teaching of the Church, but at least it has the merit of safeguarding certain essential principles and criteria in a matter in which the specific dignity and certain fundamental rights and concerns of the human person are at stake" (Cardinal Camillo Ruini, Prolusione al Consiglio Permanente, 17 January 2005, n. 6).

An imperfect law

This opinion on Law 40/2004, which technically qualifies it as an "imperfect law", is justified on the basis of its own normative content.

This law excludes the possibility of generating human lives, of which not all are individually destined in the first days of their existence to be implanted in their own mother's womb.

Furthermore, it does not permit recourse to experimentation on embryos, which would de facto deprive them of life and trample on their inviolable dignity as human subjects.

Consequently, such a law objectively constitutes an important step in the preservation of human life in its initial stages, in comparison with the previous so-called far west.

The law also recognizes that the life of any person — no matter how small and weak or how precarious his condition, as in the case of embryos preserved by freezing — cannot be sacrificed for the purpose of restoring health to another life.

In this way, the norm in force in no way deprives scientific research on the treatment of certain diseases or the valuable contribution offered by study on stem cells and pre-differentiated cells, because, as has been shown, biological sources are available today that provide an alternative to the human cells of the embryo prior to its implantation in the uterus.

Further, this law excludes heterologous artificial fertilization and thereby protects the fundamental role of the only and reliable bonds in the parent-child relationship that have been rendered precarious or uncertain by the use of genoblasts, sperm or ovocytes that do not come from the couple who seeks medically assisted procreation.

Lastly, the law does not admit that the conceived infant, prior to its transfer to the uterus, be subjected to genetic screening or interventions other than for the purpose of protecting the health and development of the embryo itself. It is hoped in this way, in the context of extra corporeal fertilization, to prevent the introduction of the practice of eugenic selection and discrimination between fetuses affected by disease and those considered "healthy".

As can be seen, it is not difficult to understand that these measures respond to fundamental and rational considerations on the nature and task of medicine with regard to procreation. Medicine must not facilitate the deliberate and preordained fragmentation of the unitive-somatic, affective and social relationship between the one who begets and the one who is begotten, nor must it condition the development of the fetus according to its state of health, but must make conception possible when it has been prevented by one or more factors of sterility.

Modification would diminish

The referendum concerns this law, briefly outlined above, and the answers to the questions will establish whether to "modify" or to "keep" this law in its present juridical form.

From the moral standpoint — that of a morality which respects what has been said concerning the connection-distinction between a moral law and a civil law — a decision which, in reference to all the questions or even only to some of them, leads to a "modification" of the law is unacceptable. There is a twofold and converging reason for this.

The first reason derives from the opinion expressed above on Law 40/2004, a law "imperfect" indeed but which safeguards certain essential principles and criteria. In fact, this law reduces the negative effects of extra-corporeal fertilization and regulates its practice in the context of the rights and duties of al! involved, not excluding those of the infant conceived.

In particular, among the rights it recognizes, it protects the fundamental and inalienable right to life of those who, like human embryos, have been generated through medically assisted procreation. As such, it cannot and must not diminish, threaten or deny these rights, as would be the case were the foreseen modifications to be introduced as a result of the majority vote at a referendum.

The second reason is that — since the modification would in fact end by "diminishing" the law in force — this very same law, from being "tolerant" would become "intolerant", that is, unacceptable, for it would have gone beyond the "threshold" that every civil law must respect by virtue of its goal: the common good.

Above all, however, it would become "intolerant" because by failing to respect what is intrinsic to the dignity of the human person, it would become "overbearing" for the individual himself or herself, thereby making radically impossible the achievement of the common good and undermining the foundations of social coexistence.

Responsibility of believers

Consequently, the request to "retain" Law 40/2004 in its current juridical form remains.

I ask myself what the attitude of believers ought to be.

By virtue of Christian tradition they are aware that the integral vision of respect for human life, for the dignity of procreation and for the good of the family prevent them from sharing in the perspective of any conception that is not the fruit of the conjugal act in spousal love that unites the man and the woman.

Yet, while keeping this original one profound view of procreation, believers feel called — by their own conscience even before any outer voice — to support a law that diminishes the negative effects of extra-corporeal fertilization and regulates its practice in the area of the duties and rights of all those involved, not excluding the infant conceived.

At the same time, believers are citizens like all others. Hence, they are responsibly called to participate in public life in all the forms provided for by the Constitution, and thereby to contribute to building a more just and supportive society through the integral and institutional promotion of the common good.

In the specific case of medically assisted procreation, the responsibility of believers must go further than inner dissent from those forms of devaluation of human embryonic life that liken it to a cell or an animal; not even a personal rejection of recourse to specific practices of artificial fertilization in the context of conjugal life or of medical and biological activity suffices: a dissent and rejection that are always only right and praiseworthy.

Believers are called, in addition, to be responsible for contributing effectively — in accordance with the opportunities offered to each citizen by the State structures — to the formulation and/or preservation of juridical norms which, in practically possible forms, safeguard the basic and inalienable ethical requirements concerning the good of human life and the acceptance and protection of children.

By acting in this way, believers an not pursuing any individual interest but serve the cause of the common good meeting on their way other men and women of every faith and culture who have at heart the future of society and the destiny of humanity.

Abstain: Christian solution

It is certain that the law on medically assisted procreation currently in force could be improved in the future with the contribution of all, taking into account the experience of its application, the development of scientific and medical knowledge and the cultural and social evolution in Italy.

At the same time, it should be pointed out that the abrogation of the crucial and qualifying articles of this law would on the contrary, reduce its effective contribution to a greater protection of the good of procreation and of human life in the context of a sensitive area in the application of biomedicine, such as that of extra-corporeal fertilization and the transfer of human embryos to the uterus.

Along these lines, however, the efforts of believers, with united intentions and inner consistency, must be said to be a form of true collaboration in the building of the common good, so that the current law may be kept unchanged in the Italian juridical order in one of the ways provided for by the institution of a referendum — precisely, abstention —, a fully legitimate provision which many consider the most effective.

It is not a matter of disengagement with regard to an event in the democratic life of Italy. In this discernment we are guided by a civil law; whether or not it remains in force is entrusted to the decision of each one of us. a correct concept of the human person and his or her relationship with human life, which makes the person the subject of thought and action.

Indeed, it is respect for the person and the protection of human life that makes democratic participation in civil society possible and not vice versa. Should this elementary respect for life be absent — which, if it does not start from the conception of the human being, will not easily be able to embrace the whole of the person's subsequent existence —, it would be impossible to guarantee the rights of the person.

Moreover, as the Second Vatican Council teaches, the guarantee of "the rights of the person is, indeed, a necessary condition for citizens, individually and collectively, to play an active part in public life and administration" (Gaudium et Spes, n. 73).


Taken from:
L'Osservatore Romano
Weekly Edition in English
21 September 2005, page 9

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