Artificial Fecundation

ARTIFICIAL FECUNDATION. - By this expression is commonly meant the introduction of male seed into the female internal organs in ways and by means other than those provided by nature.

I. MORAL THEOLOGY

To understand these words exactly, one must bear in mind that the transmission of life in the higher living beings, and thus in man, takes place through the meeting and fusion of two different elements, the spermatozoon and the ovum, usually produced by two different individuals, called respectively male and female. The fusion takes place in the body of the latter. For the meeting of the two elements, nature has provided the two individuals with appropriate organs.

However, man has found a way to do this artificially as well. The first attempts at artificial fertilization were made on animals: on fish (salmon and trout) by H. Weltheim and L. Jacobi (1725); on domestic mammals (rabbit and dog) by L. Spallanzani (1779) and by P. Rossi (1782). The attempts were given scientific form by E. Ivanov (1889-1930), who also indicated the method of application to domestic animals. Thus in zootechnics there came about a very broad and effective development of artificial fertilization, beginning in Russia and passing gradually to the other countries of the world.

The experiment, carried over into the human field, met at first with considerable obstacles, both of a technical and biological order and, above all, of a moral order; hence it proceeded only slowly and cautiously; so much so that up to 1927 only 88 cases were counted in the whole world. But in the last twenty years progress became quite rapid and extensive applications were attempted, especially in the Anglo-Saxon countries.

The methods used come down substantially to four: 1) the semen is taken directly from the epididymis, by puncturing its tail, and then it is injected more or less deeply into the female internal organs; 2) the semen is obtained by masturbation, collected in a syringe, and then injected as above; 3) the semen is obtained by interrupted or condensed coitus, collected, and injected as above; 4) the semen is obtained through normal intercourse, collected by syringe from the vaginal fundus, injected, etc.

The multiplication of cases of artificial fertilization in the human field has made the problem of its moral licitness a live one. Before addressing it, it should be noted that the name "artificial fertilization" is not exact, since what is done artificially is not the fusion of the two cells (that is, fertilization), but simply the introduction of the sperm into the female internal organs. For this reason several propose - and rightly so - to replace the expression "artificial fertilization" with "artificial insemination" or "spermiosemina." Moreover, the question can be treated from several points of view: historical, medical, social, juridical, moral. Here we limit ourselves to the last aspect, and furthermore only to the human field and along the line of Catholic thought.

The question surfaced toward the end of the last century. It was dealt with by A. Eschbach (Disputationes physiologico-theologicae..., Paris 1884, pp. 69-70), E. Berardi (Praxis confessariorum..., I, 3rd ed., Faenza 1898, n. 2109, pp. 400 ff.) and D. Palmieri (A. Ballerini - D. Palmieri, Opus theologicum-morale, VI, 2nd ed., Prato 1894, tr. x, sect. 8, n. 1304, p. 689). The first maintained that artificial fertilization is licit only if it involves the husband's semen and is obtained not onanistically or by masturbation. The second and third were satisfied with the first condition.

The Holy Office intervened in the question with a decree of March 1897 in which it was said, among other things: «Proposito dubio: An adhiberi possit artificialis mulieris focundatio? Omnibus diligentissimo examine perpensis prachabitoque R. D. Consultorum voto, fidem E.mi Cardinales respondendum mandarum: Non licere. Feria vero VI, die 26 eiusdem mensis et anni, in solita audientia R. P. D. Assessori S. O. imperita, facta de supradictis accurata relatione S.mo D. N. Leoni PP XIII, Sanctitas Sua resolucionem E.morum Patrum adprobavit et confirmavit».

After this decree the question gradually lost every character of practicality and urgency and received ever less attention from authors. There was an awakening in recent years: the spread of the practice of artificial fertilization stirred up lively discussions and notable disagreements.

In general Catholic moralists distinguish between artificial fertilization with the husband's semen and artificial fertilization with the semen of a man who is not the husband and who, by analogy with one who donates part of his own blood, is called a "donor." For artificial fertilization with the husband's semen, a distinction is made between normal cases (that is, those in which insemination can take place in the ways and by the means provided by nature) and exceptional cases. For the latter, a further distinction is made in relation to the ways in which the semen is obtained.

Hence the following questions: 1) is artificial fertilization licit even with donor semen?; 2) is artificial fertilization with the husband's semen licit even in normal cases?; 3) what is to be said of artificial fertilization with the husband's semen in exceptional cases?

The first question arises in practice only for married women who wish to have children and cannot have them from their own husband. All Catholics agree in giving a negative answer. For all, artificial fertilization with donor semen is always illicit, whatever the condition of the woman to be fertilized and of the man who makes a gift of his own semen (married, unmarried, widowed), whatever the motive for which it is resorted to and the way in which the semen is obtained.

In this regard, all the considerations made against the licitness of sexual relations between unmarried persons apply once more. Of his own generative power - and therefore of the semen that is part of it - man cannot dispose except in marriage, where one is bound indissolubly to the other spouse: for it is a matter of generating human beings who also need to be instructed and educated, something that in practice can be had only in a stable marriage, indeed one and indissoluble. In the hypothesis under consideration, the man would dispose of his own semen outside of marriage, in favor of a person who is not his legitimate spouse. He would therefore commit a fault, which would be even more grave if one of the two or both were married to another person: there would then be the specific fault of adultery.

To these are added certain considerations of a social order. First of all, the way would be opened to easy disguising of illegitimate conceptions resulting from unlawful relations, and at the same time sufficient social guarantee would not be offered to one who actually conceives as a result of artificial fertilization. For how could a woman prove that she conceived as a result of artificial fertilization and not as a result of sinful sexual relations? And, on the other hand, how could one accuse a woman of sinful conception and, by reflection, of illicit sexual relations, when artificial fertilization with donor semen were permitted?

For such reasons all Catholics without distinction reject artificial fertilization with donor semen. Nor does the comparison with the donation of part of one's own blood hold up. The germinal cells are in fact sources of life, indeed - in the case under consideration - of human life; consequently they are subject to all the conditions to which the legitimate transmission of human life is bound, that is, to marriage, one and indissoluble. On this point Pius XII was quite explicit in his address to the participants in the fourth International Congress of Catholic Physicians (cf. l'Osservatore Romano of 1 Oct. 1949).

Also on the second question there exist no real differences among Catholics: all agree in rejecting its licitness. In fact, the sexual union fulfills, besides the generative function, also a function of intimacy that is of notable importance for the consolidation and deepening of married life. From it, therefore, one cannot renounce, at least normally; whereas this happens in artificial fertilization.

Much more lively, on the other hand, is the discussion, and very deep are the divergences, on the third question. The opinions that have emerged can be reduced substantially to three main currents. The first holds that in exceptional cases artificial insemination with the husband's seed is always lawful, however the seed may be obtained. This current is represented by S. Di Francesco (cf. E lecita la f. a.?, in Clinica nuova, 1 [1945], nos. 9-10) and in part (that is, limited to condoned coitus or more precisely to the Courty procedure) by P. Tiberghien (cf. La fécondation artificielle, in Mélanges de science religieuse, 1 [1944], p. 339 ff., and La fécondation artificielle, in Nouvelle revue théologique, 68 [1946], pp. 819-20) and by E. Tesson (cf. L'insémination artificielle et la morale, in Cahiers Laënnec, 6 [1946], II), and it is founded above all on the following argument: in artificial insemination the seed is directed to its natural destination, that is, to fecundation and generation; there is therefore none of the malice proper to masturbation and onanism; it is true that this comes about in a manner different from that disposed by nature, but — it is observed — just as nature is corrected in other fields (for example, sight is corrected and strengthened by means of eyeglasses, the microscope and the telescope; nutrition is corrected by means of injections), without offending the moral order, so one does not see why the moral order should be offended when nature is corrected in the field of generation.

La seconda corrente sostiene invece che la f. a. non è mai lecita, nemmeno nei casi eccezionali, comunque il seme sia ottenuto. È rappresentata specialmente da Fr. Hürth (La fécondation artificielle, in Nouvelle revue theological, 68 [1946], pp. 402-26), A. Boschi (Nuove questioni matrimoniali, 2nd ed., Turin 1948, pp. 283-333), A. Gemelli (La f. a., 2nd ed., Milan 1949; id., La f. a. secondo la teologia morale cattolica, in La scuola cattolica, 74 [1946], pp. 273-81; 75 [1947], pp. 3-13), R. Biet (Génération et amour, in Nouvelle revue théologique, 69 [1947], pp. 32-47) and F. Cappello (De Matrimonio, 3rd ed., Turin 1947, pp. 382-85, no. 383). The principal reason is that in it there is « the objective and real separation of two elements which nature has constituted in a single act, the conjugal act. For it is in the moment of the conjugal act and through it that there occurs (1st element) the secretion of the seed on the part of the man and together (2nd element) its introduction into the receptive organ of the woman, for the purpose of transmitting life. Artificial f., on the other hand, dissociates the two elements into two acts that are objectively independent and separate in themselves, severing, so to speak, the intrinsic and natural connection that they have with one another and that both have with the purpose of generation. It matters little that intentionally they remain still connected: the intention of the agent cannot change the nature of things and correct an intrinsic defect that renders an act immoral » (A. Boschi, op. cit., p. 320 ff.).

The third current distinguishes between the manner and the manner of obtaining the seed; if this is obtained through natural coitus or through puncture of the tail of the epididymis, it holds that artificial insemination cannot be condemned; if, on the other hand, the seed is obtained through interrupted coitus or, worse, through masturbation, it thinks that it is illegitimate, because such acts are by their nature immoral and therefore can never be performed, not even to artificially inseminate a woman. This current is represented, among others, by A. Vermeersch (Theol. mor., IV, 3rd ed., Rome 1933, no. 64, p. 59), E. Génicot - I. Salsmans (Casus conscientiae, 8th ed., Brussels 1948, p. 755), A. Gennaro (La f. a. dal punto di vista morale, in Perfice munus, 22 [1947], pp. 209-21) and E. Toffolotto (La f. a. della donna, in Rivista medica per il clero, 18 [1947], pp. 99-126).

The differences of opinion on the lawfulness of artificial insemination are reflected in part in the interpretation of the decree of the Holy Office. According to some (e.g., Hürth, Gemelli, Boschi) it would condemn every form of artificial insemination; according to others (e.g., D. Prümmer, Man. theol. mor., III, Freiburg im Breisgau 1940, n. 799; H. Blatzli, Decisiones Sanctae Sedis de usu et abusu matrimonii, 2nd ed., Turin 1944, p. 31) it would condemn only those forms in which the semen is obtained by masturbation or onanistically.

It is not possible here to discuss at length the various positions taken by Catholics and the arguments that each brings in its favor. One can only offer a few considerations to guide anyone who might wish to examine the matter further.

First of all, the question concerns the morality or immorality of the action in itself, not the intention of the one who has recourse to it; in other words: it is certain that in artificial insemination there is a breaking into two moments of a process which, in the manner arranged by nature, takes place in a single moment; is such a breaking, in itself, objectively, legitimate or illegitimate? Is it never legitimate, in no case, not even in exceptional ones, or is it at least in some case legitimate? If it is established that it is illegitimate in itself, it can never be performed, for no reason. The intention of the one who has recourse to it is of no importance here. This must be noted in a particular way with regard to the question of the manner of obtaining the seed: what matters is not the purpose for which the seed will be used, but whether such a manner of obtaining it is in itself legitimate or not.

To the question thus framed, the first school replies that this rupture is not legitimate because nature has established a unitary mode; the second school, on the other hand, objects that the mode established by nature is the normal mode, not the only legitimate one. Neither of the schools, however, seems, at least so far, aver dato una prova sicura delle proprie affermazioni.
The reasons they adduce seem a mere repetition of their respective positions, not a demonstration of their validity.

The question therefore still needs to be examined in greater depth. In such further study, the norms indicated by Pius XII to the participants in the Fourth International Congress of Catholic Physicians must be kept in mind, namely: «the mere fact that the result aimed at is achieved by such a means does not justify the use of the means itself; nor can the desire, in itself fully legitimate in spouses, to have a child suffice to prove the legitimacy of recourse to artificial insemination... It is superfluous to observe that the active element can never be licitly procured by acts against nature. Although new methods cannot be excluded a priori... nevertheless, as far as artificial insemination is concerned, not only must one be extremely reserved, but it must absolutely be excluded. In saying this, one does not necessarily proscribe the use of certain artificial means intended solely either to facilitate the natural act or to enable the natural act, normally performed, to attain its own end» (Osservatore Romano, 1 October 1949).

Giovanni Battista Gorzetti

II. CANON LAW

Artificial insemination gives rise to serious legal problems, all the more complex in that the laws generally still ignore this mode of fertilization. Some of these problems are touched upon, especially in relation to canon law and Italian law.

In matrimonial matters, while no particular problem can arise when artificial insemination is carried out by means of the collection of semen obtained from normal relations (unless the semen is injected into a woman other than the wife), for all other modes of artificial insemination it is generally held that such fertilization is not sufficient to consummate the marriage, and that therefore anyone who cannot have conjugal relations except in this way is to be considered impotent (this was reaffirmed also by the Supreme Pontiff, in the address delivered on 29 September 1949 to the participants in the IV International Congress of Catholic Physicians; v. also IMPOTENZA). There is no doubt, moreover, that children conceived through artificial insemination are always legitimate, if the semen was that of the mother's husband; otherwise, as the Supreme Pontiff expressly declared in the address cited, they are illegitimate (incestuous, adulterine, sacrilegious, etc., according to the case, even if the mother was in good faith).

It is on the other hand doubtful whether a judicial declaration of paternity is possible on the basis of art. 269, no. 3 of the Civil Code, in the case of violent artificial insemination without there being sexual union. Whereas the case must be considered as not provided for by law in which, while the circumstances for proceeding to the disavowal of paternity on the basis of nos. 1-3 of art. 235 of the Civil Code exist, it is nevertheless demonstrated that the wife has been artificially fertilized with her husband's semen.

Nothing particular, moreover, does artificial insemination present juridically with regard to the possibility that two twins may be the children of different fathers.

In criminal law the principal question to which artificial insemination gives rise is whether, for the offences of which carnal conjunction is a constitutive element, that element can consist in artificial insemination. The most obvious answer, in the present state of legislation (both canonical and state), is the negative one, although some writers seem to hold the contrary: therefore both violent artificial insemination performed by the husband and that performed by third parties (or in any case with the semen of strangers) does not constitute the offence of carnal violence (art. 519 of the Penal Code); the offence of incest (art. 564) does not exist if there has been no sexual union, but only artificial insemination, and the same must be said of seduction (art. 526), which therefore, like any other fraudulent artificial insemination, will of itself constitute only a civil wrong, without being punishable criminally.

For the offences of which the act of lust is a constitutive element, the same must be said, in relation to insemination properly so called; it being ascertained, however, that the act of lust may instead be present in one of the procedures used to obtain the semen. This must be borne in mind especially for the offences of acts of lust (art. 521 of the Penal Code), of corruption of minors (art. 530), as also, inasmuch as the act or purpose of lust is criminally relevant, for the offences of abduction (art. 525-25), procuring (art. 531-533) and abduction of minors or persons incapable (art. 533-74).

Without doubt the offence of venereal contagion (art. 533 of the Penal Code) can be committed by means of artificial insemination, while it will depend on the circumstances whether, in the case of artificial insemination, the offence of obscene acts (art. 527) or that of acts contrary to public decency (art. 726) exists or not.

As for adultery, moreover, it presents aspects that must be kept distinct. For while simple artificial insemination cannot constitute adultery or concubinage for criminal purposes, or as a ground for separation of the spouses, it certainly must be equated with adultery for the purposes of the disavowal of paternity (art. 235, no. 1 of the Civil Code), the reasons for the one and the other being identical.

In fact any contract or condition that obliges one to artificial insemination or to the supply of semen for that purpose is to be considered juridically unlawful under arts. 5, 634, 1343, 1354 of the Civil Code; and this probably also in cases in which artificial insemination is lawful.

Pio Cipratti