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The Rights of the Unborn Child and Artificial Procreation

1. The Executive Council of the Centre for Bioethics and Human Rights of the University of Lecce has already made its position clear regarding the rights of the unborn child; in fact, following a seminar in July 1994 to which academics of different religions were invited, the Council drew up a Declaration of the Rights of the Unborn Child and put it forward for consideration to the Italian Government and Parliament, also in view of the World Conference on Population and Development which was due to take place in Cairo (Sept. 1994).

The idea came about after having considered the fact that whilst there have been Declarations for the Rights of the Young Child (1959), for the Elimination of Discrimination against Women (1967), and for the Rights of the Mentally Disabled (1971) there has still been no Declaration to Uphold the rights of the Unborn Child.

In this way we have arrived to formulate this document that deals with the problem of the unborn child from an ethical and political-juridical point of view, different from that of the previous documents as for example the Identity and Status of the Human Embryo (1989) of the Catholic University of the Sacred Heart, which rather follows an ethical-religious and biological reasoning.

2. Having considered the reasons why the Declarations mentioned have been drawn up, namely to defend the rights of the individual in the period or the status of his/her life which is most open to abuse, it is concerning that today still no Declaration has been passed. Nevertheless, the life of an unborn child is unique and individual, it has the same identity and the same substantial continuity, and as such is untouchable, from the moment of conception right up to its natural death.

What is of concern, comes from the fact that, whereas in those Declarations which have already been passed, the starting point is the individual with his personal rights, regardless of whether the individual is a new-born baby, a young child, an adult, an old person, a healthy person or a sick one, the starting point for a life which is still inside the mother's womb is no longer the individual with his own personal rights, but rather the couple (sometimes the single mother), with its particular wishes. In short, a human life inside the womb, is not protected enough, despite it being the life of a human being; in the first part of its life, the fate of the unborn child is sometimes left to the free decision of the woman, at other times, on the other hand, it is protected simply because it is deemed to be socially opportune or even useful to do so.

In conclusion, what is of concern is the fact that when there is a difference of opinion involving two living individuals, the respective rights of both people in question are carefully taken into account. In the case of a contrast between qui in utero est and qui iam natus est the same examination is not made.

3. The reason that different values are given to life inside the womb and to extracorporeal life in the modern legislation of many states lies in the fact that the term "biological individual" is split into "human being" and "person". This split is made possible, by the "legal capacity" which the person identifies himself with. It is precisely this use of the category of legal capacity, in positive law, that makes it possible to recognize the personal status of beings who are different from the biological individual, and some biological individuals continue to be denied their legal capacity (Savigny).

In this way two levels of the human being are created: the biological and the legal one. The latter is created by means of an artificial process of superimposition, which is not regulated by ethics. As a consequence some homines nondum mortui (civil death) and also homines nondum nati (the unborn child) are denied person status.

Looking at it more closely, we can see that re-elaborated Roman law is at the base of this process. This modification is carried out under the influence of the German "Pandectian" discipline on the one hand, and on the other hand under the influence of "the patrimonial aspect of civil law".

On the other hand, following directly the Roman classic and Justinian law, and the Iberian tradition, "conceived embryoes are usually included in Latin-American law codes as subjects which have legal status (Busnelli)". In this way devising artificial legal rights for conceived embryoes are useless. This is because its aim is to satisfy the requirements of "the legal and patrimonial traffic", and to protect the estate and the rights which will go to the unborn child once he is born, rather than concerning itself with protecting life within the womb,

We can find confirmation of the fact that it is in vain, in the above-mentioned doctrine, which has been in existence in the Latin-American legal system since the last century. This system "wanted to use the term person to defend the human being right from its conception", and in this way it puts great importance on the principle of "ontological parity between an unborn child and one that is born in contrast to a singular legislative equality" (Catalano).

4. What the ethical, political and legal community cannot accept are the results which have been achieved in Biology for quite some time. What is incomprehensible, at least initially, is the reason why the unborn child, which is considered as a real human being by Roman Law, is not considered in the same way in modern times as well.

The identity of the human embryo which continues right through the different phases of its development (zygote, morula, blastula, pre-embryo, embryo, foetus) in spite of showing a progressive differentiation of its organism, is accepted "more" by the Assembly of the European Council and Parliament (eg. Recommendations no. 1046 of the 24th September 1986 and no. 1100 of the 2nd February 1989; Resolution A2-327/88, A2372/88 of 16.3.1989) than by the single nation states (even if there are exceptions).

Those countries which are institutionally obliged to defend life inside the womb, are more reluctant to accept the results of research into it which have been obtained by the Scientific Fraternity. In fact states, which are driven on by economic interest and by a hedonistic culture, often end up considering the embryo in its first few months of life as a "something" to be catalogued along with other patrimonial rights and not as an individual with its own rights.

On the other hand, if we take into account, the scientific results obtained by the Community of Biologists and consider the fact that not only is human nature equal for every man, but that it is also equal for every man from the moment of his conception right up to his natural death, there is no denying that each human being has an ontological composition which carries with it rational values, ethics and therefore personal rights. It is undeniable that in each individual's DNA there is the plan-project for his gradual autonomy and self-realization right from his conception, and although this program takes place over a period of time, it continues to have its own substantial identity and continuity. In short, one can say that each individual has his own particular nature or essence, and that each essence has a natural law which regulates his respective basic rights. By carrying these out, individual development and existence are fulfilled in their substantial and social continuity.

5. The main problem is to establish whether the embryo, as an individual essence, can be known by using a rigorous, logical process, and if the norms by which its life can be protected, can be deduced from its scientific description.

Not all philosophies agree on how to deduce norms from an individual essence which is teleologically orientated towards life. It is these norms which have to regulate its existence and its development. In this way, analytic philosophy even when it abandons the logic of decisionism and moves towards the logic of the rational foundation of principles, backs up the theory that this type of foundation comes from a kind of programmatic rationalism where reason and not nature has a fundamental function.

On the other hand, it is possible to admit, as those advocates of the restoration of Aristotle's practical philosophy have done for twenty years, that it is logically correct to suggest that norms and laws regarding the development of life, derive from the description and comprehension of an individual essence which is teleologically orientated towards life out of the womb. It is scientifically correct to pass from the ontological level of life within the womb to the level of the gnoseological definition of the same life (Maritain). Therefore it would not be justifiable to accept instead, that the mind was absolutely autonomous from nature due to the consequences which are implied by this autonomy. Hence natural data is accepted by human thought as the irrefutable stages of orientation, which still "leave a certain space for free convention" (Gadamer) when programs of personal and social life are to be formed; these have to be coherent with their premises and with the laws which can be deduced from the same premises with logical consequentiality. One can clearly understand, therefore, the justification of the reasoning of those people who, using the natural order of identity and the status of the human embryo as their starting point, have unambiguously proposed for an ideal order to be formed, to which human actions can be referred.

Beyond these various philosophies or ways of solving the problem of how to deduce the ethical order from fixed points of nature, there should be no doubts about the fact that behaviour which conforms to the order of the biological statute of the embryo and to the laws regarding the stages of its development, should be considered ethical behaviour. Behaviour which does not conform to this on the other hand, should not be considered ethical.

As a consequence, the ideal order for artificial fecondation is just if the actions that it provides for, follow the criteria of the natural order, and correct it wherever necessary.

It is true that man is free to either respect or not to respect the ethical order, but the effect of violating such an order, besides having consequences for man himself, means that it also affects others and will have consequences for future generations.

It is necessary to dominate nature for the dignity of the human being but at the same time it is also necessary to remember that "one cannot triumph over nature if one does not obey it" (Bacon). Otherwise, when nature is manipulated, it rebels by dying, and by dying it means that humanity dies also.

6. If the laws of the processes of natural procreation can be known and can be represented through the relative ethical order, it is consequential that the ethics of those people connected with the health service should never deviate from this order. Therefore they should correct nature, but they should never manipulate it or take its place. This is also due to the fact that Science illudes itself that it knows the natural order of procreation and of ontogenetical processes, but in truth it only knows it in part.

Nevertheless not only do a large proportion of health workers as well as a large part of the Scientific Community correct nature as part of their every day reality, but they also compete in a continual race to try to mark out new frontiers, and to replace the natural order of things.

In this way we end up with artificial procreation being proposed as a substitute for natural procreation, sometimes offending nature (fecundation after menopause) and on other occasions by completely substituting it (artificial fecundation through the use of FIVET).

The pretension of the omnipotent scientist shows only few signs of restraint, and is unable to regulate itself, respecting the scientifically proved principles of nature.

7. It is therefore necessary to intervene with the aim of programming the action of the legislator, and the action of sanctioning of the judge, because in the health service one should work to correct but not to substitute the natural order of procreation. One would hope that fecundation takes place in the uterus, because that is the natural place where the individual's life begins; it is a necessary condition of life for an embryo to be inside the uterus in order that individual life be able to go on in its substantial continuity, just as the substantial continuity of an individual is his birth. It is a human's right to begin his life in the uterus and not in a test-tube.

The aim of the political order when regulating procreation techniques should be to protect the rights of the unborn child to a far greater extent than has been done up to now. The legislator should remember that the present legislation of single states is generally inadequate in protecting the rights of the unborn child and that each piece of positive legislation should be drawn up according to the principles of the natural order.

8. Centuries old knowledge which has been founded on the natural order should therefore be the basis for the legislator in all areas regarding artificial procreation. As far as social relationships are concerned, conception should be restricted to the married couple, which is a man and woman, who are both living and who are both of a natural age of procreation. The insemination or fecundation of a single woman should never be consented. It is the right of every unborn child and of every infant to have two parents of different sexes who are an adequate age to deal with the demands of the child's development

If we do not want to disturb the order and morality of the family, with regard to artificial procreation, we should not look to manipulative fecundation techniques which substitute the natural process, in particular if they imply by the resorting to insemination or heterologous fecundation.

More specifically, in view of the ontological parity which exists between the unborn child and the born baby, and as far as legislation is concerned, only the therapeutical objectives of work into artificial procreation should be recognized

It is to be hoped that the legislator resolutely decrees: 1) that such acts of procreation should only be allowed for married couples with living partners, because the connatural society when conception occurs, during pregnancy and when a child is raised, is the family, 2) that resorting to them rigorously respects ethical criteria of gradualness. In order to safeguard the natural and ethical order of the family as well as that of rearing the child, it is nevertheless necessary for the embryo to be the union (not in vitro) of the gametes of the living married couple. If heterologous insemination or fecundation is resorted to, then almost certainly the natural ethical order of the family as well as the rearing of the child will be seriously disturbed. The causes of these ethical problems are due to the fact that the embryo is either the fruit of the union of the gametes of two donors who are unknown to the couple, or the gamete of one of the two partners in the couple.

The consequences of this type of artificial procreation are that the unborn child, as a human being with his own essential rights, is not protected. The subject of law becomes an object of law for part of if not all of his life.

In this case he has become the object of the sterile parents' desire to have a child. This desire which isn't deep-rooted within the couple, can in time be denied. For this reason, it is possible that either the child or the unborn child run the risk of not being recognized in spite of the fact of their parents having given their consent to heterologous procreation.

(The official text is in Italian. Translation by Ian Gavin.)

 

Magisterium Teachings on Abortion

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