Noldin-Schmitt-Heinzel declare as probable a proposition or opinion for which reasons and motives exist which are of such weight that a prudent person can give assent to it, even though his assent is not firm (as in the case of certitude) but contains a degree of fear of being in error (Summa Theologiae Moralis, 31st Edition, 1956, Vol. 1, No. 225). When the Magisterium has given an authoritative response, however, that is one of the cases in which probabilism is thereafter excluded (No. 236-237).
A dubium juris is a solid doubt whether a law exists that covers this case, or about contents of the law, or about whether it covers this case and binds this person. A person is bound, according to the principle of probabilism of law, only by a certain law. If a doubt remains, the person is not bound. A tutorial example of a dubium juris: Attendance at Sunday Mass is obligatory, but does the law apply to me when I have this fever?
BUT, continues the Noldin text,:"Dubia facti are excluded from the ambit of probabilism, no matter what system one follows, because an uncertain fact cannot become a certain fact either through ignorance or by the certain probability of an opinion" (No. 235).
The familiar example of a dubium facti is whether what moves behind a bush is a deer or a human. If you cannot solve the dubium, you are not permitted to shoot lest you be guilty of being willing to shoot an innocent human being. Other obvious examples: is it a land mine or metal scrap? Don't step on it unless you know for certain. Does the cup contain poison or good wine? Find out before you drink. Ignorance or mere opinion cannot change factual realities.
In this writing I will attempt to specify whether probabilism might legitimately be invoked in certain cases. I will be lean on repeating medical data which is usually known by readers of this journal, and analyze mainly the relevant principles of probabilism. The issues include: 1) treatment of victims of rape; 2) use of human embryos for stem cell research; 3) treatment of ectopic pregnancies.
1) USE OF OVRAL OR SIMILAR TO TREAT VICTIMS OF RAPE: The treatment is designed to prevent ovulation if it has not yet occurred; it also impedes implantation of a pregnancy if fertilization has occurred. See, e.g. the statement of Father Steven P. Rohlfs, STD, (E&M May 1993) "It seems there is no meaningful contraceptive effect post coital for Ovral or similar treatments. By the time the woman presents herself for treatment the `sole immediate effect' of Ovral is to render the endometrium hostile to a possible fertilized egg." Even though the probability of the presence of a fertilized ovum is slight - perhaps one per hundred - the dubium facti excludes licit use of Ovral for treatment of rape. The will to perhaps kill is wrong: "It is objectively a grave sin to dare to risk murder" (Congregation for the Doctrine of the Faith, 1974).
2) TUBAL PREGNANCIES: Salpingectomy vs. salpingostomy; and use of Methotrexate (MTX).
Salpingostomy is direct action against the child. The tube is slit open above the child, who then pops out and can be removed easily, without causing great damage to the tube. The tube can then likely heal itself to serve for possible future pregnancies.
The physician kills the child directly as a means to save the mother. It is direct abortion. No dubium juris can be invoked because direct abortion, even to save the life of the mother, is illicit in all cases. Neither a dubium juris nor a dubium fact is in question here.
Salpingectomy is direct therapeutic action on the mother's organ, resulting indirectly in the death of the child. It involves incising and removing the part of the mother's tube which contains the child, or even the entire tube. Many ectopic growths are not real pregnancies and resolve themselves eventually. Many of the real pregnancies also resolve themselves by becoming spontaneous miscarriages whose tissues are then absorbed. Indications for salpingectomy are relatively rare, when a heart beat of the child can be monitored even weeks after conception and the danger of a tubal rupture becomes real. It is a more difficult medical procedure than salpingostomy and causes greater physical harm to the mother. Because the death of the child is brought about indirectly and not directly, it is licit within the ambit of medical indications.
We reflect: Very soon after salpingostomy or salpingectomy, the child will be in the presence of God. It will learn there, in God's light, whether he or she has a mother and a doctor who killed it, or a mother and a doctor who refused to kill it, and placed it reverently into the hands of God.
Methotrexate "is a highly toxic folic acid analog which inhibits the dehydrofolate reductase and halts the synthesis of deoxyribonucleic acid (DNA) and cell multiplication in the trophoblastic tissue. Studies have shown that trophoblastic cells are very sensitive to MTX. This toxic drug makes the trophoblast unable to produce the protein-digesting enzymes necessary for its penetration into the tissue of the fallopian tube" (Peter A. Clark, S.J., Ph.D. in Linacre Quarterly February 2000, p. 11, referring to Albert Moraczewski, Ethics and Medics, August 1996.
In the reference Clark also quotes Morazewski as follows: "MTX is most effective against rapidly dividing cells as cancer cells, hair follicles, and fetal cells (especially trophoblastic cells). One study found that rapidly dividing cells such as cancer cells were at least one thousand times more sensitive to MTX than normal cells." Morazewski continues in the same article: "After the growth of the trophoblast and its destructive enzymic activity have ceased, the trophoblast and the embryo will die. The dead tissue is now absorbed by the tube as part of the healing process." He argues that "the moral object is to stop the destructive trophoblast by stopping further protein synthesis: this is not achieved by killing the trophoblast or the embryo proper. Rather, death follows subsequently." While proposing this as licit, Fr. Moracewski adds that, should the Magisterium declare otherwise, "I will withdraw my argument."
Father Clark opts for the liceity of. the treatment as a "solidly probable argument, supported both by intrinsic and extrinsic opinions... being supported by the principle of probabilism." He also asks for continued dialogue among professionals about the licitness of MTX treatment for ectopics "until the Holy See makes a judgment" (His LQ article page 19.)
Response: Can there be a dubium juris that stopping the further protein synthesis of the tropoblast is not the same as killing the embryo by disabling the action of the tropoblast? I think not. At best, it would be a dubium facti whether it kills or not. But a dubium facti cannot be used because the death of a third person is involved.
At the risk of appearing to be simplistic, my response is that the use of MTX is a direct attack on the life of the child and therefore constitutes direct abortion, always illicit. MTX directly kills the child by "asphyxiation," as though one holds a hand over the mouth of the child so that it cannot breathe. Sarin gas killed Tokyo subway commuters by destroying their lungs. MTX kills children directly by destroying or at least paralyzing their trophoblast - their "lungs" and their organs for nutrition and elimination. What more is there to say? We know all this without having to ask the Holy See. There is no room for probabilism in murder by MTX and Sarin gas, so I believe.
3) USE OF HUMAN EMBRYOS FOR STEM CELL RESEARCH: "Research in which an embryonic human being is destroyed, discarded, or knowingly subjected to risk of injury or death" (language of the legal ban), is always unethical. One chief reason: it is not possible to diagnose with certainty that the embryo is not a person from the time of fertilization. Even a contrived dubium facti could not be converted into a dubium juris in this case because it is wrong to kill directly what might probably be a human person. It is not possible to convert this dubium facti into a dubium juris.
Father Richard McCormick S.J. (RIP) admitted that if there is doubt about the personhood of what he terms the "preembryo" then harming it is wrong. He wrote that "It has been the teaching of Catholic theology for many decades that one is free to act on the basis of a doubtful obligation based on a doubt of fact, provided one does not thereby risk harm to a third party. The doubt of fact in this cases concerns the personhood of the preembryo. Because the doubt cannot be resolved, the risk to a third party remains and a doubtful fact does not convert to a doubtful obligation" ("Who or What is the Preembryo?" Kennedy Institute of Ethics Journal, Volume 1, Number 1, March 1991. Pp. 10-11).
In order to substantiate his thesis of delayed personhood, he then attempted to establish certitude that a "preembryo" lacks personhood: "Are there very strong reasons for maintaining that the preembryo is not yet a person? I believe so...(The existence of) a person is not defensible in light of scientific data. And if the preembryo is not yet a person, it cannot be subject to human rights" (pp. 11-12).
What scientific data? He adduces mainly two arguments: 1) the appearance of the embryonic "inner cell mass" and 2) the end of the possibility of twinning or fusion, both allegedly occurring about two weeks after fertilization. These events, we are to assume from his argumentation, mark the arrival of personhood:
As the blastocyst is attaching to the uterine wall, the inner cell mass becomes more adherent and organizes into two layers that make up the embryonic disc or primitive body axis. The process is reflected in the appearance of the primitive streak. It is at this point that developmental individuality by singleness can be said to be established.
From this discussion I would underscore two particularly important facts. First, early events in mammalian development concern, above all, the formation of extraembryonic - rather than embryonic - structures. As the report by the Ethics Committee of the American Fertility Society (1986, p. 275) says, "This means that the zygote, cleavage and early blastocyst stages should be regarded as preembryonic rather than embryonic" (ibid. p. 4).
That argument has become a mantra among ethicists, although Embryologists no longer use the term "preembryo" because it lacks scientific underpinnings. Be that as it may, a chorus of echoes of McCormickism reverberates in the corridors of Catholic seminaries throughout the world. For example, Fr. Juan Masia, S.J. who teaches Moral Theology at the Tokyo Inter-diocesan Seminary wrote:
Moral theologian McCormick uses the term nascent human life (human life in formation). He does not call it individual life. Curran says that during the first 2 - 3 weeks after fertilization one cannot speak of this as being truly human in a strict sense. De Janni, K. Rahner, and various other Catholic theologians express doubt about whether a fertilized ovum can be called a human being with a "heart" before a month has gone by after fertilization took place...As Haering states, there is an area of obscurity during the interval from conception to personalization (Koe, August-September 1987; translated from Japanese by the present writer). [Note the absence of scientists in the passage and the exclusive presence of clerics obligingly affirming each other.]
Secondly, McCormick argues twinning or a fusion of twins is possible until the primitive streak appears. From this he deduces the absence of a previous individual personhood.
Response: McCormick fails to provide the one cardinal reasonwe would need to deny personhood to humans from the time of fertilization. We need proof establishing with certitude that zygotes and early embryos lack personhood. Without such proof it remains unethical to do "Research in which an embryonic human being is destroyed, discarded, or knowingly subjected to risk of injury or death."
The first argument that the inner cell mass and primitive streak appear after two weeks of development does not disprove the presence of personhood previous to that. Similarly, the argument from twinning does not disprove that one person was there at the beginning, and that a second person also came into existence subsequently. Or in fusion, that two persons were initially present, one of whom died while the other survived. His arguments are speculative and selective, and do not stand up as certainwhen confronted with alternative explanations. Until we possess certitude that the zygote is not a person, we are held by the commandment: "Thou shalt not kill a zygote or an embryo."
Embryology does not find a saltus,a leap from trophoblastic preparatory materials only, upwards into an "inner cells mass" or embryo. Embryology texts are at one in recognizing only sequences of a genetically organized single line of development. Despite the orchestrated decibel-intensive drumming of his arguments around the globe, "his emperor has no clothes."
Indeed, it is impossible by use of microscope or chemical analysis to disprove the presence of a spiritual soul from the time of fertilization. Therefore we are not permitted to kill what might be a human person.
On the contrary, biological science indicates that the whole of human life - including the animating soul - is there from the time of fertilization. The zygote has proteins and enzymes specific to our race. The fertilized ovum contains the entire DNA materials and dynamics to develop as a human body in a proper environment for growth. This includes the genetic sequences are already in place for the eventual formation of the species specific forebrain of Homo Sapiens. Why should the zygote contain these genetic blue prints to develop a human brain if it is not animated by a person who will need that brain? Animal zygotes have no such similar DNA plans for a human brain.
The Catechism of the Catholic Church states that a human body is such precisely because a spiritual soul animates it:
The human body shares in the dignity of "the image of God": It is a human body precisely because it is animated by a spiritual soul, and it is the whole human person that is intended to become, in the body of Christ, a temple of the Spirit (364).
The Latin of the emphasized part reads: illud est corpus humanum praecise quia anima spirituali animatur. Note the logic of the statement: If the body is human, then a spiritual soul animates that body. In other words, if McCormick's arguments favoring delayed personhood are to considered valid, he must prove that zygotes and early embryos are not human bodies. For if they are human, then a spiritual soul animates them. This he does not do. Even if were to attempt this, science would immediately contradict him, because science ascertains that these are human bodies with all the genetic materials of Homo Sapiens individuals.
Science ascertains that zygotes and embryos are human bodies. But a human body cannot exist unless God animates a body with a personal spiritual soul. Therefore zygotes and embryos are persons, each an "image of God," off limits forever to harmful manipulation.