DIFFICULT MORAL QUESTIONS

Question 54: May a tubal ligation be done on a woman who is severely retarded?

I serve as a volunteer with an organization that works with pregnant women and encourages them to choose a morally acceptable alternative to abortion. A few weeks ago a prolife nurse, whom I’ll call Ann, came to us bringing a beautiful twenty-four-year-old woman, whom I’ll call Jane. Due to her mother’s alcoholism, Jane is severely retarded; mentally she could be a preadolescent child. Otherwise she is healthy, psychologically normal, even tempered, and affectionate. She is not institutionalized but lives in a shelter operated by the city for people who need help caring for themselves.

Jane was pregnant for the fourth time. Her previous pregnancies had been terminated by abortions, and her social worker was arranging another abortion after Jane missed her period and tested positive on a pregnancy test. Ann and I did our best to get Jane to understand her situation, and she then wanted to have the baby. I managed to prevent the scheduled abortion and took Jane to my own obstetrician, but about two weeks later she miscarried.

That was ten days ago, and since then Ann and I have been thinking about Jane’s future. She almost certainly will get pregnant repeatedly, and her social worker almost certainly will arrange repeated abortions, at least some of them probably beyond our ability to prevent. We feel sure that when Jane has sexual intercourse, her grasp on what she is doing is insufficient for her to refuse it, so that she is not committing a sin of adultery or fornication. Rather, she is being played with by men who are retarded or taken advantage of by men who should know better. In other words, although a friendly, nonthreatening man need not use force to get Jane to have intercourse with him, she is being raped, morally speaking, since she really cannot consent—using consent in the relevant sense.

A chaplain at the Catholic hospital where Ann works told her that, while a woman who has been raped may not have an abortion, not only she but a woman who anticipates being raped may try to prevent conception. But if contraception depended on Jane, it would not work, while the IUD or anovulants not only might have bad side effects for her but sometimes are abortifacient. Since her retardation is a permanent condition, contraception, if it is permissible, would better be permanent. Therefore, Ann and I are wondering whether it would be all right to suggest that Jane’s social worker arrange a tubal ligation for her.

Analysis:

This question concerns the application of the norm that excludes direct sterilization. If doing a tubal ligation on a severely retarded woman were intended to prevent conception, not insofar as it is the beginning of a new person, but insofar as it is the fullness of wrongful sexual union, that act, in my judgment, would not be an instance of the sterilization which the Church condemns. Moreover, if the act were not wrong on other grounds, its suppression of the woman’s reproductive function could be a morally acceptable side effect rather than intentional mutilation. Nevertheless, doing a tubal ligation on a woman who is retarded would be wrong if those responsible for her care neglect any of their duties with regard to her sexual activity. Moreover, if they allow sexual activity and seek only to prevent conception, a tubal ligation would be an instance of sterilization, and therefore both contralife and an intentional mutilation. The tubal ligation also would be wrong if it is possible that the woman eventually will become capable of marital consent, or if there is some medical or psychological factor indicating it will not be in her best interests.

The reply could be along the following lines:

Even when every reasonable measure is taken to protect women who are retarded from being sexually abused, intercourse may occur and, if it does, occasionally pregnancy will result. But even if a woman is retarded to such an extent that she cannot consent to intercourse, her pregnancy and giving birth are not in themselves bad, and the child to whom she gives birth is a human person, with the same immeasurable dignity we all enjoy. Sometimes such children’s mothers could help care for them; sometimes the children would have to be raised entirely by others. Both solutions can be good, and one of them always ought to be preferred to abortion.

You did well to prevent the abortion of Jane’s baby. Killing unborn babies never is justified, even when pregnancy results from rape. The rapist gravely wrongs his victim, but the baby is entirely innocent and has the right to live and to be loved and cared for. Killing this innocent person only adds wrong to wrong. Moreover, even for victims of rape and incest who are capable of choosing to have an abortion, undergoing it is both physically and psychologically traumatic.¹⁹⁶ In Jane’s case, aborting her three previous babies was, in my judgment, at least as great an injury and injustice to her as the sexual abuse from which their conceptions resulted.

You ask whether a tubal ligation may be arranged for Jane, to prevent probable future rapes from culminating in the conception of children who may well be aborted. Since you leave unclear how severe Jane’s retardation is, and leave unstated various other circumstances that might dictate a negative answer, I shall not say yes or no. Instead, I shall articulate the considerations I think relevant and the moral norms I think should be followed, and leave it to you to apply the norms to Jane’s case after ascertaining and considering the relevant facts.

First, nobody should take it for granted that persons who are retarded cannot appreciate the value of sexual purity, control themselves, and resist lustful advances. Like most young children of average intelligence, most people who are retarded have such capacities and can realize them, provided they receive suitable instruction and encouragement. Those in a position to provide the necessary help should do so.

Second, adults who cannot protect themselves from various sorts of mistreatment, including sexual abuse, should live in a sheltered community, with sufficient care and supervision to forestall most abuse, whether by persons within the community or by outsiders. Even apart from ulterior bad consequences, the sexual abuse of a person who is retarded, like similar abuse of a child, is a grave evil, and its victims also are likely to suffer greatly. While persons who are retarded should enjoy the freedom required to participate in authentic human goods according to their capacities, it is gravely wrong for those responsible for them to neglect to protect them from sexual activities with one another and from being abused by other people who know the wrongness of doing so.

Third, they do grave wrong who, regarding the abuse itself as no great evil and allowing it, seek only to prevent consequences they consider undesirable for themselves or society. If such wrongdoers try to prevent women who are retarded from becoming pregnant by giving them the pill or having their tubes tied, they plainly intend their actions to impede new life and so, in my judgment, they engage in the acts of contraception and sterilization that the Church condemns.

Fourth, a man who engages with sufficient reflection and consent in nonmarital sexual intercourse with a woman incapable of giving or withholding her consent commits the mortal sin of rape (even if he need use no force because his victim offers no resistance or even welcomes his advances). Those who commit such a sin of rape generally also commit a crime. The resources of the law should be used as fully in pursuing and punishing these criminals as in pursuing and punishing those who commit similar crimes against people of greater mental ability and higher social status. Equally important, those who may be tempted to commit such crimes—including all who regularly come into contact with retarded persons—should be warned that they will be prosecuted if they do.

Fifth, papal teaching has neither affirmed nor denied that trying to prevent conception that might result from rape violates the moral norm excluding contraception as intrinsically evil. However, the U.S. bishops have recently taught—and I agree—that trying to prevent conception that might result from rape is consistent with the Church’s teaching.¹⁹⁷ In explaining this position, I presuppose that sexual intercourse should realize and perfect marital communion, which unites spouses so intimately that they truly are one flesh. On this view, conception resulting from marital intercourse is not only the beginning of a new person but the ultimate fulfillment of the spouses’ communion. So, chosen by the married, contraception is both contralife and a mutilation of intercourse that prevents it from actualizing marital communion (see LCL, 506–19 and 634–39). Chosen to forestall a conception resulting from rape, however, preventing conception is a specifically different kind of moral act. Mutilation of marital intercourse is not in question, and preventing conception need not be contralife, because conception resulting from rape has a special significance. It consummates the wrongfully imposed intimate union (which, of course, is one reason why some people, ignoring the child’s distinct being and inherent dignity, mistakenly think abortion uniquely justifiable in cases of rape). Accordingly, I have proposed an explanation of the moral significance of preventing conception due to rape:

Rape is the imposition of intimate, bodily union upon someone without her or his consent, and anyone who is raped rightly resists so far as possible. Moreover, the victim (or potential victim) is right to resist not only insofar as he or she is subjected to unjust force, but insofar as that force imposes the special wrong of uniquely intimate bodily contact. It can scarcely be doubted that someone who cannot prevent the initiation of this intimacy is morally justified in resisting its continuation; for example, a woman who awakes and finds herself being penetrated by a rapist need not permit her attacker to ejaculate in her vagina if she can make him withdraw. On the same basis, if they cannot prevent the wrongful intimacy itself, women who are victims (or potential victims) of rape and those trying to help them are morally justified in trying to prevent conception insofar as it is the fullness of sexual union.
 The measures taken in this case are a defense of the woman’s ovum (insofar as it is a part of her person) against the rapist’s sperms (insofar as they are parts of his person). By contrast, if the intimate, bodily union of intercourse is not imposed on the woman but sought or willingly permitted, neither she nor anyone who permits the union can intend at the same time that it not occur. Hence, rape apart, contraceptive measures are chosen to prevent conception not insofar as it is the ultimate completion of intimate bodily union but insofar as it is the beginning of a new and unwanted person. (LCL, 512)¹⁹⁸

Sixth, since a person’s bodily integrity, which is damaged by mutilation, is an aspect of the basic good of life, it always is wrong to choose precisely to mutilate a person, that is, to remove some bodily part or suppress some bodily function. So, sterilization is wrong as a method of contraception, not only as other forms of contraception are, but also as mutilating (see LCL, 544–45).¹⁹⁹ But it can be right to choose to do something of itself good which at the same time mutilates—for example, to remove a cancerous limb or organ, or even to suppress a function healthy in itself that is gravely harming the body as a whole (see LCL, 542–43). In my judgment, if an attempt to prevent conception that might result from rape were justified, choosing as a means to tie the tubes of a woman who will never be able to consent to intercourse would be choosing, not precisely to mutilate her, but to protect her against the fullness of sexual intimacy—to stop a rapist’s sperm from reaching her ovum and penetrating it.

Seventh, many persons are capable of marital consent despite being somewhat retarded. They have the same right to marry as anyone else, although they may need special help to find a suitable spouse and to carry on their marriage and family life. To sterilize such a person would be a grave injustice toward him or her.

In sum, it seems to me that, if those responsible for the care of a woman so retarded she cannot consent to sexual intercourse have done and continue to do all they should to protect her from abuse, and if it nevertheless remains likely that she will become pregnant again, they could choose to have her tubes tied so as to prevent conception, not insofar as it is the coming to be of a new person, but insofar as it is the fullness of sexual union. In my judgment, that would not be the sterilization the Church condemns and its choice would not necessarily be morally wrong. Even so, tying the woman’s tubes would be morally wrong if she might eventually be capable of marital consent or if there were some medical or psychological factor indicating that the operation was not in her interests.²⁰⁰

196. For some psychological evidence that abortion is not beneficial to victims of rape and incest: Sandra Kathleen Mahkorn, “Pregnancy and Sexual Assault,” and George E. Maloof, “The Consequences of Incest: Giving and Taking Life,” in The Psychological Aspects of Abortion, ed. David Mall and Walter F. Watts (Washington, D.C.: University Publications of America, 1979), 53–110. For some personal accounts by victims of rape or incest who underwent abortion: David C. Reardon, Aborted Women: Silent No More (Chicago: Loyola University Press, 1987), 206–18.

197. National Conference of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services (Washington, D.C.: United States Catholic Conference, 1995), directive 36, provides: “A female who has been raped should be able to defend herself against a potential conception from the sexual assault. If, after appropriate testing, there is no evidence that conception has occurred already, she may be treated with medications that would prevent ovulation, sperm capacitation, or fertilization. It is not permissible, however, to initiate or to recommend treatments that have as their purpose or direct effect the removal, destruction, or interference with the implantation of a fertilized ovum.”

198. With regard to attempts to prevent conception after a rape has occurred, see q. 64, below.

199. Pius XII, Vegliare con sollecitudine (Allocution to the Italian Union of Midwives), AAS 43 (1951) 843–44, Catholic Mind, 50 (Jan. 1952): 55, precisely defines the sterilization that always is immoral: “Direct sterilization, that which aims at making procreation impossible as both means and end, is a grave violation of the moral law, and therefore illicit.”

200. A routine practice of sterilizing women who are retarded is a grave injustice in itself and an even greater injustice toward those capable of marital consent and intentionally deprived of motherhood in a fruitful marriage. I suspect that the conditions I have stated in this proposed reply are seldom met, and that most sterilizations of women who are retarded facilitate neglect and are meant to prevent conception precisely as the beginning of new life. Catholic institutions responsible for the retarded should not, in my judgment, have a woman sterilized; rather, they should provide care and supervision adequate to forestall almost all sexual abuse. Moreover, individuals acting in the name of Catholic entities should not, in my judgment, authorize or consent to sterilization. Such cooperation inevitably would be perceived by many people as approval of sterilization as a method of birth control, and that perception would cloud the Church’s witness to the relevant moral truth and give scandal by contributing to the rationalization of sterilization.