The Ethics of Fetal Tissue Research: Catholic Perspective

Introduction

Few if any areas of applied theological ethics have engaged the teaching authority (Magisterium) of the Catholic Church more than the impact of advances in biomedical research on the life and dignity of the human person. The Instruction Dignitas personae (2008), issued by the Congregation for the Doctrine of the Faith (CDF) with the approbation of Pope Benedict XVI, conveys this point in its very first sentences:

The dignity of a person must be recognized in every human being from conception to natural death. This fundamental principle expresses a great “yes” to human life and must be at the center of ethical reflection on biomedical research, which has an ever greater importance in today’s world. The Church’s Magisterium has frequently intervened to clarify and resolve moral questions in this area. The Instruction Donum vitae [1987] was particularly significant. And now, twenty years after its publication, it is appropriate to bring it up to date.[1]

Where Donum vitae focused more on the morality of assisted reproductive technologies and their impact on the dignity of marriage and protection of the human embryo, Dignitas personae casts a wider net, bringing Church teaching “up to date” regarding the emergence of new biomedical technologies “that have given rise to further questions. . . . These new questions require answers.”[2] Among the questions are those presented by “the use of human ‘biological material’ of illicit origin,”[3] the subject of the present Report.

At one level, it could be said that the Magisterium has not engaged as closely with the specific issues of fetal tissue research (FTR) or transplantation as it has with other forms of biomedical technology. For example, both Donum vitae and Dignitas personae include specific descriptions of various forms of assisted reproductive technologies and human embryo research while being relatively silent on the specifics of fetal tissue research and transplantation. However, “magisterial” teaching is not limited to formal Instructions issued by the CDF; furthermore, the principles enunciated in both Donum vitae and Dignitas personae, as well as their respective discussions of other biomedical technologies, provide a solid basis on which to conclude that the “fetal tissue economy” described in the introductory paper in this Report runs afoul of Church teaching.

Fetal Tissue Research and Transplantation

The earlier Instruction, Donum vitae, emphasizes that the corpses of embryos and fetuses, whether deliberately aborted or not, “must be respected just as the remains of other human beings.”[4] As in the case of adult corpses, “all commercial trafficking must be considered illicit and should be prohibited.”[5] However, even where the law prohibits direct payment for fetal cadaveric tissue, such prohibitions do not restrict the indirect and in-kind forms of exchange documented by the Congressional Select Committee, nor the general commodification of fetal tissue that leads medical researchers to depend on the legality of elective abortion well into pregnancy—a clear conflict with Donum vitae’s teaching “that there be no complicity in deliberate abortion and the risk of scandal be avoided.”[6]

Moral complicity and scandal are also the chief concern in Donum vitae’s treatment of the use of fetal remains. The 2008 Instruction cites the specific example of cell lines derived from abortions, used “for scientific research and for the production of vaccines or other products,” the fetal material being available commercially or through government auspices. Due to the replicative qualities of the cell lines, “connection to the unjust act may be either mediate or immediate”; it is fitting, therefore, “to formulate general principles on the basis of which people of good conscience can evaluate and resolve situations in which they may possibly be involved on account of their professional activity.”[7]

The Church’s specific language regarding moral complicity or “cooperation” with evil, as well as “scandal,” warrants brief explanation. Taking the latter concept first, “scandal” does not mean the shock and/or fascination attending the public exposure of moral failing; rather, to “cause scandal” is to perform an action that increases the possibility that those who witness the action might engage in immoral actions themselves.[8] The aggressive support of legal abortion, including public funding thereof, by some Catholic politicians is one contemporary example of causing scandal, by suggesting in a public manner that such support is compatible with being a faithful Christian. The perpetuation of the “fetal tissue economy” clearly poses an analogous risk. As recognized even by supporters of legal abortion, the continuing demand for fetal tissue and organs commodifies woman’s innate gestational capacity. Further, the oft-exaggerated claims regarding the benefits and potential of fetal tissue research and transplantation either ignore this fact or suggest that the donation of fetal tissue can mitigate the tragic nature of abortion itself—as seen in the “informed consent” document employed by certain Planned Parenthood affiliates.[9]

For this reason, Donum vitae (addressing the practice of embryo research) firmly rejects the “principle of separation” that is the foundation of both American and British public policy on FTR:

The criterion of independence as it has been formulated by some ethics committees in not sufficient. According to this criterion, the use of “biological material” of illicit origin would be ethically permissible provided there is a clear separation between those who, on the one hand, produce, freeze and cause the death of embryos and, on the other, the researchers involved in scientific experimentation. The criterion of independence is not sufficient to avoid a contradiction in the attitude of the person who says that he does not approve of the injustice perpetrated by others, but at the same time accepts for his own work the “biological material” which the others have obtained by means of that injustice. . . . It is necessary to distance oneself from the evil aspects of that system in order not to give the impression of a certain toleration or tacit acceptance of actions which are gravely unjust.[10]

In addition to avoidance of scandal, participation in the “economy” of FTR risks cooperation with evil. This concept, traditionally associated with the work of St. Alphonsus Liguori (1695–1787), assesses the moral culpability of one who, though not the principal agent of a morally objectionable activity, nonetheless “cooperates” in either a formal or material fashion in the evil act. All acts of “formal” cooperation are sinful; such cooperation consists in contributing to the “bad will” of the principal agent, thus becoming an integral part of the evil act. An example would be the direct participation of a medical student or resident in an immoral procedure; even if the subjective intention of this “cooperator” was simply to complete an academic requirement, his or her actions contribute directly to completion of the evil act. In contrast, some acts of “material” cooperation are sinful, and some are not. Defining this distinction has engaged moral theologians and pastors for centuries; for our purposes, it is sufficient to recognize the distinction between immediate material cooperation (in which the cooperator provides material that is necessary for completion of the wrongful act), and mediate material cooperation (in which the material provided is not necessary). Only some forms of mediate cooperation, those which do not lead to commission of the immoral act, escape censure.

Contemporary theologians have suggested that this “classic” framework needs refinement. Jesuit scholar Rev. Kevin Flannery critiques the classic approach of Alphonsus Liguori as relying too heavily on the intention of the cooperating agent. In its stead, he proposes that acts of alleged cooperation be assessed in the same manner as other human actions. Adopting “tools of analysis” rooted in the moral theology of St. Thomas Aquinas, Flannery states that the proximity of one’s actions to the evil act of another, as well as the Aristotelian concept of circumstances (the who, what, when, where, how, why, means, etc.) are decisive in determining “the ways in which acts of cooperation are situated within the reality of justice itself.”[11] Liberal theologian and law professor Cathleen Kaveny states that the traditional categories of formal and material cooperation are fundamentally ill-suited to address cases such as FTR. Rather, FTR should be viewed as a case of appropriation, where third parties benefit (either proximately or remotely) from the initial evil act.[12]

Elements of all these approaches can be seen in Donum vitae’s statements regarding cooperation; however, the fundamental principle is the requirement that the medical and research professions affirm the intrinsic value and dignity of human life. Those so engaged must pursue their work

in a just manner and . . . give witness to the value of life by their opposition to gravely unjust laws. Therefore . . . there is a duty to refuse to use such ‘biological material’ even when there is no close connection between the researcher and the actions of those who performed the artificial fertilization [which yields “excess” embryos] or abortion.[13]

While the Instruction does not address the point in detail, both appropriation and circumstance-specific analysis support its conclusion: the CDF is stating that one should neither benefit from evil actions (particularly those now endorsed in law) nor contribute, even in distanced manner, to the circumstances that perpetuate these practices.

The Question of Vaccines

The Instruction also recognizes that “within this general picture there exist differing degrees of responsibility.”[14] The example given—the receipt of vaccines produced from cell lines derived from a past abortion—looms large at the time of publication. Dignitas personae states that “grave reasons may be morally proportionate to justify” such use of fetal tissue, as long as “everyone” recognizes the duty to object and ask for vaccines developed by other means. The SARS-CoV-2 pandemic gave greater urgency to this question; at the pandemic’s outset, the U.S. Conference of Catholic Bishops urged the production of vaccines not using descendant fetal cell lines,[15] and various commentators opined on the moral liceity of the different forms of vaccines then in the early stages of research and production. At the pandemic’s height in December 2020, and coinciding with the release of the first vaccines, the CDF issued a “Note on the Morality of Using Some Anti-Covid-19 Vaccines.” Echoing Dignitas personae, the Note emphasizes that the responsibility of those who make the decision to use fetal cell lines “is not the same as those who have no voice in such a decision.”[16] Thus, in cases where “ethically irreproachable” vaccines are not available, including in cases where persons are not given the choice of which type of vaccine to receive, “it is morally acceptable to receive Covid-19 vaccines that have used cell lines from aborted fetuses in their research and production process.”[17] The reason, the Note explains, is that the kind of cooperation (which it calls passive material cooperation) is remote; under the circumstances, there is no obligation to avoid such remote cooperation, which of course has not led to the commission of the long-ago abortion.[18] The Note further explains that this does not constitute an endorsement of vaccines produced in this manner, nor impose an obligation on those who refuse, for reasons of conscience, to receive such vaccines—although such persons should take measures to protect themselves and others from transmission of the virus.[19] Finally, the obligation remains “for the pharmaceutical industry, governments, and international organizations to ensure that vaccines, which are effective and safe from a medical point of view, as well as ethically acceptable, are also accessible to the poorest countries in a manner that is not costly for them.[20]

The CDF’s Note did not end the controversy regarding the use of vaccines (such as Johnson & Johnson’s) that were produced using fetal cells lines. A week before the CDF’s Note, the United Sates Conference of Catholic Bishops gave conditional approval to receipt of the cell line-produced Astra Zeneca vaccine (which turned out not to be used in the United States), but favored use of the Moderna and Pfizer vaccines, in which fetal cell lines were only used in the process of testing.[21] Even after the CDF’s Note, individual U.S. bishops stated that Catholics should in all cases refuse vaccines (such as Astra Zeneca and Johnson & Johnson) that were produced using fetal cell lines. In evident response, a group of pro-life Catholic scholars (scientists and ethicists) issued a statement in March 2021 concluding that from the standpoint of cooperation with evil, there is no ethical difference between the vaccines produced using the HEK293 cell line and those where the cell line is used only for testing. The statement noted that “the HEK293 cell line currently used around the globe in scientific research and those like it do not contain the remains of any human and so its use does not show disrespect for human remains.” Accordingly, the signers concluded that there is not “impermissible cooperation or appropriation” due to the “attenuated and remote connection to abortions performed many decades ago and the absence of any incentive for future abortions.”[22]

Thus, under Catholic moral teaching, a clear distinction exists between the production of vaccines using cells lines such as HEK293 and FTR. In the latter case, the abortions are performed contemporaneous with the research on the resulting cadaveric tissue; the connection to those abortions is thus neither attenuated nor remote. Whether grounded in “Liguorian” formal/material cooperation analysis, “Thomistic/Aristotelian” analysis of human action, or the new approach of appropriation, Catholic teaching rejects the current practice of FTR and accepts, with some conditions, the receipt (and perhaps even production) of vaccines using cell lines such as HEK293.

References

[1] Congregation for the Doctrine of Faith (CDF), Dignitas personae (Rome: CDF, September 8, 2008), 1, https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20081208_dignitas-personae_en.html (emphasis in original).

[2] CDF, Dignitas personae, 1.

[3] CDF, Dignitas personae, 34–35. Other issues addressed by the Instruction include in-vitro fertilization and associated freezing and destruction of embryos; preimplantation genetic diagnosis; gene therapy; hybrid and human cloning; and therapeutic use of embryonic stem cells.

[4] CDF, Donum vitae (Rome: CDF, February 22, 1987), I.4, https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19870222_respect-for-human-life_en.html (emphasis in original).

[5] CDF, Donum vitae, I.4.

[6] CDF, Donum vitae, I.4.

[7] CDF, Dignitas personae, 34.

[8] Cathleen Kaveny, “Appropriation of Evil: Cooperation’s Mirror Image,” Theological Studies 61, no. 2 (2000): 280, 285–86, https://doi.org/10.1177%2F004056390006100204.

[9] Bioethics and Fetal Tissue: Hearing Before the Select Investigative Panel, H. Comm. on Energy and Commerce, 114th Cong. (March 2, 2016), exhibit A-3, https://docs.house.gov/meetings/IF/IF04/20160302/104605/HHRG-114-IF04-20160302-SD030.pdf.

[10] CDF, Dignitas personae, 35 (emphasis in original).

[11] Kevin L. Flannery, Cooperation with Evil: Thomistic Tools of Analysis (Washington, DC: Catholic University of America Press, 2019), 204.

[12] Kaveny, “Appropriation of Evil,” 294–97.

[13] CDF, Dignitas personae, 35.

[14] CDF, Dignitas personae, 35.

[15] Joseph F. Naumann, Chairman, USCCB Committee on Pro-Life Activities et al. to Stephen M. Hahn, Commissioner, U.S. FDA, April 17, 2020, https://www.usccb.org/resources/Letter%20to%20FDA%20urging%20ethical%20COVID%20vaccines_0.pdf (other signatories included Russell Moore, President, Southern Baptist Ethics and Religious Liberty Commission).

[16] CDF, Note on the Morality of Using Some Anti-Covid-19 Vaccines (Rome: CDF, December 21, 2020), https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20201221_nota-vaccini-anticovid_en.html.

[17] CDF, Note on the Morality of Using Some Anti-Covid-19 Vaccines, 2 (emphasis in original).

[18] CDF, Note on the Morality of Using Some Anti-Covid-19 Vaccines, 3 (terms emphasized in original).

[19] CDF, Note on the Morality of Using Some Anti-Covid-19 Vaccines, 5.

[20] CDF, Note on the Morality of Using Some Anti-Covid-19 Vaccines, 6 (emphasis in original).

[21] Chairman of the Committee on Doctrine and the Committee on Pro-Life Activities, United States Conference of Catholic Bishops, “Moral Considerations Regarding the New COVID-19 Vaccines,” United States Conference of Catholic Bishops, December 11, 2021l, https://www.usccb.org/moral-considerations-covid-vaccines.

[22] Ryan T. Anderson et al., “Statement from Pro-Life Catholic Scholars on the Moral Acceptability of Receiving COVID-19 Vaccines,” Ethics & Public Policy Center, March 5, 2021, https://eppc.org/news/statement-from-pro-life-catholic-scholars-on-the-moral-acceptability-of-receiving-covid-19-vaccines/.