Pontificium consilium de legum textibus interpretandis pontificium consilium pro familia pontificia academia pro vita

III. WOMEN'S RIGHTS AND AUTHENTIC FREEDOM

 

 

What is particularly striking is that young women are far more alienated from "official" feminism than older ones. (American polls reveal that only one college woman in five would describe herself as a feminist.) And this is so even though most women share many of the goals of organized feminism, especially those relating to equal opportunities in education and employment.

The main reason today's women reject the label "feminism," according to a recent study by historian Elizabeth Fox-Genovese, is that they identify the word with a movement and organizations that they perceive as indifferent to their deepest concerns. In particular, they are put off by the official feminist movement's negative attitude toward marriage and motherhood, by its antagonistic attitude towards men, by its intolerance for dissent from its party-line on controversial issues like abortion and homosexual rights, by its inattention to the practical problems of balancing work and family on a day to day basis, and--most of all--by its disregard for the well-being of children.

As women are becoming increasingly critical of social and economic arrangements that seem to be pressuring them to give priority to work over family, they see the official women's movement as having contributed to that pressure--by refusing to defend women who want to give priority (at least temporarily) to family life. They see feminism as reinforcing the idea that the only work that counts is work for pay outside the home.

Perhaps, too, (or so one may hope) women are beginning to realize that many who speak the language of women's rights so seductively are no friends of women. I am referring to the international population control lobby, the commercial sex trade, and to those affluent persons who are so enmeshed in scandalous patterns of consumption that they have come to see the children of the poor as threats to their life-styles (cf. EV, 12, 16). Third world women may light the way to reason here, for they are becoming rightly suspicious of strangers who want to endow them with reproductive rights, but not with clean water, food, medicine, and economic opportunity.

As the claims of extreme libertarian feminism unravel, it does not seem fanciful to expect a new, life-affirming, more "dignitarian" feminism to emerge. The question arises, however: how could we recognize a feminism that advances the civilization of life, as well as the freedom and dignity of women? The few tentative thoughts that occur to me on that subject are so simple-minded that I almost hesitate to give voice to them. But one thing I have learned in twenty-five years of teaching is that it doesn't do any harm to belabor the obvious. So here they are.

First, it will begin, as John Paul II advises, by listening to women when they speak about what is most important to them, rather than arrogantly telling them what they should or should not want. When Elizabeth Fox-Genovese interviewed women in all walks of life, of all ages, she found a much more complex picture than that painted by official feminism. She found that most

women, regardless of whether they have children, feel a special relationship to life, a set of concerns similar to what Erik Erikson has called "generativity." She found that most women who are mothers tend to regard motherhood as the central fact of their lives. At the same time, however, she found that most women, including most mothers, desire to realize as fully as possible their God-given talents in wider economic, social, political, and cultural spheres.

Second, in dealing with women's issues, as with any social problems of great complexity, it seems prudent to keep in mind, as the Holy Father has done, the limited extent of our knowledge concerning what is innate and what is cultural in humans. To be specific, I am referring here to five dogmatic extremes that have shed more heat than light on women's issues: "sameness" feminism which insists there is no significant difference between men and women; "difference" feminism which treats men and women as virtually different species; "dominance" feminism which proclaims female superiority; "gender feminism" which regards "male" and "female" as mere social constructs; and, finally, the rigid biological determinism (associated with some critics of feminism) that would lock women and men into the roles they occupied in some imagined golden age.

Third, an authentic feminism will be inclusive, rather than polarizing. That is, it will treat men and women as partners, rather than antagonists, in the quest for better ways to love and work. It will recognize that the fates of men, women and children, privileged and poor alike, are inextricably intertwined. And that progress for women or men that is made at the expense of children, is progress built on dust and ashes.

Is it contradictory to speak of feminism and inclusiveness in one breath? Yes, if feminism has to be a total ideology, a narrow special interest group, or the foremost claim on a woman's loyalty. But no, if we simply want to recognize that there are certain issues which are of special interest to women and that are likely to be neglected if women do not take the lead in raising them. It is a matter of concern that an unrepresentative coalition of interest groups currently purports to speak for all women.

So far then, I have suggested that an authentic feminism would be responsive, prudent, and inclusive. But I would also like to suggest that a truly life-affirming feminism will have to be radical. I mean radical in the sense of going to the root of things--radical in the sense of the Second Vatican Council which spoke so warmly of the idea that political, social and economic orders should extend the benefits of culture to everyone, and help individual men and women develop their gifts in accordance with their innate dignity (Gaudiam et Spes, Part 1). I mean radical in the sense of John Paul II who, more than any other pope, has insisted on the role of lay people, calling on lay men and women to put their shoulders to the wheel in building a "new civilization of life and love."

To see just how revolutionary that would be, let us come back to the work-family dilemma I mentioned earlier. Is anyone ever going to find a better way of handling that thorny set of problems without fundamentally re-assessing the value we attach to various kinds of work in our society? Were not the nineteenth century feminists correct when they criticized social arrangements that required women to make all kinds of sacrifices, but accorded little respect or reward to women's unpaid work?

One reason that the work-family dilemma remains a Gordian knot is that it is virtually unprecedented. For all of human history until our present decade, the majority of the world's inhabitants have lived in villages and worked in interdependent family enterprises. We have still not adjusted to, and come to terms with, the separation of home and business that took place a century ago in the developed countries, and that is now occurring in the third world.

The breadwinner-homemaker pattern that emerged when men first began to work outside the home paradoxically rendered the position of women and children more dependent and unstable. The current double-earner pattern re-established a kind of inter-dependence, but has created a child-care crisis. If we try to bring to bear on this situation the Church's teachings on the dignity of paid and unpaid labor together with her teachings on the dignity of women and the importance of the family, it seems that we are pointed toward nothing less than a cultural transformation. Gaudiam et Spes gave its blessing to the yearnings of men and women for "a full and free life worthy of [the human person]" (GS, 1). Laborem Exercens tells us that working women should not suffer discrimination, and stresses that "The true advancement of women requires that labor should be structured in such a way that women donot have to pay for their advancement by abandoning what is specific to them and at the expense of the family" (19). In U.N. contexts, the Holy See has maintained that, "promoting women's exercise of all their talents and rights without undermining their roles within the family will require calling not only husbands and fathers to their family responsibilities, but governments to their social duties." Pope John Paul II stresses that, "it will redound to the credit of society" to make it possible for a mother not to work outside the home on account of economic need (LE, 19).

Taken together, those propositions require (in the words of Laborem Exercens and Centesimus Annus) "addressing the question of human work in new ways and discussing it in a wholly new manner" (LE, 5), even imagining a new "culture of work" (CA, 15). The task of building a new culture of work in turn will require recovering respect for the dignity of all legitimate types of work (LE, 9, 26). It will require recalling the spiritual dimension of work: the way in which work permits us to participate in the mystery of creation, and also the way it permits us to share in the Cross of Christ. It will require asserting the priority of human over economic values, and combating attitudes of disdain for care-taking and service. Think of it: human values ahead of economic values; the dignity of all types of work. That is a radical program. It goes to the root of the materialism of captialist and socialist societies as we have known them. It calls for profound change at both the personal and social levels. But isn't that what Christianity requires of its followers? We call it conversion and the coming of the Kingdom. Will anything less suffice?

  

IV. WOMEN AND THE CIVILIZATION OF LIFE

 

 

In the fateful contest now being waged between the culture of death and the civilization of life, John Paul II has suggested that women are likely to have unprecedented opportunities to play crucial culture-saving, culture-shaping roles (Apostolic Letter to Women, 4). He has suggested that women have special gifts, a "feminine genius" that the broken world needs now more than ever.

One thing is clear. Part of the world that is "even now passing away" is the old-line, hard-line feminism of the 1970s. It has failed to win the adherence of the majority of women, even in the United States where it had so many influential spokespersons.[v]

 

Certainly in the past it has often been women who have preserved the culture of life, through wars, famines, migrations, and hardships of every kind. In Democracy in America, Tocqueville gave us an arresting verbal portrait of women on the Western frontier in the 1830s, facing a future filled with danger and uncertainty:

In the utmost confines of the wilderness I have often met young wives, brought up in all the refinements of life in the towns of New England, who have passed almost without transition from their parents' prosperous houses to leaky cabins in the depths of the forest. Fever, solitude, and boredom had not broken the resilience of their courage. Their features were changed and faded, but their looks were firm.[vi]

If we look around us today, I believe we see a similar courage in women who are raising families under conditions of great hardship and insecurity. The current generation of women has its own frontier--the unknown territory created by two decades of drastic changes in social and economic behavior. Whether the lives of women in the future will be spent in a steel and concrete wilderness, shuttling exhausted between job and home, underpaid in the former, undervalued in the latter, will to some extent depend on the men and women of today. Future generations will judge whether our efforts made our societies more--or less--hospitable to new life, to frail life, and to the good women and men who nurture new life, minister to the needy, and provide consolation and care for the sick and dying.

Let us make no mistake about the scope of the task ahead--it is, as I have said, nothing less than a cultural transformation. But consider the remarkable tranformations effected by the Church in the ancient world: it liberated women from the yoke of ancient tribal customs; it established monogamy and the indissolubility of marriage not only in law but to a remarkable degree in practice; and it affirmed the equal dignity of women in the mystical body of Christ: "Among you who are baptized in Christ Jesus, there is neither male nor female, Jew nor Greek, slave nor free!" Now, it appears, the Church must rise to the occasion again, but it is heartening to know that she will be aided this time by many men and women of good will of other faiths.

To be sure, the challenge is immense. As pointed out in Evangelium Vitae, the "choice to defend and promote life" can be "so demanding as sometimes to reach the point of heroism" (EV, 11). But is it not part of the secret of John Paul II's radiant influence in the world today that men and women—and young people especially--want to be called to do what is difficult? Like Moses of old, he reminds us that we need not be afraid: "For it is the Lord your God who marches before and beside you; he will be with you, and will never fail or forsake you."

[i]. See, generally, M. Glendon, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (University of Chicago Press, 1989).

[ii]. See generally, M. Glendon, Rights Talk: The Impoverishment of Political Discourse (Free Press, 1991).

[iii]. Olmstead v. United States, 277 U.S. 438, 478 (1928) (dissenting opinion of Justice Brandeis).

[iv]. Bundesverfassungsgericht Decision of July 7, 1970.

[v]. The data are collected in Elizabeth Fox-Genovese's "Feminism is Not the Story of M y Life" (New York: Doubleday, 1995).

[vi]. Alexis de Tocqueville, Democracy in America (New York: Doubleday, 1969), p. 594.

THEO MAYER-MALY
 

IL DIRITTO ALLA VITA E LA TRASMISSIONE DELLA VITA 
NEI DIVERSI SISTEMI ED ESPERIENZE GIURIDICHE CONTEMPORANEE 

 

At the beginning of our century in all civilized countries there existed an all-embracing protection of life. Nowhere abortion was permitted or tolerated, everywhere it was severely punishable. The sentence of the ius commune "nasciturus pro iam nato habetur" had exerted various effects. Nowhere euthanasia was permitted. Suicide itself was not punishable but aiding in it quite well.

However, there also were shady sides: The infant mortality was high, not least due to poverty, which also was the reason for the spreading of tuberculosis. Many labours also caused professional diseases as for instance the construction workers? silicosis. It is not to be overlooked that all States had capital punishment

At the beginning of our century the protection of life was regulated by simple laws. In the 19th century the right to life was not a topic for the catalogues of fundamental rights. Their starting point was the protection of the freedom of worship.[1]

Only in recent guarantees of fundamental rights the human right to life is mentioned. The main impulse gave the massextermination of jews, of incapacitated persons and of Romas and Sintis.

The most important international documents guaranteeing a protection of life are the following:

a) The "Universal Declaration of Human Rights" which was passed by the General Assembly of the United Nations on December 10, 1948 (in its art. 3);

b) The European Convention on the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 (in its art. 2);

c) the International Covenant on Civil and Political Rights of December 19, 1966 (in its art. 6).

The Universal Declaration of 1948 says simply that every man has the right to life, freedom and security of the person. The International Covenant of 1966 is more detailed: It characterizes the right to life as an inate right and proclaims the duty of the States to protect it by law. Moreover it says: "Noboday may be deprived of his life arbitrarily." The following paragraphs of art. 6 of this Covenant deals with genocide "nowadays called ethnical purge" and capital punishment. The attitude of the Encyclical Evangelium Vitae towards the latter is quite reserved.

Faced with these texts the advocates of the infringement of the protection of life had no other possibility than to fix the beginning of human life as far away as possible from the conception and to determine it by the birth or at least at a relatively progressed development of the embryo. This becomes extremely clear in a booklet by Norbert Hoerster "Abtreibung im säkularen Staat" ["Abortion in a secular State"] (Frankfurt/Main 1991). Based on Peter Singer's[2]"practical ethics" Hoerster maintains (loc.cit. 82), that one has not to refer to the fetus as a person or as a human being. He even goes so far (on page 87 s.) as to say that "the privileges of the fetus compared to the animal world as far as the protection of life is concerned" can not be principally substantiated.  Hoerster ascribes a very high ranking to the protection of animals. Even if not underrating the respect for the protection of animals one has to remark that in many argumentations an infringement of the protection of human life goes hand in hand with the promotion of an intensified protection of animals.

The most effective international formulation of the protection of life is to be found in the European Convention on the Protection of Human Rights.  This is due to the fact that it has made the protection of life a subject of a court's decision and that it has more clearly defined it by stating exemtions. According to art. 2 of the Convention "everyone's right to life shall be protected by law". The

Convention states four exemtions:

a) capital punishment as the execution of a court's sentence

b) killing in defence of any person from unlawful violence

c) killing on the occasion of lawful arrest

d) killing in an action lawfully taken for the purpose of quelling a riot or insurrection.

When evaluating the admissibility of an abortion it depends decisively on the fact whether one acknowledges that the embryo is a person. In this context I may report that the Accademia Pontificia per la Vita will deal with the status of the embryo in its next plenary meeting. The central importance of this topic is clear.

It can not be discussed that extremely incapacitated and fatally ill persons are human beings. Nevertheless the euphamistically so-called euthanasia, which is permitted or discussed in many countries "mainly in the Netherlands " results in the killing of living beings whose status as a person cannot be doubted. It makes only a difference in degree but not principally wether this killing happens with or without the consent of the victim. In criminal law as well as in ethics it is accepted that a negatively evaluated action is not positively or at least neutrally evalutated by the consent of the person against whom this action is directed. Last wills of patients are to be considered as especially dangerous, when a person in good health makes arrangements for himself to be killed in case of his gravely disease. Here a decision is made in a mental state which might completely differ from that in the moment of the execution. A healthy person not wanting to live in illness might very well prefer life to death when being sick. Additionally relatives who might have become weary of care or who have the duty to pay a life annuity might exert a disastrous pressure to induce mercy killing. The Encyclical Evangelium Vitae in all this cases follows a line which is in view of the complexity of the situations especially impressive because of its clarity.  The Encyclical is moreover characterized by great empathy (not to use the dazzling word "humanity").

In point 65 the Encyclical makes clear that therapeutic overeagerness is not demanded. This means that medical especially medical-technical measures can be omitted which do not correspond to the situation of the patient. Thus it is permitted to turn off the heart-lung-machine; one has not to proceed in a manner as it was the case with the Yugoslav President Tito.

Further the Encyclical permits (also in point 65) a "palliative treatment". Painkillers may be administered even if this involves the risk of shortening life.

The standpoint of the advocates of a more far-reaching mercy-killing is by far not so clear. Differing opinions are maintained as to the patient's state of health and mental state, as to the role of the relatives and to the number of doctors to be consulted.  Faced with the clearly limited number of exceptions contained in art. 2 of the Convention on Human Rights concerning the protection of life the above-mentioned colleague Norbert Hoerster "who feels himself to be a legal positivist" gave me an disarming answer in a discussion: One has to amend art. 2 of the Convention on Human Rights ? as if human rights were something which can be changed from year to year like a law on taxes or a law on street traffic.

Only a few states have adopted the internationally granted protection of life in their constitutional law by special guarantees of fundamental rights. Among those States are Spain and the Federal Republic of Germany.

Art. 15 of the Spanish Constitution of December 29, 1978 says that everyman has the right to life and to physical and moral integrity.

The German Constitution ("Grundgesetz") says in the first sentence of the 2nd paragraph of its art. 2: "Everybody has the right to life and to physical integrity." The third paragraph, however, says that a statutory law may infringe these rights.

This German proviso of legality for the protection of life shows a problem which was precisely indicated in point 18 of the Encyclical Evangelium Vitae: Just in a time which has devoted itself to the idea of human rights in simple laws and in judicature the protection of life is more and more violated ? be it by permitting abortions and killing of embryos in the so-called medicine of reproduction or by interfering into life by the so-called euthanasia.

The German discussion on abortion had taken a varied course which resulted in a heavy defeat of the protection of life.[3]It had occurred on two levels: on the level of legislation and on that of constitutional jurisdiction.  In this context it has to be pointed out that the Encyclical does not only remind us of the moral responsibility of the legislator, but also that of all other persons with a decision-making mandate (in point 90: "especially when he or she has a legislative or decision-making mandate").

Up to the year 1974 abortion[4] was punishable in general in Germany. Afterwards the 5th Law on the Reform of Criminal Law[5] introduced a "Fristenregelung", which made an abortion unpunishable performed in the first thirteen weeks of pregnancy. The first senate of the German Constitutional Court did not approve of this provision. In its decision of February 25, 1975[6] it was repealed as being a violation of art. 2 of the European Convention on Human Rights and of art. 2 of the German Constitution.

In the 15th Law on the Change of Criminal law ("Straf­rechtsänderungsgesetz")[7] the German legislator adopted the principle of indication, which also contained the "social indication".  Inspite of constant polemics against § 218 of the Penal Code the legal situation was only shaken by the German reunion. The "German Democratic Republic" (DDR) had to a wide extent permitted abortions. Para. 4 of art. 31 of the treaty between the Federal Republic of Germany and the German Democratic Republic on the restauration of the German unity of the "Einigungsvertrag"[8]  instructed the allover German legislator to find a settlement that would better guarantee the protection of pre-natal life and the constitutional-conform mastering of conflict situations of pregnant women, mainly by means of legally secured entitlements of women, especially by counsil and social help, than this is the case in both parts of Germany. The deadline for the accomplishment of this mandate was to be December 31, 1992. In the following discussion the German president of the Bundestag Mrs. Süßmuth from the CDU suggested to combine the present indication with the Fristenregelung. With the votes of several parliamentary parties a Law on the protection of prenatal/developing life, on the promotion of an antichildren society, on the help in conflicts of pregnancy and on the regulation of interruption of pregnancy was resolved. This law was not only euphamistically, but also disguisingly named "Law on the Help for Pregnant Women and for Families" (Schwangeren- und Familienhilfegesetz)