The Ethics of Medical Homicide and Mutilation

by Austin O'Malley

Suppose the second party is informed of the old infection and is then foolish enough to risk the marriage. No one but an experienced physician has any notion of the indescribable horror that may come of taking this risk, and no one has the right to expose his own body to infection by syphilis for the advantage of marriage. There is no approach to a juridic equilibrium between these two conditions. If in such a marriage children are begotten and infected, (1) embryos will die without baptism; (2) later possible children will be born who will die of congenital syphilis; (3) possible children who will escape syphilis; (4) children who may have to pass through tabes or paresis to death, after begetting other degenerates.

A syphilitic embryo which dies without baptism is better than no child at all. It will live in a state of natural happiness after abortion. A baptized child which has congenital syphilis is immeasurably better off than a sound child that lacks baptism. Eugenics as a prudent investigation of conditions before marriage is a good thing; eugenics as the drivel of agitators, who cannot tell the difference between a gentleman and a corn-fed hog, is quite another thing. The marriage, therefore, of a person who has been syphilitic to one who knows or does not know of this condition gets its mortality chiefly from the damage to one of the contracting parties which is imminent. It is difficult to estimate the morality of the act as it refers to the children infected congenitally, and to society.

The natural order, charity, justice, and related principles give every child the right to be born with bodily health, if such an event is possible. If it is not possible in particular circumstances, then melius esse quam non esse, and the decision in each case depends on its own qualities.

If a physician knows that a person who has been infected with syphilis is about to marry, should the physician warn the innocent party?

There are several conditions: (1) the infected person about to marry may be actively infectious; (2) the person may be probably infective, as any one is who has once had syphilis; (3) the physician may know the fact of the infection officially or unofficially; (4) the infective person may have gone to the physician for treatment for a condition not connected with the syphilis—say, for a bronchitis or a broken bone—and the physician in the examination discovers syphilis.

Again, there are various kinds of secrets. St. Alphonsus Liguori[161] classifies secrets in three groups: (1) natural; (2) promised; (3) entrusted secrets. A natural secret is one which obliges us in justice to observe it if divulging it will gravely injure any one in reputation or possessions. We are not obliged to observe a secret of this kind at the risk of our lives unless the damage from the divulging would affect the community gravely. A promised secret obliges to silence either gravely or lightly, according to the intention of the promiser. Where reasonable doubt exists as to grave obligation, such obligation does not exist. A promise to secrecy made even under oath is not binding if one is obliged in justice to reveal the secret; therefore we must testify to the crime of another when a judge legitimately demands our testimony, even if we have promised not to tell anything. If a secret is entrusted to one, and divulging would cause grave damage, but justice, or similar circumstances, do not oblige us to reveal it, we are bound to observe it even when questioned by legitimate authority. Then we may answer we know nothing about it, at least for revelation. St. Alphonsus's text is: "Potes respondere te nihil scire, scilicet ad revelandum." His meaning seems to be: "You may say you know nothing about the matter inquired into." Any other signification would be futile. To say literally, "I do not know anything I may tell," would only expose one to punishment for contempt. He seems to make the answer a conventional denial, like the "not guilty" of a criminal. A judge may not abrogate the natural right by which an entrusted secret is protected, unless the secret is already known in some other way, or there is a just cause for revealing it.[162]

When an entrusted secret, however, which is also called a strict or absolutely natural secret, is imparted expressly or tacitly, say, to physicians, lawyers, or priests, and becomes a professional secret, it obliges more strictly than any other. There are four conditions under which such an entrusted secret may be revealed, at least without mortal sin (except by a confessor): (1) If we have the presumed consent of the principal. (2) If the material of the secret is trivial, or if it is known from another source, or is already public. Is it a mortal sin to divulge a grave entrusted secret to a responsible person who is under the same bond? St. Alphonsus, De Lugo, and others say probably it is not, provided the secret is not divulged to the particular person from whom the principal wished it to be concealed. The term probably here is technical and refers more to the absolute truth of an assertion than to its practical application. (3) One might reveal such a secret without mortal sin, through inadvertence or thoughtlessness, or under the supposition that it is not a grave secret. Some moralists hold, however, that to excuse from mortal sin, the revealer must be certain that the matter of the secret is not grave. (4) Such a secret may be revealed if keeping it would cause public injury, or injury to an innocent person, or injury to the person to whom the secret has been entrusted; then the law of charity demands that it be revealed. Therefore, even if one has bound himself under oath, he may reveal the secret—always excepting a priest or confessor. This is the common doctrine of moral theologians. It is for the common good of human society that entrusted secrets be absolutely kept unless so grave a damage befalls another from such observance that it becomes more conducive to the public good to reveal than to conceal. To let an infective syphilitic, for example, spread his contagion merely because an entrusted secret should be kept is a much greater damage to the public than a good.

Barrett[163] says a physician may not divulge the diseases of a family to an insurance company unless the family assents; he may not tell the man before marriage that the woman had been operated upon, say, for ovariotomy, unless the woman gives permission; nor may he let the woman know, before marriage, of those diseases of the man which are not contagious. Ho says further that if a man has had syphilis and is now completely cured, the physician may not reveal this previous condition to the woman.

That doctrine about ovariotomy, if it includes double ovariotomy, is disputed by physicians because, they say, such a woman is sterile and she knowingly is going to deprive the man of his chances of having children; secondly, a woman upon whom double ovariotomy has been performed is almost always a neurasthenic invalid with a marked tendency to insanity, and it is a grave injustice to any man to saddle such a degenerate upon him for life by treachery. The prospective injury to the man is so great that the physician should first try to induce the woman to divulge her condition, and if she does not, the physician at least may divulge it.