The ecclesiastic and secular prohibition of abortion in the Roman East

Here we present selected parts of the very interesting essay titled “The embryo in Byzantine Canon Law“, by S. Troianos*

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The embryo has been the object of regulating interventions by the Byzantine canonical legislator primarily with respect to two issues: abortion and the sacrament of Baptism. The specific problems posed were: whether abortion constituted a penally significant act according to the law of the Church and, if so, with what justifying reason; and whether the embryo is supposed to be “cobaptised” together with the mother during gestation. A common starting point for the answer to both of these questions was the definition of the embryo from an ontological point of view, as well as whether and from what moment in time it constituted a living being.

Greek philosophy and Roman law

According to the Stoics the embryo did not possess a distinct entity, but was perceived as a component of the mother’s body, just as the “hanging fruit” forms part of the tree. For them, the moment the newborn drew its first breath was equivalent to the commencement of human existence. The opposite view, that the embryo possessed ontological autonomy, was maintained by the adherents of Platonic philosophy.

The position of the Stoics dominated classical Roman thought. “The borne embryo forms part of the woman or the viscera before its birth,” Ulpianus reveals in Pandectes. Papinianus is even more categorical in another passage of the same codifying work: “It is not right to refer as human to the borne embryo to which has not yet been given birth.” This manner of contending with the embryo resulted in the apprehension under Roman law for many centuries that the interruption of gestation was not a penal act.

It was only in the late 2nd or early 3rd centuries A.D., during the co-sovereignty of Septimius Severus and Antoninus Caracalla (195-211 A.D.), that a resolution was adopted for the punishment of abortion. Even then, however, the act of abortion was not defined as homicide, and not even placed in the wider context of crimes against human life, but was deemed a deception of the male and a denial of his ambitions to acquire a successor. That is, if the relevant decision had been made by the male or, at least with his consent, the act was deemed not punishable. This is not to imply, however, that penally insignificant cases were met with unreserved and unopposing social acceptance. Indeed, it seems that judgements as to the ethical unworthiness of the deed were not rare.

The response of ecclesiastic authors of the first centuries A.D.

The response to these apprehensions of the Stoa, and primarily their legal ramifications, came from the Church. Conspiciously influenced by ancient Greek thought as to the evaluation of physical phenomena, Christian teaching aligned itself from very early on with the view that the embryo was ontologically autonomous. One could find the opinion of Tertullianus (þ160-220 A.D.) on this point quite enlightening. This famous ecclesiastical author of the West, being a significant jurist as well, held that impeding birth constituted homicide, since “man is also a man-to-be.” His concepts are further elucidated in another passage of his work, with the clarification: “The fruit inside the mother’s body is a human being from the very moment that its shape is completely formed.”

But even before Tertullianus, Athenagoras the Apologist (late 2nd century A.D.) touches upon the same subject, although indirectly and without specificity, but with explicit reference to practical matters. Refuting various accusations by the pagans, he states that christians regard as murderers any women that use means to induce abortion. From this assimilation of abortion to homicide it follows that the embryo being exterminated is endowed with human existence.

Traducianismus vs. Creationismus

Let us return however to Tertullianus and his views on the “animation” of the embryo. According to these, as witnessed by an analysis of his works, the soul’s entrance into the embryo is completed at conception and the soul is inherited from the parents. This theory, whose foundation was laid by Tertullianus, was named traducianismus or generationismus. This theory’s opponents held that God creates a new soul for every human being (creationismus).

But although the embryo is already a living creature from the moment of conception, human existence commences with the appearance of the human form which, according to then prevailing theories in physiology-as mentioned above-takes place round by the 40th or 80th day.

This could seem contradictory at first sight. How could the property of being an “animated creature” in this interval be reconciled with the privation of human existence. It must be remembered that, according to Aristotelian doctrine, which in subsequent centuries appeared as the official position of the Church, the soul is discerned as “phytic”, “emotional”, and “logical”. According to the same doctrine, the process of the embryo’s growth and development into a “human” is slow and, although present during this process, the mind remains inert for a sufficiently long time. It is evident that Tertullianus labored under the influence of this view. It must also be stressed that this view was widely circulated and the circle of its opponents rather limited. Nevertheless, the most famous of the latter group was Gregorius of Nyssa, who held that the logical soul exists from the moment of conception.

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The canonical prohibition of abortion

An explicit condemnation of abortion is already encountered in the canons of the first local synods which have been handed down to us. This is contained-although not without reservations as to whether abortion or the killing of an already born child is implied-in Canons 63 and 68 of the Synod of Elvira (ca. 306 A.D.). The former canon ordains that a woman who commited adultery during her husband’s absence, conceived as a result of this intercourse, and proceeded to exterminate her fruit, was refused Holy Communion, even on her deathbed, for having committed a double crime. For the same case and under the condition that the crime was committed by a catechumen, the latter prescribes that the woman be baptised at the end of her life only.

What followed was Canon 21 of the Synod of Ankara (ca. 314 A.D.) where explicit mention of abortion is made. This provides for a mildercompared to the Canons of Elvira-penalty, namely a ten-year period of excommunication. A common characteristic of the above regulations is that they connect abortion to extramarital relations.

Chronologically, the next canonical ordination with reference to abortion following Canon 21 of Ankara is included in Canons 2 and 8 of Basil the Great. Both are contained in the canonical epistle to Amphilochius, Bishop of Iconion. It is more than likely that the first of the two rules is an answer to the question of whether the Church, in determining the canonical penalty, takes the Old Testament distinction between “figured” and “not figured” embryos into account. Basil’s answer was categoric: “The intentional abortress is responsible for murder. For us there does not exist a distinction between formed and unfigured. For here is avenged not only that which is about to be born, but also who oversaw it, because women usually succumb during the course of these undertakings. In addition, there is also the destruction of the embryo, another murder under the oversight of those attempting these things. One should not extend the duration of penitence until the end of life, but rather adopt the duration of ten years, appraising not by the duration but by the manner of penitence.” In the second canon, Canon 8, Basil the Great equates-with respect to penal responsibility-a woman who commits abortion to those who provide the means for such a purpose.

Several centuries after the first canonical regulations, the Penthecte Ecumenical Synod in Troullos (691/2 A.D.) reconsidered the question of abortion. It validated the rules of the local synods and those of the Fathers of the Church, including the aforementioned three rules-Canon 2 of Ankara and Canons 2 and 8 of Basil the Great-through its 2nd Canon, therefore grounding them in the Ecumenical Synod’s authority. Nevertheless, this Synod, deemed the addressing of the whole matter or, more probably, the effectiveness of the pertinent regulation insufficient. Deeming the adoption of a new canon necessary, the Fathers of the Synod created Canon 91, explicating that both those women who provide as well as those who use various substamces to induce abortion are subject to the penalties set for murder: “We impose the sentence of murder on those accepting abortion-inducing drugs as much as on those that supply the drugs.” Evidently, positive law did not undergo any transformation since this canon differs only slightly in essence from the corresponding ordinance at the end of Basil the Great’s 8th Canon.

Abortion in secular law and collective works

The content of the Justinianian codification and that of the Nearae is rather devoid of regulations relative to abortion. New is the regulation in chapter 17.36 of the Ecloga of the Isauri, which prescribes the penalty of fustigation and exile for any woman who “prostitutes, becomes pregnant and attempts to abort the fruit of her womb.” It is interesting to note that the so-called Appendix to the Ecloga-an aggregation of different unions of texts-includes the Mosaic Command, a collection of 70 fragments from the Pentateuch, that repeats the well known passage 21.22-23 from Exodus in chapter 27,29 strongly indicating that the problem of the “figuration” or not of the embryo never ceased to be of practical significance.

The same regulation of the Ecloga is also found, with certain amendments, in the legislative opus of the Macedonians-i.e. the Esagoge and the Informal Law. The Basilicae repeated the primary regulations of Justinianian legislation on abortion, yet amending their text when necessary so as not to create any problems with their combined application. Secular collective and compiling works of the same period have contents
related to the original work on which they are based.

Collective works exist in the field of the Canon Law as well, having mostly mixed contents, i.e. of both ecclesiastic and secular origin. These are the so-called Nomocanons, the most important of which is the Nomocanon in 14 Titles, the tenth Chapter of whose 13th Title is dedicated to abortion. This is where all the canons of the synods and of Basil the Great mentioned above are concentrated. This chapter bears the heading “Regarding those prostituting, killing the unborn or destroying.” The reference to “prostitutes” in the heading reveals shows that, despite attempts attempt to dissociate abortion from extramarital relations, i.e. prostitution in byzantine terminology-an attempt resulting from the codification of the canons of Basil the Great and the Penthecte Synod-the editor of the nomocanon aligned himself with the initial perceptions (cf. Canon 21 of Ankara), possibly following the tendencies prevailing in practice.

The genesis of the soul

A passage by the well-known 11th-century philosopher and politician Michael Psellos is significant to the transmission of the doctrine of Gregorius of Nyssa, and also imcludes a brief critique of the respective views of that other Gregorius, the Nazianzene. “At what time does the soul unite with the body of the unborn? Gregorius (the Nazianzene) is unclear as to this point, and it isn’t easy to discern whether he aligns himself with one view or another. Gregory of Nyssa and Maximus the Confessor place the soul as neither preceding nor coming after, but consider the introduction of the sperm to occur simultaneously with the acceptance of the soul. According to the pre-eminent of the Greek philosophers, following the formation of the natural form, the soul is deposited in the body-the natural soul while it is in the womb, the logical soul as it exits the womb, and the ‘cognizant’ soul in the early stages of life.”

Baptism and pregnancy

The problem was addressed at the local Synod of Neokaesareia (314-325 A.D.), where it was determined that the baptism of a pregnant woman, in whatever stage of gestation, did not include the embryo which, in principle, possessed ontological autonomy: “The child-bearing woman must be enlightened [baptised] whenever she wills it. For in this respect the bearing woman has nothing in common with that which is born, because each of the two expresses its will through the affirmation of faith”(can. 6).

Anomalies of parturition and miscarriage of the foetus

Despite the fact that abortion was categorically prohibited by the Church as well as the State, the Church Fathers did not discountenance the putting to death of a foetus when such action constitued-according to the medical practice of the time-a necessary means to save the life of the mother. This issue is mentioned by Tertullian who wrote that if the position of the foetus in the womb rendered parturition impossible, the child, should it not be put to death, will be considered a matricide.

It is impressive that this view is not repeated in any of the texts of canon law of the middle and later years. On the contrary, with the passage of centuries it appears that a certain confusion began to exist between the abortion and inadvertent miscarriage of a foetus. That much, at least, is revealed in a response of the Patriarch of Constantinople Nicholas III Grammatikos (1084-1111 A.D.) from which emerges that women were accountable for murder in case of accidental miscarriage. Nevertheless, in this particular case, reference is made to women in the fifth month of gestation. The sense of ambivalence in the distinction between abortion and accidental miscarriage-easily explained when one considers that, for obvious reasons, many abortions would be presented as miscarrieges by the interested parties-is further sustained by a prayer contained in the Great Euchologion in which a woman “who advertently or inadvertently miscarried, making herself guilty of homicide” is requested to have her sins forgiven.

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*Professor Spyros Troianos studied law in Athens and Byzantine history and philology in Munich. He collaborated with the Bavarian Academy of the Sciences and with the Center for Research of the History of Greek Law at the Academy of Athens and served as General Director of Religious Affairs for the Greek Ministry of Education. Professor Troianos became lecturer, Associate and Full Professor of the University of Athens and, since 1984, a member of the Board of Administration of Ionian University. He is primarily concerned with Byzantine law, in Athens as well as in Frankfurt, as permanent collaborateur of the research programme for the re-publication of Byzantine legal sources. Professor Troianos publishes the scientific series Forschungen zur Byzantinischen RechtesgeschichteoAthener Reihe. He has authored approximately ten books and 100 studies in Greek and foreign periodicals, honorary tomes of conferences.

Research-Selection: Anastasius Philoponus

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