Monday, June 11, 2018

The Status of the Unborn in 18th Century France

Anatomie des parties de la génértion de l’homme
et de la femme
by Jacques Fabien Gautier D'Agoty

I am researching the evolution of attitudes towards the unborn in order to understand how changing attitudes towards them led to the loosening of abortion laws in France and other parts of the world. Catholic France in the 18th century had much more to say about the unborn than 18th century Protestant England. The French were not only concerned with the unborn because of abortion; they were concerned about the unborn because of the desire to baptize all babies, and because of issues of succession. An unborn baby could inherit under specific circumstances, and the mother stood to benefit from the child’s inheritance.

Before I delve into the nature moral status of the unborn, it is important to clarify some issues regards what the people knew about embryology. There was quite a bit of confusion on the matter. There were those who believed that life began at conception, due to the philosophical conclusions of 17th century writers. But there was no empirical proof of this. And because there lacked empirical proof that human life began at conception, there was some doubt about the timing of the animation of the embryo. The timing of animation was considered when an embryo became a human being.  As cell theory was not developed until the 1840’s, the 18th century scientist who researched embryology considered the presence of functioning organs as proof of life.   But scientists knew that the conceptus existed before the development of these organs.  Many writers uncertain as to whether this conceptus constituted a life or not.  

The three main theories of development were ovism, spermatism and epigenetics. Epigenetics—not to be confused with modern field of epigenetics—considers that the embryo is not pre-existent, that elements like the sperm and the egg somehow make it possible for this new entity to acquire human characteristics. Ovism and spermatism held that the embryo, or its germ, pre-existed in either the egg or the sperm, respectively, and that the fertilization process essentially allowed for the unfolding of an entity that already existed. The fact that the embryo pre-existed did not mean that scientists held that the embryo was animated. Ensoulment was proven by the presence of human form. Thus, when researchers or theologians discussed “formed” or “unformed” embryos, they were discussing whether the embryo was human or non-human.

This presence of the human form was central to the French idea of the unborn.  Legally, an embryo was considered to be “formed” and thus animated at 40 days past conception [1] because they had an organized body, that is, a head, torso, arms and legs.  [2]

Although the unborn were considered to be human beings once they were formed, they were not considered juridical persons. Heavily influenced by Roman Law, France considered that birth conferred rights [3]. That being said, even though the unborn, of himself, did not possess rights, he was considered to possess rights in anticipation of his birth when it was in his interest to have them. [4]

And it was under this concept of anticipated rights that abortion was criminalized in France. But only those considered after 40 days of conception were considered true homicides;[5]. Those committed before that time were likened to homicide, but not considered a genuine murder.  For abortions after formation, both the mother and the abortionist could be subject to the death penalty. [6]

France had a peculiar way of prosecuting abortion (not to say infanticide.) According to an edict of 1556, a woman who was pregnant out of wedlock was obliged to report her pregnancy to authorities; if she failed to do so, and her offspring was found dead, she was automatically assumed to be guilty of child murder, whether the child was viable or not. This assumption of guilt was to compensate for the difficulty in prosecuting abortion cases. It was assumed that since a single woman who intended abortion or infanticide would hide her pregnancy, the remedy was to make sure that she did not hide her pregnancy, in which case she would be far less likely to abort her children. If she did not declare her pregnancy, nothing would happen to her if her child were born alive; but if the child were born dead, she would have to prove her innocence.

Laws about abortion were no the only ways in which French society showed its concern for the unborn. There was a great degree of anxiety among pious Catholics about making sure all children were baptized, including miscarried babies and those being birthed who were in danger of death. Great pains were taken to ensure that these children received the sacrament. For instance, babies who were in danger of death during labour were baptized by the midwife or obstetrician; if the head could not be reached, they used a syringe or sponge to apply the water in the womb. If the mother died in labour, the child was to be extracted, either naturally or through c-section. If the baby was miscarried, baptism was supposed to be performed, either absolutely or conditionally.

But these values were held by an informed elite and were not necessarily shared by the masses. For instance, it was not uncommon for miscarried babies to be thrown into the privy, unexamined and unbaptized after miscarriage [7].  Considering that several guides had to be written encouraging the baptism of these children, it suggests that the practice was not commonplace [8]; if it had to be repeatedly said by many writers that baptism was necessary, it is because the populace was ignorant.

So what we see then is that institutionally, French society was pro-life: the law upheld the humanity of the unborn and criminalized abortion, but did not consider fetuses to be persons. Medical personnel and the Church promoted the baptism of the unborn and miscarried; but the general population were not necessarily aware of these points of view.   

[1] Daniel Jousse, Traité de la justice criminelle de France, Volume 4, Paris: 1771, P. 20;  Pierre Jean J.G. Guyot, Répertoire universel et raisonné de jurisprudence civile, criminelle, canonique et bénéficiale, Volume 4, Paris: 1776, p. 147 in footnote.
[2] M. La Fosse, "Avortement," Supplément À L'Encyclopédie Ou Dictionnaire Raisonné Des Sciences, Des Arts Et Des Métiers, Volume 1, Paris, 1776, p. 718.
[3] Massuet, Pierre. La Science Des Personnes De Cour, D'Epée Et De Robe Amsterdam: 1752, p. 10. 
[4] D'Aguesseau, "Essai sur l'État des Personnes," Oeuvres,  Vol. 5 p.  443. Massuet, p. 10
[5] D'Aguesseau, p. 447.
[6] D'Aguesseau, p. 455, 461.
[8] Jerome Florentini wrote the first major work on this topic in 1658: On Doubtful Men, or On the Baptism of Abortuses; then Francesco Cangiamila wrote his opus Sacred Embryology in 1751 which was translated into French by Abbé Dinouart in 1762. Bl. Jean-Martin Moye, inspired by this work, wrote his own pamphlet in 1764. Midwives and accoucheurs had to be reminded to baptize the unborn and the miscarried; See for example: Marguerite de la Marche,. Instruction familiere et utile aux sages-femmes pour bien pratiquer les accouchemens. 1710, p.101ff;  François-Ange Deleurye, Traité des accouchemens, en faveur des eleves, Paris: 1777, p. 719;   Angélique Marguerite Le Boursier du Coudray, Abbregé de l'art des acchouchemens, Saintes: 1779, page vii and page 89.