BY: PETER J. CATALDO, PhD, and JOHN M. HAAS, PhD, STL
Dr. Cataldo is director of research and Dr. Haas is president, The National
Catholic Bioethics Center, Boston. The views expressed in this article do not
represent an official position of the center.
In the summer of 2001 the bishops of the United States approved
revisions to the Ethical and Religious Directives for Catholic
Health Care Services (ERDs). 1 Although they
were not extensive, these revisions could have a significant
impact on the manner in which certain collaborative arrangements
between Catholic and other-than-Catholic institutions are configured
in the future. Notably the 1994 Appendix explaining the principle
of cooperation was not, for example, included in the revised
The revisions were done at the behest of the Holy See to eliminate
and avoid certain arrangements judged to involve Catholic institutions
in culpable cooperation in the immoral actions of other-than-Catholic
institutions. Certainly the Holy See was more concerned with
the elimination or avoidance of the immoral arrangements than
with the particular formulation of the rationale employing the
principle to explain why the cooperation was illicit. Nonetheless,
a formulation of the principle of cooperation must obviously
be provided or else one could not hope to apply it properly
in the future and avoid immoral cooperation. We, the authors
of this article, were pleased to see that the 2001 revisions
included no new formulation of the principle of cooperation.
Because of the cursory manner in which such an important principle
would have had to be expressed as a mere appendix to a document
such as the ERDs, it would have been subject to the same risk
of misunderstanding as occurred in the past. We believe it is
good that Health Progress is taking this opportunity
to present an explanation of the principle and its applications
in light of the most recent revisions by the bishops.
Clarifying Some Fundamental Concepts
It is critically important to delineate the specific meaning
of the term "cooperation" as it is used in the principle of
cooperation, both for an adequate understanding of the various
parts of the principle and for the principle's proper application.
"Cooperation," in this sense, means the free and knowing assistance
of an individual or an institution in an immoral act principally
performed by another individual or institution (the principal
agent). 2 Whatever else might be said about a particular
act of cooperation (that, for example, it is a morally good
act if considered by itself), as an act of cooperation, it assists
an evil act. Assisting an evil act is the moral marker ("object")
that identifies an act as an act of cooperation for the purposes
of the principle. Hence, whatever is attributed to the principle
or however the principle is interpreted, it must be consistent
with the fact that assisting in an evil act is the ultimate
referent of the principle of cooperation.
This point about the meaning of cooperation deals with one
of the problems in the application of the ERDs to collaborative
arrangements. In many cases, the cause of the difficulty is
an interpretation of the principle of cooperation as a creative,
enabling principle in and through which moral actions are formulated
and advanced, rather than as a principle for identifying licit
or illicit acts of cooperation either contemplated or already
chosen. 3 Viewing the principle of cooperation as
a creative source of morally obligated action reconfigures the
principle into a moral mandate to cooperate. This approach can
lead to the erroneous justification of illicit cooperation (for
example, immediate material cooperation by an institution in
direct sterilizations for the sake of a collaborative arrangement).
According to this expansive interpretation, the function of
the principle is to provide the moral impetus to seek out new
ways of collaborating with individuals or institutions. The
principle of cooperation becomes one more positive moral principle
among the traditional positive moral norms that oblige an individual
or institution to do certain kinds of acts. The principle is
regarded as a moral mandate to cooperate rather than a moral
assay of actions that the cooperator may have been initially
obligated to do according to genuine positive moral principles.
However, the positive moral obligations — for example, to love one's neighbor,
to care for one's health and the health of those for whom one is responsible,
or to contribute to the common good — have specific moral objects by which their
respective obligations are formed. If the principle of cooperation is a positive
moral norm, then its formal object would have to be assistance in the morally
evil act of another. But this is a contradiction because there cannot be a positive
moral obligation specifically to assist in evil acts — that is, there is no morally
obligated good defined as the assistance to evil action. True, a specific act
of providing health care, which is defined by its own good, might incidentally
assist an immoral act. But, in such a case, the act's goodness comes from what
it is itself, not from the fact that it has in some way assisted or advanced
an evil act. Moreover, any good preserved or evil avoided as a result of cooperation
may justify certain types of cooperation, but this justification ought
not to be confused with an obligation to cooperate in evil acts. Justification
and obligation represent two different moral categories. The justification of
an act of cooperation is the reason why it may be done (which relates to the
good effect that will result from it), but this is completely different from
assistance in evil acts as a moral requirement.
The problem of misinterpreting the principle of cooperation
as incorporating a positive moral obligation is illustrated
by the blurring of the distinction between collaboration and
cooperation. The expansive view of the principle of cooperation
conflates these two terms in its construal of the principle
as representing a positive moral obligation. It can be legitimately
argued that, under certain circumstances, one health care organization
is obliged to collaborate with another to achieve some good
or a avoid an evil. However, this is where the moral obligation
begins and ends. If the result of such collaboration is cooperation
in evil, the cooperation might be justified by what the
collaboration achieves, but cooperation in evil is not thereby
obligated. As this example indicates, there are two different
acts functioning in two different conceptual categories. One
is a deliberate joint corporate action (collaboration) rightly
considered in the category of justifying reason, and the other
is assistance in an evil act (cooperation) wrongly considered
in the category of moral obligation.
In the Catholic moral tradition, positive moral obligations
are derived from the natural law (e.g., the obligations to preserve
life or to live in society) and from charity (e.g., obligations
involving the love of God, self, and neighbor). These positive
moral duties require an equal effort to avoid evil or those
acts that are contrary to our positive moral obligations. The
principle of cooperation aids this effort. However, this fact
does not entail that the principle as it has been traditionally
explained and used is incapable of, or not well suited to, helping
individuals and institutions make positive moral contributions.
Precisely because it is a guide for avoiding wrongdoing, the
principle assists, for example, in acting and living charitably.
The traditional manuals of Catholic theology have always treated
the principle of cooperation in relation to charity.4
The reasons for this begin with the fact that charity includes
acts of "fraternal correction," that is, acts aimed at helping
one's neighbor become virtuous. However, insofar as assisting
the evil act of a principal agent is contrary to charity (as
moral or spiritual correction), it ought to be avoided to the
extent possible under the circumstances; this is what the principle
of cooperation is designed to do. As one moral theology manual
explains it, "Material cooperation, in itself, is sinful; for
charity commands that one strive to prevent the sin of another,
and much more therefore does it forbid one to help in the sin
of another. Material cooperation, in case of great necessity,
is not sinful. . . ."5 The principle aids in the
identification and classification of those cases that possess
"great necessity" and those that do not. By functioning as an
aid for avoiding evil, the principle enhances charity, preserves
our positive moral obligations, and does not risk the erroneous
view that there is an obligation to assist in evil acts.
Another fundamental confusion about the principle of cooperation
concerns the identification of the wrongdoer in a relationship
of cooperation. It is critically important, for a proper understanding
of the principle, that the principal agent not be considered
the sole wrongdoer. The principle presumes that the principal
agent is a wrongdoer, but its primary purpose is judging the
moral status of the cooperator. The principle helps to determine
whether the cooperator is a wrongdoer, depending upon the type
of cooperation and its reasons. If the wrongdoer can only be
the principal agent, then the various types of causal connections
between cooperator and principal agent represented in the principle
are morally vitiated. The various types of cooperation delineated
in the principle of cooperation represent particular levels
of causal influence on the act of the principal agent. If the
wrongdoer is always the principal agent, then the act of a cooperator
could never have a causal effect on the act of the principal
that could be identified as morally wrong. Thus there can be
two wrongdoers — the cooperator and the principal agent — depending
upon the cooperation. Given the principle's raison d'être,
the two moral agents represented in the principle ought to be
identified simply as the cooperator and the principal agent.
The principle of cooperation divides cooperation into two major
types, formal and material. Formal cooperation is assistance
provided to the immoral act of a principal agent in which the
cooperator intends the evil. The assistance need not
be essential to the performance of the act in order for the
cooperator to intend the evil of the principal agent's act.
Formal cooperation is never morally permissible because the
cooperator knowingly wills evil. Formal cooperation can be either
explicit or implicit. Explicit formal cooperation directly approves
of the principal agent's immoral act. This would be the case
for a health care provider that established a policy explicitly
intending the direct sterilization of men or women. The provider
is not the principal agent of the immoral act but does give
assistance to it through the policy and does intend the act.
Implicit formal cooperation intends the evil of the principal
agent, not for its own sake but as a means to some other end
that, by itself, might be morally good. Implicit formal cooperation
is not identified negatively — through a process of elimination,
for example, or from the absence of any explanation distinguishing
it from explicit formal cooperation — but by positive indicators.
The implicit formal cooperator concurrently seeks a good end
and endeavors to secure the conditions by which the immoral
act of the principal agent takes place as a means of achieving
the good end.6 The cooperator's actions demonstrate
an implicit approval of the principal agent's immoral act. Moreover,
whatever similarities might exist between implicit formal cooperation
and immediate material cooperation (see below), they are essentially
different types of cooperation because the former intends evil
and the latter does not.
Institutions are susceptible to implicit formal cooperation
because they operate through governance, management, and finance,
which set forth and implement the institution's intentions.
If, in an effort to secure its viability, a Catholic health
care organization negotiates and approves a collaboration agreement
that establishes, among other things, the conditions by which
an other-than-Catholic collaborator is able to provide direct
sterilizations, then the Catholic provider is engaging in implicit
formal cooperation in any sterilizations performed as a result
of its actions. This implicit formal cooperation would include
establishing the conditions by which the provision of sterilizations
is either brought into existence for the first time or is continued
under a new configuration. Generally if a collaborative arrangement
such as a joint operating agreement, affiliation, or joint venture
is completely segregated from the governance, management, and
financing of direct sterilizations provided by the other-than-Catholic
partner (and other procedures and activities considered immoral
by Catholic teaching as well), then formal cooperation can be
avoided. Although it may be morally licit to acknowledge the
existence of such procedures and activities in an agreement
as a legal matter, this instrument cannot itself establish the
segregation of the procedures and activities without the Catholic
party engaging in implicit formal cooperation.
Material cooperation is assistance provided to the immoral act of a principal
agent in which the cooperator does not intend the evil. Delimiting the elements
that actually define material cooperation is very important for a proper application
of the principle (see below) as well as for an accurate definition. In particular,
how any case of material cooperation is morally justified does not enter into
the definition of what material cooperation is. The only elements needed to
define material cooperation are, first, the free and knowing assistance to the
evil act of another, and, second, the absence of intending the principal agent's
evil acts. No other factors define what material cooperation is. If these
two factors obtain in any given case, then the moral agent is engaging in material
cooperation. However, not all cooperation defined by these factors is morally
permissible. Some types of material cooperation are immoral.
Material cooperation can be either immediate or mediate. Immediate
material cooperation assists in the immoral act of the principal
agent by contributing to the essential circumstances of the
act. The ERDs find no moral justification for immediate material
cooperation by Catholic health care organizations in intrinsically
evil acts of a principal agent. "Catholic health care organizations
are not permitted to engage in immediate material cooperation
in actions that are intrinsically immoral, such as abortion,
euthanasia, assisted suicide, and direct sterilization" (Directive
70). For example, if a Catholic health care organization agrees
to supply surgical instruments to an other-than-Catholic women's
hospital as part of a larger collaborative agreement, and these
instruments are to be used in direct sterilizations performed
at the hospital, then the Catholic party is engaging in immediate
material cooperation. There is no intent to provide the sterilizations
because the governance, management, and financing of them is
completely segregated from the collaborative arrangement, but
the supply of surgical instruments is a circumstance essential
to the performance of the sterilizations. Moreover, some would
regard allowing independent physicians to perform direct sterilizations
in a Catholic hospital as immediate material cooperation. However,
we consider this to be explicit formal cooperation because such
activity does not occur contrary to policy and without planning
by the hospital.
Institutional Duress and Immediate Material Cooperation
The proscription contained in Directive 70 should settle any doubt engendered
by the Appendix of the 1994 ERDs about whether duress or fear can justify immediate
material cooperation by a Catholic health care organization in intrinsically
evil acts. Four key points can be made regarding the function of duress and
fear in relation to material cooperation.
First, as explained above, anything pertaining to the justification of particular
cases of material cooperation (what was known as the "lawfulness" of material
cooperation) stands outside the definition of material cooperation itself. Both
duress that narrows the options among which one may choose rather than cooperate
in evil, on the one hand, and fear of losing a great good, on the other, may
justify acts of material cooperation and lessen subjective culpability. But,
as such, these factors are not part of the definition of material cooperation.
The fact that the material cooperator does not intend the evil of the
principal agent and the reason why the cooperator lacks this intention
ought not to be confused as one and the same. In other words, a distinction
must be made between the reason why the material cooperator does not intend
the evil of the principal agent and the reason why the cooperator does indeed
cooperate. The reason why the material cooperator does not intend the evil is
because the cooperator knows the principal agent's act to be immoral and chooses
to intend something good rather than the evil. This establishes the fact that
the cooperator does not intend the principal agent's act. The reason why the
cooperator assists the principal agent is because the cooperator cannot reasonably
avoid the evil of the principal agent's act and at the same time preserve some
great good or avoid some great evil. This is the justification for the material
Duress and fear may be factors influencing the material cooperator's
decision to cooperate, but they are not the essence of material
cooperation. If, moreover, duress or fear were always justifying
factors in the definition of material cooperation, then any
act of material cooperation would potentially be morally licit,
which is not the case. This is the import of the Congregation
for the Doctrine of the Faith's statement on the question of
duress and immediate material cooperation: "[C]ulpability for
the immoral act in which one participates, and from which one's
own action cannot be distinguished materially, may be diminished
because of 'duress' and could under some circumstances be eliminated
altogether. This is not exactly the same as saying that the
action done under duress is morally licit, simply that culpability
may be diminished or eliminated." 7
Second, as the bishops note in the 2001 edition of the ERDs,
"while there are many acts of varying moral gravity that can
be identified as intrinsically evil, in the context of contemporary
health care the most pressing concerns are currently abortion,
euthanasia, assisted suicide, and direct sterilization." 8
This fact poses no dilemma. The fact that moral acts that
have in common an intrinsically evil nature may be unequal in
moral gravity does not justify any essential contribution an
institution might make to an intrinsically evil act of lesser
moral gravity, such as direct sterilization. Differences in
moral gravity among intrinsically evil acts are not relevant
because an institution should never contribute something essential
to an act that, by definition, ought never to be performed under
any circumstances, whether through formal or immediate material
cooperation. However, this difference in moral gravity may be
relevant to the question of contributing a nonessential circumstance
to an intrinsically evil act whose moral gravity is less grave — for
example, providing certain support services to a hospital at
which direct sterilizations are performed.
Third, the life of an institution is life by analogy, just
as the institution is regarded as a "person" by analogy. Its
life is not real life. Consequently, a threat to the life of
a health care institution is not morally commensurate with the
real and imminent threat to the life of a human person forced
to choose between cooperating or being killed. This essential
difference was made clear by the Congregation for the Doctrine
of the Faith when it wrote, "It seems to us that the duress
which may justify material cooperation with evil on the individual
level, such as threats to one's life, cannot legitimately be
transferred to institutions since even the closure of an institution
cannot equal the gravity of losing one's life." 9
Hence duress as a factor that may diminish individual culpability
for immediate material cooperation cannot legitimately apply
in institutional cases, which was the judgment reached with
respect to collaborative arrangements judged to be illicit by
the Congregation for the Doctrine of the Faith over the last
several years. Indeed, it is obvious that the argument for institutional
duress fails on the merits, and its failure was a significant
reason why the arrangements were overturned.
Fourth, there is no need to use the National Conference of
Catholic Bishops'* Commentary on the March 13, 1975,
Reply of the Sacred Congregation for the Doctrine of the
Faith on Sterilization in Catholic Hospitals (Quaecumque Sterilizatio)
or the 1994 Appendix to the ERDs for answers to questions concerning
institutional duress and immediate cooperation. 10
Both documents have been superseded by Quaecumque Sterilizatio
itself and by Directive 70 of the current ERDs. In our opinion,
the Commentary was at best ambiguous about whether Quaecumque
Sterilizatio allowed immediate material cooperation in intrinsically
evil acts performed in Catholic hospitals; the 1994 Appendix
contained internal flaws that prevented a proper application
of the principle to the issue of institutional immediate material
* The National Conference of Catholic Bishops has since been renamed the
U.S. Conference of Catholic Bishops.
Quaecumque Sterilizatio is quite clear on the issue
of direct sterilizations in Catholic hospitals — a fact whose
recognition by the U.S. bishops is shown by their quoting of
an excerpt from that document in the current ERDs: "Any cooperation
institutionally approved or tolerated in actions which are in
themselves, that is, by their nature and condition, directed
to a contraceptive end . . . is absolutely forbidden. For the
official approbation of direct sterilization and, a fortiori,
its management and execution in accord with hospital regulations,
is a matter which, in the objective order, is by its very nature
(or intrinsically) evil." 12 Moreover, it is equally
clear that the point in Quaecumque Sterilizatio (see
3.b) that material cooperation by a Catholic hospital is morally
permissible under certain circumstances is a reference not to
immediate material cooperation but to mediate material cooperation.
Mediate Material Cooperation
Mediate material cooperation assists in the immoral act of a principal agent
by contributing to nonessential circumstances of the principal agent's act before,
during, or after the act. This type of cooperation might be justified if some
great good were to be gained (or prevented from being lost) or if some great
evil were to be avoided. Mediate material cooperation is morally licit according
to a proper proportionality between the goods to be protected or the evils avoided,
on one hand, and the evil of the principal agent's act, on the other. The graver
the evil to which the cooperator contributes, the graver the good sought or
the evil avoided must be. Indeed, licit mediate material cooperation has traditionally
been understood in terms of the four basic conditions of the principle of the
double effect as applied to a cooperator. The act of material cooperation has
two effects, the bad effect of assisting an evil act, and the good effect of
preserving good or avoiding evil. Thus an act of mediate material cooperation
is licit because:
- The cooperator's act is itself morally good or indifferent.
- The cooperator does not intend the evil of the principal agent's act.
- The good effect is not achieved by means of the bad effect (the principal
agent is the primary cause of the evil act).
- The good effect is proportionate to the bad effect.
Consider the case of a collaborative arrangement that contributes to the overall
viability of an other-than-Catholic partner that performs immoral procedures.
If neither the Catholic partner nor the joint entity itself engages in formal
or immediate material cooperation, then the first three conditions of the principle
of the double effect are fulfilled. The fourth condition is fulfilled by virtue
of the fact that the Catholic partner is seeking to preserve a great good or
avoid a great evil. The following are examples of collaborative arrangements
that involve morally licit mediate material institutional cooperation:
- A Catholic system and an other-than-Catholic health system propose the
formation of a joint operating company (JOC) for the purpose of operating
the systems' hospitals and conducting joint activities. The Catholic system
would negotiate and approve a joint operating agreement establishing the JOC.
The JOC and the hospitals' joint activities would operate in compliance with
the ERDs. The collaborative arrangement would have the effect of securing
the viability and survival of the other-than-Catholic system and its illicit
procedures, including direct sterilization. However, the other-than-Catholic
system would establish a corporation separately governed, financed, and managed
for the purpose of providing direct sterilizations.
- A Catholic health care system and an other-than-Catholic system propose
a collaborative arrangement, the sole purpose of which is to provide joint
programs in several specific areas, such as cardiology and radiology. Direct
sterilizations would be provided at one of the hospitals of the other-than-Catholic
system in a manner completely independent of the proposed arrangement. The
affiliation agreement would have the effect of securing the viability and
survival of the other-than-Catholic system and its facilities.
- A Catholic health system proposes to establish a JOC with an other-than-Catholic
system. The JOC would manage the Catholic system's facilities and would provide
management assistance for some of the other-than-Catholic system's facilities.
Direct sterilizations are performed at one of the other-than-Catholic system's
hospitals. A services agreement ensures that each service provided by the
Catholic system is completely separated from the immoral procedures. The affiliation
agreement would have the effect of securing the viability and survival of
the other-than- Catholic system and its facilities.
In each of these four situations, the fact that the governance, management,
and financing of any immoral procedures or activities conducted by the other-than-Catholic
entity have been completely segregated from the collaborative arrangement and
the Catholic health care system means that formal cooperation can be avoided.
The Catholic health system would also avoid immediate material cooperation in
these examples. However, because in each case the viability and survival of
the other-than-Catholic system is secured by the collaborative arrangement,
the Catholic system would indirectly contribute to the continued performance
of direct sterilizations at the other-than-Catholic facility. This contribution
might be considered mediate material cooperation. The cooperation would be morally
justified if, as the result of such an arrangement, the survival of the Catholic
health care ministry were thereby preserved or important health care services
were significantly improved.
Mediate material cooperation can be either proximate or remote. This is not
a difference of physical or geographic location, but rather a causal difference.
The distinction between proximate and remote refers respectively to mediate
material cooperation that has a direct causal influence on the act of the principal
agent (proximate) and that which has an indirect causal influence (remote).
Thus it is possible for a cooperator to be physically proximate to the act of
a principal agent and yet engage in remote mediate material cooperation. Conversely,
a cooperator may be physically remote from the principal agent's act but engage
in proximate mediate material cooperation.
Consider, for example, the 2002 reconfiguration of the Lease
Agreement between the city of Austin, TX, and the Seton Healthcare
Network. Brackenridge Hospital, which is leased and operated
by Seton, is physically contiguous to a new city hospital at
which direct sterilizations will be performed. The renovations
made by Seton to the space that the city hospital will occupy
constitute remote mediate material cooperation by Seton in the
sterilizations performed there because there are many intervening
causes between the renovation of the space and the performance
of the immoral acts. The location of the decision makers who
decide to assist the city hospital may be physically remote
from the sterilizations, but those decisions may include providing
utilities to the new city hospital, for example, which would
have a much more direct effect on any sterilization procedures
performed there. The decision-making administrators may be far
from the site, but because of the causal relation of their decision
to what is occurring at the new city hospital, it could be said
that they are engaged in proximate mediate material cooperation.
The Brackenridge Hospital Case
Because the Seton/Brackenridge Hospital Lease Agreement is so well known, we
will, as a means of illustrating our point, look at it a bit more closely. The
arrangement has sometimes been called the "hospital within a hospital" structure.
Some people have advocated this structure for other collaborative ventures,
which we at The National Catholic Bioethics Center would not consider licit.
It is important to note that the "hospital within a hospital"
structure of the collaborative arrangement between Seton and
the city of Austin was adopted as the only reasonable way for
Seton and Ascension Health (of which Seton is a part) to extricate
themselves from illicit cooperation resulting from a morally
defective collaborative arrangement that had been entered into
in good faith. The case presented a problem of disengagement
from illicit cooperation under unique circumstances. Because
the circumstances were unique, the revised Brackenridge arrangement
probably cannot be seen as a legitimate model for new collaborative
In 1995 Seton Healthcare Network entered into a 30-year Lease
Agreement with the city under which Seton assumed responsibility
to govern and operate the city's Brackenridge Hospital. According
to Seton's administrators, this was done to respond to a request
made by the city and to expand the health care ministry to the
poor of the Daughters of Charity. Seton did not need to assume
this responsibility to secure its own viability or to respond
to market pressures. However, many in the community had speculated
that the city might be forced to close Brackenridge because
of its precarious financial condition. The proposed Lease
Agreement was approved by the then-bishop of Austin, who did
so on the advice of three different moral theologians.
A year later, the bishop was told that the Holy See had reviewed
the arrangement and judged it to be morally illicit. Seton could
not simply abrogate the contract lest it suffer a significant
financial penalty for nonperformance. In light of some of the
other initiatives undertaken by Seton, a termination of the
contract would have resulted in a severe, perhaps crippling
material impact on its ministry. The Holy See insisted that
a solution be found to extricate Seton from the illicit cooperation
in which it found itself and to which it was contractually committed.
In our estimation, the solution that was found was nothing that
might serve as a paradigm for entering into new collaboration
arrangements, but it did at least address the specific problems
of Seton and its Lease Agreement with Brackenridge.
Those who engage in forging and evaluating collaborative arrangements
have an adage: "When you have been one collaborative venture,
you have seen one collaborative venture." Each venture has unique,
specific circumstances that have a bearing on the moral solution
that must be found. This important fact is illustrated by the
Seton, before entering into the Brackenridge Lease Agreement, desired to avoid
culpable cooperation with the immoral practices that had been taking place at
Brackenridge Hospital. As a condition for accepting management of the hospital,
Seton insisted that abortions cease there. That practice was, indeed, eliminated.
However, the city of Austin would not countenance the elimination of surgical
sterilizations of women at Brackenridge because it regarded such procedures
as a community service, despite Seton's beliefs to the contrary. For the sake
of the contract allowing it to serve the poor and for the sake of eliminating
abortion, Seton agreed to permit surgical sterilizations to continue at Brackenridge
and tried to remove Seton personnel from any type of culpable cooperation in
this evil. One of the problems, however, is that while Seton had isolated its
personnel from illicit cooperation, it had not sufficiently isolated management
from the immoral procedures. Indeed, the management arrangements established
by the agreement ensured that the immoral procedures would continue to take
place. This is what the Holy See found objectionable.
A working group formed by Seton proposed a solution that was approved by the
new ordinary and to which no objections were raised by the papal legate appointed
to oversee the project. The National Catholic Bioethics Center (where the authors
are on staff) was involved in the proposed solution. However, the center is
of the opinion that the solution, although legitimate given the unique circumstances
of the Seton/Brackenridge Lease Agreement, cannot be seen as a template necessarily
applicable to all proposed collaborative ventures.
Indeed, a number of circumstances concerning the Seton/Brackenridge agreement
- Brackenridge is a city-owned hospital, not a Catholic-owned one, even though
it is being leased and managed by a Catholic health care system.
- Seton was locked into a 30-year lease, the violation of which would have
had severely adverse material consequences for its health care ministry.
- Brackenridge did need to expand its obstetric services, although Seton
was under no obligation to do so. This need arose quite independently of the
attempt to find a solution to the cooperation problem. Absent the need to
expand, it might have been impossible to have found a moral solution to the
dilemma because Seton could not have proposed an arrangement to allow women
to be surgically sterilized without intending that it occur.
Texas law allows what might be called "hospital within a hospital" arrangements,
according to which licensure is granted to two separate and unrelated corporate
entities that operate in the same building. Such arrangements can be found in
cases in which one hospital has special expertise (e.g., long-term acute care)
not provided by the other and for which the other cannot obtain licensure. Under
such arrangements, one hospital can provide its licensed services within another
general acute care hospital.
Conceptually, the revision of the Seton/Brackenridge Lease Agreement was not
complicated. Brackenridge essentially refused to continue to perform surgical
sterilizations. The city agreed to take back management of a portion of its
own hospital, deciding that it would itself provide expanded obstetric services
in that portion. The city will hold the license for its hospital, which will
have its own separate managers and governing body. The city further agreed to
finance the structural reconfiguration of the plant necessary to accomplish
these objectives. And it agreed that no abortions would take place in its own
hospital within Brackenridge Hospital.
At this point, the negotiators realized that Brackenridge
would have to provide certain services to City Hospital for
the proposed arrangement to work. Consequently the city and
Seton proposed to enter into an Ancillary Services Agreement
for this purpose. However, concerns surfaced that some of the
services required by City Hospital might prove to be immediate
material cooperation in evil, whereas others were only mediate.
Seton's provision of electricity and water would not, for example,
contribute anything essential to City Hospital's anticipated
surgical sterilizations. However, the provision of sterilized
surgical kits would contribute something essential, as could
the provision of pharmacy or laboratory services. Seton consequently
excluded those functions from the Ancillary Services Agreement,
as well as anything else which might be seen as contributing
essentially to the commission of immorality in the new City
It was the opinion of the National Catholic Bioethics Center that, as a result
of the amendment to the Lease Agreement and the Ancillary Services Agreement,
Seton would ultimately be engaged in licit proximate mediate material cooperation
with the immoral surgical sterilizations that might occur in City Hospital.
Critical to this conclusion, however, was the fact that the arrangement arose
as the means to remove Seton from an existing morally unacceptable relationship.
This fact morally distinguishes Seton as intending to extricate itself from,
not secure the provision of, direct sterilizations. The center would never have
approved Seton's entering an arrangement such as this for a new transaction
with a third party, because that arrangement would probably have involved an
intention on the part of the Catholic party that the surgical sterilizations
be performed (implicit formal cooperation). Even if the intention were avoided,
such an arrangement would put the Catholic institution into immediate material
cooperation. There had to be a significant reason to justify Seton's involvement
in proximate mediate material cooperation. The center considered the justifying
cause to be the significant financial loss that Seton would suffer if it broke
the Lease Agreement and the harm that would accordingly be done to the great
good of its health care ministry.
As we have maintained, it is necessary to remember that the
principle of cooperation is a limiting principle, to
avoid cooperating in evil, not an expansive one,providing
opportunities for cooperating in evil. Even though mediate material
cooperation can be licit, there must be a proportionately grave
reason for even allowing it. The center considered such to be
the case with the Seton/Brackenridge Lease Agreement.
The church has a moral tradition regarding scandal, not as a matter of public
shock or surprise, but as an issue involving the leading of another to wrongdoing
or sin. The bishops explain the relation of scandal to cooperation in this way:
The possibility of scandal must be considered when applying
the principles governing cooperation. Cooperation, which in
all other respects is morally licit, may need to be refused
because of the scandal that might be caused. Scandal can sometimes
be avoided by an appropriate explanation of what is in fact
being done at the health care facility under Catholic auspices.
The diocesan bishop has final responsibility for assessing
and addressing issues of scandal, considering not only the
circumstances in the local diocese but also the regional and
national implications of his decision (Directive 71).
The fact that a partner in a collaborative arrangement performs
a most grave evil act, such as abortion, in itself greatly increases
the potential for scandal concerning that arrangement, which
might otherwise involve morally licit cooperation. However,
the risk of scandal is not evaluated simply on the basis of
a proportional difference between what the parties consider
to be grave wrongdoing. Scandal is also proportionate to the
level of institutional integration produced by the collaboration.
As with the risk for formal cooperation, the greater the level
of institutional integration the greater the risk is for scandal.13
The more integration there is, the more it can appear that the
Catholic party is condoning the evil or is in some way identified
Ethical Guidelines for Evaluating Collaborative Arrangements
The following five guidelines ought to form the baseline of any moral evaluation
of a collaborative arrangement:
- The members of a collaborative arrangement should understand
that it represents an extension of the identities of the participants.
As a result, the joint entity cannot act in a manner contrary
to the missions of the members. Thus a Catholic health care
organization may not participate in a collaborative arrangement
that does not act consistently with the ERDs. This is not
an imposition of Catholic values because the Catholic institution
is acting in the only way any health care organization
can, namely, by delivering health care according to a particular
vision of what is good for the human person.
- The first step in an ethical review of a collaborative
arrangement is to determine whether it or the Catholic institution
will engage in formal cooperation in evil (explicit or implicit)
in and through the arrangement. Any governance, management,
or financing of immoral procedures and activities must be
completely segregated from the collaborative entity by the
- If it is concluded that formal cooperation can be avoided,
then a determination must be made as to whether either the
Catholic member or the joint entity would engage in immediate
material cooperation. Any actions by these entities that would
constitute immediate material cooperation must be excluded
from the arrangement. Contributing essential employed staff
or equipment to the performance of an immoral procedure is
certainly — if not formal cooperation absent a demonstrated
intention — immediate material cooperation. An appeal to duress
cannot be made to justify immediate material cooperation in
intrinsically evil acts.
- If it is determined that neither the Catholic party nor
the joint entity would engage in formal or immediate material
cooperation, then a judgment must be made as to whether the
collaboration involves justified mediate material cooperation.
There must be great goods to be gained (or preserved) or great
evils to be avoided to justify mediate material cooperation.
- Pursuant to Directives 67 through 72, collaboration with
the local bishop and compliance with any diocesan protocols
must be carried out in the earliest stages of planning for
a possible collaborative arrangement. In particular, all parties
should be prepared for the possible judgment by the bishop
that, for reasons of scandal alone, the collaborative arrangement
cannot be permitted.
A Limiting Principle of Moral Action
To apply the principle of cooperation properly to collaborative
arrangements between Catholic and other-than-Catholic health
care organizations, one must first correctly understand the
principle's purpose. As Directive 69 puts it: "If a Catholic
health care organization is considering entering into an arrangement
with another organization that may be involved in activities
judged morally wrong by the Church, participation in such activities
must be limited to what is in accord with the moral principles
The bishops recognize that the principle of cooperation is a limiting, not
an expansive, principle of action. Its purpose is to limit action so that evil
may be avoided in the pursuit of good, not to impel an individual or institution
into action that involves some kind of cooperation in evil. Expanding the purpose
of the principle of cooperation to include a role of positive moral action opens
the way to regarding any collaboration as being at the same time a moral obligation
to cooperate in evil, which in turn removes an important barrier to potential
Three critical points follow from the basic premise that the principle of
cooperation is a limiting principle of moral action:
- The presence of justifying reasons for cooperation in evil in any given
case ought not to be construed as evidence for the existence of a general
obligation to cooperate in evil.
- The notion of "wrongdoer" is not reducible to the principal agent alone;
in some types of cooperation, it also includes the cooperator
- Duress and fear stand outside the definition of material cooperation per
se as possible reasons for material cooperation.
These points are important in distinguishing immoral from moral cooperation
by a Catholic health care organization.
The principle of cooperation, understood as a limiting principle of action
that can help a moral agent avoid evil in the pursuit of good (rather than as
an obstacle to the fulfillment of Catholic health care ministry and the common
good), can be an effective tool in the achievement of those goals. This more
restrictive use of the principle — instead of what appears as a newly proposed
expansive use — is what will enable the Catholic health ministry to collaborate
with others to provide health care in a way that is consistent with its vision
of the human good.
- National Conference of Catholic Bishops, Ethical and Religious Directives
for Catholic Health Care Services, 4th ed., Washington, DC, 2001.
- See "Cooperation with Non-Catholic Partners," Ethics & Medics, November
1998, pp. 1-5.
- See, for example, James F. Keenan, "Applying the Seventeenth-Century
Casuistry of Accommodation to HIV Prevention," Theological
Studies, no. 60, 1999, pp. 492-512; "International Cooperation
and the Ethical and Religious Directives," Linacre Quarterly,August
1997, pp. 53-76; "Prophylactics, Toleration, and Cooperation:
Contemporary Problems and Traditional Principles," International
Philosophical Quarterly, June 1989, pp. 205-220; James
F. Keenan and Thomas R. Kopfensteiner, "The Principle of Cooperation,"
Health Progress, April 1995, pp. 23-27; John Tuohey,
"Partnering for More than the Survival of a Catholic Presence
in Healthcare," New Theology Review, vol. 12, no. 1,
- See, for example, John A. McHugh and Charles J. Callan, Moral Theology:
A Complete Course, revised and enlarged by Edward P. Farrell, Joseph F.
Wagner, New York City, 1958, and Dominic M. Prummer, Handbook of Moral
Theology, Mercier Press, Cork, Ireland, 1956.
- McHugh and Callan, n. 1,514, p. 620.
- See John Paul II, Evangelium Vitae, Origins, April
6, 1995, n. 74; H. Noldin, Summa Theologiae Moralis, vol.
2, F. Rauch, Innsbruck, Austria, 1914, n. 117, pp. 9-10; McHugh
and Callan, n. 1,511, pp. 618-619; Bernard Haring, The
Law of Christ, Dol. 2, Newman Press, Westminster, MD,
1964, p. 496; Germain Grisez, The Way of the Lord Jesus,
vol. 2, Franciscan Press, Quincy, IL, 1993, pp. 440-444.
- Congregation for the Doctrine of the Faith, "The Presentation of the Permissibility
of Material Cooperation in Intrinsically Evil Actions Developed by the Catholic
Health Association," June 13, 1997.
- National Conference of Catholic Bishops, n. 44.
- Congregation for the Doctrine of the Faith.
- The bishops' Commentary appeared in Origins, no. 11, 1977,
pp. 399-400; Quaecumque Sterilizatio appeared in Origins, 1976,
- See "Cooperation with Non-Catholic Partners."
- National Conference of Catholic Bishops.
- See Peter J. Cataldo, "Models of Health Care Collaboration," Ethics
& Medics, December 1998, pp. 3-4.
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