Should Catholic Schools Be Able to Fire Teachers Over Fertility Treatments?

A priest explains the Church's stance on assisted reproduction -- and the internal politics that cost an Indiana woman her job. 

Emily Herx was a popular literature teacher at St. Vincent de Paul School in Fort Wayne, Indiana, until she used her medical leave for in vitro fertilization. Herx lost her job and says a church official called her a "grave, immoral sinner." When she appealed to Fort Wayne Bishop Kevin Rhoades, he told her IVF was "an intrinsic evil, which means that no circumstances can justify it." The federal government saw things a bit differently. Herx filed a complaint with the Equal Employment Opportunity Commission, and won -- paving the way for a civil lawsuit.

That's the short version of the story. But according to Reverend Richard Sparks, the full truth is a lot more complicated.

Sparks is a priest at Old St. Mary's Church on the South Side of Chicago. He knows the nearby Fort Wayne diocese, where he almost served as a pastor back in the 1970s. He also holds a Ph.D. in bioethics, which means he spends a lot of time tiptoeing through theological minefields. But he believes the Herx case was less about Church teachings than about politics.

Sparks spoke to me over the phone about sexuality and "personhood," Augustine and Aquinas -- and the "Rick Santorum-like Catholics" who are steering the Church further and further to the right.

Let's get one question out of the way first. The Catholic Church is led by celibate men. How can priests understand the issues married people face when they're struggling with infertility?

There's this notion that celibate priests don't understand sexuality. But in my experience, some of the people who are the harshest and most conservative are married Catholic scholars. Certainly, on this issue, married theologians like William E. May, Germaine Grisez, and John Haas have been much stricter than most Catholic priests would be. We priests deal with a lot of parents and families and have a lot of empathy for them.

What's the Church's basic opposition to in vitro fertilization? Is it mainly the issue of creating extra embryos?

That's a big part of it. When you're dealing with extra embryos in a laboratory, then it does bump up against the abortion question. You've combined sperm and ova in a lab; now you have a zygote or an embryo. Is it fully human? Do we now have a new life -- not just the parts that could become a life, but a new, ensouled person?

Can you explain what you mean by "a life"? Does the Church grant a three-day-old embryo the same status as a baby living outside the womb?

The Church has skirted that question very carefully. You don't find the Church absolutely declaring that from the moment of conception we have a person. They do say, in a sense, that from the moment of conception we should err on the side of having a human. We should act as if we have a human.

Where does that idea come from? The Bible doesn't say that life begins at conception.

A lot of this comes from our natural law tradition. From Thomas Aquinas forward, the Catholic Church has argued that our positions are reasonable, or at least defensible by reasoned argument, especially on moral issues.

So we ask, when do we have a unique individual? Is it when you have brainwaves? That would be 40 days out. Is it with the first movement, or quickening? That's several months out. Is it when it can live outside the womb? That's in the last trimester. The Catholic position is that from the moment of conception -- the moment his DNA combines with her DNA -- you can argue that you have a unique individual.

Now, there are some Catholic theologians who argue that the embryo doesn't become a unique individual until it's actually implanted in the uterus. That would allow for a lab to create all those embryos and zygotes -- they're not individuals until they implant, 10 to 12 days from conception. And a more liberal theologian like Charles Curran would say that an abortion right after a rape might be acceptable.

So many pregnancies end in miscarriages, especially very early ones. Does the Church view miscarriages as actual deaths?

We have not traditionally had funerals and coffins for spontaneous miscarriages. Does that mean we didn't say they were persons? No. But we kind of let that one fall between the cracks. If parents wish to remember them, they're welcome to remember them. If they want to give them a name, that's all right. Rick Santorum did that. But in the case of Emily Herx, what you see is the conservative side of the Church trying to tighten boundaries that were sometimes left a little bit vague.

Emily Herx told her school that she wasn't going to destroy any embryos during her IVF treatment. So why was there a problem?

There's still an issue. In terms of procreation, the closer one is to sexual intercourse, the less the Church is going to have a problem with it. So if you're doing fertility treatments that help you conceive while actually having sex, that's mostly all right. The further you move from that -- and toward the laboratory actually playing a role in conception -- the less the Church approves.

And then there's the issue of using borrowed sperm or ova, which adds another layer of distance. The further things move away from sexual intercourse, the more it raises the question: Are you manufacturing a baby? Is this an extension of lovemaking? Or is the laboratory doing something to replace lovemaking?

The whole idea of conceiving a baby outside the womb is so modern. It's hard to imagine these issues coming up in any form in the early Church.

Yes. But when it comes to sexual things, the Catholic Church has always held that the sperm belongs with the ovum, the male genital part belongs in the vagina. From that, you can deduce almost anything.

A lot of babies are conceived in circumstances that don't seem particularly holy -- a one-night stand, or even a rape. In contrast, two people undergoing fertility treatments would seem to be especially committed to each other and to their future family. 

Precisely. Sometimes Catholic theologians can be very insensitive about that. They'll talk to a couple who have loved each other, have gone through pain together, and might be struggling with issues about their masculinity or femininity, and they'll say, "Moral theology says you don't have the right to have a child." That might be correct on a blackboard. But to say that to a couple is like telling them what selfish, evil people they are. They're loving people who want a child badly -- and they know the Church wants people to have children, so they can't understand why they aren't getting more empathy.

But the Church does disapprove of in vitro fertilization, no matter how loving and committed a couple may be.

When it comes to sexuality, our Catholic natural law teaching is very genital-based. It's more focused on biology than Catholic teaching is in other areas. Some would say that love, marriage, and commitment have to be taken into account. Pope John Paul II worked very hard to create what he called the theology of the body -- instead of just talking about biology, he spoke about the loving meaning of the whole person. But in the end, the Church would say that you can't go against biology. That's the mechanics of our nature.

And that goes back to Aquinas?

That actually goes back to Augustine. But with all of these questions, what's right in God's eyes and what's right in terms of civil law wouldn't necessarily be identical.

Do you mean the laws of the United States aren't always in line with the Catholic worldview?

Not exactly. Here's an example. There are some sexual activities, like anal sex, that used to be considered criminal by civil law and no longer are. Does that mean the majority of people in the state of Georgia think those activities are moral? Maybe not. But the way you'd have to police those activities would be like the Gestapo. It would mean looking into people's bedroom windows with cameras. And we don't want to get into that.

Or look at capital punishment. There's a concern that people of color seem to end up on death row more often than white people. That may be because the system is prejudiced against them. So if we can't apply capital punishment fairly, should we apply it at all? Many would say no.

If a woman had a spontaneous miscarriage and was living a raucous life, we wouldn't say she'd committed murder. It's partly a question of what's right and wrong. But it's also a question of how we would enforce such a law. What would the implications be of implementing it?

In the Emily Herx case, the school did take an official stance against what she was doing and actively enforce it.

That's right. And it seems to me the issues going on here are less about IVF and more about how that Catholic school handled someone on the borderline. The question would be, was this handled well pastorally? Was this handled well legally? Some people would say probably not.

The school might argue that it has the right to uphold its own values in any way it chooses.

Certainly. If you're going to work for a church, or for the Boy Scouts of America, any organization that has values, it's one thing to say that if you don't uphold them they don't want you as a leader. But when they get around to policing people's sexual lives, what is that organization doing?

Let's try a few of these. If you have married couples using contraception, does St. Vincent check their medical cabinets? They wouldn't think of doing that. If some people aren't paying their taxes fairly, does the Church fire them? I don't think anyone ever does. What if they're pro-capital punishment? No.

Similarly, if you hire a gay teacher who doesn't have a partner, is that okay? What if he does have one? Should he get fired? What if he doesn't have partner, but once in a while he goes to gay bars? Should he get fired then? If there's a Jewish teacher who doesn't believe in Jesus, can she be thrown out? For that matter, what about a Tea Party Republican who doesn't seem to care much about the poor? Do we fire that person from a Catholic faculty?

The Catholic Church has always been a kind of universal church. Catholic means broad-minded and sympathetic. But now we're starting to act more like a sect. My worry is that applying these kinds of purity tests can lead to witch hunts.

What if an employee had an abortion? Would a Catholic school board have a right to fire her if they really believed it was murder?

That's the problem with those questions about embryos and personhood. We live in a pluralistic society. We do not, as a society, put people in jail for any of those things. Someone could say that she's a murderer, and that we'd fire a murderer. But then, you'd also want a murderer in jail. And she's not a murderer in a civil, legal sense. 

Some Catholic institutions only want to employ you if you're a certain kind of right-wing Catholic -- not so much an Orthodox Catholic but a politically right-wing Catholic of the Rick Santorum variety. Others might point out that these Rick Santorum-type Catholics might not agree with Church teaching on other issues. They might not care about the poor the way the Church tells them they should. But they won't get fired for that. Within the American Catholic authority right now, other justice issues don't always seem to carry the same weight as abortion issues.

So you think the Emily Herx case is less about theology than about politics.

I don't think this story ever should have made the courts and the papers. It should have all been handled within that parish or school system. It's less about in vitro fertilization and more about the HHS ruling on contraception. It's more about why a lot of bishops didn't support the Affordable Care Act. Firing Mrs. Herx probably wasn't the wisest solution. It sounds to me like a Rick Santorum-like Catholic got in there and said, "Fire her!" If there weren't that Catholic push toward narrowing the boundaries, I'm not sure this would have happened.

I love the Church. I'm a happy priest. But I really think there's a sect-like thing afoot, and I think Mrs. Herx got caught in it. It's this idea of condemning, crushing, inhibiting, trying to put the lid back on. Some would say that Jesus engaged people rather than suppressing people. This is just another example of the Church battening down the hatches. Where it once wanted to engage people, it now wants to engage less. It feels that it may have given away too much. That's what's going on.