Catholic Medical Quarterly

The Journal of the Catholic Medical Association (UK)

Building knowledge. Building faith. Protecting the vulnerable.

Catholic Medical Quarterly Volume 63(3) August 2013

Cooperation and Immoral Laws.
Preventing without Prescribing Harm.

Helen Watt

This essay was originally published in the Summer 2012 issue of The National Catholic Bioethics Quarterly. 12.2: 241–248. © The National Catholic Bioethics Center, Philadelphia, PA. All rights reserved. Reprinted by permission.


Photo of author In responding to an unjust legal situation involving human rights abuses, one approach is to seek a selective ban on some abuses if a more comprehensive ban is not feasible politically. While such an approach to embryo research or abortion, for example, can reasonably be applied, much harder to defend is regulation—that is, giving permission or instructions for others to do or prepare to do what we believe is morally wrong. Regulation necessarily involves us in wrongly intending that others choose wrongly, that is, in formal cooperation with evil. We should choose other means of making a bad situation better: selective banning or discouragement by, for example, withholding funding, and the mandating of acts that are good or potentially good in the context in which they are mandated.


In this essay, I assume that embryo destruction and in vitro fertilization (IVF) itself are unjust to those involved,  and thus particularly suitable objects of legislators’ attention.[1]  Places where such activities are unregulated are sometimes described as the “Wild West,” where regulation is not only licit but essential. This essay looks at some problems of principle that arise when we try to make a bad situation better by regulatory as opposed to other means. Imperfect legislation is a huge subject that I do not attempt to cover in detail; rather, I highlight what I see as regulatory approaches that are wrong to pursue, even to save some lives and prevent some human rights abuses. The focus of the essay is embryo destruction in the context of abortion and of IVF, as the same problems of principle apply, though in rather different ways.

Scales of JusticeLet me begin by looking at a case of regulation in its clearest form: the establishment of a regulatory body with power to give or refuse licenses for the activity in question. This regulatory body can be highly permissive, such as Britain’s Human Fertilisation and Embryology Authority (HFEA), or more restrictive, such as one that licenses and monitors the production of embryos by IVF to ensure that no more than one embryo is created and transferred at a time. While the HFEA is notoriously permissive—even more so, many argue, than the law it implements - would not a more restrictive law and regulatory body be better than a total free-for-all?

The answer to this question could be yes in terms of outcome; however, this does not mean that we are justified in pursuing the regulation option. For if pursuing a regulatory system would involve us in choosing something wrong, even a balance of good over bad (taking that wrong into account) will not justify us in pursuing that option. After all, those of us who oppose embryo destruction - or oppose it most strongly - tend not to be consequentialists, who believe the end justifies the means, but moral absolutists, who are or should be anxious to avoid complicity in what we think are wrongful acts. Moral absolutists will be particularly concerned to avoid deliberate - so-called formal - cooperation in the wrongful acts of others: any such cooperation will be wrong in itself, not merely because of bad consequences it may have.

Selective Bans versus Regulation

The following analogy may be helpful in contrasting two approaches to harm prevention. Imagine that you are in charge of a men’s prison in which there are known to be many sexual encounters, including many rapes. It is one thing for you to tell inmates of the prison that you wish to protect everyone from non-consensual sex and that any case of rape by anyone in the prison will be most severely punished. This amounts to a selective ban on one, and only one, form of sexual activity; all other sexual activities in the prison will be tolerated, if not encouraged. Such a ban, or partial ban, seems reasonable in principle.

Now imagine a case - admittedly somewhat far-fetched - in which you issue consent forms for prisoners to complete before all their sexual encounters, casual or otherwise. If, as I would argue, it is wrong to prepare for nonmarital sex, whether or not the person knows this, to intend that others so prepare amounts to formal or deliberate cooperation in morally wrong behavior. Even if the hope is that prisoners will be discouraged by the paperwork from embarking on new encounters, inviting them to wrongly begin preparing for such encounters is surely itself morally wrong. And it is wrong whatever the prisoners’ culpability: your own culpability may of course be very much greater should you happen to have a better grasp of the issues at stake.

When we apply the same principles to embryo destruction, we see the same kind of problem. If it is wrong to do embryo research - or even “simple case” IVF in which every embryo is transferred - it is wrong to prepare to do embryo research or IVF or to help or invite others to so prepare. It is wrong not only to hand out permissions but to appoint and train staff to hand out permissions and help applicants apply. However well-intentioned the drive for regulation, regulation in practice will involve the intentional recruitment of staff who will deliberately help people through the system and give licenses to successful applicants. And even if, per impossibile, those appointed to give licenses had no intention of giving them to anyone, it would still be wrong to invite applicants to embark on what one knows is an immoral attempt to obtain a license to do wrong - perhaps, indeed, a license to kill.

Counselling Certificates

An attempt to do something wrong is wrong at every stage (initial intention, preparatory steps, and final steps) and will not be encouraged by those who truly respect the person making the decision.[2] This applies not just to giving licenses but to other attempts to exercise control over the wrongful activities of others, including their preparation for morally wrong acts. We might remember here the case of the Catholic pregnancy counsellors in Germany who (before the Vatican intervened) were handing out certificates that could be used to obtain abortions, as counselling certificates were legally required for that purpose. While the intention to bring pregnancy counselling to women urgently in need of it was admirable, the means to achieving this end were, unfortunately, not well thought out.

I should stress that my concern here is not just with handing out certificates that we know (but do not intend) will be used to obtain abortions, however serious and illicit such unintentional, “material” cooperation may be. In such a case, the intention would be not to help a client obtain an abortion but to fulfill the earlier promise to give her a certificate - despite knowing that she may use it to obtain an abortion, quite against the counsellor’s will. It is rather as if suicide counsellors were to attract clients by offering needles that could be used at suicide clinics; this would, I think, be seriously wrong, but not because suicide would necessarily be intended by the counsellor.

My concern in the pregnancy counselling case is first and foremost with the counsellor’s formal, deliberate cooperation in the abortion-seeking behavior by promising something (the certificate) the woman needs to prepare herself - if only conditionally - for getting an abortion. Is this not deliberately “tempting” the woman to contact the pro-life counselling center (as opposed to another body) precisely as the second stage of her decision-making process, in which she equips herself with the means to get an abortion should she eventually choose to do so? Even if the woman is merely intending to prepare conditionally to get an abortion, that intention is itself morally wrong if her baby has a right to be respected. Conditional plans for something good are good; conditional plans for something bad are bad. While there is nothing wrong with inviting someone tempted to do wrong to reflect at length on the various options, we should not invite anyone to entertain even tentative proposals for bad options, still less to prepare for those options, conditionally or otherwise. Morality is not just about external or definitive choices but about internal and conditional choices; these too are significant, as among the “contents of the heart.”

Laws Mandating Counselling or Information

So what does all of this mean in terms of laws that mandate counselling for pregnant women? Is there any way to avoid formal, deliberate cooperation in preparations for abortion? After all, such a requirement could make all the difference to a woman who might receive crucial information about her baby’s development, the risks of abortion, and help available to her if she has the child. Even an abortionist could perhaps be told that he or she needed to “stop” at a certain point and give the woman this kind of information. Giving the information is not wrong in itself; on the contrary, if the abortionist had an on-the-spot conversion to pro-life beliefs, he or she would give exactly this information without seeing it as preparation for an abortion that he or she is trying now to prevent.

It is, however, difficult to find a licit way of mandating counselling or the giving of information before an abortion takes place.

It is, however, difficult to find a licit way of mandating counselling or the giving of information before an abortion takes place. At the very least, leaving aside the advertising of certificates, this involves the person counselling or giving information in uncomfortably close material cooperation with the woman pursuing the abortion. It also involves the legislator in seemingly formal cooperation with those who draw up the final paperwork. For surely the legislator is here requiring new and inevitably wrongful preparations for abortion, albeit with the aim of reducing the number of actual abortions performed. How can it be right to intend that other people prepare in any way for something we - and in many cases they - believe is unjust homicide?

An alternative way of ensuring that more information is given to women would be to require any health professional, pro-life or otherwise, who is giving any information on abortion to a pregnant woman to check that she has certain information — for example, about help available to have the baby. The conversation would then be recorded in the medical notes not as part of the paperwork required for an abortion but as something the absence of which could be used after an abortion by a woman suffering from post-abortion problems as proof that she had not been given the relevant information. (The risk in practice, however, would be that seeking to require the information to be given would be immediately followed by a counter-demand that all health professionals give information on how to obtain an abortion, thus producing no net gain, or even a net loss, in terms of genuine pregnancy support.)

Parental Consent

What about requiring consent from or notification of the parents of an underage girl? Parental notification might, again, be required not of the abortionist in particular but of any health professional whom the girl has consulted about her pregnancy and who is aware of the planned abortion, if there is no indication in the medical notes that the parents have already been informed. Regarding consent, if abortion involves a serious injustice both to the girl and to her baby, it would seem that no parent should be invited to consent to - as opposed to vetoing - an abortion. If a parent’s signature is required for an abortion - as opposed to a parental veto being a possible block on the abortion - this will in practice involve many health professionals sincerely inviting such consent and many parents giving it.

If pro-abortion people are responsible for consulting parents, it is unlikely that they will confine their intentions to that of enabling parents to refuse consent, should they wish to do so. And if others, less initially pro-abortion, are involved in consulting parents, they could easily be drawn into formal, not just material, cooperation with consent giving by the parents. A simple question like “Where do I sign?” will (at the very least) pose problems of uncomfortably close material cooperation even for those initially motivated by the hope that the parents will refuse to sign. Any signature obtained will then become part of the abortion paperwork, and those obtaining it will be responsible for processing it as something they know will be - and may intend to be - an essential means to an abortion.

Similar problems arise with obtaining consent from IVF parents to perform research on their embryos - for example, where one parent has already agreed to such research. Here again, inviting parents - including gamete donors - to veto research on their embryos seems a preferable solution. Some cooperation problems may, however, remain both here and in the context of abortion - for example, if a declined opportunity to veto needs to be certified as part of preparation for abortion or destructive research.

Abortion Forms and Legislators

The promotion of harm-minimizing laws can present various problems of principle for legislators, of a kind often overlooked. For example, one problem for pro-life legislators in Britain is that any change to the abortion law may well encompass changes to the abortion form included in the Act to be amended, a form that has the look of something intended specifically for abortion-minded doctors to complete. So even if a proposed law were not, in its main content, an instruction on how to perform or prepare for abortions but merely a selective ban on some abortions - leaving some legal but making none legal - the problem would be with what certainly looks like an offer to abortionists and others of a new way of preparing for abortion, albeit one embodying new restrictions.[3]

Would it be possible for British legislators to amend the abortion form without the intention that anyone use it in preparing for abortion? [4] Perhaps changes to the form could be seen simply as a way of communicating with abortionists to tell them that some particular ground for abortion (say, fetal disability) was no longer legal. Putting the form on a Web site for public access could perhaps have this communicative aim: one need not intend that the form be used by anyone at all. Indeed, theoretically Parliament could pass a law requiring the form to be signed by a million doctors - or by the Easter Bunny - so as to make abortion preparations impossible, not just more difficult than they are.

What about attempts to require not a million signatures but a third signature on the abortion form? This is hard to envisage without some formal cooperation in abortion preparations. Even if we intend that at least some doctors refuse to cosign, are we not intending that the forms be referred to these doctors in the first place as a means of slowing down the abortion process and allowing the woman more time for reflection? It is simply not credible that the first two pro-abortion doctors will not bother trying to get a third doctor to sign - something that is wrong for them to try, whatever their chances of success. And that being so, should we - and can we sincerely - intend that the slowing down occur without the pro-abortion doctors passing on the form? If an intention is unrealistic - for example, the intention to slow down the process without anyone intending to obtain a third signature - that claimed intention on the part of the pro-life legislator will be unreasonable or insincere.

Collaboration with “Moderate” Legislators

But there is another problem: even pro-life legislators who do not themselves intend that doctors or researchers prepare in any way for embryo destruction will often be cooperating with so-called moderate legislators, who will be intending precisely to encourage “better” or “more serious” preparations for abortion, embryo research, and so on. These legislators would not, for example, support pro-life legislators on a law requiring signatures from a million doctors, as they would see this as a frivolous attempt to divert attention from “serious” preparation for abortion. Certainly, they are intending to reduce the number of abortions, but more serious preparation is for them a key means, not simply part of a parallel chain of reasoning that pro-life colleagues could perhaps ignore.

The pro-life colleagues may find it difficult to intend that the moderates seek the shared good end without intending that they seek the bad means they know are central to the moderates’ plan. Even if they do avoid intending that the moderates seek these bad means, the fact that they are causally central to the moderates’ plan is arguably sufficient to exclude cooperation in the shared good end. (After all, it would surely be wrong to collaborate with moderates in, say, a bid to reduce the health care budget by reducing spending on “extraordinary” treatment [in itself a good end] if one knew that the moderates were planning to reduce the budget not by saving money on the treatment itself [a good means] but by achieving the deaths of the patients affected, who would then not be “burdens” on the state.)

This is not to say that no kind of cooperation with moderate legislators by their more consistent pro-life colleagues is morally permissible. To begin with, it may be possible to cooperate with moderates in opposing efforts to remove the requirement for a third or second signature, if the moderates at least share the pro-life view that such a bill would not improve things overall but would lead only to more loss of life. Just as a senior policeman might stop a junior one from intervening in a riot because this will simply mean more bloodshed down the line, it is surely possible to block a legislative intervention without intending the unjust status quo that intervention would amend.

It is, however, a difficult question whether the moderates’ additional possible intention that at least some doctors “properly” consider counter-signing would invalidate cooperation on the shared aim of voting down a bill that would do more harm than good (i.e., by removing one of the few remaining—though perhaps more symbolic than actual—protections for the unborn child). Voting down a pointless and even harmful measure is an aim that can reasonably unite people of different views, even if some will add illicit parallel chains of reasoning to the licit ones they share with other legislators. Thus, in other contexts, legislators who are partly motivated by illicit business interests may nonetheless sincerely agree with more idealistic legislators on the public-interest merits of some bill that affects them. However, if their bad intention is their sole motivating ground for voting as they do, their i­dealistic colleagues might decide that this wholly illicit causal means to their shared end, even if not intended by the idealists as such, is enough to preclude cooperation.

Quite generally, some complicity problems can be avoided by designing or even amending bills to “bracket” controversial issues so that they will not give rise to bad intentions. For example, an imaginary “protection of embryonic life” bill could be deliberately framed or amended so as to apply only to embryos in vitro, not in vivo, to avoid opposition from those in favor of abortion. If destruction of in vivo embryos is already legal, moderates who vote for a law referring only to in vitro embryo destruction would not need to do anything to make legal destruction of embryos in their mother’s womb. To point this out need not spark a similarly redundant intention in moderates to keep abortion legal, but merely the thought, “Oh, so abortion is not an issue here, then.” To try in advance to get the moderates’ agreement in this way would certainly involve less complicity than tacitly counting on (perhaps, indeed, intending) the moderates’ own amendments as a causally necessary step to getting the legislation through.

Taming the Wild West

There is, of course, much more to say on these complicated but important questions. My main aim in this paper has been to argue for the general claim that regulation (i.e. positively giving permission or instructions for doing bad things) involves formal cooperation in evil, so that we must choose other legislative means of making a bad situation better. These alternative means can include selective banning or discouragement of some bad actions (say, by withholding funding) and the mandating of other actions that are good or potentially good in the context in which they are mandated. It is good to ban the use of embryos in cosmetic testing, bad to require embryo researchers to make a “better case” for their research. It is good to ban the production of excess embryos, bad to instruct clinics how to do IVF without this. It is good to tell a woman about alternatives to abortion, bad to instruct her and her doctor how to prepare for an abortion. In taming the Wild West, we should aim not for supervised shoot-outs, licensed lynching, or mandated maiming but for the Sheriff breaking up the right fights and knowing how to use the Town Jail.


Helen Watt, PhD, is a senior research fellow at the Anscombe Bioethics Centre in Oxford, England.  



  1. Apart from issues of screening and deliberate discarding of embryos, endangering of embryos (e.g., by freezing), and confusion of parentage by surrogacy and gamete donation, IVF wrongs the child by making him or her the product of a dehumanizing act of manufacture. Infertile couples, gamete donors, surrogates, and others may also be victims—even if willing victims—of unjust exploitation on the part of IVF practitioners.
  2. I am referring here to attempts seen as such by the agent, not to “microfocused” or mechanical behavior that is not consciously motivated by one’s illicit goal. For example, I deliberately decide to drive my car to the laboratory for the purpose of doing embryo research and then “mechanically” change gears and stop and start at traffic lights as I drive. It is absolutely wrong for someone else to share my bad motivating intention; it is not absolutely wrong for someone to share my more immediate intentions, which in other contexts could certainly be innocent, and even in this context are certainly more innocent the less consciously connected they are to my illicit motive. To continue the analogy, my driving instructor may intend that I change gears and may be aware that I am en route to my place of (immoral) work. For him to go on instructing me rather than suffer a dire fate may be formal cooperation with my immediate aim of driving but is only material cooperation with my further, intrinsically wrongful “motivating” aim of preparing for embryo research. In contrast, if he were to urge me to persevere by pointing out that I would be late for my embryo experiment, he would be intending precisely my immoral motivation, and this would be (necessarily illicit) formal cooperation with that motivation. When we apply this reasoning to the case of filling out a permission request to do embryo research, I may not have this aim consciously in mind throughout my form completion; nonetheless, any help I request from the regulatory body staff is quite likely to be focused precisely on achieving my illicit end. And while perhaps the staff’s replies might still not constitute formal cooperation, in practice they very often would constitute this, not merely scandalously close material cooperation (think of answers to questions such as “How can I strengthen my application?”).
  3. For a discussion of these questions, including in relation to Catholic Church teaching in this area, see the exchange between Colin Harte and John Finnis in Cooperation, Complicity and Conscience: Problems in Healthcare, Science, Law and Public Policy, ed. Helen Watt (London: Linacre Centre, 2005), 179–295. See also John Finnis, “Helping Enact Unjust Laws without Complicity in Injustice,” American Journal of Jurisprudence 49 (2004): 11–42; and Colin Harte, Changing Unjust Laws Justly: Pro-Life Solidarity with “The Last and Least” (Washington, DC: Catholic University of America Press, 2005). The issues are complex; however, it does seem that a selective-ban approach to, say, abortion legislation can sometimes be permissible where the law of the land already permits the abortions that will be left legal by the new ban. (In referring to the law of the land, I am of course referring to positive law, not law in its true sense. Any unjust aspect of the law of the land—or of the earlier legislation that changed it in an unjust direction—has no moral claim on our obedience, even if the law of the land still contains much bona fide law that does have such a claim.)
  4. As opposed, perhaps, to the form’s looking as if it had that purpose in the interests of getting it through Parliament. That would, however, raise problems of complicity with moderate legislators.