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Source: Analele Ştiinţifice ale Universităţii »Alexandru Ioan Cuza« din Iaşi. Teologie Ortodoxă

Scientific Annals of the Alexandru Ioan Cuza University of Iasi - Orthodox Theology

Location: Romania
Author(s): Emilian-Iustinian Roman
Title: Canonical and Theological Perspectives on Abortion and Incest
Canonical and Theological Perspectives on Abortion and Incest
Issue: 2/2009
Citation Emilian-Iustinian Roman. "Canonical and Theological Perspectives on Abortion and Incest".
style: Analele Ştiinţifice ale Universităţii »Alexandru Ioan Cuza« din Iaşi. Teologie Ortodoxă 2:125-
138.
https://www.ceeol.com/search/article-detail?id=179904
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Canonical and Theological Perspectives on Abortion and

Incest

Emilian-Iustinian Roman

PhD.Cand.
Faculty of Orthodox Theology,
“Alexandru Ioan Cuza” University of Iaşi, ROMANIA

Abstract:
This research intends to review contemporary issues such as incest, abortion,
from several points of view: penal code, bioethics and genetics, theology and canon law,
with emphasis on the latter. Due to the heated debate on these issues, generated by the
Romanian new penal code which no longer sees as punishable immoral deeds such as
incest or prostitution, the author sees fit that the position of the Romanian Orthodox
Church should be taken into account. Along with presenting a short review of their civil
law evolution, genetic and bioethical arguments against these deeds, the study reinforces
the position of the Church on incest and abortion as an attack on human dignity, as
morally and spiritually abominable acts, by appealing to the canons of St. Basil or those
of the Ancyra and Trullo Synods. Given the fact that not everything that is legal is also
moral, these cannon laws further support the necessity of treating legal changes on such
issues with responsibility and awareness.

Keywords: incest, abortion, Christian morality, legislation, genetics, penal code, canon
law

The worthy of remembrance Patriarch Teoctist considered that

family life out of which children spring – the ones who would pass on, in
their turn, the gift of life until God’s second coming, when the evil of the
sin subsides and the world is renewed – is ordered by the Creator of the
Universe and man Himself as means of perfecting the human kind in
communion as well as a sacred place through which man is risen by God
to the dignity of sharing with Him the miracle of bringing a new life out
of non-existence. The fact that breaking the holy law, either out of
carelessness or lack of knowledge, the law that settled the family as the
only establishment of birth and healthy raising of children, involves bitter

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126 Emilian-Iustinian Roman

pain, not only for those who experience such misfortune, but also for the
human community in general (†Teoctist 2001: 12).
In this paper, we set out to elaborate on a series of judicial and
canonical aspects related to some blamable human acts such as: incest,
prostitution, panderism, abortion, pornography, acts that obviously affect
the institution of family and its sacredness. We set out to do this due to
the recent changes of the Penal Code as a result of the political and socio-
economic transformations after 1989 that have led to the inevitable
change of doctrine and jurisprudence. We shall see that the teachings of
the Church, the Christian morals and canons clash against the civil law, so
we may conclude that not everything that is legal is also moral and vice-
versa.
Art. 203 from the old Penal Code defined incest as “the sexual
report between first degree relatives or between brothers and sisters”,
establishing as punishment prison sentence between 2 and 7 years and
including it in the category of sex crimes. Attempted incest was also
punished (cf. art. 204 cp).
The present-day Code no longer incriminates incest [In the new
regulation, we notice that the sexual relations between direct line
relatives, brother or sister, are punished only if they occurred without
consent (as in the case of rape or sexual aggression) or between a minor
and an adult, while the adults who consent to incestuous relations go
without punishment. Thus, the consented sexual act between a mother and
her adult son, between a father and adult daughter, an adult brother and an
adult sister is no longer incriminated. In spite of the fact that not
everything that is legal is also moral, everybody consenting to not
incriminating incestuous relations sustain that there is no reason why they
should be punished by prison sentence, thus ignoring the teaching of the
Church and the love for one’s neighbours], considering it only an
aggravation in case of rape in art. 216 (3), b. In fact, we return to the 1864
Penal Code in which the fact that wrong-doer was an ascendant in the
family was an aggravating circumstance in the crime of rape. Incest is
first incriminated as a crime against family in art. 447 in Carol the 2nd‘s

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Canonical and Theological Perspectives on Abortion and Incest 127

Code from 1936 (Dongoroz at al. 1968: 128-129). It was treated in the
same way in the English, German and Italian law. It was also proposed de
lege ferenda in the Romanian law; it has been argued that in its non-
aggressive hypothesis, the incest did not act against sexual freedom, but
against the morality of the family (Niţu 2007: 27; Bogdan 2007: 174).
The designers of the 1968 Penal Code considered it more appropriate to
include incest in the category of sex-related crimes according to its
judicial object (Dongoroz et al. 1968: 129).
In specialized literature, the fact that the judicial object of the crime
of incest is complex and includes, on the one hand, the social
relationships regarding the morality of sex life and, on the other, the
family relationships regarding the moral and biological health of family,
is established (Stoica 1976: 133 apud Bogdan 2007: 174). The previous
Penal Code prescribes the incest as normal sexual relations between first
degree relatives or between brothers and sisters, relations that bring about
the degeneration of the human species. The majority supporting the
morality of the sexual life, the Penal Code should regulate not only
normal sexual acts, but sexual relations of any nature. We must not leave
out the fact that we are also talking about incest in the case of stepfamily
relations (e.g., step-father and step daughter).
Regarding consanguinity, the legislation of the European states
differs as some countries accept consanguine relations till the third
degree, others till the fourth degree. The Romanian legislation forbids
marriage till the fourth degree (primary cousins); according to art. 6 from
the Family Code, “the marriage between lineal relatives as well as
collateral ones is forbidden till the fourth degree. For strong reasons, the
marriage between fourth degree collateral relatives can be approved by
the City Hall or the Local Council under whose jurisdiction the ones
demanding it are”.
Not incriminating the incest relationships is an attack directed at the
foundation of marriage since family is the basic cell of a society; thus
Christian morals are ignored. On the other hand, genetics has

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128 Emilian-Iustinian Roman

demonstrated that the result of the sexual relations between first degree
relatives is the degeneration of the human species.
From the point of view of the Church as well as from a civil
perspective, consanguinity is an impediment to marriage, being forbidden
between close relatives. On the one hand, the impediment relies on
biological, medical reasons since the union between close relatives does
not ensure healthy descendents; on the other hand, it also takes into
consideration morality reasons since such union would have a negative
impact on the family life (Filipescu 20005: 21). Genetically speaking,
consanguinity implies the mating of individuals of common descent.
Consequently, one of their genes may come from the same gene of the
same common ascent (Bembea 2000: 83). The unions of persons of a
common ascent are called consanguine marriages. The genetic relation
between persons of a common ascent is called consanguinity, and the
persons are called consanguine. ”Consanguinity among limited
population with marriages between close relatives is very important since
it can lead to a significant raise of the homozygote descendants for certain
allele. Since homozygosis can have negative influences on certain genes,
consanguine marriages can also have a negative impact” (Bembea 2000:
83).
Consanguine marriages date back from ancient times. In Egypt, the
pharaohs married their own sisters or daughters, in India and Japan, this
type of marriage was encouraged for keeping the heritage in the family.
The risks are worthy of attention and that is why many states have
forbidden such marriages, though not everywhere and not all the time.
Civilized nations underline the universal character of incest prohibition.
Being closely-related is an impediment to marriage regardless of whether
is from within or outside of it (Filipescu 20005: 21). The infringement of
the consanguinity impediment is incest.
Taking into account these aspects related to genetics, we must also
add a series of canonical reasons that also sustain the necessity of
incriminating the crime of incest. Thus, consanguine marriages are
stigmatized in the canon law language as “incestuous marriages” (Şesan

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Canonical and Theological Perspectives on Abortion and Incest 129

1936-19372: 376). Consequently, these marriages are null and separation

inevitable. Thus, can. 67 of Basil the Great stipulates: “Sexual intercourse
between brother and sister shall be expiated by the sentence of a murderer
(Milaş 1936: 115; Floca 20053: 421). In this canon, St. Basil establishes
the same punishment for incest as in the case of man slaughter that is the
ban from the Eucharist for 20 years along with all the steps of penitence.
Can. 75 of Basil the Great establishes penance for 11 years for the
one that has sexual relations with his step sister (from the mother or the
father), penance publicly carried out, with all the 4 steps of penitence
(Milaş 1936: 121; Floca 20053: 426).
Canon 79: “Those who later attend upon their mother-in-law are
subject to the same Canon as those who attend upon their own sisters”
(Milaş 1936: 121; Floca 20053: 426).
Canon 68: “The conjugation in matrimony of human beings within
the prohibited degrees, if it be detected, shall be punished with the
sentences of adulterers, on the ground that it falls in the same class of
sinful acts affecting human beings” (Milaş 1936: 115; Floca 20053: 421).
St. Basil establishes the same punishment as for adultery in the case of
those who marry, ignoring the canonical impediment – 15 year ban from
the holy Eucharist.
Canon 24 of St. John the Faster: “When an unbaptized child dies
owing to negligence on the part of its own parents, the parents are to be
excluded from Communion for three years, and obliged to get along with
xerophagy during this time and to propitiate the Deity on bent knees with
protracted weeping and alms proportionate to their ability, while doing
every day forty metanies (Floca 20053: 487).
We notice that the punishments prescribed by the Holy Fathers for
the same sin vary in duration, harshness and way of carrying out. Such
differences are the consequences of the fact that the canon is “a spiritual
instrument or the correction of the evil in one’s life or bringing it to the
level of the moral law” (Vintilescu 1995: 216), as the just behaviour of
the penitent is the ultimate purpose of administering them. We must not

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130 Emilian-Iustinian Roman

overlook the prevention aim of the canonical laws either, which is what
may make them extremely harsh.
St. John the Faster advises the confessor to mind not only the types
of sins, but also the healing capacity of the penitent through the canon.
Can. 3 is revealing: “The fact that we reduce the number of years of
penitence will not seem to be out of keeping with reason to those, I
presume, who can reason aright. For since neither in the great Father
Basil, nor furthermore in the more ancient of our marvelous Fathers has
any fasting or vigilation or genuflection numerically been fixed for
sinners, but merely abstinence from the sacred Communion, we have
concluded that it behooves us, in regard to those persons who are
genuinely repentant and will to subject their flesh to the infliction of
hardships, and to lead a life gratefully that will counterbalance their
previous wickedness, according to the measure of their continence to
countermeasure to them also a curtailment of the term of penitence. For
instance, if anyone consented not to drink wine on determinate days, we
decided to subtract one year from the sentence fixed by the Fathers for the
expiation of their offense. Likewise if he promises temperance in respect
of meat for a time, we have seen fit to deduct another year; if in respect of
cheese and eggs, or of fish, or of olive oil, and so on in each particular
case of temperance in respect of any one of these articles, to knock off a
year” (Milaş 1936: 209-210; Floca 20053: 481).
Marriage between direct line consanguine people is forbidden
endlessly and on collateral line till the seventh level. Establishing the
level to which the marriage of the direct line consanguine relatives, the
Church has followed the regulations of the Old Testament (The
Leviathan, 18:20) and of the roman law that settled this level until the
infinite, regardless of the number of births that separate the two
consanguine relatives.
Collateral consanguine marriage is forbidden until the fourth level
in can. 54 Trullo. In perfect agreement with the state, the Church has
considered that the extension of the impediment of collateral
consanguineous marriage would lead to the birth of healthier descendents

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Canonical and Theological Perspectives on Abortion and Incest 131

and consequently, it extended the ban to the 6th and later, in the 12th
century, to the 7th level (Şesan 1936-19372: 375).
The position of the Romanian Orthodox Church was reiterated in
the press release of the Romanian Patriarchy on the 14th of March, 2009,
according to which the incest “represents the degradation of the institution
of family, with serious genetic and psychological negative effects as well
as problems related to social relations and to the recuperation as a human
being endowed with dignity” [Press release of the Romanian Patriarchy,
Decriminalizing the prostitution and incest degrades and humiliates the
dignity of the person and of the family, available online at
http://www.basilica.ro/ro/comunicate/comunicat_de_presa_idezincriminar
ea_prostitutiei_si_a_incestului_degradeaza_si_umileste_demnitatea_pers
oanei_si_a_familieii.html]. The unity of family, so treasured by the
Church, is threatened nowadays with the dissolution with the union
against nature that is no longer punished by law.
The right to life is the first substantial right regulated by the
European Convention of Human Rights in art. 2, being guaranteed to any
person, the unborn child included. Although there is not total agreement
on the scientific and juridical definition of the beginning of life, the
European institutions have considered that pregnancy and its interruption
are related exclusively to the mother’s private life (Bîrsan 2005: 166-
168).
As for abortion, there are no major differences from the previous
Penal Code. According to art. 185 of the Penal Code [Art. 185 Cp. – The
interruption of a pregnancy, by any means, carried out by one of the
following circumstances: a) outside medical institutions or medical
offices authorized for this purpose; b) by a person who is not a specialist
doctor; c) if the pregnancy is older than 14 weeks, it is punished with
prison between 6 months and 3 months.
The interruption of the pregnancy, in any circumstances, if done
without the pregnant woman’s concern, is punished with prison sentence
from 2 to 7 years and the suspension of some rights.

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132 Emilian-Iustinian Roman

If , through the deeds of paragraphs 1 and 2, serious physical harm

has been inflicted on the pregnant woman, the punishment is 3 to 10 years
prison and the suspension of some rights, and if the deed has led to the
death of the pregnant woman, the punishment is 5 to 10 years prison and
suspension of some rights.
In case the deed from paragraphs 2 and 3 was carried out by a
doctor, beside prison sentence, he / she is to lose the license and is
forbidden to practise medicine, cf. art. 64, c).
The attempt is punished.
The interruption of the pregnancy by a doctor is not punished: a) If
the interruption of the pregnancy is necessary for the salvation of the
woman’s life, health or bodily integrity from serious and imminent danger
that cannot be overcome in a different way; b) in the cases from
paragraph 1.c, when the interruption of the course of pregnancy is
required for therapeutically reasons, according to the legal regulations; c)
in the case of paragraph 2, when the pregnant woman cannot express her
will and the interruption of the pregnancy was a necessity for
therapeutically reasons, according to legal regulations], the woman who
inflicts her own abortion is not to be punished by law, a provision that is
deduced from the whole regulation [Until the decree-law no. 1/1989
regarding the abolition of some laws, decrees and normative acts,
published in the Official Monitor no. 4, December 27 1989, the Penal
Law had incriminated the abortion in art. 185 – 186. According to art. 186
from the Penal Law, the pregnant woman that interrupted her pregnancy
was punished by law with 6 months to 2 years prison or with fine. With
the 140 / 1996 law for the change and the completion of the Penal Law
published in the Official Monitor no. 289, November 14, 1996, art. 185
was introduced; it refers to the interruption of the pregnancy course in
certain circumstances, in conditions of safety for the bodily integrity, the
health and the life of the pregnant woman, for the birth of a child without
malformations and for the insurance of the birth rate. Had the law-maker
wished to punish the pregnant woman for abortion, he would have
preserved the regulations of art. 186 of the Penal Code], so that the new

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Canonical and Theological Perspectives on Abortion and Incest 133

Penal Code has made it clear by introducing art. 199, paragraph 7: “The
pregnant woman that interrupts her pregnancy is not to be punished”
[According to the Ministry of Justice, this regulation was made after the
Norwegian § 245: “Any person who terminates a pregnancy, or is
accessory thereto, when the statutory requirements for such an operation
have not been fulfilled, or a decision for such termination has not been
made by any person authorized to do so, is guilty of criminal abortion and
shall be liable to imprisonment for a term not exceeding three years. In
the case of a repeated offence or if the act is committed for the purpose of
gain or under especially aggravating circumstances, the penalty shall be
imprisonment for a term not exceeding six years. If the offender has acted
without the woman's consent, imprisonment for a term not exceeding 15
years shall be imposed, but not exceeding 21 years if she dies as a result
of the felony. The penal provision in the first sentence of the first
paragraph shall not apply to women who themselves terminate their own
pregnancy or are accessory thereto”].
In order to record a crime, one of the following circumstances must
occur: the interruption of the pregnancy is not done in medical institutions
or authorized medical offices for this purpose; it is not done by an
authorized person or if the pregnancy has more than fourteen weeks. The
actual element of the crime consists in interrupting the pregnancy course.
It is carried out through any means, including the consent of the pregnant
woman [The absence of the pregnant woman’s consent is an aggravating
circumstance cf. paragraph 2, art. 185 from the Penal Code].
We side with the opinion according to which “from the examination
of the alternative conditions required by the incriminating text, it results
that the law maker did not mean to forbid abortion, but to make sure that
it is carried out only by authorized persons and in total security” (Loghin;
Toader 19983: 127).
One of the purposes of marriage is giving birth to children,
according to both the Old and the New Testament. In the Old Testament,
giving birth to a child was a blessing from God (Genesis 24, 60; 30, 1)
and sterility is considered a divine curse (Genesis, 29, 31). “This explains

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134 Emilian-Iustinian Roman

why maternal love was providential for the chosen people and an icon of
divine love for the chosen people (Joshua 49) and to man implicitly”
(Semen 1999: 76).
In The New Testament, Christ “strengthens the marriage connection
between man and woman and uplifts it from nature to divine, endowing it,
by His participation in the wedding from Cana, in the divine wrapping
that shone forth from Himself” (Stăniloae 1978: 183). Giving birth thus
becomes a means of achieving salvation on condition that children be
raised “in faith, love and holiness.” (I Tim 2, 15) As father Stăniloae puts
it: “by taking this responsibility, the acts of physical union becomes
impregnated with an even stronger spiritual touch. In this way, taking the
responsibility of giving birth plays an important part in the transfiguration
of the physical connection between the spouses in the first part of the
marriage, while in the second this connection be got over by the spiritual
bond towards which the spouses have advanced” (Stăniloae 1978: 192).
Giving birth to children is the fruit of the spouses’ love and union and the
expression of their direct involvement in God’s work. “Man himself also
becomes giver of life that he has received as a gift while by preventing the
birth of children , man interferes negatively in God’s creative work and
becomes limited, selfishly, to his self” (Mantzaridis 2006: 294).
While nowadays, the risks and the consequences of abortion are not
fully realized, the Church has preserved the teachings of the first Christian
centuries that is quite firm about abortion, considering it a crime (see
Breck 2001: 187-221; Engelhardt 2005 : 362-373).
The issue of abortion has generated fierce debates among law
specialists, theologians, doctors, psychologists, sociologists and, last but
not least, politicians. Thus, the Holy Fathers, labeled the abortion as a
serious crime. To this purpose, we evoke the following canons:
Canon 21 Ancyra: “Concerning women who commit fornication,
and destroy that which they have conceived, or who are employed in
making drugs for abortion, a former decree excluded them until the hour
of death, and to this some have assented. Nevertheless, being desirous to
use somewhat greater lenity, we have ordained that they fulfill ten years

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Canonical and Theological Perspectives on Abortion and Incest 135

[of penance], according to the prescribed degrees (Milaş 1934: 24; Floca
20053: 2110212). The fathers of the Ancyra Synod are more lenient;
although they consider such deed a crime that is punished by forbidding
the Holy Eucharist till death, they agreed on a 10 year penitence after
which the woman can confess.
The Trullo Synod, in canon 91, takes up the issue again,
considering: “Those who give drugs for procuring abortion, and those
who receive poisons to kill the fetus, are subjected to the penalty of
murder” (Dron 1935: 358). The canon refers not only to the women that
abort, but also to the persons that offer abortive substances.
Canon 2 of Basil the Great clarifies the issue: “A woman who
aborts deliberately is liable to trial as a murderess. This is not a precise
assertion of some figurative and inexpressible conception that passes
current among us. For here there is involved the question of providing for
the infants to be born, but also for the woman who has plotted against her
own self. For in most cases the women die in the course of such
operations, But besides this there is to be noted the fact that the
destruction of the embryo constitutes another murder.... It behooves us,
however, not to extend their confessions to the extreme limit of death, but
to admit them at the end of the moderate period of ten years, without
specifying a definite time, but adjusting the cure to the manner of
penitence” (Milaş 1936: 50). Saint Basil the Great emphasizes the danger
of death to which women expose themselves by aborting, not making any
distinction between early and late abortion.
Canon 33 of John the Faster: “As for women who destroy embryos
as professionally, and those who give or take poisons with the object of
aborting babies and dropping them prematurely, we prescribe the rule that
they be treated economically up to five or even three years at most”
(Milaş 1936: 220).
Canon 34 of John the Faster: “A woman who involuntarily has
expelled a baby through miscarriage, receives her penance for a year”
(Milaş 1936: 220).

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136 Emilian-Iustinian Roman

These canons condemn the abortion, considering it murder.

Theodore Balsamon [Canonist, jurist. He was born in Constantinopolis
between ~1130-1140 in a family of aristocrats. He was, in turn,
monophilax (rector of the Faculty of Law, Byzantium), Chartophilax
(vicar of Patriarch Theodore, 1173-1183), abbot of the Blacherne
monastery, the Protosinghel. The Emperor Isaac II Angelo Comnen
(1185-1195) named him Patriarch of Antioch between ~1185-1191. His
most important work was Scholia, a commentary on the Nomocanon in
XIV Titles. His purpose was to achieve harmony between the religious
canons and the civil laws and to work out the disagreements between
them] states that even the one that causes it, that convinces or obtains
abortive means commit murder (Rhallis-Potlis 1852-1859: 520).
We subscribe to the opinion that the explicit incrimination of these
two offences is absolutely necessary because they represent an attack to
the human dignity, to the moral health of a nation as well as to the
physical, moral and spiritual integrity of a person. The supposedly
judicial and social reasons of those who have designed the new Penal
Code are all the more difficult to understand since they ignore the
precepts of the Christian morals and the institution of marriage as the
foundation of the society, tolerating these forms of physical and moral
degeneration.
It is regrettable that the analysis of issues that are of general interest,
in a democratic country, should have been done without taking into
account the teachings of the Church, that deviating and comfortable ways
that show both lack of preparation and of love for another human being,
should have been used. Issues of moral and social nature, with great
reverberations on public conscience like incest or abortion cannot be
approached but with judicial and ethical responsibility without the
infringement of fundamental human rights, while the consultation of the
civil society is an obligation. Due to the fact that these issues are
especially sensitive and require special attention, we must not overlook
the fact that the majority of the Romanian population are Orthodox
Christians, responsible members of this society, the carriers of moral

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Canonical and Theological Perspectives on Abortion and Incest 137

values; therefore, any change in the law should respond to the citizens’
perspectives and should be done only after careful consideration of all
arguments.
We conclude that the decriminalization of such deeds represents a
serious attack to Christian morals, to the opinions of the civil society,
both faithful and citizens of Romania that are thus overlooked.

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