Formal and Material Cooperation

Ethics & Medics, June, 1995
Reproduced with permission

The impressive realism and coherence of Christian morality is based in part upon the fundamental convictions that (1) there is an objective moral order which can be known by the intellect and that (2) some actions are ''intinsically evil,'' that is, they are never morally justifiable regardless of the circumstances of the act. This is one of the major teachings of Veritatis Splendor. Three theological principles have been developed to deal with the ethical permissibility of actions which relate to either physical evil or the moral evil of other agents. These are known as (1) the principle of the double effect (see Ethics & Medics 3/95), (2) the choice of the ''lesser evil,'' and (3) the principles of cooperation. These concepts have been taught and reflected upon, and, with the exception of the second (lesser evil), they have enjoyed generally unquestioned acceptance in philosophical ethics and Catholic moral theology.

Historical Origins

St. Alphonsus Liguori (d. 1787) made the principles of cooperation acceptable by introducing the distinction between formal and material cooperation and by a consideration of scandal as a serious invitation to sin. Cooperation in the ethically significant sense is defined as the participation of one agent in the activity of another agent to produce a particular effect or share in a joint activity. This becomes ethically problematical when the action of the primary agent is morally wrong.

There are three basic examples of cooperation on the part of individuals: the hostage, the taxpayer and the accomplice. The participation or cooperation of these individuals in the morally questionable acts of the principal agent is quite distinct one from another. The hostage is forced with threats to comply with the evil act of another person. Fear more or less compels the hostage to cooperate. This diminishes his culpability and in some cases eliminates it completely. In contrast, the accomplice may perform the same act as the hostage, but culpability is imputed fully because cooperation in this instance is free and willed (directly intended). The taxpayer is an example of one who cooperates with a principal agent (the government) in an important - in fact, essential - mission (societal governance). Nevertheless, it is possible that the government may sponsor activities which are immoral. The taxpayer then contributes in some degree to this immoral activity. However, contributing to the stability of society is not an intrinsic evil but a good.

The Principal Distinctions

Among the principles of cooperation, the primary distinction is between formal and material cooperation. Formal cooperation is a willing participation on the part of the cooperative agent in the sinful act of the principal agent. This formal cooperation can either be explicit (''Yes, I'm happy to drive the getaway car because I want to be an accomplice'') or implicit.

''Implicit formal cooperation is attributed when, even though the cooperator denies intending the wrongdoer's object, no other explanation can distinguish the cooperator's object from the wrongdoer's object'' (Ethical and Religious Directives for Catholic Health Services, [1994] Appendix). the motto of the implicit formal cooperator is ''I am personally opposed, but...'' This cooperation is as immoral as explicit formal cooperation.Material cooperation has several inherent distinctions, the most basic being that of immediate and mediate material cooperation. Theologians maintain that in the objective order, immediate material cooperation is equivalent to implicit formal cooperation because the object of the moral act of the cooperator is indistinguishable from that of the principal agent. Those who use the term ''immediate material cooperation'' have understood this as ethically unacceptable behavior. An example of this would be any form of employment in an abortion clinic.

Immediate material cooperation is contrasted with mediate cooperation. Here the moral object of the cooperator's act is not that of the wrongdoer's. (An example of this would be a health care worker employed in a secular hospital that also provides for morally prohibited procedures, but does not require the conscientious objector to such procedures to participate.) This kind of cooperation can be justified (1) for a sufficient reason and (2) if scandal can be avoided. It is a form of cooperating with the circumstances surrounding the wrongdoer's act. Depending on how closely these circumstances impinge upon the act, there is a distinction between proximate and remote material cooperation. (Proximate material cooperation would be the recovery room nurse who cares for all post-surgical patients, including those who may have undergone morally illicit procedures. This form of routine care is not intrinsically evil.)

Further, necessary material cooperation is that without which the sinful act could not occur. Contingent cooperation (also called free cooperation) is that without which the evil act would still take place. An example of necessary material cooperation would be being the only anesthesiologist available to assist with a woman undergoing a combination C-section and tubal ligation. Contingent material cooperation would exist if one were not the only such professional available.

Application to Modern Corporate Partnerships

The theological development of the principles of cooperation has considered the actions individuals who cooperate with the evil actions of others. Contemporary theological considerations are not so restricted. There are questions about ''corporate actions'' of cooperation, such as joint ventures between health care institutions which may be morally questionable because some actions of one of the partner institutions may be ethically unacceptable to the other cooperative institution. Very few acts of the non-Catholic partner may be morally wrong, and the rest quite good. Apart from the morally illicit procedures, their provision of health care is not intrinsically evil. That is why the analogy of the taxpayer to describe this cooperation is so apt.

A complicating factor here is the fact that ''cooperation'' between institutions or systems is an arrangement made on the level of a legal corporation. The cooperative venture has a very precise and clearly defined identity and purpose, which may not be evident in the public forum. The partnership is a legal and/or corporate structuring intended to perform only functions (1) which are mutually agreeable to all partners, (2) which do not include any procedures which any partner disagrees with on moral grounds, and (3) which explicitly separate the partnership from activities which an individual partner may continue to engage in. Why is this sort of partnering necessary? There are several reasons. First, clinical medicine has reduced the need for the present number of hospital beds. Many procedures are handled on an out-patient basis, more complicated procedures require a shorter hospital recovery period, and, in the health care market, competition is cost-driving, not cost containing, force. The need to down-size acute care settings and to create state of the art diagnostic and day treatment centers has led to the realization that health care must be cast in another form which is often referred to as ''rationalizing'' care.

The practical conclusion to the re-configuration is that a ''stand alone'' position is not always a viable option. In most cases it is foreseen that isolation would entail eventual closure. Market pressure is considered the ''sufficient reason'' which is one of the ''ingredients'' necessary to justify material cooperation. Scandal must also be overcome. Scandal is not the same as a public relations problem. Scandal is the serious suggestion that evil is attractive or permissible. Any partnering between Catholic and non-Catholic health services must avoid the impression that Catholic moral doctrine is not being observed.

Five Basic Principles

There are five basic principles the Pope John Center is using to evaluate partnerships.

(1) Cooperation must be mediate material, never formal or immediate material.

(2) We can only do together what all partners agree to be appropriate. This means that while the partnership need not be Catholic, it must nevertheless observe the Ethical and Religious Directives as respecting the ''corporate conscience'' of the Catholic partner.

(3) Morally illicit procedures cannot be provided on the Catholic campus.

(4) Any morally illicit procedure(s) provided on the campuses of non-Catholic alliance partners must be excluded from the new alliance corporation through separate incorporation (governance, administration and finance).

(5) All publicity should be straightforward, i.e., the need to form an alliance for the survival of a worthy apostolate should be made known, the good achieved by rationalizing health care must be to the patients' benefit, immoral procedures must be excluded from the partnership (while these services may still be available on the campuses of some partner[s]), and this publicity should also appear in the promotional literature of the Catholic hospital. The observance of these principles should issue in a morally sound and scandal-free partnership that will contribute to the Catholic health care tradition.

January 9, 1996