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The Real Reason Teacher Emily Herx was Fired for Using IVF

Freezing embryos

Ben Birchall/PA

Susan E. Wills - published on 01/04/15

And all she had to do to keep her job

The nearly $2 million judgment a jury awarded to former Catholic school teacher Emily Herx—who’d been fired after it came to light that she was planning to undergo a third round of IVF—raises a host of important questions almost completely overlooked by media and commentators:

(1) Why does the Church consider IVF an offense against human dignity and a grave sin?

(2) Can a religious school insist that all teachers or only its religion teachers respect and uphold its teachings?

(3) If, as reported by the press, the health insurance policy the diocese provided to Herx had paid for, and would in the future pay for, some aspects of the IVF treatments, would that not force the diocese to materially cooperate in acts the Church finds gravely immoral?

(4) If the jury had been aware of what IVF entails—that the high cost of one take-home baby includes the deaths of many of his or her siblings—would they still have sided with Herx and against the Diocese of Fort Wayne-South Bend?

(5) Did the Diocese violate Title VII of the Civil Rights Act of 1964 by discriminating against Herx as a woman—in principle or in practice—because they couldn’t point to having fired any men whose wives underwent IVF?

(6) Did scandal (CCC, 2284) play a role in the firing decision? 

Each question deserves an article of its own, but that’s probably more than you want to know anyway. So instead we’ll briefly run through the moral questions and the legal issues argued in federal court and on which the jury allegedly based its decision. Then I’ll suggest the actual grounds for her firing and the only thing Ms. Herx needed to do to keep her $28,000/year job.

(1) The Church understands that “the suffering of unanticipated childlessness is real. Spouses may feel they have somehow failed, that they are inadequate in a basic aspect of their marital life” (USCCB, “Life-Giving Love in an Age of Technology, 2009). The Church supports “techniques aimed at removing obstacles to natural procreation, as for example, hormonal treatments for infertility, surgery for endometriosis, unblocking of fallopian tubes or their surgical repair” (Congregation for the Doctrine of the Faith,Dignitas Personae, 13; 2008). The techniques of natural procreative technology are at least as successful as, and often more successful than, IVF; the Church encourages couples to pursue these diagnostic and treatment options so that healthy fertility can be restored. But IVF, in substituting for the marital act —

further depersonalizes the act of generating a child, turning it into a technical process in a laboratory. … Because these embryos are deliberately created not in the nurturing environment of the mother’s body but in the poor substitute of a culture in a glass dish, the great majority of them die. Many couples have exhausted their savings and ultimately abandoned their efforts without ever having a live-born child from IVF. (USCCB, “Life-Giving Love in an Age of Technology,” pp. 6-7)

(2)  A religious school can insist that all teachers respect and uphold the mission of the school to inculcate the moral teachings and values of the faith by word and by example. In recognition of the religious liberty acknowledged in the First Amendment to the US Constitution, Title VII of the Civil Rights Act of 1964 exempts religious organizations from provisions of the Act that might otherwise be considered “religious discrimination” in hiring, firing, and other employment-related decisions, provided the standards of are evenly applied. Standards are typically described in the “morals clause” in the employee’s employment contract. Emily Herx agreed to this condition of her employment:

Acknowledging and accepting the religious and moral nature of the Church’s teaching mission, the undersigned agrees to conduct herself or himself at all times, professionally and personally, in accordance with the episcopal teaching authority, law and governance of the Church in this diocese.

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