Marriage and the Prophylactic Use of Condoms
Luke Gormally
The National Catholic Bioethics Quarterly,
Winter 2005, pp. 735-749
The background to this article is a friendly e-mail exchange I had with Fr.
Martin Rhonheimer in the late summer of 2004, following an article he
published in the July 10, 2004, issue of The Tablet. In that article he
maintained that a married man who is HIV-infected and uses the condom to
protect his wife from infection is not acting to render procreation
impossible, but to prevent infection. If conception is prevented, this will
be an—unintentional—sideeffect and will not therefore shape the moral
meaning of the act as a contraceptive act. There may be other reasons to
warn against the use of a condom in such a case, or to advise total
continence, but these will not be because of the Church’s teaching on
contraception but for pastoral or simply prudential reasons— the risk, for
example, of the condom not working. (1)
In the e-mail exchange, two points emerged as crucial. The first is the
requirement that for an act of sexual intercourse to be marital, it should
be a generative or procreative type of act, an act which of its kind is apt
for generation. The most fundamental disagreement between Rhonheimer and me
is about what is necessary for an act to be of the generative kind. This
disagreement underlies the disagreement which arose between us on the second
crucial point.
That point is that there are two ways in which a sexual act may embody an
intention to act in a manner per se inapt for generation. One is by
deliberately choosing a behavioral pattern in sexual activity which is per
se inapt for generation (as people do, for example, in sodomy). The other is
by deliberately producing “physical circumstances” which render inapt for
generation a behavioral pattern which otherwise would be per se apt for
generation (as happens when women take oral contraceptives to render
infertile an act which otherwise might have been fertile).
In the e-mail debate, I argued that “condomistic” intercourse exhibits a
behavioral pattern which is per se inapt for generation. Rhonheimer argued
that the behavioral pattern exhibited is that of normal sexual intercourse,
and that the use of a latex rubber sheath by the husband is merely a
“physical circumstance” which happens to render the act inapt for
generation. But since the condom in the scenario envisaged is not adopted
with a contraceptive purpose, use of it does not embody an intention to act
in a manner inapt for generation, and so there can be no objection to
condomistic intercourse within a marriage on the basis of the type of act it
is.
I have no difficulty agreeing with the claim that in the scenario envisaged
by Rhonheimer, the husband is not aiming to prevent conception. So his
behavior is not to be faulted on the grounds that, in acting as he does, he
has the intention of preventing conception by creating a “physical
circumstance” by which a generative pattern of behavior is rendered inapt
for generation. In my view, his behavior is to be faulted because of the
non-generative behavioral pattern it exhibits.
In Fr. Rhonheimer’s recent response to criticism from Fr. Benedict Guevin,
readers of this journal will have encountered the claim that “the act as
such [i.e. condomistic intercourse] is of a generative kind, but it is
modified by human intervention.” (2) And since the modification is
prophylactic in intent, not contraceptive, he reasserts his view that the
choice of condomistic intercourse within marriage for prophylactic purposes
cannot be excluded on the grounds that it is an intrinsically evil choice.
He helps himself to this conclusion by insisting that the “object” of the
choice to engage in condomistic intercourse is “an act of preventing HIV
transmission.” But preventing HIV transmission can only be the hoped-for
objective of first ensuring that ejaculation is into a condom. Fr.
Rhonheimer surely foreshortens the practical reasoning of the HIV-infected
husband who chooses to wear a condom. An accurate representation of the
practical reasoning of the husband, as exhibited in what he does in choosing
to wear a condom, would be along the following lines: “I must wear a condom
in order to ejaculate into it rather than into my wife’s vagina so as to
prevent the transmission of HIV.” The “so as to” identifies the further
intention with which he chooses to wear the condom; the immediate (or
proximate) object of his choice is that of ensuring ejaculation into the
condom rather than into his wife’s vagina.
In what follows, I shall seek to show that an essential element of the
behavioral pattern required for intercourse to be of the generative kind is
ejaculation by the man into the woman’s reproductive tract. It is essential
to Fr. Rhonheimer’s case to deny this. The effect of his doing so, I
believe, is radically to disconnect the notion of the procreative meaning of
sexual intercourse from any reasonable criterion of what is to count as
generative behavior, and by the same stroke to remove the traditional
content from the notion of the unitive meaning of intercourse.
Clearly, what is at issue, then, is what has to hold true of a behavioral
pattern in sexual activity if it is to be characterized as the kind which is
apt for generation. I shall proceed along the following lines in seeking to
settle the issue.
First, I shall offer one line of reasoning for the Church’s teaching that
intercourse should be of the generative kind, and in doing so will seek to
bring out precisely what in the behavioral pattern of generative intercourse
is the necessary condition of its being unitive, and thus marital.
Then, I shall look at the development of canonical jurisprudence concerning
what kind of “potency” is required in a man for him to be capable of
consummating a marriage. I will show that canon law has specified that there
must be a capacity for engaging in a particular kind of performance rather
than a capacity for achieving the biological goal of that performance.
Finally, I shall conclude with some observations on why it is only if
intercourse exhibits the specific behavioral pattern of that performance
that it can be said to possess the symbolic, and therefore sacramental,
significance that the Church attributes to the consummation of marriage.
Why Marital Intercourse Should Be of the Generative Kind
Marriage realizes a unique kind of unity of biological process, sensual
experience, emotional responsiveness, and human rationality (in which I
include the spiritual).
One starting point for understanding what makes marriage necessary, and what
kind of relationship it is, is to look at what is evident biologically,
namely, that the central purpose of sex in human life, as in other forms of
animal life, is to produce offspring. Sexual organs are reproductive organs.
Any biology textbook will tell you that they are part of the reproductive
system. Therefore, how we conduct ourselves in the matter of sex is going to
shape our relationship to the central human good of offspring, which our
sexual powers exist to realize.
Human offspring are in fundamental ways different from the offspring of
other animals, and it is those fundamental differences that make necessary
the distinctive kind of relationship that marriage is.
Marriage exists for the good of children. Because children are such a
fundamental good of human society—a good without which societies could not
survive— we have the fundamental institution of marriage. Man is a political
animal, Aristotle said, the kind of being who needs a civic community in
order to flourish. But prior to civic community, St. Thomas Aquinas noted,
human beings need the society of the family, which is ordered to meeting the
most basic needs without which civil society would not exist—namely, the
begetting and rearing of children. (3) That task should not be understood in
minimalist terms. It is nothing less, in St. Augustine’s words, than the
task of “receiving [children] lovingly, nourishing them humanely, and
educating them religiously.” (4)
The first thing to be said about the marriage relationship is that it needs
to be appropriate to the nature of the child. In thinking in this context
about the nature of the child, we should reflect in particular on two truths
emphasized in Christian teaching. The first is the truth that each human
soul is directly created by God in His own image. Our very existence is a
gift from God in a quite distinctive sense. In the normal use of the term
gift, there is implied a recipient of that gift. If we think of the child
herself, then the gift of human existence has no prior recipient, for the
gift of human life is what brings the child into existence. Our existence
has the character of sheer “givenness,” so that we are radically dependent
on God. But God’s creative activity in bringing each of us into existence is
an activity of collaboration, so to speak, with our parents. So a child is
entrusted to his or her parents as a gift which surpasses in its nature
anything they are capable of producing by the mastery of material. This is
the reason why children should not be generated in a manner analogous to the
productive mastery of materials.
The second truth about the child is that God’s intention for each of us is
that our fulfillment as human beings should be through union with the
persons of the Blessed Trinity.
These two truths mean that each child possesses a “connatural” dignity—a
dignity that belongs to the child simply by virtue of his existence as a
human being— which is equal in significance to the connatural dignity of the
child’s parents. This equality is evidently not the equality in utility
value of replaceable goods. Human beings are not replaceable, precisely
because they are each created by God as unique individuals for fulfillment
in union with Him. All of us are equal in having that kind of awesome
dignity, a dignity in virtue of which we are irreplaceable. (5)
These truths about the child require that the relationship between a man and
a woman be conducive to their treating the child as an irreplaceable gift
from God, equal in dignity to themselves. A relationship between a man and a
woman which securely grounds that kind of relationship to their child has
two indispensable features. The first is that the man and the woman are
committed to treating each other as irreplaceable, within the sexual
relationship in which the child is begotten; in other words, they are
committed to marriage as a lifelong bond which, negatively, excludes other
sexual relationships and, positively, commits them to a shared life of
mutual support. The commitment of husband and wife to an exclusive sexual
relationship in which each seeks the good of the other realizes that good of
marriage which Catholic tradition calls fides—the faithful commitment to be
united in mind and body with one’s spouse in that distinctive form of
friendship which is marriage. (6) This friendship can be realized only
through a self-giving love on the part of each spouse. A marriage
relationship shaped by that kind of commitment provides what one might call
the “moral ecology” which the child needs. A man and woman who treat each
other in their sexual relationship as irreplaceable, and to be accepted and
loved for just the persons they are, convey to the child a sense of his own
dignity as an irreplaceable human being who is cherished for just the person
he is.
The second key feature of marriage which is dictated by what is needed for
the good of children is that the sexual activity of the man and woman should
be consistent with their relationship being a marital relationship, in which
they are open to children as gifts from God. What is required for the sexual
expression of a relationship to be truly marital in this sense? It is that
sexual intercourse should be normal intercourse which is both unitive and
procreative in its significance. Pope Paul VI, in his encyclical Humanae
vitae, clearly teaches that there is an “inseparable connection— established
by God and not to be broken by human choice—between the unitive meaning and
the procreative meaning which are both inherent in the conjugal act.” (7)
The Church teaches that intercourse does not unite a couple in an authentic
way if it does not retain its procreative or generative significance.
Normal sexual intercourse is of its nature a generative or procreative type
of act. It has that meaning because of the fundamental role it plays in
generating new human life. Each occasion of normal sexual intercourse does
not have to result in conception for it to qualify as a generative type of
act. It retains its generative significance so long as those who engage in
it do not do anything with the purpose of rendering it sterile when it might
otherwise be fertile.
There are two reasons why it is important that sexual intercourse should be
a generative type of activity, one referring to the good of the child, the
other to the good of the couple.
Since children are the central human good that is at issue in sexual
activity, it is important that people engage only in such sexual activity as
leaves them well disposed to the good of children—and that means, only in
marital intercourse. But if people choose to engage in sexual activity
which, for one reason or another, is of a kind inapt for generation, and
believe themselves justified in doing so, they embrace a rationale for
sexual activity of a kind that excludes its significance as generative
activity. People so disposed to think and act cannot consistently think
there is a good reason for confining sexual activity to marriage. If one
breaks the link between sex and marriage, one undermines the disposition to
be open to the gift of a child precisely in and through one’s sexual
activity. To preserve in oneself the sense that sexual activity is
essentially generative activity is to preserve in oneself a sense that it
belongs only in marriage and, in doing so, to keep oneself rightly disposed
to the good of children.
Deliberately non-generative completed sexual acts are not merely hostile to
the good of children but, within marriage, are destructive of the unity
proper to marriage. Only completed sexual acts which actualize bodily unity
are capable of expressing marital unity.
Our Lord, in responding to the question of the Pharisees about the
permissibility of divorce, recalled the text of Genesis 2:24, which states
God’s primordial plan for marriage:
Some Pharisees approached him and to test him they said, “Is it against the
law for a man to divorce his wife on any pretext whatever?” He answered,
“Have you not read that the Creator from the beginning made them male and
female, and that He said, ‘This is why a man must leave father and mother
and cling to his wife and the two become one body’? They are no longer two
therefore but one body. So then, what God has united, man must not divide.”
(Mt 19:3–6)
A man and a woman are made “one body” in normal sexual intercourse, for a
sexual act which remains generative brings into being a unique kind of
oneness. We exercise most of our natural capacities individually even if we
depend on others to develop those capacities. I see by myself, think by
myself, speak by myself. But a human individual’s capacity to reproduce is,
you might say, only half a capacity; it is radically incomplete: each of us
needs the complementary capacity and activity of someone of the opposite sex
in order to reproduce. It is in acting together in a way that is apt for
reproduction that a man and a woman form a quasi-organic unity—they become
in a sense “one body.” It is not under their control that they actually
conceive a child or that they are fertile.
What is under their control is that they act in a way which, if they are
fertile, leaves open the possibility that their conjoined powers of
reproduction cooperate in the conception of a child. But at the level of
common-sense experience (of a kind that is transculturally accessible), it
is evident that what is required in the way of chosen behavior for a
conjoining of reproductive powers must involve the husband’s ejaculating
semen into his wife’s vagina.
The unity thereby realized is a necessary but not sufficient condition for
marital unity. After all, as St. Paul observed, “a man who goes with a
prostitute is one body with her” (1 Cor 6: 16). Unity at the level of
generative performance must be the expression of an exclusive marital
commitment, of that self-giving love on the part of husband and wife which
is open to the gift of children and bears fruit in a community of life
through which each may transcend the confining egoisms to which we are
prone. In this way the structure of marriage in working for the good of
children simultaneously works for the good of the spouses in drawing them
into an evermore generous love for each other and for the children God gives
them.
So far, in exploring the rationale of a Catholic sexual ethic, I have tried
to show how the requirement that we should engage only in marital sexual
activity, understood as sexual activity which is inseparably unitive and
generative in its significance, can be seen to arise from what is needed for
the good of children—the good of children being the central human good at
issue in sexual activity.
It has emerged from the account I have given that a necessary condition of
the “one body” unity which should characterize marriage is that sexual
intercourse between husband and wife should be of the kind that is apt for
reproduction—i.e., of the generative kind. As was noted at the outset,
sexual activity may fail to be of the generative kind either through the
adoption of a pattern of behavior which is per se inapt for generation, or
through the deliberate production of “physical circumstances” that render
causally inapt for generation a behavioral pattern which is otherwise apt
for generation.
It is important to be clear that when we talk of a behavioral pattern, we
are talking about what can be chosen: about behavior which can be the object
of choice. I have suggested that it is phenomenologically evident that, to
be per se apt for generation, the behavior in question must involve the
husband’s ejaculation of semen into his wife’s reproductive tract. I turn
now to a consideration of whether canonical jurisprudence bears out this
claim.
Canon Law on the Character of Intercourse Necessary to Consummate a Marriage
In the canon law on marriage, the Church’s theology of marriage engages with
the very down-to-earth realities of the relationship. (8) One of its central
concerns is distinguishing between what counts as a valid marriage and what
fails to do so.
According to Canon 1061 of the current (1983) Code of Canon Law,
A valid marriage between baptized persons is said to be merely ratified, if
it is not consummated; ratified and consummated, if the spouses have in a
human manner engaged together in a conjugal act in itself apt for the
generation of offspring. To this act marriage is by its nature ordered and
by it the spouses become one flesh. (9)
And in Canon 1084 we read,
Antecedent and perpetual impotence to have sexual intercourse, whether on
the part of the man or on that of the woman, whether absolute or relative,
by its very nature invalidates marriage. (10)
The sexual intercourse referred to in this canon is the kind necessary to
consummate a marriage, i.e., the generative kind. (11)
What is meant when canon law speaks of spouses engaging together “in a
conjugal act in itself apt for the generation of offspring”? In the history
of the Church’s doctrine of marriage, the procreation of children has been
held to be the primary purpose of marital intercourse, but not the sole
purpose. From early in the tradition, a secondary purpose was recognized.
Augustine put it this way:
Husband and wife owe one another not only the faithful association of sexual
union for the sake of getting children—which makes the first society of the
human race in this our mortality—but more than that a kind of mutual service
of bearing the burden of one another’s weakness, so as to prevent unlawful
intercourse. (12)
This secondary purpose was known in short as the remedium
concupiscentiae—the remedy for disordered sexual desire provided by the
satisfaction of sexual desire within the honorable state of marriage.
Marriage is a remedy precisely in transforming what would be disordered into
something ordered through observance of the norms of marital intercourse.
The remedium concupiscentiae was always regarded as secondary to the primary
purpose, which requires that intercourse should always be of the generative
kind. But that did not mean that intercourse had to be fertile, or even that
a couple had to be fertile to contract a marriage. If the secondary end of
marriage was realizable, a marriage could be consummated. Hence, marriage of
the elderly, who were believed to be sterile, was permitted, provided they
were capable of intercourse and that their intercourse was—in behavioral
pattern—of the generative kind.
What did “capable of intercourse” mean? The majority of theologians and
canonists prior to the late sixteenth century held that this capacity
existed in the man if he was capable of erection, penetration, and the
ejaculation of some semen into the vagina (whether or not the semen as such
was suitable for generation), and it existed in the woman if she was capable
of receiving the ejaculate in her vagina. Insemination by the husband was
deemed necessary to achieving the secondary end of marriage, for without
insemination there was held to be no sedatio concupiscentiae (assuaging of
sensual desire). This view of what counted as “capacity for intercourse” in
the man was compatible in principle with holding that men who had been
castrated after reaching sexual maturity and who were capable of erection,
penetration, and producing a seminal ejaculate were therefore capable of
consummating marriage.
This inference about eunuchs came to seem untenable to many commentators in
the light of a papal brief, Cum frequenter, published on June 27, 1587. The
brief was a response to a letter to the Secretariat of State of the Holy See
written on May 30 of the previous year by Cesare Spacciani, Bishop of Novara
and the papal nuncio to Spain. In the letter, Spacciani expressed concern
about the serious practical and pastoral implications of the division among
theologians and canonists in Spain (and, indeed, elsewhere in Europe) about
the validity of marriages entered into by men who were eunuchs and castrati.
(13) According to Spacciani, there were innumerable such marriages in
Spain—“numero infinito,” he wrote.
Little more than a year later, Pope Sixtus V issued Cum frequenter. It is a
complex document that has given rise to an immense volume of exegesis, which
of necessity I must largely ignore here. Suffice it to say that the brief
required that those eunuchs who not only lacked both testicles but also were
incapable of intercourse were to be prohibited from entering marriage, on
the grounds that they were incapable of contracting marriage in any way
whatsoever. Those who had already contracted marriages were to be separated
and their marriages declared null and invalid.
What is of interest for my argument is that the description of the eunuchs
in the preliminary, expository paragraph of the brief refers to them as
incapable of producing “verum semen”—genuine semen. At the time of Cum
frequenter, the precise contribution of the testicles to the production of
semen—namely, the contribution of spermatozoa—was unknown. By the beginning
of the twentieth century, however, the most influential interpretation of
the phrase verum semen that had emerged was that it referred to what was
produced in the testicles (“in testiculis elaboratum”). (14) From this, it
followed that men who are without testicles are incapable of marriage.
The view that the capacity to consummate a marriage required in a man the
capacity to produce semen derived (at least in part) from the testicles
decisively influenced judgments on the validity of marriages passed by
judges of the Roman Rota, the highest marriage tribunal of the Church. Over
the first six decades or so of the twentieth century, a number of cases came
before the Rota of marriages in which the husbands, prior to marriage, had
undergone vasectomies. (In consequence of the tying or cutting of the vasa
deferentia, spermatozoa cannot reach the ejaculatory duct; although a man
remains capable of sexual intercourse, his ejaculate contains nothing
produced in the testicles.) The majority of these marriages were declared
invalid by judges of the Rota. On a number of occasions, however, the Sacred
Congregation of the Holy Office, the Roman dicastery now known as the
Congregation for the Doctrine of the Faith, rejected the basis of those
judgments, declaring that vasectomy is not an impediment to marriage. (15)
The situation was extremely confused and could not be allowed to continue.
In consequence, Pope Paul VI ordered an indepth investigation of the issue
in 1972 by both the Congregation and the Pontifical Commission for the
Revision of the Code of Canon Law. (16) This resulted in the Congregation’s
decree of May 13, 1977, stating that it is not necessary for marital
intercourse—that is, intercourse which is of its kind apt for generation—to
involve the ejaculation of semen that has its origins (at least in part) in
the testicles. (17) Since there are good reasons for holding that the papal
approval of the decree was in forma specifica (in other words, a solemn
approval), the teaching of the decree rests on the authority of the Pope
himself. (18)
What fundamental consideration lies behind the decree? The following, I
think: Marriage belongs to the order of creation, and what is required for
the consummation of marriage should therefore be in principle universally
graspable. What is universally graspable are the elements of the
performance—what I earlier called the “behavioral pattern”—which embodies
marital intercourse. Those elements for the man are erection, penetration,
and ejaculation within the vagina. The most important of these is the
ejaculation of semen: inability to deposit semen in the vagina amounts to an
inability to perform the kind of act which is per se apt for generation. A
sexual performance in which a wife has not received within her reproductive
tract her husband’s semen is at a phenomenological level clearly not an act
“ordered to procreation.”
It is important to emphasize that these criteria for the integrity of the
act are about the nature of a performance. Whether a performance which
follows a normal behavioral pattern (and in which neither spouse produces
“physical circumstances” rendering it inapt for procreation) is actually
fertile or sterile is not determined by the performance as such.
In Question 15, article 2, of his Disputed Questions on Evil (a question
about whether every act of lust is a mortal sin), Aquinas considers an
objection which seeks to infer the permissibility of a range of
non-generative sexual activities from the permissibility of intercourse in
marriage with a sterile wife. He replies:
that act is said to be contrary to nature in the genus of lust from which,
according to the general character [“species”] of the act generation cannot
follow, but not that act from which it cannot follow because of some
particular incidental [“accidens”] circumstance such as old age or
infirmity. (19)
This may sound obscure. What is meant, I think, is that while the character
of your performance can ensure that generation cannot follow, if what you do
is the normal kind of sexual intercourse, your happening to be sterile does
not alter the character of the act as the kind of performance which, in its
behavioral pattern, is apt for generation.
What has all this to do with my argument with Fr. Rhonheimer? If a husband
ejaculates into a condom, his wife is not receiving his ejaculate in her
reproductive tract. His chosen act has, therefore, the character of an act
from which generation cannot follow. That generation cannot follow is not a
per accidens feature of the act, arising from biological characteristics of
the spouses which are extrinsic to the character of the performance as such.
On the contrary, it is an essential feature of the chosen character of the
performance that generation cannot follow from it; it is essentially a type
of act inapt for generation.
Recall Fr. Rhonheimer’s key claims. They are 1) that condomistic intercourse
conforms to the normal behavioral pattern of generative intercourse, and 2)
that it is rendered non-generative by producing “physical circumstances”
which make sterile what might have been fertile.
The first of these claims seems to me wholly implausible. The performance
that constitutes condomistic intercourse includes the man’s chosen act of
sheathing his penis in a latex rubber cover in order to ensure that
ejaculation is into the condom rather than his wife’s vagina. So what
happens fails to instantiate an essential feature of the behavioral pattern
of generative intercourse: there is no deposition of semen in the woman’s
reproductive tract. A condom is as inappropriate a receptacle for the
deposition of semen as the anus. Choosing to ejaculate into either amounts
to the choice of a type of act which in the very character of the
performance plainly detaches sex from its ordering to the good of children.
And that, as St. Thomas teaches, is the essence of “unnatural vice.”
Fr. Rhonheimer has sought to argue that insistence on the deposition of
semen in the woman’s reproductive tract as essential to the behavioral
pattern of generative intercourse rests on the antiquated “scientific”
assumption that semen is the uniquely generative agent. Since we now know,
in the light of more accurate science, that an ovum is necessary as well as
sperm for generation, we should, if we were following the logic which
originally required the deposition of semen for the completion of marital
intercourse, now require the presence of an ovum if there is to be marital
intercourse. But we do not. So (he concludes), we should not require the
deposition of semen.
However erroneous earlier views may have been about the precise nature of
the biological contribution husband and wife make toward generation, it has
always been recognized that each made some contribution. (20) The
significant difference between them is that, while the wife’s behavior in
intercourse has to be such that she receives her husband’s deposition of
semen vaginally, her precise biological contribution to generation
remains—as it always has been—independent of that behavior. By contrast, the
husband’s contribution to generation does depend upon his willing and
carrying out the marital act of ejaculating semen into his wife’s
reproductive tract. If he engages in coitus interruptus or condomistic
intercourse, he engages in a kind of behavior which, qua performance,
precisely does exclude his (possible) biological contribution to generation.
It is because of the distinctive significance for generation of the
husband’s chosen behavior that the Church’s canonical jurisprudence,
culminating in the authoritative determination under Pope Paul VI of what
constitutes capacity to consummate a marriage, requires a specific
behavioral pattern in the husband’s performance, including ejaculation of
semen in his wife’s vagina. It does not require what is not controllable by
chosen behavior, whether that be the condition of the semen or the fertility
of the woman.
The husband’s capacity to perform in accordance with such a behavioral
pattern necessarily has a physiological component. There are many kinds of
human performance which cannot be chosen in the absence of certain
physiological capacities: think of writing, reading, sprinting, swimming,
doing a cartwheel, singing the part of Sarastro in Mozart’s Magic Flute, and
so on. But the criteria for what count as such chosen performances are not
reducible to physiological categories. It is simply a muddle to think that
if a person insists that a particular kind of performance requires a certain
kind of physiological capacity if one is to engage in it, that person has a
“physicalistic” understanding of the performance, meaning an understanding
which fails to recognize the essential role of intention in specifying the
character of action . (21) The fact is that one can intend and choose to do
only what one is capable of doing.
But intention is not limited just by capacity. It is also the case that only
certain kinds of performance can embody certain kinds of intention. As Fr.
Rhonheimer has rightly noted, “not any intention can reasonably inform any
act or behavior: one cannot swallow stones with the intention of nourishing
oneself ”; (22) nor, I would add, can one exhibit “openness to serve … the
task of transmitting human life” (23) by ejaculating into a condom. Fr.
Rhonheimer’s interpretation of Humanae vitae n.12 radically disconnects the
notion of “procreative meaning” from what is surely a minimal criterion of
what is to count as generative or procreative behavior. That criterion, as
we have seen, does not refer to biological conditions of generative success,
but rather refers to a behavioral pattern which, if those conditions are
present, is conducive to generation.
What Church teaching and canonical jurisprudence require in the way of
physiological capacity is simply what is necessary for a human performance
to be the kind that is conducive to generation qua performance. The
biological conditions for generation do not have to exist for “one body, one
flesh” unity to be actualized, but generative performance is necessary for
it to be actualized. (24) Condomistic intercourse, as essentially
non-generative, simply cannot, contrary to Fr. Rhonheimer’s belief, “still
[have] a point as a marital act of loving union.” (25)
The Sacramental Significance of the Behavioral Pattern of Marital
Intercourse
It should by now be clear that the question about the permissibility of
condomistic intercourse within marriage, which may strike some as a marginal
issue, in reality goes to the heart of the Christian understanding of
marriage. In this final section, I would like to bring out how fundamentally
Fr. Rhonheimer’s position departs from the understanding of the significance
of marital intercourse within the Christian understanding of marriage as a
sacrament.
A marriage is consummated only in sexual intercourse of the generative kind.
Consummation belongs at the heart of the symbolic and therefore sacramental
significance of marriage.
In the previous section, concerning canonical jurisprudence on consummation,
I considered what is required on the side of the man in the character of
sexual intercourse in order to consummate marriage. An inability to so
perform is called male impotence, and if it is antecedent and permanent, it
is an impediment to contracting a valid marriage. In this section, in order
to bring out the symbolic and sacramental significance of marital
intercourse, I first draw attention to the import of the possible canonical
effect of failing to consummate marriage, namely, that the marriage can be
dissolved, as Canon 1142 says, “by the Roman Pontiff for a just reason.”
(26) But as the previous Canon (1141) indicates, “a marriage which is
ratified and consummated cannot be dissolved by any human power or by any
cause other than death.” (27)
In the development of the Church’s doctrine of marriage and its canonical
practice, the rationale for this power to dissolve and its significance
crystallized in the twelfth century. In Gratian’s Decretum we find a
transformed text of Pope Leo the Great that reads as follows:
Since the social bond of marriage was instituted from the beginning in such
a way that without sexual intercourse marriages would not contain the symbol
of the union of Christ and the Church, there is no doubt that a woman whom
we learn to have been without the nuptial mystery does not pertain to
marriage. (28)
Professor David d’Avray has recently shown that there was extensive scope
for the exercise of the power to dissolve in the late Middle Ages since it
was not infrequently the case that consummation was delayed, sometimes for a
considerable time, after the words of present consent were exchanged by the
spouses. Sometimes this was because the spouses, especially the bride, were
deemed too young to consummate; sometimes the bridegroom would delay
consummation until the bride’s father had paid the dowry. (29)
What is of interest here, however, is not canonical practice but the
theological rationale for the canonical practice. The basis of that
rationale is the famous passage in Chapter 5 of the Letter to the Ephesians:
Husbands should love their wives as their own bodies. He who loves his wife
loves himself. For no man ever hates his own flesh, but nourishes and
cherishes it, as Christ does the Church, because we are members of his body.
“For this reason a man shall leave his father and mother and be joined to
his wife, and the two shall become one flesh.” This mystery is a profound
one, and I am saying that it refers to Christ and the Church. [Eph 5: 28–32]
In connection with this passage, recall the words just quoted from Gratian:
“without sexual intercourse marriages would not contain the symbol of the
union of Christ and the Church.” The “one body” unity of baptized spouses
actualized in intercourse is not an extrinsic symbol of the Church’s unity
in the body of Christ. (30) It is what St. Paul calls a mysterion of that
unity, a sacramental realization of a kind of unity which shares in the
unity of Christ and the Church, and in doing so reflects the nature of that
unity. Now the unity of Christ and the Church is created by the self-giving
love of Christ, centrally through his passion, death, and resurrection and
through our participation in his victory over sin and death principally by
our partaking of the risen body of Christ in the Eucharist. Marriage
distinctively shares in the unity of the body of Christ as husband and wife
enact in their lives both the self-giving of Christ and the receptivity of
the Church. And the action which both signifies and realizes this unity is
marital intercourse. But in order for it to do so, there clearly must be
both a giving by the husband of his substance to his wife and a receiving of
it by the wife. When this giving and receiving are fruitful in the birth of
children, we have the reality that is called the “domestic church.”
From this account of the sacramental significance of marital intercourse, it
is clear that condomistic intercourse could not possibly be described as
marital intercourse, for in condomistic intercourse there is neither the
giving nor the receiving which are essential features of the symbolism. It
seems to me that the fundamental rationale of marriage as an institution
ordered to the good of children and requiring therefore that intercourse
should be of the generative kind, together with the interpretation of that
requirement in the canonical jurisprudence of the Church, underpinned by the
theology of marriage, all point to the conclusion that condomistic
intercourse exhibits a behavioral pattern of a kind that is intrinsically
non-generative and hence nonmarital. And if that is so, one would have to
conclude that there is no possible place for the prophylactic use of condoms
within marriage.
__________
AUTHOR’S NOTE: An earlier version of this paper was delivered as the Linacre
Lecture at Ave Maria School of Law on April 12, 2005. In revising the text
for publication, I have been helped by observations from some of my original
audience, as well as from my colleagues Helen Watt and Anthony McCarthy, and
most particularly by criticisms from John Finnis and from Fr. Aidan McGrath,
O.F.M. Since I have not taken all of the advice offered to me, I alone am
responsible for errors remaining in the paper. I have not sought to alter
its original character as an oral presentation.
Footnotes
(1) Martin Rhonheimer, “The Truth about Condoms,” The Tablet 258.8545 (July
10, 2004): 11.
(2) See argument of Martin Rhonheimer, in Benedict Guevin and Martin
Rhonheimer, “On the Use of Condoms to Prevent Acquired Immune Deficiency
Syndrome,” National Catholic Bioethics Quarterly 5.1 (Spring 2005): 44.
(3) R. M. Spiazzi, O.P., ed., Sancti Thomae Aquinatis in Decem Libros
Ethicorum Aristotelis ad Nicomachum Expositio, 3rd ed. (Turin, Italy:
Marietti, 1964), Liber 1, Lectio 1.4, 3. See also Aquinas, Summa theologiae,
II-II, Q. 47.10, reply 2.
(4) Augustine, De Genesi ad litteram 9.7.
(5) On connatural dignity, see further Luke Gormally, “Human Dignity: The
Christian View and the Secularist View,” in The Culture of Life: Foundations
and Dimensions: Proceedings of the Seventh Assembly of the Pontifical
Academy for Life (Vatican City: March 1–4, 2001), ed. Juan de Dios Vial
Correa and Elio Sgreccia (Vatican City: Libreria Editrice Vaticana, 2002),
52–66; Luke Gormally, “Pope John Paul II’s Teaching on Human Dignity and Its
Implications for Bioethics,” in John Paul II’s Contribution to Catholic
Bioethics, ed. Christopher Tollefsen. Philosophy and Medicine, vol. 84
(Dordrecht, Netherlands: Springer, 2004), 7–33.
(6) See John Finnis, Aquinas: Moral, Political, and Legal Theory (Oxford:
Oxford University Press, 1998), 145, and the references to Aquinas there.
(7) My translation of Paul VI, Humanae vitae, in Acta Apostolicae Sedis 60
(1968): 488, n. 12. The original reads, “Huiusmodi doctrina, quae ab
Ecclesiae Magisterio saepe exposita est, in nexu indissolubili nititur, a
Deo statuto, quem homini sua sponte infringere non licet, inter
significationem unitatis et significationem procreationis, quae ambae in
actu coniugali insunt.”
(8) In this section, I rely heavily on Aidan McGrath, O.F.M., A Controversy
concerning Male Impotence. Analecta Gregoriana, vol. 247 (Rome: Editrice
Pontificia Università Gregoriana, 1988).
(9) Code of Canon Law in English Translation (London: Collins, 1983).
(10) Ibid.
(11) By which I mean, “the generative kind in its behavioral pattern.” The
text of the canon was emended to refer explicitly to impotentia coeundi
(inability to have intercourse), in order to dispel any residual confusion
over the concept of impotentia generandi (inability to procreate) that
affected the debate in the early decades of the twentieth century, to which
I refer later. See in particular footnote 15, below.
(12) Quoted in Elizabeth Anscombe, Contraception and Chastity (1977; repr.,
London: Catholic Truth Society, 2003), 15–16.
(13) For the historical background alluded to here, see McGrath, A
Controversy concerning Male Impotence, 13–15. It is relevant to an accurate
understanding of the papal brief that probably all of the eunuchs to whom
the nuncio was referring were castrati, i.e., men who had been castrated
prior to puberty to preserve their treble or alto voices, and whose normal
sexual development had in consequence been arrested. That sort of eunuch
would have been incapable of what was required for the performance of normal
intercourse and so incapable of achieving sedatio concupiscentiae.
(14) McGrath names Cardinal Pietro Gasparri, in the third edition (1904) of
his highly influential Tractatus canonicus de matrimonio, as the author who
gave authoritative currency to the identification of verum semen with semen
in testiculis elaboratum. McGrath, A Controversy concerning Male Impotence,
126–127.
(15) The Holy Office judged that a man who had a vasectomy possessed a
potentia coeundi—in particular, that he was capable of ejaculating
semen—even if he did not possess a potentia generandi, because his semen
lacked sperm. See McGrath, A Controversy concerning Male Impotence, 159–164.
(16) McGrath, A Controversy concerning Male Impotence, 119–121.
(17) Sacred Congregation for the Doctrine of the Faith, Decretum circa
impotentiam quae matrimonium dirimit, in Acta Apostolicae Sedis 69 (1977):
426.
(18) See the argument in McGrath, A Controversy concerning Male Impotence,
251– 257, for this understanding of the authority of the decree.
(19) Thomas Aquinas, Quaestiones Disputatae de Malo, Q. 15.2, reply 14, in
Quaestiones Disputatae, vol. 2, ed. P. Bazzi et al. (Turin, Italy: Marietti,
1965), 652; see also the English translation (slightly modified) in Aquinas,
On Evil, trans. John Oesterle and Jean Oesterle (Notre Dame, IN: University
of Notre Dame Press, 1995), 435 (emphasis added).
(20) Observations over millennia about the barrenness of certain women rest
on a recognition that there is something present in fertile women (and
lacking in the barren) which contributes to generation.
(21) I use the term “intention” to refer not just to the “further intention”
with which an act is done, but also to the “proximate object” of the act.
(22) Guevin and Rhonheimer, “On the Use of Condoms,” 44 (original emphasis).
(23) Ibid., 46.
(24) See section 2 above.
(25) Guevin and Rhonheimer, “On the Use of Condoms,” 44.
(26) Code of Canon Law in English Translation.
(27) Ibid.
(28) Gratian, Decretum, Pars II, C. 27, q.2, c.17, quoted in David d’Avray,
Medieval Marriage: Symbolism and Society (Oxford: Oxford University Press,
2005), 179.
(29) d’Avray, Medieval Marriage, 180–188.
(30) An “extrinsic symbol” could not have the consequence marital
intercourse has: indissolubility.