Marriage and the Prophylactic use of Condoms

Luke Gormally FAITH Magazine March-April 2006

1. Introduction[1]

The background to this article is a friendly email exchange I had with Fr Martin Rhonheimer in the late summer of 2004 following an article he published in the London Tablet for 10 July of that year. In that article he maintained that:

“… a married man who is HIV infected and uses condoms to protect his wife from infection is notacting to render procreation impossible, but to prevent infection. If conception is prevented, this will be an – unintentional – side effect 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.”[2]

In the email 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 may do so by deliberately choosing a behavioural pattern or, secondly, by deliberately producing ‘physical circumstances’ which render inapt for generation a behavioural 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).

Is the Prophylactic Condom Incidental to the Act?

In the email debate I argued that condomistic intercourse exhibits a behavioural pattern which is per se inapt for generation. Rhonheimer argued that the behavioural 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 over agreeing with the claim that in the scenario envisaged by Rhonheimer the husband is not aiming to prevent conception. So his behaviour 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’ in virtue of which a generative pattern of behaviour is rendered inapt for generation. On my view his behaviour is to be faulted because of the non-generative behavioural pattern it exhibits.

Readers of this journal will have encountered in Fr Rhonheimer’s recent response to criticism from Fr Guevin his claim that “the act as such [i.e. condomistic intercourse] is of a generative kind, but it is modified by human intervention”.[3] 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 thatejaculation 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 on 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 behavioural pattern required for intercourse to be of the generative kind is ejaculation by the man in 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 behaviour, and by the same stroke to evacuate the notion of the unitive meaning of intercourse of its traditional content.

An Act that is "Apt for Generation"

Clearly what is at issue, then, is what has to hold true of a behavioural pattern in sexual ctivity if it is to be characterised as the kind which is apt for generation. I shall proceed along the following lines in seeking to settle the issue.

First, in section 2, 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 it is in the behavioural pattern of generative intercourse that is the necessary condition of its being unitive, and so marital.

In section 3 I look cursorily at the way the development of canonical jurisprudence, concerning what kind of ‘potency’ is required in a man for him to be capable of consummating a marriage, has settled on specifying that capacity as 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 behavioural 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.

2. Why marital intercourse should be of the generative kind

Marriage realises 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 set-up it is, is 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: part of what any biology textbook will tell you is the reproductive system. So 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 realise. 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 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. Man is even more fundamentally a conjugal animal, St Thomas Aquinas added, since what he called “the domestic society of husband and wife” is ordered to meeting the most basic needs without which civil society would not exist – namely, the begetting and rearing of children. 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 themreligiously”.[4]

Marriage Ordered to the Good of Children

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 emphasised 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 of God in a quite distinctive sense. In the normal use of the term, a gift implies a recipient of the 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.

Human Dignity Rooted in Procreation

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. Which is the reason why children should not be generated in a manner analogous to productive mastery of materials.

The second truth about the child is that God’s intention for each of us is that our fulfilment as human beings should be in union with the Persons of the Blessed Trinity.

These two truths mean that each child possesses a ‘connatural’ dignity – a dignity which belongs to us simply in virtue of our existence as human beings – that is equal in significance to the connatural dignity of his or her parents. This equality is evidently not the equality in utility value of replaceable utility goods. Human beings are not replaceable precisely because each of us is created by God as the individual each of us is for fulfilment 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]

Erotic Faithfulness, The Cradle of Respect for Life

It is these truths about the child that require that the relationship between a man and a woman should be conducive to their treating the child as an irreplaceable gift from God equal in dignity to themselves. The relationship between a man and a woman which securely grounds that kind of relationship to their child is one which has two indispensable features. The first is that the man and the woman are committed to treating each other as irreplaceable in 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 realises 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 marriage is.[6] This friendship can be realised 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’ the child needs. A couple 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.

Unitive Power of Sex Rooted in Procreative Significance

The second key feature of marriage, dictated by what is needed for the good of children, is that the sexual activity of the man and the woman should be consistent with their relationship being a marital relationship in which they are open to children for what they are – gifts of God. What is required if the sexual expression of a relationship is to be truly marital in this sense? What is required 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.

Now 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 of generating new human life. It does not have to be the case that each occasion of normal sexual intercourse results in conception for it to qualify as a generative type of act. It retains its generative significance just 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 actualise bodily unity are capable of expressing marital unity.

Marital Union and the Mutuality of Procreation

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 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 – 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 behaviour, for a conjoining of reproductive powers, must involve the husband ejaculating semen into his wife’s vagina.

The unity thereby realised 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 ever more generous love for each other and for the children God gives them.

Acts that are 'Apt For Life' even when Naturally Infertile

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, is a requirement that 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 characterise 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 behaviour which is per se inapt for generation, or by deliberately producing ‘physical circumstances’ with the intent of rendering causally inapt for generation a behavioural pattern which is otherwise apt for generation.

It is important to be clear that when we talk of a ‘behavioural pattern’ we are talking about what can be chosen: about behaviour which can be the object of choice. I have suggested that it is phenomenologically evident that, to be per se apt for generation, that behaviour 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.

3. Canon law on the character of intercourse necessary to consummate a marriage.[8]

The canon law jurisprudence of marriage is where the Church’s theology of marriage engages with the very down to earth realities of the relationship. One of its central concerns is distinguishing between what is to count as a valid marriage and what fails to be.

What does the Church Mean by 'Apt for Life'?

According to Canon 1061 of the current (1983) Code of Canon Law

"A valid marriage between baptised 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."

And at 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.The sexual intercourse referred to in this canon is the kind necessary to consummate a marriage, i.e. of the generative kind."[9]

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 recognised. St 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.”[10]

This secondary purpose was known in short as the remedium concupiscentiae – the remedy for disordered sexual desire by providing for the satisfaction of sexual desire within the honourable state of marriage.

Marriage is a remedy precisely in transforming what would be disordered through observance of the norms of marital intercourse. The remedium concupiscentiae was always regarded as secondary to the primary purpose, which requires that the basic norm for intercourse is that it 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. Providing the secondary end of marriage was realisable 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 their intercourse was – in behavioural pattern – of the generative kind.

The Minimum Conditions for Valid Consummation

What did ‘capable of intercourse’ mean? The majority of theologians and canonists prior to the late 16th century held that this capacity on the side of the man existed 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, on the side of 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 werecapable 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 published in 1587. The Brief was a response to a letter to the Secretariat of State of the Holy See written on the 30th of May of the previous year by Cesare Spacciani, Bishop of Novara and the Papal Nuncio to Spain, in which he expressed concern about the serious practical and pastoral implications of the fact that theologians and canonists were divided in Spain (and indeed elsewhere in Europe) about the validity of marriages entered into by men who were eunuchs and castrati.[11] According to Spacciani there were innumerable such marriages in Spain – “numero infinito”, he wrote.

Little more than a year later, on the 27th of June 1587, Pope Sixtus V issued the Brief Cum frequenter. It is a complex document which 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, defined not only as men lacking both testicles but also as incapable of intercourse, were to be prohibited from attempting to enter 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. Despite the fact that at the time of Cum frequenter the precise contribution of the testicles to the production of semen – namely the contribution of spermatozoa – was unknown, there had emerged by the beginning of the 20th century[12] , as the most influential interpretation of the phrase ‘verum semen’, the view that it referred to what was produced in the testicles (“in testiculis elaboratum”). From which it followed that men who were without testicles are incapable of marriage.

Confusion and Development, The Search for Clarity

The view that the capacity to consummate a marriage required in a man the capacity to produce semen deriving at least in part from the testicles decisively influenced Rotal jurisprudence, in other words the judgments passed on the validity of marriages by judges of the Roman Rota, the highest tribunal of the Church considering marriage cases. A number of cases came before the Rota of marriages in which, prior to the marriage, the man had undergone vasectomy.

In consequence of the tying or cutting of the vasa deferentia, spermatozoa cannot reach the ejaculatory duct. Though a man remains capable of sexual intercourse, his ejaculate contains nothing produced in the testicles. The majority of cases of marriages in which the man had been vasectomised prior to marriage were declared invalid by judges of the Rota over the first six decades or so of the twentieth century. On a number of occasions, however, the Holy Office, the Roman dicastery that is nowadays known as the Congregation for the Doctrine of the Faith, rejected the basis of those judgements, declaring that vasectomy is not an impediment to marriage.[13] The situation was extremely confused and could not be allowed to continue.

In consequence in 1972 Pope Paul VI ordered an in-depth investigation of the issue by both the Pontifical Commission for the Revision of the Code of Canon Law and the Sacred Congregation for the Doctrine of the Faith. This resulted in the Congregation issuing on the 13th May 1977 a Decree in which it is stated that it is not necessary for marital intercourse – that is, intercourse which is of its kind apt for generation – that it should involve the ejaculation of semen which at least in part has its origins in the testicles. 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.[14]

A Matter of Common Sense and Down to Earth Realism

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 ‘behavioural pattern’ – which embodies marital intercourse. Those elements on the side of 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 phenomenologicallevel clearly not an act ‘ordered to procreation’.

It is important to emphasise that the criteria specified in the previous paragraph for the integrity of the act are criteria about the nature of a performance. Whether a performance which follows a normal behavioural pattern (and with a view to which neither spouse produces ‘physical circumstances’ rendering it inapt for procreation) is actually fertile or sterile is not something which is determined by the performance as such.

Circumstantial and Active Infertility Contrasted as Acts

In Question 15, article 2 of his Disputed Questions on Evil, a question about “Whether every act of lust is a mortal sin?”, St Thomas Aquinas considers an objection which seeks to infer from the permissibility of intercourse in marriage with a sterile wife, the permissibility of a range of non-generative sexual activities. To which 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.

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 behavioural pattern, is apt for generation.

What has all this to do with my argument with Fr Rhonheimer? Well, 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 behavioural pattern of generative intercourse, and

2.  That it is rendered non-generative by producing ‘physical circumstances’ which make what might have been fertile sterile.

Condoms change the Character of the Act Performed

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 behavioural 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 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 behavioural 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, nowadays require the presence of an ovum if there is to be marital intercourse. But we don’t. 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 to generation, it has always been recognised that each made some contribution.[15] The significant difference between them is that, while it is the case that the wife’s behaviour 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 behaviour. By contrast, the husband’s contribution to generation does depend upon him willing and carrying out the marital act of ejaculating semen in his wife’s reproductive tract. If he engages in coitus interruptus or condomistic intercourse heengages in a kind of behaviour 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 behaviour 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 behavioural 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 behaviour, whether that be the condition of the semen or the fertility of the woman.

Actions Determined by Capacity as well as Intention

The husband’s capacity to perform in accordance with such a behavioural pattern necessarily has a physiological component. There are many kinds of human performance which are not choosable in the absence of capacities which have to be described in physiological terms: think of writing, reading, sprinting, swimming, doing the cartwheel, singing the part of Sarastro in Mozart’s Magic Flute, and so on. But the criteria of 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 recognisethe essential role of intention[16] in specifying the character of action. 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 behaviour: one cannot swallow stones with the intention of nourishing oneself”[17] ; nor, I would add, can one exhibit “openness to serve the task of transmitting human life”[18] by ejaculating into a condom. Fr Rhonheimer’s interpretation of Humanae Vitae #12 radically disconnects the notion of ‘procreative meaning’ from what is surely a minimal criterion of what is to count as generative or procreative behaviour. That criterion, as we have seen, is not acriterion which refers to biological conditions of generative success, but rather to a behavioural 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 actualised[19] ; but generative performance is necessary for it to be actualised. Condomistic intercourse being essentially non-generative simply cannot, contrary to Fr Rhonheimer’s belief, “still [have] a point as a marital act of loving union”.[20]

4. The Symbolic/Sacramental Significance of the Behavioural 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 only consummated 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, on the canonical jurisprudence on consummation, I have been considering 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”. But as the previous Canon (1141) indicates: “A marriage which is ratified and consummated cannot be dissolved by any human power orby any cause other than death.”

In the development of the Church’s doctrine of marriage and its canonical practice the rationale for this power to dissolve and its significance crystallised 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."[21]

Professor David d’Avray has shown, in a forthcoming book, 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.

Sharing in the Union of Christ and His Church

What interests me now, 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 quoted just previously from Gratian: “… without sexual intercourse marriages would not contain the symbol of the union of Christ and the Church”. The ‘one body’ unity of baptised spouses actualised in intercourse is not an extrinsic symbol [22] of the Church’s unity in the body of Christ, it is what St Paul calls a μυστήριον of that unity, a sacramental realisation 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 by husband and wife enacting in their lives both the self-giving of Christ and the receptivity of the Church. And the action which both signifies and realises this unity is marital intercourse. But in order 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 domesticchurch’.

In This the Kind of Act that Could ever be Fertile?

On this account of the sacramental significance of marital intercourse, is it not clear that condomistic intercourse could not possibly be described as marital intercourse, for 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 behavioural pattern of a kind that is intrinsically non-generative and hence non-marital. And if that is so, one would have to conclude that there is no possible place for the prophylactic use of condoms within marriage.

© Winter 2005, National Catholic Bioethics Center & Luke Gormally

[1]An ancestor of this paper was delivered as the 2005 Linacre Lecture at Ave Maria School of Law on 13 April 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 OFM. Since I have not taken all the advice offered me I alone am responsible for remaining errors in the paper. I have not sought to alter its original character as an oral presentation.
[2]Martin Rhonheimer, ‘The Truth about Condoms’, The Tablet (July 10, 2004): 10-11.
[3]Benedict Guevin OSB and Martin Rhonheimer, ‘On the Use of Condoms to Prevent Acquired Immune Deficiency Syndrome’, National Catholic Bioethics Quarterly 5 (2005): 37-48, at 44.
[4]De Genesi ad litt. 9.7.
[5]On connatural dignity see further Luke Gormally, ‘Human dignity: the Christian view and the secularist view’, in J Vial Correa and E Sgreccia (eds) The Culture of Life: Foundations and Dimensions (Vatican City: Libreria Editrice Vaticana 2002): 52-66; idem, ‘Pope John Paul II’s teaching on human dignity and its implications for bioethics’, in C Tollefsen (ed) John Paul II’s Contribution to Catholic Bioethics (Philosophy and Medicine, vol.84) (Dordrecht: Springer 2004): 7-33.
[6]See John Finnis, Aquinas. Moral, Political and Legal Theory (Oxford: Oxford University Press 1998): 145 and references to Aquinas therein.
[7]Pope Paul VI, Encyclical Letter Humanae Vitae, #12. “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 what follows I rely heavily on Aidan McGrath OFM, A Controversy concerning Male Impotence (Analecta Gregoriana vol. 247), Rome: Editrice Pontificia Università Gregoriana 1988.
[9]By which I mean, ‘of the generative kind in its behavioural pattern’. The text of the canon was emended to refer explicitly to impotentia coeundi in order to dispel any residual confusion over the concept of impotentia generandi that affected the debate in the early decades of the twentieth century to which I refer later. See in particular footnote 13 below.
[10]Quoted in Elizabeth Anscombe, Contraception and Chastity (London: Catholic Truth Society, new edition 2003): 15-16.
[11]It is relevant to an accurate understanding of the subsequent Papal Brief (which I cannot discuss in the paper) that probably all of the eunuchs to whom the Nuncio was referring were castrati 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.
[12]McGrath names Cardinal 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.
[13]The Holy Office judged that a man who had a vasectomy possessed a potential 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, pp.159-64.
[14]See the argument in McGrath at pp. 251-7 for this understanding of the authority of the Decree.
[15]Observations over millennia about the barrenness of certain women rest on a recognition that there is something in the woman’s physical condition, which may be lacking in some women, which contributes to generation.
[16]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.
[17]Op.cit. at n.3, p.44.
[18]Op.cit. p.46.
[19]See section 2 above.
[20]Op.cit. p.44.
[21]Gratian, Decretum PARS II, C.27. q.2 c.17, quoted in David d’Avray, Medieval Marriage: Symbolism and Society (forthcoming Oxford University Press 2005).
[22]An ‘extrinsic symbol’ could not have the consequence marital intercourse has: indissolubility.

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