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The Significance of the Consummation of Marriage, Contraception, and Condoms to Prevent HIV

The use of condoms to prevent transmission of a disease is intrinsically evil because the object freely chosen that specifies the moral nature of the act is not the marital act, an act in which husband wife give and receive one another and become literally “one flesh,” but a different kind of act, one that in no way unites them but rather changes utterly the “language of the body.” by William E. May, Michael J. McGivney Professor of Moral Theology Pontifical John Paul II Institute for Studies on Marriage and Family

William E. May

Michael J. McGivney Professor of Moral Theology

Pontifical John Paul II Institute for Studies on Marriage and Family

I will first consider the theological significance of the consummation of marriage and then show how it bears on contraception and the morality of using condoms to prevent HIV.

Before describing the Church’s understanding of the consummation of marriage, it is important to recognize that, according to the teaching of the Church, marriage comes into being when a man and a woman consent to give themselves to one another irrevocably as husband and wife.[1] [1] Thus the reality of marriage is in being immediately once this consent is freely given, and this reality is a grace-giving sacrament if the persons consenting to marriage are baptized Christians. The technical term for a marriage brought into existence by the free consent of the spouses prior to its being consummated is “ratified.” But marriage is not consummated by consent, and the Church, as Canon 1142 in the Code of Canon Law affirms, has the power to dissolve non-consummated sacramental marriages for a just reason: “A non-consummated marriage between baptized persons or between a baptized party and an unbaptized party can be dissolved by the Roman Pontiff for a just reason, at the request of both parties or of either party even if the other is unwilling.” “A marriage which is ratified and consummated cannot be dissolved by any power or by any cause other than death” (Canon 1141).[2] [2]Development in the Canonical Understanding of “Consummation”But what consummates” a marital union? Here there has been an important development in the canonical understanding of consummation. In the 1917 Code of Canon Law the following is the relevant canon:A valid marriage of the baptized is called ratified if consummation has not yet been completed. It is called ratified and consummated if between the spouses the conjugal act has taken place, to which the contract is ordered by its nature and by which the spouses become one flesh (Canon 1015, par.1).Canon lawyers understood the conjugal act by which the spouses become one flesh to be carnal copula, and canon 1081, par.  2 further refined the description of the conjugal act or carnal copula by which marriage is consummated by stipulating that the copula must be an act per se apt for the generation of children, i.e., a reproductive-type act. Peter Jugis has summarized the 1917 Code’s understanding of consummation as well as the views of major commentators on the 1917 Code. He shows that commentators on the Code were unanimous in affirming that the conjugal copula which consummated marriage is a free human action dependent on the will. But he emphasized that the only elements of this human action which continued to be juridically significant for the consummation of marriage were the physiological elements: penetration of the erect male member into the vagina of the woman and deposit of true semen by the male member in the vagina. This was the conjugal act by which the spouses became one flesh and by which the marriage was consummated. The presence of absence of volitional elements was juridically insignificant. [3] [3]Thus, in applying Canon 1141 canon lawyer regarded carnal copulation forced on one spouse by another without that spouse’s reasonable consent an act consummating the marriage, with the result that such a marriage was dissoluble only by death and hence could not be dissolved by the Roman Pontiff on the grounds that it had not been consummated. In the revised 1983 Code of Canon Law we find a much different juridical understanding of marital consummation. The relevant canon in the 1983 Code is Canon 1061, which reads: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.The source of this new canon is the teaching of Vatican Council II on marriage. In a beautiful paragraph on conjugal love the Council Fathers explicitly taught that conjugal love is uniquely expressed and perfected in the conjugal act. Continuing, they declared: “Expressed in a manner which is truly human (modo vero humano exerciti), these actions signify and promote that mutual self-giving by which spouses enrich each other with a joyful and thankful will” (Gaudium et spes 49). Commenting on this text, Jugis writes:Due to Vatican II’s teaching on modo vere humano, canonists completely reversed their thinking on the manner of intercourse which was juridically appropriate for consummation. Prior to Vatican II the common canonical view opinion for centuries had been that violent consummation with an unwilling spouse validly consummated marriage….After Vatican II the common opinion of almost all canonists became that a violent consummation with an unwilling spouse did not validly consummate marriage.[4] [4]Thus, in the 1983 revision of the Code of Canon Law the teaching of Vatican II on conjugal love and the consummation of marriage was codified in canon 1061,1, which reads as follows:A valid marriage between baptized persons is called ratified only if it has not been consummated; it is called ratified and consummated if the parties have performed between themselves in a human manner the conjugal act which is per se suitable for the generation of children, to which marriage is ordered by its very nature and by which the spouses become one flesh.In applying this canon since the promulgation of 1983 Code, canonists have regularly ruled that if the only carnal copula between spouses was violently imposed on an unwilling spouse, the marriage was not consummated and that therefore the Roman Pontiff had the power for just cause to dissolve such unions.[5] [5]

A Theological Reflection on Marital Consummation

First of all, the act consummating marriage is one in which husband and wife, literally becoming “one flesh,” form one procreative unit. It is, in short, a procreative or reproductive type act, and remains this kind of act even if the spouses, because of non-behavioral factors over which they have no control, for example, the temporary or permanent sterility of one of the other, are not able to generate human life in it. Their act remains the kind of bodily act “apt” for generating human life. It is in fact the only kind of bodily act through which human life can be given, for it is only in this kind of act that a man and a woman can exercise their procreative powers; they cannot exercise those powers, as they can their digestive, respiratory, and cognitive powers, as individual men and women, nor can they exercise these powers in a bodily way with member of the same sex..Moreover, non-married males and females can exercise their procreative powers in acts of fornication and adultery because they are equipped with genitals. But they do not have the right to do so because doing so violates the right of a child who can be begotten to the home it merits. Such children are indeed precious and irreplaceable human persons, but the act generating them does not properly respect their personal dignity.[6] [6] But as Paul VI points out in a much neglected and badly translated passage of Humanae vitae, “the conjugal act, while intimately uniting husband and wife, makes them fit (the Latin text reads, eos idoneos facit) of generating human life according to laws inscribed into their very being as men and women” (no. 12). This passage is badly translated in most English language editions as “the conjugal act…makes them capable of generating human life…” This is grossly inaccurate. Fornicators and adulterers, who have no right to generate human life, are capable of doing so because they have genitals, but spouses have the right to do so because they have made themselves fit or worthy to do so by giving themselves irrevocably to one another in marriage.From this we can see that the marital act is not simply a genital act or carnal copula between a man and a woman who just happen to be married. It is rather an act that is uniquely capable of expressing and perfecting their marital union. It is an act that is both unitive and procreative.Can Spousal Contracepted Acts “Consummate” Marriage?As we have seen, canonists, in their application of Canon 1061, conclude that an act of carnal copula violently imposed on an unwilling spouse does not consummate marriage because this kind of act is not engaged in humano modo. I agree with them, but in addition I am certain that an act of genital union between a man and a woman who happen to be married is also not engaged in humano modo, and consequently does not consummate the marriage, if it is a contracepted act, that is, one that intentionally violates the procreatve meaning of the conjugal act.[7] [7] Thus in my opinion, if every act of genital union between husband and wife has been contracepted and if their marriage has not, for that reason, been consummated, it is the kind of marriage that the Roman Pontiff can, for just cause, dissolve.  My argument that contracepted intercourse by spouses does not consummate marriage because, like violent sex, it is not engaged in “modo vere humano” is supported by the text of Gaudium et spes 49 where “modo vere humano” appears, the text that all concerned agree inspired the new canon on consummation. Here is the Latin text with my emphasis in boldface.´”Actus proinde, quibus coniuges intime et caste inter se uniuntur, honesti ac digni sunt et, humano vere modo exerciti, donationem mutuam significant et fovent qua sese invicem laeto gratoque animo locupletant” [English trans. “Thus those acts by which spouses intimately and chastely unite are honorable and worthy and, exercised in a truly human way, signify and foster their mutual gift of themselves whereby they enrich each other with a joyful and grateful mind”] GS 51 continues by stressing the objective criteria “ex personae eiusdem actuum natura desumptis”[English trans “drawn from the nature of the persons and his acts”] that are to be used in harmonizing conjugal love and respect for human life, and it emphasizes that these criteria “integrum sensum mutuae donationis ac humanae procreationis in contextu veri amoris observant quod fieri nequit nisi virtus castitatis coniugalis sincero animo colatu.”[English trans. “observe the full meaning of mutual gift and of human procreation in the context of true love that cannot be done unless the virtue of conjugal chastity is seriously cultivated”] GS 51 then declares: “Filiis Ecclesiae, his principiis innixis, in procreatione regulanda, vias inire non licet, quae a Magisterio, in lege divina explicanda, improbatu.” {English trans. “It is not lawful for children of the Church, relying on these principles, to use methods in regulating birth that the Magisterium has, in its explanation of the divine law, repudiateD”]. And this is followed by the famous footnote 14 that refers explicitly precisely to those passages in Pius XI’s Casti Connubii and Pius XII’s Allocutio Conventi Unionis Italicae inter Obstetrices of 10.29.51 where contraception is declared intrinsically and always evil. Moreover, in Evangelium vitae 12 Pope John Paul II explicitly says that contraception by married persons is a sin against the virtue of chastity. I believe that all these magisterial texts support my conclusion that “modo vere humano exerciti” excludes contracepted intercourse by married couples—as well as violent sex– as an act that cannot consummate marriage.This interpretation of humano modo is supported in my opinion by another neglected passage from Humanae vitae, that namely in which Paul VI first observed that everyone would agree that a conjugal act forced upon one’s spouse would violate the right moral order and then went on to say that similarly people should recognize that contracepted acts, i.e., those making use of God’s gift of generating life while repudiating its end, are also acts that violate the right moral order (see Humanae vitae, 13).uHuHumI have discussed this issue with two canon lawyers—Edward Peters, currently professor of canon law at Sacred Heart Seminary in Detroit, and Rev. John
Doerfler, Chancellor of the Diocese of Green Bay who recently completed an S.T.D. at the John Paul II Institute. They tell me that one major problem here is to provide viable evidence that every act of sexual congress between spouses after consent was indeed contracepted. They also pointed out that even if such acts would not consummate marriage and that therefore such unions could be dissolved by the Roman Pontiff on grounds of nonconsummation, there might be very good reasons not to dissolve such unions–contracepting couples might seek to abuse this power of the Roman Pontiff by deliberately contracepting each act of sexual congress with the aim of having their marriages dissolved.
Is It Intrinsically Evil for Spouses to Use Condoms to Prevent HIV?On July 10, 2004 the noted philosopher/theologian Martin Rhonheimer published an article in the London Tablet, “The truth about condoms,” in which he argued that spouses could legitimately use condoms as a means of preventing the transmission of HIV.” He argued that such use need not be contraceptive, insofar as the moral object specifying their choice was not necessarily to contracept.[8] [8] I wrote a letter to the editors of the Tablet to reply to Rhonheimer’s essay but it was never printed. I sent Rhonheimer an email in which I included a copy of the letter I had sent to the Table.In that letter I maintained that condomistic sex between married persons was not the marital act but a perverted sexual act. In fact in my email I said that the act was a perverted sexual act because a free choice was made “to ejaculate deliberately into a rubber and insert the rubber-covered penis into a vagina,” an act similar to masturbation. In replying to my email Rhonheimer declared: “What really is chosen when a person uses a condom to prevent infection is in my view is not ‘to ejaculate etc…’ but a marital act.” He went on to say that since this act includes no contraceptive choice we can, if we consider the intentional activity involved, conclude that “the unitive and procreative meaning of the act are not separated.”[9] [9]It should be noted that several Cardinals agree with Rhonheimer, among them, Carlo Cardinal Martini, emeritus Archbishop of Milan, Godfrey Cardinal Daneels of Belgium,[10] [10] and Georges Cardinal Cottier, O.P. former theologian to the papacy. It should also be noted that in a talk in June 2005 to African bishops Pope Benedict XVI himself said that the only “fail-safe” way to prevent transmission of HIV/AIDS was abstinence. His exact words are the following: “The Catholic Church has always been at the forefront both in prevention and in treatment of this illness. The traditional teaching of the Church has proven to be the only failsafe way to prevent the spread of HIV/AIDS. For this reason, ‘the companionship, joy, happiness and peace which Christian marriage and fidelity provide, and the safeguard which chastity gives, must be continuously presented to the faithful, particularly the young’” (Ecclesia in Africa [11], 116). [11] [12]What amazed me is that the position presented by Rhonheimer in 2004 had been set forth in 1987 in booklet published by the Catholic Truth Society of England by James Alison, O.P. under the title Catholics and Aids: Questions and Answers.[12] [13]  In fact I had, in June 1988, published an essay in the Fellowship of Catholic Scholars Newsletter in which I noted that several theologians argued that the use of condoms for such a purpose is not contraceptive, because the intent of those who use condoms is not to prevent conception but rather to avoid the transmission of a deadly disease. I agreed that such use may not be contraceptive because the object freely chosen need not be to impede procreation. For instance, assume that the husband of an aged married couple contracted HIV through a blood transfusion. His wife was known to be past the age of childbearing so that there would be no reason to use a condom for contraceptive purposes. Why waste money to impede procreation when one realizes that although the behavior in question is the kind of bodily union through which life can be transmitted (it is a procreative kind of act) for factors independent of the agents’ behavior (e.g., sterility) conception will not occur. But, I argued, “condomistic intercourse is, of itself, an ‘unnatural’ or perverted sexual act, and cannot be regarded as a true act of marriage. In my 1988 essay I noted that the Catholic tradition repudiated condomistic intercourse not only because it was usually chosen as a way of contracepting but also because it was against nature. Older theologians judged that in such intercourse the male’s semen was deposited in a vas indebitum or “undue vessel” Although this language is not in favor today, the judgment it embodied is, I was convinced, true. When spouses choose to use condoms they change the act they perform from one of true marital union (the marriage act) into a different kind of act. The “language of their bodies,” as Pope John Paul II would say, is changed. “In the marital act their bodies speak the language of a mutual giving and receiving, the language of an unreserved and oblative gift. Condomistic intercourse does not speak this language; it mutilates the language of the body, and the act chosen is more similar to masturbation than it is to the true marital act.”[13] [14]I agree with Rhonheimer that couples using condoms to prevent HIV/AIDS may not be intending to impede procreation, and thus their chosen act is not an act of contraception. Here I appeal to the teaching of St. Thomas and Pope John Paul II to support this matter. Some acts, as acts of nature may be contraceptive, but as St. Thomas and John Paul II make clear, as moral human acts receive their moral species from the act freely chosen by an agent. St. Thomas expresses this briefly in many texts, e.g., in Summa theologiae 2-2, 64, 7, where he declares: “actus autem morales recipient speciem secundum id quod intenditur, non autem ab eo quod est praeter intentionem” [English trans. “Moral acts receive their species according to what is  intended and not from what lies outside the scope of one’s intention].A particularly important Thomistic text on this matter, making it crystal clear that the primary moral specification of an act is rooted in the object freely chosen, is the following:Will can be considered in two ways: (1) as intention (secundum quod est intendens), insofar as it bears on an ultimate end; and (2) as choice (secundum quod est eligens), insofar as it bears on a proximate object ordered to that ultimate end. If (1) will is considered in the first way (as intending) the will’s badness suffices to make the act bad, for whatever is done for a bad end is bad. But the goodness of the intending will is not sufficient to make the act good because the act may be bad in itself (actus potest esse de se malus) an act which in no way can be made good. But (2) if the will is considered insofar as it is choosing (Si autem consideretur voluntas secundum quod est eligens) then it is universally true that from the goodness of the will the act is said to be good and from the badness of the will it is said to be bad. [14] [15]  John Paul II made the same point in Veritatis splendor 78. There he declared:The morality of the human act depends primarily and fundamentally on the ”object” rationally chosen by the deliberate will (emphasis in original)….In order to grasp the object of the act which specifies that act morally, it is therefore necessary to place oneself in the perspective of the acting person (emphasis in original). The object of the act of willing is in fact a freely chosen kind of behavior (emphasis added). To the extent that it is in conformity with the order of reason it is  the cause of the goodness of the will; it perfects us morally, and disposes us to recognize our ultimate end in the perfect good, primordial love. By the object of a given moral act, then, one cannot mean a process or an event of the merely physical order, to be assessed on the basis of its ability to bring about a given state of affairs in the outside world. Rather, that object is the proximate end of a deliberate decision [=choice] which determines the act of willing on the part of the acting person (emphasis added here. I do so because in this text what Aquinas called the “natural species” of the act, as distinct from its “moral species” John Paul II calls “a process or event of the physical order, to be assessed on is ability to bring about a given state of affairs in the outside world”). Be that as it may, I now recognize that many couples who use condoms to prevent transmission of HIV/AIDS also intend to contracept. After all, many of these couples are young and fear that if a child were conceived it would be exposed to the threat of a dread disease, and hence they would intend both to prevent the transmission of HIV/AIDS and the transmission of life. But the major reason why such use of a condom is always seriously evil is the following: if spouses who wish to have intercourse use a condom to prevent HIV transmission, their choice is not to engage in the marital act because their freely chosen act is not unitive—that is, it does not realize, express, and allow spouses to experience their unity as a married couple.To be unitive the act chosen by the spouses must have at least two properties: (1) It must be voluntary, done ” humano vere  modo “; (2) it must be “actum per se aptum ad prolis generationem, ad quem natura sua ordinatur matrimonium, et quo coniuges fiunt una caro”[15] [16][English trans. “An  act per se apt for generating life, to which marriage is by its very nature ordered”]. The Latin phrase, “per se aptum ad prolis generationem,” can be described as “sexual behavior that, if other necessary conditions are present (e.g., the fertility of both man and woman), would result in conception.” From this it follows that if spouses who are going to have intercourse use a condom to prevent the transmission of HIV/AIDS, the act is always objectively wrong because they are choosing to engage in behavior that would not result in conception if other necessary conditions were present.The reason why proceeding with a condom cannot realize one-flesh unity is that one-flesh unity is the oneness of the couple as the different but complementary subjects of the same act, one that can be rightly called a “reproductive” or “procreative” kind of act. Here I need to repeat something affirmed earlier in this paper, namely, that the act consummating marriage is one in which husband and wife, literally becoming “one flesh,” form one procreative unit. It is, in short, a procreative or reproductive type act, and remains this kind of act even if the spouses, because of non-behavioral factors over which they have no control, for example, the temporary or permanent sterility of one of the other, are not able to generate human life in it. Their act remains the kind of bodily act “apt” for generating human life. It is in fact the only kind of bodily act through which human life can be given, for it is only in this kind of act that a man and a woman can exercise their procreative powers; they cannot exercise those powers, as they can their digestive, respiratory, and cognitive powers, as individual men and women, but only as a “mating couple,” in an act in which they in truth do become “one flesh.” In summary, use of condoms to prevent transmission of a disease is intrinsically evil because the object freely chosen that specifies the moral nature of the act is not the marital act, an act in which husband wife give and receive one another and become literally “one flesh,” but a different kind of act, one that in no way unites them but rather changes utterly the “language of the body.”


[1] [17] On this see Vatican Council II, Pastoral Constitution on the Church in the Modern World (Gaudium et spes), 48; Code of Canon Law (1983 revised edition), canon 1057.

[2] [18] I cannot here explore the very important (and difficult) theological question, “what does consummation add that makes marriage absolutely indissoluble so long as the spouses are alive.”

[3] [19] Peter Jugis, A Canonical Analysis of the Meaning of Humano Modo in Canon 1061.1 (of the 1983 Code of Canon Law): The Catholic University of America Canon Law Studies No. 541 (Washington, D.C.: 1992), p. 131. See also pp. 121-122.

[4] [20] Ibid, p. 280.

[5] [21] Jugis devoted ibid, pp. 244-346 to demonstrate that this is indeed the case.

[6] [22] On his see St. Thomas Aquinas, Summa contra gentiles, Bk 3, ch. 122; Karol Wojtyla, Love and Responsibility, trans. H. Willetts (New York: Farrar, Sraus,Girous, 1980; reprinted Ignatius Press), ch. 4.

[7] [23] I emphasized the word “contacepted” to show that contraception is itself not a genital act (contraceptive intercourse) but an act of genital union in which those engaging in it have done something prior to, during, or subsequent to their chosen genital act,  precisely to impede procreation (see Humanae vitae 14).

[8] [24] Martin Rhonheimer, “The truth about condoms,” Tablet 0/07/04.

[9] [25] In an email to me dated Wednesday August 04, 2004.

[10] [26] For the views of Martini and Daneels see an Associated Press release dated 4.04. pm ET, A April 21, 2006 available at http://www.msnbc.msn.com/id/12424425/ [27]. For Cottier, see Catholic News at http://www.cathnews.com/news/502/10.php.

[11] [28] The text of Pope Benedict XVI’s Address to the Bishops of South Africa, Botswana, Swaziland,  Nambia and Lesotho on their “Ad Limina Apostolorum” Visit on June 10 2005 is found on the official Vatican website at http://www.vatican.va/holy_father/benedict_xvi/speeches/2005/june/documents/hf_ben-xvi_spe_20050610_ad-limina-south-africa_en.html [29]. The relevant paragraph is n. 4.

[12] [30] Alison subsequently left the Dominicans and is now living in Canada.

[13] [31] William E. May, Fellowship of Catholic Scholars Newsletter 11.3 (June 1988).

[14] [32] St. Thomas, In II Sent. 40, 1, 2c: “…voluntas dupliciter potest considerari: vel secundum quod est intendens, prout in ultimum finem fertur; vel secundum quod est eligens, prout fertur in obiectum proximum, quod in finem ultimum ordinatur. Si consideretur primo modo, sic militia voluntatis sufficit ad hoc quod actus malus esse dicatur, quia quod malo fine agitur malum est. Non autem bonitatas voluntatis intendentis sufficit ad bonitatem actus; quia actus potest esse de se malus, qui nullo modo bene fieri potest. Si autem consideretur voluntas secundum quod est eligens, sic universaliter verum est quod a bonitate voluntatis dicitur actus bonus, et a malita malus.”

[15] [33] Codex Iuris Canonici,canon 1061, par. 1.