The Canon Law Requirements for Consummation
WASHINGTON, D.C., 28 JULY 2010 (ZENIT)
Here is a question on bioethics asked by a ZENIT reader and answered by the fellows of the Culture of Life Foundation.
Q: Does a contraceptive act of sexual intercourse fulfill the Canon Law requirements for Consummation? Regards, SG. A. — Cape Town, South Africa
E. Christian Brugger offers the following response:
A: Neither canon law nor the authoritative moral teaching of the Catholic Church settles this question. In such a case, morally conscientious people should consider relevant arguments on both sides of the question and affirm the conclusion that seems to them most to be true in the light of the wider truths of the faith. The ideas of faithful theologians in this instance can be of assistance. But Catholics should not “believe” what theologians say in the way they believe the truths of divine revelation or definitive Catholic teaching; nor should they render to the opinions of theologians the “religious submission of mind and will” as they should to non-definitive authoritative Catholic teaching (See Vatican II, Lumen Gentium, no. 25). Rather, they should consider what theologians say and judge for themselves whether it seems true. In what follows, I offer my own reasoning on the question whether contraceptive genital sex consummates a marriage (i.e., whether it is adequate to bring about the two-in-one-flesh communion necessary to bring into existence an indissoluble marriage). I begin by explaining how the spiritual-bodily nature of the human person is the basis for the Catholic Church’s teaching on the nature of marriage.
Human beings are an inseparable unity of body and soul. They are spiritual beings, but not merely spiritual beings using a body, say, as a captain steers his ship. They are also bodily beings; but not merely bodily beings with no non-bodily dimension (which is what materialists believe). They are rightly called "embodied souls." The martial relationship is uniquely an expression of this body-soul unity.
Now some relationships, such as between two friends, are established on the basis of the spiritual dimension alone. By this I do not mean that friendship does not involve the body. Of course it does, as does everything human. But it comes into existence by a spiritual act, an act of the will, that is, on the basis of the consent of the partners. And it lasts only as long as the friends are willing to stay friends. If either partner removes his consent, the relationship (although not necessarily the affection) to that extent ceases.
Marriage too is a type of friendship that requires consent ("marital consent"). But it is more than an ordinary friendship established and held in existence only by the consent of the partners. It also has a profound bodily dimension — a "one-flesh" dimension realized with the first act of sexual intercourse (see Genesis 2:24; Matthew 19:5; Ephesians 5:31). This one-fleshness comes into existence, as St. Paul makes clear, whether or not the persons are married (cf. 1 Corinthians 6:16). But because it joins two people uniquely in body and soul, expressing the possibility for radical human intimacy and procreativity, intercourse should only ever be a marital act, that is, should be an actualization of and a sharing in a relationship characterized by permanence, exclusivity and procreativity.
If the partners have not already consented to a life-long marital-type friendship, then their act of intercourse is disordered because it establishes a one-flesh union on the basis of an impermanent relationship. John Paul II says that the "language of the body" spoken by extra-marital sex is deceptive: "Because I say with my body that you are mine and I am yours forever; but I have not consented to such a union."
So marriage is a permanent, two-in-one-flesh type of friendship established on the basis of both the consent of the partners and an act that unites the bodies into a one-flesh unity. The consent takes place at the altar when the partners exchange vows. If they indeed intend to enter an indissoluble one-flesh type of friendship, and they have no other impediments (e.g., they are already married), their consent brings into existence (what’s referred to in canon law as) a "ratified" marriage, a real marriage, but not yet a complete marriage. It becomes complete when the spouses consummate their marriage through a bodily act that expresses in a one-flesh fashion what they consented to on the altar — the irrevocable gift of the whole self. If they never consummate their marriage, the union’s incompleteness is expressed in the fact that the marital bond can be dissolved by the Church. If their marriage is both ratified and consummated, nothing but death can dissolve the union.
We now return to the question of whether a contraceptive act of intercourse consummates a marriage. The 1985 Commentary on the Code of Canon Law by the Canon Law Society of America says: "The consultors who discussed the canons favored the notion that natural sexual intercourse constituted consummation and that the use of contraceptives did not prevent true completion of the act as long as the device did not interfere with the physical act of intercourse" .
I understand this to mean that the consultors (i.e., those experts in canon law consulted by the Vatican in the preparation of the 1983 Code of Canon Law) believed that if a wife was on the birth control pill during the couple's first act of intercourse, their act would still be (in the words of canon law) "per se apt for the generation of children” (Canon 1061) (i.e., a procreative "kind" of act even if not actually a fertile act). This is not because the consultors believed the pill was morally legitimate (although some might have believed this), but because a chemically contracepted act does not impede the husband from depositing semen in his wife’s vagina, something most canonists believe to be essential to consummation.
Both Dr. May and I believe that this judgment is wrong (and so do many moral theologians today). I will state as briefly as possible our reasons for holding this view. For an act of sexual intercourse to be "marital" and hence legitimate, the act must be consistent with the two chief goods of marriage, which are procreation and unity. If either the unitive or the procreative goods of marriage are positively willed against, then although the physical behavior might resemble marital intercourse, the act is non-marital. So, for example, if on their wedding night, the husband forces his wife to have intercourse with him against her will, the act is not a marital act — is not consummatory — since by being against her freedom it is contrary to the good of marital unity (it is not even a human-type of act, at least on her part; it is merely a piece of physical behavior). Similarly, if by using contraception one or both of the spouses intend that their act of intercourse is sterile (not procreative), then by virtue of their positive intention against the good of procreation, the act is non-marital. If the act is non-marital, then (obviously) it is not consummatory of a marriage. Therefore, a willful contraceptive act of sexual intercourse does not fulfill the requirements of Canon 1061 for marital consummation. (Dr. May and I addressed in our last piece the question of whether couples who have intentionally sterilized themselves can get married in the Church. Another way to word this question is whether they can consummate their marriage.)
If this reasoning is correct (which, as I said above, is not Church teaching but the conclusion of theologians), it has serious implications for marriage preparation. If a couple intends to practice contraception for the first years of marriage to avoid having children, which many do, then even if they contract a valid ratified marriage on the altar, they will not consummate their marriage until they choose an act of martial intercourse that respects both marital goods. This means they do not become a one-flesh union until that time; they do not receive the grace that supervenes upon marriage’s one-fleshness; and their marriage remains dissoluble. It also means they enter into marriage habitually choosing a gravely evil act, which is bad for their marriage. After 40 years of swallowing this bitter pill, couples now need the Church's pastors to speak up clearly: contraception militates against the good of a marriage; it is a contra-marriage act, a moral virus within the relationship.
I believe a priest who knows that a couple intends to practice contraception after they marry should do his best to persuade them otherwise. His attempt at persuasion should involve more than telling them that what they are doing is wrong. He should explain as clearly as he can the reasons that contraceptive intercourse is wrong; and do so with charity and patience realizing that for many people, including many Catholics, the truth of the wrongness of contraception is very hard to see. In the end, if they reject the Catholic teaching, he should refuse to marry them. Just as ordaining a priest who rejects the Church's teaching on clerical chastity is in my opinion a grave pastoral error, so also is marrying people who reject the Catholic teaching on marital chastity.
Even if he chooses not to follow my opinion here, he should try to communicate to the couple as clearly as possible that the sin of contraception is not a minor issue to the health of a marriage, although Catholic pastoral practice has treated it this way for several decades.
 Commentary on canon 1061 (1985, Canon Law Society of America), p. 745.
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E. Christian Brugger is a Senior Fellow of Ethics at the Culture of Life Foundation and is an associate professor of moral theology at St. John Vianney Theological Seminary in Denver, Colorado. He received his Doctorate in Philosophy from Oxford in 2000.
William E. May, is a Senior Fellow at the Culture of Life Foundation and retired Michael J. McGivney Professor of Moral Theology at the John Paul II Institute for Studies on Marriage and Family at The Catholic University of America in Washington, D.C.