Need real canon lawyer to answer a difficult question about exclusio boni prolis

[Gorgias]

I haven’t caught up with the thread (so apologies for repetition), but here’s a question that may clarify the problem: If medical treatment became available that would allow for a safe and healthy pregnancy, would the couple still refuse to have children?

If the couple is willing to have children with effective medical treatment, they are open to having children.

Ding ding ding!

 

[chevalier]

I haven’t caught up with the thread (so apologies for repetition), but here’s a question that may clarify the problem: If medical treatment became available that would allow for a safe and healthy pregnancy, would the couple still refuse to have children?

If the couple is willing to have children with effective medical treatment, they are open to having children.

I see some logic in the argument that they’re open or not totally close if they would be willing to take advantage of treatment if it existed. However, for permanent impotents and for people with psychic incapacity their marriages are still invalid here and now, regardless that there might perhaps be invented a cure in the future.

… And, more importantly, future conditions are banned by can. 1102(1). If the marriage itself must be contracted free of any future conditions, then I believe it would follow logically that nothing belonging to the essence of the marriage can be made subject to a future condition.

 

[Xantippe]

However, for permanent impotents and for people with psychic incapacity their marriages are still invalid here and now, regardless that there might perhaps be invented a cure in the future.

But the couple in this sort of case is quite different your cases. They have health issues that make pregnancy dangerous or make serious disability likely in the child, but they are able to consummate (unlike the permanent impotent) and they have sound minds and are able to consent to marriage (unlike the person with psychic incapacity), and there’s no permanent intention against children.

… And, more importantly, future conditions are banned by can. 1102(1). If the marriage itself must be contracted free of any future conditions, then I believe it would follow logically that nothing belonging to the essence of the marriage can be made subject to a future condition.

The marriage is not conditional. The conditional is only about whether or not they will actively pursue conception.

Related: My oldest child got confirmed this year and chose Queen Jadwiga of Poland as her confirmation saint. She had to write a composition about St. Jadwiga, and we all learned a lot of interesting things (which you are no doubt very familiar with, but new to us). For example, Jadwiga got married to a much older man at around 12 years of age, uniting Poland and Lithuania, and had no children until she died of childbirth complications at around 25. So, the question arises, how actively did Jadwiga and her husband pursue pregnancy when she was a physically immature child bride? It’s a very curious fact that there was such a long gap between their marriage and the pregnancy that killed her.

 

[chevalier]

But the couple in this sort of case is quite different your cases. They have health issues that make pregnancy dangerous or make serious disability likely in the child, but they are able to consummate (unlike the permanent impotent) and they have sound minds and are able to consent to marriage (unlike the person with psychic incapacity), and there’s no permanent intention against children.

Having a good reason to avoid pregnancy throughout the entire marriage does not make the marriage ordered toward procreation any more than a medically justified non-show can win a medal at war or in a sports event. A good reason does not deal away with the absence, it only corroborates it.

If an argument is made that they have no other option, than that should be regarded on par with incapacity. One can’t really have a cake and it eat too and say: ‘oh, I can marry because I’m capable of having children, I just have a good reason not to’ and also say: ‘oh, I don’t have an intention because see, this particular reason forces my hand so I have no choice’.

Being firmly decided and having a pact to rigorously avoid conception for the entire duration of the marriage, how’s that not an intention against procreating? (That’s what counts, not children per se, such as through adoption.)

The marriage is not conditional.

A required part, which is procreation, is conditional. Completeness of the minimum required content of marriage being conditional is the same as the marriage being conditional.

The conditional is only about whether or not they will actively pursue conception.

Not true. It’s not about actively pursuing conception. It’s about stopping to actively avoid any chance of it.

Actively pursuing conception is making sure relations happen on fertile days. Stopping to make sure relations only ever happen on a non-fertile day is a far cry yet from actively seeking conception.

Related: My oldest child got confirmed this year and chose Queen Jadwiga of Poland as her confirmation saint. She had to write a composition about St. Jadwiga, and we all learned a lot of interesting things (which you are no doubt very familiar with, but new to us). For example, Jadwiga got married to a much older man at around 12 years of age, uniting Poland and Lithuania, and had no children until she died of childbirth complications at around 25. So, the question arises, how actively did Jadwiga and her husband pursue pregnancy when she was a physically immature child bride? It’s a very curious fact that there was such a long gap between their marriage and the pregnancy that killed her.

Postponing does not invalidate, except perhaps in extreme situations. Postponing is different from precluding.

 

[Xantippe]

If an argument is made that they have no other option, than that should be regarded on par with incapacity.

No, because they’re of sound mind, physically capable of consummation, presumably have consummated their marriage and do want children.

One can’t really have a cake and it eat too and say: ‘oh, I can marry because I’m capable of having children, I just have a good reason not to’ and also say: ‘oh, I don’t have an intention because see, this particular reason forces my hand so I have no choice’.

Not at all. Being physically able to have children has nothing to do with marriage validity.

Being firmly decided and having a pact to rigorously avoid conception for the entire duration of the marriage, how’s that not an intention against procreating?

It’s not to rigorously avoid conception for the entire duration of the marriage, but until there is a medical solution.

By the way, are you insisting that a fertile 45-year-old woman cannot validly get married if the prospective spouses (very reasonably) fear the health consequences of pregnancy and plan to use NFP until menopause?

Does it really make more sense to say that that 45-year-old can’t get married, but that she and her fiance could get married if they just waited until menopause?

Not true. It’s not about actively pursuing conception. It’s about stopping to actively avoid any chance of it.

Pot-A-to, Pot-AH-to.

 

[Xantippe]

But a couple can “run out” the clock by waiting to marry until menopause?

 

[Gorgias]

However, for permanent impotents and for people with psychic incapacity their marriages are still invalid here and now, regardless that there might perhaps be invented a cure in the future.

These are cases that are fundamentally different than your examples in your OP.

“Antecedent and permanent impotence” holds if it’s… well… permanent. So, no recourse to “what mind happen in the future” applies in that case. (After all, if a future therapy were possible, then it wouldn’t have been “permanent”, right?)

Those with a ‘psychic incapacity’ are unable to consent, and therefore, incapable of marriage. In your OP, there’s not an corresponding lack of capacity. So again, apples and oranges, no?

 

[Mintaka]

Josephite (sexless and unconsummated, by mutual consent) marriages are totally legal. They can only be broken if one of the spouses wants sex, and the other spouse continually refuses.

Josephite marriages have been part of Catholic life since the beginnings of Christianity; there are also some Jewish traditions along this line.

Having the intention to have sex without kids through judicious timing of marital continence is weird and inadvisable, particularly with severe health issues. But as St. Paul said, spouses have the right to be continent whenever they decide to. (The usual reason is for more prayer. And it used to be part of fasting, in Jewish and Christian tradition. But any serious reason is reason enough.)

Catholic canon law gives consenting spouses a lot of leeway for weirdness.

 

[Mintaka]

There has never been any law against old folks getting married. Some of the Church Fathers disapprove of old widowed folks having second marriages, but that is about it.

Seeing as Sarah “was past her courses” when Isaac came along, the argument from tradition is very strong.

 

[acanonlawyer]

Pot-A-to, Pot-AH-to.

The distinction between “not wanting” and “wanting not”, which is what @chevalier is talking about, is very important in the question of simulated consent. Simulation is an active will which wants not. As the law says, it is a “positive act of the will” that excludes marriage itself or some essential property/element of marriage (canon 1101.2). A “not wanting” is insufficient since it is, literally and actually, no act of the will.

Dan