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

[chevalier]

Hi. I’m just a secular lawyer with some study and long-term interest in marriage-validity litigation under canon law. I read stuff, articles, Rota judgments and so on, not just my own interpretation of the Code, but here I need someone who can pack more professional punch.

Here’s the facts: The woman of the couple would risk serious complications in case of any pregnancy. Or (diff. couple) one of the nupturients has a genetically transmitted disease. Consequently, their intention is squarely to have zero children. However, they reject artificial birth control and abortion. They would only be using NFP to calculate infertile days and only ever have intercourse on those days, calculated rigorously with no margin for pregnancy.

Hence, the conjugal act capable by its nature of the generation of offspring could be argued to be present, simply because any artificial barriers are absent. (Which I view as a mere technicality that’s besides the point.)

However, my reasoning is that no matter the reason, good or bad, justifiable or not, the intention of zero generation of children, even if NFP is the means, means exclusion of orientation to generation of offspring, which is what this is all about. Consequently, the couple, however much empathy their position evokes, are still in fact excluding the bonum prolis. (To me, totally and rigorously excluding the end necessarily means excluding also the orientation to that end. And obviously empathy has no bearing on the objective presence or absence of the essence of matrimony.)

However, some non-lawyer priests (vs me non-priest lawyer and not a proper canonist either) are arguing that the orientation to generation of offspring is not in fact excluded and the couple do remain open, since all they are doing is justifiable use of NFP for the avoidance of any more children, starting from a point of 0. (Going back to the technicality that mere allowance of unprotected sex is supposed to prevent exclusio boni prolis, even when the intention is precisely to have zero children if at all doable through rigorous use of NFP. The couple do claim they accept neither ABC to improve their success rate, nor abortion in the event of failure)

My contention is that before the marriage, this means entering into a marriage intended childless, with generation of offspring excluded by the very positive intention for it to never have place, and with that intention intended to be enforced rigorously, hence no valid marriage possible in my opinion.

Obviously no marriage possible if one party or both withhold the exchange of the right to the generation of offspring. An irrevocable prenuptial agreement to never beget any children from the parties’ sexual intercourse would in my opinion exclude not the use (the mere usus) of the right but the right itself (the ius).

Back me up or prove me wrong?

 

[chevalier]

Yes, (name removed by moderator), you are understanding correctly. However, there is a point of wording there that I believe could potentially prove hazardous to interpreting the situation correctly: ‘cannot have children’.

I would contend that the couple can have children but are choosing not to, after weighing the pros and cons.

The outcome of their assessment could be correct — i.e. that it’s better to not have children — but in my opinion that doesn’t somehow waive the requirement for the whole essence of matrimony, including the ordinatio ad generationem prolis, to be present, simply because this cannot be waived for people treated unfairly by life or deserving of compassion. For example impotents or people with invalidating psychic diseases (can. 1095.3 cases) are usually innocent of their predicament and would of course like to be cured of it, nonetheless they remain incapable of marrying. Hence even people who really can’t, even totally without their choice or fault or guilt, can still be prevented from marrying.

Hence I would not regard the ‘cannot have children’ in this case as an excuse capable of waiving the requirement; rather, it would only be a factor speaking in favour of a decision to not marry (and thus avoid what marriage necessarily entails, i.e. eventual pregnancy of a non-infertile person).

My argument is that marriage positively intended from the beginning to the end to never result in a pregnancy, with the use as NFP as the only means of achieving that, is still not possible, as in the proposed union would not in fact achieve all the elements necessary for actual marriage, as an objective fact, regardless of whatever motives, however good or bad, however compelling, may be leading the person(s) to seek such union.

Basically, therefore, my contention is that what they are seeking is not marriage, objectively, and no subjective reasons are relevant.

Kind of like if someone for a good reason cannot agree/open up to all the required elements of ordination, one is not free to go ahead and get ordained anyway, because the impossible doesn’t become possible simply because there is a desire to make it possible for some reason.

So the question probably is: can the use of NFP, and solely NFP, for the intended total avoidance of any pregnancy (because of its effects for the mother’s health) or directly intended avoidance of not even pregnancy but in fact biological children themselves (because they would inherit the disease) somehow not invalidate marriage. (And I believe it can’t.)

Sorry for the length of this, but I’m trying to achieve maximum precision here.

 

[Sugabee43]

Not a canon lawyer, or a priest, but my understanding would be that their marriage would be invalid…or for that matter, if they told the truth to their pastor beforehand, canonically speaking they should not be married at all. They would be deliberately avoiding procreation for the entirety of their marriage, which is contrary to the Sacrament of Matrimony; regardless of the how and the why. Just as someone who is rendered impotent through no fault of their own could not be married sacramentally (except in this case, the person in question is in fact able to have children but refuses to). I’m not arguing whether their reason for not having children is a legitimate concern, mind you.

 

[chevalier]

Yeah, my contention is that deciding to not have bio children because they would have a genetic disease or to not have children because pregnancy could kill the mother, excludes ordination toward procreation (the actual phrase in can. 1055.1), though it may appear to not exclude ‘openness’, that simplified figure of speech used in common parlance.

Their contention is that having a good reason/excuse for the decision means they’re not in fact closed, ergo the ordination toward the generation of offspring is not wholly absent — but to this I reply that they are not open, since they are in fact stating their reasons for not being open, hence by necessity they are closed, because it’s either/or, 0/1, nothing in between, etc.

Alternatively, they contend that acceptance of unprotected sex alone prevents exclusio boni prolis, even if NFP is always used, without any exception, with the positive, explicit goal, desire and intention to totally never have children.

I suppose if the only required formal object of the minimal sufficient ordinatio ad generationem prolis would be the having of unprotected sex on some days, then they could be technically correct (given how NFP doesn’t alter the nature of the act). In that case the willingness to carry to term any such pregnancy as could result from the failure of the method of avoidance here being NFP (which has to be regarded as qualitatively different from contraception) would be argued to be sufficient to establish at least the absolutely minimal degree of ordination toward the generation of offspring, simply by making the intended prevention less than absolute through the accepted fallibility of the method (or simply by the fact of the nature of the act remaining unchanged despite the expected and directly intended absence of the natural result, achieved by limiting intercourse to days on which that result in almost perfectly guaranteed to not happen).

… But then I argue that an irrevocable agreement to only have intercourse on non-fertile days prevents even the minimal exchange of the essential matrimonial right to make joint use of the couple’s fertility, hence it does in fact withhold fertility from the exchange. And obviously medically motivated decision to avoid pregnancy because of danger to the woman or avoid bio children because of the risk of transmitting a disease to them, is not the same as infertility, even though the parties may see it as ‘we can’t have children’, which is imprecise (should be ‘mustn’t have children’, properly speaking).

Oh, and for the record, because this may be asked: the facts presume that the other party is informed of everything and on board with the decision. For the time being. We don’t know if the other party is allowed the right to withdraw from such agreement some time later into the marriage (which irrevocability is more or less the traditional point of distinction between exclusio iuris and exclusio usus).

 

[TechieGuy]

You know - it is topics like this that make me very, very glad that I live in a nation that is governed by secular civil law and not canon law…

 

[Gorgias]

Their contention is that having a good reason/excuse for the decision means they’re not in fact closed, ergo the ordination toward the generation of offspring is not wholly absent — but to this I reply that they are not open, since they are in fact stating their reasons for not being open, hence by necessity they are closed, because it’s either/or, 0/1, nothing in between, etc.

Alternatively, they contend that acceptance of unprotected sex alone prevents exclusio boni prolis, even if NFP is always used, without any exception, with the positive, explicit goal, desire and intention to totally never have children.

OK… not a canon lawyer, either, and since Dan hasn’t yet opined…

I would agree with the couple on this point. If sex with NFP is utilized, from the beginning of the marriage, then they’ve consummated the marriage. And, if I were the one doing their pre-marital interview, I would ask the question “if it were possible for you guys to get pregnant and have a baby, without risk of harm (or death) to the mother, would you be open to procreation?” (Or, similarly, “if it were possible… without risk of transmitting a genetic disease, would you…?”)

That, to my mind, establishes that they are not excluding the good of children in their understanding of their marriage.

Remember: they don’t actually have to have children; they just have to be open to the possibility. Even if their desire – at the time of the wedding – is to use NFP throughout the marriage, that does not mean that it is the case that they will do so. As long as the intent, if it becomes a possibility, to be open to having children is present, then they’re all good.

 

[Gorgias]

You know - it is topics like this that make me very, very glad that I live in a nation that is governed by secular civil law and not canon law…

Don’t read up on secular law, then. You’ll feel the same lack of happiness if you do…

 

[OldCAFMember]

TechieGuy:

You know - it is topics like this that make me very, very glad that I live in a nation that is governed by secular civil law and not canon law…

Don’t read up on secular law, then. You’ll feel the same lack of happiness if you do…

Exactly. Especially if you are a baby in the womb.

 

[acanonlawyer]

We don’t know if the other party is allowed the right to withdraw from such agreement some time later into the marriage (which irrevocability is more or less the traditional point of distinction between exclusio iuris and exclusio usus).

I would consider this to be the point where the rubber of simulation meets the road of invalidity, or not. Uhh, forget that metaphor, even though it started off sounding great in my head. It’s been a long day.

Anyway, in a marriage, it’s not that the other Party “is allowed the right to withdraw.” When a person (validly) marries, he/she automatically and necessarily has the right to withdraw from any such agreement regarding the postponement of children, even an indefinite postponement undertaken for weighty reasons. That’s what exchanging this right means.

If the other Party responds with “no, you can’t go back on our plan–we had an agreement”, the withdrawing Party could say “actually, our agreement was to marry.” If the response comes back “No, I’m not changing my mind”, then we’ve got simulation.

I think I’ll stop there and sleep on it. It’s a worthy topic of reflection and discussion.

Dan

 

[1ke]

I’ll give you a concrete situation and how they and their priest determined they were giving valid consent while using NFP infertile periods exclusively and indefinitely. See what you think.

Wife has congenital heart defect for which she’s had multiple heart surgeries from childhood. So doctor’s orders are no pregnancies. She and her DH have approached their marriage with the reality of avoiding for the whole of their marriage and the hope that her doctor might one day clear her to become pegnant. Almost 15 years into their marriage (and after contracting Hep C from a blood transfusion a few years ago which she didn’t have when they married) it is clear the doctor is never going to give that Ok. They’ve adopted two kids during their marriage.

They would say they do not have a permanent intention against children because they always hoped her doctor would clear her one day. Others in her support group have gone on to have children so it was always a possibility no matter how small.

Her husband would never seek to exercise his right to ask for children if her doctor hasn’t cleared her.

 

[1ke]

Your opinion is not consistent with Church teaching nor their own pastor’s spiritual direction.

A married couple is free to engage in intercourse any time they choose.

 

[TheOldColonel]

The less one trusts in God’s kindness and mercy, the harder it becomes to imagine another who has sinned being its recipient. Doubting such forgiveness, the tendency then becomes to turn to law, to label, to judge, to scold, and to wish punishment upon the sinner. But Jesus came to show us mercy and to tell us to "stop judging. “love and do what you will.”

 

[acanonlawyer]

Back me up or prove me wrong?

I think your analysis of the situation, and the moral/legal principles, is solid. I don’t like to sound wishy-washy but … you could be right and you could be wrong as far as whether or not this is simulation.

As you know, consent makes marriage and so it all depends on the marital intentions of the people involved. Has either or both excluded, by a positive act of the will, an essential element of marriage (the bonum prolis)? Have they exchanged, to use the older lingo, the right to the body for the act suitable for the generation of offspring? Or, have they reserved that right to themselves?

It seems to me that the scenario, as presented, could lead to contrary answers. So, if this were to be an actual couple, they would have to be carefully examined to see whether or not their understanding of what it is they are agreeing to (i.e., marriage) is in accord with what the Church understands. Their answers to precise questions should reveal if simulation is where they are headed.

I have to get back to more run-of-the-mill nullity cases…

Dan

 

[acanonlawyer]

So doctor’s orders are no pregnancies

Doctors should always be respected, of course. Yet, if all women always followed such orders, there are quite a few people who wouldn’t be around (myself included). Thanks, mom.

Dan

 

[Gorgias]

People who use NFP do no such thing. Their marital intercourse does not prevent procreation. Therefore, it is not morally illicit.

 

[1ke]

Which a couple is not doing when they engage in intercourse in a properly ordered manner.

 

[Gorgias]

Yeah, but Dan’s point is that the interior disposition would have to be against children, as a disposition that’s permanent. No?

Therefore, unless you had evidence that this was the spouse’s (or spouses’) intent, there would be no reason to suggest they’re acting in an immoral way.

 

[1ke]

Your previous post is incorrect. You are a smart young lady, but you are not correct in this case.

At your age, scrupulous and erroneous views of marital sexuality are concerning.

You need to understand that the Church teaches that couples may use recourse to the infertile period indefinitely (HV) and they are NOT sinning. The Church does NOT teach that we must intend pregnancy to have intercourse nor that we may only have intercourse for procreation.

What the Church does teach is that each act of intercouse must be per se ordered to procreation.

 

[Elf01]

The same is true of ABC. NFP is permitted, not because of the chance of procreation, but because it does not change the conjugal act.

 

[Gorgias]

That’s the point – those instances would not be morally illicit. In fact, they would be completely in line with the reasons that NFP is morally licit!

Think of it this way: you and I get married, and, as a course of our discussions leading up to marriage, we decided that we’re going to wait some time before starting a family. So, we decide to use NFP faithfully at the outset of our marriage. Then, three years after the wedding, we decide it’s time to try to get pregnant. (We continue to use NFP, but now, we’re using it in order to p(name removed by moderator)oint fertile times.)

This is essentially the case you’re outlining, isn’t it?

Well… in this case, the use of NFP is morally licit, as are the marital relations leading up to the attempts to conceive. It is not the case that prior relations are illicit and subsequent relations are licit.