Article II: On Impotence

149. When spouses cannot have copulation of itself apt for generation, impotence is had; and if it precedes marriage and is perpetual, whether absolute and toward all, or respective and toward one or only some, it dirimently impedes marriage. The reason is that a contract cannot be valid when the thing promised will never be able to be furnished, according to the rule of law: one unable to pay is also unable to promise. It is said, if it precedes marriage and is perpetual; for it will be otherwise if impotence, even perpetual, supervenes after marriage has been validly contracted, since marriage once validly contracted is indissoluble; or if it indeed precedes marriage but is temporary, for it is not of the nature of marriage that perfect copulation can always be had, but that it can be had at some time. Yet except the impotence of impubescent age, which, as is clear, is temporary; for by ecclesiastical law it dirimently impedes marriage. By the name of puberty is designated the age at which a man and woman become apt for generation. Puberty in males is in the fourteenth year of age, but in females in the twelfth year. Sporer 525. and following.; Milne Edwards, t. 9. pp. 85-89. 100. 104. 105.

150. Note. Four cases of impotence are listed in men. The first is if they lack both testicles, or have both crushed, because they are incapable of prolific semen. The second is the perfect absence of the penis, so that not even the little extremity of the male member remains, which could at least bring semen into the exterior genital parts of the woman. The third is imperforation of the penis, or a perforation of it which reaches no interior cavity, so that human semen cannot be emitted outside. The fourth is frigidity, or such weakness of the male member, whether it arise from disease, or from a natural aversion of the other spouse, or even from malefice, that by no art and remedy can he experience erection, nor can he penetrate the feminine vessel, nor can he pour forth semen. Excessive heat also is customarily listed by the older theologians, by which the man pours forth semen so prematurely that he cannot wait for conjugal copulation itself; this indeed can very rarely constitute a true diriment impediment. For if, approaching the first time, he cannot do this, it is very difficult that, attempting copulation a second and third time, he would be unable to complete the act.

But three cases chiefly of perpetual impotence in women are listed: first, the absence of both ovaries; second, the absence of the uterus and vagina; third, perfect obliteration of the uterus and vagina. But generally that impotence is judged perpetual which cannot be removed without a miracle, or sin, or danger to life; hence although such impotence is removed, the marriage nevertheless was null and therefore must be repeated. Debreyne, l. c. Sect. 1.; Milne Edwards, t. 8. p. 383.; t. 9. p. 21., etc.; Sanchez, de Matr. l. 7. D. 92. n. 1. 7.; Reiffenstuel, L. 4. Decret. Tit. 15. n. 3.

There are several modern authors who hold that perfect absence of the uterus and ovaries, as well as occlusion of the vagina, does not constitute the impediment of impotence in a woman. They rely chiefly on the fact that marriage is also for the remedy of concupiscence. Certainly for the remedy of concupiscence, but nature first already presupposes marriage, which is principally and essentially for generation. For in what other thing is that remedy to be sought, except in marriage? Is it to be sought otherwise than by the conjugal act? Therefore marriage is presupposed, and consequently the natural power for marriage, which by its nature is instituted for generation.

Nor truly does it avail to say that power for coiting suffices and not also power for generating offspring; for this must be proved. Coitus is not the end of marriage, but the natural means to its essential end, namely generation. And if impotence for generation were on the part of the woman, then equality would be lacking in the contract of marriage; for the man would hand over that power, but the woman in turn would not be able to hand it over. Eminent Cardinal Gasparri, in his Tr. de Matr., Paris, 1891., vol. 1. p. 119. num. 205., explaining the definition of marriage, excellently says: "The companionship of life signifies in the first place a mutual right, with relative obligation, over the body of the other in order to generate and educate offspring, or THE RIGHT OF COITING, as they say.... Therefore marriage brings to each party an exclusive and perpetual right, with relative obligation, over the body of the other in order to generate and educate offspring." And if marriage is valid with a woman impotent for generation, why then is marriage not also valid with a man impotent for generation, with a eunuch, with a castrated man? For these could use marriage well, not indeed for generation, but for the remedy of concupiscence, for taking pleasure. But it is objected: they cannot take the greatest and full pleasure from marriage. But is pleasure the end of marriage? And if they cannot take full pleasure, nevertheless they take as much as they can take, and this fully suffices for them as a remedy of concupiscence, if, for there to be marriage, it suffices, as they say, that it be for restraining, or rather satisfying, concupiscence. Castration, or the removal of both testicles, brings perpetual inability for generation, but by no means inability for copulation, nor does it carry with it the absence of venereal sense.

Lastly, there are indeed several modern authors who oppose the common opinion of the ancient doctors, but there are also several modern doctors who still hold it and support it by reasons.

R. P. Lehmkuhl, in his very recent Compendium Theol. Mor., year 1907, num. 1019., defines marriage as: "The individual association of male and female, BY WHICH THEY ARE MUTUALLY COMPLETED for constituting by right ONE PRINCIPLE OF GENERATION." And num. 1052 he says that impotence "renders one incapable of consummated copulation, or copulation of itself apt for generating.... Sterility is distinguished from impotence; it supposes the possibility of copulation, but offspring is not generated because, whether on the part of the male semen or on the part of the woman, something stands in the way so that the male semen may not fecundate THE MATERNAL EGG." And num. 1054 he says: "Whether she who lacks both ovaries or even the uterus is judged impotent is disputed. The Holy Office, indeed, having been asked whether a woman rendered sterile by the defect of both excised ovaries can and lawfully may be permitted to enter marriage, on February 3, 1887, responded: Having considered the matter maturely and for a long time, that the marriage of the woman in the case should not be impeded. It answered the same on July 30, 1890, concerning excised ovaries and uterus. But in those cases there was no certainty about complete excision, nor about absolute impossibility of conceiving."

"If a woman," says Noldin, ed. 2, 1908, de Matr. n. 577., "lacks both ovaries or the uterus, impotence is had. Today indeed many theologians think that the woman who lacks both ovaries or the uterus is not impotent, but sterile. Namely, they define impotence not as inability for generating, but as inability for coiting. But theoretically the opinion once common seems altogether to have to be retained, because according to the mind of the authors it seems certain that impotence is present where there is inability for copulation of itself apt for generation. Nevertheless, since doctors dispute among themselves whether marriage entered with a woman lacking ovaries is valid, and ecclesiastical authority has not yet defined this question, the Holy See recently still declared that practically it did not seem opportune to institute a process for declaring the nullity of a marriage from defect of ovaries in a woman. Holy Office, December 10, 1905."

It was declared to me myself by His Eminence Cardinal Parocchi, Secretary of the Holy Office, that the responses given refer only to particular cases, and suppose that generation could still of itself follow in those cases. It is indeed certain that pregnancy has sometimes been had after the ovaries were removed, because according to the operative method employed, namely the operation performed through the vagina, the removal was not certainly total, or, if total, there was a supplementary ovary. Antonelli, v. p. 148. 154. 155. His Eminence Cardinal Aloisi Masella, Pro-Datary, adhered to the same opinion by unanimous judgment of the Congress. And recently His Eminence Cardinal Di Pietro, now Datary, on May 18, 1908, when a dispensation was sought from the impediment of consanguinity in the first degree mixed with the second of the collateral line, by the unanimous judgment also of the Congress ordered that it be answered negatively, because this cause was adduced: "The physical infirmity of the petitioner, who has undergone a surgical operation by which she is rendered incapable of conceiving." Cf. Institutiones Morales, ed. 5. n. 994. 995.; Appendix n. 958.; Cas. Consc. ed. 5. vol. 2. n. 146.

Nevertheless, since the genital apparatus of the man is wholly apparent and sensible, while the genital apparatus of the woman is only in part apparent and sensible, perhaps from the very institution of nature, by this constitution of nature itself, God permits marital copulation without further and more intimate inquiry being made concerning the intrinsic force of that copulation in order to generation. And it is not to be doubted that several women who enter marriage and who are afterward found sterile are perhaps sterile because they are impotent, their impotence remaining hidden. From this it easily follows that marriage in cases of this kind is not to be impeded. And, since the Supreme Pontiff can well declare doubts pertaining to natural law, he will certainly be able to declare even such a doubt, if he himself judges it necessary and opportune.

151. Corollaries. 1. Those who lack only one testicle are not impotent, because they can penetrate and emit prolific semen. 2. Generally speaking, old men are not to be held impotent, since even in advanced age they can both penetrate and pour forth semen, as is clear concerning several who at the age of eighty, ninety, and even one hundred years have begotten offspring. And it is lawful for them to come together, although sometimes semen is poured forth by accident. L. 954. 1067. Cf. here n. 136. 3. Sterile women are not impotent, because although they do not conceive, nevertheless they can perform an act of itself apt for generation. For they can be penetrated through marital congress and receive male semen. But that generation does not follow is by accident. Sterility can never be held as absolute and perpetual. A woman can be sterile for several years and afterward become fertile, Debreyne, p. 281. Therefore sterility is only in a certain accidental impediment to generation, whether on the part of the man or on the part of the woman. St. Colette V was born from a sterile and sexagenarian mother. Moreover sterility properly so-called, insofar namely as it differs from impotence, is situated in this: that either the male semen, or the ovule, or both fail for a time, or do not come to due maturity, or other physical conditions are lacking by which both the ovule and the male sperm may arrive at due contact; and thus generation is frustrated. Cf. Milne Edwards, T. 8. pp. 359. 360. 383.; t. 9. pp. 114. 115. etc.; Antonelli, V. 2. p. 155. and following. 4. Women who bring forth fetuses only dead, or only with danger to their own life, are not considered impotent; for in reality they generate. 5. Those about to die shortly are not impotent, because their impotence is only accidental and extrinsic, and regards only the use of the thing, not the power of using. Laymann, l. 5. Tr. 10. p. 4. c. 11. n. 6.

152. Does the narrowness of a woman, by which she cannot be penetrated by a man, constitute impotence?

Resp. There are not lacking those who deny it. For, to have power for marriage, power simply for generation suffices. But it is now known that a woman can conceive when the semen of the man is poured forth near the vagina. For the smallest quantity of semen can suffice for generation, and because of the attractive force which is present in the genital parts of the woman, it can reach all the way to the uterus. And indeed only by the commixture of seeds do spouses become one flesh. But hence, according to the aforesaid opinion, the question which was raised by theologians concerning this narrowness of the woman seems no longer to have place: namely, whether a wife unfit for copulation because of narrowness is bound to suffer incision with danger of grave disease. Physicians note, however, that incision is done in vain, because after the wound has healed the narrowness returns; and other means are now used to correct that narrowness by art, which in no way display danger of grave disease. Debreyne, l. c. Sect. 2.

But others more commonly affirm, and it seems it must be affirmed. For the power for marriage is the natural power for generating by natural copulation. The power for generating without copulation is not according to the order of nature. Therefore generation without copulation is had by accident. St. Alphonsus, l. 6. n. 1097., judges that marriage is null if the woman could not be made capable except by a grave and dangerous incision. And n. 1099. he says: "The very common and more probable opinion ... says that the woman is bound to suffer incision even with grave trouble and pain, but not with danger either of death or of grave disease ... because a woman is never judged to have wished to oblige herself to endure so great a danger, nor by force of the contract of marriage does she seem to be bound to such a burden. But that she is bound with grave trouble and pain to render herself apt for copulation is proved, because the woman seems to be obliged to this by force of the contract, since this is necessary for preserving the right of copulation which she transferred to the man.... But it is very probable ... that if the incision could not be done except by the hand of a surgeon, the woman is not bound to suffer this incision with so much shame, which would be a burden more than most grave." Acta S. Sedis, vol. 12. pp. 629. 630.; vol. 14. p. 68.

153. What is to be done in the case of impotence?

Resp. 1. If the impotence is certain and perpetual, and preceded the marriage, "one must by no means wait, but separation must immediately be made; for in that case the marriage is certainly null.... Hence, once certain and perpetual impotence is known, the spouses can immediately be separated, even by their own authority, if this can be done without scandal; indeed they are bound, if there is danger of incontinence. And the party not laboring under the impediment can also pass to other nuptials, as Sanchez and the Salmanticenses say with Candidus. But if there is danger of scandal, as commonly there is, then they must make complaint before the ecclesiastical judge, by whom they are to be separated, at least as to bed; and if the other should ask, even as to habitation, without awaiting the triennial experience, which is given for doubtful impotence, not for certain impotence: thus Sanchez and the Salmanticenses with Pontius, Guttierrez, and Dicastillo. And it is clear from c. Laudabilem, de Frig. etc., where: If frigidity cannot be proved, let them cohabit for three years. Therefore, if the impediment is proved, three years are not given. But if they wish to cohabit as brother and sister by mutual consent, provided the danger of incontinence is absent, this is permitted from the same text; but Merbesius rightly warns that this must never be permitted if the spouses are not old." L. 1101. "From the present discipline of the Church, it is now no longer permitted to them to cohabit as brother and sister, especially if the spouses are young, although they have not insisted on a declaration of nullity of marriage. Hence Sixtus V, by letters to the Bishop of Novara, legate of the Apostolic See in Spain, commanded that such contracting persons should not cohabit together." Scavini, Tr. 12. D. 3. C. 2. art. 5. q. 1.

2. If the impotence again is certain and perpetual, but supervenes after marriage has been validly contracted, it seems that it must then be said that all and only those acts are lawful to the spouses which of themselves do not tend to produce pollution. The reason is that the impossibility of conjugal copulation of itself apt for generation indeed renders illicit the consummation of the act from the other side, which perhaps is potent, since this consummation of the act then has the true notion of pollution; but it by no means renders illicit other incomplete acts, which remain of the same nature whether the spouses are potent or impotent. Reiffenstuel, l. 4. Decret. tit. 15. n. 65: "Spouses rendered perpetually impotent are bound to abstain from every attempt at copulation, but not likewise from touches, kisses, embraces." And Lehmkuhl, Comp. cit. num. 1055., has these words: "If the spouses were potent, whatever supervenes, the marriage is not dissolved; but if there is no longer any hope of completing the matrimonial act, they must abstain from those acts which expose either one to danger of pollution." But cf. here n. 134.

3. If the impotence is doubtful, "and the doubt precedes marriage, he who doubts about his impotence cannot enter nuptials until, after the matter has been diligently investigated, he lays aside the doubt, because of the grave injury which he would otherwise inflict on the other, who is potent, as Sanchez, Mazzotta, and Palaus rightly say with Guttierrez. But if, notwithstanding the doubt, he has contracted, he will lawfully be able to render and to ask; for then at least triennial experience is given to him.... But Dicastillo apud Croix and Elbel with Cardenas and Viva say that if someone is doubtful about his impotence because of some positive indication, he can lawfully contract marriage if, with regard to the expertise of physicians and experiences, it is at least probable that he is potent; because in doubt the presumption favors him, that he is naturally potent. And this seems sufficiently probable; for since it is most probable that it is lawful to administer a sacrament under condition if a just cause is present ..., here he has a sufficiently just cause for marrying under condition, if he is able, lest in such a doubt he be forced to remain perpetually celibate. Nevertheless before marriage he ought to warn the spouse about such a doubt. Moreover, apart from circumstances and experiences, everyone is presumed able, even if he has lived most chastely." L. 1102.

4. "But if the doubt of impotence supervenes after marriage, then triennial experience is given from the cited c. Laudabilem, de Frig. etc. While this lasts, spouses can lawfully attempt copulation, although often or always they pour forth semen outside the vessel, as Sanchez, l. IX. d. 17. n. 20., and several others commonly teach." L. 1103. "But this time, according to the truer opinion, begins from the time of attempted copulation; but it must be morally continuous, namely so that the spouses cohabit with each other for the greater part of the year." Scavini, tr. 12. D. 3. C. 2. art. 5. q. 1. Moreover Sanchez has these things in the cited place: "Where there is probable hope of seminating within the vessel, it is lawful to strive for it, although by accident and besides the intention the semen is poured outside the vessel. This is clear, first, because that spouse gives work to a lawful thing, procuring copulation possible and permitted to himself, and that external effusion follows besides the intention. Second, because by c. Laudabilem ... triennial experience is conceded to spouses doubting whether the impotence is perpetual, and therefore whether the marriage was valid; and nevertheless during that space it is clear that it will always or often happen that the semen falls outside the vessel; and while such danger stands, it is lawful to strive for copulation, and it is approved by law. Because, while that doubt remains, the spouses have the right of persevering in the marriage and of investigating that impediment, which cannot sufficiently be done unless by applying themselves to conjugal work. Therefore much more strongly in our case this will be lawful, where the validity of the marriage is certain, and consequently the spouses have a more certain and stronger right to apply themselves to conjugal copulation and to try whether that impotence of seminating within the vessel is perpetual." And n. 24 he adds these things: "Finally you will ask for how long a space of time it is lawful to strive for copulation and to make trial, where there is doubt about the aforesaid impotence? Briefly I say that this is lawful as long as there is probable hope of seminating within the vessel.... But when that probability would not be present, but, all circumstances considered, there would be complete doubt about the perpetuity of the impotence, we can prescribe no other more certain delay than that which was prescribed in c. Laudabilem, namely that triennial experience be conceded. And although in that case the discussion concerns where there is doubt about impotence preceding marriage, and consequently about its validity, whereas in the present case the marriage is certain and there is doubt only about supervening impotence; nevertheless, since in each case there is doubt about the perpetuity of impotence, in the prior case for entirely dissolving the marriage, but in the latter for dissolving it only as to copulation, by merit a lawful and sufficient experience will be taken in each case over that space of three years, whether the impotence is perpetual or temporary." Cf. here n. 136.

5. The triennial experiment is no longer required today. But a dispensation is granted from a ratified and non-consummated marriage by the Sacred Congregation for the discipline of the Sacraments, to which recourse must be had. Judgment about impotence in the external forum pertains neither to the confessor nor to the parish priest, but to the ecclesiastical judge. Cf. L. 1103. 1104. Since marriage is contracted in the face of the Church, so that because of impotence or another impediment spouses may be separated and pass to other nuptials, the nullity of the marriage must first be declared by the same Church, or a dispensation must be given concerning a marriage that is only ratified and not consummated. When antecedent perpetual impotence certainly appears, the experiment must now cease, and the marriage is to be declared null. But if even after three years the doubt persists, the marriage must be judged valid, for one must stand for the validity of the act. "In an equal doubt on either side, whether impotence preceded or followed marriage, it must be presumed in favor of marriage that it followed it. Cap. fin. de Sent. et re judic. and Cap. Si quis acceperit, 33. q. 1." Billuart, de matr. Diss. 7. art. 9. Petes 6. Cf. here n. 192.

6. If the impotence of generating is from defect of age, although the spouses have already reached the year of puberty constituted by law, which for females in Canon Law, as has already been said, is the completed twelfth year, for males the completed fourteenth, "some say that two or three years must be given to them for experiment, but more commonly they judge that one must wait in the man up to the eighteenth year and in the woman up to the fourteenth, because then nature is strong with perfect vigor, nor here does the rule of three years in c. Laudabilem, de Frig. et malef., proceed; for that proceeds when impotence arises from frigidity or another impediment, but not when it can arise from weakness of age." L. 1067. But D. Bouvier has these words, Supplem. ad Tr. de matr. quaest. 1. q. 6: "If during the time conceded for experience it happens that the parties of the lustful matter are unable to be active for a notable interval, because of a long illness or long absence, it is lawful, according to the more common opinion, to supply that time.... But where spouses have contracted marriage immediately after one has reached puberty, and are unable to consummate it, the time of probation must be computed not from the day of the contract, but from the day of full puberty, because before full puberty there is always doubt whether the impotence arises from a perpetual cause, or rather from weakness of strength. Thus Sanchez, l. 7. D. 110. n. 10.; Collet; Andeg.; Pontas; Collet, etc. But the age of perfect puberty is fourteen years for females and eighteen for males."

154. Note. "Where a woman could not retain within the vessel the semen received, but would altogether expel it, and no hope of retaining it remained ... I judge that the use of marriage must in no way be forbidden, because often the womb retains the semen necessary for generation, the superfluous being expelled." Sanchez, l. 9. d. 17. n. 22. 23.

155. Are there truly hermaphrodites?

Resp. Debreyne denies it, saying that hermaphroditism is not given except as apparent from some defect of organization; but one determinate sex really always prevails, in which case marriage will be possible; or that no determinate sex capable of generation exists, although there is coexistence of the organs of male and female, and then by reason of impotence marriage is impossible. 2. P., Ch. 1. Sect. 1. at the end. But according to Milne Edwards, not only apparent hermaphroditism is possible, but also the coexistence of organs of male and female, Tom. 9., pp. 80. 81. 23.; Tom. 8., p. 369. But where the coexistence of organs of male and female is had, although perhaps in some case marriage could still be possible, nevertheless it is impossible that one and the same individual himself alone should be naturally fecundated and generate. Antonelli, l. c. v. 1. c. 20. Cf. here following n.

156. Can a hermaphrodite validly receive orders, be professed in a religious order, and enter marriage?

Resp. If the feminine sex prevails in him, he is considered a woman, and cannot validly receive orders, be professed in a religious order of men, and take a wife, just as any other woman could not; but he can validly be professed in a monastery of nuns and marry a man.

If the male sex prevails in him, he is considered a man, and cannot validly be professed in a monastery of nuns or marry a man, just as any other man; but he can validly receive orders, although not lawfully because of an irregularity imposed by positive law, be professed in a monastery of men, and marry a woman.

If neither sex prevails, but each appears equal after examinations and the testimonies of physicians or of experienced matrons, Antonelli judges that the hermaphrodite cannot then enter marriage, v. 2. p. 168. n. 322. But the doctrine of the ancients is that he himself ought to determine which sex he wishes to use, and to promise by oath that he will not use the other sex; and then he can, according to the sex chosen by himself, contract marriage; for he is capable of it. Nevertheless he will not be able validly to receive orders, for he is truly a woman; which doctors also extend to profession in religion, whether of men or of women, so that it too would be invalid. For since there is grave indecency and danger of grave abuses, it must be believed that the Church does not admit such a profession. Lugo, Resp. mor. l. 1. d. 31.; Sanchez, de matr. l. VII. disp. 106.; and Cons. mor. l. 7. c. 3. dub. 31.; La-Croix, l. IV. n. 23.; L. 784. 1095.

157. Can a hermaphrodite, in whom the male sex prevailed and who was validly ordained and professed religion, or accepted a wife in marriage, if afterward the female sex prevails, validly celebrate, and does the bond of religious profession or of marriage endure?

Resp. Negatively. The first reason is that, although the sacramental character remains in the soul, nevertheless, since the use of sacerdotal power must be exercised not by the soul alone, but by the soul informing the body, and, in order to be valid, by the soul informing a male body, since the body is now female, that use will be invalid; and thus, although by force of the character sacerdotal power remains in the soul, because of an invalidating impediment existing on the part of the body, its use becomes null. The second reason is that religious profession, both on the part of the one professing and on the part of the one accepting, was the profession of a man; when the subject of the profession is destroyed, the very bond arising from that profession is destroyed; and thus such a person is not bound to enter a monastery of nuns. The third reason is the same, because the matrimonial bond is not a bond of just any persons whatever, but of male and female; therefore, when the bound subject perishes, the bond perishes.

But the same is to be said proportionately about the hermaphrodite in whom the female sex first prevailed, and afterward the male sex began to prevail, both as to marriage and as to religious profession. Lugo, Resp. mor. l. c. d. 31.; Billuart, de Matr. Diss. 7. art. 9. Colliges 5.