A. Presentation of the Opinions

58. - The distinction received formerly and today. To begin from the common judgment of the present and preceding age, from antiquity even to our own day a twofold impotence of the sexual order is distinguished: impotence for intercourse and impotence for generation. Hence a grave suspicion of falsity falls upon the opinion which abolishes this distinction or preserves it only apparently.

Come now, the impotence which obstructs a valid marriage is called, in law and by the best authors, impotence for intercourse; and the name impotence is more properly reserved for it.

Thus it is done in all the chapters of C. XXXIII, q. 1, of the Decree of Gratian, which, moreover, in its dicta, inquires into the impossibility of the office, that is, of rendering the debt. Thus also in the chapters of title XV of the fourth book of the Decretals, which is inscribed Concerning the Frigid, the Bewitched, and Impotence for Intercourse. In the other books of the Corpus of Law, however, the argument is no longer touched upon.

Now to call upon the authors, Tancred, in his celebrated Summa de matrimonio, has this: "Among the other impediments of marriage, the impossibility of intercourse obtains the greatest place." The same words occur in St. Raymond, the author of the Decretals, in his Summa. St. Thomas ¹ calls the power for carnal copulation essential. "Natural impotence for intercourse," says St. Bonaventure, "if perpetual, then impedes contracting and invalidates the contract, namely, marriage... because... it is necessary to consent to mutual power over the bodies; but this consent is null, nor is there such an obligation in one who does not have the power to exercise that act" ².

¹ Supplementum, III, q. 58, art. 1.

² In IV Sent., art. 2, q. 1, conclusion and ad 1.

"The twelfth impediment," says Cajetan in the Summula, "is impotence for intercourse." Laymann uses these explicit words ³: "One impotence is for generating offspring, which is called sterility; and this, if it exists alone, brings no impediment to marriage. Another, however, is impotence for carnal copulation, concerning which let this be the assertion: perpetual impotence for perfect copulation renders a subsequent marriage invalid." From contemporary authors we shall cite Feije of Louvain ⁴, who has this: "Impotence for intercourse by perfect copulation... must be distinguished from impotence for generating, or sterility: the former obstructs the validity of marriage, but the latter does not." The Most Illustrious Doctors Freisen ⁵, De Becker ⁶, and the Most Eminent Cardinal Gasparri ⁷ speak in an entirely similar manner, so that the Reverend Father Ojetti ⁸ could propose these two things as certain: "Antecedent and perpetual impotence for intercourse by the very law of nature invalidates marriage.... Impotence for generation, which is sterility, does not invalidate marriage."

³ Theol. mor., book 5, tractate 1, part 4, chapter II, no. 1.

⁴ De impedimentis, etc., no. 538.

⁵ Geschichte des Kanonischen Eherechtes, 30, 7, p. 330.

⁶ De Sponsalibus et Matrimonio, pp. 165-169.

⁷ De matrimonio, no. 573.

⁸ Synopsis, no. 2389.

Note well. Congenital impotence for intercourse in the man is also called frigidity.

59. - Origin of the confusion and obscurity. Roman law granted marriage to the spado, or to him who was incapable of copulation through natural infirmity, but denied it to him who had been castrated by the hand of men: "In the castrated man there is no marriage" (L. 23, 1, D. 23, 3; compare l. 26, D. 28, 2; l. 14, D. 4, 2).

Thus it came about that, concerning those who lacked both testicles, it was disputed in the Church herself whether or not they could contract a valid marriage. Ledesma ⁹ reports this controversy, which Sixtus V resolved by the celebrated motu proprio Quod frequenter, June 27, 1587, to the Apostolic Nuncio in the kingdoms of Spain, in which he at the same time relates that there were several eunuchs who, "boasting that they were capable of intercourse, had celebrated nuptials." The Pontiff then commands not only that those marriages be prohibited in the future, but also that those previously contracted be declared null; which appears to disclose quite clearly a conviction of nullity from the law of nature.

⁹ De magno sacramento matrimonii, q. 58, art. 1.

In order to take away from eunuchs the argument which they had drawn from the customary definition of impotence and sterility, several authors, after this act of Sixtus V, but not before it - which must be well noted - began to require, in order that marriage be valid, the power for "perfect copulation, that is, with the emission of true semen into the female vessel" ¹⁰; or even "for copulation apt for generation." Thus, for example, Gonzales Telles ¹¹ and St. Alphonsus ¹², at the place of Busembaum, where the latter says: "Marriage consists in the mutual handing over of bodies physically apt for generation."

¹⁰ Laymann, loc. cit., no. 3.

¹¹ In decret., book 4, title 15, no. 9.

¹² Book 6, tractate 6, no. 195.

Therefore, words of this sort, which are frequently employed today, take their origin from the motu proprio of Sixtus V and were employed by writers so that, by the very manner of speaking, they would exclude eunuchs from marriage.

But at the same time they introduced a new manner of understanding impotence, as though the formal reason why eunuchs cannot validly marry a wife were to be sought from their unfitness for generation.

With the matter thus conceived, this further question was consequently raised, whether or not this rule was to be transferred to the woman. In the middle of the seventeenth century Busembaum affirmed this in these words, which at the same time prudently reserved the factual supposition: "Impotence in the woman is judged to exist when she cannot emit seed, if it is true that the seed of women is required for generation." At that time the monthly production and emission of the ovule were unknown, and that abundant distillation which a woman is accustomed to experience in carnal copulation was held to be emission of seed. Concerning this emission, therefore, it was doubted whether it was required for generation or whether, as not a few judged, male semen was sufficient for generation.

This antiquated account now being omitted, at the end of the nineteenth century and in our own century the question returned under this new form: Since the furnishing of an ovule is altogether necessary for a human being to be able to generate, must not the woman who lacks ovaries, or whose ovaries have been excised, be called impotent rather than sterile? If we are not mistaken, Busembaum would have judged this to be conceded by logical necessity; and most today would have conceded it, unless the wise rescripts of the Holy See counseled a different response.

For four replies of the Holy Office exist concerning this matter. First, on February 3, 1887, and then on July 23, 1890, it declared that the marriage of a woman whose two ovaries and uterus had been removed was not to be impeded; third, on July 31, 1895, when questioned concerning a woman whose ovaries had been excised, it confirmed its former reply ¹³. Finally, in 1902, it gave a similar reply, but this was after it had asked the physician by what method he had excised the ovaries, and he had replied that their perfect absence could not be established with certainty ¹⁴.

¹³ Coll. P. F., no. 1907.

¹⁴ In Wernz, Ius Decr., vol. 4, no. 345, note 34.

Thereafter the Sacred Congregation of the Sacraments resolved a similar case in the same manner on April 2, 1909. Moreover, concerning this last case it will be helpful to note, in order to forestall an evasion, according to the testimony of the Reverend Father Ferreres ¹⁵, that, in the physician's opinion, the complete excision of the uterus and both ovaries had been indubitable in the case, and the Congregation was not concerned about that matter. Furthermore, as the Reverend Father Ferreres excellently observes ¹⁶, the fact that the matter was concluded no longer through the Holy Office, but through the Sacred Congregation of the Sacraments, and indeed in a simple "Congress," not in a plenary Congregation, demonstrates that the solution appeared plain.

¹⁵ Razón y Fe, vol. 26, no. 1, p. 101, or the pamphlet De vasectomia duplici, necnon de matrimonio mulieris excisae, nos. 253-260.

¹⁶ In the praised pamphlet, nos. 250-251.

60. - Opinions. A threefold opinion concerning impotence and sterility is proposed today.

1. Some, the stricter authors, contend that marriage is inaccessible not only to those who cannot complete copulation, but also to those, whether of the male or female sex, who, because of a physical defect of the organs, suffer from a certain and perpetual incapacity for generation. Let the Reverend Dr. Antonelli be heard, who most sharply and with many arguments defends this opinion both in separate pamphlets and in the otherwise praiseworthy book Medicina pastoralis: "Impotence is an absolute and necessary inability to obtain offspring because of the absence of organs essential to generation, or because of their atrophy, or because of any other defect which renders copulation either impossible or, by its own nature, necessarily infertile" (vol. 2, no. 537).

This opinion, at least insofar as in some application of it it excludes from marriage women who lack or have been deprived of their ovaries or uterus, has obtained not a few eminent patrons. For Bucceroni ¹⁷, the Most Illustrious Dr. Rosset ¹⁸, Santi-Leitner ¹⁹, Lehmkuhl ²⁰, Noldin ²¹, and Wernz ²² can be cited for it; yet canonists or theologians no less approved contradict them: Eschbach ²³; the Most Eminent Cardinal Gasparri ²⁴; D'Annibale ²⁵; Laurentius ²⁶; Sebastianelli ²⁷; De Smet ²⁸.

¹⁷ Institutiones Theol. mor., vol. 4, no. 958, with the note on pp. 487-490.

¹⁸ De matrimonio, vol. 3, no. 1408 ff.

¹⁹ Prael. iur. can., book 4, title 15, no. 1, note.

²⁰ Theol. mor., vol. 2, no. 975.

²¹ De Sacramentis, no. 577.

²² Ius Decr., book 4, no. 345, note 34.

²³ Disp. phys. theol., disputation 2, part 2, chapter 3, De novo quodam sterilitatis conceptu.

²⁴ De Matrimonio, nos. 510-515.

²⁵ Summula, vol. 3, no. 413, note 9.

²⁶ Instit. iur. can., no. 619.

²⁷ Prael. iur. can. De Rebus, no. 65.

²⁸ De Sponsalibus et Matrimonio, no. 278.

It is defended especially by these arguments:

1. Matrimony and human intercourse have an essential order toward generation, which order cannot be present in the proposed case.

2. For a valid marriage, copulation of itself apt for generation is required. But copulation with a woman who lacks ovaries or a uterus is unfit for generation.

3. No less is required on the part of the woman than on the part of the man. But the man, in order to be potent, must make a true semination. Therefore the woman, in order to be potent, must be able through her ovule to contribute to the commingling of the bloods.

4. There must be submitted to the consent of the contracting parties an object which can at least be presumed substantially apt for generation. But a woman without a uterus or ovaries is not such. Therefore.

5. If these marriages were permitted, excisions would be performed deliberately so that a marriage immune from the danger of offspring might be contracted; nor would there any longer appear to be a reason why congresses against nature should be prohibited (thus Dr. Antonelli, De conceptu impotentiae, pp. 110-111).

6. The Sacred Congregation of the Council four times declared invalid the marriage of a woman who had been deprived of her uterus: in the Salernitana, August 9, 1862-March 21 and June 27, 1863; in the Verulana, January 24-June 22, 1871; in the Albinganensi, August 17-September 7, 1895; in the Monasteriensi, March 18-December 16, 1899. (Compare Thesaurus Resolutionum S. C. Concilii, vols. 121, 122, 130, 154, 158.) "These decisions," says Wernz ²⁹, "of themselves have greater authority, since they are not rendered by the Cardinals unless certain proofs of the facts and of the law, whether canonical or divine, have first been obtained."

²⁹ Loc. cit.

Nevertheless, omitting for the present the direct and intrinsic argument which will be proposed below, it seems that this opinion must already be departed from because of reasons drawn from without. For:

1. It corrupts the formal rationale of the impediment of impotence received for centuries. The classical authors carefully distinguished impotence for generation from impotence for intercourse; they said that the latter, but not the former, obstructed validity. "A woman," says St. Bonaventure ³⁰, "cannot be separated from her husband because of a defect of the power for generation, but of the power for intercourse." In vain, moreover, does one have recourse to later authors to explain these words, especially to Pichler ³¹, who, living at the close of the seventeenth century, especially since writers, because of the decree of Sixtus V, had adopted a new mode of speaking, as we noted above. But the opinion under criticism recognizes the true root of the diriment impediment not only in the incapacity to perform the act which of itself is ordered toward generation, but in the very inability to generate. Compare the definition of Dr. Antonelli given above. And although others, for example Wernz, retain the classical definition, nevertheless in reality they place in unfitness for generation the formal cause why an excised woman is to be called impotent.

³⁰ In IV Sent., dist. 34, dub. 2, concerning the letter of the Master.

³¹ The renowned Antonelli does this in Pro conceptu impotentiae, etc., no. 31.

2. In order to avoid certain consequences of this opinion, the notion of presumption must be perverted. For, lest they be compelled to declare impotent a woman who is more than fifty years old, the patrons of this opinion take refuge in a presumption of capacity for generation, by which a woman of every age would be permitted to enter marriage without any other proof.

But, since what is at issue here is not an arbitrary presumption of positive law, but a natural one, that must be presumed which is generally or of itself the case. Now from about the age of forty-five there occurs a process of involution which ends in the natural atrophy or inactivity of the ovaries (compare no. 56). Hence in the year 1885, in the whole city of Berlin, not even one woman could be found who had married at fifty years of age and either had or had had offspring ³². Is not the natural presumption, therefore, against potency; and consequently would not the potency for generation (if it were necessary for the validity of marriage) have to be demonstrated, just as, under the law before the Code, those below puberty, in order to marry validly, had to prove the maturity which supplied for age? "In these women," as the Reverend Father Ojetti writes most excellently ³³, "impotence ought to be presumed; wherefore, in order to permit the marriage of these women, it ought to be proved that the presumption does not hold in the case."

³² Compare Moll, Handbuch, etc.

³³ Synopsis, no. 2417.

Nor can recourse be had to doubtful impotence, with which marriage is permitted. For, in order that one who doubts may lawfully contract, an inquiry intended to remove the doubt must have preceded, which demonstrates him to be at least probably fit. "He who doubts concerning his impotence cannot enter marriage before he has diligently investigated the matter and has at least probably laid aside the doubt." Thus St. Alphonsus, book 6, no. 902. But nothing of this kind is demanded even of a sixty-year-old woman.

Will you say with a certain author that the impotence of an old woman is accidental? Rather, it is to be called natural in the highest degree, while it is more accidental that a woman be deprived of her ovaries. And to what purpose is this distinction here? She who is impotent accidentally is accidentally unable to enter marriage.

Moreover, what of the fact that, from Holy Scripture itself, the conception of an aged wife, although miraculous, is held out in these most familiar words of the Angel: "And behold Elizabeth, thy kinswoman, she also hath conceived a son in her old age; and this is the sixth month with her that is called barren, because no word shall be impossible with God" ³⁴?

³⁴ Gospel of St. Luke 1:36.

3. While a certain impotence essential to marriage endures, copulation would logically have to be prohibited, as Bucceroni concludes ³⁵. But during pregnancy, impotence for a new generation is morally certain. Therefore, during pregnancy, the use of marriage would logically have to be prohibited by the patrons of this opinion; yet no one has previously prohibited it. Palmieri admits the consequence ³⁶.

³⁵ Institutiones theol. mor., vol. 4, no. 1065.

³⁶ Opus theol., vol. 6, no. 865, note.

Note well. In a moral matter, a slight doubt is disregarded. Hence even the death of a former spouse must be established only morally.

4. This opinion seems capable of being reconciled only with difficulty with the five replies of the Holy See cited above.

The evasions that have been attempted instead generate a presumption contrary to that same opinion.

For some say that the reply was given in this way because, since the cause had not yet been decided, the Holy Office judged that the impediment was only probable. "If it is sufficiently probable that a diriment impediment does not exist, it is not established that a woman does something prohibited by divine and natural law if she enters and uses marriage; but if it is not established, it will be lawful for her to enter marriage." In the work De mulieris excisae impotentia (appendix), Antonelli borrows these words from Father Lehmkuhl, written in an article in the Ecclesiastical Review, 1902.

Let this explanation pass. For although Palmieri ³⁷, with several others and with Father Lehmkuhl himself in his Moral Theology ³⁸, wrote: "If that which is doubtful is an impediment of natural or divine law, it is clear that it is not lawful to contract with such a doubt; for the marriage would always remain doubtful, nor could the spouses in good faith ask for and render the debt; and the sacrament would be exposed to the danger of nullity"; although several affirmed that this held for doubtful impotence (compare Rosset, no. 1437), nevertheless in canon 1068 of the new Code the opinion prevailed which then permits marriage. For the sacraments are for men, and the common good requires that men not be compelled, without evident necessity, unwillingly and without a voluntary cause, to observe perpetual continence. But those who reply in this way at the same time admit that the opinion opposed to them appeared solidly probable; and that the decisions of the Sacred Congregation of the Council which they themselves adduce are ineffective for their own opinion.

³⁷ Opus theol., vol. 6, no. 600. Compare also St. Alphonsus, book 6, no. 902.

³⁸ Vol. 2, no. 956.

Note well. When it is a question of impotence whose fact is doubtful and otherwise incapable of resolution, this other rationale can be adduced for permitting the marriage, after the other party has been warned: for then the very experience of marriage becomes a means of resolving the doubt. Compare also Rosset, no. 3037.

Others reply: The answer was given in this way because it was not altogether established that the ovaries had been completely excised. By this reply the patrons of this opinion again abandon received principles and customary rules in a remarkable manner. For the potency essential to marriage must be at least probably present ³⁹; an impediment is not doubtful unless the doubt is prudent ⁴⁰, unless there is good reason to doubt ⁴¹.

³⁹ St. Alphonsus, loc. cit.

⁴⁰ Wernz, Ius Decretalium, book 4, no. 216, VIII.

⁴¹ Ballerini-Palmieri, vol. 6, no. 887.

Moreover, the moral law is constant, which St. Alphonsus recalls in the place cited and in the question of impotence, that doubt obliges one to investigation, to diligent examination.

Come now, in the five cases resolved, the Holy Office asked about the manner of the operation only once; and it was content with the simple assertion of one physician. Therefore, unless you say that the accepted rules of prudence were neglected by the Sacred Congregation, it cannot be that, because of a doubt of fact not seriously examined, it decided these most grave causes. Furthermore, in the last case proposed, according to Father Ferreres, who adduces the authentic letter of the physician-surgeon, the total removal of the uterus and of both ovaries was certain.

But the arguments which they adduce to defend this opinion are not so difficult to answer.

To 1. When they say that matrimony and copulation have from nature an essential order toward generation, they speak either of the institution of matrimony or of the marriages which follow upon the institution. If they speak of the institution, it can be conceded that the order toward generation is essential to such a degree that without that relation matrimony would not have been instituted; although, in Genesis itself, Eve is read to have been given to Adam more as a helper than as the future mother of offspring (compare Genesis 2:18).

Yet this end is not the only one, although it remains the principal one. But if it is a question of individual marriages, I deny that this order is essential otherwise than in its own material beginning, which is present in every copulation performed according to nature. By the material beginning of generation I mean copulation precisely considered, abstracting from the further relation which it has of itself, but not always, toward generation. But because, besides the primary end, there are other ends of matrimony, copulation, when a further relation toward generation is lacking, terminates honorably in some secondary end. This cannot be denied unless you prove that the primary end of matrimony is such that it must be obtained or sought in each of its particular applications. But no one contends this, for it would utterly overthrow the received conclusions concerning the use of marriage. They will indeed insist that the primary end must at least be possible. But why, in the individual applications, must an end be possible which is not to be obtained or sought in each one? On this matter we await an effective proof, which is lacking.

And the different manner in which the ancient authors solve the difficulty drawn from the marriage which the aged can contract demonstrates that they in no way patronize the opinions of the more recent authors.

In order to permit marriage to the aged, the more recent authors appeal to rare cases of fecundity, and then discuss presumed capacity for generation and doubtful incapacity in the manner we rejected above.

The ancient authors, on the contrary, St. Thomas and St. Bonaventure, simply admit this incapacity of the aged. To the aged, as St. Thomas says, "marriage is granted insofar as it is a remedy, although it is not competent to them insofar as it is in the service of nature" ⁴². "To that which is objected concerning the good of offspring, that matrimony was instituted on account of this, it must be said that it was instituted not only on account of this, but also as a remedy and as a sign; and therefore, although this good is not present there, other goods can nevertheless be present" ⁴³. By these words St. Bonaventure proposes the matter to us more fully and more according to truth. The other goods which are present in marriage are honest ends of marriage. And first of all, even if consideration of concupiscence is excluded, there occurs that mutual completion and assistance which spouses find in their union, by which Christians also signify the union of Christ with the Church. Moreover, by the very use of marriage that love is strengthened.

⁴² Supplementum, III, q. 58, art. 1, ad 3.

⁴³ In IV Sent., dist. 31, art. 1, q. 3, at the end. Furthermore, it is in vain that Dr. Antonelli objects that the remedy of concupiscence is not a natural good of matrimony, since it would not have existed without original sin. It is in vain, I say, both because it would have existed in the state of unelevated nature, and because it is enough that it is now truly present in matrimony, and because even without fecundity there remains in every state of nature a good connected with matrimony, namely, the good of union and mutual perfection.

That regard must be had only for the potency for intercourse is proved also by the interpretation, proposed by St. Thomas ⁴⁴ and St. Bonaventure ⁴⁵ and received by the Gloss, of the woman's words: "I wish to be a mother, I wish to procreate children," which are read both in chapter Requisisti, 2, C. XXXIII, q. 1, and in chapter Accepisti, 1, Concerning the Frigid, etc. (IV, 15). According to them, the woman, because of modesty, used these words to signify this: "I wish to be known by a man." "For a woman," says St. Bonaventure, "cannot be separated from her husband because of a defect of the power for generation, but of the power for intercourse."

⁴⁴ In IV Sent., dist. 34, in the exposition of the text.

⁴⁵ Ibid., in dub. 2.

To 2. The formula by which copulation of itself apt for generation is required would create a difficulty unless, as we noted above, it were explained historically by the intention of denying marriage to eunuchs after the decree of Sixtus V. On that occasion, and for this end, the words "of itself apt for generation" were added. Therefore, they cannot be proposed as though they contained a general principle for arguing in this matter. Compare also the Reverend Father Ojetti, Synopsis, no. 2395. Besides, since ovulation is not part of copulation, it can be answered, in an argument ad hominem, that even with an excised woman copulation itself remains of itself apt for generation, while generation is prevented only by the subsequent defect of ovulation.

To the third difficulty, by which a certain parallelism between the man and the woman is urged, we observe that, in our explanation of the decree of Sixtus V, the parity of the man and the woman can be conceded or passed over. For we call eunuchs impotent because they do not possess a perpetual faculty for copulation.

But those who, with the more common opinion, require semination strictly so called on the part of the man experience some difficulty here. The adversaries seem to speak more consistently when they demand from each party the things essential to generation. Yet it can be answered to them that the proof of the major, "No less is required on the part of the woman than on the part of the man," is lacking, especially since the man and the woman intervene in different ways, and only the intervention of the man affects copulation itself, for the sake of which the mutual handing over of the spouses is made.

To 4. I deny the necessity of an object which can be presumed substantially apt for generation, and consequently I deny the major, unless by that aptitude you understand the aptitude possessed by anyone who can exercise copulation. The difficulty would prove too much, since aptitude for generation can no longer be presumed in a woman who has passed fifty years of age.

To 5. Nature has prevented frequent malicious mutilation, as the Reverend Father Ojetti also observes, no. 2424, both by the grave prohibition of that mutilation and by the sufficiently common horror of the scalpel. Furthermore, this abuse is less to be feared before marriage than after marriage has been contracted ⁴⁶. But once legitimate nuptials have been celebrated, most of our adversaries permit the use of marriage to an excised woman.

⁴⁶ That is, when a physician forbids the use of marriage because of the dangers of childbirth, the spouses and the physician are then tempted by the plan of preparing harmless copulations by the removal of the ovaries. We know that this has in fact been done more than once.

The reason, moreover, why even then "congresses against nature" are prohibited is precisely that they are contrary to nature. As will be explained more fully later, we must be less solicitous about the end than about preserving the order of nature. The rightly performed copulation of those who cannot generate preserves, as the Reverend Dr. De Smet says ⁴⁷, its objective ordination toward the end insofar as it is an act which is generically ordered toward that end, although it is not ordered in the individual case; and, even in the individual case, it preserves an order toward the secondary ends: copulation is a conjugal act ⁴⁸.

⁴⁷ De sponsalibus, etc., no. 278.

⁴⁸ Ojetti, Synopsis, no. 2411.

Whether, moreover, by this difficulty, which contends that this permission would be pernicious, sufficient regard has been had for reverence toward the Holy See, which has now granted it five times, let others see.

To 6. The decisions of the Sacred Congregation of the Council which are adduced are only apparently contrary to the recent replies of the Holy Office and the Sacred Congregation of the Sacraments. For in the four cases the woman was deprived also of the uterus. Hence they have no bearing on a woman in whom only the ovaries are lacking. Furthermore, in the first cause (Salernitana) the vagina itself was absent; in the second (Verulana) the vagina was too short and very hard and was closed by an imperforate membrane; in the third (Albinganensi) the greatest part of the vagina had been destroyed; in the fourth (Monasteriensi) the vagina was abnormal and insufficient for completing coitus. The decisions of nullity can therefore be readily explained by the very defects of the vagina, which is necessary for copulation. Compare Ferreres, De vasectomia duplici, necnon de matrimonio mulieris excisae, nos. 269-273.

Note well. In the pamphlet De mulieris excisae impotentia, p. 162, Dr. Antonelli notes that the copulation itself of a woman who lacks a uterus is only imperfect. This rationale could be a more serious ground for doubting the potency of a woman from whom not only the ovaries but even the uterus itself has been removed. Nevertheless, frigidity in the woman during copulation does not impede even the consummation itself of matrimony. And already in antiquity it was written: "The frigidity which makes a man impotent would not make a woman impotent" ⁴⁹.

⁴⁹ Ferreres, op. cit., nos. 209 and 240.

2. The patrons of the other opinion contend that, besides the faculty for copulation of itself apt for generation, no other potency is essential.

And they indeed formally preserve the rationale of the impediment of impotence as it has been proposed for several centuries in the Church, and they agree perfectly in their statement with the replies of the Holy See. Furthermore, since the woman's ovulation is altogether distinct and independent from copulation, they easily show also how, in an excised woman, provided she possesses a vagina, copulation of itself apt for generation can be had.

Yet do they seem to speak very consistently when they require copulation of itself apt for generation and dispense the woman from possessing ovules which are no less necessary for generation than male sperm? We very much doubt it. On the contrary, when two elements are required for generation, it seems that either both or neither must be required for the validity of marriage. Why, finally, should manifest impotence for generation have been an impediment to matrimony only in the man? This is objected, not without reason, against the other opinion on the basis of the former opinion, which thus seems more consistent with itself. They reply indeed that there is this difference between the man and the woman: the man's impotence is known through a manifest defect of an exterior organ, whereas the ovaries of themselves lie hidden in the body; and the emission of semen belongs on the side of copulation, from which ovulation is wholly independent ⁵⁰. Although we think this reply not devoid of all force, must it not nevertheless be admitted to be subtle and far-fetched?

⁵⁰ Ferreres, op. cit., nos. 209 and 240.

But by another and better rationale, as we think, this difficulty can be removed. We judge that formula by which, after the edict of Sixtus V, copulation of itself apt for generation is required to be not very felicitous, and we suspect that it has given occasion to obscurity and difficulty in the present cause.

That eunuchs cannot validly marry a wife is altogether certain after Sixtus V, and no Catholic theologian will deny it. The Supreme Pontiff confirms this conclusion by a twofold argument: because eunuchs cannot emit true semen; and because "from marriages of spadones of this kind and of eunuchs no utility proceeds, but rather the allurements of temptations and incentives to lust arise."

Adhering especially to the former rationale, most theologians understood it in such a way that they required in the man, as a condition of valid marriage, the necessary capacity to pour forth prolific semen, that is, a true potency for generation. For, to use the commonly received words, they required the capacity for "copulation of itself apt for generation"; formally, therefore, they began to require a relation toward generation. This seems very difficult to us, to disclose our mind sincerely, both because in this way there is a departure from the opinion which before Sixtus V was received among the classical authors - which required only the potency for intercourse for a valid marriage - and because, compelled by logical consequence, they would then also have to require in the woman, as it seems to us, the element essential to generation and, in this respect, go over with Dr. Antonelli to the new opinion; and because very many causes why copulation is unfit for generation are hidden from us in such a way that they themselves must logically admit that not a few marriages exist which are merely putative; and because they permit the use of marriage to persons whom they affirm to be impotent in this manner, provided the impotence supervened upon a marriage already validly contracted.

Therefore, since there is always greater liberty of opinion in weighing and proposing arguments than in a conclusion, and since we are occupied with the argument in question, from which, as Cardinal Gasparri says, "grave difficulties arise," and its theory appears subject to doubt, it will be lawful for us, and we judge it fruitful, to adhere modestly instead to the other rationale which Sixtus V drew from the uselessness of such marriages and more closely connected with his decree, and to defend the opinion more common today, with a formally somewhat different rationale, in this manner:

Eunuchs lack not only the external secretion of nemaspermata which are elaborated in the testicles, but also the internal secretion which, as we saw in no. 7, produces the signs of virility and the power of nourishing sexual appetite, and of itself confers the perpetual potency for intercourse.

Therefore, by the excision of both testicles the eunuch is radically vitiated in his very virility and in the potency for copulation itself. Certainly, unlike one who is born a eunuch or is castrated as an infant, one who is mutilated in adulthood remains capable of copulation for a certain time, and indeed, because the nemaspermata are preserved, can perform some fecund copulations.

But this precarious virility is to be compared with the leaves which an uprooted tree produces for a certain time, although by common judgment it is nevertheless held to be dead. These vestiges of potency do not suffice for a eunuch to be able to hand over the essential object of matrimony, or a body truly apt for copulation, especially if you consider the necessary perpetuity of marriage. Hence "from marriages of spadones of this kind and of eunuchs no utility proceeds," as Sixtus V used to say; but because of the faculty for copulation, decreasing from the beginning and afterwards suppressed, these marriages truly serve no end, either primary or secondary.

Therefore, because matrimony, indissoluble and perpetual of itself, demands a perpetual handing over of the bodies for carnal copulation, eunuchs, according to our opinion, are formally incapable of valid matrimonial consent. This opinion is confirmed by these advantages: a) It accurately preserves the most ancient rationale of the impediment of impotence, which it places wholly in impotence for intercourse. b) It accords perfectly with the replies of the Holy See concerning the marriages of women whose ovaries have been removed. Nor must we take refuge in strange hypotheses of an excision perhaps incomplete, etc. c) It most easily explains the marriages permitted to aged persons of both sexes. d) It no less easily explains the use of marriage permitted to those who pour forth only aspermatic semen or who were mutilated after marriage. e) The capacity to effect a true marriage in no way depends upon facts which are customarily hidden. f) It is perfectly consistent with itself. Since it does not even formally require in the man an element necessary for generation itself, the patrons of the more recent opinion of Dr. Antonelli are wholly unable to oppose to us an arbitrary distinction between the case of a eunuch and that of an excised woman.

Nor let it be said that in this way a new impediment to matrimony is introduced which would be not of antecedent impotence but of subsequent and future impotence. For the impotence is to be called antecedent because of the mutilation already performed, which radically takes away the potency for copulation such as is required in matrimony ⁵¹. Besides, no one among the adversaries will dare to remove from the number of the impotent eunuchs so recently cut that they remain precariously capable of fecund copulation.

⁵¹ Indeed, if Eschbach is to be believed, De novo quodam sterilitatis conceptu, p. 57 ff., with Ferreres approving, De vasectomia duplici, etc., no. 36, eunuchs never preserve copulation perfect under the aspect of copulation itself.

Just as those who are foreseen to become potent for copulation can now, according to natural law, validly marry a wife in expectation of the presently absent potency for copulation, so, on the contrary, those who, because of a cause already present and certain, are foreseen to become perpetually impotent for copulation, are to be called incapable of matrimony even now, according to natural law.

Lest we seem to have given an entirely unusual explanation, Godfrey of Trani already in the thirteenth century appears to have given a similar one in his Summa in these words: "Castrated men cannot contract matrimony, nor does a contracted marriage have force, because, since they cannot know wives, they are likened to boys" ⁵². And the Reverend Dr. Eschbach also adduces this rationale for the pontifical decree: because, after a certain time, the castrated are unable to attain "the summit of satiating venereal pleasure" (Disp. phys. theol., p. 196; compare p. 150).

⁵² In Ojetti, Synopsis, no. 2397, p. 233.

3. The Reverend Father Arendt, S.J., attempted a new way, not devoid of plausibility or usefulness, of resolving the difficult question, in the pamphlet entitled Relectio analytica super controversia de impotentia feminae ad generandum. As is evident, he attempted this with his mind so disposed that, until an authentic definition of the matter had been given, he would indeed try to illuminate the truth, yet in practice would adhere to the replies of the Sacred Congregations.

Accordingly, a) he retains the classical definition of the impediment of impotence, that is, impotence for intercourse. Yet for that reason he does not say that all women who can naturally complete copulation are capable of matrimony. For since sterility in some arises from a functional disturbance, but in others from an organic defect, he would not call the latter simply sterile, but impotent for generation. Accordingly, he places sterility where there is no impotence, but holds it as a matter of fact that sterility is presumed not to arise from a substantial defect. Yet where impotence for generation "has become of itself knowable before the matrimonial contract," he denies the woman the capacity to consent validly to matrimony. For generation, according to him, is the end of the work, toward which, when it is strictly impossible, the woman's consent cannot be borne. And thus the praised author, although by another rationale, arrives at the same conclusion as the Reverend Dr. Antonelli. Yet he permits a wife who has been excised after marriage the use of marriage for secondary ends.

In his mode of reasoning, the Reverend Father Arendt imitates the manner in which St. Thomas, Laymann, and others establish the impediment of impotence itself.

But they are separated by this difference: one who is incapable of copulation cannot promise the conjugal act itself, while one who labors under impotence for generation alone can promise and perform that act. Nor is that conjugal act devoid of every intrinsic end. For although it was instituted primarily on account of generation, nevertheless by its nature it strengthens the mutual love of the spouses and tempers concupiscence. But positive cooperation toward the primary end of the institution is not required in every marriage; indeed, it cannot even be seriously offered, as when two aged persons join in nuptials with each other. Wherefore, that necessity of consenting to generation from which the Reverend Father draws his argument would also be fictitious.

Certainly, in order to avoid the deception of the other party, a woman deprived of her ovaries is held by a most grave obligation to disclose that defect if it was hidden, just as she ought to reveal any other grave and harmful defect of the body. Furthermore, while St. Thomas infers from a physical impotence for congress a defect of the object of the contract and thence a defect of consent, the praised author asserts that the object is lacking where the potency is not lacking.

We also admit that we cannot grasp how the praised author demands a true or real relation toward generation itself in every valid marriage and consequently requires that the foundation from which the relation of conjunction belonging to marriage arises actually be found in both relative terms; and how he nevertheless declares valid those marriages in which this foundation is truly lacking, provided the defect remained unknown. Whatever is transcendental in matrimony, whatever pertains to its essence, cannot be supplied by any ignorance. The author indeed perceived the difficulty and tries to dispel it, but the efficacy of his explanation escapes us.

Moreover, the other objections which we raised against the first opinion recur; this opinion too is reconciled only with the greatest difficulty with the replies of the Holy See, which, without making any distinction of potency and consent, simply permit nuptials to the excised woman; and with the indubitable faculty of contracting nuptials even at a most advanced age, so long as, as Sanchez says (book 7, disputation 103, no. 8), they have not become altogether incapable of copulation. But that this practice of the Church rests upon the very possibility of generation would have to be demonstrated.