An Ethical Evaluation of the Exercise of the Natural Right of HIV/AIDS Patients to Marry in the Light of the Common Good

THE CATHOLIC UNIVERSITY OF AMERICA

Rights and the Common Good: An Ethical Evaluation of the Exercise of the Natural Right of HIV/AIDS Patients to Marry in the Light of the Common Good

A DISSERTATION

Submitted to the Faculty of the

School of Theology and Religious Studies

Of The Catholic University of America

In Partial Fulfillment of the Requirements

For the Degree

Doctor of Moral Theology

William Neba

Washington, D.C.

2015

Rights and the Common Good: An Ethical Evaluation of the Exercise of the Natural Right of HIV/AIDS Patients to Marry in the Light of the Common Good

William Neba, S.T.D.

Director: Joseph E. Capizzi, Ph.D.

HIV/AIDS can be transmitted through heterosexual intercourse, transfusion of infected blood, and from an infected mother to child through delivery. HIV—a retrovirus—is capable of mutating into various strands, which makes it difficult to develop a vaccine. While this is an ongoing concern for the scientific community, another issue is facing the society today—whether an HIV/AIDS carrier can still insist on exercising his natural right to marry ( ius connubii ), given the risk of exposing an uninfected partner and possible offspring to a mortal, irreversible illness?

This project addresses this question by first establishing the general principles pertaining to the meaning of natural rights. It elaborates on what they entail and the obligations that come with their exercise for the common good, and underlines that they can be limited. Then it shows that the Church recognizes the ius connubii and protects its exercise, especially by the sick— lepers and the insane—if they find willing partners. However, the Church also limits the exercise of the ius connubii by establishing impediments when such exercise threatens certain ecclesial goods. Next, the work lays out the data on HIV/AIDS to illustrate how it threatens the exercise of the ius connubii , with particular reference to Cameroon in sub-Saharan Africa. Finally, based on moral-ethical arguments, the project demonstrates that HIV/AIDS carriers that lack adequate access to medical assistance would face difficulties in fulfilling the responsibilities inherent in marriage.

Furthermore, the research demonstrates that recent advances in antiretroviral therapy can help HIV/AIDS carriers have a better quality of life and even generate HIV-free children. Thus, the Church cannot establish HIV/AIDS an impediment to marriage, lest she risks unjustly restricting millions of the Christifideles from exercising their natural right to marry—a vocation embraced by the majority of the human race.

Thus, this project, based on the weight of the moral-ethical arguments, concludes by proposing solutions to the aforementioned problems, with the aim of fighting this modern evil that has the potential to jeopardize not only the sanctity of marriage and family life, but also the future of the society as a whole.

This dissertation by William Neba fulfills the dissertation requirements for the doctoral degree in Moral Theology approved by Joseph E. Capizzi, Ph.D., as Director, and by William A. Barbieri, Ph. D., and by John P. Beal, J.C.D., as Readers.

______Joseph E. Capizzi, Ph. D., Director

______William A. Barbieri, Ph. D., Reader

______John P. Beal, J.C.D., Reader

In Memoriam

Archbishop Paul Mbiybe Verdzekov (22 nd January 1931 to 26 th January 2010) was the one that ignited the fire in me that glows in the love of Moral Theology. He instilled in me by his sterling example, as a father does to a beloved son, the values of respect for persons, of duty consciousness, and of a just moral order in any human community. Indeed, he was a man of integrity. May he be counted among the blessed in the choir of the heavenly Jerusalem.

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TABLE OF CONTENTS

ABBREVIATIONS ...... vii ACKNOWLEDGMENTS ...... x INTRODUCTION ...... 1

CHAPTER ONE

NATURAL RIGHTS ...... 6 1. Introduction ...... 6 2. The Meaning of Natural Rights ...... 10 3. The Roman Catholic Human Rights Position ...... 13 4. The Relationship Between Natural Rights and Natural Law ...... 18 5. The Correlativity of Natural Rights to Duties and Obligations ...... 21 6. The Relationship Between Natural Rights and the Common Good ...... 29 a) The Meaning of the Common Good ( bonum commune ) ...... 29 b) The Elements of the Common Good ...... 32 c) The Relatonship Between Natural Rights and the Common Good ...... 38 7. The Restriction of the Exercise of Rights for the Common Good ...... 42 8. Conclusion ...... 47

CHAPTER TWO

THE CHURCH AND THE NATURAL RIGHT TO MARRY ...... 51 1. Introduction ...... 51 2. The Church’s Recognition of the Natural Right to Marry ...... 54 i) Human Beings and the Natural Right to Marry ...... 55 ii) The Recognition and Protection of the Ius Connubii ...... 57 a) The Marriage of the Sick ...... 57 a-i) Lepers ...... 61 a-ii) The Insane ...... 70 iii) The Ius Connubii and the Council of Trent (1545-1563) ...... 74 iv) The Ius Connubii and the Codes of Canon Law ...... 76 v) The Ius Connubii and Papal Teachings ...... 78 3. The Church and the Impediments to Marriage ...... 85 i) A Brief Background ...... 85 ii) The Meaning of the Term “Impediment” ...... 86

iii) Some Specific Impendiments ...... 88 a) Insufficient Age ...... 88 b) Impotence ...... 91 c) Previous Marriage Bond ...... 94 d) Abduction ...... 96 e) Crime ...... 98 4. The Capacity to Fulfill the Essential Obligations of Marriage ...... 100 i) The Teaching of Gaudiun et spes ...... 100 ii) The Nature of the communio totius vitae et amoris ...... 104 iii) The Right/Obligation to Conjugal Acts Open to Procreation ...... 107 iv) The Obligation to Assist Each Other in the Educatio Prolis ...... 109 5. Conclusion ...... 116

CHAPTER THREE

HIV/AIDS AND ITS IMPACT ON CAMEROON ...... 118 1. Introduction ...... 118 2. What is HIV/AIDS? ...... 120 3. The Presence of HIV/AIDS in sub-Saharan Africa ...... 125 4. The Situation of HIV/AIDS in Cameroon ...... 128 5. The Social Impact of HIV/AIDS on Cameroon ...... 132 6. The Economic Impact of HIV/AIDS on Cameroon ...... 141 a) Micro-economic Impact of HIV/AIDS ...... 142 b) Macro-economic Impact of HIV/AIDS ...... 144 7. Some Moral-Ethical Questions Regarding HIV/AIDS and the Ius Conjugale ...... 149 a) The Nature of the Conjugal Debt ...... 149 b) Some Specific Moral-Ethical Questions ...... 152 8. Conclusion ...... 159

CHAPTER FOUR

THE RIGHT OF HIV/AIDS CARRIERS TO CELEBRATE MARRIAGE ...... 162 1. Introduction ...... 162 2. The Church’s Teaching on the Openness of Marriage to Children ...... 165 3. The Licitness of the Use of Condoms Within Marriage ...... 167 4. The Church’s Teaching on the Use of Condoms Within Marriage ...... 172 a) The Toleration of the Use of Condoms as the Lesser Evil ...... 176

b) Contraception – An Unintentional Side Effect (The Principle of Double Effect) ..... 178 c) Condoms and the Physical Characteristics of the Sexual Act ...... 184 5. Human Sexuality as a Gift and Value ...... 187 6. Sexual Responsibility in Marriage ...... 190 7. Moral-Ethical Perspectives on the Right of HIV/AIDS Carriers to Marry ...... 193 a) The Moral Understanding of a Human Act being Licit or Illicit ...... 193 b) Moral Responsibility in Marriage ...... 194 c) Responsibility for the Love that Binds a Man and a Woman in Marriage ...... 195 d) Responsibility in the Exercise of Freedom to Enter into Marriage ...... 201 e) Responsibility for the Life and Health of Each Spouse ...... 203 f) Responsibility for the Life and Health of Offspring ...... 214 8. Can HIV/AIDS be a Restriction to Marriage? ...... 220 9. Conclusion ...... 232

CONCLUSION ...... 236 APPENDIX ONE : Letter to Christians of the Bamenda Ecclesiastical Province ...... 254 APPENDIX TWO : The Right to Privacy of HIV/AIDS Carriers ...... 256 APPENDIX THREE : The Story of the “Mississippi Baby” ...... 261 BIBLIOGRAPHY ...... 263

ABBREVIATIONS

1 Cor The first letter of Saint Paul to the Corinthians a Article AAS Acta Apostolicae Sedis ASS Acta Sancta Sedis c. Canon cc Canons CCC The Catechism of the Catholic Church, Paulines Publications Africa 1994 CCo Pius XI, encyclical Casti connubii, December 31, 1930 CDF Congregation for the Doctrine of the Faith CIC Codex Iuris Canonici (Code of Canon Law) CNLS Comité National de Lutte Contre le SIDA CRTV Cameroon Radio and Television CSDC Pontifical Council for Justice and Peace, Compendium of the Social Doctrine of the Church , 2004

CV Benedict XVI, encyclical Caritas in veritate , June 29, 2009 DH Vatican II, declaration on religious freedom Dignitatis humanae , December 7, 1965

DIM Pius XI, encyclical Divini illius magistri , December 31, 1929 Dt Deuteronomy EN Paul VI, apostolic exhortation Evangelii nuntiandi , December 8, 1975 Eph Ephesians EV John Paul II, encyclical Evangelium vitae , March 25, 1995 Ex Exodus FC John Pail II, apostolic exhortation Familiaris consortio , November 22, 1981 GE Vatican II, declaration on Christian education Gravissimum educationis , October 28, 1965

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Gen Genesis GS Vatican II, pastoral constitution Gaudium et spes , December 7, 1965 GSa John Paul II, letter to families Gratissimam sane , February 2, 1994 GTC Groupe Technique Central HV Paul VI, encyclical Humanae vitae , July 29, 1968 Jn The holy gospel according to John Lev Leviticus LG Vatican II, dogmatic constitution Lumen gentium , November 21, 1964 Lk The holy gospel according to Luke MD John Paul II, apostolic letter Mulieris dignitatem , August 15, 1988 MM John XXIII, encyclical Mater et Magistra , May 15, 1961 Mt The holy gospel according to Matthew n. Number nn Numbers ONUSIDA Programme Commun de Nations Unies sur le VIH/SIDA para. Paragraph PP Paul VI, encyclical Populorum porgressio , March 26, 1967 PT John XXIII, encyclical Pacem in terris, April 11, 1963 q Question QA Pius XI, encyclical Quadragesimo anno , May 15, 1931 RH John Paul II, encyclical Redemtpor hominis , March 4, 1979 RN Leo XIII, encyclical Rerum novarum , May 18, 1891 Rom Romans RRDec Roman Rota Decisiones SPo Pius XII, encyclical Summi pontificatus , October 20, 1939 SRS John Paul II, encyclical Sollicitudo rei socialis , December 30, 1987 S.Th. Summa Theologiae

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UNAIDS Joint United Nations Program on HIV/AIDS UNGASS United Nations General Assembly Special Session on HIV and AIDS UNICEF United Nations International Children's Emergency Fund USAID United States Agency for International Development VSp John Paul II, encyclical Veritatis splendor , August 6, 1993 WHO World Health Organization

ACKNOWLEDGMENTS

In August 1981, I returned from Rome after having obtained a Licentiate degree in Moral

Theology from the Academia Alfonsiana. In August 2007, I was given the permission of the

Archbishop of Bamenda, Cornelius Fontem Esua, to study for a doctorate degree in Moral

Theology at the Catholic University of America, Washington, D.C. While I looked forward to the challenge, it was also a daunting undertaking after twenty-six years away from a classroom setting.

I am grateful to the Archbishop for motivating me to add another experience to my journey through life, which would not be possible without the unstinting assistance of Mr.

Lambert Mbom, one of the avid students who sat before me during Moral Theology lectures at the St. Thomas Aquinas’s Major Seminary Bambui. I am indebted to him because he did everything possible to ensure that I met all the requirements for admission into the university. On my arrival, the staff at the department for International Student and Scholar Services in the

Center for Global Education of the university welcomed me warmly and made sure that my stay in the university was an enjoyable one. I would be remiss if I do not thank the faculty and students of the School of Theology and Religious Studies for the fraternity that reigns in the school. Owing to their friendship and support, I never felt being far from home. The love that percolates even during the lectures affected me so profoundly that I changed my mind regarding my dissertation topic after I completed a course on Natural Law that was taught by Dr. Joseph E.

Capizzi. My Academic Advisor, Dr. William A. Barbieri, and I were already discussing

Communication and the Common Good as my dissertation subject. However, the course on

Natural Law enriched my views on Natural Rights and the Common Good, especially in the light

of the HIV/AIDS pandemic that is plaguing our world today. Dr. Barbieri has been exceptionally good to me, both academically and personally. He readily assumed a “father” role in his attitude towards me, to ensure that I completed my studies easily. He also assisted me in procuring some scholarships to offset my tuition. I also wish to express my sincere gratitude to Professor Brian

Johnstone, whom I admired as a lecturer and thus enjoyed sharing my ideas with him on a regular basis. He actually advised me to see Fr. John P. Beal of the School of Canon Law for some assistance with my dissertation. Fr. Beal received me unreservedly and has not only taught me the modules of critical thinking and academic writing, but was instrumental in ensuring that my dedication to work and attention to detail never wavered. Owing to Fr. Beal and my director

Dr. Capizzi, this work had evolved to its present form.

I wish to offer sincere thanks and gratitude to Msgr. Raymond Gerard East, Pastor of St.

Teresa of Avila Parish, Anacostia, Washington, D.C., who graciously provided accommodation for me throughout the course of my studies. I am also immensely grateful to Ms. Relindis Nkafu

Amingwa, who helped me develop a relationship with Msgr. East. The interest and assistance of

Deacon William Hawkins regarding the progress of my work ensured that I remained focused.

My family members and friends living across the United States, and especially my brothers and sisters of the Cameroon Catholic Community, Washington, D.C. Metro Area, have been of immense assistance to me in numerous ways. They ensured that I had all that I needed for my body and soul to stay healthy. I continuously invoke God’s blessings on all of them for their love and sacrifices for me.

Because academic work never follows a predetermined path and one’s ideas keep evolving with each succeeding day, the discussion and critical inputs from Fr. Patrick Lafon, my boyhood friend since 1963, were academically challenging and immensely valuable. They re-

routed me to the drawing board a couple of times for some necessary amendments in the presentation of some of my thoughts and arguments. Indeed, this project has benefitted from many minds and hands beyond individual enumeration and I am sincerely grateful to them all.

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INTRODUCTION

The Church recognizes that all persons have rights. The roots of these rights are to be found in the dignity that belongs to every human being. 1 This dignity, inherent in human life and equal for every person, is a characteristic inscribed by God, the Creator, in His creature. 2 Man’s relationship with his Creator is reflected in his communion with other beings because God did not create him to be a solitary being. Because he is a social being, man must relate with others in order to live and develop his potential. 3 John Paul II notes: “In the other, whether man or woman, there is a reflection of God himself, the definitive goal and fulfillment of every person.” 4 Thus, man fulfills his communitarian vocation through the exercise of his rights.

Rights are inextricably linked to duties. Indeed, rights and duties are two aspects of the same reality. This bond also has a social dimension because, in human society, one man’s right gives rise to a corresponding duty in all other persons—the duty of recognizing and respecting that right. 5 It is, therefore, an inherent contradiction to affirm rights without recognizing their

1 Vatican II, pastoral constitution Gaudium et spes 27 in AAS 58 (1966) 1047-1048; English translation in Documents of Vatican II , ed. Walter M. Abbott (London: Geoffrey Chapman Publishers, 1972) [hereafter Abbott] 226-27.

2 GS 41, AAS 58 (1966), 1059-1060; Abbott, 240-41.

3 GS 12, AAS 58 (1966), 1034; Abbott, 211: “At Deus non creavit hominem solum: nam inde a primordiis ‘masculum et feminam creavit eos’ (Gen.1,27), quorum consociatio primam formam efficit communionis personarum. Homo etenim ex intima sua natura ens sociale est, atque sine relationibus cum aliis nec vivere nec suas dotes expandere potest.”

4 John Paul II, encyclical letter Evangelium vitae , March 25, 1995, n. 35: AAS 87 (1995) 440: “In utroque, tam in viro quam in muliere, Deus ipse ostenditur, fere portus ultimus et satisfaciens cuiusque personae .”

5 John XXIII, encyclical letter Pacem in terris , April 11, 1963, n. 30: AAS 55 (1963) 264: “in hominum consortione unius hominis naturali cuidam iuri officium aliorum hominum respondeat: officium videlicet ius illud agnoscendi et colendi .”

corresponding responsibilities, as John XXIII states: “Hence, to claim one’s rights and ignore one’s duties, or only half fulfill them, is like building a house with one hand and tearing it down with another.” 6 A person’s rights are, therefore, restricted by those of other persons, or by the duty to respect the rights of other persons. And, since they emanate from the human person, human rights are directed toward the promotion of every aspect of the good of the person and of society. Furthermore, as a self-determining agent, a person has a right to participation in the social, economic and political process. Their rightful exercise requires everyone to allow the

Spirit of God to permeate every human endeavor. This creates the atmosphere where the common good is realized—the social and communal dimension of the moral good—because God created everything good and there is no inherent conflict between the personal and the common good. Thus, there is an inextricable link between the relationship each person is called to have with God and his responsibility towards his neighbor, that is, the good of his neighbor. All human beings are one in God and have a moral responsibility for the good of each other. 7

The responsibilities people have toward one another in society vary according to their relationships. The responsibilities of married spouses are special because their relationship is (1) a life-long covenant of love; (2) committed to the good of each other until death; (3) stands at the foundation of the Church and society; and (4) serves the good and the future of the Church and society. Thus, Church and society have always had a keen interest in those who plan to exercise their natural right to marry.

6 PT 30: AAS 55 (1963), 264: “Qui igitur, dum iura sua vindicant, officia sua vel omnino obliviscuntur, vel aequo minus praestant, iidem sunt cum iis veluti comparandi, qui altera manu aedem exstruunt, altera evertunt.”

7 GS 28, AAS 58 (1966), 1048; Abbott, 227; and John Paul II, encyclical letter Sollicitudo rei socialis , December 30, 1987, n. 38: AAS 80 (1988) 565-66.

However, the right to marry comes under debate today because some carriers of the lethal contagion, HIV/AIDS, insist on the exercise of this right. Some ethicists, Catholic and non-

Catholic, and even some members of the Catholic hierarchy, find “tolerable” the use of condoms by couples, if one partner has HIV/AIDS. Since the Church considers the use of condoms morally wrong, HIV-infected Catholic spouses desiring to marry find themselves in a difficult position. First, Church teaching prohibits the use of condoms in all cases. Yet, those that engage in a sexual intercourse without the protection provided by condoms risk transmitting the fatal disease to their spouse or to offspring, thereby jeopardizing their personal good, as well as the common good. Second, to prescribe a non-sexual married life to such couples—citing the example of Joseph and Mary and many other illustrious Christian couples—may be asking too much of the couples who may not be willing to lead such a heroic way of life. Thus, this dissertation explores the nature and limits of the right to marry in the context of the common good by looking at the case of HIV/AIDS-infected persons who desire to marry.

Chapter One looks at the Church’s understanding of the natural rights inherent in the nature of the human person. These rights, which are coeval with human nature and therefore inalienable but not absolute, have their foundation in the dignity of the human person because man is created in the image and likeness of God. Owing to his natural reasoning capacity, man is aware of his rights and duties. Thus, this light of intellect infused within man—the natural law— grounds the existence, the normativity, and the universality of the rights and duties of the human person as a social being within the wider community. Such rights and duties are concerned with the same goods which are essential for human flourishing. And because they exist for the common good, the exercise of rights can be restricted if there is any evidence that it threatens the common good. 3

Chapter Two shows that, although throughout her tradition, the Church has recognized and promoted the exercise of the natural right to marry, it has also insisted on the right to limit the exercise of this right in the interest of the common good. In the proclamation of the good news, the Church confronted the cultures and customs of various peoples that governed marriage, some of which expressly denied certain categories of people the right to marry.

Individuals infected by leprosy, the infectious disease that dates to biblical times, or other potentially fatal illnesses as insanity are some of the examples of people who were denied the ius connubii. Still, the Church upheld the ius connubii and its exercise, if they found willing partners. However, “The right to contract marriage presupposes that one can marry, and one intends to authentically celebrate marriage, that is, to do so in the truth of its essence as it is taught by the Church.” 8 As seen from the above, whenever it perceives that the exercise of the right to marry threatens the common good, the Church establishes limitations or impediments.

Such prohibitions are either of divine origin, which the Church simply declares, or of ecclesiastical origin, whereby the Church exercises the authority as the custodian of marriage.

Indeed, the restrictions on the right to marry are not an invention of the 1983 Code of Canon

Law, but rather a part of the governing ministry of the Church in protecting the common good whenever it comes under threat through the exercise of the right.

Chapter Three examines a new threat to marriage, HIV/AIDS, which has, since its detection in 1981, continued to claim lives in the millions and for which there is still no cure.

This chapter examines the evolution of the pandemic, its magnitude in Africa, especially in

Cameroon, and reviews the socio-economic threat it poses to the institution of marriage, the

8 Benedict XVI, Address to Tribunal of the Roman Rota on January 22, 2011, under “Zenit,” http://www.zenit.org/article-31543?l=english (accessed January 24, 2011).

Church, and the society. Since it is also a sexually transmissible disease, the pandemic raises some pertinent questions regarding the exercise of the right to marry, especially the ius coniugale and the common good, by those suffering from HIV/AIDS.

The last chapter shows that conjugal love involves the acceptance to openness to paternity or to maternity. It also highlights that all conjugal acts performed by the spouses must be open to procreation, as there is an inseparable connection between the unitive meaning and the procreative meaning of the conjugal act. Conjugal love, however, is put in jeopardy by a new threat, the HIV/AIDS pandemic. Still, civil society’s proposal, and that of some authors to use condoms to combat its spread, is neither a cure for the disease nor is it 100 percent effective.

Indeed, the use of condoms threatens the common good. On the other hand, an authentic understanding of human sexuality as a gift and a value helps spouses to appreciate and to assume responsibility for God’s love that binds them in marriage. It also helps them to understand that the freedom to exercise one’s right to marry entails responsibility for the life and health of each other, any possible offspring, and the wider community. Indeed, HIV/AIDS threatens the common good, because the effects of the pandemic on spouses and offspring, outside some medical attention, stifle the possibilities for the promotion of the common good. The infection jeopardizes those conditions of social life in which people enjoy the possibility of achieving their own perfection within a certain measure with some relative ease. Consequently, it seems that outside medical intervention the right of HIV/AIDS carriers to exercise their natural right to marry can be restricted for the common good.

CHAPTER ONE

NATURAL RIGHTS

1. Introduction

Catholic social teaching provides us with a wholesome understanding of natural rights, 1 that is, rights that are proper to man as a human person. The Church’s doctrine on rights, drawn from philosophy and Christian revelation, perceives “human nature” as endowed with certain innate characteristics. As human person is a living image of God himself, imago Dei , each

individual has an inalienable dignity that is singular to him alone. He is endowed with

intelligence and free will, and is the lord of creation. 2 He is fundamentally social by nature and

has a transcendental vocation; he is called to salvation by his Creator. This is best exemplified in

the words of John Paul II, who stated:

The dignity of the person is manifested in all its radiance when the person’s origin and destiny are considered: created by God in his image and likeness as well as redeemed by the most precious blood of Christ, the person is called to be a “child in the Son” and a

1 The Church, as well as many philosophers and social thinkers, use the expressions “human rights,” “the rights of man,” “the rights of the human person,” or simply “rights,” synonymously with “natural rights.” See PT: AAS 55 (1963) 257-304; John Paul II, encyclical letter Redemptor hominis , March 04, 1979, n. 17: AAS 71 (1979) 295-300; Pontifical Council for Justice and Peace, Compendium of the Social Doctrine of the Church (Città del Vaticano: Libreria Editrice Vaticana, 2004); Pontifical Commission “Iustitia et Pax,” The Church and Human Rights , 2 nd ed. (Rome: Vatican City, 2011); International Theological Commission, Propositions on the Dignity and Rights of the Human Person , 1983; Jacques Maritain, The Rights of Man and Natural Law (Glasgow: Robert Maclehose and Co. Ltd., 1945); Benedict XVI, encyclical letter Caritas in veritate , June 29, 2009, n. 43: AAS 101 (2009) 679-80; Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991); and Janet E. Smith, The Right to Privacy (San Francisco: Ignatius Press, 2008).

2 PT 3: AAS 55 (1963), 258.

living temple of the Spirit, destined for eternal life of blessed communion with God. 3

Because he is created in the image and likeness of God and redeemed by Jesus Christ, man is able to respond to God’s invitation to communion with Him. As the dignity of the human person is perfected through the communion with God,4 its attainment is a realistic goal of the individual and the Church. “By her preaching of the Gospel, the grace of the sacraments and the experience of fraternal communion, the Church ‘heals and elevates the dignity of the human person . . . consolidates society and endows the daily activity of men with a deeper sense and meaning.’” 5

The human person is capable of responding to God’s invitation because God “willed to leave man ‘in the power of his own counsel’ (cf. Sir 15:14), so that he would seek his Creator of his own accord and would freely arrive at full and blessed perfection by cleaving to God.” 6

However, as his freedom has been damaged by sin, man often fails to follow the order that God himself stamped on his heart. In failing to listen to his conscience, he compromises his very dignity, and according to it, he will be judged. 7 Yet, with the help of divine grace, man can live

3 John Paul II, apostolic exhortation Christifideles laici , December 30, 1988, n. 37: AAS 81(1989) 461: “Personae dignitas totum suum fulgorem irradiat, cum eius origo ac finis spectantur; homo enim a Deo ad eius imaginem et similitudinem creatus est et a pretiosissimo Christi sanguine redemptus, ipse ad vocationem appellatur, qua “filius in Filio” ac vivum Spiritus templum sit, atque ad aeternam communionis beatificae cum Deo vitam destinatur.”

4 J. Brian Benestad, Church, State, and Society: An Introduction to Catholic Social Doctrine (Washington, D.C.: The Catholic University of America Press, 2011), 38.

5 CSDC n. 51 quoting GS 40, AAS 58 (1966), 1058; Abbott, 239.

6 John Paul II, encyclical letter Veritatis splendor , August 06, 1993, n. 34: AAS 85 (1993) 1161: “Voluit enim Deus hominem ‘relinquere in manu consilii sui’ (cf. Eccl 15, 14), ita ut Creatorem suum sponte quaerat et libere ad plenam et beatam perfectionem ei inhaerendo perveniat” quoting GS 17, AAS 58 (1966), 1037; Abbott, 214.

7 GS 16, AAS 58 (1966), 1037; Abbott, 213.

in accordance with the dictates of his conscience; he can live virtuously, thereby enabling his

dignity to flourish for the good of all. Man does this through the rightful exercise of his rights

and through the acknowledgment of the rights of others. However, when man fails to emancipate

himself from the captivity of his passions, he compromises not only dignity, but also harms the

life of society. 8 While man does this through the wrongful use of his rights, this does not imply

that they should be restricted, but rather that each individual should act on them in prudence.

Indeed, according to John Paul II, the denial or the limitation of human rights impoverishes the

human person. Thus, any development that does not take into account the full affirmation of

human rights cannot be viewed as real development on the human level. 9

In line with this view, Catholic social teaching uses the term “human rights” to refer to

the source of these rights, namely “human nature.” Furthermore, it asserts that human nature is

normative, immutable and universal to all human beings, 10 including HIV/AIDS carriers. As these rights must ensure the good of the person, the good of others and of the world around him, they are subject to restriction when their exercise threatens the common good.

8 Benestad, Church, State, and Society, 41.

9 SRS 15: AAS 80 (1988), 530.

10 This is affirmed, despite the claim of some contemporary philosophy that denies the existence of “human nature” and posits that no reference to human nature is necessary for ensuring political rights. See Richard Rorty, “The Priority of Democracy to Philosophy,” in Reading Rorty. Critical Responses to Philosophy and the Mirror of Nature (and Beyond ), ed. Alan R. Malachowski (Oxford: Basil Blackwell Ltd., 1990), 284-85, where the author states that “Rawls does not believe that for purposes of political theory, we need to think of ourselves as having an essence that precedes and antedates history”; In John Bowring, ed., The Works of Jeremy Bentham (New York: Russell & Russell Inc., 1962) 2:501, Bentham dismisses totally the concept of natural rights as “simple nonsense: natural and imprescriptible rights, rhetorical nonsense - nonsense upon stilts.” However, John Paul II, in his “Address to the Fiftieth General Assembly of the United Nations Organization,” L’Osservatore Romano , Weekly Edition in English N. 41 (1411) –11 October 1995, n. 3, re-affirms the universality of human rights and notes that “it is a matter for serious concern that some people today deny the universality of human rights, just as they deny that there is a human nature shared by everyone.”

In this first chapter, I shall begin by introducing the Roman Catholic position on natural rights, as articulated in magisterial teaching. I shall also draw from the contribution of Jacques

Maritain, 11 a primary architect of the Catholic rights tradition. Since the Church derives its understanding of human rights from the inherent requirements of human nature, as these are discerned by natural reason, I shall show that man possesses rights as a fact of natural justice.

Thus, what is due to him, his rights, must be protected by the law of nature. Otherwise, such rights would be useless, as they would not be protected by the very law that grounds them—the very law that is the source or root of these rights. Indeed, there is an essential relation between natural rights and natural law as, “if there is no natural law, there are no natural rights.” 12

Because they are normative, in line with natural law, natural rights have corresponding duties and obligations. There is an indivisible interrelationship between natural rights and duties, as both are aspects of the same reality and a person cannot talk of one without the other. Thus,

“fundamental human rights are inseparably interconnected in the very person who is their subject with just as many respective duties.” 13 Then, I shall discuss the common good, as one of the duties that flows from natural rights and is inseparable from it. I shall show that, while a person has rights for his good, he must also strive towards the good of the wider community. Finally, I

11 Although Maritain (1882-1973) grew up as a liberal Protestant, following his conversion to Catholicism in 1906, he embraced Thomism and brought Thomistic philosophy to bear on contemporary issues. The search for the meaning of existence has led Maritain to the sense of the Absolute, allowing him to see that genuine philosophy that must begin with metaphysics, though maintaining its own order, has a relationship to theological data pertaining to the existential condition of man. Maritain’s philosophy develops the principles of an integral Christian humanism, where the material and spiritual dimensions of the human being should be considered as a unified whole, always in relation to his supernatural destiny.

12 Harold R. McKinnon, “The Higher Law: Reaction Has Permeated Our Legal Thinking,” American Bar Association Journal 33 (1947): 203.

13 Pontifical Commission “Iustitia et Pax,” The Church and Human Rights , n. 37, §10.

10 shall elaborate on the reasons for allowing those in charge of the community to restrict the exercise of natural rights of certain individuals when they perceive that their exercise threatens the common good.

2. The Meaning of Natural Rights

The historiography of rights is a long and controversial one 14 that merits separate treatment beyond this project. Although the term ius (right), iura (rights) could have multiple meanings, 15 I shall limit myself to the understanding of rights as powers or claims possessed by individuals as articulated by decretalists in the thirteenth century.

Subjectively considered, a person’s right ( ius ) is usually understood to imply a power

(potestas ) to act freely. Yet, to act freely means to act responsibly in both personal and social dimensions. It does not allow for arbitrariness and is not a license to do whatever one pleases. 16

To act freely means to decide on one’s actions on the grounds of duty and conscience, without any external pressure or coercion. Thus, a right is a power to do the virtuous thing; it is a power to do the just thing, the res iusta ; it is a power to do the right thing. In that sense, such a power is

14 Charles J. Reid, “The Canonistic Contribution to the Western Rights Tradition: An Historical Inquiry,” Boston College Law Review 33 (1991-1992):37.

15 Ibid., 64. Reid shows the richness of canonistic rights vocabulary of the twelfth and thirteen centuries. He explains that the use of words, such as libertas , potestas , facultas , immunitas , dominium , justitia , interesse and actio, can all be translated as “right” in appropriate circumstances.

16 John Paul II, “Message to His Excellency Dr. Kurt Waldheim, Secretary-General of the United Nations Organization,” December 02, 1978, para. 17: AAS 71 (1979) 123; Id., “Address to the Fiftieth General Assembly of the United Nations Organization, 5 October 1985,” L’Osservatore Romano , English Weekly Edition, N. 41 (1411) – 11 October 1995, para. 12, page 9; Benedict XVI, “Address to the Participants in the International Congress in Natural Moral Law,” February 12, 2007, para. 11; and GS 17, AAS 58 (1966), 1037-1038; Abbott, 214-15.

also a capacity ( facultas )17 of free action, such as the capacity to marry ( facultas contrahendi

matrimonium ), which is guaranteed by the objective right. Indeed, there is an objective right, the

highest good ( summum bonum ), which is the source of values that can provide guidance when

exercising one’s rights. For example, in marriage, there is an objective standard set by God, the

author of marriage, which should guide those who wish to exercise this right, providing a model

for their own marital union. Thus, in the subsequent discussion on whether the HIV/AIDS

carriers should be permitted to exercise their natural right to marry, marriage will be viewed as a

divine institution.

A right ( ius ) is attributed to each person through obligation and in right measure, since all

people have rights that have to be respected by everyone for the good of all. The virtue of

constantly acting in this manner is justice—the perpetual and constant will of giving to each his

own ( ius suum cuique tribuere ). 18 Since the power to give to each person his due is in a being that is sui iuris (master of his own self), 19 it is possible that, at times, people may fail to give to

17 Charles J. Reid, “Thirteenth-Century Canon Law and Rights: The Word ius and Its Range of Subjective Meanings” Studia Canonica 30 (1996): 314-19. See also Id., “The Canonistic Contribution to the Western Rights Tradition: An Historical Inquiry,” 64.

18 D. 1, 1, 10: “Iustitia est constans et perpetua voluntas ius suum cuique tribuendi.” Jacques Maritain, Natural Law: Reflections on Theory & Practice , ed. William Sweet (South Bend, Indiana: St. Augustine’s Press, 2001), 60 note 27, pages 59-60, defines a right as “a requirement that emanates from a self with regard to something which is understood as his due, and of which the other moral agents are obliged in conscience not to deprive him. The normality of functioning of the creature endowed with intellect and free will implies the fact that this creature has duties and obligations; it also implies that the fact that this creature possesses rights, by virtue of his very nature – because he is a self with whom the other selves are confronted, and whom they are not free to deprive of what is due to him. And the normality of functioning of the rational creature is an expression of the order of divine wisdom.” (emphasis in the original)

19 S. Th ., I a II ae , Prologus : “Quia, sicut Damascenus dicit (De Fide Orthod. ii.12), homo factus ad imaginem Dei dicitur, secundum quod per imaginem significatur intellectuale et arbitrio liberum et per se potestativum; postquam praedictum est de exemplari, scilicet de Deo, et de his quae processerunt ex divina potestate secundum

12 each other their due. In failing to respect the rights of others, the individual is, in fact, acting unjustly. Such wrongdoing arises from the general moral weakness of the human race that makes human living so vulnerable. 20 In recognition of this human characteristic, the natural law serves to protect people’s rights to ensure that each person gives the other his due, as we shall see later in this chapter.

In its examination of the right of HIV/AIDS carriers to exercise their natural right to marry, this project will analyze the “just claim” or the “moral claim” that these individuals can make on others. The analysis will consider their claim on individuals, groups, political or social powers, in order to fully understand the implications of respecting (or restricting) their right to marry. In this context, the “just claim” or “moral claim” of HIV/AIDS carriers is twofold. First, they cannot be forced to act against their freedom to choose a life-long partner in marriage; second, they cannot be forcefully restrained from exercising their natural right to marry.

Although man enjoys immunity from all coercion in the exercise of his rights, such exercise must always be evaluated with respect to the object of a right—that which is right and good. Thus, the exercise of the right of HIV/AIDS carriers to marry would have to be considered within the context of the purpose of marriage—the good of the spouses and the common good.

eius voluntatem; restat ut consideremus de eius imagine, idest de homine, secundum quod et ipse est suorum operum principium, quasi liberum arbitrium habens et suorum operum potestatem.”

20 Kieran Cronin, Rights and Christian Ethics (New York: Cambridge University Press, 2008), 250.

3. The Roman Catholic Human Rights Position In my view, the point de départ of the Roman Catholic Human-Rights position is its theological reflection on human rights because the value that Roman Catholicism ascribes to man is one of incomparable greatness. As Pope Paul VI stated:

No anthropology equals that of the Church in its evaluation of the human person. This is true as regards man’s individuality, his originality, his dignity; as regards the intangible richness arising from his fundamental rights; as regards his sacredness, his capacity for education, his aspiration to complete development, his immortality, etc. A code could be composed out of rights which the Church recognizes in man, and it will always be difficult to limit the fullness of the rights which derive from man’s elevation to the supernatural by reason of his insertion in Christ. 21

Inseparably linked to this anthropology is the fact that God created man out of love. Thus, He gives him rights out of His providential care for him, whether He believes in him or not. The biblical narrative of creation recounts how God created man in His image, imago Dei (Gen 1:27).

As a result, the human being possesses the dignity of a person, 22 as the Catechism of the Catholic

Church states:

Being in the image of God the human individual possesses the dignity of a person , which is not just something, but someone. He is capable of self-knowledge, of self-possession and of freely giving himself and entering into communion with other persons. Further, he is called by grace to a covenant with his Creator, to

21 Paul VI, “Address to the General Audience on Wednesday, 4 September 1968,” in Insegnamenti di Paolo VI (Vatican City: Typis Polyglottis Vaticanis, 1968) 6:886-87; and L’Osservatore Romano , English Weekly Edition, 12 September 1968, n. 24, page 1.

22 As man is created in the image of God, He bestows on him a dignity that distinguishes him from the rest of animate and inanimate creation. However, God inserted man into the community of the three persons in one God—the Trinity—whereby men and women are oriented toward communion with God and with one another. Thus, the essence of personality requires dialogue in which all souls communicate; it implies communion. See The International Theological Commission, Communion and Stewardship: Human Persons Created in the Image of God , Chapter Two; and CCC nn 355 and 374.

offer him a response of faith and love that no other creature can give in his stead. 23

The doctrine of man as imago Dei and lord of creation stands at the center of the Roman Catholic tradition as the foundation of human rights: “God created man in His own image and likeness

(Gen.1:26), endowed him with intelligence and freedom, and made him lord of creation.” 24

Human dignity is therefore anchored on a threefold foundation—creation in the image of

God, redemption by Jesus Christ, and the call to eternal life in communion with God. This is

what makes man unique and distinguishes him from all other animate and inanimate creation.

Although man sinned through disobedience and profoundly wounded the dignity bestowed on

him, God did not abandon the work of His hands. God continued to interact with His people. The

conclusion of the covenant between God and humankind in the Old Testament firmly establishes

this dignity that is enjoyed not only by the children of Israel but by all human beings. Thus,

owing to the same dignity and the same nature, all peoples enjoy the same natural rights.

23 CCC n. 357. (emphasis in the original) See also John XXIII, encyclical letter Mater et Magistra , May 15, 1961, n. 215: AAS 53 (1961) 452.

24 PT 3: AAS 55 (1963), 258: “Hominem item Deus ad imaginem et similitudinem suam (Gen. 1, 26) creavit, intellegentia et libertate praeditum, dominumque constituit rerum universarum.” (emphasis in the original) See also GS 12, AAS 58 (1966) 1034; Abbott, 210, which repeats nearly verbatim the doctrine of Pacem in terris, but expands on it by adding the reason for man’s dominion over creation at the end: “eisque uteretur, glorificans Deum.” The teaching of man’s dominion over creation means that man has dominion over himself. Dominion itself—in its ontological radicality—is the distinguishing feature of the personal being and the basis of his dignity. This dominion is manifested in a multiplicity of natural rights pertaining to man, which are the expression of his radical dominion. Man exercises dominion over all other created beings because they are not persons and do not possess dominion over their own being. Thus, man has the capacity to appropriate these beings to himself. He can extend his dominion over them and they become his, and by virtue of the human person’s ontological statute, are owed to him. Because of man’s capacity to appropriate things, it is evident that things are also attributed—they are distributed—as a consequence of the very ontological constitution of the human person, of personal being. Thus, the ontological condition of the human person is the basis of right that is identical in every human being. Personal dominion operates within the rational system of human relations. The lordship of the human being is reflected primarily in the person’s capacity for acting freely. Thus, the existence of things that are proper to man— rights—and that correspond to him through a title stemming from nature is deduced from the fact that man is a person. See Javier Hervada, Natural Right and Natural Law: A Critical Introduction (Pamplona: University of Navarra, 1987), 71-72.

In the New Testament, when the Son of God assumed human nature through the mystery of the incarnation and became man, he entered into the world history. In doing so, he sanctified all humanity in a definitive way. The choice of the Son of God to become man gives value and dignity to all peoples, cultures and nations. Indeed, “the dignity which man enjoys is the dignity of the image of God,” 25 and this Christian view is the basis of the Church’s defense of human rights of individuals as well as groups.

Christ’s redemptive death on the cross conveys to the world the fundamental law of human perfection: “A new commandment I give unto you, that you love one another; even as I have loved you, that you also love one another” (Jn 13:34). 26 Christ hereby established solidarity and a brotherhood, whereby the human race becomes one family in God through the law of love.

“In this way man’s commitment to his neighbour becomes merged with his commitment to God, and his response to God’s love is expressed in love and service to men.” 27 Extending this notion further, the Synod of the Bishops in 1971 stated that Christian love

[i]mplies an absolute demand for justice, namely a recognition of the dignity and rights of one’s neigbour. Justice attains its inner fullness only in love. Because everyman is truly a visible image of the invisible God and a brother of Christ, the Christian finds in every man God himself and God’s absolute demand for justice and love. 28

25 Pius XII, Christmas Broadcast of 1944, AAS 37 (1945) 15: “La dignità dell’uomo è la dignità dell’immagine di Dio.”

26 Pontifical Commission “Iustitia et Pax,” The Church and Human Rights , n. 49.

27 Ibid., n. 51.

28 Synod of Bishops , Justice in the World , November 30, 1971, n. 14: AAS 63 (1971) 931: “Nam amor secum fert exigentiam iustitiae absolutam, nempe agnitionem dignitatis et iurium proximi iustitia autem plenitudinem suam interiorem in solo amore attingit. Quia revera omnis homo visibilis Dei invisibilis imago et frater Christi est, ideo christianus in quovis homine Deum ipsum eiusque propriam absolutam exigentiam iustitiae et amoris invenit.”

The interrelationship between Christian love of neighbor and justice demands that the Christian message of love and justice must be demonstrated through action. In other words, it requires both recognition and rightful exercise of rights for the promotion of human dignity and the common good.

However, this theological reflection on human rights would be incomplete without reflecting on the eschatological view of man and of his fundamental rights. The exercise of rights is not an end in itself but a means to fulfill God’s purpose for creating man—to know God, to love Him, and to participate in the very life of God in heaven. 29 Because he is a person, man has a transcendental worth and cannot be treated as an instrument, but rather as an end. 30

Referring to these theological foundations, John XXIII articulated the necessity of human rights for the good order of society that has become the standard form of Catholic human rights theory:

Any well-regulated and productive association of men in society demands the acceptance of the one fundamental principle: that each individual man is truly a person. He is a nature, that is, endowed with intelligence and free will. As such he has rights and duties, which together flow as a direct consequence from his nature. These rights and duties are universal and inviolable, and therefore altogether inalienable. 31

29 CCC n. 1. See also Maritain, The Person and the Common Good , 32; and Id., Scholasticism and Politics (New York: Image Books, A Division of Doubleday & Company, Inc., 1960), 68.

30 David Hollenbach, Claims in Conflict : Retrieving and Renewing the Catholic Human Rights Tradition (New York: Paulist Press, 1979), 44 and 46. See also Pius XI, encyclical letter Divini illius Magistri, December 31, 1929, n. 7: AAS 22 (1930) 51; and GS 10, AAS 58 (1966), 1032-1033; Abbott, 207-209.

31 PT 9: AAS 55 (1963), 259: “Porro in quovis humano convictu, quem bene compositum et commodum esse velimus, illud principium pro fundamento ponendum est, omnem hominem personae induere proprietatem; hoc est, naturam esse, intellegentia et voluntatis libertate praeditam; atque adeo, ipsum per se iura et officia habere, a sua ipsius natura directo et una simul profluentia. Quae propterea, ut generalia et inviolabilia sunt, ita mancipari nullo modo possunt.” See also John XXIII, Sermon , January 4, 1963: AAS 55 (1963) 89-91; and Pius XII, Broadcast Message , Christmas 1942: AAS 35 (1943) 9-24. John Paul II, Message on World Day of Peace , 1 January 1988, n.1,

John XXIII grounds human rights in an anthropology that is fundamentally realistic “in its account of human knowing and of human moral endeavor and which stresses both the unity of the human person as a being in the world and the necessary orientation of the person to society and community.” 32 In turn, this anthropology is grounded in the incarnation and the creation of man “in the image and likeness of God” (Gen 1:26). From the Roman Catholic perspective, the doctrine of human rights has particular relevance for the religious beliefs, such as the doctrine of the incarnation. Yet, it is also universal in that these rights are grounded in human nature. Thus, in his speech addressed to the fiftieth general assembly of the United Nations Organization on

October 5, 1995, John Paul II expressed “serious concern that some people today deny the universality of human rights just as they deny that there is a human nature shared by everyone.” 33

The Holy Father also noted that, to deny universality or intelligibility to human nature or to the human experience would make the international politics of persuasion extremely difficult if not impossible to exercise. 34 Indeed, if the universality of human rights were denied, the right of

HIV/AIDS carriers to marry would be impossible to discuss, because such talk presupposes that the carriers of pandemic share the same common characteristics with other human beings all over the world.

Because they share a common nature and a common origin, all peoples also have a common destiny. Thus, the anticipation of the life to come demands that man strives to follow also affirmed that the human person is the subject of inalienable rights when he stated: “The foundation and goal of the social order is the human person, as a subject of inalienable rights which are not conferred from outside but which arise from the person’s very nature.”

32 John P. Langan, “Human Rights in Roman Catholicism,” Journal of Ecumenical Studies 19 (1982): 26.

33 John Paul II, “Address to the Fiftieth General Assembly of the United Nations Organization,” para. 3, page 8.

34 Ibid.

the order that God has stamped on his heart. Not only is this order revealed by his conscience,

but his conscience insists that he preserves this order. Men “demonstrate the effect of the law

engraved on their hearts, to which their own conscience bears witness” (Rom 2:15). This law

written on the hearts of men is the natural law, known as such because it has its origin in the

essence of what it is to be human. In the next section, I shall discuss the relationship between

natural rights and natural law, as I aim to demonstrate that it would be superfluous to talk of

natural rights without a mechanism that can protect such rights from being violated by other free

agents.

4. The Relationship Between Natural Rights and Natural Law 35 The natural law ( lex naturalis ) I am referring to here is not a theory but a fact of human

experience. It is a natural fact of every human being of every epoch and race, just as human

rights are present in different cultures and civilizations of the world. 36 Such natural law consists of the innate first principles of practical reason that prescribe the fundamental ends that human action should realize. 37 Natural law participates in the eternal law, the exemplar and the final

35 Natural law and natural right can neither be separated nor equated with one another. Natural law is called natural right insofar as it is the rule of right. The natural law precepts of “Thou shall not kill” or “Thou shall not steal” constitute natural right insofar as they bear upon the natural right to life or property. Thus, natural right is a natural rule of right that regulates relations of legal, distributive and commutative justice. Consequently, natural law is the measure of natural rights, rather than their cause. The natural law precepts of “Thou shall not kill” or “Thou shall not steal” arise because the natural rights to life and property exist. Natural rights arise from human nature. See Hervada, Natural Right and Natural Law , 181-82.

36 Benedict XVI, “Address before the Members of the General Assembly of the United Nations Organization,” L’Osservatore Romano , Weekly Edition in English, para. 6, N. 17 (2041) - 23 April 2008, page 12.

37 Denis J. M. Bradley, Aquinas on the Twofold Human Good: Reason and Human Happiness in Aquinas’s Moral Science (Washington, D.C.: The Catholic University of America Press, 1997), 134. Maritain describes the natural law—unwritten law—as “an order or a disposition which human reason can discover and according to which the human will must act in order to attune itself to the essential and necessary ends of the human being.” See

cause. It is through the first principles that are imprinted on practical reason that man is divinely

ordered to his natural end. 38 Within the sphere of human behavior, human reason recognizes acts that are good and must be done and those are evil and must be avoided. Thus, there is a moral law in human nature that prescribes an objective moral standard for man to follow. By following the prescriptions of this law—the natural law—man enhances his dignity; man acts virtuously.

Since law is a rule or measure, a person can take a position of the one that is ruling and measuring, or is ruled and measured. Moreover, as one can be ruled or measured insofar as he partakes of the rule or measure. 39 God rules human beings by imprinting on them their end and

the natural inclinations to that end. Thus, human beings can rule or measure on the basis of who

they are as a result of God’s providential government. 40 In every human being, there is a natural

inclination to act according to reason—to act virtuously. 41 However, as it is wounded and

Maritain, Man and the State , 86; Id., Christianity And Democracy &The Rights of Man And Natural Law , trans. Doris C. Anson (San Francisco: Ignatius Press, 1986), 141; and Joseph W. Evans and Leo R. Ward, The Social and Political Philosophy of Jacques Maritain: Selected Readings (New York: Charles Scribner’s Sons, 1955), 29. It is important to keep in mind that Maritain’s idea of “law” is in line with that of Saint Thomas, who defines it as an ordinance of reason for the common good made by one who has care of the community and is promulgated. The natural law, for Maritain, is the moral law that is natural in two senses. First, it is related to human nature (that is, in terms of human functioning and human ends). Because this law reflects what it is to be human, and is thus common to all human beings because they share the same nature, the natural law has an ontological character. Second, it is natural because of how it is known, that is, in the light of its epistemological (gnoseological) character. Our knowledge of natural law (unwritten law) is no work of free conceptualization, but results from a conceptualization bound to the essential inclinations of being, of living nature, and of reason, which are at work in man. Moreover, it develops in proportion to the degree of moral experience and self-reflection, as well as arises from social experience, of which man has been capable in the various ages of his history. See Maritain, Natural Law: Reflections on Theory & Practice , 8-9; and Id., Man and the State , 94.

38 S. Th ., I a II ae , q. 62, a. 3.

39 S. Th ., I a-II ae , q. 91, a. 2.

40 Benestad, Church, State, and Society , 66.

41 S. Th ., I a-II ae , q. 94, a. 3.

20 weakened by sin, human nature often fails to perceive the dictates of the natural law, causing the man to act rebelliously against his own proper end. These shortcomings require that man undergoes training and instruction of the mind, allowing him to strive for and love what is true and good—the object of his rights. That is how man can live in accordance with his dignity and pursue the ends that are proper to him as a person.

Natural rights, therefore, flow from human dignity and exist as a function of natural law.

In other words, they exist in service to the ends of man. As Hervada further explains:

The primary and fundamental right of man is his finalist being; his being which is ordained towards its ends, from which we can say that the fundamental natural right of man is his ends, which is the same as to say that that primary and fundamental right is to fulfill natural law. Outside the fulfillment of natural law there is no right. 42

Thus, the fulfillment of the natural law and the exercise of human rights serve the same purpose—the realization of the ends of the human being, the beatific vision. Man, therefore, has a moral obligation to use his rights for their proper end—the fulfillment of his destiny—God.

The moral obligation arises because only those attitudes and acts that are in accord with the image of God perfect the human agent. 43 God himself has established a natural order. The natural law ensures that man does not disturb that order, which exists for his good and for the good of others. Throughout human history, man has often used his freedom to disturb this natural order, thereby compromising his dignity. Yet, given that he has such a great dignity, man has the duty to act in accordance with the rights that flow from that dignity. The purpose of man’s creation by God imposes on him both the right and the duty to diligently seek the truth about his

42 Hervada, Natural Law and Natural Right , 162.

43 Benestad, Man, State, and Society , 71-72.

21 whole existence and pursue fulfillment of that purpose. This implies strong correlation between natural rights and obligations, which we will explore in the next section.

5. The Correlativity of Natural Rights to Duties and Obligations Human rights are grounded in the obligation of everyone to perfect one’s own dignity.

This, in turn, obliges one to respect the dignity of others. 44 In fact, when man strives to perfect his dignity, he will attain his proper end in life and will necessarily respect the rights of others.

Indeed, the duty to respect the rights of others comes naturally to those living in accordance with their purpose and dignity. As John XXIII stated: “The possession of rights involves the duty of implementing those rights, for they are the expression of a man’s personal dignity. And the possession of rights also involves their recognition and respect by other people.” 45 Thus, there is an indivisible interrelationship between rights and duties.

In his message to the United Nations on the occasion of the 25 th Anniversary of the

Universal Declaration of Human Rights, Paul VI noted: “While the fundamental rights of man represent a common good for the whole of mankind on its path towards the conquest of peace, it is necessary that all men, ever more conscious of this reality, should realize that in this sphere to speak of rights is the same as spelling out duties.” 46 Rights and duties are indissolubly linked

44 Mary Ann Glendon, Traditions in Turmoil (Ann Arbor, Michigan: Sapientia Press, 2006), 346.

45 PT 44: AAS 55 (1963), 268: “ita ut qui iura quaedam habeat, in eo pariter officium insit sua iura, tamquam suae dignitatis significationes, reposcendi; in reliquis vero officium insit iura eadem agnoscendi et colendi.”

46 Paul VI, Message to the United Nations on the 25 th Anniversary of the Universal Declaration of Human Rights , Décembre 10, 1973, para. 17: AAS 65 (1973) 677: “Si les droits fondamentaux de l’homme représentent un bien commun de toute l’humanité en marche vers la conquête de la paix, il est nécessaire que tous les hommes, prenant toujours mieux conscience de cette réalité, sachent bien qu’en ce domaine parler de droits, c’est aussi énoncer des devoirs.”

because there is a “logical and ontological connection existing between the two aspects of the

same rights: the ‘faculty’ and the ‘obligation’; the right-faculty and the duty-obligation and that

only in a conscientious observance of his fundamental duties together can man demand total

respect of his fundamental rights.” 47 Man can demand complete respect for his fundamental

rights only when he conscientiously respects the duties that these rights imply. Actually, when

man becomes aware of his rights, such awareness must inevitably lead him to the recognition of

his duties. Indeed, the fundamental correlation between rights and duties is manifested in two

stages.

The first stage occurs when the possessor of a right, aware of the right and the respect

owed to it, also becomes aware of the duties that are inextricably linked to this right, as well as

of his obligation to discharge those duties. 48 John XXIII explained such self-awareness as

follows:

47 Pontificia Commissione “Justitia et Pax” documenta di lavoro n.1, La Chiesa e i diritti dell’uomo , n. 4, Città del Vaticano 1975, as quoted by Domenico Capone, “Correlazione tra Diritti e Doveri” in I Diritti Umani: Dottrina e prassi ed. G. Ambrosetti et al. (Roma: A.V.E.- An, Veritas Editirce, 1982), 782: “La connessione logica ed ontologica esistente tra i due aspetti del diritto stesso: la ’facultas’ et la ‘obligatio’; il diritto-facultà et il dovere-obligazione. Solamente insieme all’osservanza cosciente dei suoi doveri fondamentali, l’uomo può esigere un totale rispetto dei suoi diritti fondamentali.” See also Max Radin, “Natural Law and Natural Rights,” The Yale Law Journal 59 (1950): 218, who strongly insists that “The terms ‘duty’ and ‘right’ are not supplementary nor do they imply each other. They are the same thing. They are the same relation looked at first from one end and then from another. That is why duties cannot be nobler or better than rights. When we have two aspects of the same thing, one cannot very well be superior to the other in fact, though it may have, as a word ‘finer’ connotation.” Radin in “A Restatement of Hohfeld,” Harvard Law Review LI (1938): 1148-51 even argues that a demand-right and duty statement are not correlated because they are not two aspects of the same concept, but rather absolutely its two equivalent statements. However, he also gives examples of important uses of correlatives in any statement of law. The legal, semantic, and moral implications in these distinctions are beyond the scope of this work. See also David Lyons, “The Correlativity of Rights and Duties,” Noûs 4:1 (February, 1970): 48, who notes that the expression of the content of the right is related to the expression of the content of the obligation, as the passive is related to the active voice.

48 Pontifical Commission “Iustitia et Pax,” The Church and Human Rights , n. 6

The natural rights of which We have so far been speaking are inextricably bound up with as many duties, all applying to one and the same person. These rights and duties derive their origin, their sustenance, and their indestructibility from the natural law, which in conferring the one imposes the other. Thus, for example, the right to life involves the duty to preserve one’s life; the right to a decent standard of living, the duty to live in a becoming fashion; the right to be free to seek out the truth, the duty to devote oneself to an ever deeper and wider search for it. 49

If one fails to see that rights are interrelated with duties, these rights can become mere license and thus be misused. 50 In fact, “They have been increasingly invoked to justify abortion, euthanasia, suicide, physician-assisted suicide, and marriage between people of the same sex.

People can appeal to their rights as a justification for not making any contribution to the communities in which they live.” 51 Indeed, today, as appeals to rights are increasingly being made without any acknowledgment of the corresponding duties,

individual rights, when detached from a framework of duties which grants them their full meaning, can run wild, leading to an escalation of demands which is effectively unlimited and indiscriminate. An overemphasis on rights leads to disregard for duties. Duties set a limit on rights because they point to the anthropological and ethical framework of which rights are a part, in this way ensuring that they do not become a license. Duties

49 PT 28 and 29: AAS 55 (1963), 264: “Quae hactenus commemoravimus iura, a natura profecta, in eodem homine, cui competunt, cum totidem coniunguntur officiis; eademque iura et officia a lege naturae, qua vel tribuuntur vel imperantur, et originem, et alimentum, et firmissimam vim ducunt. Itaque, ut nonnullis utamur exemplis, hominis ius in vitam, cum illius cohaeret officio suae vitae conservandae; ius in dignum vitae genus, cum officio decore vivendi; ius veritatem libere vestigandi, cum officio veritatem altius latiusque in dies quaerendi .”

50 CV 43: AAS 101 (2009), 679.

51 J. Brian Banestad, “Three Themes in Pope Benedict XVI’s Caritas in Veritate ,” Nova et Vetera , English Edition, 8 (2010): 732.

thereby reinforce rights and call for their defense and promotion as a task to be undertaken in the service of the common good. 52

The correlation between rights and duties stems from the recognition that the goods both pertain to are essential to human flourishing. These are not, at least in their most fundamental and universal forms, optional for human beings. 53 Man is created for a purpose. In order to realize it, albeit in freedom, he is obliged to follow a path, lest he risks forfeiting his ultimate end. Thus, the individual is not in a condition of pure liberty and discretion with regard to those goods, but remains under moral obligation to pursue them. 54 This demands that freedom is not separated from the law because the law in question—the natural law—is the law of freedom, without which no genuine freedom would be possible.

In his address to the Roman Rota in 1977, Paul VI elaborated on the protection of justice in the new Code of Canon Law. He emphasized that the domain of human rights is being consonantly extended as human dignity becomes ever clearer. Thus, in the Church, justice must be protected in the new code because the communion of the Church is constituted of both the faithful and the pastors. The Church recognizes the need for both to build up the body of Christ in freedom and responsibility. Consequently, he stated:

[T]he baptized cannot effectively exercise their fundamental rights unless they also acknowledge the duties which baptism brings and, especially, unless they are convinced that these rights are to be

52 CV 43: AAS 101 (2009), 679: “iura singulorum, officiis absoluta, quae eis completum sensum tribuant, insaniunt et infinitam rogationum seriem et iudicio carentem alunt. Exaggerata iura ad oblivionem obligationum ducunt. Officia iura coërcent quoniam remittunt ad visionem anthropologicam et ethicam in cuius veritatem etiam haec postrema se inserunt et non fiunt arbitria. Quamobrem officia confirmant iura et proponunt eorum tutelam et promotionem uti munus in boni utilitatem assumendum.”

53 John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 2005).

54 Langan, “Human Rights in Roman Catholicism,” 30.

exercised with the communion of the Church. Believers must realize that rights are given for the sake of building up the Body of Christ, the Church, and must, therefore, be exercised in orderly and peaceful way and may not be used to inflict harm. 55

When John Paul II spoke specifically of the defense of marital consent by the Church, he emphasized that, when a person elicits marital consent, this implies the acceptance of the symbolic value of the duties undertaken. “One who gives oneself does it with the awareness of obliging oneself to live one’s giving of oneself to the other. If one grants to the other person a right, it is because one wishes to give oneself; and one gives oneself with the intention of obliging oneself to carry out what is required by the total giving one has freely made.” 56 This clearly demonstrates the logical and ontological connection between the right-faculty and the duty-obligation. Indeed, rights and duties are aspects of the same reality and thus coexist in the same subject.

The second stage of the correlation between rights and duties stems from the relationship that exists between the right of one person and the obligation of others to recognize and respect it. Once this reciprocity is admitted, it follows that

in human society one man’s natural right gives rise to a corresponding duty in other men; the duty, that is, of recognizing and respecting that right. Every basic human right draws its

55 Paul VI, Allocution to the Roman Rota, February 4, 1977, para. 11: AAS 69 (1977) 149: “Sed iura fundamentalia baptizatorum non sunt efficacia neque exerceri possunt, nisi quis officia ipso baptismate cum illis conexa agnoscat, praesertim, nisi persuasum sibi habeat eadem iura in communione Ecclesiae esse exercenda; immo haec iura pertinere aedificationem Corporis Christi, quod est Ecclesia, ideoque eorum exercitationem ordini et paci convenire, non autem licere, ut detrimentum afferant.” See also John Paul II, Allocution to the Roman Rota, February 17, 1979, n. 3: AAS 71 (1979) 425, where this same text of Paul VI is cited verbatim.

56 John Paul II, Allocution to the Roman Rota, January 28, 1982, n. 6: AAS 74 (1982) 451: “Colui che si dona, lo fa con la consapevolezza d’obbligarsi a vivere il suo dono all’altro; se egli all’altro concede un diritto, è perché ha la voluntà di donarsi: e si dona con l’intenzione di obbligarsi a realizzare le esigenze del dono totale, che liberamente ha fatto.”

authoritative force from the natural law, which confers it and attaches to it its respective duty. Hence, to claim one’s rights and ignore one’s duties or only half fulfill them, is like building a house with one hand and tearing it down with the other. 57

The duty to acknowledge and respect the rights of others is grounded in the fact that all people

are created equal; “they have the same nature and origin, have been redeemed by Christ, and

enjoy the same divine calling and destiny.” 58 Since they have the same rights, all members of the

social whole also have the duty to acknowledge and respect the rights of others. In other words,

those who claim rights for themselves without acknowledging the rights of others are guilty of a

fundamental inconsistency. 59 They deprive the community of the duties they, in justice, owe to it, which foster the common good. In doing so, they also jeopardize the respect for the rights and freedoms of others. 60 In addition, the correlativity of rights to duties arises because of the object

57 PT 30: AAS 55 (1963), 264: “ut in hominum consortione unius hominis naturali cuidam iuri officium aliorum hominum respondeat: officium videlicet ius illud agnoscendi et colendi. Nam quodvis praecipuum hominis ius vim auctoritatemque suam a naturali lege repetit, quae illud tribuit, et conveniens iniungit officium. Qui igitur, dum iura sua vindicant, officia sua vel omnino obliviscuntur, vel aequo minus praestant, iidem sunt cum iis veluti comparandi, qui altera manu aedam exstruunt, altera evertunt.”

58 GS 29 §1, AAS 58 (1966), 1048; Abbott, 227: “eamdem naturam eamdemque originem habeant, cumque, a Christo redempti, eadem vocatione et destinatione divina fruantur.” Benedict XVI, “Address to participants in the plenary session of the Pontifical Council of Migrants and Travelers,” Vatican City, May 28, 2010, under “Zenit,” http://www.zenit.org/article-29411?1=english (accessed February 28, 2010) said inter alia , “Appreciable is the effort to build a system of shared norms that contemplate the rights and duties of the foreigner, as well as those of the host community, taking into account, in the first place, the dignity of every human person, created by God in his image and likeness (cf. Genesis 1:26). Obviously, the acquisition of rights goes hand in hand with the acceptance of duties. All, in fact, enjoy rights and duties that are not arbitrary, because they stem from human nature itself, as Blessed Pope John XXIII's encyclical ‘Pacem in Terris’ affirms: ‘Every human being is a person, that is a nature gifted with intelligence and free will; and hence subject of rights and duties which are, because of this, universal, inviolable, inalienable’ (No. 5).”

59 PT 30: AAS 55 (1963), 264.

60 EV 69: AAS 87 (1995), 481, where he shows that the elevation of the individual freedom of some has led to the violation of the freedom of others; Smith, The Right to Privacy , 15-16; The United Nations Universal Declaration of human Rights, Art. 29, recognizes the correlativity of rights to duties as a guarantee for the respect of the rights

27 of rights—the person’s good and the good of others, which are inextricably linked because man is a social being. As John XXIII stated:

Since all men are social by nature, they must live together and consult each other’s interests. That men should recognize and perform their respective rights and duties is imperative to a well ordered society. But the result will be that each individual will make his whole-hearted contribution to the creation of a civic order in which rights and duties are ever more diligently and more effectively observed. 61

The reciprocity of rights and duties also provides human beings with a means of realizing integrally human, material, and spiritual values because they have a transcendental vocation.

Such reciprocity allows human beings to gain a better understanding of the true God who is personal and transcendent. It helps them develop a better relationship with Him, which is the very foundation of human life. As John XXIII explained:

When society is formed on a basis of rights and duties, men have an immediate grasp of spiritual and intellectual values, and have no difficulty in understanding what is meant by truth, justice, charity and freedom. They become, moreover, conscious of being members of such a society. And that is not all. Inspired by such and freedoms of others. It states: 1. “Everyone has duties to the community in which alone the free and full development of his personality is possible.” 2. “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”; See also Glendon, Rights Talk, 15, who points out the dangers of dissociating rights from duties. She says: “By indulging in excessively simple forms of rights talk in our pluralistic society, we needlessly multiply occasions for civil discord . . . Our simplistic rights talk regularly promotes the short- term over the long-term, sporadic crisis intervention over systemic preventive measures, and particular interests over the common good . . . Even worse, it risks undermining the very conditions necessary for preservation of the principal value it thrusts to the foreground: personal freedom . . . it corrodes the fabric of beliefs, attitudes, and habits upon which life, liberty, property, and all other individual and social goods ultimately depend.”

61 PT 31: AAS 55 (1963), 264-65: “Cum homines sint natura congregabiles, ii oportet alii cum aliis vivant, atque alii aliorum quaerant bonum. Hanc ob causam rectam compositus hominum convictus postulat, ut iidem pariter iura pariter officia mutuo fateantur et faciant. Ex quo etiam nascitur, ut quisque magno animo sociam praebeat operam ad eiusmodi civium consuetudinem parandam, in qua iura et officia diligentius usque et fructuosius colantur.”

principles, they attain to a better knowledge of the true God—a personal God transcending human nature. They recognize that their relationship with God forms the very foundation of their life—the interior life of the spirit, and the life which they live in the society of their fellows. 62

The reciprocity of rights and duties in marriage clearly exemplifies the transcendental vocation of the human being. Because it is a sacrament, marriage is one of the seven privileged means to attain salvation. Because God Himself is the author of marriage, no one enters marriage in pursuit of his own interests, but rather aims to live the married life according to the laws that emanate from the very institution itself, for his own good and for the good of the wider community. This is one example of active involvement of persons in exercising their rights and fulfilling their duties in society. As such, it provides at least the possibility of meeting the demands of justice and attaining the common good through its institutions and practices.

It is worth mentioning here that, in dealing with human rights, we must keep in mind that the correlativity of rights to duties is not limited to the individual alone, but it includes also the rights and duties of entire societies with their groups and minorities. The moral law not only governs relations between individual human beings, but also regulates political communities and their relationships with one another. Thus, human rights and responsibilities pertain to the political community, just as they do to individuals. In other words, the political communities have the responsibility to protect not only the common good of their own members, but also the

62 PT 45: AAS 55 (1963), 268-69: “Atque cum civium disciplina ad iura officiaque informatur, tunc homines continuo res ad animum mentemque pertinentes deprehendunt, plane quid veritas sit, quid iustitia, quid caritas, quid libertas intellegunt, iidemque conscii fiunt se huiusmodi societatis esse membra. Neque id satis; nam huius generis causis commoti homines ad verum Deum melius cognoscendum feruntur, nempe supra humanam naturam positum personaque praeditum. Quam ob rem rationes, quae iis cum Deo intercedunt, quasi fundamentum suae vitae existimant: id est vitae, quam vel intus in animo suo vivunt, vel cum reliquis hominibus consociaverunt.”

29 common good of the entire human family. Here, the usage of the term “common good” raises some pertinent questions: What does the term “common good” mean? What does it consist of?

What is its relationship with natural rights? These issues will be examined in the next section.

6. The Relationship Between Natural Rights and the Common Good

In this section, I shall analyze the meaning of the term “common good” and its components, as well as its relationship with natural rights. This approach is necessary because it lays the foundation for a clear understanding of the broader vision of this project—whether the exercise of the natural right of HIV/AIDS carriers to marry could frustrate or promote the common good and therefore could be restricted or not.

a) The Meaning of the Common Good ( bonum commune ) The term “common good” can be understood both as a value in itself and, as a means to an end. As a value in itself, it means “a comprehensive term for all the values which belong to fully developed humanity, the full exercise and realization of all the potentialities and faculties inherent in man in society.” 63 As a relative value and means to an end, it is understood as “the sum of all the general presuppositions or conditions which the individual cannot provide for himself and which must be already available for him if he is to develop in a fully human way, at all, or without too much difficulty.” 64 Magisterial teaching usually employs the second definition, as will be shown shortly.

63 Oswald von Nell-Breuning, “The Life of the Political Community,” in Commentary on the Documents of Vatican II , ed. Herbert Vorgrimler, 5 vols. (New York: Herder and Herder, 1967) [hereafter Commentary ] 5: 318.

64 Ibid., 318.

In its treatment of the common good, the Pontifical council for Justice and Peace begins

by explaining what the common good does not entail. It states:

The common good does not consist in the simple sum of the particular goods of each subject of a social entity. Belonging to everyone and to each person, it is and remains “common,” because it is indivisible and because only together it is possible to attain it, increase it and safeguard its effectiveness, with regard also to the future. 65

If the sum of the particular goods of each subject of a social entity does not equate to the

common good, how is it defined? The Catechism of the Catholic Church answers this question

by stating that, by common good, we understand “the sum total of social conditions which allow

people, either as groups or as individuals, to reach their fulfillment more fully and more

easily.” 66 The sum of these social conditions produces circumstances that enhance the dignity of

the human person. Most importantly, those conditions can only exist in an ordered society,

whose members practice virtue. Thus, society has a genuine function of service to smaller groups

65 CSDC n. 164. Maritain, The Person and the Common Good , 42, takes a similar approach when he states that the common good of political society is not only the collection of public commodities and services—the roads, ports, schools, etc.—which the organization of common life presupposes. It also requires a sound fiscal condition of the state and its military power; the body of just laws, good customs and wise institutions, which provide the nation with its structure; and the heritage of its great historical remembrances, its symbols and its glories, its living traditions and cultural treasures. The common good includes all of these and something much more important— something more profound, more concrete and more human. For it includes, above all, the whole sum itself of these—a sum that is much more than a simple collection of juxtaposed units. According to Maritain, “It includes the sum or sociological integration of all the civic conscience, political virtues and sense of right and liberty, of all the activity, material prosperity and spiritual riches, of unconsciously operative hereditary wisdom, of moral rectitude, justice, friendship, happiness, virtue and heroism in the individual lives of its members.”

66 CCC n. 1906. See also Leo XIII, encyclical letter Rerum novarum , May 15, 1891, n. 40: ASS 23 (1890-91) 659-60 (The numbering in Rerum novarum is of the edition of the Catholic Truth Society, London – Publishers to the Holy See ); Pius XII, encyclical letter Summi Pontificatus , October 20, 1939, n. 58: AAS 31 (1939) 433; MM 65: AAS 53 (1961), 417; PT 58: AAS 55 (1963), 273; GS 26 §1 and 74, AAS 58 (1966), 1046 and 1096: Abbott, 225 and 284; and Vatican II, declaration Dignitatis humanae 6 in AAS 58 (1966) 933; English translation in Documents of Vatican II , ed. Walter M. Abbott (London: Geoffrey Chapman Publishers, 1972) [hereafter Abbott] 683.

31 and especially to the human person. Indeed, political authority has an important role to play in this regard. Its influence is exerted through the laws it enacts to ensure the proper coordination of the rights of all citizens and to safeguard the rights and duties of all, for the interest of all. As

John XXIII stated:

The chief concern of civil authorities must therefore be to ensure that these rights are recognized, respected, co-ordinated, defended and promoted, and that each individual is enabled to perform his duties more easily. For ‘to safeguard the inviolable rights of the human person, and to facilitate the performance of his duties, is the principal duty of every public authority. 67

The Church also has a crucial role to play in creating the environment where people can reach their perfection more fully and more easily. It strives to create conditions that enable all people to exercise their rights and fulfill their duties in a coordinated manner for their good and for the good of others. She does this through her evangelizing mission that enables people to thirst for greater justice, which is indispensable for the pursuit of the common good. Indeed, the promotion of the common good is only possible through the instrumentality of good citizens.

But, what does the common good actually consists of?

67 PT 60: AAS 55 (1963), 274: “tum praecipue in eo sint oportet curatorum rei publicae partes, ut hinc iura agnoscantur, colantur, inter se componantur, defendantur, provehantur, illinc suis quisque officiis facilius fungi possit. Etenim inviolabilia iura tueri, hominum propria, atque curare, ut facilius quisque suis muneribus defungatur, hoc cuiusvis publicae potestatis officium est praecipuum .” (emphasis in the original)

b) The Elements of the Common Good

From the Catechism of the Catholic Church, we learn that the common good consists of three essential elements, the first being reflected in that it presupposes respect for persons as such. 68 This implies that public authority 69 has to respect the fundamental and inalienable rights

of persons by creating the conditions in which individuals can exercise their rights in freedom to

fulfill their vocation. Since rights are always accompanied by corresponding duties, this respect

for persons implies that the common good can only be guaranteed when rights are protected and

duties fulfilled. 70 The government thus has a duty to do everything possible to protect the rights of its citizens, to provide what they need to exercise their rights freely. In return, each individual citizen must also make his own contribution toward the well-being of the society as a whole.

However, in this context, the individual and society cannot be placed on an equal footing. As a part of a community, an individual must be ready to devote himself to the pursuit of the well- being of that community, thus ensuring that all its members may have what is necessary for

68 CCC n. 1907. The Catechism states: “[T]he common good presupposes respect for the person as such. In the name of the common good, public authorities are bound to respect the fundamental and inalienable rights of the human person. Society should permit each of its members to fulfill his vocation.” (Emphasis in the original)

69 We must emphasize here that there is an intrinsic connection between the inner significance of the common good and the nature and function of public authority. PT 136: AAS 55 (1963), 293 explains: “Public authority, as a means of promoting the common good in civil society, is a postulate of the moral order. But the moral order likewise requires that this authority be effective in attaining its end. Hence the civil institutions in which such authority resides, becomes operative and promotes its ends, are endowed with a certain kind of structure and efficacy: a structure and efficacy which makes such institutions capable of realizing the common good by ways and means adequate to the changing historical conditions.” [Etenim moralis ordo, quemadmodum publicam auctoritatem postulat ad bonum commune in civili societate promovendum, similiter requirit, ut eadem auctoritas id reapse efficere possit. Ex quo fit, ut civilia instituta—in quibus publica auctoritas vertitur, operatur suumque finem consequitur—tali forma ac tali efficacitate sint praedita, ut ad commune bonum conducere valeant viis ac rationibus, quae variis rerum momentis apte respondeant.] Indeed, the sole reason for the existence of civil authority is for the promotion of the common good. See PT 57: AAS 55 (1963), 273.

70 PT 60: AAS 55 (1963), 273-74.

33 human life. For its part, society must not endanger the independence, privacy, and just freedom of the individual. 71 Indeed, the social order exists for the sake of persons, and not vice versa, as

Semmelroth explains:

The very service which a person performs for society in fact promotes his own development. It does so not only in the sense that the social order built up by common service will be useful to each individual member, but even more in the sense that the individual’s unselfish service of the social order is precisely what develops his own person and increase his dignity. 72

Actually, the common services—the family, the Church, schools, and other mediating services—help to prepare and equip the individual with the necessary skills and knowledge to fulfill his responsibilities. Yet, in the final analysis, the individual is the one who must perform those duties that flow from the exercise of his rights. Of course, public authority too has to perform its own duties toward these institutions, and thus implicitly all members of society.

Hence, the promotion of the common good requires the respect of rights, together with the performance of duties by public authority and ordinary citizens toward each other. 73

Regarding the exercise of the natural right of people to marry, civil authority and the

Church are expected to show respect for persons by doing everything possible to protect the exercise of this fundamental right of every human being—healthy or sick. Both institutions do so by ensuring that individuals entering marriage are free of any possible coercion. However, those

71 Otto Semmelroth, “The Community of Mankind,” in Commentary on the Documents of Vatican II , ed. Herbert Vorgrimler, 5 vols. (New York: Herder and Herder, 1967) [hereafter Commentary ] 5:170.

72 Semmelroth, 171.

73 Benestad, Church, State, and Society , 87.

34 who are called to this vocation would also be expected to fulfill the duties that flow from the exercise of this right, for their good and for the common good.

Second, the common good requires the “social well-being and development of the group itself.” 74 This means that public authority is responsible for making accessible to everyone what is needed to lead a truly human life—food, clothing, health, work, education, civil liberties, et cetera—because these goods help man to perfect his life and liberty and facilitate the attainment of his proper end as a human person. 75 Surely, these instrumental goods are not all that the human person needs. As man is a person—body and soul—meeting only his physical needs would leave his soul malnourished. Thus, he also requires the essential goods that perfect the soul—faith, spirituality, morality, et cetera. In pursuit of the attainment of the common good, society, therefore, must be ready to foster those conditions of social life that would enable man to realize both the needs of his body and the interests of his soul. 76 In this way, as Leo XIII noted, man increases his capability of attaining the supreme good—everlasting happiness with his

Creator. Leo XIII further stated:

For public authority exists for the welfare of those whom it governs; and, although its proximate end is to lead men to the prosperity found in this life, yet, in so doing, it ought not to diminish, but rather to increase, man’s capability of attaining to the

74 CCC n. 1908.

75 David Hollenbach, The Common Good and Christian Ethics , 70-71.

76 RN 40: ASS 23 (1890-91), 659-60; SPo 58: AAS 31 (1939), 433; and PT 57: AAS 55 (1963), 273.

supreme good in which his everlasting happiness consists: which never can be attained if religion be disregarded. 77

As there is a hierarchy of values in life, political authority must respect this hierarchy and strive

toward achieving the spiritual through the instrumentality of the material prosperity of their

subjects in exercising its duty of safeguarding the common good. 78 This is important because

“[L]ife on earth, however good and desirable in itself, is not the final purpose for which man is

created; it is only the way and the means to that attainment of truth and that love of goodness in

which the full life of the soul consists.” 79 Thus, the measures that governments pursue to

promote the common good must not jeopardize man’s eternal salvation, but rather help him to

attain it. 80

Specifically, when we look at marriage, the pastoral constitution Gaudium et spes recognizes that marriage and family life has dignity that has to be promoted. This is reflected in the following teaching: “The well-being [ salus ] of the individual person and of human and

Christian society is intimately linked with the healthy condition of that community produced by

77 Leo XIII, encyclical letter Libertas praestanstissimum , June 20, 1888, n. 21: Acta Leonis XIII, 8 (1878) 231: “Publica enim potestas propter eorum qui reguntur utilitatem constituta est: et quamquam hoc proxime spectat, deducere cives ad huius, quae in terris degitur, vitae prosperitatem, tamen non minuere, sed augere homini debet facultatem adipiscendi summum illud atque extremum bonorum, in quo felicitas hominum sempiterna consistit: quo perveniri non potest religione neglecta.” ( The numbering in the Libertas praestantissimum is of the Angelus Press Edition, Missouri, 2005 ); See also Pius XI, encyclical letter Quadragesimo anno , May 15, 1931, n. 118: AAS 23 (1931) 215; Pius XII, Radio Message Broadcast Pentecost Sunday, June 01, 1941: AAS 33 (1941) 200; PT 60: AAS 55 (1963), 273-74; John Paul II, Address to the European Commission and the European Court of Human Rights , October 08, 1988, para. 3: AAS 81 (1989) 684; Maritain, The Person and the Common Good , 41; Id., Scholasticism and Politics , 72-73; and Id., Christianity and Democracy and The Rights of Man and Natural Law , 94.

78 PT 57: AAS 55 (1963), 273; and SPo 59: AAS 31 (1939), 433.

79 RN 40: ASS 23 (1890-91), 659: “Siquidem vita mortalis quantumvis bona et optabilis, non ipsa tamen illud est ultimum, ad quod nati sumus: sed via tantummodo atque instrumentum ad animi vitam perspicientia veri et amore boni complendam.”

80 PT 59: AAS 55 (1963), 273.

36 marriage and family.” 81 The family is the cradle of life, the first school for children to learn to practice virtue and come to be aware of their duties toward others. Because so many great goods flow from domestic well-being, Gaudium et spes urges both civil society and the government to promote the good of marriage and family. It states: “Public authority should regard it as a sacred duty to recognize, protect, and promote their authentic nature, to shield public morality, and to favor the prosperity of domestic life.” 82 Indeed, to favor the prosperity of domestic life promotes the common good that may seemingly be only terrestrial. In fact, it also has a transcendental goal, which is the most intimate reason for the existence of the common good. 83

Third, the common good requires “peace,” 84 which does not only imply the absence of social unrest but a “genuine public peace, which comes about when men live together in good order and in true justice.” 85 For the common good to thrive, it requires stability and security of a just order, achievable only by adhering to the will of God through the practice of the virtues. 86

This requires collective effort; it is a responsibility of every citizen. 87 Thus, all the elements of

81 GS 47, AAS 58 (1966), 1067; Abbott, 249: “Salus personae et societatis humanae ac christianae arcte cum fausta condicione communitatis coniugalis et familiaris connectitur.”

82 GS 52, AAS 58 (1966), 1073; Abbott, 257: “Potestas civilis veram eorumdem indolem agnoscere, protegere et provehere, moralitatem publicam tueri atque prosperitati domesticae favere, ut sacrum suum munus consideret.”

83 CSDC n. 170 states: “The common good of society is not an end in itself; it has value only in reference to attaining the ultimate ends of the person and the universal common good of the whole of creation. God is the ultimate end of his creatures and for no reason may the common god be deprived of its transcendental dimension which moves beyond the historical dimension while at the same time fulfilling it.”

84 CCC n. 1909.

85 DH 7, AAS 58 (1966), 935; Abbott, 687: “a sufficienti cura istius honestae pacis publicae quae est ordinata conviventia in vera iustitia, et a debita custodia publicae moralitatis.”

86 Benestad, Church, State, and Society , 89.

87 CSDC nn 168 and 417

37 the social order—public authority, individuals, voluntary associations, the Church, et cetera— have the duty to ensure the security of society and of its members through the enactment and support of just laws and good moral education. This is an indispensable requirement for the promotion of the common good.

Promotion of the common good requires certain values—truth, justice, charity, virtue and duty consciousness—that are indispensable in the social order. Here, the Church plays an instrumental role in fostering these values through her ministry of preaching. It is through faith that divine demands are realized and the natural law reflected in daily living. Yet, success in this regard is only guaranteed through a firm and persevering determination of each individual to commit oneself to the common good. In other words, our motives and actions must be geared toward the good of all and of each individual, because we are all responsible for all. 88 From this perspective, we see that the exercise of the right to marry by a member of the community—sick or healthy—means that such an individual commits himself/herself firmly to the promotion of peace in the particular institution, marriage. This unwavering commitment is further reflected in the way one lives within the family and in the wider community.

The attainment of peace is an enterprise of everyone in solidarity. Pierpaolo Donati talks of reciprocity, which can be understood in the context of solidarity. He explained:

88 SRS 38: AAS 80 (1988), 565-66. Surely, the commitment of each individual to the promotion of the common good would depend on the person’s state of life in society. “Special consideration must given to the poor, those who suffer precariousness in their lives, those who are marginalized, those whose fate in the so-called human society is exclusion, both within each social group and within each nation and above all, at world level where a multitude of people and countries suffer extreme poverty, whilst in other regions there is abundance and waste.” See José T. Raga, “Is Reciprocity The Best Path For The Common Good?” in Pontifical Academy of Social Sciences, Pursuing the Common Good: How Solidarity and Subsidiarity Can Work Together, ed. Margaret S. Archer and Pierpaolo Donati (Vatican City: Casina Pio IV, 2008), 520.

[R]eciprocity is a mutual helping, performed in a certain way. In other words, reciprocate is help concretely given by Ego to Alter in a context of solidarity (that is, one of common responsibility and recognized interdependency), i.e. such that Ego is aware (recognizes) that Alter would do the same when required (namely, Alter would assume his/her responsibility within the limits he or she can afford) when Ego needs it. 89

In the context of solidarity, reciprocity has meaning only when it is grounded in the recognition of the dignity of the other because the common good derives its meaning from serving the other person in his dignity. This is more evident in marriage, where the spouses give themselves to each other unconditionally for the rest of their lives. The fulfillment of the obligations that arise from such total giving of self to each other is the avenue through which peace flows into the marriage and the family, thereby promoting the good of the wider community.

c) The Relationship between Natural Rights and the Common Good

There is, therefore, a relationship between natural rights and the common good—the link between human actions and the well-being of the community. This relationship arises because of the nature of the human being—a person that is capable of self-knowledge, of self-possession, and of freely giving himself and entering into communion with other persons. Man is a social being by nature, 90 because that is how God created him. 91 We are brought into existence to live

89 Pierpaolo Donati, “Discovering the Relational Character Of The Common Good,” in Pontifical Academy of Social Sciences, Pursuing the Common Good: How Solidarity and Subsidiarity Can Work Together, ed. Margaret S. Archer and Pierpaolo Donati (Vatican City: Casina Pio IV, 2008), 671.

90 GS 12, AAS 58 (1966), 1034; Abbott, 211 and CCC n. 1879. Aristotle in his Politics Book I, 1253 a2 refers to man as a political animal because, as a reasonable animal, he craves political and communal life, not only with regard to the family community, but also with regard to the civil community. See also Maritain, Scholasticism and Politics , 72.

91 PT 31: AAS 55 (1963), 264-65.

in society, to grow and realize our vocation only in relation with others. This corporate vocation

of the human being has three intrinsically connected features. 92

The first is the vertical dimension—man’s relationship with his God, as the only being

that has a capacity for God ( homo est Dei capax ). 93 This shows that all men form a community in

God’s sight, since they are all created in the image and likeness of God. Consequently, they have

a common destiny.

The second is the horizontal dimension—man’s relationship with his fellow human

beings. This dimension arises directly from the vertical one, as all peoples have a common origin

and characteristics, and are, therefore, related to each other. Thus, man is a “relational subject,”

one that is not only free and responsible, but also recognizes the necessity of integrating himself

in cooperation with his fellow human beings. Above all, he is capable of communion with others

through knowledge and love. 94 The theologian David Hollenbach styles this communion among

human beings as “personalist communitarianism” 95 because society is indispensable for man to

foster his dignity as a human person.

92 Semmelroth, Commentary, 166-67.

93 CSDC n. 109.

94 International Theological Commission, The Dignity and Rights of the Human Person , section 3.2.1., par. 6; CSDC , n. 149; Pierpaolo Donati, “The Common Good as a Relational Good,” Nova et Vetera , English Edition 7 (2009): 606; Maritain, The Person and the Common Good , 37; Id., Scholasticism and Politics , 71; Id., Christianity and Democracy and the Rights of Man and Natural Law, 91; and Id., Christianity, Democracy, and the American Ideal: A Jacques Maritain Reader , com. & ed. James P. Kelly (New Hampshire: Sophia Institute Press, 2004), 40.

95 David Hollenbach, “The Common Good Revisited,” Theological Studies 50 (1989): 85. See also James A. Coriden, The Rights of Catholics in the Church (New York: Paulist Press, 2007), 12-13; and Maritain, Freedom in the Modern World, 46-47, where he explains the terms “personalist” and “communal”; and Id., The Person and the Common Good , 55, where Maritain states that the terms “personalist” and “communal” call for and imply one another. Thus, the problem of person and the common good should not be posed in terms of opposition but rather in terms of reciprocal subordination and mutual implication.

The third dimension is triangular, for it involves the relationship of God with each individual person that, in turn, establishes relationships with his fellow human beings who are also related to God. This unity is fostered by the love of God for each human being and the love of each human being for his neighbor. Man, therefore, can truly find himself only by meeting and giving himself to others through mutual relations in the interaction of life in society. Indeed, the person is never, in any respect or in any circumstance, completely independent of society; neither is his well-being, which is to be found in the common good of society. Thus, through the exercise of their rights for the good of each, a unity and interconnection of persons and society is created, which gives rise to the correlation of human rights to the common good. Therefore, the exercise of the right of HIV/AIDS carriers to marry must be evaluated in the light of the relationship of God with the parties, the mutual relationship between the spouses, and their relationship with the other members of the wider community.

Because it is an ethical good, the good of individual members and the common good of the political community are not in opposition. However, the true good of persons, which the common good is supposed to ensure, is sometimes threatened by tensions and conflicts that arise in the community. At the foundations of such tensions and conflicts stands the problem of relating human dignity and the freedom of each person because the goods to pursue and the values to defend though common may not be pursued and defended in the same manner. The deeper problem is actually the rightful exercise of one’s rights and the duty to respect the rights of others. In this context, the priority of duties over rights is often overlooked. Those who advocate only for one’s rights while neglecting the corresponding duties promote a false autonomy that neither maintains nor enhances the dignity of the human person, the immediate

41 source of rights, but annihilates it. 96 Because of such situations, political authority has the duty to coordinate the rights of all citizens to ensure that the rights and duties of all are safeguarded for the interest of all. As John XXIII stated:

One of the principal duties of any government, moreover, is the suitable and adequate superintendence and co-ordination of men’s respective rights in society. This must be done in such a way 1) that the exercise of their rights by certain citizens does not obstruct other citizens in the exercise of theirs; 2) that the individual, standing upon his own rights, does not impede others in the performance of their duties; 3) that the rights of all be effectively safeguarded, and completely restored if they have been violated. 97

In coordinating the rights of citizens, the government creates a climate in which the individual can readily both safeguard his own rights and fulfill his duties. The task of government in this regard is a delicate one because it must maintain a balance of augmenting the individual citizen’s freedom of action while effectively guaranteeing the protection of everyone’s essential, personal rights. 98 This means that there can be instances when certain citizens may be restricted from exercising their natural rights, if the common good would be threatened as a result. We shall examine this possibility in the next section.

96 GS 41, AAS 58 (1966), 1060; Abbott, 241.

97 PT 62: AAS 55 (1963), 274: “Praeterea ii qui reipublicae gubernacula tractant in praecipuo officio sunt apte convenienterque iura, quibus homines alii cum aliis societate coniunguntur, ita componere et moderari, ne primum cives iura sua persequentes, alteros in suis iuribus interpellent; ne deinde alius sua servans iura, alios officia sua obeuntes retardet; ut postremo omnium iura cum efficaciter sarta tecta conserventur, tum in integrum, si quae violata sint, restituantur”; Pius XI, encyclical letter Divini Redemptoris , March 19, 1937, n. 33: AAS 29 (1937) 81; and John Paul II, Address to the European Commission and the European Court of Human Rights , October 08, 1988, n. 3: AAS 81 (1988) 684.

98 MM 55: AAS 53 (1961), 415.

7. The Restriction of the Exercise of Natural Rights for the Common Good

As a being that is the master of his own self, man makes choices that cannot always be congruent with those of his neighbor. Conflict of choice and of action is a reality in any human community. Such disharmony arises from the nature of the human being, a composite of matter, which we can refer to as “individuality,” 99 and of spirit, which we can refer to as

“personality.” 100 As a person, the human being tends to communion on account of his dignity in the order of knowledge and of love. Yet, as an individual, he is part of a species, man, who needs the help of his fellowmen in order to fulfill himself. Tensions and conflicts arise in the social whole from human agency when man, using his freedom, gives preponderance to the individual aspect of his being, which is inclined to evil. Consequently, he sometimes violates the rights of other rights-holders and also chooses goods that may threaten the common good of the social whole of which he is a part. Such conflicts can only be resolved by public authority with power, organization and means that are co-extensive with such problems.

Given that tensions and conflicts are inevitable in the political community, Maritain asserts that man can and should be called to make sacrifices as an individual for the good of the community because “it is thus in the nature of things that man should surrender his temporal goods and if necessary even his life for the welfare of the community; and that social life should impose on him as an individual—as part of the whole—many restrictions and sacrifices.” 101 He further notes:

99 Maritain, The Person and the Common Good , 24-28.

100 Ibid., 28-36.

101 Maritain, Freedom in the Modern World , 50.

It is in the nature of things that he should, as the need arises, renounce activities which are nobler in themselves than those of the body politic for the salvation of the community. It is also in the nature of things that social life should impose numerous restraints and sacrifices upon his life as a person, considered as part of the whole. But in the measure that these sacrifices and restraints are required and accepted in the name of justice and amity, they raise the higher spiritual level of the person. 102

Although tensions and conflicts are inherent in human society, does the imposition of restraints and sacrifices upon the exercise of rights not violate human rights that are understood to be “universal, inviolable and inalienable?” 103 An explanation of the three characteristics of

human rights will certainly shed some light on the dilemma of whether restraints and sacrifices

violate human rights or not.

102 Maritain, The Person and the Common Good , 55-56. See Walter Farrell, “Person and the Common Good in a Democracy,” Proceedings of the American Catholic Philosophical Association XX (1945): 44-45, who offers an argument similar to Maritain’s that the common good will “justly demand their sacrifice in a case of conflict between the common good and the accidental goods of the individual person. It will limit the pursuit of accidental goods to eliminate interference with the attainment of the common good. As a superior essential social good, the common good can justly demand the risk of other goods when there is an equivalent threat to the existence of the common good. It cannot justly demand the sacrifice of other essential goods, since itself is a partial good, not the whole of goods; yet some (not all) of these essential goods may be sacrificed by the members of the community, not from justice, but from natural love or from supernatural charity.” (emphasis in the original) Farrell’s use of “accidental good” would be synonymous to Maritain’s “temporal goods.” See also Maritain, Freedom in the Modern World , 50.

103 PT 9 and 145: AAS 55 (1963), 259 and 296: “Quae propterea, ut generalia et inviolabilia sunt, ita mancipari nullo modo possunt”; and “iura, dicimus, quae, cum ab humanae personae dignitate proxime oriantur, hanc ob causam universalia, inviolabilia atque incommutabilia sunt.” See also Paul VI, “Message to the International Conference on Human Rights,” (Teheran: 15 April 1968) in L’Osservatore Romano , Weekly Edition in English, No. 5 May 2, 1968, p. 4; John Paul II, Message to His Excellency Dr. Kurt Waldheim, Secretary-General of the United Nations Organization, December 02, 1978, para. 11: AAS 71 (1979) 123; and United Nations, The Universal Declaration of Human Rights (New York: 10 December 1948), Preamble: “ Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” (emphasis in the original)

Human rights are universal because they exist in all human beings. They are inviolable insofar as “they are inherent in the human person and in human dignity,” 104 and because “it would be vain to proclaim rights, if at the same time everything were not done to ensure the duty of respecting them by all people, everywhere, and for all people.” 105 They are inalienable insofar as “no one can legitimately deprive another person, whoever they may be, of these rights, since this would do violence to their nature.” 106 This teaching is consistent with the Church’s understanding that human rights are rooted in the dignity of every human being as imago Dei ,107 a dignity that is equal in every person and comes directly from God.

Some philosophers, however, reason that, since a human being is always a human being and possesses these rights as a human being, no condition can be imposed upon them. In this context, it is misleading to use “inalienable” as synonymous with “without condition.” 108

Catholic theology teaches that human rights are subject to modification and limitation in their exercise, if such exercise threatens the common good. Such limitation does not violate the integrity of the rights that are universal and inviolable. The teaching of the Church is grounded on the fact that it is practically impossible to specify the conditions of human dignity a priori.

104 John Paul II, Message for the 1999 World Day of Peace, n. 3: AAS 91 (1999) 379: “[S]ono inerenti alla persona umana ed alla sua dignità.”

105 Paul VI, Message on the 20 th Anniversary of the Declaration of Human Rights at Tehran, April 15, 1968, para. 6: AAS 60 (1968) 285: “il serait vain de proclaimer des droits, si l’on ne mettait en même temps tout en œuvre pour assurer le devoir de les respecter, par tous, partout, et pour tous.”

106 John Paul II, Message for the 1999 World Day of Peace, n. 3: AAS 91 (1999) 379: “[N]essuno può legittimamente privare di questi diritti un suo simile, chiunque egli sia, perché ciò significherebbe fare violenza alla sua natura.”

107 GS 27, AAS 58 (1966), 1047- 48; Abbott, 227-27; and CCC n. 1930.

108 Rex Martin and James W. Nickel, “Recent Work on the Concept of Rights,” American Philosophical Quarterly 17 (1980): 176-77.

This is true, because any appeal to the nature of the human person that is used to justify rights claims must take into account the fact that this nature is structured and conditioned both historically and socially. 109 Moreover, each epoch has its own challenges that threaten the common good and thereby demand commensurate responses that respect human dignity and promote the common good.

There is, however, a distinction between the exercise of a right and its possession, which

Maritain explains:

Even where rights are “inalienable” a distinction must be made between possession and exercise, the latter being subject to modifications and limitations dictated in each instance by justice. If a criminal can be justly condemned to lose his life, it is because he has, by his crime, deprived himself, not of his right to existence, but rather of the possibility of demanding that right with justice: morally he has cut himself off from membership of the human community, as far as concerns the use of that fundamental and “inalienable” right which the penalty imposed prevents his exercising. 110

Critics see Maritain’s position as logically untenable because they understand “inalienable” to mean “not subject to modification.” In their view, to speak of limitations on inalienable rights would be tantamount to proposing that a statement can be true of a person at one time and false at another, something that is philosophically indefensible. In response, Maritain re-affirms his

109 Hollenbach, Claims in Conflict , 70. In his note 82, Hollenbach cites Karl Rahner, who says that our knowledge of the historically concrete specifications of human dignity “is itself a historically becoming process” and “essentially unfinished.”

110 Maritain, “Introduction,” in Human Rights: Comments and Interpretations. A Symposium, ed. UNESCO (New York: Columbia University Press, 1949), 15.

46 position by stating that rights are “liable to limitation, if not as to their possession, at least to their exercise.” 111 Maritain goes further to explain:

If each of the human rights were by its nature absolutely unconditional and exclusive of any limitation, like a divine attribute, obviously any conflict between them would be irreconcilable. But who does not know in reality that these rights, being human, are, like everything human, subject to conditioning and limitation, at least, as we have seen, as far as their exercise is concerned? That the various rights ascribed to the human being limit each other, particularly that the economic and social rights, the rights of man as a person involved in the life of the community, cannot be given room in human history without restricting, to some extent, the freedoms and rights of man as an individual person, is only normal. 112

Thus, the right to marry, like every other human right, although inalienable, may be subject to modification and limitation in its exercise to enable the human being to “exercise a responsible stewardship over nature ”113 in accordance with his nature.

While human acts are essentially free acts, as they are exercised within society, they have to be brought into the harmony of the moral order through certain regulatory norms. This applies to both negative immunities and positive entitlements, in order to safeguard the rights of all citizens and peaceful settlement of any conflict of rights. Thus, the declaration on Religious

Freedoms states:

In the use of all freedoms, the moral principle of personal and social responsibility is to be observed. In the exercise of their rights, individual men and social groups are bound by the moral law to have respect both for the rights of others and for their own

111 Maritain, Man and the State, 101; Id., Natural Law: Reflections on Theory & Practice , 67-68.

112 Id., Man and the State, 106. See also Id., “Introduction,” 15; and Id., Natural Law: Reflections on Theory & Practice, 72-73.

113 CV 50: AAS 101 (2009), 686: “exercere responsale dominium super naturam .” (emphasis in the original)

duties toward others and for the common welfare of all. Men are to deal with their fellows in justice and civility. 114

The human person has a right in justice to all the means necessary to develop himself and attain his ultimate end; he also has the right to the essential conditions for a decent social life.

Unfortunately, human history abounds with instances of individuals and groups that have, in the name of freedom, used their rights to harm other individuals and communities. We know of individuals and groups who have emphasized rights over duties and therefore violated the rights of others. In such circumstances, the individuals or communities whose rights have been violated have the corresponding duty to protect their rights. However, such responsibility belongs to the government, which should regulate the exercise of the rights of its citizens in conformity with the objective moral order for the good of all. Consequently, Church and state must fulfill their duty to promote the common welfare of all by ensuring that all members of society exercise their rights in conformity with the requirements of the common good. Thus, whenever such exercise threatens the common good, it can be restricted.

8. Conclusion

The Church’s understanding of natural rights is rooted in her doctrine that the human being is created in the image and likeness of God—imago Dei . As the only being created for his own sake—a being gifted with intelligence and free will—the human being is endowed with rights, the powers he needs to exercise responsible stewardship over nature. Because they are

114 DH 7, AAS 58 (1966), 934; Abbott, 686: “In usu omnium libertatum observandum est principium morale responsabilitatis personalis et socialis: in iuribus suis exercendis singuli homines coetusque sociales lege morali obligantur rationem habere et iurium aliorum et suorum erga alios officiorum et boni omnium communis. Cum omnibus secundum iustitiam et humanitatem agendum est.”

grounded in the dignity of the human person, these rights are inherent in human nature and are

therefore inviolable and inalienable. As the human being is born with these powers, they can be

called natural and consequently universal. Thus, all human beings enjoy these rights, and through

their exercise, they bring a certain unity in the human race. 115

The human being possesses rights as a means of fulfilling God’s purpose in creating

him—to offer God a response of faith and love that no other creature can give in his stead. For

man to do this and ultimately arrive at the beatific vision, he has to follow the dictates of the law

stamped on his heart that tells him what is good and must be done and what is evil and must be

avoided. Natural rights reflect the objective and inviolable demands of such moral law—the

natural law. This law directs man to his end in the same way that natural rights promote the

natural law. Thus, natural rights are by their nature normative and immutable on account of their

juridical foundation, the natural law. Consequently, the two are inextricably linked because they

are of the stuff of nature. 116

115 John A. Henley, “Theology and the Basis of Human Rights,” Scottish Journal of Theology 3 (1986): 375, who posits that such an assumption betrays a failure to take the divided state of humanity with sufficient intellectual seriousness. Moreover, it implies a failure to appreciate that a particular theological perspective, which reflects something of this divided state, cannot be an adequate basis for rights which are universal. See also Edmund Burke, Works, London, 1852, Vol. V, 180-81, as quoted by Maurice Cranston, What are Human Rights? , 15. In his Reflections on the Revolution in France, Burke asserts that the sponsors of the French Declaration of the Rights of Man have done a great social harm by proclaiming the ‘monstrous fiction’ of human equality.

116 Nathaniel Micklem, The Idea of Liberal Democracy (London: Christopher Johnson Publishers Ltd., 1957), 122. Micklem states: “In his discussion of law in the de Legibus Cicero constantly identifies four concepts, Law ( lex ), Reason ( ratio ), Nature ( natura ) and Justice ( jus ). Reason and law and justice may not be sundered; they are, indeed, differing aspects of one reality. Reason and justice may be taken to represent the Mind and Will of God, the Ruler of the universe. Law in its essence is an expression of reason and justice; moreover, reason and justice expressed in law are no mere conventions nor arbitrary notions; they are not merely theological ideas; they are of the stuff of nature; they belong to the structure of reality.” (emphasis in the original)

Since natural law gives human rights a normative foundation, and the existence of any law implies the duty and obligation to obey it, natural rights are correlated with duties and obligations. The inseparable connection of rights and duties first applies to the subject that possesses the rights. However, it also pertains to the relationship that exists between the right of one person and the obligation of others to recognize and respect that right. The correlativity of rights and duties flows from the social nature of man and from the fact that all peoples have the same origin, the same calling, and the same destiny. The fulfillment of duties and obligations ensures that rights do not become a mere license, but are properly channeled in the service of the common good.

The common good thus must be understood as “the sum total of social conditions which allow people, either as groups or individuals, to reach their fulfillment more fully and more easily.” 117 Such common good can only thrive in the environment that fosters respect for everyone, where there is cooperation for the development and social being of each member of the community, and when there is stability and a just order. Political authority, which exists to safeguard and to promote the common good, must always keep in mind that the common good has a transcendental dimension, since it is intrinsically linked to the human person and his ultimate end. However, in reality, pursuit of the common good is often undermined by tensions and conflicts that usually arise in the community where patterns of interdependence are constantly shifting. Due to such tensions and conflicts, through law and justice, political authority imposes restrictions and sacrifices on the exercise of rights in the community to maintain tranquility and ensure the promotion of the common good.

117 GS 26, AAS 58 (1966), 1046; Abbott, 225: “summam eorum vitae socialis condicionum quae tum coetibus, tum singulis membris permittunt ut propriam perfectionem plenius atque expeditius consequantur.”

The imposition of restrictions and sacrifices on some individuals, however, does not violate their natural rights that are inviolable and inalienable because there is a distinction between the exercise of a right and its possession. In the exercise of his rights, man must always observe personal and social responsibility. Yet, history attests that man has often failed in this regard.

Consequently, to safeguard and to promote the attainment of the common good, Church and state can restrict the exercise of rights whenever such exercise threatens the common good.

This general understanding of natural rights now paves the way for the discussion of the exercise of the natural right to marry and its correlative implications for the common good, which is the topic of Chapter Two

CHAPTER TWO

THE CHURCH AND THE NATURAL RIGHT TO MARRY

1. Introduction

The vocation to marriage is deeply ingrained in the very nature of man and woman, as they were created by God. After fashioning the woman from the rib of the man and bringing her to him, God revealed His plan in creating them male and female, “It is not good for the man to be alone. I shall make him a helper” (Gen 2:18). “Therefore a man leaves his father and his mother and clings to his wife, and they become one flesh” (Gen 2:24). “God blessed them, saying to them: ‘Be fruitful, multiply, and fill the earth and subdue it’” (Gen 1:28).

While the bond that is created between a man and a woman in marriage is deeply rooted in human nature, it is also affected by the cultural and historical conditions of the society they live in. 1 These conditions have always left their mark upon the institution of marriage.

Nonetheless, marriage has many common and permanent characteristics. It is not a purely human institution, but a reality that has been established by the Creator and endowed by Him with its own laws. Therefore, the Church, as the custodian of marriage, has to apply herself to various situations to ensure that the dignity of marriage, as established by the Creator, shines out.

This is succinctly explained by John Paul II:

Since God’s plan for marriage and the family touches men and women in the concreteness of their daily existence in specific social and cultural situations, the Church ought to apply herself to

1 John Paul II, Allocution to the Roman Rota, January 28, 1991, n. 3: AAS 83 (1991) 948.

understanding the situations within which marriage and the family are lived today, in order to fulfill her task of serving. 2

Although God’s plan unfolds in history and in the variety of cultures, Church authority is also conscious that every culture has to be evangelized and regenerated through exposure to the

Gospel.3 As history has shown, culture has sometimes had a negative influence on the institution of marriage, and some of its effects were even contrary to God’s plan, such as polygamy and divorce. 4 Thus, in her evangelizing mission, the Church has continually had to confront cultures.

The right to marry, ius connubii , simultaneously indicates a natural capacity and an intrinsic right to this capacity. 5 According to his proper nature, every human being has the inclination to conjugal union between a man and a woman, to procreate and form a family. It belongs to natural justice that man should not be restricted from realizing what belongs to his nature. Because it is innate in every human being, the right to marry predates any human legislation, civil or ecclesiastical. Consequently, the role of any human legislator is to safeguard, as much as possible, this right within the competence of its authority. 6

Nonetheless, the Church understands that the right to marry is not absolute and that its exercise can be restricted for the good of the spouses and the common good. The exercise of the

2 John Paul II, apostolic exhortation Familiaris consortio, November 22, 1981, n. 4: AAS 74 (1982) 84: “Quoniam consilium Dei de matrimonio et familia virum et mulierem respicit in ipso cotidianae vitae usu constitutos ac quidem in certis ac definitis condicionibus socialibus et culturalibus, Ecclesia ut ministerium suum adimpleat, studeat oportet cognoscere adiuncta, in quibus matrimonium et familia temporibus nostris efficiuntur.” (emphasis in the original)

3 Paul VI, apostolic exhortation Evangelii nuntiandi, December 08, 1975, n. 20: AAS 68 (1976) 19: “Proinde, oportet omnem opem operamque impendere, ut sedulo studio humana cultura, sive potius ipsae culturae evangelizentur.”

4John Paul II, Allocution to the Roman Rota, January 28, 1991, n. 3: AAS 83 (1991) 949.

5 Jean-Pierre Schoupe, “Lo ‘Ius Connubii’, Diritto della Persona e del Fedele,” Fidelium Iura 3 (1993): 198.

6 Ibid.

53 right to marry entails the free consent of the parties to assume the duties and obligations of marriage and to strive daily to live out their marriage as taught by the Church. Thus, whenever the Church has sensed that the exercise of the natural right to marry threatened the well-being of the spouses and the good of the wider community—as in, for example, marriage of adolescents—she has exercised her divine right to intervene through the imposition of restrictions or prohibitions.

In this chapter, I shall first demonstrate that the Church has always recognized the existence of the natural right to marry. Although such right was always subject to the restrictions arising from societal and cultural norms of various epochs, the Church has consistently promoted the individual’s freedom to exercise his or her natural right to marry. Thus, I shall show how the

Church recognized and defended the right to marry even in situations that objectively might have warranted the restriction of its exercise.

However, the right to marry entails the capability to live the married life according to the nature of the institution of marriage itself—for the well-being of the spouses and for the procreation and education of offspring. In this way, the institution of marriage is oriented toward promotion of the good of the family and the common good. Thus, whenever she has sensed that the exercise of the right to marry might threaten the common good, the Church has imposed restrictions, sometimes in the form of impediments.7 I shall briefly examine some of these restrictions (impediments), whether imposed by the divine law or ecclesiastical law. 8 I shall also

7 Impediment ( Impedimentum ), a noun, is derived from the Latin verb impedio , ire , ivi , itum , which means “to impede, to hinder, to prohibit or to prevent.”

8 Some impediments are of divine law (antecedent and perpetual impotence, prior bond and consanguinity in the direct line and in the collateral line up to the fourth degree inclusively [first cousins]). The Church simply declares

54 present the rationale behind the need to protect the well-being of the spouses and the good of the marriage, as a natural social institution oriented to the common good.

Every right has corresponding duties and obligations. Thus, the exercise of the right to marry entails the ability and willingness of the parties to assume the obligations inherent in marriage. I shall, therefore, also analyze the essential obligations that flow from the vital properties of marriage. These duties and obligations that are proper to married persons are essential for the flourishing of marriage, for the well-being of the spouses, and for the commonweal.

2. The Church’s Recognition of the Natural Right to Marry

The focal point of this section is when and how a man and a woman acquired the right and freedom to contract marriage. Moreover, what has been the praxis of the Church with regard to the recognition and protection of the ius connubii , especially in her encounter with the varying marriage customs of different cultures and at different epochs?

In answering the above questions, material that best illustrates the Church’s recognition of the ius connubii in every human being and its exercise will be examined. In particular, references to the treatment of the sick members of the community that, objectively, it seems, should have been restricted from the exercise of the ius connubii will be presented and discussed.

This exploration will begin by looking at the origins of the right to marry in human nature.

them because she cannot change them. Others are of ecclesiastical law (disparity of cult, sacred orders, abduction, et cetera ). As the Church establishes these by her own authority as the custodian of marriage, she can remove previous impediments or add new ones, at her own discretion.

i) Human Beings and the Natural Right to Marry

The human being owes his origin to God who is Trinity, a communion of three Divine

Persons in One. Created in the image and likeness of God, the human person has a certain dignity, and consequently certain fundamental rights that belong to him alone as a being and the master of his own self and his destiny. One such fundamental right, the right to marry, is rooted in human nature. This right, therefore, is inviolable and inalienable, for no one can stop being what he or she is. Akin to other natural rights, the right to marry has a purpose in God’s saving plan. Human beings also have the right to choose for themselves the kind of life that appeals to them. Thus, each individual should be allowed to exercise the ius connubii and form a family, or to embrace the priesthood or religious life. While this seems logical, the meaning of ius connubii deserves further attention .

Considered in the positive sense, the ius connubii is the right to decide freely to contract marriage and to choose one’s own spouse. Yet, it also entails the right to choose a consort, the right not to contract marriage, the right to be free from any form of external coercion, et cetera.9

In other words, no one, including parents and lawful authority, can force a person to exercise the ius connubii . Thus, the works that constitute the Corpus Iuris Canonici interpret the ius connubii in the sense delineated above, as we shall see later in this chapter.

While the ius connubii is a right, its exercise is still legitimately subject to regulation by the legislator. The regulation of the ius connubii stems from the nature of the right itself because the object and the content of the right are indicated by nature. Thus, the demands of natural justice require that no person should arbitrarily be impeded from exercising his or her natural

9 Franceschi Franceschi Héctor, “Il diritto alla libera scelta del proprio coniuge quale diritto fondamentale della persona,” Ius Ecclesiae 8 (1996): 157.

56 right to marry. In other words, it is the duty of any legislator to uphold the value of the ius connubii as much as possible, in accordance with the principles of the institution of marriage.

The reasons that may justify human regulation to restrict the exercise of the ius connubii may be based on the protection of the identity of marriage, the respect of the freedom of the contracting parties, the defense of the rights of the spouses against a third party, and the promotion of the common good. 10

The right to marry has always been exercised by peoples of various cultures, races, and nations of various epochs, baptized and unbaptized, according to their respective native laws and customs. For Christians, marriage is graced with the dignity of the sacrament (canon 1055, §1) 11 and is thus viewed as the efficacious sign of God’s grace by which divine life is dispensed to them. For those who wish to marry, irrespective of their faith or culture, marriage requires not only their personal capacity to express their will to do so, but also their ability to realize what is affirmed in that will. 12 Since the human being is a social being that cannot truly be himself and realize his full potential without others, the rights he enjoys, including the right to marry, have a social dimension. In other words, all individual rights should be exercised with the aim of human flourishing. The exercise of the right to marry is aimed at the good of the spouses and the procreation and education of offspring, all of which contribute to the promotion of the common good.

10 Schouppe, “Lo ‘Ius Connubii’, diritto della persona e del fedele,” 199.

11 Codex Iuris Canonici auctoritate Ioannis Pauli PP. II promulgatus (Vatican City: Libreria Editrice Vaticana, 1983), c. 1055 §1: “ Matrimoniale foedus, quo vir et mulier inter se totius vitae consortium constituunt, . . . a Christo Domino ad sacramenti dignitatem inter baptizatos evectum est.”

12 Augustine Mendonça, “Consensual Incapacity for Marriage,” The Jurist 54 (1994): 486.

The Church, as the authentic interpreter of natural rights, has always upheld the natural right of a man and a woman to marry freely, but to do so “in the Lord” (1Cor 7:39). We shall, therefore, examine the recognition and protection of this right, with particular focus on the cases of some sick members of the community whom the societal norms considered unable and incapable of exercising their natural right to marry and who were actually denied the exercise of this right. This treatment lays the foundations for defining the correct approach towards some sick members of the community today that would like to exercise their natural right to marry.

Our discussion will be limited to the treatment of these classes of people from the Medieval epoch to the present. We begin from this period, as it was the time of the emergence of canon law as a systematic and distinct discipline from theology and philosophy—the period of scientific jurisprudence. In this treatment, we shall not engage in a systematic study of all the critical historical sources on the exercise of the ius connubii , as this could be an extensive stand- alone project; rather, we shall highlight the recognition and protection of the ius connubii in some of the sources that influenced the teaching of the Church.

ii) The Recognition and Protection of the Ius Connubii

a) The Marriage of the Sick

In this section, we shall look at some general considerations pertaining to sick persons and the recognition and protection of the ius connubii . This will be followed by the discussion of the characteristics of dreadful diseases, especially leprosy and insanity, which society considered an obstacle to exercising the ius connubii .

In the Decretum 13 Gratian’s treatment of marriage is contained in Part II, Causae 27 to

36. Question 2 of Causa 27 treats the formation of marriage, where Gratian insists that marriage

ought to be monogamous. He held that marriage came into being through a two-stage process:

matrimonium initiatum —when the parties exchanged consent; and matrimonium ratum —when the marriage was completed or perfected through sexual consummation. 14 Thus, according to

Gratian, coitus without consent to marry is no marriage nor is an exchange of consent that is not

followed by intercourse. 15 Both steps were necessary in order to create a binding marriage. 16

Concerning the marriage of the sick, Gratian presents some authorities who consider that sickness could directly affect conjugal life, as well as potentially diminish the capacity to realize the marital act. When we look at Causa 32, question 7, the interpretation of canon 18, which deals with the question whether “it is lawful for a sick man whose wife cannot render the marital debt because of weakness of the body to marry another?” ( Licet ducere aliam viro, cui sua ob

13 The Decretum or Concordia Discondantium Canonum (1140) was the product of Gratian, a medieval monk and lawyer, who is accredited as the Father of Canon Law. Gratian was the first to present canon law in some coherent form, even the texts that were contradictory, to make the contradictions obvious. The Decretum is divided into three parts. Part I consists of 101 distinctions that deal mainly with the foundations of ecclesiastical law and different kinds of ministries within the Church. Part II comprises 36 C ausae or Cases, which cover a wide variety of topics, including marriage and sexual offenses, simony, the choosing of bishops, excommunication, oaths and perjury, warfare, and many other matters. Part III is the Treatise on Consecration, which is divided into five Distinctions dealing with liturgical and sacramental law. See Vern L. Bullough & James Brundage, eds., Sexual Practices & The Medieval Church (Amherst, New York: Prometheus Books, 1994), 220; Reid, “The Canonistic Contribution to the Western Rights Tradition: An Historical Inquiry,” 42-43; and John T. Noonan, “Gratian Slept Here: The Changing Identity of the Father of the Systematic Study of Canon Law,” Traditio 35 (1979): 145-72.

14 C. 27 q. 2 d.p.c 2, d.p.c 29, and d.p.c. 45.

15 C. 27 q. 2 d.p.c. 34.

16 Brundage, Law, Sex, and Christian Society , 235. It is noteworthy to keep in mind that Gratian was trying to reconcile the theories of the time concerning what makes marriage—consent or consummation although his theory did not meet the satisfaction of many writers at the time. See Brundage, Law, Sex, and Christian Society , 262-65, and 288.

59 infirmitatem coporis debitum reddere non valet ) is rather difficult. This is particularly true from the point of view of its literal significance since the title of the canon does not correspond to the text of the letter of Gregory III to Bishop Boniface. The letter states:

You inquired that if a wife is weakened by sickness and unable to render the marital debt to her husband, what should her spouse do? It would be good if he remained as he was and lived in abstinence. But because this is a great thing, he who cannot contain himself may marry instead. Let him, however, not take away the aid of support who is impeded by sickness, not excluded by a detestable fault. 17

This text seems to indicate that illness that impedes coitus could be a cause for the dissolution of the marriage bond and of a successive marriage. Thus, the indissolubility of the marriage bond may simply be an advised option, rather than a juridical obligation. However, in his dictum ,

Gratian notes that there were some false insertions in the text of Ambrose. In particular, that of

Gregory III is found to be entirely contrary to the sacred canons and indeed to evangelical and apostolic teaching ( sed illud Ambrosii a falsatoribus dicitur insertum. Illud Gregori sacris canonibus, immo Evangelicae et Apsotolice doctrina penitus invenitur adversum ). It is likely that

Gregory III had an illness in mind, with respect to which there was no possibility of consummating the marriage. In this case, dissolving the bond would not be an issue, since there was no consummation, for, according to Gratian, only a ratified marriage—perfect or

17 C. 32 q. 7 c. 18: “Quod poposuisti, si mulier infirmitate correpta non valuerit debitum viro reddere, quid eius faciat iugalis: bonum esset, si sic permaneret, ut abstinentiae vacaret: sed quia hoc magnorum est, ille, qui se non poterit continere, nubat magis: non tamen ei subsidii opem subtrahat, quam infirmitas praepedit, non detestabilis culpa excludit.” [The English rendering of the Causae relies heavily on the translation by John T. Noonan, Jr. 1982]

60 consummated—enjoyed absolute indissolubility. 18 This interpretation has received the approval of many authorities and of the dicta of Gratian.

Furthermore, Gratian cites the letter of Pope Nicolas to Charles, Bishop of Mainz, in which he affirmed clearly that no illness that is manifested after marriage had been contracted, i.e., consummated, could be a cause for the dissolution of the marriage bond:

Those who while healthy have contracted matrimony, one of whom is struck by loss of mind or madness or whom other sickness, cannot have their marriages dissolved because of such sickness. You should know the same is true as to those who are blinded or whose members are cut off by enemies, or who are mutilated by barbarians. 19

In addition, Gratian cites Pope Fabian who states: “Neither a mad man nor a mad woman can contract marriage; but if it has been contracted, let them not be separated.” 20 In a dictum , Gratian concludes this canon by reaffirming his position that, if an illness came after marriage has been consummated, it cannot be a cause for its dissolution. He states: “From what has been said it is clear that it is not licit for a man to dismiss his wife and marry another, for there remains a certain conjugal bond between them, that is not dissolved by this separation.” 21

It seems that, according to the sources that Gratian assembled in the Decretum , it is possible for a sick person to contract marriage even if the nature of the illness impedes the

18 Franceschi Franceschi Héctor, Riconoscimento e tutela dello “Ius Connubii” nel Sistema Matrimoniale Canonico (Milano: A. Giuffrè Editore, S.p.A., 2004), 30.

19 C. 32 q. 7 c. 25: “Hii, qui matrimonium sani contraxerint, et uni ex duobus amentia, aut furor, aut aliqua infirmitas accesserit ; ob hanc infirmitatem coniugia talium solvi non possunt. Similiter sentiendum de his, qui ab adversariis excoecantur, aut membris truncantur, aut a Babaris exsecti fuerint.‘’

20 C. 32 q. 7 c. 26: “Neque furiosus, neque furiosa matrimonium contrahere possunt: sed si contractum fuerit, non separentur.”

21 C. 32 q. 7 c. 26: “Ut ergo ex proemissis colligitur, non licet huic dimissa uxore, alia ducere. Manet enim inter eos quoddam vinculum coniugale, quod nec ipsa separatione dissolvitur.”

61 realization of the marital act. This position is in line with the general doctrine of the Church that casts no doubt on the right of the sick—including those affected by serious conditions—to enter into marriage. According to this view, even sick persons that are unable to abstain from conjugal relations are free to marry. Thus, an antecedent illness that causes impotence, and therefore renders the consummation of the marriage impossible, should be viewed as a separate problem.

In such cases, one may apply the criteria of impotence and the marriage may be dissolved based on the facts of the case at hand, rather than due to the illness that resulted in impotence. 22

In setting the aforementioned rules, the ecclesiastical authority upheld the marriage of the sick and defended it against the possible abandonment by the healthy spouse. Although the spouses could reach a mutual agreement to separate because the healthy spouse found it intolerable to cohabit with the sick one, human authority could not dissolve the marriage bond based on the ill health of one of the spouses. In order to clarify this concept further, it is worthwhile looking at some particular types of ill persons in relationship to the recognition of their right to exercise the ius connubii .

a-i) Lepers

Leprosy, also known as Hansen’s disease,23 has been dreaded since biblical times. As a contagious disease, leprosy was considered a cause of defilement, in particular because of the

22 Héctor, Riconoscimento e tutela dello “Ius Connubii” , 82-83.

23 In 1873 the Norwegian scientist Gerhard H. Armauer Hansen identified the bacillus Mycobacterium leprae as the bacteriological agent that causes leprosy. Because he was convinced that the bacillus can easily spread from one victim to another, he advocated voluntary segregation to avoid contact with others. This measure subsequently helped reduce the number of people with leprosy in Norway within a few years of the discovery. Hansen also campaigned for an improvement in public hygiene. As a result, modern science has renamed leprosy “Hansen’s disease.” See Timothy S. Miller and John W. Nesbitt, Walking Corpses: Leprosy in Byzantium and the Medieval

various deformities and mutilations it brought upon the human body. Leprosy patients were

segregated from the rest of the community and were supposed to give a warning sign of their

approach in order to prevent any contact with the “clean” they might encounter. In chapters 13

and 14, the Book of Leviticus deals with the diagnosis of the disease and the restoration to social

and religious life of those who were cleansed. However, it is noteworthy that, although no

injunction in Chapter 13 of the Book of Leviticus implied that leprosy was a punishment for sin,

other passages from the Old Testament do portray it as a chastisement from God. 24

In the Middle Ages, the image of leprosy patients inspired fear and revulsion. Owing to

the strong desire many felt to flee from their presence, medieval writers often described the

victims of leprosy as the “living dead.” 25 In fact, the human body can react to the bacterium in several different ways; indeed, most individuals have a natural immunity to leprosy. In most populations, even after the leprosy bacilli enter the tissues, 90 to 95 percent of the individuals do not develop leprosy either because of their natural resistance or specific immune responses that

West (Ithaca and London: Cornell University Press, 2014), 7; and Carole Rawcliffe, Leprosy in Medieval England (Woodbridge, United Kingdom: The Boydell Press, 2009), 23.

24 Num 12: 10-15; 2 Kings 5: 20-27; and 2 Chronicles 26:16-23. Miller and Nesbitt, Walking Corpses , 38-47 and 62 describe how some Greek writers saw the disease as punishment for sin, while others (John Chrysostom, Gregory Nazianzen and Gregory of Nyssa) saw it as a “Holy Disease,” that is, the disease that marked out those destined for heaven. Hence, these Church Fathers together with other Byzantine intellectual figures advocated that lepers should not be banned from churches, cities or public places, but rather loved and treated with respect.

25 Miller and Nesbitt, Walking Corpses , 1. Saul Nathaniel Brody, The Disease of the Soul: Leprosy in Medieval Literature (Ithaca and London: Cornell University Press, 1975), 80-81, cites a decree by Rothar—the Lombard king—issued in 643, which declared that all lepers should be expelled from society and considered as dead. See also Sheldon J. Watts, Epidemics and History: Disease, Power and Imperialism (New Haven and London: Yale University Press, 1999), 45; E. Jeanselme, “Comment l’Europe, au Moyen Âge, se protégea contre la Lèpre,” Bulletin de la Société Française d’Histoire de la Médecine xxv (1931): 9; and Rawcliffe, Leprosy in Medieval England , 19.

63 kill the invading organisms. 26 “This explains why the disease has never affected more than 10 percent of a population at any particular time and place and has not had the devastating demographic effects of the bubonic plague and smallpox.” 27

Those that have a limited resistance to the bacterium can develop tuberculoid leprosy, which is described as benign, typically deforming only some parts of the body. If the body is unable to resist the bacterium, the patient develops lepromatous leprosy that, if left untreated, causes horrifying alterations in the body’s appearance—skin lesions. 28 After lesions and crusty nodules break out on the face and body, the skin thickens and becomes rough and ulcerated.

Since leprosy also attacks the bones, it can corrode the skull structure around the nasal and oral cavities, so that the face takes on a grotesque appearance. As the disease progresses, various nerves can incur damage, which gradually degrades sensory and motor functions, affecting hands, feet, and face in particular. Consequently, the patients may experience a loss of their toes and fingers. “Because the effect of leprosy resembled the rot of death Byzantine preachers sometimes called its victims ‘walking corpses.’” 29 However, although leprosy patients are exposed to increased mortality risks due to the disease’s indirect effects, leprosy is rarely an immediate cause of death. “Where leprosy treatment facilities exist, inactivation or cure due to specific treatment is an important mode of elimination of cases from the prevalence pool. Even

26 Pontificia Academia Scientiarum, Working Group on Immunology, Epidemiology and Social Aspects of Leprosy, May 28 - June 1, 1984 ed. Carlos Chagas (Città del Vaticano: Pontificia Academia Scientiarum, 1988), 192.

27 Miller and Nesbitt, Walking Corpses , 7. Miller and Nesbitt go on to say that this also explains the fact that not all ancient or medieval observers of leprosy were convinced that the disease was highly contagious.

28 Brody, The Disease of the Soul , 21-33; and Miller and Nesbitt, Walking Corpses , 7-8.

29 Miller and Nesbitt, Walking Corpses , 2.

64 in the absence of specifc treatment, a majority of patients, particular of the tubercloid and indeterminate types, tend to get cured spontaneoulsly.” 30

Medical science has identified the bacterium that causes leprosy and can presently explain the different manifestations of the illness. Since the early 1980s, multi-drug treatment has been successful in arresting the degenerative process of the Mycobacterium leprae in the body. 31 Nonetheless, some concerns still remain: (1) impossibility to repair any damage that tissues, nerves, and bone have already suffered; (2) inability to explain why leprosy cannot be fully eliminated, as it still emerges in populations, initially attacking only a few victims, before suddenly becoming aggressive, whereby it infects many more people; 32 and (3) the portal of entry of the bacterium into the human body is not known with certainty, although the skin and the upper respiratory track are seriously considered while the portal of exit—the skin and nasal mucosa are also considered, but their relative importance is still not clear. 33

Medieval society did not only abhor leprosy by confining its victims to leprosaria , but also persecuted them. 34 Leprosy was considered a menace to public health and every possible

30 S. K. Noordeen, “Epidemiology of Leprosy,” in Working Group on Immunology, Epidemiology and Social Aspects of Leprosy, May 28 - June 1, 1984 ed. Carlos Chagas (Città del Vaticano: Pontificia Academia Scientiarum, 1988), 47.

31 Watts, Epidemics and History , 43 and 83; and Pontificia Academia Scientiarum, Working Group on Immunology , 195-96.

32 Miller and Nesbitt, Walking Corpses , 8.

33 Noordeen, “Epidemiology of Leprosy,” 50. Scientists are even considering the possibility of an “extra human reservoir” that could explain the uneven geographic distribution and even in households of the disease. Thus, the assumption is that the leprosy bacilli are airborne. See Pontificia Academia Scientiarum, Working Group on Immunology , 195.

34 Miller and Nesbitt, Walking Corpses, 96-99, narrate the story of the French leper hysteria of 1321 during which lepers were burnt at the stake. See also Watts, Epidemics and History , 60-63; and Brody, The Disease of the Soul , 92-93. On page 60, Brody presents how the treatment of lepers differed from one locality to another—in one they might be bathed and fed, or burned alive in another. In 1179, the Third Lateran Council issued a decree that urged

measure had to be employed to protect the healthy population. The many beliefs held by

medieval society regarding the contagiousness of the disease included sexual transmission—a

belief that is not in keeping with the modern understanding of leprosy. 35 Lepers were also

subjected to several social restrictions, including being forbidden to enter any public place, such

as churches, markets, public squares, and inns. Moreover, their clothing had to be uniform, their

beards and hair shaved, and they had to always carry a signal by which they could be recognized.

Finally, upon passing, they had to be buried at a specially designated place. 36 The restrictions on lepers, and especially their segregation and considering them already “dead”, also meant that they could be deprived of their spouses—though the situation varied with location and historical period. Generally, legislation was in place prohibiting leprosy patients from exercising the ius connubii and permitting healthy spouses to remarry, as a preventive measure against the spread of the disease. 37

the sequestration of lepers from society. This separation was not condemnation or banishment, but was rather designed to provide support for those who were obliged by the Mosaic law to live apart from the healthy. The decree stressed the Church’s apostolic mission to the sick after the example of Christ.

35 Brody, The Disease of the Soul , 55-59 and 143-46. The prevalent belief has been that the disease was transmitted by contact between cases of leprosy patients and healthy persons (through broken skin). Thus, infection could possibly be the result of prolonged sexual contact due to the “skin to skin” or “intimate” or “repeated’ contacts. However, many studies show a relatively low rate of conjugal transmission. More recently the possibility of transmission by the respiratory routes has started to gain ground. The long latent stage of the disease—which could be as long as twenty years, but averages two to three years—makes it difficult to associate its transmission to casual sexual activity. This explains why the disease manifests late in the lives of infected individuals, although an infant of two and a half months had been diagnosed with tuberculoid leprosy. See Noordeen, “Epidemiology of Leprosy,” 43 and 50; and Pontificia Academia Scientiarum, Working Group on Immunology , 192.

36 Brody, The Disease of the Soul, 65.

37 Ibid., 84. It is worth noting that, at the close of the fourth century, in a letter to Bishop Genesius cap. XII, Pope Sirice permitted divorce if a healthy man married a leper or a woman who subsequently became leprous, and the union produced none but leprous children: “Si sanus vir leprosam duxerit uxorem aut postmodum ei supervenerit lepra separantur ne concepti filii lepra maculentur. Fas namque est ut mundus ad mundam jungatur.” See

However, the Church recognized and protected the ius connubii of lepers. In 1179, the

Third Lateran Council decreed as follows: (1) a woman who contracted leprosy or any other grave illness should not be separated from her husband; (2) if lepers did not wish to remain continent and found a woman who was willing to marry them, they were free to contract marriage; and (3) a leprous husband could demand the marital debt from a healthy wife and she had the obligation to render it. 38

In the thirteenth century, Gregory IX dedicated title VIII in the Liber Quartus to the marriage of lepers. The first chapter ( Pervenit ) recalls the practice of separating lepers from the communion of other people and confining them to leprosaria outside of the city, away from their healthy spouses. In reaffirming that husband and wife are one flesh and should not remain separated from each other for a long time, in a letter to the Archbishop of Canterbury, Alexander

III decried the general custom of isolating lepers from human communion and exhorted him to encourage the healthy spouses to follow the sick ones and minister to them with conjugal affection. He further recommended that, if they cannot be induced to do this, they should be ordered to remain continent for the rest of their lives. Moreover, if they refused to listen to him, then he should excommunicate them. 39

Jeanselme, “Comment l’Europe, au Moyen Âge, se protégea contre la Lèpre,” 12. This practice was revoked by subsequent Popes.

38 Concilium Lateranense III 1179, De Leprosis , Cap. III [Alexander III Baroniensi episcopo]: “Quoniam ex multis auctoritatibus et praecipue ex evangelica veritate apparet, nemini licere uxorem suam, excepta causa fornicationis dimittere: constat quod sive mulier lepa percussa fuerit, sive grave aliqua infirmitate detenta, non est propterea a viro suo separanda. Leprosi autem, si se continere noluerint, et aliquam quae sibi nubere velit, inveniant, liberum est eis ad matrimonium convolare. Quod si virum sine uxore Divino judicio leprosum fieri contigerit, et firmus a sana carnale debitum exigat, generali praecepto Apostoli, quod exegerit, est solvendum, cuius praecepti nullam in hac causa invenimus exceptionem.”

39 X 4.8.1.

The second chapter ( Quoniam ) discusses the indissolubility of the marriage bond. It underlines the point that a wife is neither to be separated from nor dismissed by her husband because she is struck by leprosy or by some other serious sickness. The decretal reiterates that lepers that are incapable of continence and find a woman willing to marry them are free to do so.

In addition, if either spouse was struck by leprosy and demanded the marital debt, the healthy spouse was obliged to render it. 40

The third chapter ( Litteras ) focuses on the case when leprosy is contracted by one of the parties after engagement ( sponsalia de futuro ), but before marriage actually takes place. In a letter to the Bishop of Florence, Urban III wrote that, in such cases, the healthy partner cannot be compelled to marry the partner affected by the disease. The underlying argument here is that what exists between the parties is only the promise to marry, rather than matrimonio de praesenti . Thus, if a party contracted leprosy before the consummation of the marriage, the engagement can be dissolved. 41

The Church’s recognition and defense of the ius connubii of lepers in a society that perceived leprosy as a horrible disease and, due to dreading it, secluded its victims from the wider community, demonstrates her principle that marriage is a fundamental right of every human person. It also reaffirms her position that no one may arbitrarily impede a person from exercising that right as was common practice at that time. To do so would be an infringement

40 X 4.8.2: “Coniuges propter lepram separandi non sunt a coniugio, et contrahere possunt matrimonium, et invicem sibi reddere debitam tenetur.” See also Esmein, Le mariage en droit canonique , 2:11, who states: “Aucune maladie chronique, aucune incommodité chez un époux n’exemptait l’autre de son devoir, pas meme la lèpre, cette terrible maladie du moyen âge. L’époux resté sain était obligé non seulement de cohabiter avec l’époux lépreux, mais encore de lui rendre le devoir conjugal.” See also footnote 3.

41 X 4.8.3: “ Sponsalia de futuro praecise non compellum ad contrahendum matrimonium cum leproso, lepra post sponsalia superveniente.”

68 against natural justice. Thus, the overarching concern of the Church was to recognize and protect the freedom of any person to exercise his or her fundamental right to marry. Clearly, the two positions among the canonists of the twelfth century on what constitutes marriage—consent or consummation—played a significant role in shaping the Church’s doctrine on marriage. Since consent is the efficient cause of marriage, the unconsummated marriage of Joseph and Mary was a valid marital union. 42

In addition, the Church’s doctrine could have been influenced by the philosophical and theological concerns of the time. During this period, society grappled with the conflict between the bodily nature of human beings (including their sexuality) and their spiritual nature (the soul).

Since those doctrines saw the soul as the better part of human nature, the demands and desires of the body were to be subordinated to the nurture of the soul. Consequently, the theologians of the time placed the role of consent above that of sexuality when determining what brings marriage into existence. 43 Therefore, with regard to the marriage of lepers, the Church’s focus was on their capacity to elicit consent—the key element that brings marriage into existence. Thus, in her view, once a leper could elicit sufficient matrimonial consent, he or she could not be prohibited from marrying. The question of conjugal relations and the generation of offspring were subordinate to this consent.

Furthermore, the role of marriage in salvation history might have also been at the background to influence the Church’s recognition of the right of lepers to exercise the ius

42 Penny S. Gold, “The Marriage of Mary and Joseph in the Twelfth-Century Ideology of Marriage,” in Sexual Practices &The Medieval Church, ed. Vern L. Bullough and James Brundage (Amherst, New York: Prometheus Books, 1982), 102-17.

43 Ibid., 116.

69 connubii . Indeed, there could be other motives for two lepers to marry, such as mutual desire for companionship and assistance in their faith journey. In such cases, marriage would take precedence as a higher good over any other subordinate goods, including the physical health and well-being of the healthy partner (which would apply if only one prospective spouse was a carrier of the disease). During this time in history, belief in eternal life took precedence over any temporal sufferings one might experience in this transient world.

However, it is important to keep in mind that, although the medievalists considered leprosy a highly contagious disease, the attitudes toward lepers depended on locality. The disease was the sickness both of the damned sinner and of one given special grace by God. 44 Thus, the civil legislation on the treatment of lepers was not adhered to equally in every village or locality.

On her part, the Church exercised caution and did not bar lepers from exercising the ius connubii and consummating the marriage. Medical science was, and still is, on the side of the Church in this regard, as the source of transmission has not yet been ascertained. As we saw earlier, even though the disease could be permanent or quasi permanent, “mortality in leprosy is often considered unimportant because the disease is rarely an immediate cause of death.” 45 Moreover, according to the evidence offered by medical science, the conjugal transmission of leprosy is rare, while no data on its transmission to offspring is currently available. 46

However, the Church was aware that leprosy could pose a problem to a healthy conjugal relationship. Thus, Urban III taught that leprosy contracted before the consummation of the

44 Brody, The Disease of the Soul , 100-101.

45 Noordeen, “Epidemiology of Leprosy,” 47.

46 Ibid., 51-52.

70 marriage freed the other spouse from the union. 47 The understanding here is that the union in question is sponsalia de futuro ,48 rather than sponsalia de praesenti , although the original text refers solely to sponsalia .49 This teaching simply emphasized the Church’s position that only matrimonium ratum et consummatum enjoyed absolute indissolubility. The Church thus upheld the view that all men and women, whether healthy or sick, have equal rights and obligations that stem from their personal dignity. Consequently, all her sons and daughters, including leprosy patients, could exercise the ius connubii if they found willing partners, unless such a union was prohibited by law.

a-ii) The Insane

Another class of sick persons whom society considered incapable of exercising the ius connubii included mentally challenged individuals. It was understandable that society would only see the marriage between sane individuals as acceptable. Of course, classical Roman Law contributed to this attitude because it deemed insanity an adequate basis to repudiate a spouse. 50

47 C. III, X, De conj. lepros ., IV, 8.

48 C. III, X, IV, 8: “Quia postulasti utrum si post sponsalia de futuro inter legitimas personas contracta, antequam a viro mulier traducatur, alter eroum leprae morbum incurrat, alius ad consummandam copulam maritalem complelli debeat; respondemus quod ad eam accipiendam cogi non debet, cum nondum inter eos matrimonium fuerit consummatum.”

49 Esmein, Le mariage , 1:147 ; and Id., Le mariage , 2:99.

50 Dig. 24.2.4. Roman Law also referenced the insane under various names and considered them incapable to contract or to celebrate marriage. See Dig. 29.2.47: “furiosi autem voluntas nulla est;” and Dig. 50.17.5: “nam furiosus nullum negotium contrahere potest.”

The Reformers who emphasized the importance of common life in marriage also saw insanity as an obstacle to marriage and therefore one of the grounds for divorce. 51

In the Decretum , Gratian cites Pope Fabian, who states: “Neither a mad man nor a mad woman can contract marriage; but if it has been contracted, let them not separate.” 52 The Pope is aware that marriage is brought into existence through consent. Thus, given that a mad man and a mad woman are not sufficiently lucid to freely exchange that consent, there can be no marriage.

However, once that consent has been freely elicited, it cannot be rescinded even in case of madness. Gratian, therefore, concludes with a dictum , in which he states that it is not licit for a man to send away his wife and take another, for between them there is a certain conjugal bond neither of them can dissolve. 53 Gratian is being consistent in his position that the free and personal consent of an individual is sufficient to enter into marriage, which is perfected by consummation. There is therefore no doubt in Gratian’s mind that, where there is no consent, there is no marriage. This view explains his stand vis-à-vis the apparent contradiction in the decretal of Pope Fabian regarding the right of the insane to contract marriage. In other words, if the insane are capable of eliciting sufficient free consent, they can enter into marriage, which becomes indissoluble.

The decretists found this canon 26 of Causa 32 question 7 of the Decretum rather difficult to interpret satisfactorily, producing diverse interpretations. As a result, many decretists

51 Brundage, Law, Sex, and Christian Society , 559.

52 C. 32 q. 7 c. 26: “Neque furiosus, neque furiosa matrimonium contrahere possunt; sed si contractum fuerit, non separentur.”

53 C. 32 q. 7 c. 26: ‘’Ut ergo ex premissis colligitur, non licet huic dimissa uxore sua aliam ducere. Manet enim inter eos quoddam vinculum coniugale, quod nec ipsa separatione dissolvitur.’’

72 simply refused to talk about it; others considered insanity an impedient rather than a diriment impediment; while others maintained that insanity was a diriment impediment to marriage. 54

The Liber Quartus has only one explicit reference to the marriage of the insane, which we find in title one, chapter twenty-four. This seems to result from the uncertainty that arose from the aforementioned canon 26 in the Decretum on one hand, and from the central position of the matrimonial system of the decretal—that personal free consent is the efficient cause of marriage—on the other. The decretal, however, removes any doubt regarding the ability of the insane to contract marriage. It clearly specifies the factors that can invalidate the marriage of the insane—the continuing madness of the individual and the alienation of the mad person—which make the insane person unable to elicit lawful consent ( propter alienationem furoris legitimus non potuerit intervenire consensus ). 55

Being consistent in her doctrine, the Church has maintained until the present day that it is consent that makes marriage. Thus, if at the time of marriage the insane were lucid enough to elicit sufficient consent, the marriage was valid. 56 As marriage is a consensual contract, the words of the contract are considered binding. 57 In this view, the words pronounced in exchanging

54 Héctor, Riconoscimento e tutela dello “IusConnubii” , 85 especially footnotes 33 and 34; and 231 footnotes 149 and 150. Brundage, Law, Sex, and Christian Society , 201, especially his footnotes 124 and 125, states that most canonists of the later reform period considered insanity a sufficient reason for prohibiting a proposed marriage. If one party to an already contracted marriage subsequently went mad, the canonists refused to dissolve the union.

55 X 4.1.24: “Quum autem eadem mulier cum ipso viro, qui continuo furore laborat, morari non possit, et propter alienationem furoris legitimus non potuerit intervenire consensus.”

56 Esmein, Le mariage , 1:335, note 2: Glose sur c. xxvi, C. XXXII, qu. 7: “Possunt tamen, si habeant dilucidia intervalla.” – Glose sur c. xxiv, X, De spons ., IV, 1: “Quandoque tamen furiosus per dilucida intervalla redit ad sanam mentem, et, tunc si contrahat, tenet.”

57 Sent., lib, IV , D. XXVII, C: “Si consentiant mente et non exprimant verbis, vel aliis certis signis, nec talis consensus efficit matrimonium. Si autem verbis explicant quod in corde non volunt, si non sit coactio ibi vel dolus, obligatio

73 consent must be taken in their natural and usual sense, 58 in that they convey the truth of the mind of each partner. Therefore, if the insane are capable of expressing matrimonial consent in words, the presumption is that they mean what they say; thus, the marriage is valid. On the other hand, if the marriage is simply sponsalia de futuro and one of the partners becomes insane, the sane partner is free to break the marital contract. Yet, insanity that comes after a marriage had been validly celebrated and consummated cannot be the grounds for the dissolution of the bond. 59

The Church was consistent in her treatment of any class of sick members of the community, as we saw in the case of leprosy patients. It maintained that ill health should not be the sole determinant of a person’s right and ability to marry. The key factor determining whether a person is capable or incapable of exercising the ius connubii is the ability to elicit personal free consent—the unique efficient cause of marriage. While there are cases where exclusion from exercising the ius connubii would be for the good of the parties and of the wider community, insanity does not seem to qualify in this case.

The responsibility, therefore, rested with the Church—the custodian of marriage—to protect the ius connubii of every person and specify situations that may render a person incapable of exercising it. Such action on behalf of the Church was accelerated by the Protestant

Reformation that led to the Council of Trent, which we shall explore in the next section.

ista verborum, quibus consentiunt, dicentes: Accipio te in virum et te in uxorem, matrimonium facit,” as cited by Esmein, Le mariage , 1:337.

58 C. viii, X, De spons. , IV, 1: “ Si alter intellexerit quod alter proposuerit, ad communem verbi intelligentiam recurratur, et cogatur uterque verba prolata in sensu retinere, quem solent recte intelligentibus generare.”

59 See footnote 52 above, page 71.

iii) The Ius Connubii and the Council of Trent (1545-1563)

The Protestant Reformation affected the sixteenth century Church in diverse ways, its attack on the Church’s teaching on marriage in particular. Martin Luther and the other Protestant

Reformers denied the sacramentality of marriage and maintained that the Church had no jurisdiction over marital union. Consequently, the Church had no authority to determine the impediments to marriage. Luther even referred to the impediments as a diabolic limitation on

Christian liberty, claiming that the Church could neither dissolve a marriage nor oblige spouses to remain married. 60 According to the Reformers, as a human reality, marriage was within the competence of secular authority. Luther and his followers even denied certain classes of people the right to marry because their circumstances were incompatible with the common life that marriage required. 61

The affirmations of the Reformers had consequences regarding centuries of Church teaching on the recognition and protection of the ius connubii of every human person. In her view, considering the impediments as an unjust limitation to the ius connubii implied that its exercise is absolute. Such reasoning would render centuries of the juridical matrimonial system of the Church an artificial and unjust structure in the sense that the Church denied the exercise of the ius connubii to certain classes of people that, according Scripture, had the right to marry. 62

Furthermore, any intervention by the Church to determine an impediment or its grade—as those enunciated in the book of Leviticus—faced the condemnation of Luther. Still, as a fundamental right of the human person, the ius connubii would remain inefficacious without a system that

60 Héctor, Riconoscimento e tutela dello “Ius Connubii”, 253 especially his footnote 4.

61 Brundage, Law, Sex, and Christian Society in Medieval Europe , 559.

62 Héctor, Riconoscimento e tutela dello “Ius Connubii”, 259.

recognizes, protects, and promotes it. 63 Furthermore, because marriage is a social institution that affects society in diverse ways, the nature of the ius connubii requires regulation for the good of all. Thus, the ius connubii ought to be recognized and protected by civil and the ecclesial community, as the Church has done through her history. 64

The Church, therefore, had to defend her jurisdiction over marriage to demonstrate that

her power to regulate the ius connubii is not limited solely to the determination of norms concerning marriage. Rather, it also includes the juridical regulation of marriage from its origin, development, the declaration of nullity and separation of spouses. The Church responded to the affirmations of the Reformers in the canons and the decree on marriage of the Council of Trent, in which she asserted her jurisdiction over marriage in general. 65

The Council of Trent was aware that the multiplication of impediments 66 in the past might have led to some unjust limitation of the ius connubii in certain situations. In addition, it might have made difficult determining with certitude the ability of some classes of people to

63 Héctor, Riconoscimento e tutela dello “Ius Connubii”, 380.

64 The Charter of the Rights of the Family, October 22, 1983 n. 9 states that families have the right to be able to rely on an adequate family policy on the part of public authorities in the juridical, economic, social and fiscal domains, without any discrimination whatsoever. Further on, it states: (a) Families have the right to economic conditions which assure them a standard of living appropriate to their dignity and full development. They should not be impeded from acquiring and maintaining private possessions which would favor stable family life; the laws concerning inheritance or transmission of property must respect the needs and rights of family members; (b) Families have the right to measures in the social domain, which take into account their needs, especially in the event of the premature death of one or both parents, the abandonment of one of the spouses, accident, sickness or invalidity, in the case of unemployment, or whenever the family has to bear extra burdens on behalf of its members for reasons of old age, physical or mental handicaps or the education of children.

65 Council of Trent, Session 24, November 11, 1563, Canones de sacramento matrimonii et Canones super reformatione circa matrimonium , cap. 1: Norman P. Tanner, ed., Decrees of the Ecumenical Councils two vols. (Washington, D.C. and London: Sheed and Ward Limited and Georgetown University Press, 1990) [hereafter Tanner ] 2:754-55.

66 Esmein, Le mariage , 1:235.

76 contract marriage. Hence, the Council decided to streamline and clarify the juridical regulation of the impediments in order to avoid any unjust restriction of the exercise of the ius connubii by those called to the vocation of marriage. 67 In addition, the Council defended the free and personal consent of an individual as the efficient cause of marriage, thereby negating Luther’s position that saw parental authority as a requisite for the validity of marriage.

The teaching of the Council of Tent regarding the recognition and protection of the ius connubii of every human person remained the praxis of the Church in its matrimonial system until the first codification of the universal laws of the Church, beginning with the 1917 Code of

Canon Law, which will be discussed in the next section.

iv) The Ius Connubii and the Codes of Canon Law

The 1917 Code of Canon Law included a canon on the ius connubii among those that treat the impediments in general: “All can contract marriage who are not prohibited by law.” 68

This canon became the foundation for the interpretation of the canons on the impediments, which, in a way, reduced its scope and significance. As a result, it was no longer the inspiring principle of the matrimonial system, but rather a prescription that was strictly tied to the canons on the impediments, and enjoyed its interpretation among those norms. 69 However, a careful

67 Council of Trent, Canones de sacramento matrimonii et Canones super reformatione circa matrimonium , cap. 3 and 4, Tanner, 2: 757. The Council totally abolished the impediment arising from public decency in cases where a betrothal was for some reason invalid and streamlined the forbidden degrees of marriage where the betrothal was valid. It also restricted the impediment that was incurred by affinity contracted through fornication which nullified a subsequent marriage.

68 1917 CIC c . 1035: “ Omnes possunt matrimonium contrahere, qui iure non prohibentur.”

69 Héctor, Riconoscimento e tutela dello “Ius Connubii”, 352.

77 analysis of the preliminary discussions on the canon and on the impediments indicated that the right of the faithful to marry ought to be recognized by the legislator in diverse dimensions, as it is a fundamental right of persons. 70

In the 1983 Code, the position of the canon on the ius connubii 71 among the preliminary canons governing marriage seems to be situated correctly within the matrimonial system of the

Church because the ius connubii is a fundamental right of any person, and thus of the Christian faithful ( Christifideles ). Furthermore, marriage is the vocation of the majority of the

Christifideles and ought to be recognized and protected by both ecclesiastical authority and the ecclesial community. The canon on the ius connubii in the 1983 Code is an exact rendering of canon 1035 of the 1917 Code. However, its systematic arrangement responds better to its nature and content and is at least among the canons dealing with marriage.

The 1983 Code treats the ius connubii as a fundamental right of every human being, rather than solely the Christian faithful. Thus, by its very nature, it requires an efficacious recognition by the Church, whose authority must regulate the exercise of this right through juridical norms. The regulation of marriage indicates that it is not completely a private act, but a fundamental act that introduces the spouses into an ecclesial order, whereby they constitute a new state of life that affects the wider community.

Because marriage is the foundation of the family, which is the foundation of the Church, papal teachings paid special attention to marriage in general. In particular, they focused on the recognition and defense of the ius connubii to ensure that no one was unjustly deprived of

70 Héctor, Riconoscimento e tutela dello “IusConnubii”, 352.

71 c. 1058: “ Omnes possunt matrimonium contrahere, qui iure non prohibentur.”

78 exercising this fundamental right. In the next section, we shall take an overview of these teachings in this regard.

v) The Ius Connubii and Papal Teachings

Since the pontificate of Leo XIII, the popes have been clear that the ius connubii is the fundamental right of every human person and that no one may arbitrarily deprive a person from its free exercise. However, in this section, we shall limit the discussion to those papal teachings that best illustrate how the ius connubii of some classes of people, especially the sick, was recognized and defended.

The new scientific advances that followed the Second World War brought new challenges to the pontificate of Pius XII, in particular with respect to marriage. Pius XII was of the view that no human law can take from a human being the natural and primordial right to marry without proof that the person has either freely renounced it or is incapable of contracting marriage because of some defect of mind or body. 72 In his address to the First International

Symposium on Medical Genetics, held on September 7, 1953, the pope rejected the practice of rendering marriage for those with hereditary defects physically impossible through their segregation from society. He maintained that, although the intended purpose of such segregation might be good in itself, it would violate a person’s right to contract and consummate a marriage.

He stressed that man is a personal being with inviolable rights, one of which is the ius connubii ,

72 Pius XII, Allocution to the Roman Rota, October 03, 1941, n. 1: AAS 33 (1941) 422: “Niuna legge umana può togliere all’uomo il diritto naturale e primitivo del coniugio. Tale diritto invero, poichė fu dato all’uomo immediatamente dall’Autore della natura, supremo Legislatore, non può essere ad alcuno negato, se non si prova che egli, o vi abbia liberamente rinunziato o sia incapace di contrarre matrimonio per difetto di mente o di corpo.” Pius XII also denounced the ban on inter-racial marriage, which was in place in the Nazi socio-political system in Germany.

79 which are bound by moral laws that extend beyond human authority. 73 Similarly, he upheld the right of carriers of the “Mediterranean disease” to marry. 74 Citing Pius XI’s encyclical letter

Casti conuubii , the pope reiterated his former position that, while a carrier of the disease may be advised not to marry, he or she cannot be forbidden to do so, as marriage is one of the fundamental rights of the human person that may not be tampered with. 75

During his very first meeting with the Roman Rota in October 1959, John XXIII noted the distinguishing principle of its work—devotion to the cause of justice—which surpasses all other virtues and completes them for the common good. 76 Realizing that the ius connubii of many people could be challenged today, the pope gave the Rota the motto: “Serve the largest number of people” ( quam plurimis prodesse ) by seeking to do good and bring about respect of reciprocal rights and obligations. 77 He further reiterated the Rota’s role as the champion of the sacred rights of the human person, especially the ius connubii , irrespective of the class. 78

In 1963, in his encyclical letter, Pacem in terris , John XXIII talked explicitly of the recognition and protection of the right of every human person to choose freely the state of life

73 Pius XII, allocution Primo Symposio Internationali Geneticae Medicae, September 07, 1953, para. 44: AAS 45 (1953) 607.

74 The Mediterranean disease, Thalassemia Mediterranean Blood Disease, is a hereditary blood disorder manifested through hemoglobin abnormalities that result in the destruction of the red blood cells.

75 Pius XII, Allocution to the Seventh Congress of the International Society of Hematologists, September 12, 1958, para. 20: AAS 50 (1958) 738.

76 John XXIII, Allocution to the Roman Rota, October 19, 1959, para. 7: AAS 51 (1959) 824.

77 Ibid.

78 Ibid., 825.

80 that appeals to him, whether it is to found a family or to embrace the priesthood or religious life. 79

The election of John Paul II to the papacy in 1979 witnessed the arrival of a champion of human rights, the ius connubii in particular. In his first allocution to the Roman Rota on the

Church and the Protection of Fundamental Human Rights, he reminded the Rota that its first duty is show respect for those that have given their word, have expressed their consent, and have made this a total giving of self. 80

When he addressed the Roman Rota in 1987, John Paul II reminded the canonists that it must remain clear that only incapacity , rather than difficulty , in giving consent and in realizing a true community of life and love invalidates a marriage. 81 Therefore, the hypothesis of real incapacity to exercise the ius connubii or to declare a marriage null and void is to be considered only when an anomaly of a serious nature that substantially vitiates the capacity of the individual to understand and/or to will is present. 82 Moreover, the experts in psychiatry and psychology should not be expected to provide a judgment on the nullity of marriage, as this is the responsibility of the judge alone.

In 1988, John Paul II returned to the theme of mental incapacity to exercise the ius connubii . He noted that, for the psychologist or psychiatrist, every form of illness could appear contrary to normality. In contrast, the canonist inspired by the integral vision of the person would

79 PT 15: AAS 55 (1963), 261.

80 John Paul II, Allocution to the Roman Rota, January 28, 1982, n. 7: AAS 74 (1982) 452.

81 John Paul II, Allocution to the Roman Rota, February 05, 1987, n. 7: AAS 79 (1987) 1457.

82 Ibid., “Una vera incapacità è ipotizzabile solo in presenza di una seria forma di anomalia che, comunque sia voglia definire, deve intacarre sostanzialmente le capacità di intendere e/o di volere del contraente.”

81 interpret the concept of normality differently. In other words, a canonist would acknowledge that the normal human condition in this world includes moderate forms of psychological difficulty. It thus includes the call to live in accordance with the Spirit even in the midst of tribulation and at the cost of renunciation and sacrifice. Where such an integral vision of the human being is lacking, normality at the theoretical level can easily become a myth. At the practical level, there is a danger that the majority of people would be denied the possibility of giving valid matrimonial consent. 83

The Holy Father called for the canonists to consider psychiatric evidence indicating the presence of some psychopathology in the spouses and cautioned that psychological concepts do not always correspond with the canonical ones. Thus, he stressed that only the most severe forms of psychopathology substantially impair the freedom of the individual to exercise the ius connubii . In addition, John Paul II noted some errors that experts make, which can easily lead to the disqualification of many persons from exercising the ius connubii . More specifically, he cited the presupposition that a person’s past (such as a psychic trauma) not only helps to understand the present, but inevitably determines it in such manner as to eliminate all possibility of free choice to enter marriage. He further cautioned against an unjustified exaggeration of the concept of the capacity to contract marriage. He explained that, when the expert declares that a party is incapable of contracting marriage, he or she is not referring to the minimum capacity that is sufficient for valid consent, but rather to the ideal of full maturity in relation to happy married life. 84 The Holy Father, therefore, admonished the defender of the bond to refer constantly to an

83 John Paul II, Allocution to the Roman Rota, January 25, 1988, n. 5: AAS 80 (1988) 1181.

84 Ibid., 1183.

82 adequate anthropological vision of normality in cases involving mental incapacity in order to compare it with the results of the expert reports. The defender of the bond must, however, be capable of recognizing, both in the premises and in the conclusions of the expert, the elements that have to be confronted with the Christian vision of human nature and of marriage.

In his allocution to the Roman Rota in 1997, John Paul II noted that the concept of marriage as a reciprocal gift of two persons would seem to justify a vague doctrinal and jurisprudential tendency to broaden the requirements for the capacity or psychological maturity and the freedom and awareness necessary to contract marriage validly. He, however, explained that the personalist aspect of Christian marriage implies an integral vision of man that is characterized by a sound realism in its conception of personal freedom. Thus, the “view proper to Christian anthropology also includes an awareness of the need for sacrifice, for the acceptance of suffering and the struggle as indispensable realities for being faithful to one’s duties.” 85 In addition, John Paul II cautioned that “in handling marriage cases, it would be a mistake to have a too ‘idealized’ notion, so to speak, of the marital relationship, which would lead one to interpret that normal difficulties that can occur as the couple progress towards full and reciprocal emotional integration as though there were a genuine incapacity to assume the obligations of marriage.” 86

85 John Paul II, Allocution to the Roman Rota, January 27, 1997, n. 4: AAS 89 (1997) 488: “In quest’ottica, propria dell’antropologia Cristiana, entra anche la conscienza circa la necessità del sacrificio, dell’accettazione del dolore e della lotta come realità indispensabili per essere fedeli ai propri doveri.”

86 Ibid., “[N]ella trattazione delle cause matrimoniali, una concezione, per cosi dire, troppo ‘idealizzata’ del rapporto tra i coniugi, che spingesse ad interpretare come autentica incapacità ad assumere gli oneri del matrimonio la normale fatica che si può registrare nel cammino della coppia verso la piena e reciproca integrazione sentimentale.”

Furthermore, John Paul II explained that a correct evaluation of the personalist elements also requires mindfulness of the essential nature of the person, owing to which he or she has a natural inclination to marriage. Although marriage has an essential nature described in canon

1055—as can be seen in the concepts of “essential property,” “essential element,” “essential rights and obligations,” et cetera —this essential reality is, in principle, a possibility open to every man and woman. Indeed, it represents a true vocation for the great majority of the human race. Consequently, John Paul II emphasized:

[I]n assessing the capacity or the act of consent necessary for the celebration of a valid marriage, one cannot demand what it is not possible to require of the majority of people. It is not a question of a pragmatic or convenient minimalism, but of a realistic view of the human person, as a being always growing, called to make responsible choices with his/her inborn abilities, continuously enriching them by his/her own efforts and the help of grace. 87

In the name of the Church, the Rota has an exacting task to defend and secure the ius connubii of the individual Christifideles especially of determining that minimum without which one cannot speak of the capacity or of sufficient consent for a true marriage.

In 2001, John Paul II’s allocution to the Roman Rota was entitled “God Himself is the author of marriage.” In recognizing the ius connubii of every person, he pointed out that, in the light of marriage as a natural reality, we can easily grasp the natural character of the capacity to marry: “All who are not prohibited by law can contract marriage.” 88 He also pointed out that no

87 John Paul II, Allocution to the Roman Rota, January 27, 1997, n. 5: AAS 89 (1997) 489: “[Nella] valutazione della capacità o dell’atto del consenso necessari alla celebrazione di un valido matrimonio, non si può esigere ciò che non è possibile richiedere alla generalità delle persone. Non si tratta di minimalismo pragmatico e di comodo, ma di una visione realistica della persona umana, quale realità sempre in crescita, chiamata ad operare scelte responsabili con le sue potenzialità iniziali, arricchendole sempre di più con il proprio impegno e l’aiuto della grazia.”

88 c. 1058: “ Omnes possunt matrimonium contrahere, qui iure non prohibentur.”

84 interpretation of the norms on the incapacity for consent 89 would be correct if it rendered

Cicero’s principle, “The science of law must be drawn from man’s inmost nature,” inapplicable in practice. 90 The norm of canon 1058 is clear on the need for masculinity and femininity of those entering marital union, which, essentially, does not require any unusual characteristics. In protecting the marital union, the Holy Father made it clear that, for anyone to introduce requirements of intention or faith for the sacrament that go beyond that of marrying according to

God’s plan from the “beginning”—in addition to the grave risks mentioned in Familiaris consortio 91 —would inevitably mean separating the marriage of Christians from that of other people. Such action would be profoundly against the true meaning of God’s plan for marriage— part of the very economy of creation—in that it is precisely the created reality that is a “great mystery” in reference to Christ and the Church. 92

In 2009, once again, Benedict XVI took up the theme of mental incapacity in the causes of matrimonial nullity, as treated in canon 1095. He explained that any references to capacity or incapacity are meaningful only in the context of contracting the marriage, the validity of which does not depend on the subsequent conduct of the couple during their married life. 93 He therefore affirmed that the capacity to marry refers to the minimum needed for a male and a female person

89 c. 1095: “Sunt incapaces matrimonium contrahendi: 1 o qui sufficienti rationis usu carent; 2 o qui laborant gravi defectu discretionis iudicii circa iura et officia matrimonialia essentialia mutuo tradenda et acceptanda; 3 o qui ob causas naturae psychicae obligationes matrimonii essentiales assumere non valent.”

90 Cicero, De Legibus , II.

91 FC 68: AAS 74 (1982), 164-65.

92 John Paul II, Allocution to the Roman Rota, February 01, 2001, n. 8: AAS 93 (2001) 364.

93 Benedict XVI, Allocution to the Roman Rota, January 29, 2009, para. 6: AAS 101 (2009) 127.

85 to freely consent to marriage, in order to establish that bond to which the vast majority of human beings are called. 94

From its inception, the Church has recognized that every person has the natural right to marry and she defended it even in certain cases where, objectively speaking, it seemed that the exercise of the right should be restricted. At the same time, the Church also affirmed that she had the right to restrict the exercise of the ius connubii in certain cases, especially when a marital union threatened the common good. She exercised that right through the declaration or establishment of impediments. Thus, in the next section, we shall examine some of the impediments to marriage, focusing on those that best illustrate that the protection of the common good was the motivation behind their imposition. We shall pave the way for a better understanding of this treatment by first briefly exploring the background of the impediments in the history of the Church, before discussing the meaning of the term “impediment.”

3. The Church and the Impediments to Marriage

i) Brief Background

The primitive Church evolved first in Jewish and later in Roman culture. These cultures had their laws and customs that regulated the exercise of the natural right to marry. In her teaching on marriage, the Church conveyed that the free consent of the parties is what makes the marriage. The indissoluble bond that results from this verbal consent carries corresponding rights and obligations for the good of the spouses and of the wider community. Thus, the Church has always been interested in the harmonious development of the community of the family, as it was

94 Benedict XVI, Allocution to the Roman Rota, January 29, 2009, para. 7: AAS 101 (2009) 127.

86 intended by the Creator for a fitting education of its members and for its effects on society. The conciliar Pastoral Constitution Gaudium et spes pointed out that “the well-being of the individual person and of both human and Christian society is closely bound up with the healthy state of conjugal and family life.” 95 It further noted: “It can be plainly said that marriage forms the principal part of the ‘common good’ of society, contributing to the building up of society and to achieving this common good.” 96 Thus, the Church and the society must intervene juridically whenever they sense that the exercise of the ius connubii may threaten the common good.

However, any juridical intervention of the exercise of the ius connubii, which must be within the limits imposed by divine law, is aimed at the salvation and welfare of souls. The divine law serves this purpose perfectly. The ecclesiastical and civil law too must tend to the same end as perfectly as possible. However, this raises the question of the meaning of the term “impediment.”

ii) The Meaning of the Term “Impediment”

“Impediment,” in the context of ability to marry, is the term used to describe a juridical situation that affects one or both spouses and constitutes an obstacle to the validity or lawfulness of marriage. An impediment restricts a person’s exercise of the right to marry and it can be

95 GS 47, AAS 58 (1966), 1067; Abbott, 249: “ Salus personae et societatis humanae ac christianae arcte cum fausta condicione communitatis coniugalis et familiaris connectitur.”

96 Juan Ignacio Bañares, “Marriage,” in Exegetical Commentary on the Code of Canon Law , English language edition, ed. Ernest Caparros et al. (Chicago and Montreal: Midwest Theological Forum and Wilson & Lafleur, 2004) [hereafter Exegetical Commentary ] 3/2: 1040.

87 declared or established only by the supreme authority of the Church. 97 Such a restriction on the exercise of the ius connubii can arise from divine law (natural or positive) or human law

(ecclesiastical or civil). Due to their generic nature, impediments disqualify entire classes of people from marriage. Some of them are based on characteristics of these people themselves, which disqualify them from entering into marriage, such as being under the canonical age of marriage, being absolutely and perpetually impotent ( impotentia coeundi ), being bound by the bond of a previous marriage, being a member of a sacred order, and being bound by a public perpetual vow of chastity in a religious institute. Some impediments declare invalid certain categories of marriage because of one or more of their salient characteristics, including abduction of one of the parties and the parties being closely related by blood, marriage, or adoption.

Nature indicates the object and the content of marriage, and its limits arise from the definition of marriage itself. The nature of the ius connubii requires specific regulation to be effective in society in which the married couple will live, as marriage is an important part of the common good. Thus, the imposition of an impediment on the exercise of the ius connubii is an application by Church and society of those limits inherent in the ius connubii that threaten central ecclesial goods and the commonweal. It is therefore logical that an impediment incapacitates a person; it renders a person unable to enter marriage validly, as well as rendering the marriage null and void. Some of the impediments that best illustrate the exercise of Church authority to restrict the exercise of the ius connubii for the common good will be explored next.

97 c. 1075 §1: “Supremae tantum Ecclesiae auctoritatis est authentice declarare quandonam ius divinum matrimonium prohibeat vel dirimat. §2: “Uni quoque supremae auctoritati ius est alia impedimenta pro baptizatis constituere.”

iii) Some Specific Impediments

a) Insufficient Age

Roman law stipulated that a male had to be pubes and a female viripotens 98 to celebrate a legal or legitimate marriage. Puberty was understood to mean possessing the potentia generandi and the debita mentis discretio .99 Thus, for girls and boys, its onset was marked by the completion of the twelfth and the fourteenth year, respectively. 100 However, in 1917, the Church raised the minimum age for marriage above the level that had been established by traditional

Roman law: “A man cannot enter marriage before the completion of his sixteenth year of age, nor a woman before the completion of her fourteenth year.” 101 This higher minimum age for marriage reflects the Church’s judgment that it is only at these ages that a girl and a boy possess adequate knowledge and judgment about marriage. By this time, the male and female sexual characteristics are successively unfolded and the development of the spouses should be advanced

98 Ulpian, Regulae, 5. 2.

99 John Coyle O’Dea, The Matrimonial Impediment of Nonage: An Historical Synopsis and Commentary , Canon Law Studies 205 (Washington, D.C.: Catholic University of America Press, 1944), 2. See Elizabeth J. Susman and Alan Rogol, “Puberty and Psychological Development,” in Handbook of Adolescent Psychology , 2 nd ed., ed. Richard M. Lerner and Laurence Steinberg (New Jersey: John Wiley & Sons, Inc., 2004), 15, where the authors refer to puberty as an integrated and complex biological and social construction that entails definitional ambiguity regarding its onset and offset. However, they also note that, while the biological changes puberty brings about are universal, the timing and social significance of these changes to adolescents themselves, societies and scientific inquiry vary across periods in history and culture.

100 C. 5.60. 3; and Inst., 1. 10.

101 c. 1083 §1: “Vir ante decimum sextum aetatis annum completum, mulier ante decimum quartum item completum, matrimonium valide inire non possunt.” This is the same age the Church established in 1917 CIC c. 1067 §1.

89 enough not only to allow them to understand the scope of the commitment being made, but also to be capable of living as spouses and potential parents. 102

In raising the minimum age for marriage, the Church recognized that youthful marriages pose a serious problem on the spouses themselves, their children, and the common good. The high rate of divorce among teenage couples further demonstrates the fragility of such marriages.

Many young people drift unintentionally into parenthood, with the view that the solution lies in marriage. As it clearly does not, many eventually divorce. American studies have consistently shown that couples who marry before the age of twenty-five are more likely to find themselves in divorce court. 103 Dana Rotz demonstrates that American divorce rates started to increase during the 1950s, reaching the maximum around 1980, before starting to decline. 104 In her view, age is a significant factor in the couple’s decision to divorce. In fact, statistics indicate that divorce rates decline by at least 6% with each additional year the bride waits before marrying, implying that age at marriage can explain at least 60% of the decline in divorce rates for couples marrying during 1980-2004. 105 This direct relationship between bride’s age and marital stability confirms that more mature brides are in a better position to make an informed decision regarding

102 Juan Ignacio Bañares, “Individual Diriment Impediments,” in Exegetical Commentary on the Code of Canon Law , English language edition, ed. Ernest Caparros et al. (Chicago and Montreal: Midwest Theological Forum and Wilson & Lafleur, 2004) [hereafter Exegetical Commentary ] 3/2: 1171.

103 Kay Hymowitz, Jason S. Carroll, W. Bradford Wilcox, and Kelleen Kaye, Knot Yet: The Benefits and Costs of Delayed Marriage in America (The National Marriage Project at the University of Virginia, 2013), 15.

104 Dana Rotz, “Why Have Divorce Rates Fallen? The Role of Women’s Age at Marriage,” Social Science Research Network working paper (December 20, 2011), 1-6. In her notes 10 and 11, on page 5, Rotz shows that the decline in the divorce rates was not only an American phenomenon, but was also experienced in many OECD (Organization for Economic Co-operation and Development) countries. See also Andrew J. Cherlin, “Demographic Trends in the United States: A Review of Research in the 2000s,” Journal of Marriage and Family 72 (2010): 405; Hymowitz, Carroll, Bradford Wilcox, and Kaye, Knot Yet, 6.

105 Dana Rotz, “Why Have Divorce Rates Fallen,” 31.

90 their choice of spouse. Studies show that divorce diminishes children’s psychosocial well-being and the decline in well-being helps explain the poor academic performance of children whose parents are divorced. 106 Poor performance in school may eventually prompt these children to leave the school before graduating, which is often followed by involvement in behaviors that promote neither their own good nor that of society.

Another serious concern regarding teenage marriages that threatens the common good is maternal mortality among adolescent women. Because young women have not reached full physical and psychological maturity, they are almost three times more likely to die from complications in childbirth than are older women. Moreover, their pelvic immaturity makes them more likely to experience cephalopelvic disproportion, toxemia, and placental abruption, leading to hemorrhage and death. 107 Findings of studies conducted in several countries consistently show a higher risk of maternal death among teenage girls compared to those aged 20 to 34, and the risk for very young teenagers (10-14 years) is much greater than for older teenagers (15-19 years). 108

Some of the risks of pregnancy-related complications are also greater among teenage women, especially high blood pressure, which can easily degenerate into seizures, convulsions, and cerebral hemorrhage. 109 These health hazards have a serious impact on the institution of marriage, public health and the good of society.

106 Daniel Potter, “Psychosocial Well-Being and the Relationship between Divorce and Children’s Academic Achievement,” Journal of Marriage and Family 72 (2010): 940-44; and Cherlin, “Demographic Trends in the United States,” 410.

107 Robert W. Blum and Kristin Nelson-Mmari, “Adolescent Health from an International Perspective,” in Handbook of Adolescent Psychology 2nd ed., ed. Richard M. Lerner and Laurence Steinberg (New Jersey: John Wiley & Sons Inc., 2004), 565.

108 Ibid.

109 Ibid., 567.

Another concern associated with teenage marriages is that most teenage parents are not yet emotionally, spiritually, intellectually, and financially mature enough to undertake the obligations of the education of offspring. Gaspari noted that “the necessary discretion of mind even if it is had before the legal age of marriage is weak and the use of marriage usually greatly harms the health of both the parents and the children.” 110 A situation in which neither parents nor children can be of help to the other toxifies the entire society and stifles the common good. The

Church is, therefore, rightfully concerned with the age of those who enter marriage because “it can be plainly said that marriage forms the principal part of the ‘common good’ of society, contributing to the building up of society and to achieving this common good.” 111

The exercise of a right entails corresponding obligations, just as there are obligations in every institution. Teenage marriages face difficulties in meeting the obligations inherent in the institution of marriage. Because marriage touches on the rights of both civil and ecclesial community, the impediment of insufficient age is intended to avert the problems that come with teenage marriages. As we discussed above, any problems in marriage directly affect the good of the spouses, and that of the wider community.

b) Impotence

The common assumption is that, in matrimonium in facto esse , the spouses are able to have sexual intercourse with one another as husband and wife. This act brings the possibility of

110 Petri Gasparri, Tractatus Canonicus de Matrimonio (Roma: Typis Polyglottis Vaticanis, 1932), n. 493: “quia mentis discretio necessaria, si ante hanc aetatem habetur, debiles est, et matrimonii usus sanitati et parentum et filiorum valde nocere solet.”

111 Bañares, “Marriage,” 3/2: 1040.

92 procreation of new human lives (canons 1055 §1, and 1061 §1). Indeed, the procreative faculty tends in and of itself toward that end. 112 Consequently, each spouse must specifically possess such ability and accept the possibility of procreation in the conjugal relationship. The meaning of giving oneself and receiving the other as a spouse, whereby the two become one flesh, implies acceptance of potential parenthood.

The present discussion of impotence focuses on impotentia coeundi 113 —a natural or accidental defect, either organic or psychological, of one or of both parties, preventing copulam.

This should be differentiated from impotentia generandi (sterility), which implies the inability to procreate only, without affecting the ability to have coitus. Because sexual intercourse is an intrinsic and essential element of marriage, the inability to perform this act renders marriage null and void ab initio . In entering marriage, the spouses make life-long commitment that, by its very nature, is ordered to the well-being of the spouses and to the procreation and upbringing of children. This aim is unrealizable outside sexual intercourse in the ordinary understanding of the meaning of marriage.

The impediment of impotence protects marriage from various forms of sexual immorality, such as masturbation, adultery, divorce and remarriage. These evils destroy marriage from its very roots, frustrate its good and adversely affect public morality. They stifle the conditions of social life that allow people to obtain their fulfillment easily. In this context, it is worth briefly considering the marriage of elderly persons in which sexual intercourse may not be possible. Such marital union is valid because the couple would have been expected to know a

112 Bañares, “Individual Diriment Impediments,” 3/2: 1174.

113 c. 1084 §1: “Impotentia coeundi antecedens et perpetua, sive ex parte viri sive ex parte mulieris, sive absoluta sive relativa, matrimonium ex ipsa eius natura dirimit.”

93 priori that they might not be able to perform sexual intercourse. However, what about the virginal marital relationship between St. Joseph and the Blessed Virgin Mary? Here, we distinguish, as we did in Chapter One, between the right itself and the exercise of the right.

Clearly, while the right to sexual intercourse must be preserved, the spouses are free to decide jointly whether to make use of the right. 114

Impotence contradicts the essential purposes of marriage because impotent parties consent to a contract they are incapable of fulfilling—mutual help, procreation and upbringing of children. The parties “seemingly” exchange marital rights, knowing or unknowing, that they cannot fulfill the corresponding duties and obligations. In doing so, they render incomplete and imperfect what was given and received as the object of the marriage. 115 Impotent marriages also constitute an injustice to society because they do not reciprocate the rights society accords them by the corresponding duties and obligations they owe the society for the good of all. Moreover, impotent marriages threaten the rights of the Church.

Consequently, the Church declares the impediment of impotence, which is of natural law, because an impotent marriage lacks one of its essential and constitutive elements—the ability of the spouses to consummate the marriage, with the possibility of the man becoming a father and the wife a mother. Impotence renders the affected partner incapable of rendering the marital debt to the other. The impediment, therefore, aims to maintain the integrity of the institution of marriage and to protect it from abuses that may be consequent from impotent spouses.

114 C. 27 q. 2 c. 3 and glos. ord . to voti virginitatis ; also glos, ord . to X 4.1.16 ad v. tutius, as cited by James A. Brundage, Sexual Practices & The Medieval Church, ed. Vern L. Bullough and James Brundage (New York: Prometheus Books, 1982), 140.

115 Bañares, “Individual Diriment Impediments,” 1175.

c) Previous Marriage Bond

From the very beginning, the Church understood that the essential properties of marriage are unity and indissolubility. The unity of one man and one woman in marriage is of natural law and is expressly confirmed by sacred scripture. 116 “As a mutual gift of two persons, this intimate union, as well as the good of the children, imposes total fidelity on the spouses and argues for an unbreakable oneness between them.” 117 Thus, the Church simply declares the impediment of a previous marriage bond when it states that “a person obliged by the bond of a previous marriage, even if not consummated, invalidly attempts marriage.” 118

Since the Old Testament times, the bond of marriage has suffered from the threats of divorce. 119 The effects of clandestine marriage in the early history of the Church—including divorce, desertion of spouses and children, numerous litigations at ecclesiastical courts—created an unhealthy atmosphere for both the Church and the society. In medieval times, marriage was primarily seen as a social tool in the hands of noble and great families, who used it to seal alliances in order to promote family or political interests. Thus, it was in their interest that marriage remain a fluid institution, so that it could be dissolved when it was advantageous to one

116 Gen 2:24; Mt 19:3-9; Mt 10:2-12; Lk 16:18; 1Cor 7:4, 10, 39; Eph 5:32; and Rom 7:3.

117 GS 48, AAS 58 (1966), 1068; Abbott, 251: “Quae intima unio, utpote mutua duarum personarum donatio, sicut et bonum liberorum, plenam coniugum fidem exigunt atque indissolubilem eorum unitatem urgent.” See also Pius XI, encyclical letter Casti Connubii , December 31, 1930, n. 19: AAS 22 (1930) 546-47.

118 c.1085 §1: “ Invalide matrimonium attentat qui vinculo tenetur prioris matrimonii, quamquam non consummati.”

119 Dt. 24:1-4.

95 or both parties. 120 In those shifting conditions of the institution, women were invariably victimized, as they were treated as a commodity rather than as persons.

The instability of marriage caused by divorce affects the spouses first, as it diminishes their annual incomes and material resources. In addition, parenting ability is compromised, as divorce makes it less consistent. When a couple separates, a breakdown in household rules and regulations typically occurs, adversely affecting their children. 121 While the consequences of divorce may not always be readily apparent, they are usually felt by the society in the long term.

Since man lives by reason, ideally children benefit most from being raised by both parents, assuming that they are responsible, experienced individuals, devoted to their roles as nurturers and educators, aiming to instill prudence in their offspring. Children are not able to receive such instruction while in infancy and thus require consistent and prudent parenting as they grow up. This helps them develop and learn, eventually becoming responsible individuals, capable of living independently and forming their own families. Parental input is particularly vital once children have reached the age of discretion. Thus, divorce and remarriage affect children, because not living with both parents compromises such instruction.

According to the US census data for the period from the 1990s to the first half of the

2000s, about 25 percent of children were not living with both parents. 122 Starting in the 1960s, the increasing levels of divorce, separation, childbearing outside of marriage and children’s experiences of multiple parental transitions due to remarriage and cohabiting with different partners have had a negative impact on their psychosocial development. Such children tend to

120 Brundage, Law, Sex, and Christian Society in Medieval Europe , 175 and 183.

121 Potter, “Psychosocial Well-Being,” 934.

122 Cherlin, “Demographic Trends in the United States,” 409.

96 suffer behavioral problems, often manifested through damaged parent-child relationships, inability to interact with peers in school, and poorer academic performance. 123 Commitment to whatever vocation one has chosen is important to help a person develop his or her full potential.

Thus, the changing circumstances created by divorce and remarriage undermine the children’s ability to develop into capable and responsible adults.

Indeed, the dissolubility of marriage is antithetical to the original idea of marriage as instituted by the Creator from the very beginning—an indissoluble union of one man and of one woman (Gen 2:24). Thus, the impediment of prior bond is to protect the demands of justice inherent in marriage as a social institution, which are essential for the flourishing of the family and of the society. Furthermore, the impediment aims to protect a true marriage in society and to allay any abuses and threats that may undermine the indissolubility of the previous union.

d) Abduction

The impediment of abduction arises in cases when a woman is abducted or at least detained with the intention of marrying her, unless—after she has been separated from her abductor and established in a safe and free place—a woman chooses to marry him willingly and without any coercion.124 Thus, the constituent elements of the impediment include the woman being placed under the power of her abductor ( in potestate raptoris ) either by removal from one place to another or by detention even in her own lodging, the use of violence or force (physical

123 Potter, “Psychosocial Well-Being,” 940-44; Cherlin, “Demographic Trends in the United States,” 410.

124 c. 1089: “Inter virum et mulierem abductam vel saltem retentam intuitu matrimonii cum ea contrahendi, nullum matrimonium consistere potest, nisi postea mulier a raptore separata et in loco tuto ac libero constituta, matrimonium sponte eligat.”

97 or moral) that inflicts grave fear in the woman, and the abductor’s intention of contracting marriage with the woman. 125

The impediment of abduction aims to safeguard human liberty and to allay any possible perception that a person can be coerced to assume duties and obligations of a life-long partnership against his or her will. Abduction negates one’s freedom, which is an essential component of human flourishing. The possible protracted litigations in ecclesiastical courts regarding the freedom of consent in cases of abduction rob the marriage of its main purposes, as it is not entered in pursuit of the common good, but rather for the sole purpose of fulfilling personal goals of one spouse. The impediment aims also to allay any possible perception that women are tools to be used by those who can exert force or violence on them and do whatever they like to and with them. If such behaviors were not prohibited, the human community would transform into a kingdom of irrational beings, where strength establishes authority. Not providing freedom and protection to all members of the community would foster a reign of terror because, by means of threats, women (as well as any other social group lacking power) could be subjected to intolerable pressures. 126 Such conditions would destroy public morality, thereby making it difficult for people to achieve their own perfection in certain fullness of measure and with some relative ease. Although it invalidates marriage on its own force, the impediment is also a deterrent to the crime of abduction, the criminal act of infringing on someone’s liberty.

125 Bartholomew Francis L. Fair, The Impediment of Abduction: An Historical Synopsis and Commentary , Canon Law Studies 194 (Washington, D.C.: The Catholic University of America Press, 1944), 31-62; and Brundage, Law, Sex, and Christian Society , 249-50

126 CCC n. 2297.

Being consistent in her position on what makes marriage—the personal free consent of the parties—the Church established the impediment of abduction as a deterrent to marriages that negated the efficient cause of marriage. The impediment thus emphasizes that one cannot violate one right in order to have another as, in the case of abduction, the right of freedom would be violated in order to obtain the right to marry. Indeed, a well-ordered human society promotes respect and ensures justice for all its members.

e) Crime

In current Church legislation, the cases giving rise to crimen are: (a) causing the death of one’s own spouse with the intention to enter into marriage with another specific person; (b) causing the death of the spouse of the person with whom one intends to enter into marriage; and

(c) both parties cooperating physically or morally, resulting in the death of either’s spouse for the purpose of marrying each other.127

Crimen is a violation of law, an infraction of the moral order. However, when it involves the act of taking away human life, of a spouse in particular, the very embodiment of the good itself and the source of every other good are destroyed. The perpetrators of such an act attempt marriage invalidly because they employ evil means to a good end. In doing so, they debase human dignity that marriage is supposed to promote. Finally, by murdering a spouse, they help to foster a disgraceful, hostile, and immoral environment, which is unfavorable for the flourishing of marriage and family life as a leaven in society. Murder of a spouse upsets the conditions of

127 c. 1090 §1: “Qui intuitu matrimonii cum certa persona ineundi, huius coniugi vel proprio coniugi mortem intulerit, invalide hoc matrimonium attentat.” §2: “Invalide quoque matrimonium inter se attentant qui mutua opera physica vel morali mortem coniugi intulerunt.”

99 love, justice, and peace inherent in marriage—the very conditions that promote the common good.

Thus, the Church establishes the impediment to emphasize the principle that no one should receive a benefit as a direct result of his or her crime, lest crime be mistakenly perceived as good or a means to a good. Furthermore, the impediment aims to protect the lives of the spouses and the unity and indissolubility of marriage and therefore forbids any union that gravely harms the marriage bond and its dignity.

The imposition of impediments on marriage is driven by the need to promote the good of the spouses and the common good. As an important part of the common good, marriage, by definition, is open to the possibility of contributing new members to the society, in order to preserve it from becoming extinct. This creates obligations of justice in respect to society. Just as the contracting parties need the recognition and protection of their union by the society in which they live through its system of legal norms, the spouses also have some essential obligations toward each other and the society that arise from their marital union, for their good and for the good of society. Of course, as there is no right without obligations, the exercise of the ius connubii has its own corresponding obligations. Thus, in the following section, we shall examine the essential obligations that flow directly from marriage itself and therefore bind those who freely exercise the ius connubii .

100

4. The Capacity to Fulfill the Essential Obligations of Marriage

The essential obligations of marriage refer to those that flow directly from its essential properties (c. 1056), as governed by the natural law. 128 Indeed, natural law requires that the contracting parties be capable of assuming the essential obligations of marriage, lest they contract marriage invalidly. 129 This does not include accidental obligations, but rather those that are required for the common life of the spouses without which they would be unable to fulfill their conjugal life.

In this section, we shall first briefly establish the Church’s teaching on these essential obligations, as this discussion would provide the foundation for the subsequent consideration of the capacity of HIV carriers to fulfill them. The obvious source of this teaching is the Pastoral

Constitution on the Church in the Modern World, Gaudium et spes , which is also the watershed of the Church’s current law on marriage.

i) The Teaching of Gaudium et spes

The conciliar Pastoral Constitution Gaudium et spes consistently speaks of marriage as a covenant and describes it as “an intimate partnership of married life and love.” 130 Thus, marriage is understood as an intimate union of persons and actions, along with correlative obligations— primarily mutual assistance and support. True human love makes the consortium vitae coniugalis possible and, in its repeated emphasis on conjugal love, the council taught:

128 coram Serrano, May 23, 1980: RRDec 72: 366-78; and coram Faltin, October 31, 1987: RRDec 79: 606-16.

129 coram Bruno, December 18, 1987: RRDec 79: 762-73.

130 GS 48, AAS 58 (1966), 1067; Abbott, 250: “Intima communitas vitae et amoris coniugalis.”

101

This love is uniquely expressed and perfected through the marital act. The actions within marriage by which the couple are united intimately and chastely are noble and worthy ones. Expressed in a manner which is truly human, these actions signify and promote that mutual self-giving by which spouses enrich each other with a joyful and thankful will. 131

The council’s biblical image of marital self-giving depicts marital love as being fully human, personal and total. 132 The human being expresses himself or herself in it, with will and heart responsive to the beloved partner in willing self-giving. Indeed, conjugal love is regarded as pervading the entire life of the spouses; 133 it unites the spouses at the intimate core of their beings.

Marital self-giving, as selfless and total self-giving, reflects the communion of divine self-giving, as Gaudium et spes observes:

Such love, merging the human with the divine, leads the spouses to a free and mutual gift of themselves, a gift proving itself by gentle affection and by deed. Such love pervades the whole of their lives. Indeed, by its generous activity it grows better and grows greater. Therefore it far excels mere erotic inclination, which selfishly pursued, soon enough fades wretchedly away. 134

131 GS 49, AAS 58 (1966), 1070; Abbott, 253: “Haec dilectio proprio matrimonii opere singulariter exprimitur et perficitur. Actus proinde, quibus coniuges intime et caste inter se uniuntur, honesti ac digni sunt et, modo vere humano exerciti, donationem mutuam significant et fovent, qua sese invicem laeto gratoque animo locupletant.”

132 Paul VI, encyclical letter Humanae vitae , July 25, 1968, n. 9: AAS 60 (1968) 486 enumerates the characteristics of conjugal love as fully human ( plane humanus ), total ( pleno ), faithful and exclusive ( fidelis et exclusorius ), and fecund ( fecundus ).

133 Bernhard Häring, “Fostering the Nobility of Marriage and the Family,” in Commentary on the Documents of Vatican II, ed. Herbert Vorgrimler, 5 vols. (New York: The Crossroad Publishing Company, 1989) [hereafter Commentary ] 5:237

134 GS 49, AAS 58 (1966), 1070; Abbott, 253: “Hunc amorem Dominus, speciali gratiae et caritatis dono, sanare, perficere et elevare dignatus est. Talis amor, humana simul et divina consocians, coniuges ad liberum et mutuum sui ipsius donum, tenero affectu et opere probatum, conducit totamque vitam eorum pervadit; immo ipse generosa sua operositate perficitur et crescit. Longe igitur exsuperat meram eroticam inclinationem, quae, egoistice exculta, citius et misere evanescit .”

102

Reflecting on this conciliar teaching, John Paul II explained “total self-giving of persons in marriage” as follows: “As an incarnate spirit, that is a soul which expresses itself in a body, a body informed by an immortal spirit, a human being is called to love in his or her unified totality.

Love includes the human body and the body is made a sharer in spiritual love.” 135 Furthermore, the Holy Father gave an explanation, accompanied by the definition of the role of sexuality in marital love. He stated:

Consequently, sexuality, by means of which a man and a woman give themselves to one another through the acts which are proper and exclusive to spouses, is by no means something purely biological, but concerns the innermost being of the human person as such. It is realized in a truly human way only if it is an integral part of the love by which a man and a woman commit themselves totally to one another until death. The total physical self-giving would be a lie if it were not a sign and fruit of total personal self- giving, in which the whole person, including the temporal dimension, is present; if the person were to withhold something or reserve the possibility of deciding otherwise in the future, by this very fact he or she would not be giving totally. 136

Since conjugal love aims at a deep personal unity of the heart and soul of the spouses for their entire life, conjugal communion is not primarily a source of sexual pleasure that undermines the other spouse as a person. Indeed, conjugal love merges human and divine love and pervades the

135 FC 11: AAS 74 (1982), 92: “Uti spiritus incarnatus, anima nempe, quae in corpore manifestatur, et corpus immortali spiritu informatum, homo ad amandum vocatur in hac una sui summa. Corpus etiam humanum amplectitur amor redditurque id particeps spiritalis amoris.”

136 Ibid.: “Sexualitas ideo, per quam vir ac femina se dedunt vicissim actibus coniugum propriis sibi ac peculiaribus, minime quiddam est dumtaxat biologicum, sed tangit personae humanae ut talis veluti nucleum intimum. Sexualitas modo vere humano expletur tantummodo, si est pars complens amoris, quo vir et femina sese totos mutuo usque ad mortem obstringunt. Tota physica corporum donatio mendacium esset, nisi signum fructusque esset totius donationis personalis, in qua universa persona, etiam secundum temporalem rationem, praesens adest: si enim aliquid homo sibi retineret vel facultatem aliud postea statuendi, iam idcirco se non totum donaret.”

103 entire lives of the spouses. It implies noble and worthy acts of sexual union that favor mutual self-giving and enrichment in joy and thankfulness and are exercised with great reverence.

Marriage, therefore, requires not only the personal capacity of the spouses to express their will to enter into a covenant of marital total self-giving, but also their capacity to realize what is affirmed in that will. Thus, it seems that the essential object of Christian marriage entails a ius ad omnem communitatem vitae and a ius ad omne actum coniugalem .137 In a ground- breaking Rotal decision based on marriage as a divinely established institution, the Rotal

Auditor, Lucien Anné, attributed juridic significance to marriage, which Gaudium et spes described as an intima communitas vitae et amoris coniugalis . It stated that to be capable of marriage, a person must have a capacity for establishing and sustaining an at least minimally satisfactory interpersonal relationship, lest the marriage risks being declared invalid. 138 The novelty in Anné’s decision was that juridic consequences from the nature of marriage were not recognized by the jurisprudence under the 1917 CIC. Although he confirmed it in subsequent

Rotal decisions, 139 Anné was also aware of the limitations of the juridical value of the consortium vitae coniugalis , as not all its elements are essential. Aware of the difficulty in enumerating

137 Germain Lesage, “The Consortium vitae coniugalis : nature and applications,” Studia Canonica 6 (1972): 99; William H. Woestman, “Judges and the Incapacity to Assume the Essential Obligations of Marriage,” Studia Canonica 21 (1987): 321-22; and Carine Kassis, Incapacité d’assumer les obligations essentielles du mariage en cas de schizophrénie [Excerptum theseos ad Doctoratum in Iure Canonico ] (Roma: Pontificia Università Lateranense, 2010), 19-20.

138 coram Anné, February 25, 1969: RRDec 6: 174-92.

139 coram Anné, July 22, 1969: RRDec 61: 863-72; coram Anné, January 26, 1971: RRDec 63: 66-77; coram Anné, March 30, 1971: RRDec 63: 219-26; and coram Anné, October 26, 1972: RRDec 64: 628-41.

104 them, Anné refrained from doing so. Subsequent Rotal decisions also advanced steps to accept the concept that marriage as a consortium vitae coniugalis has juridical value. 140

Nonetheless, several curious questions remain: What is the nature of the consortium totius vitae et amoris ? What are the concrete elements required for a true conjugal community of life and love to exist, lest a party risks contracting an invalid marriage? Furthermore, what are those correlative obligations that flow from this community of life and love? We shall explore these concerns in the next section.

ii) The Nature of the communio totius vitae et amoris

In essence, the community of life and love implies an “interpersonal relationship” that encompasses the entire life, demands total fidelity and requires an unbreakable unity between the spouses. This interpersonal relationship implies a true and special relationship between the two persons, a true friendship based on mutual trust and self-giving. 141 It implies the deliberate directing of oneself to the person of the other and the responsibility for that person’s well- being. 142 It also implies the spiritual, the psychological, and the physical well-being of the other spouse that goes beyond the ius in corpus , i.e., the capacity to form a communio vitae .143

140 coram Fagiolo October 30, 1970: RRDec 62: 978-90; coram Serrano April 5, 1973: RRDec 65: 322-43; coram Raad April 14, 1975: RRDec 67: 238-72; coram Di Felice March 8, 1975: RRDec 67: 85-92; and coram Di Felice, January 17, 1976: RRDec 68 (unpublished). It is important to note that, in those early years, not all Roman tribunals had a unanimous acceptance of the concept of the juridical value of the consortium vitae coniugalis . See coram Pinto, November 12, 1973: RRDec 65:725-37; coram Pinto, October 28, 1976; RRDec 68: 382-92; coram Masala, March 12, 1975: RRDec 67: 128-46.; and coram Staffa, November 29, 1975, Periodica 66 (1977): 297-325.

141 Mendonça, “Consensual Incapacity for Marriage,” 515.

142 S. Th. , I aII ae q. 26, a. 4: “Amare est velle alicui bonum.”

143 Joseph N. Perry, “The Canonical Concept of Marital Consent: Roman Law Influences,” The Catholic Lawyer 25 (1980): 235; Lesage, “The Consortium Vitae Coniugalis ,” 102; and Charles Lefebvre, “La Jurisprudence rotale et

105

In attempting to detail the elements that comprise the consortium vitae coniugalis , the

Canadian canonist Germain Lesage proposed a list of fifteen specific elements to which the

marriage partner has a right. 144 According to Lesage, if one of the spouses was radically unable

to meet these requirements for establishing a community of conjugal life in a satisfactory way,

the other spouse would be deprived of an essential right to Christian marriage. The following

year, Lesage refined the aforementioned list, grouping its elements into five major categories,

each with sub-headings or examples. 145 Lesage’s proposed elements were not adopted by the

Roman Rota because it was aware that, for practical purposes, only certain serious mental

l’incapacité d’assumer les obligations conjugales,” L’Année Canonique 19 (1975): 6; coram Egan, April 22, 1982: RRDec 74: 202-15; coram Lanversin February 8, 1984: RRDec 76: 84-94; coram Stankiewicx May 22, 1986: RRDec 78 (unpublished); and coram Pompedda, January 15, 1987: RRDec 79: 10-17.

144 Lesage, “The Consortium Vitae Coniugalis ,” 103-104. The list included: 1. Oblatory love, which is not simply egoistic satisfaction, but rather provides for the welfare and happiness of the partner; 2. Respect for conjugal morality and for the partner’s conscience in sexual relations; 3. Respect for the heterosexual personality or “sensitivity” of the marriage partner; 4. Respective responsibility of both husband and wife in establishing conjugal friendship; 5. Respective responsibility of both husband and wife in providing for the material welfare of the home, thus entailing stability in work, budgetary foresight, etc.; 6. Moral and psychological responsibility in the generation of children; 7. Parental responsibility, proper to both father and mother, in the care, love and education given to children; 8. Maturity of personal conduct throughout the ordinary events of daily life; 9. Self- control, or temperance, which is necessary for any reasonable and “human” form of conduct; 10. Mastery over irrational passions, impulses or instincts that would endanger conjugal life and harmony; 11. Stability of conduct and capability of adapting to circumstances; 12. Gentleness and kindness of character and manners in mutual relationships; 13. Mutual communication or consultation on important aspects of conjugal or family life; 14. Objectivity and realism in evaluating the events and happenings that are part of conjugal or family life; and 15. Lucidity in the choice and determination of goals or means to be sought for jointly.

145 Lesage, “Évolution récente de la jurisprudence matrimoniale,” Société Canadienne de Théologie, Le Divorce (Montréal: Fides, 1973), 47-48. The five major headings of Lesage’s elements are: 1. The balance and maturity required for a genuinely human form of conduct; 2. The relationship of interpersonal and heterosexual friendship; 3. The aptitude for adequate collaboration with respect to conjugal assistance; 4. The mental equilibrium and sense of responsibility required for the material well-being of the family; and 5. The psychological capacity of each partner to see to the well-being of children, in his or her own normal way.

106 abnormalities could be judged to induce nullity due to lack of capacity to give the ius ad communitatem vitae .146

The Rotal Auditor Josephus M. Pinto described the right—or rather the right/obligation— to the communio vitae as the right to the totality of actions that, according to the diverse cultures of peoples and of different epochs, allow a spouse to demonstrate to his partner that he is considered juridically as truly his spouse ( affectio coniugalis ), as far as such required signs for conjugal communion are not morally impossible. 147 Pinto, however, did not detail these essential elements of the communio vitae. As previously noted, other Rotal decisions have not resulted in a definitive list either, but rather emphasized the need for an interpersonal relationship between the spouses as one of the essential elements that comprise the communio vitae .148 However, the right to the consortium totius vitae would certainly include the right to share married life that is free from grave psychic aberrations that would destroy all marital peace and emotional closeness. 149

The right to commonality of conjugal life does not extend merely to mere physical cohabitation, but implies something deeper that involves participation in the entire life of the other, with the goal of creating a common destiny. It thus also implies sharing matrimonial decisions because spouses have equal obligation and right ( aequuum officium et ius ) to whatever

146 David E. Fellhauer, “The Consortium omnis vitae as a Juridical Element of Marriage,” Studia Canonica 13 (1979): 130-31.

147 coram Pinto, December 18, 1979: RRDec 71: 586-601.

148 coram Pompedda, April 11, 1988: RRDec 80: 198-210; coram Bruno, March 30, 1990: RRDec 82: 252-67.

149 Fellhauer, “The Consortium omnis vitae as a Juridical Element of Marriage,” 150.

107 pertains to the partnership of conjugal life. 150 Thus, when both spouses respect the rights and obligations of each other, they fulfill “all the juridically binding obligations which pertain to conjugal life.” 151 For the aforementioned reasons, a compromised ability to relate to the other person as a spouse and to maintain the relationship as indissoluble and exclusive would constitute a grave disorder and would disrupt marital harmony. 152

Conjugal life is the most profound form of an I-Thou relationship; 153 it is the most intimate alter ego of the other in the pursuit of the ends common to each other. Thus, the right to the consortium totius vitae inevitably includes the right to engage in conjugal sexual activity that is open to procreation, which we shall take up in the next section.

iii) The Right/Obligation to Conjugal Acts Open to Procreation

The community of life and love that constitutes marriage includes the right and obligation to those conjugal acts that are by their nature directed to the generation of offspring (canon 1061

§1).154 The conjugal act unites a man and a woman in a way that they become one flesh and the nature of the act requires openness to procreation. John Paul II stated:

150 c. 1135: “Utrique coniugi aequum officium et ius est ad ea quae pertinent ad consortium vitae coniugalis.”

151 Klaus Lüdicke, “A Theory of Bonum Coniugum ,” The Jurist 69 (2009):724.

152 Augustine Mendonça, “A New Jurisprudential Aspect of Antisocial Personality Disorder in Relation to Marriage,” The Catholic Lawyer 29 (1984): 22-32, especially note 15 on page 26, which defines an antisocial personal disorder; and Id., “The Effect of Paranoid Personality Disorder in Matrimonial Consent,” Studia Canonica 18 (1984): 254-89.

153 Dietrich von Hildebrand, Marriage: The Mystery of Faithful Love (New Hampshire: Sophia Institute Press, 1991), 9.

154 c. 1061 §1: “Matrimonium inter baptizatos validum dicitur . . . ratum et consummatum, si coniuges inter se humano modo posuerunt coniugalem actum per se aptum ad prolis generationem, ad quem natura sua ordinatur matrimonium, et quo coniuges fiunt una caro.”

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In its most profound reality, love is essentially a gift; and conjugal love, while leading the spouses to the reciprocal “knowledge” which makes them “one flesh,” does not end with the couple, because it makes them capable of the greatest possible gift, the gift by which they become cooperators with God for giving life to a new human person. Thus the couple, while giving themselves to one another, give not just themselves but also the reality of children, who are a living reflection of their love, a permanent sign of conjugal unity and a living and inseparable synthesis of their being a father and a mother. 155

In conjugal love, the spouses give to each other the right over the other’s procreativity. They pledge to share with each other their God-given life-oriented power exclusively for the good of each other. 156 The spouses, therefore, have the right/duty to the conjugal acts that flow from the nature of marriage. However, if at least one partner is affected by one of the following mental afflictions, these would render them incapable to fulfill the essential obligations of marriage, and can render a marriage invalid: (1) satyriasis in males and nymphomania in females, because of which the afflicted is, after marriage, even for a time, incapable of fidelity to his or her partner, 157 and (2) sexual dysfunctions or aberrations due to which the afflicted is, once marital union has been formed, irremediably incapable of the marriage act. 158

155 FC 14: AAS 74 (1982), 96: “In intima veritate sua est amor essentialiter donum, neque coniugalis amor, dum maritos adducit in ‘cognitionem’, quae facit ut sint ‘in carnem unam’, expletur omnino intra ipsum par coniugum, cum eos idoneos reddat maximae, quae fieri potest, donationi, qua Dei fiunt cooperatores in tradendo vitae dono novo alicui homini. Ita profecto coniuges, inter se dediti, ultra se donant filium ipsum, sui viventem amoris imaginem, perpetuum unitatis coniugalis signum necnon comprehensionem vivam et indissolubilem sui status, ex quo sunt pater et mater.”

156 Cormac Burke, “The Essential Obligations of Matrimony,” Studia Canonica 26 (1992): 383.

157 coram Lefebvre, January 18, 1969: RRDec 61: 47-54.

158 Edward M. Egan, “The Nullity of Marriage for Reasons of Incapacity to Fulfill the Essential Obligations of Marriage,” Emphemerides iuris canonici 40 (1984): 29. An example is antecedent and perpetual impotence whether absolute or relative.

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The mutual giving and accepting of the man and of the woman in their respective masculinity or femininity comprises the mutual giving and accepting of their potential fatherhood and motherhood. This further entails the right/duty not to do anything that can impede the procreation of children ( ius/debitum non faciendi aliquid contra prolem ), including sterilization, contraception and abortion. 159 Consequently, the spouses have the right/duty to accept children lovingly and to cooperate with each other in educating them, as we shall see in the next section.

iv) The Obligation to Assist Each Other in the Educatio Prolis

In marriage, the spouses promise to each other that they will honor, foster and promote the good of marriage, including the procreation and education of children that may result from their union. Such a promise implies openness to creating and raising children. Children are the supreme gift of marriage and contribute substantially to the welfare of their parents. Thus, parents are called to regard as their proper mission the task of transmitting human life and educating those to whom it has been bestowed. Parents should realize that they are cooperators with the love of God the Creator, and are, so to speak, the interpreters of that love. 160

Spouses have the duty to receive offspring into the conjugal community with love and accept their right and duty to educate them to be good citizens of Church and society. Pius XI stated:

159 Pedro-Juan Viladrich, “Matrimonial Consent,” in Exegetical Commentary , 3/2: 1356; and Juan Fornés, “The Effects of Marriage,” Ibid., 1528.

160 GS 50, AAS 58 (1966), 1071; Abbott, 254.

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[T]here can be no doubt that, by natural and divine law, the right and duty of educating offspring belong primarily to those who, having begun the work of nature by begetting children, are absolutely forbidden to leave unfinished the work they have begun and so expose it to inevitable ruin. 161

Nearly thirty-one years later, John XXIII spoke of the right and duty of parents to educate their children toward a sense of responsibility in public life. He stated:

It is of the utmost importance that parents exercise their right and obligation towards the younger generation by securing for their children a sound cultural and religious formation. They must also educate them to a deep sense of responsibility in life, especially in such matters as concern the formation of a family and the education of children. They must instill in them an unshakeable confidence in divine Providence, and a determination to accept the inescapable sacrifices and hardships involved in so noble and important a task as the co-operation with God in the transmitting of human life and the bringing up of children. 162

The views of the conciliar declaration Gravissimum educationis regarding the right/duty of parents to educate their children are summarized below:

Since parents have conferred life on their children, they have a most solemn obligation to educate their offspring. Hence, parents must be acknowledged as the first and foremost educators of their children. Their role as educators is so decisive that scarcely anything can compensate for their failure in it. For it devolves on

161 CCo 16: AAS 22 (1930), 545: “Compertum autem est, natura Deoque iubentibus, hoc educandae prolis ius est officium illorum in primis esse, qui opus naturae generando coeperunt, inchoatumque, imperfectum relinquentes, certae ruinae exponere omnino vetantur.”

162 MM 195: AAS 53 (1961), 447-48: “His de causis permagni interest, ut nova suboles, praeter quam quod disciplina humanitatis religionisque diligentius erudiatur – quod quidem ius officiumque est parentum – tum etiam in quibuslibet suae vitae factis se officiorum suorum maxime consciam praestet; atque propterea in familia quoque sibi condenda, et in liberis procreandis educandisque. Quibus liberis non solum stabilis fiducia inicienda est in Dei Providentia, verum etiam animus firmissimus paratissimusque ad labores et incommoda perferenda, quae nemini devitare licet, qui dignum et grave illud susceperit munus, suam nempe sociandi cum Deo operam, cum in vita tradenda tum in prole educanda.”

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parents to create a family atmosphere so animated with love and reverence for God and others that a well-rounded personal and social development will be fostered among the children. Hence, the family is the first school of those social virtues which every society needs. 163

Parents are therefore expected to give integral formation to their children, which would prepare

them for their eternal destiny, while promoting the common good of society. This obligation is

asserted in canon 795 which states:

Education must pay regard to the formation of the whole person, so that all may attain their eternal destiny and at the same time promote the common good of society. Children and young persons are therefore to be cared for in such a way that their physical, moral and intellectual talents may develop in a harmonious manner, so that they may attain a greater sense of responsibility and a right use of freedom, and be formed to take an active part in social life. 164

163 Vatican II, declaration Gravissimum educationis 3, October 28, 1965 in AAS 58 (1966) 731; English translation in Documents of Vatican II , ed. Walter M. Abbott (London: Geoffrey Chapman Publishers, 1972) [hereafter Abbott] 641: “Parentes, cum vitam filiis contulerint, prolem educandi gravissima obligatione tenentur et ideo primi et praecipui eorum educatores agnoscendi sunt. Quod munus educationis tanti ponderis est ut, ubi desit, aegere suppleri possit. Parentum enim est talem familiae ambitum amore, pietate erga Deum et homines animatum creare qui integrae filiorum educationi personali et sociali faveat. Familia proinde est prima schola virtutum socialium quibus indigent omnes societates.” See also DIM 6: AAS 22 (1930), 50-51; Pius XI, encyclical letter Mit brennender sorge , March 14, 1937, para. 46-53: AAS 29 (1937) 164-67; Pius XII, Allocution to Italian Catholic Teachers, September 8, 1946, Discorsi e Radiomessagi , vol. 8, p. 218; GS 61, AAS 58 (1966), 1081-82; Abbott, 267- 68; Holy See, Charter of Rights of the Family , a. 5 (Vatican City: Polyglot Press, 1983), 10-11; cc 226 §2; 774 §2; 793; 797; and 798; and CCC n. 2223.

164 c. 795: “Cum vera educatio integram persequi debeat personae humanae formationem, spectantem ad finem eius ultimum et simul ad bonum commune societatum, pueri et iuvenes ita excolantur ut suas dotes physicas, morales et intellectuales harmonice evolvere valeant, perfectiorem responsabiltatis sensum libertatatisque rectum usum acquirant et ad vitam socialem active participandam conformentur.” Canon 1136 echoes the same teaching in even stronger language, stating: “Parentes officium gravissimum et ius primarium habeant prolis educationem tum physicum, socialem et culturalem, tum moralem et religiosam pro viribus curandi.”See also Francis G. Morrisey, “The Rights of Parents in the Education of their Children (Canons 796-806),” Studia Canonica 23 (1989): 436 and 437; and United Nations, Universal Declaration of Human Rights, December 1948 (New York: United Nations, 1948). Article 26 (2) states: “Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations maintenance of peace.”

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Indeed, the generation of human beings would be irresponsible if it was not followed by the necessary nurturing, because the offspring would not survive if denied sustenance. 165 The parents must commit to nurturing their offspring for a long time, thus ensuring that they achieve prudence. Only through such consistent and devoted nurturing, are the good of Church and society assured. As persons, children have rights that must be respected by other rights- holders. 166 Thus, they have a right to education 167 that requires the common deliberation and effort of both parents, which arises from the equality of their rights and duties. 168 The parental responsibilities of each spouse contain an essential educational dimension that requires participation in the balanced education of the children within the conjugal community. The procreation and education of children are inseparably linked as one continuous process because the raising of children is the natural fulfillment of procreation. 169

This brings us to the core question: Does the failure or incapacity to educate offspring render marriage invalid? This issue remains very controversial among authors and canonists.

While many authors agree that the exclusion of educatio prolis invalidates marriage, 170 others

165 Saint Thomas, Summa Contra Gentile s, Book 3, Ch. 122. In Book 4, Ch. 58, Saint Thomas states that, although marriage demands that parents must care first for the physical needs of their children, they must also care for their spiritual life.

166 United Nations, Declaration of the Rights of the Child , November 20, 1959 (New York: United Nations, 1959); and Holy See, Charter of the Rights of the Family , October 22, 1983 (Vatican City: Libreria Editrice Vaticana, 1983).

167 United Nations, Universal Declaration of Human Rights, Article 26: (1) Everyone has a right to education…; and (3) Parents have a prior right to choose the kind of education that shall be given to their children.

168 GS 50 and 52, AAS 58 (1966), 1071 and 1073; Abbott, 254 and 257; and CCC n. 2206.

169 Kenneth W. Schmidt, “ Educatio Prolis and the Validity of Marriage,” The Jurist 55 (1995): 249.

170 Ibid., 253, especially his note 33, in which he lists many authors who hold this position.

113 take a different view. 171 Rotal jurisprudence establishes that educatio prolis belongs to the essence of the bonum prolis and recognizes that the education of children constitutes an essential object of marital consent. Still, jurists have yet to reach consensus on what constitutes educatio prolis and whether educatio prolis—or certain aspects of it—has any relationship to the validity of marital consent. 172

In 1941, the Rotal Auditor Canestri suggested that educatio prolis has a physical aspect, which starts at conception, and a moral one, which coincides with the origin of intellectual life.

This implies that the procreation and education of offspring are of equal importance, in that educatio prolis is a constitutive element of marriage itself and has a relationship with the validity of marriage. 173 However, some Rotal judges challenge this view, positing that educatio prolis does not actually affect the validity of marriage. In distinguishing between the rights and duties of marriage that are essential and those necessary for the integrity of marriage, Pinto claims that educatio prolis pertains solely to the integrity of the marital contract, and only the provision for the physical bonum prolis is essential to marriage. 174 Pinto, however, does not elucidate the content of the physical bonum prolis . In drawing a distinction between procreation and educatio prolis , another Rotal Auditor, De Jorio, maintains that educatio prolis has no juridic relationship with the validity of marital consent. He also explains that suitable education can be provided by

171 Schmidt, “ Educatio Prolis and the Validity of Marriage,” 254, especially his note 35, in which he cites some authors who are of this position.

172 Ibid., 259.

173 coram Canestri, July 8, 1941: RRDec 33: 603; coram Canestri, November 13, 1943: RRDec 35: 818; and coram Canestri, January 26, 1950: RRDec 42:46. See also coram Wynen, November 9, 1944: RRDec 36: 663; coram Mattioli, May 22, 1958: RRDec 50: 347; coram Bejan, October 29, 1966: RRDec 58:771-72; coram Stankiewicz, May 13, 1978: RRDec 70: 300; and coram Stankiewicz, July 23, 1981: RRDec 73: 384

174 coram Pinto, November 12, 1973: RRDec 65: 727.

114 persons other than the parents, which does not imply an exclusion of parental responsibility, but rather a desire to provide better education for offspring. 175

The conciliar document Gaudium et spes states precisely that the institution of matrimony and conjugal love are ordained for the procreation and education of children. 176 The Code of

Canon Law (c. 1055 §1) reiterates the teaching that marriage, by its nature, is ordered to the well-being of the spouses and to the procreation and upbringing of children. Even ancient teachings demonstrate that procreation and education of children are closely linked and must arise from the institution of marriage. 177 Jurisprudence, however, has difficulty in delineating the essential juridic components of the bonum prolis because the content of expressions as physical bonum prolis , spiritual bonum prolis and educatio prolis may overlap. 178 Indeed, the use of equivocal language here poses difficulties to Rotal judges with regard to what are the precise components of educatio prolis, absence or inadequacy of which can render marital consent invalid. Actually, apart from two judgments passed by the Rota concerning educatio prolis and the validity of marriage, 179 other jurisprudence of the Rota only considers educatio prolis within

175 coram De Jorio, June 23, 1971: RRDec 63: 515-16.

176 GS 48 and 50, AAS 58 (1966), 1068 and 1070; Abbott, 250 and 253.

177 D. 1, 1, 1, 3: “descendit maris atque feminae coniunctio quam nos matrimonium appellamus, hinc liberorum procreatio , hinc educatio .”

178 Schmidt, “ Educatio Prolis and the Validity of Marriage,” 269.

179 coram Raad, March 20, 1980, Monitor Ecclesiasticus 105 (1980): 183 upheld the validity of the marriage because the facts did not establish the existence of the cause of incapacity to assume the obligation of educatio prolis. The second case, coram Stankiewicz, July 23, 1981, RRDec 73: 383-91, declared the marriage invalid because the respondent was unable to assume and fulfill the obligations of marriage, including the educatio prolis. See also coram Stankiewicz, April 20, 1989 (unpublished), 3-13. In this case, Stankiewicz argues that educatio prolis is a constitutive element of the bonum prolis .

115 the law section of its decisions. 180 Thus, it seems that the ability or inability of spouses to assume and fulfill the obligations of the educatio prolis remains an ongoing study to delineate its contents concerning the validity or invalidity of marital consent.

The education of offspring is undeniably an essential element of marriage. Nonetheless, the right and obligation of the spouses to do everything in their power to educate offspring must be interpreted within the reasonable means and capabilities of each couple, for no one is obliged to do what is impossible. Thus far, canonical tradition affirms that valid matrimonial consent must include consent to protection of the life, health, and safety of children, both during the period of gestation and after birth. 181 Thus, the right and duty of parents to educate their children cannot be compromised because “the family is in the privileged place of birth and human and religious growth, the natural school where community is first experienced, the social virtues, the sense of God and love of neighbor, are learned.” 182 The education of offspring is one of the natural requirements of marriage that enriches the family and contributes to the promotion of the common good.

180 Schmidt, “ Educatio Prolis and the Validity of Marriage,” 267.

181 Ibid., 272.

182 John Paul II, “Allocution to parents, teachers and students of Catholic schools in Latium and representatives of parents’ and teachers organization,” The Pope Teaches 30 (1985): 358. See also John Paul II, “Address to participants in a juridical meeting organized by the Pontifical Institute Utriusque Iuris of the Lateran University,” The Pope Teaches 31 (1986): 266, where the Pope underlines the right/duty of parents to educate their children because the education of children forms in them a mature personality.

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5. Conclusion

Each human being has the natural inclination to conjugal union between a man and a woman, the goal of which is to procreate and form a family. Because he is created in the image and likeness of God, every human being has dignity and the right to marry, which flows from the dignity of the human person. The nature of the ius connubii demands that its exercise comes about through the free will of the contracting parties. Owing to the social nature of the ius connubii , human legislation can legitimately interfere with its exercise. However, any regulation of this act must be in accordance with the laws that arise from marriage itself.

In her encounter with the marriage customs of various cultures and in different epochs, the Church acknowledged those aspects that showed respect for the dignity of the human person and purified those that were at variance with the Good News. Yet, throughout history, the

Church has re-affirmed the ius connubii as a fundamental right of every person and defended its exercise from external coercion and restriction. Even in circumstances that objectively seemed to warrant the restriction of the exercise of the ius connubii , such as cases where one or both parties were lepers or insane, the Church has upheld the natural right of these individuals to choose a partner freely.

However, the right to marry also entails the capability to follow the Church’s understanding of, and teachings pertaining to, marriage. Thus, in fulfilling her mission, the

Church has ensured that those who embrace the vocation to marriage are capable of carrying out the responsibilities that flow from it. Whenever she has seen that a marriage would threaten the common good, she has restricted the right of certain individuals to marry in certain circumstances by establishing impediments. Since marriage is an inextricable part of society, contributing to its proper functioning and to achieving the common good, the Church intervenes

117 in the exercise of the ius connubii, with the aim not of limiting it, but rather promoting its better fulfillment.

Because every right has corresponding obligations, the ius connubii has essential obligations that flow directly from unity and indissolubility as its essential properties. This does not pertain to accidental obligations, but rather essential ones—those that the parties must existentially fulfill for their well-being and for the good of the community. Thus, as the custodian of marriage, the Church can impose restrictions on the exercise of the ius connubii for the common good, because the right to marry is not absolute.

Today, a new threat faces the institution of marriage and humanity as a whole—the

HIV/AIDS pandemic, which continues to claim millions of lives, as it cannot be presently cured.

Because heterosexual intercourse is one of its transmission modes, HIV poses a particular threat to the institution of marriage. In Chapter Three, we shall discuss the pandemic and its impact on marriage and on the wider community.

CHAPTER THREE

HIV/AIDS AND ITS IMPACT ON CAMEROON

1. Introduction

In the 1981 Morbidity and Mortality Weekly Report (MMWR), 1 the United States Centers for Disease Control in Atlanta alerted the public to the existence of AIDS for the first time. In

1983, HIV-12 was determined as the causative agent of AIDS. Despite three decades of painstaking work on the development of a vaccine for AIDS, the results have been disappointing and there is little realistic prospect of an effective prevention or cure in the near future. 3 AIDS- related diseases continue to claim lives on a daily basis, though in varying degrees, in various countries, leaving no part of the world immune to its threat. Since its detection, an estimated 65 million people worldwide have been infected with the virus, and out of this number, an estimated

40 million individuals have died. As new infections and deaths occur daily, approximately 16 million AIDS orphans live in the world today. In a way, AIDS “has heightened our awareness of

1 Centers for Disease Control (CDC), “Pneumocystis Pneumonia,” Mortality Weekly Report, Los Angeles 30 (1981): 250-52.

2 A second Human Immunodeficiency Virus, HIV-2 was identified in 1985. It was initially found in West Africa, with the greatest number of infections outside this area detected in Angola, Mozambique, France and Portugal. HIV-2 is more difficult to transmit and is slower acting and less virulent than HIV-1. See Tony Barnett and Alan Whiteside, AIDS in the Twenty-First Century: Disease and Globalization (New York: Palgrave Macmillan, 2003), 29.

3 Craig Timberg and Daniel Halperin, Tinderbox: How the West Sparked The AIDS Epidemic And How The World Can Finally Overcome It (New York: The Penguin Press, 2012), 317. See also Barnett and Whiteside, AIDS in the Twenty- First Century , 45, who state that intense research is being carried out to develop a vaccine for AIDS. However, as the success has been limited, a vaccine remains elusive.

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119 the connections between individuals, nations, regions, and continents.” 4 AIDS-related diseases have laid bare the truth that there is a certain unity in the human race. Indeed, HIV/AIDS is the tragedy of our time and its consequences will be felt for decades to come.

HIV is found in the blood stream, semen or vaginal fluid of an infected person; it is transmissible through heterosexual and homosexual intercourse, transfusion of infected blood, and injection with contaminated needles. It can also be transmitted from infected mother to child during pregnancy, delivery, or nursing. Because heterosexual intercourse is one of the modes of transmission of the virus, a legitimate concern arises with regard to HIV/AIDS carriers who insist on the exercise of their natural right to marry, for all can marry who are not prohibited by law. Such a concern arises because a carrier of the virus can infect the other spouse through sexual intercourse. Another concern is the possibility of children becoming infected by the mother without medical intervention. Children who are infected with the virus die after a few months or years. The deaths of children challenge the common good of the family, of the Church and of the society. As medical science has failed to provide a solution thus far, HIV/AIDS continues to have social and economic consequences that strain marriages and adversely affect the wider society.

In this chapter, I shall begin with a definition of HIV/AIDS, according to the latest literature on the disease and its etiology. Next, I shall discuss the magnitude of its impact on sub-

Saharan Africa, the current epicenter of the HIV/AIDS pandemic 5 globally. Focusing on the

4 Richard G. Marlink and Alison G. Kotin, Global AIDS Crisis: A Reference Handbook (California: ABC-CLIO, Inc., 2004), xi.

5 There are varying opinions on whether HIV/AIDS is a pandemic or an epidemic. According to Thomas Barfield, ed., The Dictionary of Anthropology (Massachusetts: Blackwell Publishers Inc., 2001), 150, “ epidemic is a rate of disease that reaches unexpectedly high levels, affecting a large number of people in a relatively short time. Epidemic is a relative concept: a small absolute number of cases of a disease is considered an epidemic if the disease incidence

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HIV/AIDS situation in Cameroon, West Africa, I shall identify the causes responsible for the current situation of the pandemic and review the socio-economic threat that HIV/AIDS poses. As

I shall show, marriage has been greatly impacted by the pandemic. Finally, I shall identify some questions HIV/AIDS poses concerning the exercise of the conjugal right in marriage, in order to illustrate the rationale of the debate over HIV/AIDS carriers and the exercise of their natural right to marry.

2. What is HIV/AIDS?

The acronym “HIV/AIDS” stands for Human Immunodeficiency Virus/Acquired

Immune Deficiency Syndrome. As the Human Immunodeficiency Virus leads to AIDS, the latter is not an illness but the final severe clinical manifestation of HIV infection, which leaves the human system susceptible to any infection. As the name Human Immunodeficiency Virus suggests, only human beings can contract and spread the virus. Nonhuman species can have similar versions of the virus, like feline immunodeficiency virus (FIV) in cats and simian immunodeficiency virus (SIV) in monkeys and other primates. 6 However, it seems unlikely that they can transmit this virus to human beings. Some studies do seem to suggest that HIV must have infected human beings through some contact with the blood of monkeys or chimpanzees. 7

is usually very low. In contrast, a disease (such as malaria) is considered endemic if it is continuously present in a population but at low or moderate levels, while pandemic refers to epidemics of worldwide proportions such as influenza in 1918 or AIDS today.” (emphasis in the original) It seems that magisterial texts have this same meaning in mind when they refer to HIV/AIDS as a “pandemic.” See also Benedict XVI, post-synodal apostolic exhortation Africae munus , November 19, 2011, nn 73 and 139: AAS 104(2012) 272 and 299-300; and Pontifical Council for the Family, Family Values Versus Safe Sex (Rome: Vatican City, 2003), nn 1, 18, 20 and 24.

6 National Institute of Allergy and Infectious Diseases, under “Niaid,” http://www3.niaid.nih.gov/topics/HIVAIDS/Understanding/Biology (accessed October 12, 2009).

7 Timberg and Halperin, Tinderbox , 30-41; and Marlink and Kotin, Global AIDS Crisis , 22-25.

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However, this hypothesis is not shared by all researchers in the field, 8 as the virus cannot be

spread through saliva, man-made substances, or insect or mosquito bites. 9 In sum, HIV is a

human virus and only human beings can infect other human beings with it directly.

HIV belongs to the group of viruses known as retroviruses ( retroviridae ), whose genetic

material is encoded in the form of RNA (ribonucleic acid) rather than DNA (deoxyribonucleic

acid). 10 Once it enters the human body, the virus is aggressive and destructive. At the initial

stage, it infects a large number of CD4+T cells that organize the body’s overall immune response

to parasites and infection. This enables it to replicate rapidly, producing a high number of HIV

copies (viral load) in the blood, which is spread throughout the body, targeting particularly the

lymphoid organs, such as the thymus, spleen, and lymph nodes. 11 The virus attacks and kills the cells of these organs by using the genetic material they contain to replicate and shield itself from the body’s immune response to parasites. As the duration of infection increases, the number of

CD4+T cells decreases, thus creating qualitative defects in the CD4+T cells’ responsiveness to infection. This enables the virus to attack the B lymphocyte and macrophage cells, which engulf

8 Rosalind J. Harrison-Chirimuuta and Richard C. Chirimuuta, “AIDS from Africa: A Case of Racism Vs. Science?” in AIDS in Africa and the Caribbean, ed. George C. Bond, John Kreniske, Ida Susser, and Joan Vincent (Colorado: Westview Press, A Division of Harper Collins Publishers, Inc., 1997), 165-79.

9 Everett Koop (Surgeon General), Understanding AIDS , HHS Publication No. (CDC) HHS-88-8404, 3; and Mitchell H. Katz and Andrew R. Zolopa, “HIV Infection & AIDS,” in Current Medical Diagnosis & Treatment 2011 , 50 th ed., ed. Stephen J. McPhee and Maxine A. Papadakis (New York: The McGraw Hill Companies Inc., 2011), 1268.

10 When HIV infects a cell, it uses a viral enzyme called reverse transcriptase to convert its RNA (the virus’s genetic template) to DNA (the host organism’s genetic information) and then proceeds to replicate rapidly using the cell’s energy and chemical resources. Such a conversion process renders the infected cell invisible to the immune system of the body, since the virus is integrated in its genetic information (DNA). Consequently, such a cell looks like other normal bodily cells, even though it hosts the viral DNA. Once a cell is infected, it is infected for life.

11 HIV is also known to attack the brain causing dementia; however, the body’s immune system is unable to detect a virus present in the brain. See Robert C. Gallo, “On the Nature of the AIDS Virus,” Dolentium Hominum 13 (1990): 48.

122 parasites and ensure that the body’s immune system will recognize them in the future. This process disables the entire immune system and leaves the body defenseless before infections a healthy human immune system would usually attack and eliminate from the body. As the entire body’s immune system is gradually paralyzed, the virus can penetrate all bodily liquids containing white blood corpuscles—blood, semen, vaginal fluid, and breast milk. It is at this stage, owing to the very low CD4+T cell count (less than 200 CD4+T cells per cubic millimeter

{mm 3} of blood, or less than 14%), 12 that the body becomes vulnerable to “opportunistic” infections. Infections usually begin with fevers, diarrhea, and skin rashes, followed by pneumonia, tuberculosis, candidiasis, and salmonellosis. Eventually, the victim is described as suffering from AIDS, which gradually and painfully leads to death.

Because HIV belongs to the subgroup of lentiviruses (“slow-acting” viruses) in the retrovirus family, it can lie latent in the body for three to five years, sometimes even ten, before it develops into full-blown AIDS. During this phase, the person may remain free of HIV-related symptoms whilst the virus continues to replicate in the lymphoid organs where it initially seeded.

This latent period explains why many virus carriers, unaware of their status, can pass it to sexual partners, to people with whom they share needles, and to children before and during birth.

Without treatment, death typically occurs approximately two years from the onset of AIDS.

However, with the development of highly active antiretroviral therapy (HAART), a potent combination of three or more antiretroviral drugs belonging to at least two different antiretroviral classes, AIDS patients can live a reasonable life for a longer time. It is important to note that, for

12 In a healthy body, the CD4+ cell count is usually between 950-1.700 cells per µL. See S. Kartikeyan, R. N. Bharmal, R. P. Tiwari and P. S. Bisen, eds., HIV and AIDS: Basic Elements and Priorities (The Netherlands: Springer, 2007), 80; and Katz and Zolopa, “HIV Infection & AIDS,” 1266. Some publications put the CD4+ cell count of a healthy person at 800 or more cells per cubic millimeter of blood, suggesting that its decline below 250 is a signal that there is something wrong. See Timberg and Halperin, Tinderbox , 275.

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the treatment to be effective, it must be combined with a healthy life style, which implies healthy

diet, regular exercise, access to other types of medical care, and psychological support. 13

However, studies show that up to 50 percent of patients do not adequately respond to the therapy because of, among other factors, the development of drug-resistant strains of the virus, long-term toxicities resulting in metabolic complications, and inadequate compliance to drug regime, resulting in a fresh viral break-through. 14

A disquieting feature of the pandemic is maternal-fetal transmission of the virus, which occurs in 10 to 39 percent of children born to infected mothers. The antiretroviral drug zidovudine (AZT) and nevirapine monotherapy have been documented to decrease transmission rates. 15 In 2009, an estimated 370,000 children worldwide contracted HIV during the perinatal and breastfeeding period, compared to 5,000 children who contracted the virus in 2001. 16

Although significant progress is being made in controlling mother-to-child transmission (MTCT) of the virus, many infected mothers and other AIDS patients today—indeed, the majority—are

13 Marlink and Kotin, Global AIDS Crisis , 68.

14 Mary Anne Koda-Kimble and Lloyd Yee Young, eds., Applied Therapeutics: The Clinical Use of Drugs , 7 th ed. (Baltimore: Lippincott Williams & Wilkins, 2001), 67-71; 20-21 and 27-28; Cynthia Cannon Poindexter, ed., Handbook of HIV and Social Work: Principles, Practice, and Populations (New Jersey: John Wiley & Sons, Inc., 2010), 19-20; Baruc S. Blumberg, “The Importance of Basic Science for the AIDS Epidemic, HIV, and Hepatitis B Virus,” Dolentium Hominum 13 (1990): 40; British HIV Association, “Liver-related deaths in HIV-infected patients between 1995 and 2005 in the French GERMIVIC Joint Study Group Network (Mortavic 2005 Study in collaboration with Mortalité 2005 survey, ANRS EN19),” HIV Medicine 10 (May 1, 2009): 282-89; Id., “Spectrum of chronic kidney disease in HIV-infected patients,” HIV Medicine 10 (July 1, 2009): 329-36; and Id., “Trends in mortality an antibiotic resistance among HIV-infected patients with invasive pneumococcal disease,” HIV Medicine 10 (September 1, 2009): 488-95. It is important to note that AZT was one of the first antiretroviral drugs to be developed and it was more toxic than the newer ones. However, like all medications, all antiretroviral drugs are toxic to varying degrees.

15 Koda-Kimble and Yee Young, Applied Therapeutics , 67-68.

16 UNAIDS Report on the Global AIDS Epidemic/2010 under “UNAIDS Epidemiology,” http://www.unaids.org/globalreport/Global_report.htlm (accessed April 02, 2012).

124 still not receiving the treatment because of poor access to, or inadequate quality of, health care. 17

By the end of 2010, an estimated 7.4 million people worldwide were accessing antiretroviral therapy, which is equivalent to about 35 percent of the global patient population. 18 Consequently, nearly two thirds of AIDS patients globally are still without any or receive insufficient medical assistance.

Although the administration of AZT and nevirapine monotherapy has been highly effective in preventing the transmission of HIV to babies, MTCT is most effectively combated by preventing HIV infection in women. Historically, viral diseases have been eliminated or controlled with vaccines, rather than drugs. 19 On the other hand, in the development of a vaccine for HIV, the researchers continue to face multiple scientific and medical challenges, such as the inability to identify the “correlates of immunity,” that is, the immune system’s responses necessary to confer protective immunity against HIV; the inability of the immune system of HIV carriers to completely eliminate the virus from the body as with other viral infections; the diversity of the virus and its ability to mutate at rapid rates, thus easily evading the immune system by altering those portions of its structure that are recognized by “memory cells”; the predominance of different subtypes of HIV in different regions of the world, which also call for different vaccines to combat them; and, finally, the different routes through which the virus

17 Katz and Zolopa, “HIV Infection & AIDS,” 1294-95.

18 UNAIDS Data Tables/2010, under “Unaids Corporate Publication,” http://www.unaids.org/en/media/unaids/contentassets/documents/unaidspublication/2012/JC2286_Sourcing- African-Solutions_en.pdf (accessed March 19, 2012).

19 Michelle Galloway, “Vaccine Initiative on Track as First Funding Allocations are Made: Four Projects to Receive Funding,” AIDS Bulletin 8, no. 4 (1999): 10 as cited by Godfrey B. Tangwa, “The HIV/AIDS pandemic, African traditional values and the search for a vaccine in Africa,” in Ethics & AIDS in Africa, ed. Anton A. van Niekerk and Loretta M. Kopelman (California: Left Coast Press Inc., 2005), 187.

125 enters the body and the need of different immune responses to protect the body from infection depending on which “path” the virus takes. 20 Consequently, scientists and epidemiologists agree that even the most effective vaccine for the pandemic must be a part of a combination of medical and behavioral HIV prevention tools, such as vaginal and rectal microbicides, pre-exposure prophylaxis (PrEP), and expanded HIV testing with linkage to care. 21 For now, this seems to be the way forward to combat the pandemic and to rescue the human race from its most devastating effects, especially in regions, such as sub-Saharan Africa, where the patient numbers are the highest and access to care inadequate. We shall see this in the next section.

3. The Presence of HIV/AIDS in Sub-Saharan Africa

Although different regions of Africa are afflicted by the pandemic in varying degrees, the most severely affected part of the continent is sub-Saharan Africa, the current epicenter of the

HIV/AIDS crisis. Indeed, some researchers refer to this section of Africa as the AIDS Belt. 22

Sub-Saharan Africa has both the highest global percentage of AIDS-related deaths and AIDS orphans. 23

The magnitude of the pandemic in sub-Saharan Africa is easily comprehended by examining the available data, which I shall present for the most recent decade, some 20 years since the detection of the pandemic. By the end of 2002, the global number of adults and

20 Alexander Irwin, Joyce Millen, and Dorothy Fallows, Global AIDS: Myths and Facts: Tools for Fighting the AIDS Pandemic (Cambridge, MA: South End Press, 2003), 100-103.

21 HIV/AIDS Vaccines [National Institutes of Health (NIH)], under “Statement: HIV Awareness Day,” http://www.niaid.nih.gov/news/newsreleases/2012/Pages/HIVAD2012.aspx (accessed June 24, 2012 ); and Irwin, Millen, and Fallows, Global AIDS: Myths and Facts , 112.

22 Timberg and Halperin, Tinderbox , 92, 142, 147-48, 170, 247, and 259.

23 Kartikeyan, Bharmal, Tiwari, and Bisen, HIV and AIDS: Basic Elements and Priorities, 5.

126 children living with HIV was estimated at 42 million, of whom 29.4 million resided in sub-

Saharan Africa. 24 By the end of 2010, the global estimate was 34 million, with 22.9 million of this number (68 percent) from sub-Saharan Africa. 25

With respect to newly infected cases, in 2009, 2.6 million were registered globally, of which 1.8 million were in sub-Saharan Africa, accounting for more than 50 percent. 26 In 2010, the estimated global number of newly infected cases increased to 2.7 million, 1.9 million of which (70.0 percent) was from sub-Saharan Africa, although this region accounts for only 12 percent of the world’s population. 27 In 2010, it was estimated that 50 percent of the global adult population (15 years of age and older) living with HIV were women, of whom 59 percent resided in sub-Saharan Africa. 28 As these statistics show, sub-Saharan Africa remains the part of the world hardest-hit by the pandemic. This is true for both the number of women, men and children living with the disease, as well as the number of AIDS-related deaths.

Regional variations regarding the incidence and prevalence of the pandemic exist, with the Southern African region (Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia, South

24 WHO, UNAIDS and UNICEF Global Report 2002, Geneva, under “Unaids,” http://www.unaids.org/en/media/unaids/contentassets/dataimport/publications/irc- pub03/epiupdate2002_en.pdf (accessed May 12, 2011).

25 WHO, UNAIDS and UNICEF Progress Report 2011, Geneva, under “Unaids,” http://www.unaids.org/en/media/unaids/contentassets/documents/unaidspublication/2011/20111130_UA_Repo rt_en.pdf (accessed March 9, 2012).

26 WHO, UNAIDS and UNICEF Annual Report 2009, Geneva, under “Unaids,” http://unaids.org/en/media/unaids/contentassets/documents/unaidspublication/2010/20101123_globalreport_e n.pdf (accessed May 16, 2011).

27 WHO, UNAIDS and UNICEF Progress Report 2011, Geneva, under “Unaids,” http://www.unaids.org/en/media/unaids/contentassets/documents/unaidspublication/2011/20111130_UA_Repo rt_en.pdf (accessed March 9, 2012).

28 The high progress of the pandemic among women poses a serious threat to the social and economic stability of the sub-continent where women are the pillars of the family and the society.

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Africa, Swaziland, Zambia and Zimbabwe) at the fore-front of the pandemic globally. In 2009, it was estimated that one-third (34 percent) of the global carriers of the virus resided in the aforementioned ten countries that comprise the Southern African region. 29 In the same year, it was estimated that between 5.4 million and 5.8 million people in South Africa alone were HIV carriers, indicating that South Africa is the country most affected by the pandemic in the whole world. 30 Furthermore, in South Africa, AIDS is the leading cause of maternal mortality and accounts for 35 percent of the deaths of children younger than five years old. It is estimated that, among the 59 percent of women who are carriers of the virus living in sub-Saharan Africa, 40 percent reside in the Southern African region. In 2010, it was estimated that 31 percent of the 1.9 million newly infected individuals in sub-Saharan Africa lived in the ten countries of the

Southern African region. Moreover, out of the 1.2 million HIV-related adult and child deaths, 34 percent were recorded in the ten countries of the Southern African region. Although these countries bear the brunt of the pandemic in sub-Saharan Africa, HIV/AIDS remains a serious threat to all of humanity. 31 The pandemic continues to affect different countries of the AIDS Belt to varying extent, as we shall see in the case of Cameroon, West Africa.

29 WHO, UNAIDS and UNICEF Progress Report 2011.

30 UNAIDS Global Report 2010, Geneva, under “Unaids,” http://www.unaids.org/globalreport/Global_report.htm (accessed May 12, 2011). It is also worth noting that, between 2001 and 2009, the annual HIV infection rate rose by more than 25 percent in some countries in Eastern Europe and Central Asia.

31 It is important to note the threat HIV/AIDS poses to women. In 2010, an estimated 6.6 million infected individuals in low and middle income countries received antiretroviral therapy and sub-Saharan Africa received an estimated coverage of 49 percent, which is less than 3.3 million beneficiaries compared to the 22.9 million people living with the virus. Such low coverage is also reflected in the number of women and children that received treatment. Thus, in 2010, only an estimated 50 percent of pregnant women living with HIV benefited from the therapy and the coverage of infant antiretroviral prophylaxis was only 21 percent. See UNAIDS Data Tables/2010, under “Unaids Corporate Publication,” http://www.unaids.org/en/media/unaids/contentassets/documents/unaidspublication/2012/JC2286_Sourcing- African-Solutions_en.pdf (accessed March 19, 2012).

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4. The Situation of HIV/AIDS in Cameroon

In 1985, in Cameroon, the first AIDS cases were detected in twenty-one persons. Because

HIV is a lentivirus, these patients must have been infected for several years prior to detection. It also seems probable that many other Cameroonians must have been infected with the virus at different times prior to 1985. Subsequent data lend credence to this premise because, between

1987 and 1991, the rate of HIV infection in Cameroon increased from 0.5 percent to 1.5 percent; to 5.5 percent in 1997; and to 7 percent in 2001; while, in 2003, it was estimated at 6.9 percent; 32 at 5.1 percent in 2007; 33 at 5.3 percent in 2010; 34 and at 4.3 percent in 2011. 35 The infection trend in the country, as shown by the above estimates, reveals the slow-acting but destructive action of the virus in the human body. It is important to note here that there are regions in Cameroon where the prevalence of HIV/AIDS is estimated at 17 percent. 36

Although no one is immune to the virus, there are some high-risk groups in the population that contribute significantly to the high incidence of HIV in the country. First, young people (15-24 years of age), as in other parts of sub-Saharan Africa, are a very vulnerable group, and the 18.2 percent infection rate among them confirms this. Clearly, long distance truck

32 Comité National de Lutte Contre le SIDA (hereafter CNLS) Cameroon, Rapport de Progress N o 3 (UNGASS), 17. See also Présentation du Projet PRETIVI Douala, le VIH-SIDA, under “Pretivi,” avec l’appui de, www.cameroun-plus.com (accessed May 17, 2011).

33 Ministère de la Santé Publique (Cameroon), Rapport Annuel des Activités du Programme National de Lutte Contre le SIDA Année 2008, 6. The above estimates represent adolescents and young adults, i.e. those in 15-49 age group.

34 WHO, UNAIDS and UNICEF Progress Report 2011.

35 CNLS, Rapport National de Suivi de la Déclaration Politique sur le VIH/SIDA Cameroun (30 Mars 2012), 10.

36 CRTV-Nouvelles, Cameroononlinenews.com (accessed May 12, 2014).

129 drivers, sex workers and their customers, and law-enforcement personnel (most of whom are in this age group) contribute significantly to the high rate of infection.

In 2004, the Ministry of Health in Yaounde reported that the prevalence of HIV/AIDS among long distance truckers was 16.3 percent, which increased to 18.8 percent among the resident population along the Cameroon-Tchad oil pipeline, and to 26.4 percent among sex workers. Only five years later, in 2009, the same ministry reported that the prevalence of the disease among sex workers had risen to 36.7 percent, 37 an alarming increase that would be reflected in other sectors of the population. In the Ministry of Defense, estimates showed a steady increase in the number of infected army personnel: from 3.1 percent in 1990 to 6 percent in 1993, and to 14.8 percent in 1996, followed by a slight decrease to 11.2 percent in 2005. 38

Because many of these vulnerable groups operate in urban areas, the prevalence of HIV/AIDS is higher in these areas than in rural areas, and this disparity is reflected across the various regions in the country. In the North-West region, the prevalence is 8.7 percent, with 8 percent in the

South-West, 8.6 percent in the East region, 1.7 percent in the North region, 2 percent in the Far

North region, and in the capital, Yaounde, it is 8.3 percent. 39 However, these estimates may not reflect the numbers of HIV/AIDS carriers in these regions accurately, as many individuals are beyond the reach of government record keeping.

37 CNLS, Rapport de Progres sur la Déclaration d’Engagement sur le VIH/SIDA Cameroon (UNGASS) Janvier 2008- Décembre 2009 , under “Unaids,” http://www.unaids.org/en/dataanalysis/monitoringcountryprogress/2010progressreportssubmittedbycountries/c ameroon_2010_country_progress_reports_fr.pdf (accessed March 12, 2012).

38 CNLS, Rapport de Progress N o 3 (UNGASS), 17.

39 CNLS/GTC, The Impact of HIV and AIDS in Cameroon Through 2020 (September 2010), 9.

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Another segment of the population that presents a disquieting future for marriage and family life in Cameroon society is pregnant mothers who are HIV positive and children born infected with the virus. In 2005, it was estimated that 60,000 pregnant women were HIV positive; this number increased to 65,000 in 2006; and to 67,000 in 2007. This can be contrasted to the estimated number of infected children in the same period, which was 35,000 in 2005;

43,000 in 2006; and 44,813 in 2007. 40 The steady increase in the number of women and children infected with the virus points to the vulnerability of women and an unhealthy future for the socio-economic life of society.

The percentage of infected pregnant women among those tested for the virus in 2007 was

7.8 percent; in 2009, the percentage decreased slightly to 7.57 percent, 41 increasing again, to 8.4 percent, by 2011. 42 When these figures are analyzed, it becomes evident that a sizeable percentage of pregnant women nationwide have not been tested and do not know their status.

Between 2005 and 2006, the percentage of infected pregnant women who were placed on antiretroviral prophylaxis increased from 3.7 to 7 percent, 43 and the government is committed to expand coverage in this regard. In the present circumstances, many infants born of infected mothers are also infected with the virus. For example, in 2007, MTCT of the virus was estimated at 19 percent; declining to 8.9 percent in 2010, and to 7.1 percent in 2011. 44 In comparison with

40 CNLS , Rapport de Progress N o 3 (UNGASS), 20.

41 Rapport sur la surveillance sentinelle VIH et syphilis, Ministère de la Santé Publique, Cameroun 2009 cited in CNLS, Rapport de Progress 2010, 13.

42 CNLS, Rapport National de Suivi de la Déclaration Politique sur le VIH/SIDA Cameroun (30 Mars 2012), 16.

43 CNLS, Rapport de Progress N o 3 (UNGASS), 26.

44 CNLS, Rapport National de Suivi de la Déclaration Politique sur le VIH/SIDA Cameroun (30 Mars 2012), 16. The sharp downward trend in the estimates may not reflect the situation of MTCT of the virus accurately as the

131 other West African countries, where the indicators of the pandemic show some relative stability or decline, the number of HIV infected persons in Cameroon is still the highest. Consequently,

Cameroon is classified within the category of a generalized epidemic country. 45

As a first step in the fight against the HIV/AIDS pandemic, in 1986, the Cameroon government set up a National AIDS Control Committee. However, by 1995, it was clear that the committee had failed to accomplish its mission. Experts that have analyzed the situation in

Cameroon attribute this failure to “instability at the helm of the National AIDS Control

Programme (NACP) which caused a certain laxity in the implementation of the Programme; incoherence at the level of policy; insufficient resource allocation to the Programme; and inadequate involvement of sectors other than the heath sector.” 46 Because AIDS spares no sector of the population, the fight against the pandemic needs a multi-sectorial approach with clearly defined, sustained, coherent objectives and targets. 47 Moreover, for the vision to succeed, the

Ministry of Public Health must work in tandem with the other Ministries and sectors of the population right down to the grassroots. Indeed, success in the fight against HIV/AIDS lies in collective action with common set goals.

The failure of the NACP reveals the weakness of the public healthcare system in

Cameroon, where the few existing referral centers and hospitals are concentrated in the urban centers. Thus, the majority of the population that lives in the rural areas is served sporadically, majority of small health facilities and infected mothers the country over are beyond the reach of government record keeping.

45 CNLS, Rapport de Progres sur la Déclaration d’Engagement sur le VIH/SIDA Cameroun (UNGASS) Janvier 2008- Décembre 2009 , 13.

46 National Episcopal Conference of Cameroon, Cameroon Bishops’ Declaration on AIDS (Mvolyé, Yaounde: Atelier de Matériel Audio Visuel, 1999), 2.

47 Barnett and Whiteside, AIDS in the Twenty-First Century, 97 and 336-37.

132 either by First-Aid Posts, Clinics, Health Centers, or budding hospitals, which are limited in number and ill-equipped to cater to the many health needs of the people. 48 Many of these facilities are operating with primitive infrastructure, personnel, equipment and technology.

Furthermore, because of the high poverty rate and the absence of a health insurance scheme, many patients fail to seek medical assistance. These patients often rely on traditional doctors and herbalists to assist them with their health problems. Clearly, as these traditional health personnel lack both the means and the technical know-how to screen people for HIV, many HIV/AIDS carriers remain unaware of their status and may unwittingly be agents in the continuous spread of the virus. Furthermore, some people who are screened—and are thus informed that they are seropositive—still live in denial that they are carriers of the virus, especially when they are still asymptomatic. These individuals become agents for the continual spread of the virus and eventual AIDS-related deaths. Often, such deaths are attributed to witchcraft, demonic possession, slow poison or other causes or diseases. Therefore, education is necessary to raise public awareness of the existence of the pandemic.

The spread of HIV/AIDS depends on the behavioral patterns of human beings. Thus, the pandemic also affects the social life of society, as we shall see in the next section.

5. The Social Impact of HIV/AIDS on Cameroon

Epidemics and pandemics have their foundations in the normal social and economic life of societies. Pathways of infection are based on the social, cultural and economic relations between groups of human beings. Thus, many interrelated factors contribute to the varied disease

48 In the Tertiary Sector, however, confessional-administered health care facilities carry out excellent work in providing healthcare for millions of Cameroonians. Unfortunately, their limited resources hinder their ability to provide such healthcare to many needy Cameroonians.

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prevalence in the different populations and regions of any country. In this section, I shall show

how behavioral patterns have influenced the spread of HIV in the Cameroon society and the

effects on other social institutions, especially marriage and family life.

Human behavior is responsible for the spread of HIV from one person to another. In

Cameroon, like many other sub-Saharan African countries, heterosexual intercourse is the

primary means of spreading the virus. Actually, in Cameroon, about 90 percent of new infections

are estimated to occur as a result of sexual intercourse. 49 Unfortunately, a large part of the

population, especially the young, is slow to acknowledge this fact. 50 This type of ignorance leads

many young people to treat the talk about HIV/AIDS as mere propaganda crafted by elders bent

on dampening youthful fun. 51 In conjunction with such thinking, there is the belief among “sugar daddies and sugar mammies”52 that having sex with adolescents is an HIV-free adventure. They

lure young people to sex in exchange for large sums of money. These opportunistic sexual

relationships thus become one of the main modes of spreading the virus among adolescents and

49 CNLC/GTC, The Impact of HIV and AIDS in Cameroon through 2020 (September 2010), 5.

50 However, there are also some reports of transmission through the transfusion of contaminated blood and through homosexual activity in Yaounde, Douala, Kribi, Limbe, Bafoussam, Garoua and Ngaoundere.

51 Timberg and Halperin, Tinderbox , 120. The popular sobriquet for SIDA in Kinshasa—“Syndrome Imaginaire pour Décourager les Amoureux : Imaginary Syndrome to Discourage Lovers”—is equally popular in Cameroon.

52 “Sugar daddies and sugar mammies“ is a popular phrase in Cameroon referring to wealthy, usually married, older men and women, who prefer to have sex with young boys and girls due to the belief that it is an exciting adventure, and above all, because they believe they are still “pure.” As the name implies, these “sugar daddies and sugar mammies” are said to give “sugar” to young boys and girls, that is, they give them anything that would please them, anything of their choice so that they would acquiesce to sexual intercourse with them. See also Nana K. Poku, AIDS in Africa: How the Poor are Dying (Cambridge: Polity Press, 2005), 99; Anton A. Niekerk, “Moral and Social Complexities of AIDS in Africa,” in Ethics & AIDS in Africa, ed. Anton A. van Niekerk and Loretta M. Kopelman (California: Left Coast Press, Inc., 2005), 62. These publications and others talk specifically of “sugar daddy” relationships. Experts see a “transactional” element in these and similar relationships, as sex is implicitly traded for money and other kinds of support.

134 young adults. 53 Vulnerability among the productive sector of any population has repercussions on morality and social life, including the future of marriage.

Although the population most affected by the pandemic is the 14- to 34-year-old age group, many of whom are military personnel, commercial sex workers, or truckers, 54 the rates of infection among children, other adolescents, and young adults (15-49 years old), as well as

AIDS-related deaths, continue to present a gloomy look for the future of marriage in Cameroon society. The trend is self-evident: in 1999, 540,000 adults and children were HIV-positive, with

52,000 AIDS-related deaths; 55 in 2003, the number of HIV-infected adults and children increased to 560,000, while AIDS-related deaths declined to 49,000; 56 in 2007, 543,294 adults and children were HIV-positive, and 46,000 AIDS-related deaths were recorded; 57 the corresponding figures were 550,000 and 37,000 in 2009; 58 and 600,000 and 35,000 in 2012. 59 The decline in the estimates of the number of AIDS-related deaths reflect the improvement in the health quality of infected persons who have access to antiretroviral therapy.

53 CNLS, Rapport de Progress N o 3 (UNGASS), 8.

54 National Episcopal Conference of Cameroon, Cameroon Bishops’ Declaration on AIDS, 2.

55 UNAIDS Cameroon, June 2000 Report, under “Unaids,” http://www.nigeria-aids.org/pdf/AIDS_in_Cameroon.pdf (accessed May 13, 2011).

56 UNAIDS Regional Reports 2010, under “Unaids-Cameroon,” http://dataunaids.org/Publications/Fact- Sheets01/Cameroon_en.pdf (accessed May 13, 2011).

57 CNLS , Rapport de Progres N o 3 (UNGASS), 7.

58 UNAIDS Regional Reports 2010, under “Unaids-Cameroon,” http://www.unaids.org/en/Regionscountries/Countires/cameroon (accessed February 3, 2011).

59 UNAIDS Regional Reports 2012, under “Unaids-Cameroon,” http://www.unaids.org/en/Regionscountries/Countires/cameroon (accessed May 16, 2014).

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The steady increase in the number of HIV/AIDS carriers is also reflected in the outbreak of opportunistic diseases associated with the pandemic. Among these is tuberculosis, whose prevalence is between 30 and 50 percent among AIDS patients, making it the principal cause of death in this group. In 2008, it was estimated that 40.4 percent of patients suffering from tuberculosis were AIDS patients. 60 The outbreak of opportunistic diseases is an additional challenge and burden that the Cameroon government—and indeed any government still on the road of development—must handle.

Among adolescents and young adults, girls are more vulnerable to infection than boys, and the percentage of infection increases according to age. According to the available data, 1.4 percent of girls aged 15-19 are currently infected, compared to 9 percent of women aged 30-34 and 4.7 percent of those aged 45-49 years. 61 In addition, the ratio of infected women to infected men is 1.7 to 1. Some factors of social inequality explain this trend. For example, girls, rather than boys, tend to be withdrawn from school, irrespective of the reason; the lack of access to jobs and just wage rates keeps girls dependent on men; girls and women—especially orphans and young widows—are more vulnerable to sexual exploitation and abuse than boys and young men. 62 Furthermore, girls and women have limited access to preventive and curative healthcare, and young women are susceptible to vaginal infections and abrasions that facilitate the transmission of the virus. 63 The high rate of infection among young women has a negative

60 CRTV – Nouvelles, “Le SIDA en question” avec le Docteur Serge Blaise Emaleu, under Cameroononlinenews.com, (accessed May 12, 2014).

61 CNLS, Rapport de Progress N o 3 (UNGASS), 17.

62 Poku, AIDS in Africa , 100.

63 Ibid., 64. On page 6, Poku cites the Report on the Global AIDS Epidemic, UNAIDS , Geneva 2004, which indicates that, in 2003, at 284 cases per 1,000 people aged 15-49, Africa had the highest incidence of untreated curable

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demographic impact with regard to the number of women available for childbearing, the number

of children delivered with HIV, the number children who die because of AIDS-related causes,

and the number of orphans from parents who die from AIDS-related causes. 64

AIDS-related deaths gradually decimate households, expose them to economic hardships and even threaten their existence. In 1995, 7,900 people died from AIDS-related causes; this number rose to 25,000 in 2000, 65 and further to 37,000 in 2010; 66 and in 2013 the number was

estimated at 38,000. 67 The death of either or both parents not only orphans the children, but also harms the economy, as businesses are affected, while health and social services suffer from the loss of health workers, teachers and other skilled workers.

The number of orphaned children due to AIDS-related causes continues to rise as well. In

1995, number of children orphaned by AIDS-related causes was 13,000; increasing to 304,000 in

2010, and further to 344,088 in 2011. 68 The number of children that lost both their parents due to

sexually transmissible diseases (STDs) compared to the second highest of 160 cases per 1,000 people in South and South-East Asia. Untreated STDs, especially those that cause genital ulcers, contribute to the easy acquisition and transmission of HIV.

64 Poku, AIDS in Africa , 53. The author states that MTCT varies from circa 2-5% in Western Europe to up to 50% in Africa due to the inaccessibility of anti-retroviral therapy (ART) and lack of proper assistance at birth. See also Ministère de la Santé Publique (Cameroun), Rapport d’Enquête de Surveillance Sentinelle du VIH et de la Syphilis chez les Femmes Enceintes Frequentant la Consultation Prénatale en 2009 au Cameroun , Mars 2010. The number of orphaned children due to AIDS-related causes illustrates the trend in the society. In 1999, the estimated number was 270,000, declining to 240,000 in 2003, increasing again to 305,000 in 2007, and in 2009, there were 330,000 orphans aged 0-17 years.

65 UNAIDS Regional Reports 2012, under “Unaids-Cameroon.”

66 CDC, HIV/AIDS Assets and Strategic Focus: HIV/AIDS in Cameroon , under “Cameroon Country Profile,” http://www.cdc.gov/globalaids/Global-HIV-AIDS-at-CDC/countries/Cameroon (accessed May 16, 2014).

67 CRTV-Nouvelles, “Le SIDA en question” avec le Docteur Serge Blaise Emaleu,” under Cameroononlinenews.com., (accessed May 12, 2014)

68 CNLS, Rapport National de Suivi de la Déclaration Politique sur le VIH/SIDA Cameroun (30 Mars 2012), 15.

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AIDS-related causes is projected to rise to 350,000 by 2020. 69 In 2010, the number of orphans due to AIDS-related causes represented about 25 percent of the 1,200,000 orphans in

Cameroon. 70 The future of orphans is uncertain because they usually become victims of forced labor, sexual and economic exploitation, and are expected to perform heavy household and farm chores. 71 In cases where orphans are not under the custody of other family members who love them and care for them, their upbringing is usually compromised and they eventually become a problem for society. Often, they fall prey to juvenile delinquency and sexually transmitted infections, thus continuing the cycle of the spread of HIV.

The Cameroon government, however, intensified its commitment to providing full screening and mobile free testing and counseling services, specifically targeting the youth, women, and other high-risk groups, because of their vulnerability to the pandemic.

Unfortunately, the response from the population has been lukewarm. Many people are still unwilling to come forward voluntarily to be screened for the virus. Definitely, ignorance about the virus and its effects in the human body is one reason for this non-compliance. There is also fear, especially among those who suspect that they may be carriers, because coming forward to be screened may be tantamount to confirming one’s own death sentence. Suicides are not uncommon after a person has tested positive. Thus, many people prefer to live in a “let sleeping dogs lie” situation, which they find easier to bear.

In 2004, only 5.4 percent of the Cameroon population (irrespective of gender) was screened for the virus. Some improvement was noted in 2006, as 33 percent of women were

69 CNLC/GTC, The Impact of HIV and AIDS in Cameroon through 2020 (September 2010), 13.

70 Ibid.

71 Poku, AIDS in Africa, 95.

138 screened, compared to only 10 percent in 2004. The government projected that, by 2010, the mobile service units should be screening between 2,000 to 2,500 persons each month in each of the ten regions; however, financial constraints interfered with the regular functioning of these units. 72 Consequently, as the screening and counseling services became less frequent, a great number of individuals currently remain unaware of their status as potential agents for spreading the virus.

The government advocates “safe sex” or “protected sex” and has thus made condoms available throughout the country. In 2004, it was estimated that 71 percent of sex workers and 69 percent of students used condoms, compared to only 39 percent of long distant truck drivers, and

26 percent of the population bordering the Cameroon-Tchad oil pipeline. In 2005, the estimated rate of condom use among military personnel was 22.1 percent. 73 However, the above statistics can be contrasted by the findings of a study conducted in 2009, which revealed that only 60 percent of one hundred surveyed sex workers reported that they used condoms regularly. The distribution of condoms has been increasing by millions over the years—from 6,000,000 in 1993 to 24,656,075 in 2009. Such full-scale distribution of condoms as the means to combat the pandemic seems oblivious to the evidence of experience, which shows that condom distribution does not seem to be the answer. Although condom sales increased from 6,000,000 in 1993 to

15,000,000 in 2001, HIV prevalence also increased from 3 to 9 percent. 74 In 2009, despite over

24,500,000 condoms sold, HIV prevalence stood at 5.32 percent, and it increased among sex

72 CNLS, Rapport de Progress N o 3 (UNGASS), 24.

73 Ibid., 20.

74 Hearst and Chen, “Condom Promotion,” as cited by Matthew Hanley and Jokin de Irala, Affirming Love, Avoiding AIDS: What Africa Can Teach the West (Philadelphia: The National Catholic Bioethics Center, 2010), 71.

139 workers from 26.4 percent in 2004 to 36.7 percent. A similar trend was also noticed in Botswana, where the HIV prevalence among pregnant women increased from 1990 to 2001 despite an increase in condom sales. Of course “these trends do not prove causation, but they do suggest a lack of epidemiological impact.” 75 Furthermore, the report of some researchers that investigated this issue in Cameroon presented at the Sixth International AIDS Society Conference in Rome in

July 2011, shows that, although the use of anti-retroviral therapy (which lowers the viral set point in patients) and the use of condoms in increased sexual activity may indicate fewer infections, these initiatives do not yield a conclusive positive answer. 76 Indeed, the Cameroon government’s drive to promote the use of condoms among sexually active individuals as a correlate to behavioral change to curb the spread of HIV/AIDS seems uneven given the social impact of the pandemic on the society.

One disquieting phase the HIV/AIDS carriers often go through is stigmatization and discrimination by society. Such individuals are often subject to some social ridicule and alienation. They are given differential treatment by society, as they are perceived as

75 Hanley and de Irala, Affirming Love, Avoiding AIDS , 97.

76 Cameroon and HIV/AIDS 2012, under “News,” http://www.thebody.com/index/whatis/cameroon.html#rates (accessed March 12, 2012). See also Timberg and Halperin, Tinderbox , 287-88, who report the results of a study on discordant couples conducted by one University of North Carolina. The findings indicate that giving ART to the infected individuals before their immune systems deteriorated lowered the risk to their partners by 96 percent. Other trials also showed that, when uninfected people took a daily dose of a single ART as a prophylaxis, they were less likely to contract the virus. This prevention strategy works in highly controlled research settings, just as condoms block HIV when used properly and consistently. However, they cannot be generalized, given that the ordinary circumstances of life are different. Thus, these research strategies have limitations outside of the controlled environment of clinical trials. Other aspects to be considered are the side effects on being placed on ART for years, as well as the cost, which could threaten other worthy global health initiatives, such as the campaign to provide clean water, family planning services, and treatments for a range of other diseases.

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“undesirable, usually because they are seen to lack a crucial moral quality.” 77 Because heterosexual intercourse is the primary mode of transmission of the virus in Cameroon, people see AIDS as the illness affecting those who have indulged in such surreptitious “deviant behavior,” 78 characteristic of those engaging in extra/pre-marital sex, often with sex workers, or

“sugar daddies and sugar mammies.” Unfortunately, Cameroon society is unconcerned with the other possibilities of transmission of the virus—through blood transfusion and homosexual activity—and continues to associate it solely with unethical heterosexual behavior. Thus, HIV- carriers are labeled as authors of their own misery because they engaged in culturally and religiously prohibited behaviors. 79 Consequently, many are often left to die alone in the darkest, dingiest back rooms of their homes. They are treated as “things” in downright disrespect for human dignity.

The stigma associated with HIV carriers is heightened when the disease develops to full blown AIDS. HIV infection has degenerative effects on the body, leading to outward signs of advanced immune system dysfunction, such as sarcomas and wasting syndromes. When these signs become apparent, victims are often perceived as repulsive and upsetting, which further contributes to the stigma and discrimination. 80 Such outward signs of advanced immune system dysfunction have given birth to the various derogatory sobriquets tagged to the pandemic, and by

77 Jenny Trinitapoli and Alexander Weinreb, Religion and AIDS in Africa (New York: Oxford University Press, 2012), 155.

78 Marlink and Kotin, Global AIDS Crisis , 53.

79 Timothy Edgar, Seth M. Noar, and Vicki S. Freimuth, eds., Communication Perspectives on HIV/AIDS for the 21 st Century (New York: Lawrence Erlbaum Associates, 2008), 69; and M. J. Visser et al., “HIV/AIDS stigma in a South African community,” AIDS Care 21 (February 2009): 197.

80 Edgar, Noar, and Freimuth, Communication Perspectives on HIV/AIDS , 73.

141 association to its carriers, such as na yi, na that thing ,81 seven plus one , nine minus one , and slim .

Indeed, society often regards the AIDS stage of HIV carriers as a condition of the misfits of society, those who have forfeited freely the love and sympathy of their family and of the wider community.

Often, the stigma and discrimination spill over to the kindred of the patient, who are also looked upon as sexually undisciplined and as social misfits. Many a time, family members are even ashamed to openly discuss the nature of the illness of one of their kin 82 because they consider AIDS a “let down” of the family image. The consequences can be far reaching: friendships are affected; the choice of future spouses available to family members of AIDS patients is jeopardized; the involvement of their families in village affairs is often sidelined; and, in the event of death, the burial of the deceased person is quietly carried out to avert questions about the cause of death. In addition, their family members are put on the cautious “watch-list” of the village. Truly, the discrimination and stigma the HIV/AIDS carriers and their families go through breed an unhealthy social atmosphere for the Church and the entire society.

6. The Economic Impact of HIV/AIDS on Cameroon

Having examined the social impact of the pandemic, I shall now discuss its economic impact on society. The well-being of people requires access to good nutrition, clean water, education and preventive care. Wherever these are lacking or are inadequate, people’s health is

81 Na yi , Na that thing are the Pidgin English renderings of It is it, and It is that thing, which connote the obvious when used in particular contexts. Hence, to say na yi or na (that thing) when giving information about what somebody is sick of or has died of, you expect your listeners to understand that you mean HIV/AIDS.

82 Poku, AIDS in Africa , 170.

142 in jeopardy. Just as disease can cripple human life, it can hinder the economic development of people and plunge them into misery.

Because it is a slow-acting disease, HIV/AIDS gradually hinders the economy of any country, over a period of years. The impact of the pandemic on the economy usually begins on a small scale (micro-impact) that is felt by the AIDS-patient and his or her immediate family unit, after which it progresses to a great scale (macro-impact) that is felt across the wider community or society.

a) Micro-economic Impact of HIV/AIDS

The economic effects of the pandemic are felt through increased morbidity and higher mortality rates. When a member of a household has AIDS, the burden of caring for the sick individual requires financial resources for medication, adequate nutrition and human personnel over a long period of time. Whether the care is home-bound or is provided in a healthcare unit, family resources can easily be depleted, because the AIDS patients require care for life.

Furthermore, medical care is expensive because of the number of diagnoses and tests usually required and the prescription of prophylactic and palliative drugs. As a result, other family spending patterns would be adjusted accordingly. These may entail withdrawal of children from school, as well as rationing of food and usage of other household utilities. To meet the spiraling costs, many families resort to the sale of land or livestock, and even take loans, wherever this is possible, to make ends meet. 83

83 Poku, AIDS in Africa , 108.

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Since people in poor living conditions are more exposed to poor health and to infectious diseases than are the wealthy, 84 HIV/AIDS further impoverishes them and makes their situation worse. 85 Surely, there is no causation between HIV/AIDS and poverty; still, poverty exacerbates the difficulties of AIDS patients, making it difficult to manage and live their lives in a dignified manner. Poverty robs them of the means to acquire the necessary medication and the adequate nutrition that can improve and prolong their life. Global economist Jeffrey Sachs notes that “the major reasons why many of the poorest countries in the world, particularly but not exclusively sub-Saharan Africa, are stuck in poverty is that the disease barrier is so great that it is blocking many different normal avenues of economic advance.”86 The long-term economic effects on

HIV/AIDS carriers inevitably lead to death.

The death of an AIDS patient often plunges the family into deeper economic hardship, especially if it lives in poverty. The burial requirements and after-death celebrations, as stipulated by native law and custom, demand huge financial expenses. Although they differ, depending on whether the deceased person is a family head, a mother or a child, such customary demands are still burdens to poor families. Furthermore, such deaths entangle those who are

84 Barnett and Whiteside, AIDS in the Twenty-First Century , 66. See also Cimperman, When God’s People Have HIV/AIDS , 3, who cites the data pertaining to the United States, the wealthiest nation in the world, where the incidence of HIV/AIDS in Washington, D.C. is 3 percent and is the highest in the whole country. Incidentally, Washington, D.C. has the highest concentration of African-Americans whose living conditions are low relative to other Americans. Moreover, although African-Americans account for just 12 percent of the total US population, up to 72 percent of all newly diagnosed HIV cases in US women pertain to African-American women.

85 Poku, AIDS in Africa, 86. See also Florenzo Deriu Bagnato, “Voluntary Work and the AIDS Emergency,” Dolentium Hominum 50 (2002): 63.

86 Jeffrey Sachs, “Winning the Fight against Disease: A New Global Strategy,” Keynote Address to the 2003 Fulbright Scholar Conference (April 2, 2003): 1, as cited by James F. Keenan, “Developments in Bioethics from the Perspective of HIV/AIDS,” Cambridge Quarterly of Healthcare Ethics 14 (2005): 418. According to Sachs, in poor countries, including Cameroon, disease obstructs economic growth; disease, in a way, mounts a fence (barrier) that blocks the avenues for economic growth leaving those countries stuck in poverty.

144 responsible for organizing the after-death celebrations in other problems because, in some cases, they may be pushed to engage in unethical means to meet the expenses. Here, women are more vulnerable because sometimes they are exposed to sexual exploitation, which opens up possibilities for the transmission of the virus. Thus, the cycle of social and economic malaise continues unobstructed.

b) Macro-economic Impact of HIV/AIDS

The micro-economic effects of the pandemic on individuals and their family units slowly but steadily affect the macro-economic stance of the country. Actually, the first countries hit hard by the pandemic started to feel its macro-economic impact only two decades after the detection of the pandemic. Countries with a high HIV/AIDS prevalence are estimated to be losing 1-2 percent of their economic growth annually. 87 In sub-Saharan Africa, it is projected that, by 2020, the labor force could be reduced by as much as 35 percent because of AIDS-related deaths, since they are most prevalent in working-age population. As a result, the high death rates among the skilled workers adversely affect the entire economy. 88 Unskilled labor may be easily replaced by others, but the illness and eventual death of skilled laborers presents major setbacks to the economy. Even in predominantly agrarian economies, like Cameroon, the death of a father or a mother reduces the labor-use of the land, thus hindering productivity, because these adults die with acquired knowledge of farming without having passed it on to the younger generation. Such deaths lower the life expectancy worldwide, especially among those aged 15-59. 89 Thus, deaths

87 Cimperman, When God’s People Have HIV/AIDS , 8.

88 UNAIDS, Report on Global AIDS Epidemic , July 2004 .

145 of people in this age group, who are the most productive and the most beneficial for the economic life of any nation, have repercussions for the overall life of the nation.

The macro-economic threats of the pandemic are a revelation of its impact on the various components of the economic life of the nation. I will discuss some key sectors of public life to illustrate the point.

First, in the educational sector, the work output of the infected instructors is affected both qualitatively and quantitatively. Depending on the stage of infection, the poor instruction quality adversely affects the knowledge the students acquire, and thus their future output. The eventual death of instructors has a quantitative impact on the educational system, as they are difficult to replace, given that it takes years to train individuals capable of working at the various levels of the educational system. The orphans of dead instructors, who may also eventually die, contribute to the diminishing number of children attending the various levels of education. Furthermore, owing to the loss of household income, fewer resources are also available for the education of children, thus affecting the literacy level of the nation.

Second, in the health sector, healthcare personnel who become ill due to irresponsible behavior and eventually die because of AIDS-related causes negatively affect an already fragile and weak healthcare system. Because they are understaffed, hospitals and other health facilities are unable to meet satisfactorily the demands of the growing number of patients. These conditions create fertile ground for the rise of infectious diseases, especially tuberculosis, which

89 WHO, “Key Facts From The World Health Report 2004,” The World Health Report 2004: Changing History , May 2004 ; WHO, World Health Report 1999.

146 further strains the healthcare system and the economic life of families. Actually, in 2008, it was estimated that 40.4 percent of patients monitored of tuberculosis were seropositive.90

Third, the work-related migration required in certain professions (military and civil service personnel, taxi and distant truck drivers), or that motivated by the search for employment

(corporation and plantation workers), forces people to stay away from their families for months and even years at a time. Such displacements expose people to high-risk situations. The sickness and eventual death of these workers, the breadwinners for their families, plunges their families into economic difficulties. The cumulative effect of these micro-economic losses trigger macro- economic effects on society, manifested in the loss of some critical skills, the decline in gross domestic products (GDP), and the reduction of national income. Under such conditions, the hand of the government is immobilized from raising tax revenues, because these depend on the size of the economy. Consequently, the government is in a predicament, further escalated by the demands of its increasing expenditures, including poverty alleviation measures and the control of the spread of the pandemic. Any country in such a predicament is compelled to turn to foreign partners for assistance, which is, unfortunately, a signal of an ailing economy and a steady loss of sovereignty. 91

HIV/AIDS definitely exacerbates the pressure of deficit spending by governments, including dependence on overseas development assistance. Cameroon, like many other African

90 CRTV-Nouvelles, “Le SIDA en question” avec le Docteur Serge Blaise Emaleu,” under Cameroononlinenews.com, (accessed May 12, 2014). Indeed, tuberculosis is the principal cause of the death of HIV/AIDS patients.

91 Irwin, Millen, and Fallows, Global AIDS: Myths and Facts , 5. Here, the authors cite a study that draws a connection between the unsustainable foreign debt of countries and the HIV/AIDS pandemic. They show that one- third of all people living with AIDS reside in countries classified by the World Bank and the International Monetary Fund as heavily indebted. Moreover, over half of the countries currently receiving debt relief spend more in servicing their debt than on their total health budgets. They cite Cameroon (among others) as a country whose debt repayments are the equivalent of 3.5 times the health budget.

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countries, relies heavily on external funding to offset its expenses in the fight against HIV/AIDS.

In 2008, the Cameroon government received 73.4 percent of its revenue for the project from

foreign partners. 92 The diminution of external funding for the global fight against HIV/AIDS is a signal, particularly to African countries, to change course and adopt new, independent approaches to solving the problem of HIV/AIDS. 93 In 2011, the Cameroon government still

showed that it was unable to handle all its expenses on the fight against HIV/AIDS without the

reliance on foreign assistance. 94 Actually, the expenses on HIV/AIDS programs absorb a major

part of the national health budget, and this is not likely to abate, given that cost of caring for

AIDS patients will increase, as access to care and treatment improves. 95

92 Cameroon- 2010 Country Progress Report , 30.

93 Timberg and Halperin, in their riveting narrative, Tinderbox , show how well-meaning Western approaches in the fight against AIDS—condom promotion, abstinence campaigns, HIV testing—have proven ineffective in slowing the epidemic in Africa. These high-tech strategies overlooked homegrown African initiatives aimed squarely at behaviors spreading the virus. The authors maintain that Africa has the necessary strategies that target the root cause of the HIV spread, and these strategies are informed by the culture and history that shaped the epidemic. They further emphasize that, at the international level, International funding for HIV/AIDS programs decreased between 2008-2009, and although US$15.9 billion was available for 2009, that figure was US$10 billion less than what was needed for 2010. See also “HIV: the fight is far from over,” The Lancet 376:9756 (4 December 2010): 1874. Between 2009-2010, the international sources and international investments for AIDS (United States President’s Emergency Plan for AIDS Relief [PEPFAR] and the Global Fund to Fight AIDS, Tuberculosis and Malaria [Global Fund]) further decreased by 13 percent—from US$8.7 billion to US$7.6 billion—due to financial constraints and the failure of donors to meet their financial commitments to the Global Fund. See also AIDS Dependency Crisis: Sourcing African Solutions 2012, under “UNAIDS Corporate Publications,” http://unaids.org/en/media/unaids/contentasseets/documents/unaidspublication/2012/JC2286_Sourcing-African- Solutions_en.pdf (accessed March 19, 2012).

94 CRTV – Nouvelles, “Le SIDA en question” avec le Docteur Serge Blaise Emaleu,” accessed May 12, 2014, Cameroononlinenews.com. In 2011, the Cameroon government spent 8,448 billion francs CFA on HIV and AIDS programs—an increase of 11 percent compared to the amount spent in 2010. The amount it received in international aid was 3,977 billion francs CFA from the United States of America, which was equivalent to 48 percent of the total expenses.

95 CNLS/GTC, The Impact of HIV and AIDS in Cameroon Through 2020 (September 2010), 16.

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The projected four-year program (2006-2010) of the Cameroon government to combat the pandemic could not be realized fully due to insufficient funds, 96 and antiretroviral drugs were the first casualty. Owing to steady reduction in stock and its irregular administration, the significant gains achieved thus far through its regular administration, especially to infected pregnant women, have been erased. Clearly, the Cameroon government and other governments of sub-Saharan Africa need to rethink their dependence on overseas development assistance, and explore other approaches within their means, if they are to combat the spread of the HIV/AIDS pandemic effectively.

The socio-economic threats of HIV/AIDS on society reflect those confronting individuals and various societal institutions. However, in marriage, these threats raise further questions because the relationship between a man and a woman differs from all other human relationships.

It is a life-long, exclusive relationship, characterized by the conjugal gift of self to the other partner. In short, the relationship between a man and a woman in marriage is permanent, exclusive, and sexual. Since heterosexual intercourse is one of the main modes of HIV transmission, some questions obviously arise with regard to the exercise of the ius conjugale (the conjugal right, the right of conjugal relationship) by spouses who are HIV/AIDS carriers. These questions will be raised and discussed in the next section. Addressing them will help shape the debate whether we can categorize HIV/AIDS under the restrictions the Church currently imposes on the exercise of one’s right to marry.

96 Cameroon- 2010 Country Progress Report , 15.

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7. Some Moral-Ethical Questions Regarding HIV/AIDS and the Ius Coniugale

Moral-ethical questions regarding HIV/AIDS and the ius conjugale arise because we are dealing with a sexually transmissible disease that is presently still incurable. In a conjugal relationship, sexual intercourse has been considered a “marital debt” the spouses owe to each other. This implies that each party has to be available for sexual intercourse upon request from the other party. The marital debt was a mutually binding obligation on the spouses that could only be abrogated by mutual consent. In my view, a short note on this debt-model of conjugal relations in ecclesiastical jurisprudence will allow a better appreciation of the concerns regarding

HIV/AIDS and the ius coniugale .

a) The Nature of the Conjugal Debt

The origin of the conjugal debt rests on Saint Paul’s demand that the husband has to render his wife her due and vice versa because either party has authority over the other’s body.

Thus, neither the husband nor the wife is permitted to refuse each other, except by mutual consent and only for a time, lest they fall into temptation. 97

While Saint Paul was concerned about the moral obligation that binds a man and a woman in marriage, canonists of the medieval era took this recommendation and transformed it

97 1 Cor 7:3-7.

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into a juridical enforceable right. 98 Indeed, as Elizabeth M. Makowski noted, “an ingenious and

eclectic doctrine resulted.” 99

According to Gratian, matrimony created a social bond between the spouses and the

constituent elements of that bond were consent and consummation. 100 Because consummation

perfects the marriage and renders it indissoluble, Gratian explained that, once sexual intercourse

has taken place, the mutual obligation to give to each other the marital debt comes into effect

and, from then henceforth, the parties are bound to render sexual services to each other upon

demand. 101 Although he was aware of the strict teachings of the early Church Fathers on

sexuality and its procreative intent, the writings of Saint Augustine and the moral admonition of

Saint Paul in particular, Gratian explained that rendering the marital debt was a recognized

purpose of conjugal relationship that was as worthy as procreative coitus. 102 He further

distinguished between rendering the debt that was blameless from requesting it because of lust or

incontinence, which was venially sinful. 103

98 Reid, “The Canonistic Contribution to the Western Rights Tradition: An Historical Inquiry,” 81, especially his note 202.

99 Elizabeth M. Makowski, “The Conjugal Debt and Medieval Canon Law,” Journal of Medieval History 3 (1977): 99. For the movement of this history, see Pietro Vaccari, “La tradizione canonica del ‘debitum’ coniugale e la posizione di Graziano,” Studia Gratiana 1 (1953): 535-47.

100 C. 32 q. 7 c. 27.

101 C. 27 q. 2 d.p.c. 26 and d.p.c. 28; C. 32 q. 2 d.p.c. 2; C. 33 q. 5 d.p.c. 11; and Vaccari, “La tradizione canonica del ‘debitum’ coniugale e la posizione di Graziano,” 543-44.

102 C. 32 q. 2 d.p.c. 2.

103 C. 32 q. 2 c. 3 and d.p.c. 5. Makowski, “The Conjugal Debt and Medieval Canon Law,” 101-106, presents a historical overview of how the decretists and decretalists modeled their analysis of conjugal relations on that of Gratian, but differed regarding the conjugal debt requested because of lust or incontinence, which was seen to be sinful. Finally, they omitted the examination of marital coitus and sin, preferring to treat the rendering of the conjugal debt in a juristic framework, while emphasizing the ideal of sexual reciprocity in marriage.

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The obligatory nature of the conjugal debt was such that neither party could take a vow of continence that would jeopardize the conjugal rights of the other party. 104 The mutual consent of the parties was a necessary precondition. Thus, a spouse could not enter a monastery or abstain from marital relations, even temporarily, without the mutual consent of the other spouse. 105 The importance that canonists placed on the ius conjugale is seen in that women—traditionally considered inferiors—were not disadvantaged in this regard. 106 The marital debt was the area where the man and the woman enjoyed equal rights before the law. 107 Moreover, either party could sue for restitution in an ecclesiastical court if he or she was defrauded of this marital right.

Canonists, therefore, came to see the ius conjugale as a right that correlated with the duty of the other spouse to render it upon request by the other party. Thus, a maxim of canon law, “no one was to be deprived of his right,” ( nemo iure suo privari debet sine culpa ) was applied by decretalists to marriage cases to protect the parties from the unjust deprivation of the ius conjugale .108

Concerning the marriage of HIV/AIDS carriers and the ius coniugale , some moral-ethical questions become relevant because a person has the moral responsibility not to place his life or

104 C. 27 q. 2 d.p.c. 26 and d.p.c. 28; and C. 33 q. 5 c. 2.

105 C. 27 q. 2 c. 20-25; and C. 33 q. 4 d.p.c. 9.

106 Makowski, “The Conjugal Debt and Medieval Canon Law,” 111, especially her note 7, where she cites works that treat the attitudes toward women in Western Christian culture.

107 Brundage, Law, Sex, and Christian Society in Medieval Europe , 242, especially his note 58; and Makowski, “The Conjugal Debt and Medieval Canon Law,” 111.

108 Reid, “The Canonistic Contribution to the Western Rights Tradition: An Historical Inquiry,” 82, especially his note 205.

152 that of his neighbor in danger, without adequate justification. 109 Such responsibility is of particular significance in marriage because whatever is injurious to marriage and family life is also injurious to the society itself. 110 I find the list of ethical questions formulated by the moral theologian Lino Ciccone 111 adequate for the purpose of the present discussion, although I shall draw from them with some modifications.

b) Some Specific Moral-Ethical Questions

The first question pertains to whether it is licit for a seropositive person to contract marriage and then engage in conjugal relations that expose the other spouse to the risk of the contagion. Some recent studies show that, in discordant couples, 112 unprotected vaginal sex may not lead to the infection of the healthy partner for many years, as certain cofactors, such as the acute infection period and whether the man is circumcised or not, also play a role. 113 Moreover, other studies show that, in discordant couples, the uninfected partner who takes a daily dose of a single antiretroviral therapy as prophylaxis is less likely to contract the virus. When interpreting these findings, it should be noted that most of these studies have been conducted in the controlled environment of clinical trials and they are still in their embryonic stage. However,

109 Bernard Häring, The Law of Christ: Moral Theology for Priests and Laity , trans. Edwin G. Kaiser (Cork: The Mercier Press Ltd, 1967) 3: 214-17; and CCC nn 2268 and 2269.

110 Benedict XVI, post-synodal apostolic exhortation Sacramentum caritatis , February 22, 2007, n. 29: AAS 99 (2007) 130: “Matrimonium et familia sunt instituta quae promoveri defendique debent, omnibus ambiguitatibus de ipsarum veritate amatis, quandoquidem omnis inuria illis illata vulnus est quod hominum convictui ut tali affertur.”

111 Lino Ciccone, “Aids: problemi etici in ambito coniugale,” Medicina e Morale 4 (1992): 621.

112 A discordant couple is one in which one spouse is HIV-positive and the other is HIV-negative.

113 Timberg and Halperin, Tinderbox , 37-39, especially Endnotes 1 and 2 on pages 326-27.

153 there is a corollary question to this first question: Is it licit for two seropositive persons to contract marriage and then engage in conjugal relations? This situation is more serious, as the conjugal relations are a mutual reinforcement of the rapid progress of the illness, leading to a more rapid death. 114 Thus, the question and its corollary stand.

As a consequence of the above, a third question arises: Is it licit to contract marriage in cases where one or both partners are seropositive, while renouncing the use of marriage? This question also concerns Canon Law because a person who contracts marriage while renouncing its use by a positive act of the will contracts marriage invalidly. Such a person negates the very definition of marriage as understood and taught by the Church. Marriage is supposed to be a permanent partnership between a man and a woman, ordered to the procreation of children through some form of sexual cooperation. 115 It seems that those authors who advocate the non- use of marriage may cite the example of Mary and Joseph extolled by the Church, or may advance a brother-sister relationship solution in the face of the HIV/AIDS pandemic. While these two examples are praiseworthy in their own right, they do not reflect the common understanding of marriage, as taught by the Church.

Non-sexual married life is extolled by the Church as an ideal after the example of Joseph and Mary, and the Church has honored married couples of every age who have refrained from marital acts upon mutual agreement and personal sanctification. Still, can the Church prescribe

114 Ciconne, “Aids: problemi etici in ambito coniugale,” 625-26. See also “The situation of two HIV positive partners who engage in sexual intercourse”: http://std.about.com/od/hivaids/f/If-My-Partner-And-I-Both-Have-Hiv-Do-We- Still-Need-To-Have-Safe-Sex.htm (accessed October 2, 2014) which affirms that where both sexual partners are HIV positive, it is possible to become infected with additional strains of HIV and this is known as superinfection. Superinfection is problematic because it is associated with increased health problems; and it is harder to treat, even using combined antiretroviral therapy, because there is a possibility that someone could be infected with two differently drug-resistant strains.

115 c. 1096 §1.

154 this model to all seropositive persons who may insist on exercising their natural right to marry?

The impact of the pandemic on the life of the spouses and on the wider community seems to suggest otherwise. Indeed, not all HIV/AIDS carriers who seek to exercise their natural right to marry may be called to such heroic non-sexual married life of Mary and Joseph as extolled by the Church. In addition, the Church does not expect such heroism from all or even from the majority of her subjects because the normal understanding of marriage is that it involves sexual relationship. This is the understanding of marriage in this project—as an institution that lies at the foundation of Church and society and serves as the functional agent to assure the existence and continuance of the human race.

The brother-sister relationship solution for HIV/AIDS carriers who seek to exercise their natural right to marry seems to take lightly the psychology of the human person, especially in a permanent proximity of a rightful sexual partner, as is the case in marriage. Couples who are not called to such a heroic way of life are thus tempted to break their promise because, during non- sexual intimacies, they may be sexually aroused to the extent that the urge to satisfy that desire may become irresistible. Thus, many of them succumb to the desire for full sexual satisfaction.

Human nature is fallen nature because it is wounded by sin; thus, the Church constantly cautions the faithful to be vigilant at all times and to be careful to avoid the occasions in which they may be led astray. It is prudential not to expose one’s self unnecessarily to occasions of possible failure by taking lightly the constant struggle between the flesh and the spirit.

The right to conjugal relationship is ordered by its very nature to the well-being of the spouses because conjugal love is the deliberate directing of oneself to the person of the other and taking responsibility for that person’s well-being.116 Thus, in marriage, there is an intrinsic good,

116 S. Th ., I a II ae , q. 26, a. 4 resp., “Amare est velle alicui bonum.”

155 which is common to the spouses who have equal rights and equal responsibilities to help each other to uphold their dignity as persons with a common destiny. To achieve such common good, the spouses must be capable of giving each other the necessary support, both psychological and physical, as well as moral and spiritual. Yet, the socio-economic impact of HIV/AIDS on individuals and societal institutions threatens marriage in particular, because of its uniqueness and manifold responsibilities that bind two people for life. Thus, in the light of the tremendous psychological, physical, and economic strain that HIV/AIDS can bring to bear on a couple, an obvious question would be whether a seropositive spouse should still insist on the exercise of his conjugal rights.

Maybe a seropositive person has weighed the various risks this condition poses in marrying someone who is HIV-free, but his love for such a person is irresistible and he decides to use the protective means suggested by many today in order to allay infecting the other party.

Thus, the question arises: Is it licit for a seropositive person to contract marriage, having decided to use condoms to reduce the risk of infecting the other spouse? Another angle to this question is whether it is licit for someone who discovers at some point during marriage that he is seropositive to use condoms to reduce the risk of infecting the other spouse. The question of using condoms within marriage also involves Canon Law because it touches on the consummation of the marriage. The Church’s understanding of the consummation of marriage 117 is based on its long history and merits full treatment. However, for brevity, only its salient points will be mentioned in the next chapter. Still, it must be noted that the use of condoms as a means of reducing the risk of infecting a healthy spouse violates the dignity of the human person, as

117 c. 1061 §1.

156 well as the authentic meaning of human sexuality, 118 while not offering full protection from infection. It is a pseudo-preventive means with a failure rate of 10 to 15 percent. To this end,

Ciccone wonders how many people who put on sale a product that results in the death of 10 to 15 percent of consumers would be labeled criminals. 119 Thus, the question of the liceity of the use of condoms within marriage is a valid one.

Another ethical question can be formulated from the point of view of a spouse who is

HIV-free: Is it licit for a healthy person to engage in sexual intercourse with a spouse who is seropositive, knowing that this action poses significant risk to his health? This question is also connected to Canon Law because Church law understands marriage as the totius vitae consortium and the bonum coniugum . Thus, for a healthy spouse to expose himself to that type of risk demonstrates irresponsible behavior, as the spouse endangers not only his health but his very life, given that HIV/AIDS remains an incurable disease. 120 Of course there is a debate concerning the moral species of such sexual act and the degree of possible infection to which a healthy spouse can expose himself or herself. We shall come back to this in the conclusion of this project.

118 John Paul II, Discorso ai Partecipanti alla Conferenza Internazionale Promossa dal Pontificio Consilio per la Pastorale degli Operatori Sanitari , 15 novembre 1989, par. 5; “Alla luce di tale ideale, appare profondamente lesivo della dignità della persona, e perciò moralemente illecito, propugnare una prevenzione della malattia dell’AIDS basata sul ricorso a mezzi e rimedi, che violano il senso autenticamente umana della sessualità, e sono un palliativo per quei disagi profondi, dove è chiamata in causa la responsabilità degli individui e della società: e la retta ragione non può ammettere che la fragilità della condizione umana, anziché motive di maggiore impegno, si traduca in pretesto per un cedimento che apra la via al degrado morale.”

119 Lino Ciccone, “Aspetti etici della prevenzione della infezione da HIV,” Medicina e Morale 2 (1996): 277-78

120 Ciconne, “Aids: problemi etici in ambito coniugale,” 625.

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Human sexuality goes beyond the communion of husband and wife because it is destined to raising new life, owing to its procreative nature. 121 Through human sexuality, men and women participate in the creative work of God, in bringing forth new human beings created in the image and likeness of God. They are called to participate in God’s eternal life. 122 With children, the communion of the spouses gives rise to the community of the “family.” Thus, parents are to regard the transmission of life and the education of those to whom it has been transmitted as their proper task. 123 Yet, it is possible that, in carrying out this task, parents can transmit the virus to their offspring (outside of medical intervention). As a result, the joy and fulfillment the new life brings to parents and to the community would turn to sorrow following the sickness and eventual death of the child. Such death affects both the family and the wider community because the child is an integral part of the community; it is a “particle” of that common good without which the human community breaks down and risks extinction. The life of the child is a gift for its parents, who cannot help but feel its presence, its sharing in their life and its contribution to their common good and to that of the community. 124 Thus, an obvious question seems to arise: Is it licit for a seropositive spouse or a married couple to pursue the conception of a child, knowing that the child could be seropositive? This question challenges the responsible exercise of the conjugal right, which is proper to spouses without jeopardizing the fruit of the very mission

121 HV 11: AAS 60 (1968), 488; FC 32: AAS 74 (1982), 118-20; CCC n. 2366; and David Crawford, “Conjugal Love, Condoms, and HIV/AIDS,” Communio 33 (2006): 508-11.

122 Hanley and de Irala, Affirming Love, Avoiding AIDS, 126.

123 GS 50, AAS 58 (1966), 1071; Abbott, 254.

124 John Paul II, letter to families Gratissimam sane , February 2, 1994, n. 11: AAS 86 (1994) 884: “Eius vita ipsis vitae largitoribus fit donum, qui necessario persentiunt filium adesse eundemque in eorum vita sociari, bonum commune iuvare eorum et familiaris communitatis.”

158 entrusted to them by God—their offspring, which is a gift and also a common good to them and to the wider community.

The last question pertains to whether it is licit for two persons, one or both of whom are seropositive, to contract marriage, having positively renounced the generation of children because of the danger that they could be infected. This question also touches upon Canon Law because, by knowingly avoiding the generation of offspring, the couple negates one of the purposes of marriage, thus invalidating their marriage. 125

The moral-ethical questions that have been outlined above bring out a specific relationship between Moral Theology and Canon Law, because they touch upon major moral principles concerning the use of marriage and the generation of offspring. Such connection has a necessary rapport with the vitae consuetudo intima, which involves the total gift of self to the other party and implies rights and obligations, manifested though ensuring the well-being of the spouses and the procreation and upbringing of children. 126 Consequently, a balanced approach in attempting to find a solution for the HIV/AIDS carriers wishing to exercise their natural right marry would require that Moral Theology informs Canon Law since the law also aims at the salus animarum .

125 c. 1055 §1 and c. 1101 §2. The procreation of offspring is one of the purposes of marriage; it is inherent in marriage ( finis operis ) and is independent of the will or intention of the spouses ( finis operantis ). See Beal, “Marriage [cc. 1055-1165],” 1243.

126 Mario Francesco Pompedda, “Problematiche di Diritto Canonico in Relazione all’AIDS,” in Studi di Diritto Matrimoniale Canonico (Giuffrè Editore, S.p.A. Milano, 2002) 2: 367.

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8. Conclusion

The challenge HIV/AIDS poses to humanity remains real because, three decades after its detection, no cure has been found yet. HIV—a tiny and fragile virus that causes AIDS—is like a

Trojan horse because, once it enters the human body, it is there until death. The virus has every advantage over human beings: because it is a member of the family of retroviruses

(retroviridae ), it cannot be detected by the body’s immune system as a parasite; it has the ability to mutate rapidly, evolving new strains that differ slightly from the infecting virus; and, it can lie latent in the human system for years before manifesting itself as full-blown AIDS, which gradually leads to death. Although HIV/AIDS is a fatal disease, antiretroviral drugs help to reduce the viral load and the viral set point in its carriers. While these drugs have shown remarkable success, preventing MTCT of the virus is still not possible in all cases. The downside of antiretroviral drugs is that up to 50 percent of patients receiving them do not adequately respond to the therapy, as they develop drug resistance and long-term toxicities that beget new health complications.

Although it accounts for only 12 percent of the world’s population, the number of HIV- infected adults and children living in sub-Saharan Africa contributes to the global estimate by 68 percent. This region is the current epicenter of the HIV/AIDS crisis. A demographic concern in sub-Saharan Africa is that 59 percent of the global number of women living with the virus, especially women of childbearing age, resides in the sub-region and South Africa—the nation hardest-hit by the pandemic in the world. In Cameroon, the most affected part of the population is that aged 14-34, and the prevalence is the highest among the military personnel, commercial sex workers, and long-distance truck drivers. Although this age group is the most productive segment of the population, it is also the most skeptical about the reality of HIV/AIDS.

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Furthermore, women aged 15-24 are particularly affected because they are more vulnerable than their male counterparts, and this has repercussions on marriage and family life.

The socio-economic impact of the pandemic on the nation has unfortunate consequences: the progress in extending life expectancy is hindered; small households risk extinction and the future of possible survivors, especially orphans, is very much compromised; the rise in opportunistic diseases, especially tuberculosis, augments the number of people hospitalized and compromises the quality of services available to them; the widespread use condoms has so far not yielded the anticipated results, and rather seems to fuel the spread of the pandemic; and, the stigmatization and discrimination of carriers has compromised the respect for human dignity.

Because AIDS requires life-long care and is thus expensive, its micro-economic effects gradually but steadily affect the economy of the nation. The illness and eventual death of skilled personnel in the various sectors of public life strain the entire economic fabric of the nation and put it on a path of steady and unstoppable decline.

As a fatal sexually transmissible disease, HIV/AIDS raises some fundamental moral-ethical questions with regard to the right of conjugal relationship in marriage, such as how a spouse who is HIV-positive can consummate the marriage without placing the other spouse in an immediate danger of being infected with the virus; whether couples who are HIV/AIDS carriers can meaningfully live in the life-long intimate partnership marriage demands, considering the physical and metaphysical strain the disease places on its carriers and its resultant consequences on the common good of the marriage—a good that is also part of the common good of the wider society; and, how HIV-infected couples can fulfill their noble mission and goal to bring forth children who, most probably, would be infected at birth (without medical intervention), and most

161 of whom would not reach their fifth birthday. 127 Although HIV/AIDS poses pertinent moral- ethical questions regarding the conjugal right and the common good, the central question these concerns pertain to is whether HIV/AIDS carriers can still insist on the exercise of their natural right to marry, or whether that right can be overridden. This is the question we shall investigate in Chapter Four.

127 Barnett and Whiteside, AIDS in the Twenty-First Century , 173.

CHAPTER FOUR

THE RIGHT OF HIV/AIDS CARRIERS TO CELEBRATE MARRIAGE

1. Introduction

The right to marry entails both the right to enter into marriage and the right to choose one’s partner freely. 1 It is not an absolute or unrestricted right because “the right to contract marriage presupposes that one can marry, and one intends to authentically celebrate marriage, that is, to do so in the truth of its essence as it is taught by the Church.” 2 One of the teachings of the Church states that marriage is ordered by its nature to the procreation and education of offspring. Thus, the procreation and education of children are the ends or purposes of marriage.

When a man and a woman constitute themselves as husband and wife, they give and receive each other as spouses, as co-possessors of conjugality which “refers to the acts proper to spouses, and as a consequence to the openness to possible offspring.” 3

Conjugal love, therefore, involves the acceptance of the potential paternity or maternity that the other spouse offers, according to the conciliar teaching, “By their very nature the

1 c. 1058 “Omnes possunt matrimonium contrahere, qui iure non prohibentur.” See also Pontifical Council for the Family, Charter of the Rights of the Family (10-14 December 1998), a. 1a: “Every man and every woman, having reached marriageable age and having the necessary capacity, has the right to marry and establish a family without any discrimination whatsoever; legal restrictions to the exercise of this right, whether they be of a permanent or temporary nature, can be introduced only when they are required by grave and objective demands of the institution of marriage itself and its social and public significance; they must respect in all cases the dignity and the fundamental rights of the person.”

2 Benedict XVI, Address to Tribunal of the Roman Rota on January 22, 2011, under “Zenit,” http://www.zenit.org/article-31543?l=english (accessed January 24, 2011).

3 Bañares, “Marriage,” 3/2: 1042.

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163 institution of matrimony itself and conjugal love are ordained for the procreation and education of children, and find in them their ultimate crown.” 4 The acceptance of the potential paternity or maternity of each spouse rests on the principle that all conjugal acts performed by the spouses must be open to procreation. The Church, therefore, recognizes an inseparable connection between the unitive and the procreative meaning of the conjugal act, which man cannot sever by his own initiative, lest he risks distorting the order in the conjugal relationship established by

God Himself.

Marriage is a community of life and love in the wider community of God’s people, as intended by the Creator. Thus, it affects society in multifaceted ways, calling for full pastoral commitment to its good, because what is injurious to marriage is injurious to society as well.

Today, however, marriage comes under threat from the HIV virus, which is transmissible through sexual intercourse and causes AIDS. In its effort to combat the spread of the pandemic, secular society and some authors advocate practicing “safe sex” through the use of condoms, even though it is known that they are not 100 percent effective and do not cure HIV/AIDS. The magisterium of the Church, on the other hand, advocates abstinence outside of marriage and fidelity within a monogamous union as the only effective means of preventing the transmission of the virus, as it considers the use of condoms morally wrong. Thus, the question arises: “Since

HIV is transmissible through sexual intercourse and the Church teaches that the use of condoms is morally unacceptable, can HIV/AIDS carriers still insist on the exercise of their natural right to marry?”

4 GS 48, AAS 58 (1966),1068; Abbott, 250: “Indole autem sua naturali, ipsum institutum matrimonii amorque coniugalis ad procreationem et educationem prolis ordinantur iisque veluti suo fastigio coronantur.”

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In this final chapter, I shall lay out the Church’s teaching that marriage must be open to procreation as one of the very purposes of marriage. Since this teaching faces the challenge of

HIV that is transmissible through sexual intercourse, I shall present the arguments put forth by secular society and some authors, advocating the use of condoms as a means of combating the pandemic in such circumstances. The Church, however, continues to affirm her position that the use of condoms is morally flawed, as it is essentially contraceptive, maintining that the choice of such an act is unworthy of the human person. Furthermore, the Church buttresses her argument against the use of condoms by emphasizing the importance of a comprehensive understanding of human sexuality, to show that human sexuality seeks interpersonal intimacy between a man and a woman—intimacy that reflects the intimacy of God’s Triune love for His creatures for their good and for the good of the wider community.

The intimate love between a man and a woman in marriage that is expressed sexually entails responsibility on their part, since it affects the life and health of the spouses, their possible offspring and the wider community. Thus, I shall show from moral-ethical perspectives that the adverse effects of HIV/AIDS on the spouses and on possible offspring also adversely affect the society as a whole. These views seem to favor the position that the exercise of the natural right of

HIV/AIDS carriers to marry can be restricted for the common good. Hence, I shall argue that the weight of the moral arguments seems to give local Ordinaries the occasion to exercise the authority to establish appropriate norms in their various territories for the lawful celebration of marriage by seropositive partners.

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2. The Church’s Teaching on the Openness of Marriage to Children

The Church grounds her teaching of the vocation of man and woman on the biblical narrative of their creation in the image and likeness of God, as He called them to existence through love and for love. Since God is love and Trinity, He inscribed in the humanity of man and woman the vocation of love and communion. One way of realizing this vocation is marriage in which a man and a woman commit themselves fully and completely to one another until death.

Such total commitment that is required by conjugal love also corresponds to the demands of fertility as John Paul II stated:

This totality which is required by conjugal love also corresponds to the demands of responsible fertility. This fertility is directed to the generation of a human being, and so by its nature surpasses the purely biological order and involves a whole series of personal values. For the harmonious growth of these values a persevering and unified contribution of both parents is necessary. 5

From the outset of creation, God blessed the vocation of man and woman in marriage by telling them to be fruitful, multiply, fill the earth and subdue it. 6 This blessing is the power of fertility God conferred on the man and the woman.7 It is not something or other added to this power. Indeed, the power of fertility makes the continuance of the species possible, through creation of new generations.

5 FC 11: AAS 74 (1982), 92: “Haec universalitas amore coniugali postulata convenit etiam consciae fecunditatis postulationibus, quae, cum ad hominem generandum dirigatur, superat natura sua ordinem simpliciter biologicum ac complectitur bonorum personalium summam, quae ut convenienter crescat, necessariae sunt continuae concordesque amborum coniugum partes.”

6 Gen 1:22, 28.

7 Claus Westermann, Genesis 1-11: A Continental Commentary, trans. John Scullion (Minneapolis: Fortress Press, 1994), 140 and 160.

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In acknowledging God’s blessing and purpose in man and woman to be fruitful and multiply, the Church calls on couples to see as their “proper mission” the task of the transmission of human life and the upbringing of those it has been given. Thus, children are seen as the

“supreme gift of marriage” and contribute greatly to the good of the parents themselves. Without discounting the other aims of marriage, Gaudium et spes teaches that couples should be ready with stout hearts to cooperate with the love of the Creator and the Savior, who through them will enlarge and enrich His own family day by day. 8

Children are the procreative gift that flows from and manifests the unitive gift of “mutual self-bestowal” that belongs to marriage as characterized by the fruitful self-giving pattern of

Christ’s divine self-gift. 9 Children do not come from outside as something added on to the mutual love of the spouses, but spring from the very heart of that mutual giving, as its fruit and fulfillment. Consequently, Paul VI taught that “each and every marriage act ( quilibet matrimonii usus ) must remain open to the transmission of life.” 10 He further stated:

That teaching, often set forth by the magisterium, is founded upon the inseparable connection, willed by God and unable to be broken by man on his own initiative, between the two meanings of the conjugal act: the unitive meaning and the procreative meaning. Indeed, by its intimate structure, the conjugal act, while most closely uniting husband and wife, capacitates them for the generation of new lives, according to laws inscribed in the very being of man and woman. By safeguarding both these essential aspects, the unitive and the procreative, the conjugal act preserves

8 GS 50, AAS 58 (1966), 1071; Abbott, 254.

9 Matthew Levering, “Pastoral Perspectives on the Church in the Modern World,” in Vatican II: Renewal within Tradition, ed. Matthew L. Lamb and Matthew Levering (New York: Oxford University Press, 2008), 167.

10 HV 11: AAS 60 (1968), 488.

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in its fullness the sense of true mutual love and its ordination towards man’s most high calling to parenthood. 11

This teaching sets forth the Church’s understanding of marriage in which the personalist and the procreative ends are inseparable aspects of marriage; they are internally and intrinsically ordered to establish the conditions for the conception of a new human person.

Today, the personalist and procreative ends of marriage come under threat because the sexually transmissible HIV virus can be transmitted to offspring as well. As noted above, as a means of averting the spread of the virus to an uninfected spouse and to any possible offspring, secular authority as well as some authors, recommend the use of condoms. Thus, in the next section, we shall look briefly at some of the arguments advanced for the licitness of the use of condoms within marriage to prevent transmitting the HIV virus to an uninfected spouse and any possible offspring.

3. The Licitness of the Use of Condoms Within Marriage

The daunting challenge of fighting the spread and consequences of HIV/AIDS has led the governments of many countries to promote the use of condoms. Such governments encourage condom use in order to protect healthy individuals from contracting the virus through intercourse with a partner of unknown HIV status, as well as ensure that those who have been exposed to the

11 HV 12: AAS 60 (1968), 488-89: “Huiusmodi doctrina, quae ab Ecclesiae Magisterio saepe exposita est, in nexu indissolubili nititur, a Deo statuto, quem homini sua sponte infringere non licet, inter significationem unitatis et significationem procreationis, quae ambae in actu coniugali insunt. Etenim propter intimam suam rationem, coniugii actus, dum maritum et uxorem artissimo sociat vinculo, eos idoneos etiam facit ad novam vitam gignendam, secundum leges in ipsa viri et mulieris natura inscriptas. Quodsi utraque eiusmodi essentialis ratio, unitatis videlicet et procreationis, servatur, usus matrimonii sensum mutui verique amoris suumque ordinem ad celsissimum paternitatis munus omnino retinet, ad quod homo vocatur.”

168 virus limit its spread to others. The Church’s prohibition on the use of condoms under any circumstances—even as a protection against the transmission of HIV/AIDS between spouses— has led some members of the Church hierarchy, together with some authors, to dissent from

Church teaching and recommend the use of condoms in such circumstances. According to them, the position of the Church on the way to fight the pandemic is often unrealistic and ineffective. 12

This has led to a casuistry on the justification of the use of condoms by seropositive persons, especially those whose spouses are healthy.

Those who endorse the use of condoms agree that anyone who has been exposed to HIV should take every measure not to bring injury or potential harm to another. However, in marriage, where one or both spouses are seropositive, it may not be possible for them to live in a brother-sister relationship for the rest of their married life. Thus, they argue that it is acceptable for couples to use condoms who wish to continue to express their love sexually. They see that such usage is necessary because sexual love is the right of the spouses and is an essential aspect of fostering and sustaining conjugal love and stability. Furthermore, they maintain that condoms, if properly used, can prevent the transmission of the virus to an un-infected spouse. The use of condoms by infected spouses to prevent the spread of the disease also protects the principle that sex is illicit outside of marriage. 13

Consequently, some advocates of the use of condoms see it as a lesser evil, compared to engaging in sexual activity without minimizing the risks of possible infection that can lead to

12 Benedict XVI, Light of the World: The Pope, the Church and the Signs of the Times – A Conversation with Peter Seewald , trans. Michael J. Miller and Adrian J. Walker (San Francisco: Ignatius Press, 2010), 193.

13 James F. Keenan et al., Catholic Ethicists on HIV/AIDS Prevention (New York: The Continuum International Publishing Group Inc., 2005), 22.

169 immense suffering and loss of life from AIDS. 14 Thus, in their view, it should be tolerated.

Michael D. Place affirms that the traditional position of the toleration of the lesser evil reasoned that, when one tolerates the lesser of two evils, one is favoring what is indeed intrinsically evil.

The argument for this position is that, in doing so, one avoids a greater intrinsic evil. However, tradition insists that one may never intend evil, but merely tolerate it, because one may never directly intend what is intrinsically evil. 15 According to James F. Drane, for an infected person to go on having licit sexual relations, the lesser evil would be protective sex. Moreover, even for unmarried persons, one of whom is infected, it is wrong to have sexual relations without using a condom, because the condom is a lesser wrong than infecting another person with a lethal disease. 16

Other advocates of the use of condoms think the commandment “Thou shall not kill” should be invoked in cases where sexual activity involves a partner who is HIV-positive because of the risk of transmitting the deadly disease, since one has responsibility toward the health and life of another person. 17 Thus, these authors hold that an HIV-positive husband who engages in

14 Albert Rouet, “Le sida interroge la société,” in Commission Sociale de l’Épiscopat, SIDA: La société en question 4ed. (Paris: Bayard Éditions/Centurion, 1996), 194; Pamela Schaeffer, “Condoms Tolerated to Avoid AIDS, French Bishops Say,” National Catholic Reporter 32 (February 23, 1996): 9; NCR Staff and Wire Services , “Church Leaders Mix Condoms and Caveats,” National Catholic Reporter 32 (March 15, 1996): 8; William C. Spohn, “AIDS and the U.S. Catholic Church,” America 158 (February 13, 1988): 144; and “Caution greets Aids statement by French bishops,” The Tablet, February 24, 1996.

15 Michael D. Place, “’The Many Faces of AIDS’: Some Clarifications of the Recent Debate,” America 158 (February 13, 1988): 141.

16 James F. Drane, “Condoms, AIDS & Catholic Ethics: Open to the Transmission of Death?” Commonweal 118 (March 22, 1991): 191.

17 Mike Francis and Ellen Teague, “Vatican cardinal breaks ranks over condoms,” The Tablet, January 25, 2005. See also Austen Ivereigh, “Condom use acceptable to prevent Aids, says Danneels,” The Tablet, January 17, 2004; and Id., “Panorama re-examines Vatican cardinal condom claims,” The Tablet , June 26, 2004. Cardinal Danneels sees

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sexual intercourse with an HIV-free wife without using a condom engages in an act that is

morally and legally equivalent to attempted murder.18

Others take the view that the use of condoms does not contradict the teaching of

Humanae vitae , which states that “each and every marriage act must remain open to the transmission of life,” because the act of using a condom to prevent the spread of a deadly disease is different from the use of a condom as contraception. In fact, these authors think the principle of double effect applies in such cases because the use of a condom is intended to prevent the infection of the other spouse, rather than conception. 19 The act of protecting a partner from

deadly harm, although right, has more than its intended effect, for it prevents conception as well

as transmission of infection. Yet, it is justifiable because the principle has long been acceptable

as licit in certain medical procedures. 20

the non-use of condoms by an infected spouse in marriage as a gravely irresponsible behavior. Bishop Victor Guazzelli, bishop of east London, commented to The Tablet : “It seems to me that if people are set on intercourse they at least have the obligation of not passing on disease or death, even if the only means possible to them is the use of the condom. This seems to be common sense.” See “Caution greets Aids statement by French bishops,” The Tablet, February 24, 1996.

18 Clifford Longley, “The AIDS dilemma,” The Tablet, November 18, 1995.

19 John Touhey, “Methodology or Ideology: The Condom and a Consistent Sexual Ethic,” Louvain Studies 15 (1990): 53-69; Dennis Regan, “Perspectives from Moral Theology,” Dossiers and Documents; The Pandemic of AIDS: A Response by the Confederation of Caritas International (February 1988): 58-67, as cited by James F. Keenan et al., Catholic Ethicists on HIV/AIDS Prevention (New York: The Continuum International Publishing Group Ltd, 2005), 23 especially his footnote 14; and Clifford Longley, “The AIDS dilemma,” The Tablet, November 18, 1995.

20 Drane, “Condoms, AIDS & Catholic Ethics,” 190. Drane gives the example of removing an infected uterus, which may bring permanent infertility that is not directly intended. The direct intention of the surgical procedure is the elimination of disease. He further explains that no medical or surgical procedure can cure AIDS, as it is only possible to prevent its spread. Nonetheless, preventive medicine is as valid as therapeutic medicine and indeed more respectful of the body’s natural mechanisms. He therefore concludes that the condom is not an antiproductive device, but rather serves as preventive medicine.

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James F. Keenan and other ethicists have also argued that, in this time in the AIDS pandemic, the use of condoms is justified, as it is not intended to prevent conception, but rather the transmission of HIV. Their support of the use of condoms by a person who refuses to abstain from casual sex is neither intended to condone their behavior nor promote prophylactic sex. It simply encourages such persons to take some moral responsibility for the lives of others. 21

Indeed, these ethicists maintain that the purpose of condom use is not birth control, but disease prevention. 22

The advocates of the use of condoms seem to be living up to the moral obligation to do everything possible to safeguard and promote the health and life of people. To oppose such an action would lead one to wonder whether the Church is aware of the magnitude of the HIV/AIDS pandemic and its catastrophic consequences for humanity. Is the Church au courant with the facts about condoms, which indicate that they actually help when properly used and can reduce the incidence of the pandemic, 23 especially within marriage where sexual intercourse plays an essential part in marital communion and stability? The Church, as mother, teacher and the custodian of marriage, knows and promotes what is required for marital harmony. This implies that her position on the use of condoms is founded on her understanding of marriage. Thus, in the next section, we shall present the Church’s position on the illicitness of the use of condoms

21 For various contributions in this regard, see James F. Keenan et al., Catholic Ethicists on HIV/AIDS Prevention (New York: The Continuum International Publishing Group Ltd, 2005); and Kevin T. Kelly, New Directions in Sexual Ethics: Moral Theology and the Challenge of AIDS (London: Geoffrey Chapman, 1999), 197-98.

22 David F. Kelly, Critical Care Ethics: Treatment Decisions in American Hospitals (Kansas City, MO: Sheed and Ward, 1991), 204-208; and Drane, “Condoms, AIDS & Catholic Ethics,” 189.

23 Kelly, New Directions in Sexual Ethics, 200-202; and Jon Fuller, “AIDS Prevention: A Challenge to the Catholic Moral Tradition,” America 175 (1996): 13-20.

172 within marriage, even if such use is motivated by the desire to prevent a life-threatening disease such as HIV/AIDS.

4. The Church’s Teaching on the Use of Condoms Within Marriage

Before we delve into the morality of the use of condoms within marriage, it is important to discuss briefly the misnomer “condoms and the prevention of the spread of HIV/AIDS.” This clarification is necessary because the proponents of the use of condoms often use the verb “to prevent” to market the idea that condoms actually “prevent” the spread of HIV/AIDS, while the reality is different. In addition, the term “usage” is a subtle message that anyone who opposes the use of condoms to fight the pandemic, including the Church, is standing in the way of millions of

HIV/AIDS carriers from accessing the needed help science currently offers as a means of addressing their ailments. Some ethicists actually accuse those who view the use of condoms as a preventive measure, aimed at curbing the spread HIV/AIDS, as morally wrong to be fostering a

“fundamentalist ethics.” 24

The use of condoms is often described and presented as one of the means of “preventing” the spread of HIV and therefore a practice that should be promoted. From purely scientific perspective, in relation to the prevention of infection, the word “prevention” is inappropriately used in this context because the condom is not a “therapeutic means,” in a sense that there is no therapeutic benefit to its usage. Actually, in using condoms, the prevention is directed toward the ill person rather than against the disease. 25 In the medical field, there are at least three levels of

24 Drane, “Condoms, AIDS & Catholic Ethics,” 192.

25 Elio Sgreccia, “AIDS and Responsible Procreation,” Dolentium Hominum 13 (1990): 261.

173 intervention that can be adopted to prevent the spread of disease: (1) primary intervention , which is directed toward all of the population at risk, with the aim of obstructing the establishment of the disease; (2) secondary prevention, which consists of avoiding the emergence of a recurrence of the disease; and (3) tertiary prevention , which involves implementing appropriate and effective treatment aimed at limiting the damage caused by a disease. 26 The use of condoms does not qualify as a therapeutic means in any of these categories considered in relation to other infectious diseases. The use of condoms offers no guarantee with regard to safety, owing to a failure rate of 10 to 15 percent. Moreover, the therapeutic principle requires that a method be used in the treatment of a disease, only if no viable alternative exists. However, in the case of

HIV/AIDS, abstinence from sexual intercourse is not only viable, but much more effective alternative, even if it requires a considerable effort and self-discipline. 27

To be worthy of the human person as well as be truly effective, any HIV prevention program must present correct and complete information and wholesome education that will lead to a transparent and joyous rediscovery of the spiritual value of self-giving love as the fundamental meaning of human existence . Such initiative will enable adolescents and youth to find sufficient strength to surmount high-risk behaviors. 28 Educating a person to view and demonstrate his or her sexuality in a serious and serene way and preparing for responsible and faithful love are essential steps towards full personal maturity. Thus, John Paul II emphatically

26 Sgreccia, “AIDS and Responsible Procreation,” 262.

27 Ibid., 263.

28 John Paul II, “The Church in the Face of the Twofold Challenge of AIDS: Prevention in Keeping with the Dignity of the Human Person and Truly Solidary Care,” Dolentium Hominum 13 (1990): 7; Kelly, New Directions in Sexual Ethics , 204; and Richard A. McCormick, “AIDS: The Shape of the Ethical Challenge,” America 158 (Feb. 13, 1988): 149-50, stresses that education and behavior modification are the only known preventions of HIV/AIDS.

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stated that methods aimed at the prevention of the spread of HIV “which instead promote

egoistic interests, deriving from considerations that are incompatible with the fundamental values

of life and love, can only end up being contradictory as well as illicit, merely circling the

problem without resolving it at its roots.” 29 Indeed, promoting the use of condoms as a means of preventing the spread of HIV/AIDS is misguided to say the least. Therefore, what is actually the

Church’s teaching regarding the illicit use of condoms within marriage?

The Church considers the use of condoms within marriage to be morally wrong because they are contraceptive in nature. The Church teaches that “every action which, whether in anticipation of the conjugal act, or in its accomplishment, or in the development of its natural consequences, proposes, whether as an end or as a means, to render procreation impossible” is intrinsically evil ( intrinsece malum ). 30 Intrinsically evil acts are always and per se evil, owing to their very object and quite apart from ulterior intentions of the one committing them and the circumstances. 31 The proponents of the use of condoms within marriage anchor their arguments

29 John Paul II, “The Church in the Face of the Twofold Challenge of AIDS,” 7.

30 HV 14: AAS 60 (1968), 490: “Item quivis respuendus est actus, qui, cum coniugale commercium vel praevidetur vel efficitur vel ad suos naturales exitus ducit, id tamquam finem obtinendum aut viam adhibendam intendat, ut procreatio impediatur.” See also CCo 53 and 54: AAS 22 (1930), 559; Pius XII, Allocutio Vegliare con sollecitudine , October 29, 1951, para. 24: AAS 43 (1951) 843. In para. 25, Pius XII further states: “Questa prescrizione è in pieno vigore oggi come ieri, e tale sarà anche come domani e sempre, perchè non è un semplice precetto di dirrito umano, ma l’expressione di una legge naturale e divina;” MM 195 and 196: AAS 53 (1961), 447; FC 32: AAS 74 (1982), 118-120; GS 51, AAS 58 (1966), 1072-73; Abbott, 255-56; and CCC n. 2370.

31 John Paul II, post-synodal apostolic exhortation Reconciliatio et Paenitentia , December 02, 1984, n. 17: AAS 77 (1985) 221: “quaedam peccata, quod ad eorum materiam attinet, esse intrinsecus gravia et mortalia. Sunt enim actus, qui per se ipsos et in se ipsis, extra adiuncta, propter obiectum suum semper sunt graviter illicit” (emphasis in the original); Id., Address to Moral Theologians, April 10, 1986, n. 3: AAS 78 (1986) 1100; Paul VI, Address to Members of the Congregation of the Most Holy Redeemer, September 1967, para. 7: AAS 59 (1967) 962: “Absit ut christifideles in diversam opinionem inducantur, quasi ex Concilii magisterio nonulla hodie liceant, quae antea Ecclesia intrinsece mala declaravit;” and GS 27, AAS 58 (1966), 1047-1048; Abbott, 227-27. In treating the respect due to the human person, the Council Fathers list a number of abuses against human life, integrity or dignity,

175 on the purpose of their use in a particular circumstance within marriage—to prevent exposing a spouse to a life-threatening disease. Thus, the intention of the spouse using a condom seems to be the justifying motive for the licitness of the act. Still, intention alone does not constitute a human act because the constitutive elements of the morality of human acts are “the object chosen, the end in view or intention and the circumstances of the action.” 32 The morality of acts is defined by the relationship of man’s freedom with the authentic good. Thus, the act is morally good when the choices of freedom are in conformity with man’s true good and express the voluntary ordering of the person towards his ultimate end—God himself, the supreme good in whom man finds his full and perfect happiness. 33 Hence, the morality of an act cannot be determined solely on the good intention. The circumstances or intention of the acting person can never transform an act intrinsically evil by virtue of its object, such as the use of condoms, into an act “subjectively” good or defensible—a choice to reduce the possibility of infecting a healthy spouse with HIV. What then is the Church’s position with regard to invoking the principle of the lesser evil or of double effect to justify the use of condoms within marriage?

which poison human society and are a great dishonor to the Creator. See also Servais Pinckaers, Morality: The Catholic View, trans. Michael Sherwin (South Bend, Indiana: St. Augustine Press, 2003), 52-55, where the author discusses the “Question of Intrinsically Evil Acts and Universal Laws”; and Id., The Pinckaers Reader: Review in Thomistic Moral Theology, ed. John Berkman & Craig Steven Titus (Washington D.C.: The Catholic University of America Press, 2005), 185-235, which gives “A Historical Perspective on Intrinsically Evil Acts.”

32 CCC nn 1750-1756. See VSp 78 and 79: AAS 85 (1993) 1196-98; and Joseph Howard, “The Use of Condoms for Disease Prevention,” The Linacre Quarterly 63 (1996): 27.

33 VSp 72: AAS 85 (1993), 1190.

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a) The Toleration of the Use of Condoms as the Lesser Evil

Those who invoke the principle of the toleration of the lesser evil to justify the use of condoms within marriage as a means to reduce HIV infection ground their justification on their success rate, even though condoms have been proven not to be 100 percent effective. However, they maintain that someone who has been exposed to HIV and is determined to have sexual intercourse ought to use condoms to avoid the greater evil of spreading the disease. Does the principle of the toleration of the lesser evil justify such reasoning and is it even applicable in this case?

In concrete situations of moral decision-making, the principle of the toleration of the lesser evil has application where it seems that it is unavoidable that one’s choice will have evil consequences as well as good ones. In such situations, one can “tolerate” evil consequences of a choice, if the choice itself is either morally good or morally neutral, and if the evils are proportionate to the good sought. 34 This principle will apply in the case where, in order to save a child trapped in a smoking car, you shatter the windshield. One “tolerates” the evil of breaking the windshield in pursuit of the good of saving life. The evil one tolerates in pursuit of a good is not a “moral evil” but a “physical evil”—the destruction of a vehicle. The use of condoms within marriage seeks a moral good—the preservation of the life of the uninfected partner. On the other hand, it is also an immoral means because it violates a good to which the sexual act is ordained—the good of procreation. 35 Let us suppose the spouses using the condoms are above childbearing age or they limit using them only during the infertile periods of the woman. In these

34 Janet T. Smith, “The Toleration of Evil: The Critical Footnote Seven of the USCC’s ‘The Many Faces of AIDS’,” Fellowship of Catholic Scholars Newsletter 11 (1988): 9.

35 Ibid.

177 two cases, as there is no possibility of procreation, the use of condoms is restricted to the preservation of the life of the healthy partner. These two examples touch on the “procreative meaning” of the conjugal act that Humanae vitae clearly explains. As previously noted, there is an inseparable connection between the unitive and the procreative meaning of the conjugal act, which is willed by God and man cannot break it of his own initiative. 36

Another understanding of the principle of the toleration of the lesser evil is that one determines the morality of an action by balancing the goods and evils likely to result from an action or a series of actions. Those who adhere to this understanding of the principle calculate the sum total of evil and good likely to result from different lines of actions. More specifically, if one must carry out an action known to have evil consequences, if these evil consequences are less severe or harmful than those one would avoid through the choice of the action, performing such an action is justified. Therefore, the claim in this instance is that one must chose the lesser evil in pursuit of a greater good.

The balancing of evils following this understanding of the principle of the lesser evil would be acceptable in relation to physical evils. However, it also involves the balancing of moral evils, as those who advocate such a balancing also generally claim that there are no intrinsically evil actions. The proponents of this line of thought permit the deliberate choice of evil (referring to it as a pre-moral or ontic evil)37 to achieve some good. Thus, for those that take this view, contraception and masturbation would not be moral evils, but rather pre-moral or ontic evils. Consequently, those who ascribe to such an understanding of the principle of the toleration

36 HV 12: AAS 60 (1968), 488-89.

37 VSp 75: AAS 85 (1993), 1193-94.

178 of the lesser evil invoke it to justify the use of condoms by an infected spouse within marriage.

Yet, this is not the understanding of the principle of the toleration of the lesser evil in classical moral theology, which is grounded on the principle that it is never right to deliberately choose to do evil, even if the intent is to avoid evil. Here, Paul VI states clearly that to justify conjugal acts made intentionally infecund, one cannot invoke the lesser evil as a valid reason. He states:

To justify conjugal acts made intentionally infecund, one cannot invoke as valid reasons the lesser evil, . . . In truth, if it is sometimes licit to tolerate a lesser evil in order to avoid a greater evil or to promote a greater good, it is not licit, even for the gravest reasons, to do evil so that good may follow there from, that is, to make to the object of a positive act of the will something which is intrinsically disorder, and hence unworthy of the human person, even when the intention is to safeguard or promote individual, family or social well-being. 38

The choice of the use of condoms to reduce infecting an uninfected spouse is an evil choice and one cannot invoke the principle of the toleration of the lesser evil in such situations. Still, can one invoke the principle of Double Effect, which is also referred to as an Unintentional Side

Effect?

b) Contraception – An Unintentional Side Effect (The Principle of Double Effect)

Some of those who argue for the use of condoms by an infected spouse maintain that “a married man who is HIV-infected and uses the condom to protect his wife from infection is not acting to render procreation impossible, but to prevent infection. If conception is prevented also,

38 HV 14: AAS 60 (1968), 490: “Neque vero, ad eos coniugales actus comprobandos ex industria fecunditatae privatos, . . . Verum enimvero, si malum morale tolerare, quod minus grave sit, interdum licet, ut aliquod maius vitetur malum vel aliquod praestantius bonum promoveatur, numquqm tamen licet, ne ob gravissimas quidem causas, facere mala ut eveniant bona: videlicet in id voluntatem conferre, quod ex propria natura moralem ordinem transgrediatur, atque idcirco homine indignum sit iudicandum, quamvis eo consilio fiat, ut singulorum hominum, domesticorum convictuum, aut humanae societatis bona defendantur vel provehantur.”

179 this will be an unintentional side-effect and will not shape the moral meaning of the act as a contraceptive act.” 39 Indeed, the claim that the intention of one couple in using the condom to prevent infection is different from that of another trying to avoid conceiving a child is valid.

Clearly, the goals these couples are trying to achieve through using condoms are different. 40 Still, to maintain that, in the process of using condoms, if conception is prevented, it will be an unintentional side-effect and will not shape the moral meaning of the contraceptive act seems to call for closer examination of such a position.

The first point is that such reasoning centers the morality of the use of condoms on contraception alone. In reality, the issue at stake is the relation between the use of condoms and the conjugal act and chastity, which we shall examine later in this section. Secondly, I am of the view that the notion of double effect is at play in the background of this type of reasoning, which can only be possible if one believed that the use of condoms was not an intrinsically evil act 41 — an act that may be absolutely prohibited beyond the question of harm. Concerning intrinsically evil acts, while a good intention or particular circumstances can diminish their evil, it will never

39 Martin Rhonheimer, “The truth about condoms,” The Tablet , July 10, 2004. See Michel Nader, “Fighting AIDS In A Society Where Egyptians Don’t Talk About It” in Catholic Ethicists on HIV/AIDS Prevention , ed. James F. Keenan et al. (New York: The Continuum International Publishing Group Inc., 2005), 157: “The intention and the objective of this couple’s actions are directed to protect their lives; they are not for contraceptive purposes. Even if contraception is the foreseen consequence of the use of condoms, the aimed-at object of the protection of life has without any doubt a greater beneficial effect. Moreover, to advocate abstinence as the unique method of AIDS protection for the couple could hurt their love in its greatest and most intimate expression, and condemn them to neuroses and their marriage to dissolution.”

40 See Touhey, “Methodology or Ideology,” 53-69. Touhey argues that it is possible to use condoms with the intention to protect one’s health without the direct intention to impede the conception of a possible life, whether as an end or a means and that this is consistent with the teaching of Humanae vitae .

41 George V. Lobo, Guide to Christian Living: A New Compendium of Moral Theology (Westminster, Maryland: Christian Classics, Inc., 1991), 350.

180 be eliminated from such acts. They remain “irremediably” evil acts, per se and in themselves. As such, they cannot be ordered to God and to the good of the person. In this regard, John Paul II states:

[A]n intention is good when it has as its aim the true good of the person in view of his ultimate end. But acts whose object is “not capable of being ordered” to God and “unworthy of the human person” are always and in every case in conflict with that good. Consequently, respect for norms which prohibit such acts and oblige semper et pro semper , that is, without any exception, not only does not inhibit a good intention, but actually represents its basic expression. 42

In stating the following, the Catechism of the Catholic Church also presents the same teaching that one may not evaluate the morality of an act based on the intention of the agent alone:

It is therefore an error to judge the morality of human acts by considering only the intention that inspires them or the circumstances (environment, social pressure, duress or emergency, etc.) which supply their context. There are acts which, in and of themselves, independently of circumstances and intentions, are always gravely illicit by reason of their object; such as blasphemy and perjury, murder and adultery. One may not do evil so that good may result from it. 43 While the subjective intention of the couple using a condom (finis operantis/agentis ) may not be contraceptive, their objective intention ( finis operis/actus ) is, because they are choosing to alter the finality of the sexual act, an act that in itself is apt for generation. Thus, the subjective intention of the couple is at variance with the objective intention by misdirecting the inherent

42 VSp 82: AAS 85 (1993), 1199: “Ceterum bona est intentio, cum ad verum personae bonum tendit, respectu finis eius ultimi. Actus vero, quorum obiectum ad Deum ‘ordinari non potest’ atque est ‘persona humana indignum’, eiusmodi bono semper utcumque adversantur. Propterea observantia normarum, quae eiusmodi actus prohibent atque semper et pro semper vim cogendi habent, seu sine ulla exceptione, non modo rectam intentionem non minuit, sed omnino fundamentalem eius constituit signifcationem.”

43 CCC n. 1756.

181 ordering of sexual intercourse the couple engages in. 44 Therefore, it runs counter to the teaching of Humanae Vitae, which states that “each and every marriage act ( quilibet matrimonii usus ) must remain open to the transmission of life.” 45 For any act to be morally good, the subjective intention of the agent must agree with the objective one, as was taught by the Fathers of the

Second Vatican Council:

Therefore when there is question of harmonizing conjugal love with the responsible transmission of life, the moral aspect of any procedure does not depend solely on sincere intentions or on an evaluation of motives. It must be determined by objective standards. These, based on the nature of the human person and his acts, preserve the full sense of mutual self-giving and human procreation in the context of true love. 46 The good intention of an HIV-infected spouse to use a condom to reduce the possibility of infecting a healthy spouse does not transform the sexual intercourse performed using a condom into a licit act, as condom is an artificial form of contraception and renders the act evil in itself.

Furthermore, one cannot speak of the contraceptive effect of the condom as praeter intentionem (“beside the intention” or “outside the intention” or “beyond the intention”) because the contraceptive effect of the condom is an essential component of its use. In other words, the choice of the use of the condom is implicit in the definition of the object of the contraceptive choice. Smith rightly explains:

44 Benedict Guevin and Martin Rhonheimer, “On the Use of Condoms to Prevent Acquired Immune Deficiency Syndrome,” The National Catholic Bioethics Quarterly 5 (2005): 39.

45 HV 11: AAS 60 (1968), 488: “ ut quilibet matrimonii usus ad vitam humanam procreandam per se destinatus permaneat .” (emphasis in the original) See also CCo 54: AAS 22 (1930), 560; and Pius XII, allocutiones, Vegilare con sollecitudine , October 29, 1951, para. 23: AAS 43 (1951) 843.

46 GS 51, AAS 58 (1966), 1072; Abbott, 256: “Moralis igitur indoles rationis agendi, ubi de componendo amore coniugali cum responsabili vitae transmissione agitur, non a sola sincera intentione et aestimatione motivorum pendet, sed obiectivis criteriis, ex personae eiusdemque actuum natura desumptis, determinari debet, quae integrum sensum mutuae donationis ac humanae procreationis in contextu veri amoris observant.”

182

[E]ven though something is not intended as the end of the agent, the finis operantis , if it is chosen as a means to the end of the agent it too is an essential component of the act and enters into the moral evaluation of the action. It is “beside” the primary intention of the agent but it nonetheless has its own telos or end or meaning, and, insofar as it is chosen as an essential element of the larger action its inherent telos is part of that action: it is not undertaken per accidens but is essential to the action. 47 It therefore seems to be morally incorrect to invoke the Principle of Double Effect to justify the use of condoms by couples to prevent transmitting HIV infection because, in order to use the principle correctly, four conditions are required: 48

1. The directly intended object of the act must be good and not evil;

2. The good and evil effect must spring from the same action in a simultaneous way;

3. The agent may not intend or approve the foreseen evil effect;

4. There must be a proportionately just or grave reason to permit the foreseen evil effect.

The choice to use condoms by an HIV-infected spouse to protect an uninfected partner is an essential element of the choice to use condoms during heterosexual intercourse and is therefore morally wrong. Church teaching maintains that the end does not justify the means; thus, to use condoms during sexual intercourse with the intent to reduce the likelihood of infecting a spouse is employing an evil means to achieve a good end. Consequently, the act remains evil. Whether the couple is using condoms to reduce HIV transmission or the possible conception of a child, the goal is actually the same. Mark Johnson elaborates on this argument:

47 Smith, “The Morality of Condom Use by HIV-Infected Spouses,” 18.

48 Pietro Palazzini, Dictionary of Moral Theology , trans. Henry J. Yannone (Westminster, Maryland: The Newman Press, 1962), 448; Lobo, Guide to Christian Living , 349-50; and David Bohr, Catholic Moral Tradition: In Christ, A New Creation – Revised (Eugene, Oregon: Wipf & Stock Publishers, 2006), 226-27.

183

True enough, each couple engages in certain behavior in order to attain a certain goal, and the goals are different: preventing pregnancy on the one hand, avoiding HIV transmission on the other. Yet when we examine the behavior each couple performs in order to attain their remote goal, we see that that behavior is exactly the same: the use of a condom in order that the ejaculation that is the immediate goal of the sex act from the man’s perspective not enter the vagina, the ejaculate’s proper receptacle. This is the proximate intention of each couple, and it is identical. And this identical proximate intention is the means by which each couple attains to its remote goal. 49

Thus, the proximate intention, the direct object of the act of using condoms either to reduce

HIV transmission or pregnancy, is equally morally wrong because, in a voluntary sex act, the ejaculation is not deposited in its proper receptacle. This contradicts the entire purpose of the intercourse—its proper deposition. 50 Thus, the use of condoms cannot be differentiated from the use of other contraceptive devices—diaphragms, spermicidal foams, jellies, et cetera. This prompts the question—does this presentation of human sexual morality not seem to lean toward physicalism, as some authors maintain, 51 thereby reducing the morality of an action to the teleology of the sexual organs? This leads us to the discussion of whether human sexual morality is physicalist or not.

49 Mark A. Johnson, “The Principle of Double Effect and Safe Sex in Marriage: Reflections on a Suggestion,” Linacre Quarterly 60 (1993): 86-87. (emphasis in the original)

50 Ibid., 87.

51 Kelly, Critical Care Ethics , 93-96.

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c) Condoms and the Physical Characteristics of the Sexual Act

The use of condoms in marriage is not only morally wrong because these devices are essentially contraceptive, but also because their usage collides with the physical characteristics of the conjugal act that need to be respected in order for a sexual act within marriage to be moral. 52 If that were not the case, then it would be licit for couples who have passed childbearing age and those who are sterile to use condoms to reduce the transmission of HIV. As nature offers no possibility for such couples to bring forth any offspring, their use of condoms is not contraceptive, but rather negates the consummation of the marriage based on the understanding of the Church. In her view, sexual intercourse is an intimate act that makes the husband and wife one flesh , the type of act that is per se apt for the generation of children. 53 Of course, spouses can reach mutual agreement not to consummate their marriage. However, the issue here is that both parties should marry with the common understanding of what married life entails.

Complete consummation of marriage entails that the man emits an ejaculate within the vagina of the woman. 54 The character of the semination within the vagina (seminatio intra vaginam ), as understood in the Decree of the Doctrine for the Faith issued in 1977, 55 is the ejaculation of seminal fluid, whether it contains sperm or not. Therefore, for a sexual act within

52 Urbano Navarrete, “On the Decree of the Congregation for the Doctrine of the Faith Regarding Male Impotence,” National Catholic Bioethics Quarterly 6 (2006): 734.

53 c. 1061 §1: “Matrimonium inter baptizatos validum dicitur … ratum et consummatum, si coniuges inter se humano modo posuerunt coniugalem actum per se aptum ad prolis generationem, ad quem natura sua ordinatur matrimonium, et quo coniuges fiunt una caro;” and CCC n. 2366.

54 The extensive discussion on the requirement of semen produced in the testicles as a requisite for consummation to be complete is beyond the scope of this project.

55 Congregation for the Doctrine of the Faith, Decretum circa impotentiam quae matrimonium dirimit , May 13, 1977, n. 2: AAS 69 (1977) [hereafter CDF] 426: “utrum ad copulam coniugalem requiratur necessario eiaculatio seminis in testiculis elaborati.”

185 marriage to be moral, it is essential that the man is capable of sustaining an erection and ejaculating within the vagina of the woman. Thus, the man who wears a condom shields off his penis from having any direct contact with the woman’s vagina, preventing the ejaculate from reaching its intended destination. Such behavior is incompatible with the nature of the conjugal act because it severs the unitive from the procreative dimension of the act and is therefore morally wrong. It modifies the physical characteristics of the conjugal act as designed by God. 56

Still, as we questioned earlier, is such reasoning on sexual morality not tainted with physicalism?

Physicalism identifies moral laws with biological norms. The proponents of this theory accuse the Church for absolutizing the physical laws of biology, especially in the area of sexual morality, instead of leaving these laws for man to decide. In his encyclical letter Veritatis splendor , John Paul II rejects physicalism. 57 Without discussing physicalism in depth here, for brevity, it suffices to note that the human body is one unit—physical and spiritual—and only the whole person is a reflection of Divine Reason. Thus, we cannot view a person simply as a functioning physical machine without its spiritual aspect. The functioning of the biological laws in the human person demonstrates the mind of Divine Reason, the mind of God and thus has to be respected. Consequently, the frustration of the physical characteristics of the proper conjugal act by the use of condoms renders the sexual act immoral.

The use of condoms violates the authentically human sense of sexuality and harms the dignity of the human person; it leads to the loss of respect and promotion of sexuality in its truly and fully human dimension. As a result, sexuality is used as merely an object. Indeed, the use of

56 Navarrete, “On the Decree of the Congregation,” 735.

57 VSp 47-50: AAS 85 (1993), 1171-1174.

186 condoms impoverishes, or rather empties, conjugal love of its authentic meaning. It robs the spouses of the responsibility of their acts toward each other and toward any possible offspring, and thereby frustrates the promotion of the common good.

The divine plan for man—a real, concrete, historical being—requires him to live in conformity with his transcendent dignity as a person because each individual is included in the mystery of Redemption and his vocation is God Himself. 58 Man does this through the free gift of self, enabled by his capacity for transcendence. Consequently, if he fails to transcend himself and to live the experience of self-giving, man would alienate himself. The purpose of one’s existence should be the formation of an authentic human community oriented towards his final destiny,

God. 59 The experience of self-giving in marriage oriented towards man’s final destiny can only be fully realized and cherished through a veritable understanding of human sexuality and its purpose in the divine plan. Such understanding is important because the ius connubii is not to be interpreted simply as a right to freedom without taking into account the truth of marriage and family that is contradicted by the use of condoms. The ius connubii is not a free exercise of sexuality, but the right to contract marriage in the sense that involves the whole person—body, affections and spirituality. 60 Thus, in the next section, we shall look at human sexuality as a gift that has value, in order to clarify the role of authentic love in human existence. Moreover, this discussion is pertinent to the debate whether HIV/AIDS carriers can insist on the exercise of the ius connubii .

58 CCC n. 2244.

59 John Paul II, encyclical letter Centesimus annus , May 01, 1991, n. 41: AAS 83 (1991) 844-45.

60 Héctor, Riconoscimento e tutela dello “Ius Connubii” , 387. See also Benedict XVI, Light of the World , 193.

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5. Human Sexuality as Gift and Value

Every person, made in the image and likeness of God, is “called to live in a communion of love and, in this way, to mirror in the world the communion of love that is in God, through which the Three Persons love each other in the intimate mystery of the one divine life.” 61 In creating them male and female, God expresses the unity of man and woman in a common humanity (creatos in communi humana natura ), which is a sign of interpersonal communion that is also marked by a certain likeness to the divine communion ( communio ). 62 The reflection of divine communion and love in man and woman gives special meaning and purpose to human sexuality.

Human sexuality is not something purely biological; rather, it concerns the intimate nucleus of the person. It is a fundamental component of personality—one of its modes of being, of communicating with others, of feeling, of expressing and of living human love. 63 “It is, in fact, from sex that the human person receives the characteristics which, on the biological, psychological and spiritual levels, make that person a man or a woman, and thereby largely condition his or her progress towards maturity and insertion into society.” 64 Since man is a unified totality of body and spirit, his body reveals and expresses the person and “contributes to

61 John Paul II, apostolic letter Mulieris dignitatem , August 15,1988, n. 7: AAS 80 (1988) 1665: “vocatos esse ad vivendum in amoris communione sicque ad indicandam communionem amoris, quae in Deo est, cuius virtute tres Personae amant inter se in intimo unicae vitae divinae mysterio .”

62 MD 7: AAS 80 (1988), 1665.

63 Congregation for Catholic Education, Educational Guidance in Human Love: Outlines for Sex Education, November 1, 1983, n. 4.

64 CDF, Declaration on Certain Questions Concerning Sexual Ethics , December 29, 1975, n. 1: AAS 68 (1976) 77: “Ac revera, a sexu eae profluunt notae peculiares, quae in regione biologica, psichologica et spirituali personam ipsam efficiunt marem ac feminam, quaeque propterea plurimam vim ac momentum habent ad explendam singulorum hominum maturitatem ad eosque societati inserendos.”

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revealing God and his creative love, in as much as it manifests the creatureliness of man and

woman whose dependence bestows a fundamental gift, which is the gift of love.” 65 Through its sexual nature, the body expresses the vocation of man and woman to reciprocity, which is to love and to bestow the mutual gift of self. 66 This mutual gift of self in love reflects the common personality that characterizes all human beings.

Human sexuality is a good because of love as its intrinsic end; it conveys love through donation and acceptance; it promotes love by giving and receiving. At the center of sexuality is

“gift” because “human life is a gift received in order then to be given as a gift.” 67 Such “gift- giving” is especially evident in marriage where the spouses exist “with” and “for” each other and their married love is fulfilled in openness to the other person and in self-giving, taking the form of a total gift that belongs to this state of life.68 In married love, and to this love alone, belongs

sexual giving, “realized in a truly human way only if it is an integral part of the love by which a

65 Congregation for Catholic Education, Educational Guidance in Human Love , n. 23.

66 John Paul II, Man and Woman He Created Them: A Theology of the Body , trans. Michael Waldstein (Boston: Pauline Books and Media, 2006), 14:4, 183: “Exactly through the depth of that original solitude, man now emerges in the dimension of reciprocal gift, the expression of which – by that vey fact the expression of his existence as a person – is the human body in all the original truth of its masculinity and femininity. The body, which expresses femininity ‘for’ masculinity and, vice versa, masculinity ‘for’ femininity, manifests the reciprocity and the communion of persons. It expresses it through gift as the fundamental characteristic of personal existence.”

67 EV 92: AAS 87 (1995), 506: “vitam humanam idcirco dono accipi ut vicissim donetur.”

68 The Pontifical Council for the Family, The Truth and Meaning of Human Sexuality: Guidelines for Education within the Family (Città del Vaticano: Libreria Editrice Vaticana, 1995), n. 12. In the consecrated life and in every condition and state of life, self-giving is sustained by God’s grace through which individuals become partakers of the divine nature and are called to live the supernatural communion of love together with God and with their brothers and sisters.

189 man and a woman commit themselves totally to one another until death.” 69 Such a permanent commitment of love unto death mirrors the divine love itself for humanity that endures forever.

Conjugal love that leads the spouses to reciprocal “knowledge” and makes them “one flesh” does not end with the couple, because it makes them capable of the greatest possible gift—the gift by which they become cooperators with God for giving life to a new human person. The mutual gift of self is tied to the order of creation, to fecundity and to the transmission of life. Thus, spouses are called to be faithful to this purpose, as “love and fecundity are meanings and values of sexuality which include and summon each other in turn, and cannot therefore be considered as either alternatives or opposites.” 70 They are aspects of the same reality.

When spouses give themselves to each other, they do so with the reality of children, who are a living reflection of their love, a permanent sign of conjugal unity and a living and inseparable synthesis of their being a father and a mother. 71 This is the meaning and purpose of human sexuality that is realized in a covenant relationship of marriage. Human sexuality lived in this way necessarily leads man to live his vocation in truth, as a person whose roots are in the

Spirit, God—man’s ultimate end. Human sexuality experienced in a covenant relationship of marriage that contributes effectively to fostering the well-being of the spouses and the common

69 FC 11: AAS 74 (1982), 92 ““Sexualitas modo vere humano expletur tantummodo, si est pars complens amoris, quo vir et femina sese totos mutuo usque ad mortem obstringunt”; The Pontifical Council for the Family, The Truth and Meaning of Human Sexuality, n. 3; and U.S. Bishops’ Meeting, “Called to Compassion and Responsibility,” 427.

70 Congregation for Catholic Education, Educational Guidance in Human Love , n. 32.

71 FC 14: AAS 74 (1982), 96: “Ita profecto coniuges, inter se dediti, ultra se donant filium ipsum, sui viventem amoris imaginem, perpetuum unitatis coniugalis signum necnon comprehensionem vivam et indissolubilem sui status, ex quo sunt pater et mater.” See also HV 8: AAS 60 (1968), 485-86: “Quocirca per mutuam sui donationem, quae ipsorum propria est et exclusoria, coniuges illam persequuntur personarum communionem, qua se invicem perficiant, ut ad novorum viventium procreationem et educationem cum Deo operant socient.”

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good involves responsibility on the part of the spouses. In order to elucidate these points further,

an examination of sexual responsibility in marriage in the light of the responsible exercise of the

ius connubii is given in the next section.

6. Sexual Responsibility in Marriage

Marriage is a social concern; it is an institution because it is established in accordance with the objective order of justice. 72 Justice enables each spouse to give the other his or her due

for their mutual well-being and for the good of society. Society must recognize the relationship

between a man and a woman in marriage because the acts that stem from their union also affect

the society. Consequently, society expects spouses to live in accordance with the objective

demands of the institution of marriage, as the repercussions of failure would affect them, as well

as the society. However, the sexual relationship between a man and a woman in marriage

remains an intimate relationship and its normal consequence, offspring, is their direct

responsibility. Yet, the fulfillment of such responsibility affects the good of the family and of the

wider community.

72 Karol Wojtyla (John Paul II), Love and Responsibility, trans. H.T. Willetts (San Francisco, CA: Ignatius Press, 1993), 216. See also S. Th ., II a II ae , q. 58, a. 5 where Saint Thomas argues that justice directs man to the common good. He states: “omnes qui sub communitate aliqua continentur comparantur ad communitatem sicut partes ad totum. Pars autem id quod est totius est; unde et quodlibet bonum partis est ordinabile in bonum totius. Secundum hoc ergo bonum cuiuslibet virtutis, sive ordinantis aliquem hominem ad se ipsum sive ordinantis ipsum ad aliquas alias personas singulares, est referibile ad bonum commune, ad quod ordinatur iustitia. Et secundum hoc actus omnium virtutum possunt ad iustitiam pertinere, secundum quod ordinat hominem ad bonum commune.” Justice rectifies human actions and renders human acts good. It is reflected in how we treat ‘another’ person and is thus essential to ensure order in communal living. There is also justice in our relationship with God—that which justifies human behavior in the eyes of God. This implies that God is a personal being and has rights that must be respected as well. Thus, man’s relationship with God implies his respect for God’s right and the duty to render to God what is His due as the Creator of man.

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To understand fully the rights and duties that marriage entails, we must consider man in his integrity and look at marriage beyond the natural order because marriage is a mystery of grace ( sacramentum gratiae ); 73 it is a participation in the common good. It is the sacramental grace that enables the spouses to respond to God, as He expects them to live the sacrament fully as the means to arrive at their final destiny, the Beatific Vision.

When we consider the rights and duties implicit in the sexual relations of the spouses, we can appreciate their importance because they directly affect the development of the love between their persons. Sexual relations pertain to the most intimate aspects of the being of the spouses and they involve both its physical and psychological aspects, i.e., the whole person. Indeed, the sexual responsibility of the spouses is complemented by responsibility for the life and health of each other—a combination of fundamental goods that together determine the moral value of the sexual act. It is therefore not surprising that the Church accentuates the pastoral formation of couples preparing for marriage and for ascertaining beforehand their convictions regarding the obligations required for the celebration of the sacrament of marriage as authentically taught by the Church. Thus, Doyle states:

The Church’s insistence on the instruction and the spiritual preparation of spouses is based on the fact that reception of the sacrament of marriage is not an act separate from the faith life of the Christian community. The necessity of Christian marriage in the life of the Church as well as for its growth, presupposes that those who receive this sacrament do so in the context of a wider participation in the Church’s life. It is ironic that for many, marriage is looked upon as a kind of personal possession with a minimal or non-existent awareness of the fact that marriage is also

73 Wojtyla (John Paul II), Love and Responsibility , 225.

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a vocation to be lived out with the other members of the community. 74

Indeed, the Church’s teaching that authentic married love is an integral element of the divine love is to be understood in the context of the role of authentic married love in the life of the

Church. Such love, perfected by divine love, is expected to contribute to the life and growth of the Church. Christ’s encounter with the spouses in marriage fortifies them to be heralds of gospel values in Church and society. Thus, referring to the family as a domestic Church is natural, because the state of the family is reflected in the state of the Church. This runs in parallel to the view of the family as the nucleus of society.

Because it recognizes and protects the good of marriage, the Church, as its custodian, does not only insist on the spiritual preparation of spouses for marriage but also restricts or prohibits the exercise of the right to marry when such exercise threatens the good of the spouses or of certain ecclesial values.

Prohibitions or impediments to marriage that are generic in nature disqualify whole classes of people from forming marital union and can be declared only by the supreme authority of the Church. These impediments also declare invalid certain categories of marriages because of one of their salient characteristics, as shown in Chapter Two. With respect to impediments related to HIV/AIDS, they could be imposed in recognition of the fact that human behavior plays a significant part in propagating the disease. The pandemic poses a fundamental threat to the conjugal relationship, since it is transmissible through heterosexual intercourse and is presently incurable. Because of the interconnection between Moral Theology and Canon Law, we shall

74 Thomas P. Doyle, “The Individual’s Right to Marry in the Context of the Common Good,” Studia Canonica XIII (1979): 278.

193 next look at some moral perspectives that seem to suggest that the right of HIV/AIDS carriers to exercise the ius connubii can be restricted for the common good. Owing to the weight of the moral arguments, we shall propose that Canon Law have another look at HIV/AIDS and its threat to conjugal life in the light of the common good.

7. Moral-Ethical Perspectives and the Right of HIV/AIDS Carriers to Marry

a) The Moral Understanding of a Human Act being Licit or Illicit

As we shall be focusing on some moral-ethical considerations, it is important to clarify that, in considering whether an act is morally right or wrong, licit or illicit, we are simply examining a particular behavior in itself, and are assessing its appropriateness based solely on values that are considered objectively in themselves. Thus, an act is licit or illicit depending on whether the values associated with it are respected and promoted, or erroneous or wrong. We deem abortion illicit because it crushes totally the primary and fundamental value of what life is in a human being. Similarly, fraud or cheating is illicit because it violates the fundamental values in social cohabitation that are truth and confidence. 75 Consequently, concerning the issue of

HIV/AIDS carriers and the exercise of their natural right to marry, we shall be looking at the moral-ethical arguments arising from the values concerning conjugal sexuality. This analysis can inform Canon Law, with the aim of prompting it to look at the possibility of establishing

HIV/AIDS as a restriction to marriage for the common good. Thus, we shall consider human responsibility regarding the value of the love that binds spouses together in marriage, the exercise of freedom to enter into marriage, and the value of the life and health of the spouses and

75 Ciconne, “Aids: problem etici in ambito coniugale,” 622.

194 of possible offspring, which are essential for the promotion of the common good. These values are essential for the promotion of the totius vitae consortium and therefore obligate spouses to act in a certain way toward each other, their children, the Church and the society as a whole. As a member of society, man is not free to do what he likes. He has to act responsibly, in accordance with his dignity as a person. Therefore, what is man’s moral responsibility in marriage?

b) Moral Responsibility in Marriage

Before we delve into the various values that spouses must assume responsibility for, it is important to explain why they must assume responsibility for those values in marriage. Man must take responsibility for his actions because he is a person; he possesses free will and is his own master ( sui iuris ). As a person, he is alteri incommunicabilis (not transferrable), 76 that is, he is a being that is independent of his actions. No other person can want him to want what he wants. Whatever he does, he acts based solely on his own decision and thus must take full responsibility for the outcome.

A man is both subject and object of his actions, in the sense that human acts have other human beings as their object. Thus, in a sexual relationship, the woman is always the object of activity on the part of the man and vice versa. 77 This does not imply that either the man or the woman can use the other as a means to an end, lest they would do violence to the very essence of

76 Wojtyla (John Paul II), Love and Responsibility , 24.

77 Ibid.

195 each other, to what constitutes the natural right of the other. 78 Thus, spouses have obligations to respect each other as persons in freedom. This is personal responsibility.

The nature of the human being as a person demands that the ends he pursues are genuinely good because the pursuit of evil ends is contrary to his rational nature. By giving man an intelligent and free nature, God ordains that each person alone will decide for himself the ends of his activities and not be a blind tool of someone else’s ends. 79 While God endowed man with the capacity to learn his supernatural ends, man has the freedom to decide whether or not to strive toward them. This is how man assumes responsibility toward his proper salvation. Since marriage is one of the means toward the attainment of salvation, those who embrace the married state must assume responsibility for all the values inherent in this state of life. The first responsibility is for the love that brought the man and woman together to become husband and wife.

c) Responsibility for the Love that Binds a Man and a Woman in Marriage

Christian morality deals with human actions in relation to man’s final and ultimate end.

Therefore, it requires that man lives a virtuous life, which can be construed as one of “love and service of God.” 80 Indeed, Christian love or charity is the principle of Christian morality because the love of the Christian participates in the love of the Trinity. Because it is a virtue (disposition to good action), Christian love or charity aims at nothing but the good and perfection of the

78 Wojtyla (John Paul II), Love and Responsibility , 24.

79 Ibid., 27.

80 John A. Gallagher, Time Past, Time Future: An Historical Study of Catholic Moral Theology (Oregon: Wipf and Stock Publishers, 2003), 54.

196 other. 81 Here, we see that the end and purpose of man is both an obligation and a perfection of his nature, although its achievement is a sole consequence of God’s gratuitous grace. To attain his ultimate end, man must intend and commit acts that are fitting to the love and service of God.

In other words, his every act must be morally good in its object, in its end, and in its circumstances.

Christian love implies unity between persons because of their origin in the one Creator,

God, and a shared destiny in a common good and end. Moreover, because man is a person, a being of communion, he realizes himself in the “I-Thou” relationship. The love that flows between the “I” and the “Thou” is always conditioned by God, who is at the center of such love because God is its fulfillment. Thus, Häring states:

Natural love of self and self-preservation is nothing other than the dignity of human partnership in the love of God, by which man is created in the divine image and conserved. Submission to neighbor and the self-movement toward him is the clearest reflection of the love of God, the love by which God gives Himself to man, the divine I-Thou, self-giving love. 82

Such is the type of love that stands at the center of marriage whose source is God and it turns to

Him in ultimate motivation. Man finds fulfillment through opening up himself to the love and acknowledgment coming from others and by responding in acknowledgment and love, through work and action. 83

81 S. Th ., I a II ae , q. 26, a. 4: “amare est velle alicui bonum. Sic ergo motus amoris in duo tendit, scilicet in bonum quod quis vult alicui, vel sibi, vel alii; et in illud cui vult bonum.” See also CCC n. 1766.

82 Bernard Häring, The Law of Christ: Moral Theology for Priests and Laity, trans. Edwin G. Kaiser (Westminster, Maryland: The Newman Press, 1963) 2: 352-53.

83 Bernard Häring, Free and Faithful in Christ: Moral Theology for Priests and Laity (New York: The Seabury Press, 1979) 2:428.

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The love of husband and wife affirms their personal dignity and the love they have for themselves because love of neighbor and love of self are inseparable. In marriage, the parties become a gift to each other and the Divine standing in the center as their partner. They fulfill each other and they help to bring each other to the fundamental knowledge that God is Love.

This true charity is modeled after the love of God for us, who sacrificed His life for the good of all. Yet, on the human level, there is a caveat, whereby love is prioritized.

There is an order in love, whereby the love of God comes first, followed by the love of self, and finally the love of neighbor. Christian love obliges man to give first place to God by loving Him above all things “since happiness is in God as in the universal and fountain principle of all who are able to have a share of that happiness.” 84 Man’s duty to God requires him to keep his will turned to God as the ultimate end and the common good of human life, expressing this commitment through prayer and good acts. The love of self is in the second place, as man’s duty to self requires him to protect himself and the welfare of his body. It is followed by the love of one’s neighbor, expressed through man’s duty to his neighbor, which requires him to help his neighbor who is in need. This can be achieved through giving alms, offering fraternal correction, avoiding cooperation in the sins of others, et cetera. 85 Thus, the love of self precedes the love of one’s neighbor 86 because the former was the norm of the manner in which the neighbor was to be loved. 87

84 S. Th ., II a II ae , q. 26, a. 3: “quia beatitudo est in Deo sicut in communi et fontali principio omnium qui beatitudinem participare possunt.”

85 Gallagher, Time Past, Time Future , 112.

86 S. Th ., II a II ae , q. 26, a. 4.

87 Mt 22:39 “You must love your neighbor as yourself.”

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In line with the above, the objects of love are also prioritized. Thus, a person’s spiritual welfare is the most important object of love, taking precedence over the spiritual welfare of one’s neighbor. Similarly, the bodily welfare of one’s self has precedence over that of one’s neighbor. 88 External goods for one’s self and others come last among the priorities of love.

Prümmer lists a set of four rules that clearly outline this priority:

First rule: In another’s extreme spiritual necessity , we are obliged to help him even at grave risk to our own bodily life, provided that there is a reasonable hope of saving him and no serious public harm results. Second rule: Except when another is in extreme spiritual necessity, there is no strict obligation of helping him at the risk of serious bodily harm. Third rule: In another’s grave need (whether spiritual or temporal) we must help him if we can do so without serious inconvenience, unless justice, piety, or our office make greater claims on us. Fourth rule: In common or slight necessity we must be prepared to suffer some slight inconvenience in helping our neighbor. 89

Thus, the natural law of charity dictates that the love of self takes precedence over the love of others. However, while it must lead to the love of others, one can only give to others what one has. The same order applies to other bodily goods, though the prioritization would vary depending on whether one is considering spiritual or temporal goods, as Prümmer explained above.

Concerning conjugal love, the Conciliar constitution Gaudium et spes clearly specifies that the love that binds a man and a woman in marriage is a value in itself. Conjugal love is fully human, personal and total. It involves the will and the heart of each spouse in total self-giving to

88 Gallagher, Time Past, Time Future , 113-14.

89 Dominic M. Prümmer, Handbook of Moral Theology , trans. Gerald W. Shelton (Cork: The Mercier Press, Limited, 1956), 99. (emphasis in the original)

199 the other. A very important point about conjugal love is that it is not limited to the marital act, but rather pervades the entire life of the spouses, with the marital intercourse as the ultimate expression of that love and its continual development. 90 Marital intercourse, therefore, enriches the couple and is helps maintain their mutual love. With each passing day, the mutual love of the spouses would grow and radiate the efficacious role of marriage as a leaven in the wider community.

Because it aims at the good and perfection of the spouses, true conjugal love also helps enhance the dignity of the other person. True conjugal love will avert harming the other deliberately. It therefore seems to be a violation of the natural law of charity for an HIV-positive person to contract marriage with a healthy person. Moreover, as this brings a possibility of infecting the healthy partner with the fatal disease through marital intercourse, it is wrong to appeal to his “love” for the other as a compelling reason. Such “love” risks putting a healthy partner on the road to a slow painful death, instead of leading to the good and perfection of the spouse.

The Church is conscious that “part of the plan laid out by God’s providence is that we should fight strenuously against all sickness and carefully seek the blessings of good health, so that we may fulfill our role in human society and in the Church.” 91 It is in doing so that our rights receive full meaning and human life can flourish. Thus, a healthy person who insists on marrying someone who is seropositive seems to act wrongly. The intentions of such an individual may

90 Häring, “Fostering the Nobility of Marriage and the Family,” 237.

91 United States National Conference of Catholic Bishops, “General Introduction, n. 3,” in Pastoral Care of the Sick: Rites of Anointing and Viaticum (New Jersey: Catholic Book Publishing Corp., 1983), 19-20.

200 require further scrutiny 92 because the human being naturally values and cherishes the good of health. Thus, one is not expected to intentionally pursue choices that trigger pain and suffering.

A person who pursues such choices could eventually harm himself and that would be an act of injustice to the state and to God and therefore deserves to make retribution for such “bad” behavior. 93 A person that eventually harms himself deprives the state of the services that he owes it as one of its parts. Most importantly, in doing so, he offends God because he violates the body, which is under God’s supreme authority alone. Indeed, a seropositive spouse who infects a healthy spouse compromises the obligations couples owe to the wider community because of the rights accorded them by society.

The objective order of preferential love imposes on persons a special responsibility for the self, which others cannot fulfill. Persons have the responsibility to love and to protect themselves by acting prudently always. Such love then flows back to God, the origin of love, and to others. Given and responded to, love creates a moral solidarity of persons with one another.

This is how a community grows and how the kingdom of God is fostered here on earth.

Conversely, for spouses or society to fail to give or respond to love within the objective order is to fail to fulfill the objective demands of conjugal love toward each other. Consequently, man and society are put in jeopardy, while the promotion of the common good is stifled.

The love that binds a man and a woman to enter into marriage must proceed from a free act of the will. However, the freedom implicit in carrying out human acts is an essential

92 William A. Varvaro, “Canon 1058: Prohibition Against Marriage of AIDS Victims,” Canon Law Society of America Advisory Opinions 1984-1993, ed. Patrick J. Cogan (Canon Law Society of America), 317.

93 Aristotle, Nicomachean Ethics , 1138 a 10 et passim; S. Th . II a II ae , q. 59, a. 3, ad 2; and Ibid., q. 64, a. 5.

201 component of morality. Thus, man must take responsibility for the exercise of his freedom, and in this case the freedom to marry, which we shall take up in the next segment.

d) Responsibility in the Exercise of Freedom to Enter into Marriage

As imago Dei , man is endowed with the capability of making free choices and live his vocation as intended by his Creator. The invitation to the fullness of life God offered man, starting in the Old Testament and culminating in the teaching of Christ in the New Testament, rests on man’s free acceptance or rejection. Free choice is a principle of Christian morality because the choice that a person makes is uniquely his and he takes full responsibility for it. 94

Freedom is essential to every intimate personal relationship and the exercise of the freedom to choose a spouse as a life-long partner in marriage implies a special use of free choice.

Furthermore, the exercise of the right to marry presupposes that there is the capacity and the intention to celebrate marriage. A person is free in a sense that he is “able to do whatever he wishes without being hindered by an exterior constraint and thus enjoys complete independence.” 95 A person does this by learning to unite his will to the others in truth and justice for the sake of the true good. Thus, freedom only truly exists

where reciprocal bonds, governed by truth and justice, link people to one another. But for such bonds to be possible, each person must live in the truth. Freedom is not the liberty to do anything whatsoever. It is the freedom to do good, and in this alone happiness is to be found. The good is thus the goal of freedom. In consequence man becomes free to the extent that he comes to a knowledge of the truth, and to the extent that this truth—and not

94 Germain Grisez and Russell Shaw, Fulfillment in Christ: A Summary of Christian Moral Principles (Notre Dame, Indiana: University of Notre Dame, 2005), 16.

95 CDF, Instruction on Christian Freedom and Liberation – Libertatis Conscientia , March 22, 1986, n. 25.

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any other forces—guides his will. Liberation for the sake of a knowledge of the truth which alone directs the will is the necessary condition for a freedom worthy of the name. 96

Indeed, there is an inseparable connection between freedom and truth because there can be no freedom apart from or in opposition to the truth. Freedom finds its true meaning in the voice of the moral good; it tends toward the supreme good through lesser goods that conform to the exigencies of man’s nature and of his divine vocation.

The exercise of authentic freedom portrays the dignity of the human person. However, both freedom and human dignity carry with them obligations, as the Second Vatican Council states:

It is in accordance with their dignity as persons—that is, beings endowed with reason and free will and therefore privileged to bear personal responsibility—that all men should be at once impelled by nature and also bound by a moral obligation to seek the truth, especially religious truth. They are also bound to adhere to the truth, once it is known, and to order their whole lives in accord with the demands of truth. 97

A person can therefore realize himself only by the exercise of freedom in truth, rather than by doing whatever he chooses. True freedom implies a gift of self; it requires an interior discipline of the gift. The idea of gift contains not only the free initiative of the subject, but also the aspect of duty that is made real in the communion of persons. 98

96 CDF, Instruction on Christian Freedom and Liberation – Libertatis Conscientia , March 22, 1986, n. 26.

97 DH 2, AAS 58 (1966), 931; Abbott, 679: “Secundum dignitatem suam homines cuncti, quia personae sunt, ratione scilicet et libera voluntate praediti ideoque personali responsabilitate aucti, sua ipsorum natura impelluntur necnon morali tenentur obligatione ad veritatem quaerendam, illam imprimis quae religionem spectat. Tenentur quoque veritati cognitae adhaerere atque totam vitam suam iuxta exigentias veritatis ordinare.”

98 GSa 14: AAS 86(1994), 894.

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For an HIV/AIDS carrier to invoke his freedom to exercise his natural right to marry seems to be an intentional choice to expose his life and that of his spouse-to-be to danger without any just cause. To invoke one’s freedom in this instance seems to fall short of the freedom worthy of man, the imago Dei , because such freedom is not in the service of the truth that seeks the good of the other person. Such freedom is not in the service of justice, which seeks to give to the other spouse his due, that is, his well-being. Moreover, such freedom violates the dignity of the other spouse and does not tend toward the supreme good. Indeed, such freedom violates the personal good of the other spouse and frustrates the good of the wider community. Thus, it seems morally wrong for an HIV/AIDS carrier to invoke the right to his freedom to enter into marriage and indulge in conjugal relations because the freedom worthy of man is freedom of responsibility.

The effects of HIV/AIDS on its carrier are multiple but one effect is certain—a slow, long, painful road to death. In marriage, the spouses assume responsibility for life and health of each other. Thus, in exercising his right to marry, an HIV/AIDS carrier assumes responsibility for the life and health of the other spouse, as we will discuss in the next section.

e) Responsibility for the Life and Heath of Each Spouse

The current position of the Magisterium, as well as some canonists and theologians, is that a person suffering from a contagious disease, such as leprosy or syphilis, is forbidden by the natural law of charity to marry without informing the other party of his condition. 99 Divulging

99 T. Lincoln Buscareen, Adam C. Ellis and Francis N. Korth, Canon Law: A Text and Commentary, 4th rev. ed. (Milwaukee: The Bruce Publishing Company, 1966), 473; Francis J. Connell, “May the State Forbid Marriage Because of a Social Disease?” American Ecclesiastical Review 99 (1938): 515; and John M. Waterhouse, The Power of the Local Ordinary to Impose a Matrimonial Ban: A Historical Synopsis and a Commentary Canon Law Studies

204 this information protects the freedom of the exercise of the ius connubii by the healthy partner.

However, once such a person has made his condition known, and the other party is still willing to marry him, are they free to marry? The Church answers this question in the affirmative. 100

Actually, the Church acknowledges that highly infectious diseases (those known before the detection of HIV/AIDS) threaten the good of marriage. She is also of view that it affects the common good to some extent, albeit without necessarily warranting the imposition of an impediment. Consequently, the Church enjoins that the carrier of any of these diseases should be dissuaded from marrying. Still, if the affected person insists on marrying, in the eyes of the

Church, he commits no crime. 101 In my view, the exhortation to dissuade or persuade the carriers of such diseases from marrying is reasonable because anyone who knows that a partner has a communicable disease and still insists on marrying him or her is not entering into a “situation of death” ( condicio mortis ).

Leprosy terrified the Medieval Church and society, as we saw in Chapter Two, even though the disease was not an immediate cause of death. But, the harsh laws meted against lepers, who were consequently quarantined in leprosaria, made them suffer not only loss of

No. 317 (Washington, D.C.: The Catholic University of America Press, 1952), 113-14, especially his footnotes 130- 132.

100 C. 2, X, de coniugio leprosorum , IV, 8: “. . . leprosi autem si continere nolunt et aliquam quae sibi nubere velit invenerint, liberum est eis ad matrimonium convolare;” and Glossa Ordinaria , ad c. 2, X , de coniugio leprosorum , IV, 8, s.v. casus : “Si leprosi continere nolunt, bene possunt contrahere matrimonium, dummodo inveniant qui ipsos accipere velint;” and Aloysio Sabetti and Timotheo Barrett, Compendium Theologiae Moralis, 27 th ed. (Cincinnati: Frederick Pustet Co., Inc., 1919), n. 842, § 6; and Connell, “May the State Forbid Marriage Because of a Social Disease?” 515.

101 CCo 68: AAS 22 (1930), 565: “ob eam causam gravi culpa onerare si coniugium contrahant, quamquam saepe matrimonium iis dissuadendum est;” and Connell, “May the State Forbid Marriage Because of a Social Disease?” 515.

205 property, but also loss of many rights. Moreover, as lepers were classified as insane, they were unable to perform valid legal actions. Although all this helped fuel hatred for lepers, the aforementioned laws were poorly enforced. 102 In South France, for instance, lepers made contracts, sold property and added legacies to their wills, just as healthy persons did. 103 Although it was believed that leprosy could be contracted by inhaling the breath of an infected person, this position was not held by all medical writers in the Latin West. 104 Furthermore, legends circulated throughout Mediaeval Europe how pride, lust and other vices were punished by leprosy. 105 On the other hand, in the East, Byzantine medical authors did not consider leprosy a contagious disease; neither did the Greek Fathers, who claimed that the “fear” of leprosy was the root cause of the cruelty against lepers. 106 They, therefore, exhorted Christians not to be influenced by such fears. Rather, the disfiguring disease was seen as wages for sins committed. For that reason, it was believed that such persons had to be secluded, in keeping with the Mosaic Law of the Old

Testament, which had banned lepers from the camp of Israel. 107

102 Miller and Nesbitt, Walking Corpses , 106-109

103 Ibid., 109.

104 Miller and Nesbitt, Walking Corpses , 111, especially their footnote 64, which cites a passage from Lanfranc of Milan, a contemporary of Theodoric of Cervia and Taddeo Aldreotti, two leading medical experts of thirteenth century Italy. The note states: “(Leprosy) passes from one person to another and from father to son, but not always, because sometimes a healthy person who lives with a leper does not become leprous, and a leper can give birth to someone who will not be leprous.”

105 Brody, The Disease of the Soul , 147-90. Miller and Nesbitt, Walking Corpses , 106, present another side of leprosy—the disease was also considered a “Holy Disease” in the sense that it was seen as a purification for the kingdom of heaven. Thus, leprosy was regarded as a moral condition. See Watts, Epidemics and History , 59.

106 Miller and Nesbitt, Walking Corpses , 113-14.

107 Ibid., 99 and 102

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HIV/AIDS, however, is an infectious disease that poses a serious threat to conjugal life.

As we explained in Chapter Three, HIV is a retrovirus. It mutates by replicating itself and two types of the virus that cause AIDS are presently known—HIV-1 and HIV-2—for which there is presently no cure. Owing to the advances in antiretroviral therapy, AIDS sufferers can live lives of reasonably good quality for a longer time. Unfortunately, the majority of the carriers of the disease globally still lack this medical assistance that I think raises the question of distributive justice, which we shall look at in the Conclusion of this project. Even for those that can benefit from it, antiretroviral therapy has its own setbacks as well, because of metabolic complications from the drugs and unexpected fresh viral breakouts. Consequently, for most infected persons, the road to death is slow, long, complicated, painful, and traumatic. Indeed, once a person is infected, he or she is infected for life.

The basic good for which spouses are responsible for in their conjugal life is the good of life, beginning with their own lives and extending to that of any possible offspring. The good of life is fundamental because God alone is the Lord of life. He gives life and only He can take it. 108

Responsibility for one’s life implies reverence for it and the lives of others, as well as living it with dignity as intended by the Creator. Because he is a social being and a steward of creation, man shall render to God the stewardship of his life and that of others. 109 Such reverence and

108 CDF, instruction Donum vitae , n. 5: AAS 80 (1988) 76-77: “Humana vita pro re sacra habenda est, quippe quae inde a suo exordio “Creatoris actionem postulet” ac semper peculiari necessitudine cum Creatore, unico fino suo, perstet conexa. Solus Deus vitae Dominus est ab exordio usque ad exitum: nemo, in nullis rerum adiunctis, sibi vindicare potest ius mortem humane creaturae innocenti directe affferendi.” See also CCC n. 2258; John Paul II, Homily at Capitol Mall, Washington, D.C., November 5, 1979, para. 7: AAS 71 (1979) 1271; and Günthör, Chiamata e Riposta, 3:494.

109 As a steward of creation, man has responsibility that does not end with the life of others, as it also involves the environment, because the promotion of environmental health promotes human health as well. Here, Benedict XVI

207 stewardship is derived from well-ordered charity toward oneself, toward God, and toward the human community, as Pius XII stated:

Natural reason and Christian morals say that man (and whoever is entrusted with the task of taking care of his fellowman) has the right and the duty in case of serious illness to take the necessary treatment for the preservation of life and health. This duty that one has toward himself, toward God, toward the human community, and in most cases toward certain determined persons, derives from well-ordered charity, from submission to the Creator, from social justice and even from strict justice, as well as from devotion toward one’s family. 110

The reverence and responsibility for one’s life presupposes and implies that health is a good that is inseparable from life itself. Health is the fullness of life in its physiological and psychic dimensions; it “takes into account the bodily, psychic, spiritual and religious dimensions of man.” 111 It shares in the sanctity of life, which is violated by wrong choices that destroy, damage, or impede health. 112 Health bespeaks the harmony of human forces and energies that involve all the psychosomatic elements of one’s being. Such harmony is only possible when man nourishes and protects the body against disease and other dangers, for his good and for the common good. Thus, man has the moral responsibility not to intentionally or unreasonably do

notes that man is a steward over nature and should foster the covenant between human beings and nature because the way human beings treat the environment influences the way it treats itself, and vice versa. See CV 48- 52: AAS 101 (2009), 684-88.

110 Pius XII, “Address to an International Congress of Anesthesiologists,” National Catholic Bioethics Quarterly 2 (2002): 311.

111 Bernard Häring, Free and Faithful in Christ: Moral Theology for Clergy and Laity – Light to the World (New York: The Crossroad Publishing Company, 1981) 3:47. It is important to keep in mind this full meaning of health because the human being is a composite of matter and spirit and one has an influence on the other. Of course, physical health is a value in so far as it serves Christian love and our own sanctification.

112 Germain Grisez, The Way of the Lord Jesus : Living a Christian Life (Illinois: Franciscan Press, 1993), 2:520.

208 anything that would be detrimental to health,113 as that would violate the good of his life and that of others. Consequently, it would render him and others incapable of fulfilling their proper mission in life entrusted to them by God. 114 To unreasonably do what is detrimental to health would violate a fundamental good, man, and impoverish other goods.

As a communicable disease, HIV/AIDS also threatens the formal object of matrimonial consent, the right to the community of life and the goods that flow from it. Because it is presently still incurable, HIV poses a direct threat to the life and well-being of a healthy spouse. Thus, an infected spouse who engages in sexual intercourse with an uninfected spouse seems to be oblivious to his responsibility not to bring harm to another person. Moreover, he seems to be unaware that God alone is the Lord of life from its beginning until its end, for no one can, in any circumstance, claim for himself the right to expose a human being to a mortal illness or to destroy an innocent human being. 115 An infected spouse who exposes a healthy spouse to the virus violates the moral law that prohibits exposing one’s life or that of others to mortal danger without grave reason. 116 In my view, in this case, marriage is not a grave reason. Actually, whoever unnecessarily exposes his own life or the life of his neighbor to danger commits a sin, which is by its nature ( ex natura sua ) grave. Should the neglect be such that it results in the death

113 Grisez, The Way of the Lord Jesus , 2:532; and Häring, Free and Faithful in Christ , 3:48-49.

114 P. Lino Ciccone, “Aspetti etico-morali de fenomeno dell’AIDS,” Anime e Corpi 124 (1986):153.

115 Pius XII, Discourse to the Saint Luke Medical-Biological Union, November 12, 1944: Discorsi e Radiomessaggi VI (1944-1945) 191-92.

116 CCC n. 2269; and Häring, The Law of Christ, 3:214. The norms of social life, such as those designed for the protection of health, or laws establishing speed limits, aim at protecting the one and the all. Thus, those who think little of these norms fail to realize that, by such indifference, they imperil their own life and that of others. They fail in their social responsibility towards other citizens and society and this is morally wrong. See also GS 30: AAS 58 (1966), 1049; Abbott, 228-29.

209 of another, it is classified as intentional or culpable homicide. 117 Indeed, that type of action is an infringement of the Fifth Commandment, “Thou shall not kill,” 118 because to act that way is to to fail to show respect for the life and physical health of the other partner. It is true that, in the case of HIV/AIDS, one’s death is not instantaneous; nonetheless, by infecting the other partner, the responsible spouse places him or her on the path to a slow and painful death. It is equally true that some recent research findings suggest that, in serodiscordant couples, an infected husband with an extremely low and undetectable viral load may not expose his healthy wife to the virus during intercourse, provided that she is taking anti-viral medication daily. However, even in this case, the risk of transmission still exists because HIV viral load fluctuates. Moreover, the well- intentioned infected spouses could forget to take their medication, thus dramatically increasing the risk of infection. 119 Also, the potential side-effects of these drugs are known to trigger other health problems, as we discussed in Chapter Three, which are once again related to responsibility to do no harm to another person.

The negative impact of HIV/AIDS on the socio-economic goods of individuals, families and society is enormous. As we saw in Chapter Three, when HIV replicates into full-blown

AIDS, its debilitating effects on the body are such that they can eventually incapacitate the spouses, preventing them from being the good they are supposed to be to each other.

117 CCC n. 2268; Häring, The Law of Christ, 3:216-17; and S. Th . II a II ae , q. 64, a. 4.

118 Ex 20:13. See also Dt 5:17; and Edward Menichelli and Lionel Crocetta, You Shall Not Kill: Reflections on the Fifth Commandment (Nairobi, Kenya: Paulines Publications Africa, 1998). Aristotle, in the Ethics 1138 a5, states: “when a man in violation of the law harms another (otherwise than in retaliation) voluntarily, he acts unjustly.”

119 Cha, Ariana Eunjung, “As mixed-status HIV couples weight risks, more choose to conceive the old-fashioned way.” The Washington Post , April 24, 2014, http://www.washingtonpost.com/national/health-science/as-mixed- status-hiv-couples-weigh-risks-more-choose-to-conceive-the-old-fashioned-way/2014/04/24/8c8b11a4-b9d4- 11e3-96ae-f2c36d2b1245_story (accessed May 13, 2014).

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Neuropsychiatric cases account for 10 percent of the various extreme manifestations of the disease. 120 Even when spouses are affected by an ordinary degenerative condition, this affects their capability of rearing any possible offspring to full maturity, if they were born HIV-free.

Thus, in the final analysis, they become debtors to society because of their failure to fulfill the obligations that flow from the rights accorded them by society for the promotion of the common good. Indeed, sick spouses suffocate the common good, instead of promoting it, because the personnel and resources that should be employed for the well-being of other aspects of the family and the community are instead directed to a life-long care for them. All resources that are invested into assisting these spouses can thus be considered a drain of family and societal resources because there is no yield in return. In many instances, especially in the poor countries, meager health resources are easily depleted and society eventually becomes incapable of helping

AIDS patients to live and die in a dignified manner. They are often abandoned by society, ostracized from their community, and left to care for themselves, usually aided by some caring family members. Nevertheless, in the final analysis, society has to step in again to assume responsibilities that may be beyond its capacity to fulfill adequately.

In keeping with the moral law that enjoins man to be a custodian over his life and that of his neighbor, a U.S. Catholic Conference Administrative Board statement on the AIDS crisis teaches:

Consequently, anyone who is considered to be “at risk” of having been exposed to the AIDS virus has a grave responsibility to ensure that he or she does not expose anyone else to it. This means

120 Gianfrancesco Zuanazzi, “AIDS: Aspetti Epidemiologici e Clinici,” in Matrimonio Canonico e AIDS a cura di S. Gherro e G. Zuanazzi (Torino: G. Giappichelli Editore, 1995), 19.

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that such a person who is considering marriage, engaging in intimate sexual contact, planning to donate blood, organs or donating semen has a moral responsibility to be tested for exposure to the AIDS virus and should act in such a way that it will not bring possible harm to another. 121

It seems from the above statement that the only one hundred percent effective way to prevent a person who has been exposed to the AIDS virus from transmitting it to others is to guide him to refrain from carrying out any of the acts enumerated by the bishops. It seems that the Bishops of the Bamenda Ecclesiastical Province had the same concern of the U.S. Catholic Conference

Administrative Board statement on the AIDS crisis—a person considering marriage. The

Bishops issued a circular letter that required that, before the publication of marriage banns, the parties have to present to the parish priest a valid and authentic medical certificate showing that they have been screened for HIV/AIDS. 122 It seems that anyone who is unable to present such a valid and authentic medical statement that he or she has undergone a serological test for HIV may be barred from marrying coram ecclesia catholica . In addition, it seems that this requirement remains in force until a cure for HIV/AIDS becomes available.

Perhaps it is legitimate to ask whether making it compulsory for the individuals preparing for marriage to produce a medical certificate that they have been screened of HIV/AIDS infringes on the right to privacy of HIV/AIDS carriers and eventually on the exercise of their right to marry. The question of the right to privacy in general, and that of HIV/AIDS carriers in particular, merits treatment in its own right. However, exploration of that issue is beyond the

121 USCC Administrative Board, “The Many Faces of AIDS: A Gospel Response,” Origins 17 (1987): 487.

122 See full text of the Letter of the Bishops in Appendix One, Page 254.

212 scope of this project. 123 Still, it seems to me that the requirement of the Bishops of the Bamenda

Ecclesiastical Province does not infringe on the right to privacy of HIV/AIDS carriers to marry considered within the context of the present study—HIV/AIDS carriers and the exercise of their natural right to marry for the common good. In marriage, any intentional exposure or harm that is brought to the life and health of an uninfected spouse collapses the internal and external justification of the sexual act. It impoverishes and disregards the human values in the exercise of human sexuality, jeopardizes the personal perfection of the spouses and frustrates the promotion of the common good.

Owing to the unity of the human being, body and soul, 124 man is made for life beyond the grave. His destiny is in God, his creator. In the same way that the good health of the body enlivens the spirit of man, so does ill health deaden his spirit. Indeed, HIV/AIDS has a psychosocial impact on its carriers. This is evident in the anxiety the sickness brings about, not only related to one’s well-being, but also to the eventual rejection by society. This special form of the loss of happiness and success permeates the carrier’s life until it is finally snuffed out at death. 125 The downside of such anxiety is that it is perpetual, given the uncertain future and the finality of the outcome. Thus, it can adversely affect the patients’ spirit, especially when they are denied love, stigmatized and denigrated to the fate of the hopeless in society. Man who is created out of love suffers greatly when he is denied love. He is forced onto the path of despair and risks

123 See a short note on “The Right to Privacy of HIV/AIDS-Carriers” in Appendix Two, Page 256.

124 S. Th. I a, q. 76, article 7 in particular, which demonstrates the falsity of certain opinions that maintain the existence of some mediate bodies between the soul and the body of man. Nay, the soul is immediately united to the body as the form to matter. See also CSDC nn 127-29 and 71-72.

125 Johannes Reiter, “AIDS: The Virus and Moral,” Theology Digest 35 (1988): 5.

213 taking a wrong decision that can jeopardize his supernatural destiny, the very destiny for which he exists.

The pandemic, therefore, seems to pose a serious challenge to its carriers regarding their ability to care for the emotional, intellectual, spiritual and physical aspects of the personal life of the other spouse. In its full-blown phase, HIV/AIDS renders its carrier unable to make the necessary sacrifices inherent in faithful love or to harmonize his mentality and behavior for the well-being of the other. The two persons may “simply be living together,” for they find providing support and help to each other difficult, or even impossible. Indeed, the psychological impact of the pandemic on the carriers significantly undermines marital relationships. In cases where one spouse is a hemophiliac, studies show emergence of serious communication difficulties, as well as a decrease in sexual desire, brought upon by fear of being infected. 126 John

Paul II rightly asserts that a husband can, in a true sense, commit adultery with his own wife if he simply uses her as a means to gratify his lust without any concern for her well-being. 127 The same could be said for HIV/AIDS carriers.

The moral responsibility for the life and health of each spouse is inextricably tied to the responsibility for the life and health of possible offspring created as a natural consequence of sexual intercourse. In the next segment, we shall examine the responsibility that spouses have toward any possible offspring that may be born of their union.

126 Tuohey, “Methodology or Ideology,” 54-55.

127 John Paul II, Man and Woman He Created Them: A Theology of the Body , 43.2: “Adultery ‘in the heart’ is not committed only because the man ‘looks’ in this way at a woman who is not his wife, but precisely because he looks in this way at a woman. Even if he were to look in this way at the woman who is his wife, he would commit the same adultery ‘in the heart’.” (emphasis in the original) See also S. Th ., Supplement, q. 49, a. 6.

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f) Responsibility for the Life and Health of Offspring

A child is a new member of society and, following its birth, a married couple becomes a family, a community of persons, which is the nucleus of society. As such, society depends on the child for its well-being and its future. In his Letter to Families, John Paul II states, “The family is the smallest and most basic human community, and it comes from the personal contribution of a man and a woman. The family, indeed, is a community of persons whose own way of being and living together is communion: communio personarum .” 128 Such communion expresses itself internally and externally, as the family lives in a way that fosters its own good and that of both the Church and the broader society.

The role of marriage in the life of the Church is of singular importance because marriage is not only entered into in order to propagate and maintain the human race on earth. Purpose of marriage is not merely to rear worshippers of the true God, as spouses “are called to give children to the Church, to beget fellow citizens of the Saints and members of the household of

God, in order that the worshippers of our God and Saviour may increase from day to day.” 129

Thus, Church and state have a special interest in marriage; indeed, the future of both depends on those who constitute marriage and family life. Marriage is, therefore, jealously guarded in accordance with the laws governing it, written by God for the good of the spouses, and for the attainment of the good of the Church and the society as a whole.

128 GSa 7: AAS 86 (1994), 874: “ Personarum namque ea est communitas, quibus genus proprium exsistendi vivendique una simul communio est: nimirum communio personarum.”

129 CCo 14: AAS 22 (1930), 544: “sed ad pariendam Ecclesiae Christi subolem, ad cives Sanctorum et domesticos Dei procreandos, ut populus Dei et Salvatoris nostri cultui addictus in dies augeatur;” and Saint Augustine, De Civitate Dei , 15, 16: CCL 48 page 478: “Copulatio igitur maris et feminae, quantum adtinet ad genus mortalium, quaddam seminarium est civitatis; sed terrena civitas generatione tantummodo, caelestis autem etiam regeneratione opus habet, ut noxam generationis evadat.”

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This greater good is endangered today because of the crippling effects of the HIV/AIDS pandemic that affect its victims from the moment of their birth. Although studies show that the fetus is not always subject to the infection of the mother and that, in two thirds of the cases, the fetus does not have the predisposition to contract the virus, a seropositive mother can still transmit the virus to her offspring during delivery or through breast milk, as we saw in Chapter

Three. Once a child is infected, it is infected for life. Sadly, an infected child rarely reaches its fifth birthday without medical intervention, which is currently inaccessible to the majority of infected pregnant women, especially those residing in poor countries. In sub-Saharan Africa, for example, the global epicenter of the pandemic, MTCT of the virus is a serious concern, especially with regard to the demographic future of this part of the world. The high rate of infant mortality due to AIDS-related causes inflicts a serious dent in the promotion of the common good in this region. Thus, man has the moral obligation to guard and protect life from the moment of conception until its natural death, lest he shows dishonor to the Creator, as the council Fathers state:

[W]hatever is opposed to life, such as any type of murder, genocide, abortion, euthanasia, or willful self-destruction, whatever violates the integrity of the human person …; whatever insults human dignity…; all these things and others of their like are infamies indeed. They poison human society, but they do more harm to those who practice them than those who suffer from the injury. Moreover, they are a supreme dishonor to the Creator. 130

130 GS 27, AAS 58 (1966), 1047-48; Abbott, 226-27: “insuper ipsi vitae adversantur, ut cuiusvis generis homicidia, genocidia, abortus, euthanasia et ipsum voluntarium suicidium; quaecumque humanae personae integritatem violant, . . . ; quaecumque humanam dignitatem offendunt, . . . haec omnia et alia huiusmodi probra quidem sunt, ac dum civilizationem humanam inficiunt, magis eos inquinant qui sic se gerunt, quam eos qui iniuriam patiuntur et Creatoris honori maxime contradicunt.”

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The Church teaches that human life begins at conception and it is sacred; it possesses the dignity of a person and is good because it is God’s handiwork. Thus, the common good of the family is realized in every child because it is a particle of that common good without which human communities break down and risk extinction. 131

Although in the Middle Ages some human acts were considered responsible for leprosy infection, the belief that leprosy was a venereal disease seemed to have gained much prominence. 132 Thus, leprosy was also considered a hereditary disease and could, as a result, be transmitted to offspring. The theory of conjugal transmission evolved with the evolution of the contagiousness of the disease. 133 Furthermore, the “fear” of the disease that stemmed from the grotesque disfigurement of the body contributed heavily to the surge of many popular myths and legends about leprosy and its contagiousness. However, there are no MTCT records, or statistics on infant mortality of leprous children. Since medieval society was much more focused on keeping lepers away from communion with the rest of society, it seems that the quality of their lives in the leprosaria did not warrant much attention from the rest of society, medical community or governing bodies.

131 GSa 11: AAS 86 (1994), 884: “ Nonne ipse ‘particula’ quaedam est illius boni communis, sine quo humanae communitates franguntur et ad interitum vergunt?”

132 Brody, The Disease of the Soul, 51-59, 143, and 192; and Rawcliffe, Leprosy in Medieval England , 81-88. The belief in sexual transmission of the disease was also fuelled by the notion that leprosy made its victims unusually licentious and so they could spread the disease at much faster rate. Modern clinical conditions demonstrate that leprosy damages the testicles and lowers the level of testosterone in the bloodstream of leprosy patients. At the same time, the luteinizing hormone (LH) levels increase—a substance that stimulates testosterone production. When leprosy goes into a temporary remission, there is a veritable surge of testosterone production and male lepers suffer from an attack of raging sexual desire, followed by a sudden drop of energy as the period of remission ends. See Miller and Nesbitt, Walking Corpses , 61.

133 Miller and Nesbitt, Walking Corpses , 50-52.

217

However, considering the responsibilities spouses have towards the life and health of their offspring and the common good, “it is desirable that couples contemplating marriage should be well informed regarding all points of health which can affect their marriage and their future offspring.” 134 Further on, Häring states:

Accordingly, unless it is quite apparent from other sources that the status of their health (including the hereditary strains) favors a happy marriage and healthy offspring, they should exchange health certificates before engagement. Such certificates of health testifying to freedom from communicable and hereditary disease are to be provided by a physician who is expert in psychology and eugenics. In any instance young couples must inform themselves regarding the existence of hereditary strains of disease in both sides of the relationship before they become deeply involved in hopes and plans of future marriage. 135

Häring’s recommendation of such pre-marriage scrutiny aims at preserving the institution of marriage for the good of all. Its goal is ensuring that marriage remains the type of institution that fulfills the responsibilities that flow from the rights it enjoys. In this vein, the Church teaches that

“it is permissible and even obligatory to take into account the evidence alleged in regard to the social and eugenic ‘indications’ so long as legitimate and proper means are used and due limits observed.” 136 The Church, however, stands on the side of the sacredness of marriage, with the view that human beings are born primarily for heaven and eternity, not for earth and time. Thus,

Pius XI responds to those who have an excessive preoccupation with eugenic considerations and

134 Häring, The Law of Christ, 3:337. See also the USCC Administrative Board, “The Many Faces of AIDS: A Gospel Response,” 487.

135 Häring, The Law of Christ, 3:337-38.

136 CCo 65: AAS 22 (1930), 563-64: “Quae autem afferuntur pro sociali et eugenica indicatione , licitis honestisque modis et intra debitos limites, earum quidem rerum ratio haberi potest et debet.” (emphasis in the original) See also Woytyla (John Paul II), Love and Responsibility , 278, which talks of the observance of “healthy rules of eugenics” in the choice of a spouse.

218 the urge to restrict the marriage of persons who, in the light of the laws and conjectures of eugenic science, are deemed likely through heredity to beget defective offspring. He states:

Those who act in this way commit the error of forgetting that the family is more sacred than the State, and that human beings are born primarily for heaven and eternity, not for earth and time. Those who on other counts are capable of marriage, even though, granted every care and attention, it is surmised that they will only beget defective offspring, are certainly not to be accused of a serious crime if they enter the married state; though it is often well to dissuade them from doing so. 137

Although he reiterated the position of his predecessor in upholding the right of those with hereditary defects to marry, even if it was certain that they would beget defective children, Pius

XII admitted that it would often be difficult to reconcile the two points of view—that of eugenics and that of morality. 138 He further stated:

Moreover, it remains to be seen what method the counselor (be he doctor, hematologist, or moralist) will suggest to them for this end. Here the works of specialists refuse to answer and they leave to the couple their entire responsibility. But the Church cannot be satisfied with this negative attitude; she must take a position. 139

The preoccupation, rather than obsession, with hereditary defects was and still is morally relevant because it played and continues to play an important role in promoting the common

137 CCo 68: AAS 22 (1930), 565: “Quicumque ita agunt, perperam dant oblivioni sanctiorem esse familiam Statu, hominesque in primis non terrae et tempori, sed caelo et aeternitati generari. Et fas profecto non est homines, matrimonii ceteroqui capaces, quos, adhibita etiam omni cura et diligentia, nonnisi mancam genituros esse prolem conicitur, ob eam causam gravi culpa onerare si coniugium contrahant, quamquam saepe matrimonium iis dissuadendum est.” In discussing genetic issues, Pius XII states that, when genetic factors are likely to cause a couple to produce defective offspring, prenuptial examination is licit and may even be obligatory. Moreover, while one may even advise such a couple not to marry, one may not forbid them to marry. See also Pius XII, Allocution to the Conventui VII internationali a “Societate internationali Hematologiae” September 12, 1958: AAS 50 (1958) 732- 40.

138 Pius XII, Allocution to the Conventui VII internationali, 738.

139 Ibid., 739.

219 good and the future of humanity. To function for the good of everyone, society needs healthy citizens. For humanity to continue to exist, offspring must be born with the potential to grow to adulthood and fulfill their obligations in society for the good of all and for the advancement of humanity. If the majority of citizens in any given society were defective persons, such a nation would likely be enmeshed in difficulties and would be unable to fulfill its obligations to its citizens through the demands of the various arms of public life. Indeed, such defective persons would become a significant burden both to their families and to the society. Aware of this issue,

Pius XII stated:

Certainly it is right, and in the greater number of cases it is a duty, to point out to those whose hereditary is beyond doubt very defective, the burden they are about to impose on themselves, upon their partner in marriage and upon their offspring. That burden might perhaps become unbearable. 140

The right to life takes precedence, irrespective of its quality, because God alone is the author of life and he alone has the right to take it back. As hereditary defects affect one’s life to varying degrees, a dubium regarding which carriers may be allowed to marry and those that may be barred from marrying arises. Moreover, the concern about defects in offspring is different from the concern about the threat to the life of offspring itself posed by HIV/AIDS. Therefore, the problem concerning HIV/AIDS extends beyond generating defective children. It is known that, for the infected children, the chances of survival are very limited, unless adequate medical assistance is available. Consequently, those who enter into marriage without performing a pre- marriage health-check would seem to act irresponsibly because they endanger their own good, the good of the other spouse, the good of any possible offspring and the commonweal.

140 Pius XII, Allocution to the Primum Symposium Internationale Geneticae Medicae , September 07, 1953: AAS 45 (1953) 606.

220

Furthermore, the scientific evidence on the HIV/AIDS pandemic and its impact on humanity seems to suggest that seropositive persons would be acting responsibly for the good of all by renouncing the exercise of their natural right to marry.

The moral-ethical perspectives we have examined thus far point to the conclusion that

HIV/AIDS carriers would be acting responsibly by refraining from insisting on their right to exercise the ius connubii . The Church, on her part, acknowledges the seriousness of communicable diseases for humanity and reiterates her position on the responsible use of sexuality. However, the Church has not specifically taken a stance with respect to the right of

HIV/AIDS carriers to exercise their natural right to marry as she did with leprosy patients and the insane in the Middle Ages. Therefore, what is the correct approach the Church can take regarding HIV/AIDS carriers and their natural right to marry? We shall attempt to provide an answer in the next section.

8. Can HIV/AIDS be a Restriction to Marriage?

After three decades of unrelenting scientific research, the evidence that emerged confirmed that HIV/AIDS is a mortal, irreversible illness. Its impact on the human race leaves no doubt that some urgent action is needed to help curb its prevalence and prevent the pandemic from spreading. 141 For decades, medical science has been searching for a solution for HIV on two fronts. While it tries to find the way to combat the virus together with the opportunistic diseases that surface as its outcome, it also aims to identify the means to restore the normal

141 We recall that Hansen advocated for voluntary segregation and an improvement in public hygiene as measures to combat leprosy, measures that were adopted by Norway and the number of leprosy patients in Norway declined within a few years. See Chapter Two, footnote 23. In that chapter, we also saw the various measures Medieval society adopted to contain the Hansen’s disease.

221 functioning of the body’s altered immune system. The use of antiretroviral drugs and prophylaxis, combined with therapy for secondary infections, has produced significant results.

Consequently, the viral load in carriers can presently be reduced to an undetectable level.

However, the virus cannot be fully eliminated from the body. Furthermore, this progress has its downside, as antiretroviral drugs can make the patients susceptible to other health complications due to the development of drug-resistant strain of the virus and toxicities, as we saw in Chapter

Three, which arise after the prolonged therapy. These are inevitable, since patients have to take these drugs practically daily and for life.

The modes of transmission of the virus remain irreversible and once a person is infected, the virus slowly wears away his immune system for an average of 10 years without resulting in any overt symptoms. 142 During this period, HIV carriers can infect many healthy people involuntarily. The hope of the discovery of a vaccine still remains, but this seems to be a task for the future. 143 This directly relates to the issue of whether those preparing for marriage should undergo a serological test for HIV as a requisite. Another crucial concern is whether someone who has been exposed to the virus can still insist on the exercise of his natural right to marry.

Considering the information on HIV/AIDS that we have examined thus far, it seems that the pandemic threatens the sum total of social conditions that allow people, either as groups or individuals, to reach their fulfillment more fully and more easily. 144 HIV/AIDS threatens those conditions and circumstances in the community that should be at the service of everyone. These

142 Poindexter, Handbook on HIV and Social Work , 10.

143 Zuanazzi, “AIDS: Aspetti Epidemiologici e Clinici,” 30.

144 GS 26 §1 and 74 §1, AAS 58 (1966), 1046 and 1095; Abbott, 225 and 284; DH 6 §1, AAS 58 (1966), 933; Abbott, 683; and MM 65: AAS 53 (1961), 417.

222 conditions and circumstances do not exist in the abstract; they are practical and down-to-earth and become either possible or impossible through human agency. These conditions are only possible where the members of the community are treated as persons and are encouraged to participate in the affairs of the group. 145 It is worth noting here the stigma and alienation

HIV/AIDS carriers have to bear from the society and even from family members. It is true that, in the Middle Ages, leprosy patients also suffered from social stigma, especially as the disease altered the identity of the person. While lepers were considered “walking corpses,” their alienation from communion with the rest of society was not uniform in every locality. Of course, generally, people were and still are afraid of leprosy, mostly owing to the deformities it causes; 146 however, as previously noted, the disease is rarely an immediate cause of death. On the other hand, HIV/AIDS is a direct threat to the existence of the human race; and, when life itself is at risk, other values that flow from it are endangered as well.

The intimate partnership of married life and love is threatened by the AIDS pandemic in varying degrees in the different regions of the world. As explained above, advances in antiretroviral therapy can help improve the lives of infected persons and enable them to have better quality of life. Recent studies have shown that a mixed-status couple (serodiscordant couple) can bring forth offspring that is HIV-free by having unprotected sex. 147 This outcome is

145 MM 65: AAS 53 (1961), 417.

146 Watts, Epidemics and History , 83.

147 Ariana Eunjung Cha, ‘As mixed-status HIV couples weigh risks, more choose to conceive the old-fashioned way,’ under “The Washington Post,” http://www.washingtonpost.com/national/health-science/as-mixed-status-hiv- couples-weigh-risks-more-choose-to-conceive-the-old-fashioned-way/2014/04/24/8c8b11a4-b9d4-11e3-96ae- f2c36d2b1245_story.html (accessed April 26, 2014). In this article, the man was seropositive and the wife was seronegative. The mother and the child were not infected.

223 possible when the viral load of the infected spouse is so low that it is undetectable. In such situation, the risk of infecting the healthy spouse is extremely low. Medical professionals posit that, if an HIV-negative partner takes a pill once a day, this can reduce the rate of infection even further. Consequently, with proper treatment, a baby born to an HIV-positive mother, regardless of the father’s status now has a less than 1 percent chance of contracting the virus. 148 Some primary care physicians have expressed reservations concerning this practice because the risk of transmission is still present, given that HIV viral loads fluctuate. In addition, well-intentioned patients may forget to take their medication, causing a spike in the viral load of the man. This may be the case when the couple is trying to conceive, whereby the risk of infecting the woman would increase dramatically.

As previously noted, because it cannot be eliminated from the body, the disease can erupt anytime without prior notice, making premature and painful death inevitable. In situations where medical assistance is lacking, infected persons usually experience a slow, long and painful degradation of their health before eventually succumbing to death. The situation for those individuals that are denigrated to the fate of the hopeless is aggravated even further. Thus,

HIV/AIDS robs man of his stewardship of the gift of life and of his ability to respect life in its inner mystery. The pandemic renders man unable to respect the mystery of the life of the other person and the freedom of the other person to live the mystery of his own existence. 149

148 Eunjung Cha, ‘As mixed-status HIV couples weigh risks.’ Because it is still innovative therapy, there is not enough data to back it up. Nevertheless, there is evidence that transmission of the virus is minimized.

149 Stratford Caldecott, “The Drama of the Home: Marriage, the Common Good and Public Policy,” in Marriage and the Common Good, ed. Kenneth D. Whitehead (South Bend, Indiana: St. Augustine’s Press, 2001), 5.

224

In marriage, and its subsequent use, the lives of the spouses become so united that the two persons assume a fundamental attitude towards the life of each other; they assume an irrevocable responsibility for the good of each other and for the common good. While marital responsibilities inevitably require certain sacrifices, the effects of the pandemic on its carriers that are not able to receive adequate medical assistance incapacitate them so severely that they are prevented from making the required sacrifices for the good of each other and for the good of the marriage. In addition, the consequences of the death of a spouse on the living spouse, especially the woman, on offspring, if any, and on society—social, psychological and economic—are profound and frustrate the promotion of the common good. 150

“The common good of the spouses, which is at the same time the good of each, must then become the good of the children. The common good, by its very nature, both unites individual persons and ensures the true good of each.” 151 Indeed, the common good of the spouses—love, fidelity, honor, and the permanence of their union until death—ought to be the common good of the future family, that is, the children that the spouses consented to bring forth and to educate. It is important to note here that the future fatherhood and motherhood of the spouses represents a responsibility that is both physical and spiritual in nature. They have the responsibility to bring up possible offspring to be worthy citizens of this world and future occupants of the kingdom of heaven. In this regard, John Paul II considered the education of children to be a genuine apostolate, a living means of communication, which not only creates a profound relationship

150 See the full treatment of this in Chapter Three.

151 GSa 10: AAS 86 (1994), 881: “Utriusque porro bonum, quod cuiusque bonum est, fiat oportet liberorum bonum. Suapte natura commune commodum, singulas dum copulat personas, uniuscuiusque in tuto collocat commodum.”

225 between the educator and the one being educated, but also makes them both sharers in truth and love, the final goal to which everyone is called by God. 152

It seems that HIV-infected spouses deprived of medical assistance would face some difficulties in the education of their offspring. The psychosocial effects of the pandemic on its carriers also hinder their rightful ability to teach their children the rudimentary formation, which they need within their initial years, and the continuous formation that leads them to the age of reason. Furthermore, the economic impact of the pandemic on infected individuals, their families, and society imposes additional difficulties for seropositive spouses to fulfill the obligation they owe in justice to the education of their children. The majority of HIV/AIDS carriers are unable to support themselves adequately and children would be an additional and unmanageable burden.153

Actually, the most solemn responsibility parents have toward their children is the example of their self-giving, which guides and makes the family grow. Indeed, “the communion and sharing that are part of everyday life in the home at times of joy and at times of difficulty are the most concrete and effective pedagogy for the active, responsible and fruitful inclusion of the children in the wider horizon of society.” 154 Yet, this daily family communion and sharing may face difficulties because the multiple effects—social, psychological, emotional, and economical—HIV/AIDS has on its carriers stifle concrete and effective pedagogy. In justice and

152 GSa 16: AAS 86 (1994), 899.

153 Devine, Good Care, Painful Choices , 193-94, presents the annual average hospital bill for an AIDS patient in the United States, which is beyond the means of most individuals.

154 FC 37: AAS 74 (1982), 127: “Atque communio ac participatio peracta cotidie in familia laetitiae difficultatisque temporibus solidissimam sane et efficacissimam pedagogiam constituit, qua filii actuoso, conscio, fructuoso modo inserantur in vastiorem orbem societatis.”

226 love, parents are required to fulfill their responsibilities for the education of their children, thereby contributing to the common good and to the good of others. 155 However, the fulfillment of these responsibilities is lessened considerably, if not eliminated entirely. This is particularly true when both spouses are seropositive and are unable to avail themselves of the necessary medical assistance on a regular basis. Unfortunately, these cases abound in sub-Saharan Africa and in other poor regions. Consequently, such seropositive spouses are unable to contribute in creating those conditions and circumstances in which they and any surviving offspring can grow and reach their own perfection.

The goal of bringing forth children is that they should be alive, grow to their full potential and contribute in promoting the commonweal. Indeed, man can only give God the glory that is

His due by being alive, for that is why He created him. In the words of John Paul II, “The glory of God is the common good of all that exists; the common good of the human race.” 156 Given that, without adequate regular medical attention, children born to HIV-infected mothers would certainly not survive beyond infancy, this begs the question why they should be brought into the world in the first place. The structural setting of the family is negatively impacted by the premature death of its HIV-infected member. As we saw earlier, recent advances in antiretroviral therapy can help mixed-status HIV spouses (serodiscordant spouses) stay healthy and bring forth uninfected offspring by having sexual intercourse without using condoms. Although doctors differ in their views in this regard, they are also unable to reach consensus on whether using drugs such as Truvada for pre-exposure prophylaxis or PreEP, can provide another layer of

155 GS 30, AAS 58 (1966), 1049-1050; Abbott, 228-29.

156 GSa 11: AAS 86 (1994), 885: “Dei gloria est bonum commune omnium rerum quae sunt; bonum scilicet commune humani generis.”

227 protection for the mother. Another concern is the cost of the drug per annum and the potential side-effects and risks involved. 157 However, the risk that serodiscordant couples take in trying to bring forth children the “old-fashioned” way would need to stand the test of time to become accepted standard practice. Even in the one case where doctors thought that they had succeeded in eliminating the virus from an infected baby, they were surprised when the child tested positive four years later. 158

Presently, HIV/AIDS is deemed responsible for the surge in the number of orphaned children, as the prevalence of orphans in sub-Saharan Africa corresponds very closely to the prevalence of HIV, with a few exceptions. 159 Although orphans are generally fostered by members of the extended family, studies show that they are less likely than non-orphans with whom they live to be attending school. In addition, orphans living in wealthier households are discriminated against even when resources are not particularly scarce. The undesirable outcome is that “orphaned adolescents are more likely to have had sex; they initiate sexual activity at earlier ages and are more vulnerable to a range of ‘adverse sexual outcomes’: unplanned pregnancy, HSV-2 (i.e., herpes), and HIV.” 160 In such an unhealthy environment, the cycle of the pandemic is fostered. Sadly, many orphaned children hardly grow to their full potential to

157 Eunjung Cha, ‘As mixed-status HIV couples weigh risks.’ The drug, in the form of a pill, is supposed to be taken once a day throughout the year. The majority of the cost, which ranges from $12,000.00 to $16,000.00 a year, is covered by insurance. This is easily affordable in First World countries that also have a good insurance scheme. Still, in Third World countries, where the majority of them have neither an efficient health system nor a health insurance scheme, this remains only a dream. The majority of HIV/AIDS carriers in these countries are still to be beneficiaries of any basic antiretroviral therapy talk of less of recent advances in the therapy.

158 The story of the ‘Mississippi baby’ under “Washington (AFP)” http://news.yahoo.com/baby-thought-cleared- hiv-virus-again-204726885.html (accessed July 10, 2014). See full story under Appendix Three, Page 261.

159 Jenny Trinitapoli and Alexander Weinreb, Religion and AIDS in Africa , 174.

160 Ibid., 176.

228 contribute in creating those conditions of social life in which others can enjoy the possibility of achieving their own perfection in certain fullness of measure and with some relative ease.

Marriage engenders a particular responsibility for the common good of the spouses and of the family. Marriage should create the conditions that would favor the movement of the spouses toward perfecting themselves and achieving their destiny in consonance with their dignity as persons. In this way, the spouses would also create the conditions of social life in which other members of society can achieve their own fulfillment with relative ease, thereby promoting the common good. HIV/AIDS, however, threatens this good. The consequences are felt most profoundly in sub-Saharan countries, Cameroon in particular, where the incidence of the pandemic continues to rise and threatens those conditions of social life required for the promotion of the common good. This is best exemplified by the funding dedicated to combating the pandemic, which should have been designated for improving or providing other social amenities for the citizens. 161

The duty to promote the dignity of marriage and the family rests primarily on the persons that freely and consciously decide to exercise the ius connubii , with the intent to form a family.

However, the Church must also assume her responsibility as the custodian of marriage and the promoter of the common good. Therefore, to safeguard and promote the common good of marriage, of the family and consequently of society, it seems that the Church should consider whether HIV/AIDS carriers should be given the responsibilities that flow from the marital union.

This decision should not be based on the demands of the natural law of charity, whereby all individuals, regardless of their circumstances, can decide whether to exercise their natural right

161 We described the plight of these countries under “The Economic Impact of HIV/AIDS in Cameroon” under Chapter Three. See also Keenan et al., Catholic Ethicists on HIV/AIDS Prevention , 33.

229 to marry or not. Human behavior plays an important part in promoting the pandemic, and heterosexual intercourse as its principal mode of transmission remains one of the vulnerable areas of the human nature. Human beings should be offered assistance in this regard for the good of all. Therefore, what concrete actions should the Church take?

In regions where medical assistance is available and is relatively cheap and affordable, the administration of antiretroviral drugs and prophylaxis has helped many HIV/AIDS carriers to enjoy a better quality of life. The recent advances in antiretroviral therapy, as we saw earlier, have ensured that serodiscordant couples who regularly take medication can actually beget offspring that are HIV-free by having “natural” sexual intercourse. As we previously noted, these advances are still in too early a stage to have become standard practice. Moreover, the risk of infection, though significantly reduced, remains. Furthermore, the high cost and the lack of consensus among doctors regarding the drug to be taken daily, due to its side-effects and other risks, remain serious concerns as well. However, the basic fact remains—the virus cannot be eliminated from the body and unexpected surges in viral load can occur at any time, which can lead to infection during coitus.

In the present circumstances, the Church must remain consistent in her practice of recognizing and protecting the ius connubii for the good of the spouses and of the wider community. Yet, to establish HIV/AIDS as an impediment to marriage would mean barring everyone who is seropositive from marrying, which could unjustly exclude millions of people from forming a happy marital union. Still, to allow HIV/AIDS carriers freely to make the decision whether to marry or not, as do HIV-free persons, is also dangerous. This would mean leaving an open field that could endanger the lives of millions of people and frustrate the common good, as we saw in the moral-ethical arguments discussed earlier. Therefore, it seems

230 that the Church’s approach may differ from one region to another, depending on the availability and affordability of the necessary medical assistance and on the judgment of the local Ordinary of the particular territory.

However, any well informed decision regarding HIV/AIDS carriers and the exercise of the ius connubii has to take into account several factors. First, HIV has a long latent period in the body and the virus cannot be presently eliminated from the body. Second, HIV is a retrovirus and it replicates rapidly in the body. Third, there is 2-week to 3-month “window period” when detectable viral antibodies are generated. Fourth, the Church’s stance is that the problem of the pandemic cannot be overcome by the distribution of prophylactics, but rather by education and responsible behavior. 162 Finally, the concern does not pertain to the capacity of HIV/AIDS carriers to marry, that is, to elicit valid matrimonial consent, but rather the effects of such marriage vis-à-vis the good of the spouses and the common good.

Therefore, it seems that the following conditions would have to apply to seropositive persons who seek to exercise the ius connubii : (a) They should present to the parish priest a medical certificate of serological test for HIV as evidence of responsible behavior toward their own proper health, that of their future spouse, any possible offspring, and the wider community;

(b) The two parties concerned should exchange such medical certificates; (c) The parish priest must treat the medical results with absolute confidentiality; (d) Where one or both parties are

HIV-positive, they have to decide whether to proceed with the marriage or sever the relationship.

162 Benedict XVI, Light of the World , 193-94. Benedict XVI actually explains what responsible behavior entails. It entails two elements: “Firstly, bringing out the human dimension of sexuality, that is to say a spiritual and human renewal that would bring with it a new way of behavior towards others, and secondly, true friendship offered above all to those who are suffering, a willingness to make sacrifices and to practice self-denial, to be alongside the suffering.”

231

In the event that the two parties decide to proceed with the marriage, the following conditions should apply: (i) They have to be counseled on the obligation to promise that they would remain continent for the duration of their married life, in order to protect the life of the uninfected spouse (where both parties are seropositive, they must pledge not to hasten the deterioration of their health conditions through re-infection by “normal” sexual intercourse); 163 (ii) In the event that the parties acknowledge that they would not be able to live a continent life, then, the following alternatives would apply: (1) Where the necessary medical assistance is available and affordable by the parties, they should be counseled on the use of marriage and—upon showing sufficient understanding of the implications of their condition—may be allowed to marry; (2)

Where such medical assistance is not available or is unaffordable by the parties, they may be restricted from entering into marriage. In the situations described in the last two cases, a local

Ordinary would have to intervene, on a case by case basis, to allow or restrict such a marriage from taking place, in order to protect the good of the spouses and the common good. Such restriction or prohibition is not an impediment because only the supreme authority of the Church has the right to establish other impediments for those who are baptized. 164

163 In the event where the parties consent to live continent for the duration of their lives, the canonical form would have to be adapted to suit the juridical form of such marriage and the parties would be required to declare, in one form or another, that they promise to remain continent throughout their married life. They may be required to make such declaration by signing a form prepared for this purpose, similar to the one the Bishops of the Dioceses of Buea and Bamenda prepared for those who enter into a mixed-status marriage. This form is an application of number 4 of Motu Proprio Matrimonia Mixta issued by Paul VI on March 31, 1970, which states: “To obtain from the local Ordinary dispensation from an impediment, the Catholic party shall declare that he is ready to remove dangers of falling from the faith. He is also gravely bound to make a sincere promise to do all in his power to have all the children baptized and brought up in the Catholic Church.”

164 c. 1075 §2: “Uni quoque supremae auctoritati ius est alia impedimenta pro baptizatis constituere.”

232

The gravity of HIV/AIDS, therefore, seems to be one of the justified causes under the rightful authority of a local Ordinary to establish appropriate norms for the lawful celebration of marriage by seropositive persons in his territory for the good of all. The local Ordinary has the authority in the Code of Canon Law (c. 1077 §1). 165 Such authority to restrict or prohibit marriage is contingent and would be exercised strictly on the assessment of each individual situation. Because marriage is a fundamental right of the human person and the vocation of the majority of the human race, a local Ordinary can only impose a restriction on its exercise for a grave reason and while that reason persists. We must always keep in mind that married life, one of the means of the sequela Christi , has its crosses and sacrifices, as does every other vocation, and those who embrace it ought to be aware of what they freely take upon themselves.

9. Conclusion

The vocation of man and woman to marriage in which they commit themselves totally for life comes directly from God. From the very outset, God blessed marriage to be the fruitful means of the transmission of human life. By His own design, God established an inseparable unity between the personalist and procreative ends of marriage, because they are internally and intrinsically ordered to establish the conditions of the conception of a new human person, the supreme gift of marriage. Unfortunately, today, these ends of marriage are threatened by HIV, a mortal sexually transmissible disease.

165 The canon states: “Ordinarius loci propriis subditis ubique commorantibus et omnibus in proprio territorio actu degentibus vetare potest matrimonium in casu peculiari, sed ad tempus tantum, gravi de causa eaque perdurante.”

233

In their effort to combat the HIV/AIDS pandemic, secular authority and some authors advocate the use of condoms. Some of the proponents of the use of condoms view it as “safe sex,” while others argue that their usage is a lesser evil that promotes a greater good, marital harmony. There are also those that invoke the principle of double effect to justify such usage, and still others maintain that the intention of the agent, to protect infecting a healthy spouse, is the determinant factor regarding the morality of the act.

The Church, however, regards the use of condoms within marriage as a contraceptive measure. It is therefore intrinsically evil because its object is incompatible with the vocation to life with God of the acting person and to the communion of life with his neighbor. Indeed, the use of condoms falsifies the inner meaning of conjugal love by separating the personalist meaning and the procreative meaning of the conjugal act that defines the marriage. It suffocates the possibility of the interpersonal community of husband and wife from expanding to become a family, from serving to preserve the species. The Church’s understanding of the use of condoms as intrinsically evil collides with the arguments that support their usage by invoking the principle of the toleration of a lesser evil, the principle of double of effect and those that see the prevention of conception to be praeter intentionem . As the contraceptive effect is an essential component of the use of condoms, they are, by definition, the object of the contraceptive choice. In addition, the Church’s insistence that the physical characteristics of the conjugal act should be respected in order for the sexual act in marriage to be moral is not a physicalist approach; it is not absolutizing the physical laws of biology. Since the human being is a composite of body and spirit, the frustration of the physical characteristics of the conjugal act by the use of condoms renders the sexual act immoral.

234

Man, therefore, needs to appreciate human sexuality, the fundamental component of personality that has love as its intrinsic end, as giving and receiving that is evident in marriage alone. Such love is tied to fecundity, which cannot be considered its alternative or opposite.

Human sexuality lived in a covenant relationship of marriage contributes effectively in fostering the well-being of the spouses and the common good; it summons the spouses to assume responsibility for their sexual life. Such responsibility is complemented by the responsibility for the life and health of each other and the health, well-being and prosperity of the wider community.

Today, HIV/AIDS poses a fundamental threat to the life and health of society, a fruitful conjugal relationship in particular, since it is transmissible through sexual intercourse. The intimate corporeal union of man and woman in marriage is the result of their love for each other.

Their union shapes the lives of two persons on a definitive life-long journey. It therefore seems morally inadmissible for a seropositive person to invoke “love” as a reason to marry, in order to have a companion accompany him on such life-long journey that would eventually transform conjugal love into a source of homicide, capable of placing a loved one on a slow, painful path to death. Christian love requires that a seropositive person undertakes any sacrifice and renunciation to avoid inflicting a loved one with a mortal disease. 166 A seropositive person is also morally bound not to invoke his right to exercise his freedom to enter into marriage, as this may result in infecting a healthy spouse. This sacrifice is authentic freedom to do the good; it is freedom of responsibility. The moral responsibility that goes with authentic freedom requires

Christian heroism, which would enable a seropositive spouse to be alert to the demands of the

166 Ciccone, “Aids: problemietici in ambito coniugale,” 626.

235 commandment “Thou shall not kill” and therefore not expose a healthy spouse or any possible offspring to the virus.

The effects of HIV/AIDS on its carriers also affect the conditions of social life that enable people to enjoy the possibility of achieving their own perfection in a certain full measure and with some relative ease. However, in regions where antiretroviral therapy is available and affordable, those infected with the virus are living a better qualify life and can generate children who may be HIV-free as well. However, in sub-Saharan Africa and many other regions, the majority of HIV/AIDS patients have limited access to medical assistance and, in these regions, the pandemic continues to claim lives on a daily basis. Indeed, in the absence of any vaccine,

HIV/AIDS continues to pose a serious threat to the good of marriage and to the common good.

Consequently, it seems that HIV/AIDS is one of those cases under the competence of local

Ordinaries or Conferences’ of Bishops to establish appropriate norms for the lawful celebration of marriage by its carriers for the common good.

CONCLUSION

An ethical evaluation of the exercise of the natural right of HIV/AIDS carriers to marry in the light of the common good is relevant from two perspectives—the purpose of man’s creation by God and the social nature of the human person. Man was created to live his earthly life in the love of God so that he may finally enjoy everlasting bliss with his Creator. Because

God has called him by grace to a covenant of life and love with Him, man is capable of realizing the purpose of his creation; he is capable of offering to God a response of faith and love that no other creature can give in his stead. 1 Thus, during his earthly pilgrimage, man is expected to be living the values of the kingdom for the kingdom because, in a certain sense, the kingdom is already here in our midst.

To recognize and to live the values of the kingdom, man must constantly make prudential judgments in his everyday life; man must continually attune himself to the values of God, to what is true and to what is good. In order to prove what is the will of God, what is good and acceptable and perfect (Rom 12:2), knowledge of God’s law in general is certainly necessary, but it is not sufficient, as it also necessitates a sort of “connaturality” between man and the true good. 2 “Such a connaturality is rooted in and develops through the virtuous attitudes of the individual himself: prudence and the other cardinal virtues, and even before these the theological virtues of faith, hope and charity.” 3

1 CCC n. 357.

2 S. Th ., II a II ae , q. 45, a. 2.

3 VSp 64: A.A.S. 85 (1993), 1183: “Eiusmodi connaturalitas radicescit et erescit rectis in propositis ipsius hominis: prudentia ceterisque virtutibus cardinalibus, et vel in primis virtutibus theologalibus fidei, spei et caritatis.”

236

237

When we talk of the virtuous attitudes of the individual, we are talking about the quality of the life of the individual whose principle of action is associated with habitual, general good intentions. Such a quality of life is acquired through education and personal effort. A virtuous person acts out of love and such a person’s life in the community reflects the fullness of Christ’s messianic grace. Such an individual performs, in freedom, good actions that promote the communion of common growth and the common good of the wider community. 4 Such an individual is said to act prudently; he acts out of authentic love and out of practical wisdom. Out of love, such an individual is able to choose wisely between what is helpful and what is harmful. 5

Such a person strives to establish objective truth in the context of the “here and now” moral situation. Romanus Cessario states:

Without the active direction of prudence, human conduct remains supine and prone to miss the mark; without true prudence, a person’s actions inevitably manifest either excess or defect with respect to embracing the proper ends that compose human well- being. In short, prudence ensures that the believer possesses a complete moral culture and lives a well-ordered life, so that he or she easily reaches the goal of beatitude. 6

Cessario’s description reflects a virtue-oriented morality, which is focused on the acting person with all his intellectual and affective dispositions. The interior acts of the person must necessarily produce good actions in a way that there is coordination between a person’s interior

4 Pinckaers, The Pinckaers Reader , 290.

5 Saint Augustine, “De moribus ecclesiae Catholicae,” Book I, chap, 15 (PL 32:1322). See also S. Th., II a II ae , q. 47, a. 1, ad 1: “Sic ergo prudentia dicitur esse amor non quidem essentialiter, sed inquantum amor movet ad actum prudentiae.”

6 Romanus Cessario, The Virtues, Or The Examined Life (New York: The Continuum International Publishing Group Inc., 2002), 108.

238 disposition and the exterior good actions motivated by it. In this sense, we can talk of one’s actions being ethically right, whereby a person is living in accordance with his nature and acting with the goal of promoting the common good.

This brings us to the second perspective on which this dissertation rests—the social nature of the human person. The question of the relationship of man and the true good and the development of virtuous attitudes arise because man is inherently a social being, a being that realizes himself only in and through others. The exercise of the natural right of HIV/AIDS carriers to marry triggers debate because the marriage of two persons through personal consent is linked to the wider community by networks—through the offspring they beget and through social and economic ties. Because human behavior plays an important role in the spread of

HIV/AIDS, the common good approach we adopted enables us to see that the health of the couple where one or both of the partners are HIV positive is a public health issue. 7 The common good approach, therefore, attends to the integral good of the spouses and to the flourishing of the community as a whole because, if both candidates for marriage are healthy, the health of their possible offspring and of the community is guaranteed, or at least to the extent that there are no known reasons to doubt it. Indeed, the good health of every single member of the community provides the required atmosphere for the realization of the values of both the earthy and heavenly kingdoms.

Marriage represents the covenant of God with man and thus with love, because God is love; God is the supreme Good. The love that binds a man and a woman in marriage is virtuous

7 Emily Reimer-Barry, “HIV Prevention for Incarcerated Populations: A Common Good Approach,” Journal of the Society of Christian Ethics 31 (2011): 179.

239 love, love that finds expression in the commandment to love. From the Gospels, we know that love is a divine virtue and, like every supernatural virtue, love takes root in nature and assumes a human form as a result of man’s own actions, both in his interior and external behavior. 8 Thus, the commandment to love is a form of the personalistic norm because it concerns the value of the human person, a being with a spiritual soul and a supernatural destiny. The core point to keep in mind is that, although there are other particular values in the human person—such as the sexual value, beauty, et cetera—these values must be distinguished from the intrinsic value of the person. The values that find expression in the love between a man and a woman in marriage are inextricably linked with the whole being of the person. Thus, when we talk of love that binds a man and a woman in marriage, we are referring to love that is beyond an emotion or excitement of the senses. We speak of the affirmation of two human beings as persons through the authentic commitment of the free will of one person (the subject), resulting from the truth about another person (the object). 9

Authentic marital love is revealed in the gift of each spouse to the other for the enrichment of the other. It is the union of two persons that is expressed in many ways, including sexual intercourse, which is proper to marriage alone. An HIV/AIDS carrier who insists on exercising his natural right to marry by the same token insists also on exposing the other person and any possible offspring to a life-threatening disease. Such a person seems to overlook the value and the integral good of the other as a person who has to be regarded and treated as such.

8 Wojtyla (John Paul II), Love and Responsibility , 120.

9 Ibid., 123.

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In doing so, such a person undermines the good of the wider community and the society as a whole.

Marital love emanates from the will and therefore is a human act, one that carries with it full human responsibility. To take responsibility for one’s love means to have responsibility for the person one loves, to have concern for the true good of the person. 10 Karol Wojtyla (John Paul

II) further states:

To feel responsibility for another person is to be full of concern, but it is never in itself an unpleasant or painful feeling. For it represents not a narrowing or an impoverishment but enrichment and broadening of the human being. Love divorced from a feeling of responsibility for the person is a negation of itself, is always and necessarily egoism. The greater the feeling of responsibility for the person the more true love there is .11

The responsibility for the true good of the other person in marriage stems from the free choice of the other person to be a life-long companion. The good in a person that is reflected in the other person leads a person to choose the other person as another “I” and that is why one must take responsibility to promote such goodness in the other. Such goodness encompasses both the material and spiritual well-being of the other person because each spouse is continually discovering himself or herself in the other. Thus, a seropositive person who insists on entering a life-long relationship with another person with the possibility of infecting that person and any possible offspring with a fatal disease morally abnegates his responsibility for the true good of that person and jeopardizes the attainment of the common good.

10 Wojtyla (John Paul II), Love and Responsibility , 130.

11 Ibid., 130-31. (emphasis in the original)

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Another dimension that defines accurately the love that binds spouses in marriage—and which the spouses may hardly think about—is that, in marrying, they commit themselves to justice (and the common good). The spouses commit themselves to give each other what is their due through the mutual fulfillment of their various duties and obligations that demonstrate that they care for the needs of society. Indeed, “the obligations of justice and love are fulfilled only if each person, contributing to the common good, according to his own abilities and the needs of others, also promotes and assists the public and private institutions dedicated to bettering the conditions of human life.” 12 However, the impact of HIV/AIDS on the health and life of the spouses (emotional, psychological and reduced life expectancy), together with its socio- economic impact on marriage and family life, renders the spouses incapable of establishing a communion of life and love. Consequently, neither is able to assume the essential obligations of marriage that society expects from them in justice. As an unavoidable consequence, these effects have pushed many regions, especially sub-Saharan Africa and other poor nations, onto a slippery slope of unstoppable collapse.

In fulfilling its own responsibilities toward the health of its citizens, political authority, as supported by some authors, advocates and promotes the use of condoms to arrest the spread of the virus. Unfortunately, this prescription does not seem to yield the desired results because infections continue to spread. The fact that some of those who promote the use of condoms are

12 GS 30, AAS 58 (1966), 1049; Abbott, 228: “Iustitiae ac caritatis officium [magis ac magis] adimpletur per hoc quod unusquisque, ad bonum commune iuxta proprias capacitates et aliorum necessitates conferens, etiam institutiones sive publicas sive privatas promovet et adiuvat quae hominum vitae condicionibus in melius mutandis inserviunt.”

242 not prepared to stake their own lives on it is interesting, as it indicates clearly that condoms are not the solution in the fight against HIV/AIDS. A report in the British Medical Journal states:

At the eighth world congress of sexology, in Heidelberg, Germany, in 1987, about 800 delegates were asked to indicate by a show of hands whether they would have sex with a person who was known to be HIV positive, using a condom of reliable quality as the only protection. The only person who said yes was a journalist, who said that he would do so even without a condom. He later turned out to be a vociferous gay activist, who caused several other gay activists to distance themselves publicly from his extreme views. At the 10 th world congress, in Amsterdam in 1991, the same question was asked in the sexuality education workshop. Not one of the 60 professionals present said that he or she would have sex with an HIV positive person using only a condom. 13

While it cannot be disputed that condoms greatly reduce the risk of HIV infection, they are not a cure and cannot be viewed as therapeutic, based on the scientific definitions of the term. It is also important to stress that, even if condoms were 100 percent effective, their use would still be morally wrong. The choice of the use of a condom by a seropositive spouse is the free choice of a behavior that is not ordainable to God. It contradicts conjugal chastity and thus cannot be condoned, whatever its intent. The intention of an agent is crucial in defining the morality of an act, while the primary determinant of the “moral species” of an act is the “object” of the exercise of one’s freedom. 14 What an agent has committed himself to do in freedom and is ordered to or capable of being ordered to man’s ultimate end is a morally good act. Yet, some acts are, by their nature, unworthy of man from the perspective of the acting person. Such acts cannot therefore be ordered to man’s ultimate end. Such acts are wrong semper et pro sempre and the use of

13 A. Grazioli, “Using condoms to prevent transmission of HIV: Abstinence and fidelity are only fully effective means of prevention,” British Medical Journal 312, no. 7044 (June 1996): 1478.

14 VSp 79: AAS 85 (1993), 1197.

243 condoms is one of them. Therefore, the weight of the morality of the use of condoms does not rest solely on the fact that it is contraceptive but on the object of such a freely chosen act.

HIV is a behavioral disease and, in the absence of any vaccine, the only fully effective means to combat it is abstinence before marriage and fidelity within marriage in a monogamous heterosexual union. The promotion of “safe sex” or “safer sex” or the call for “safe sex” education flouts the dignity of the human person created in the image and likeness of God.

Actually, such an approach seems to be a subtle suggestion that man is in such a “helpless” state before his own sexuality that he is prepared to accept any assistance even that which actually worsens his present “helplessness.” I dare to disagree, because God who created man and called him to holiness did not leave him without the necessary means to achieve holiness. Of course, as a being that is sui iuris , man is able and is expected to live in accordance with his dignity, but this requires some effort on his part. The Church requires such effort from her subjects in their respective vocations. Let us consider the case of a young couple who are just two years in their married life and tragedy strikes: the young husband is involved in an accident and sustains a fractured spine, which renders him unable to sustain an erection for the rest of his life. This is a case where the couple would be physically unable to have any sexual relationship for the rest of their lives. As a result, they would have to adopt a new plan for their conjugal life, where sexual relationships no longer have a place. 15 For such a plan to succeed, the parties need to make serious effort to see their lives through the right lens. The accident sustained by the husband renders sexual intercourse physically impossible (physical impossibility), which does not affect

15 Ciccone, “AIDS: Problemi Etici in Ambito Coniugale,” 629.

244 the validity of the marriage, since the accident happened after a validly contracted marriage. If it had happened before the marriage, we would be dealing with a case of impotence, which renders marriage invalid ab initio .

On the other hand, while an HIV-positive spouse is physically capable of engaging in sexual intercourse, he is in a morally impossible 16 situation, as in doing so, he would accept the possibility of infecting a healthy spouse with the virus. A seropositive spouse is morally bound not to expose a healthy partner to the contagion because to do so is knowingly exposing the other spouse to the possibility of contracting the disease. Moreover, his act has further consequent effects on the possible offspring and the common good. Therefore, prudence requires a seropositive person to refrain from marriage and from eventual sexual intercourse for the good of the healthy spouse and the common good.

Man, therefore, is not “helpless” before his own sexuality, as modern culture tends to portray. Actually, John Paul II reminds all couples of what their vocation is—the call to holiness.

The Supreme Pontiff draws attention to what he defines as the central truth of Christian ethics.

He states:

The Spirit, given to the faithful, writes the law of God in our hearts so that this is not something exclusively external, but is and above all given internally. To believe that situations exist that it may not be possible for spouses to be faithful to all the demands of the truth of the same married love is to forget this presence of grace that characterizes the New Covenant: the grace which the Holy Spirit makes possible because man left only to his own powers, it would not be possible. 17

16 Mendonça, “Consensual Incapacity for Marriage,” 506-508.

17 Giovanni Paolo II, “Discorso ai partecipanti ad un Seminario su ‘La procreazione responsbile’” (17 novembre 1983) In Insegnamenti di Giovanni Paolo II (Città del Vaticano: Libreria Editrice Vaticana, 1984), 6/2:562: “Lo Spirito, donato ai credenti, scrive nel nostro cuore la legge di Dio cosi che questa non è solo intimata dall’esterno, ma è anche e soprattutto donata all’interno. Ritenere che esistano situazioni nelle quali non sia di fatto possibile

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Fidelity to the demands of the truth of human sexuality is possible because of the presence of

God’s grace in human hearts through the action of the Holy Spirit. It is through the action of the

Spirit with the cooperation of the spouses that marriage becomes a means of the personal growth and sanctification of the parties, a means of building up of the Christian community, 18 and a means of promoting the mission of the Church in view of the common good. The spouses, however, can fulfill these roles only by respecting the rights of the community in which marriage is lived out. As previously shown, such fulfillment is often stifled by the impact of HIV/AIDS on their lives.

Ethically, any effort aimed at curbing the cycle of the spread of the pandemic must have two objectives that are worthy of the human person: adequate information and education toward responsible maturity. 19 Such information and education would lead to a clearer and joyful discovery of the spiritual values of love, which are fundamental to human existence. It would also result in a better appreciation and value of human sexuality and the vocation to marriage.

Such deeper appreciation of the meaning of human love and of sexuality will help to shift the mentality of our time with regard to the exercise of the right to marry at all cost toward that in which the quest for truth, beauty, goodness, and communion with others for the sake of common growth and the common good are factors that determine whether a person should and must

agli sposi essere fedeli a tutte le esigenze della verità dell’amore coniugale equivale a dimenticare questo avvenimento di grazia che caratterizza la Nuova Alleanza: la grazia dello Spirito Santo rende possibile ciò che all’uomo lasciato alle sole sue forze, non è possibile.” (emphasis in the original and translation by the thesis author)

18 Doyle, “The Individual’s Right to Marry in the Context of the Common Good,” 301.

19 John Paul II, “The Church in the Face of the Twofold Challenge of AIDS,” 7.

246 exercise such right. 20 HIV/AIDS carriers who insist on exercising their natural right to marry seem to demonstrate the crisis of moral values that is crippling our secularist world that scoffs at such values as old-fashioned. 21 Rather, moral values enable man to look at his life in mutual interdependence and cooperation with his fellow human beings and never in isolation; they enable man to evaluate his acts in love and justice within the context of the community because his actions, whether good or bad, have consequences on the self and on the community.

The values that respect human dignity would also inform social ethics as it pertains to the social realities of life, such as poverty and oppression, as well as psychological factors, like loneliness and alienation, which influence people’s behavioral patterns in ways that expose them to the HIV virus. Thus, the framework of sexual and social ethics can guide people to posit right moral judgments regarding human dignity and the common good. Such a framework would raise the moral awareness in people to see the importance of voluntary testing if they suspect that they have been exposed to the virus. Moreover, it will assist those who are HIV-positive in accepting that they may not insist on the exercise of their natural right to marry because of the responsibility they owe to themselves and to the wider community.

20 CA 36: AAS 83 (1991), 838-40, where the same values apply also to economic life. Concerning the problems plaguing advanced economies, John Paul II talks of the phenomenon of consumerism and advocates educational and cultural work on the power of choice and the formation of a strong sense of responsibility. To maintain the physical and spiritual health of man, John Paul II advocates creating lifestyles in which the quest for truth, beauty, goodness and communion with others for the sake of common growth are the factors that determine consumer choices, savings and investments.

21 Catholic Bishops’ Conference of the Philippines: “In the Compassion of Jesus: A Pastoral Letter on AIDS,” Tagaytay City, January 23, 1993. These moral values center on the beauty, mystery and sacredness of human love and sexuality, which society today finds difficult to accept as God’s gift and responsibility reserved to husband and wife within a monogamous union.

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Actually, the serious challenges HIV/AIDS presents to marriage and humanity argue against its carriers to insist on exercising their natural right to marry. The case of HIV/AIDS seems to be another instance for the Church to recognize both her right and obligation to restrict the right to marry. Because it is for a just cause, such restriction cannot be viewed as a violation of a person’s natural right to enter marriage freely. The natural right to marry, though inalienable, is not an absolute right; it is a qualified and conditioned right. Canon law itself is quite clear on this matter when it states that everyone has a right to marry unless prohibited by law. Thus, there is no contradiction between human freedom and the issuance of invalidating laws. Laws restricting the entry into marriage flow from the precepts of natural law, some of which command while others permit. While the Church has no power to forbid an act commanded by natural law, she has the power to restrict an act that is only permitted (rather than commanded) by it. As the right to marry is not commanded, but rather only permitted by natural law, the Church as the right to revoke it for the common good. Edward Roelker states:

Many rights are fundamentally supported by natural law which are seldom or never exercised because of social restrictions of positive law. Yet, no injustice is inflicted on a person who must, in order to live in society, surrender some rights which he could, if he lived outside of society, exercise. 22

The social nature of man itself imposes restrictions on the exercise of all his rights for his personal well-being and the well-being of all.

Marriage is an existential reality and its modus vivendi cannot be changed by the Church, by the state or by the contracting parties themselves. Since it is a relationship between a husband

22 Edward Roelker, “The Power to Enact Invalidating Laws,” The Jurist 3 (1943): 233. See note 6 where the author makes reference to Gasparri, Tractatus Canonicus de Matrimonio (editio nova , Typis Polyglottis Vaticanis, 1932), v. I, pp. 137-145 and also to cc 1038-1041 of the 1917 Code of Canon Law.

248 and a wife, it is the role of law to regulate how it is constituted, its object, its requisites, its effects, its particularities and its interruption and termination. 23 However, the law can “neither express nor develop in its fullness the Christian vocation to marriage, that is, marriage as part of the personal response to the plan—the mission—which God entrusts to each one in the world and in the Church.” 24 Moral theology governs the ordination of human acts to God, his ultimate end, and comes in to develop that part of the marriage as a personal response to God’s plan for man in the world and in the Church. The ethical arguments presented in this project are aimed at fulfilling this objective and so inform Canon Law on its regulation of the exercise of the natural right of HIV/AIDS carriers to marry in the light of the common good.

This project chronicled the difficulties HIV/AIDS carriers are expected to encounter regarding the responsibilities that flow from the exercise of their natural right to marry. The challenges they face have broad implications, as they undermine the totius vitae consortium and the common good. On the other hand, in an attempt to provide a comprehensive picture of this serious issue, the project also highlighted the advances made by medical science that help

HIV/AIDS carriers to have a better quality of life. Owing to the modern antiretroviral therapy, serodiscordant couples are able to generate offspring by “normal” sexual intercourse. However, the fruits of this remarkable progress are still unavailable to the majority of HIV/AIDS carriers globally. Although there are millions of HIV/AIDS carriers globally and new infections occur daily, the Church as mother and teacher has to act prudently regarding the exercise of their

23 Bañares, “Marriage: Introduction,” 1031.

24 Ibid.

249 natural right to marry as she has done throughout her history as we saw in the case of leprosy carriers and the insane. The Church must be prudent not to deprive those who can live a fairly healthy and happy married life from marrying while being vigilant not to admit to marriage those whose condition would threaten the good of the spouses and the common good.

The prudential action of the Church flows from her understanding of the value of human life and the moral value of the human act. Human life is a fundamental good without which no other good is possible. By his various healing acts during his public ministry here on earth,

Christ demonstrated the value of physical health because the whole person—body and spirit—is the subject of moral activity. 25 Indeed, life is a divine gift and man is simply a steward and not the owner. 26 He exercises his stewardship by ensuring that he cares for the health of the body and the soul. While HIV/AIDS carriers have difficulties in enjoying full health, modern antiretroviral therapy can significantly reduce their viral load. In such cases, the risk of infecting a healthy spouse is so much diminished that the couple can, with adequate care, have a “normal” marriage and bring forth uninfected offspring as well. These medical facts are contrasted with moral ones, which must also be taken into consideration when deciding whether sexual intercourse by these individuals would be deemed a “bad kind of action.”27 Although the risk of infection is not eliminated completely, it seems that one may not easily label the act of sexual intercourse by such a serodiscordant couple murder. The act they engage in seems to be different from placing a gun at somebody’s head or of throwing a bomb into an amphitheater when all the students are

25 Lobo, Guide to Christian Living , 347.

26 Bohr, Catholic Moral Tradition , 282.

27 Romanus Cessario, Introduction to Moral Theology, rev. ed. (Washington, D.C.: The Catholic University of America Press, 2013), 167.

250 having a social evening. Moreover, the exposure of an uninfected spouse during such sexual act has a different moral value to the exposure of a healthy spouse by a partner who is not on any antiretroviral therapy. There is, therefore, a sliding scale with regard to the risks that one may take in life that are wrapped in the intention of the agent—whether they are grave or negligible— because they enter into the moral imputability of the act as responsible or irresponsible. 28 It seems to me that the argument whether HIV/AIDS carriers can insist on the exercise of their natural right to marry and express their marital love sexually or not is primarily shaped by the likelihood of infection. This argument rests on the fact that empirical knowledge plays an important role in helping shape moral responsibility, and in this case, the act of sexual intercourse between serodiscordant spouses, and whether the infected spouse is on antiretroviral therapy or not.

We observed above that in the course of her history the Church maintained that lepers and those laboring from infectious diseases could marry if they found partners willing to take the risk. Aware of the consequences of such marriages to the couple, their potential offspring and the society as a whole, the Church dissuaded people from entering them but never prohibited them.

The main argument was the grave moral danger to souls that would be the consequence of enforced celibacy on all such infected persons. In taking this stance, she also highlighted the

28 Human existence is enrobed in a network of risks. If one were intent on eliminating all life-risks, then, perhaps, planet Earth is the wrong place for such an individual. Risks are part of human existence and man must use his intelligence to navigate his way through them, while always being guided by prudence. Childbearing and the process of giving birth continue to endanger mothers’ health, sometimes even taking their lives. Still, new human beings must be born to ensure the continuation of the human race. The toil of man on the Earth to improve his lot involves navigating a vast network of risks implicit in almost every action we take—boarding an automobile, an airplane, a ship, playing football, playing soccer, constructing high-rises, bridges, underground train systems, engaging in space and sea exploration, coal mining, surgical interventions, et cetera. In all these situations and many others, science plays a significant role in eliminating and minimizing risks as best as it can. However, the risks involved in living life here on Earth can never be completely avoided.

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superiority of the health of the soul to the body, since this life is only a preparation for eternal

happiness in heaven. Thus, the Church maintained that it was better to be born a leper than not to

be born at all. 29 Although the risks of infecting healthy spouses and potential offspring were present, the marriage of lepers and those laboring with infectious diseases was not a direct threat to the life of the spouses and consequently to the common good. 30

In contrast, HIV/AIDS is a direct threat to humanity and consequently to the common

good. The availability of antiretroviral therapy improves the quality of the lives of infected

persons, thereby enabling them to function and contribute to the common good as demanded by

society. However, as we previously noted, affordable treatment is not available to all who require

it. Thus, access to treatment and man’s responsibility to look after his health should inform local

Ordinaries to determine, on a case by case basis, whether infected persons can exercise their

29 Thomas Slater, Questions of Moral Theology (New York, Cincinnati, Chicago: Benziger Brothers, 1915), 268. It seems to me that there would be a collision with current Church teaching for someone to invoke simply the argument of the subordination of the value of this earthly life to that of the afterlife today on behalf of those suffering with HIV/AIDS. Under this premise, even if they marry and their lives are shortened, the goods of marriage trump living a longer life, which has to come to an end someday anyway. According to the teaching of Gaudium et spes , profound and rapid changes have taken place in the world and man can no longer content himself with individualistic ethics. The obligations of justice and love are fulfilled only if each person contributes to the common good according his own abilities and the needs of others. The world is becoming more unified and this challenges man to not only cultivate the social and moral virtues, but also promote them in society. Actually, modern man would live in authentic freedom when he consents to the unavoidable requirements of social life, when he takes on the manifold demands of human partnership and commits himself to the service of the human community. This is how each individual lives responsibly and rises to his dignity. Indeed, we are all pilgrims here on Earth, as the real life is beyond the grave. However, as earthly progress contributes to the better ordering of human society, it is of vital concern to the kingdom of God. See GS 30-31: AAS 58 (1966), 1049-1050; Abbott 228- 30; and GS 39: AAS 58 (1966), 1056-1057; Abbott, 237-38.

30 In our treatment of the ius connubii of lepers in Chapter Two, we noted that lepers were segregated and kept in lazar-houses, although this was not common practice in all localities. The Church actually approved of such practice, with the view of giving the lepers better health care, as she erected chapels in such establishments and appointed chaplains to minister to them. Although the Church enjoined the healthy spouses to follow their leprous spouses and minister to them, there does not seem to have been a way of enforcing such an obligation.

252 natural right to marry or not. Owing to significant regional variations in the availability and affordability of antiretroviral therapy, it seems that the exercise of the right to marry of many

HIV/AIDS carriers and the promotion of the common good could be compromised. As a result, the vocation of the majority of the members of the human race could be in jeopardy. In my opinion, unequal access to advanced treatment options that can help millions of people live better quality of life, and therefore exercise their natural right to marry, raises the critical question of social justice and in particular of distributive justice 31 with regard to the common good.

The mention of justice immediately evokes love because one cannot be separated from the other. Though the treatment of justice is beyond the scope of this project, it suffices to underline a few salient points about it that bear directly on the discussion at hand. Because of the essential equality that exists among all people—created in God’s likeness, redeemed by Jesus

Christ, and enjoy the same divine calling and destiny 32 —every human being possesses the same fundamental rights and duties. The respect for the rights and duties of every person calls for the creation of a more humane and just condition of life in which individuals and groups can pursue their mission effectively. This is how the common good is promoted.

Every human being has the right to good health and the corresponding duty to live a healthy life. However, it is also the responsibility of political authority to ensure the good health of the citizens for the common good of society. Thus, erasing the various inequalities that exist in society is the responsibility of political authority. In this case, it must strive to ensure the

31 Distributive justice regulates the measure of privileges, aids, burdens, and obligations of the individual as member of the community. See Häring, The Law of Christ , 3:26-27; Bohr, Catholic Moral Tradition , 338; Lobo, Guide to Christian Living , 266; CCC n. 2411; and CSDC n. 201.

32 GS 29, AAS 58 (1966), 1048-1049; Abbott, 227.

253 availability and affordability of treatment for HIV-infected citizens. Every government has the responsibility to allocate sufficient funds to its ministry of health. It must also ensure an honest stewardship of the disbursement and use of such funds for the health of the citizens.

Furthermore, justice and equity demand that prosperous nations, pharmaceutical companies, and organizations whose raison d’être concerns healthcare realize that they have a responsibility toward countries that are laboring under the yoke of the HIV/AIDS pandemic. It is their duty to come to their assistance in this regard because we are all brothers and sisters in Christ. While the

Church cannot engage in the pharmaceutical industry to produce antiretroviral therapy that would be available and affordable to HIV/AIDS carriers globally, she has been and continues to be at the forefront in ministering to HIV/AIDS carriers and continues to create the awareness on how to combat the pandemic. 33 However, the Church must continue to let her voice resound even louder and stronger throughout the world, emphasizing that social and distributive justice demand that wealthy nations, pharmaceutical companies, and various governments ensure the availability and affordability of the treatment that can help millions of HIV/AIDS carriers the world over improve the quality of their lives. In doing so, she would ensure that such infected persons can exercise their natural right to marry for the common good.

This treatment in no way pretends to say the last word or to exhaust all the ethical ramifications clustered around the question of HIV/AIDS carriers and the exercise of their natural right to marry. Rather, it hopes to move the conversation on this issue forward as it looks up in hope to medical science for therapy that would be able to eliminate the virus from the body.

33 Michael F. Czerny, ed., AIDS and the Church in Africa (Nairobi – Kenya: Paulines Publications Africa, 2005), 23-24.

APPENDIX ONE

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APPENDIX TWO

THE RIGHT TO PRIVACY OF HIV/AIDS CARRIERS

The human person—created in the image and likeness of God—pursues his ends in freedom because he is a being that is sui iuris; he is a being with an inalienable dignity. When it concerns freedom of choice on a range of issues pertaining to individuals, many tend to think that the right to privacy implies the right not to interfere in people’s private lives, the right to be left alone. 1 According to such a stance, political society is perceived an intruder into the life of the citizen, rather than a partner in a beneficial interrelationship. I shall, however, consider the right to privacy, a natural right, from the social ethical perspective of Church teaching—a right that should ensure protection of the dignity of the human person. From this perspective, privacy necessarily grounds its existence both in the individual and in the social dimensions of the human person.

The right to privacy may be understood as the right of the individual to exercise self- determination, as the right to pursue his ends in freedom, as stated in Article 12 of the United

Nations Universal Declaration of Human Rights, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or

1 Philip A. Smith, “The Right to Privacy: Roe v. Wade Revisited,” The Jurist 43 (1983): 289-317; Brian Johnstone, “The Right to Privacy: The Ethical Perspective,” The American Journal of Jurisprudence 29 (1984): 73-94; Michael Bradley, “The Evolution of the Right to Privacy in the 1983 Code: Canon 22O,” Studia Canonica 38 (2004): 531-33; and James F. Keenan, “Right to Privacy,” in The Dictionary of Catholic Social Thought, ed. Judith A. Dwyer (Collegeville, Minnesota: The Liturgical Press, 1994), 783-85.

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attacks.” In freedom, a person does not pursue his ends in a purely individualistic way, but must recognize the claims of other persons for what is needed for life and well-being so that they can participate as agents of social action in and for the community. 2 As a part of the social fabric, man necessarily realizes the ends of personal development in relationship with other members of the community who are rights-holders as well.

The object of the right to privacy is the full development of man in accordance with the divine plan and he can achieve it only through his interrelationship with others. It is from such interrelationship that the other side of rights become evident—duties and obligations. The right to privacy aims at the personal good as well as the good of the community, which implies the duty and the obligation to respect the privacy of other community members. The understanding here is that the right to privacy, like every other right, is subject to restriction. The right to privacy is not an absolute value, and when it conflcits with the principle of justice, it must give way. 3 Political society is aware that the right of individual self-determination in freedom can be limited for the common good because the right is only meaningful within a moral fabric of shared values. 4 In senso largo , one can say that each member of the social fabric is a limitation to the other for the good of all because everyone has rights and duties toward each other. Thus, the laws enacted by civil society have as their object the common good—traffic safety, cleanliness of the environment, et cetera. Although these may restrict (rather than violate) the right to

2 Johnstone, “The Right to Privacy,” 91.

3 Richard J. Devine, Good Care, Painful Choices: Medical Ethics for Ordinary People , 3 rd ed. (New York/Mahwah, N.J.: Paulist Press, 2004), 187.

4 Johnstone, “The Right to Privacy,” 92, and especially his note 85, where he explains why it is necessary for society to have some shared values and norms for differentiating between right and wrong because, without these, moral discourse and argument within that society would be impossible.

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privacy considered from various perspectives, their existence is aimed at the attainment of the common good.

The Church also acknowledges the individual’s right to privacy. Yet, at the same time, she affirms also the duty and obligation to respect the privacy of others, as stated by canon 220 of Code of Canon Law, “No one may unlawfully harm the good reputation which a person enjoys, or violate the right of every person to protect his or her privacy.” 5 The privacy of a person here means the right to pursue those basic ends of a truly human life, such as love, trust, friendship, respect and self-respect. 6 In the pursuit of his ends, such an individual has the corresponding duty to respect the pursuit of the same ends by others. Thus, canon 220 must be read in conjunction with canon 223, which admonishes the faithful that in exercising their rights they must take into account the common good of the Church as well as the rights of others and their own duties to others. Thus, in view of the common good, Church authority is entitled to regulate the exercise of these rights. 7

Indeed, Church authority has the right to regulate the exercise of the rights of the

Christian faithful. However, with respect to a fundamental right like marriage, does the demand of a statement of a serological test for HIV/AIDS from candidates preparing for marriage violate the right of privacy of the individuals and consequently their right to marry? The pandemic

5 c. 220 “Nemini licet bonam famam, qua quis gaudet, illegitime lædere, nec ius cuiusque personæ ad propriam intimitatem tuendam violare .”

6 Charles Fried, An Anatomy of Values (Cambridge, Mass.: Harvard University Press, 1970), 138 as cited by Johnstone, “The Right to Privacy,” 86-88.

7 c. 223 §1: “In iuribus suis exercendis christifideles tum singuli tum in consociationibus adunati rationem habere debent boni communis Ecclesiæ necnon iurium aliorum atque suorum erga alios officiorum.” §2: “Ecclesiasticæ auctoritati competit intuitu boni communis, excercitium iurium, quae christifidelibus sunt propria, moderari. ” It is important to note that the canon is clear that the regulation by Church authority is of the exercise of the right because the right is of human nature and no one can take it away from it.

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negatively affects the institution of marriage because of its effects on family values: it suffocates the personal good of the spouses, especially the good of health and life; it jeopardizes the future of possible offspring; and it negatively impacts on the socio-economic stance of the family. All these effects negatively impact the common good. Because it is still incurable, people who are at risk of having been exposed to the virus have a grave moral responsibility not to infect other people with it. Everyone has a moral obligation to preserve his life and that of others. Thus, the request of a valid and authentic medical certificate from those preparing to marry before the publication of the banns for marriage seems to fall in line with current Church legislative structure that, before marriage takes place, it must be established that nothing stands in the way of its valid and lawful celebration. 8 In addition, Bishops’ conferences can lay down norms concerning the questions to be asked of the parties or other appropriate means of enquiry to be carried out as a pre-requisite for marriage. 9 The object of such investigations or enquiries is to ensure that the parties are free of any impediments, that they have sufficient knowledge about marriage and that their consent is expressed freely. These investigations or enquiries accentuate the required balance needed between the right of the parties to marry and the rights of the community in which marriage is lived. The power of Bishops to prohibit marriage for a grave reason 10 is well-founded in the canonical history of the Church. Such prohibitions, however, do not establish a diriment impediment, since this is within the competence of the Supreme Pontiff

8 c. 1066: “Antequam matrimonium celebretur, constare debet nihil eius valide ac licitae celebrationi obsistere.”

9 c. 1067: “Episcoporum conferentia statuat normas de examine sponsorum, necnon de publicationibus matrimonialibus aliisve opportunis mediis ad investigationes peragendas, quae ante matrimonium necessaria sunt, quibus diligenter observatis, parochus procedere possit ad matrimonio assistendum.”

10 c. 1077, §1: “Ordinarius loci propriis subditis ubique commorantibus et omnibus in proprio territorio actu degentibus vetare potest matrimonium in casu peculari, sed ad tempus tantum, gravi de causa eaque perdurante. ”

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alone. 11 In virtue of their office as Chief Shepherds in their respective dioceses charged with the duty to sanctify the Christian faithful, 12 Bishops can qualify the exercise of the right to marry when they judge that it would result in harm to the parties, to their possible offspring and to the community.

Concerning the requirement to present a statement of a serological test for HIV/AIDS, the caveat is that the results of such serological test must be held with absolute confidence to protect the privacy of the party concerned. As the custodian of marriage, the Church has the authority to request such a statement without violating the right of the individual to marry, which she may restrict for the common good. The Church also has the corresponding duty to protect the right of privacy of the party concerned. HIV/AIDS does not rob its carrier of his dignity as a person created in the image and likeness of God who must be loved and respected.

11 c. 1075 §1:“Supremae tantum Ecclesiae auctoritatis est authentice declarare quandonam ius divinum matrimonium prohibeat vel dirimat;” §2. “Uni quoque supremae auctoritati ius est alia impedimenta pro baptizatis constituere.” See also CIC c. 1077, §2: “Vetito clausulam dirimentem una suprema Ecclesiae auctoritas addere potest .”

12 Vatican II, decree Christus Dominus 15 in AAS 58 (1966), 679-80; English translation in Documents of Vatican II , ed. Walter M. Abbott (London: Geoffrey Chapman Publishers, 1972) [hereafter Abbott] 406-407.

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APPENDIX THREE

Baby thought cleared of HIV has virus again

(Thursday, 10 th July 2014 )

Washington (AFP) - A girl who was born HIV-positive but was treated early and showed no signs of the disease for years has seen her infection return, US doctors said Thursday.

The girl's story had raised hopes that doctors may have found a way to cure young children who are born HIV-positive, simply by giving them strong anti-retroviral drugs shortly after birth.

"Certainly, this is a disappointing turn of events for this young child, the medical staff involved in the child's care and the HIV/AIDS research community," said Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases.

Known widely as the "Mississippi baby," she was born to an HIV-positive mother in 2010 and was given a potent dose of anti-retroviral medication 30 hours after birth.

She continued taking the medications until the age of 18 months, when doctors lost track of her. When she returned five months later, doctors could find no sign of the virus, even though she had not been taking her daily pills.

The child continued to stay off treatment and showed no sign of the virus for more than two years.

"Typically, when treatment is stopped, HIV levels rebound within weeks, not years," said Deborah Persaud, professor of infectious diseases at the John Hopkins Children's Center in Baltimore.

Persaud described the child's response as "unprecedented."

Now age four, she was tested during a routine clinical care visit earlier this month, and was found to have detectable HIV levels in her blood.

She also had a decreased T-cell count and the presence of HIV antibodies, signaling that her body was fighting the infection and that HIV was actively replicating again in her body.

The girl, whose identity has not been released, is now being treated once again with antiretroviral medication and is doing well, Fauci said.

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"The case of the Mississippi child indicates that early anti-retroviral treatment in this HIV- infected infant did not completely eliminate the reservoir of HIV-infected cells that was established upon infection but may have considerably limited its development and averted the need for anti-retroviral medication over a considerable period," said Fauci.

Researchers must now turn their attention to understanding why and how the child went into remission, with the hope of extending that time period even further in future cases, he said.

The Mississippi baby's case was detailed in the New England Journal of Medicine in 2013.

Earlier this year, researchers reported a second case of an infant, this time in California, who was treated within hours of birth and whose HIV remained undetectable nearly a year later.

However, that child was still taking anti-retroviral drugs, and doctors said they would not consider taking her off them until she reached the age of two.

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