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THE CHURCH’S RESPONSE TO CHILDLESS COUPLES: CANONICAL AND PASTORAL CONSIDERATIONS ON STERILITY IN THE UGANDAN CONTEXT (C. 1084, §3) by Sebastian Zanikire TUMUSIIME Thesis submitted to the Faculty of Canon Law Saint Paul University, Ottawa, Canada, in partial fulfillment of the requirement for the degree of Doctor of Canon Law Faculty of Canon Law Saint Paul University ©Sebastian Zanikire TUMUSIIME, Ottawa, Canada, 2017 ABSTRACT Sterility is one factor which has the potential to disrupt the “partnership of the whole of life” (c. 1055, §1). In both Ugandan and Western societies, couples enter marriage with a strong desire to have children. In Western societies, childless couples seek medical tests and treatment for temporary infertility. Others who do not succeed in begetting children opt for the use of artificial means of reproduction. In developing countries such as Uganda, childless couples seek traditional means of enabling men to have children outside wedlock. It is noted that none of these options is approved by the Church. For this reason, canon 1084, §3, CIC 1983 which stipulates: “Sterility neither prohibits nor nullifies marriage” poses a challenge to apply. This thesis is an attempt to address the challenge and to make recommendations for the Church in Uganda. The first chapter discusses the development of the understanding of marriage as hierarchically ordered with procreation as the primary end. When the personalist dimension was incorporated into this understanding, procreation became one of the two ends of marriage: the good of the spouses and the good of children. However, in Uganda, procreation remains the primary end of marriage. As discussed in the second chapter, the good of the children is not always attained due to impotence and sterility. Since sterility is not an impediment to marriage, its potential to disrupt marital partnership is brought about by other canonical factors such as error, deceit and condition. These make sterility juridically relevant to the validity of marriage. With the advancement of science, sterile spouses may seek medical help in order to have a biological child. Out of the scientific means discussed in the third chapter, the Church accepts NaPro Technology, or any other means which treats the symptoms of infertility and enables conception to take place naturally. In the fourth chapter, this work discusses the Church’s documents which unequivocally state her stand on sterility and the use of artificial means of reproduction. In order to advance the teaching and legislation of the Church, recommendations are made for the Church in Uganda. It is hoped that by incorporating sterility in marriage preparation, integration of canon law to local marriage customs, and having functional and accessible tribunal services, it would be possible to address the questions raised by childless couples in the Ugandan context. TABLE OF CONTENTS ACKNOWLEDGEMENTS ...................................................................................................... viii LIST OF ABBREVIATIONS ..................................................................................................... ix GENERAL INTRODUCTION .................................................................................................... 1 CHAPTER ONE: THE CHURCH’S CONTEMPORARY UNDERSTANDING OF MARRIAGE AND PROCREATION ...................................................................................................................... 9 Introduction ......................................................................................................................... 9 1.1 — Description of Marriage according to the CIC 1917 .............................................. 11 1.1.1 — The Hierarchical Ends of Marriage............................................................. 12 1.1.2 — Pius XI’s Encyclical Letter on Christian Marriage Casti connubii ............ 18 1.1.3 — Rotal Decision coram Wynen of January 22, 1944 .................................... 22 1.1.4 — Theological Discussions Leading up to the Second Vatican Council ........ 24 1.1.4.1 — Personalist Views of H. Doms and B. Krempel ................................................ 25 1.1.4.2 — Response of Pius XII......................................................................................... 28 1.2 — Description of Marriage in the Teaching of the Second Vatican Council ............. 31 1.2.1 — Marriage in the Pastoral Constitution Gaudium et spes .............................. 31 1.2.2 — Marriage in Other Conciliar Documents ..................................................... 39 1.3 — Description of Marriage after the Second Vatican Council ................................... 41 1.3.1 — Description of Marriage in the Papal and Curial Documents ..................... 42 1.3.2 — Description of Marriage in the Revision Process of the CIC 1983............. 47 1.3.3 — Marriage in Rotal Jurisprudence before CIC 1983 ..................................... 56 1.4 — Marriage as Partnership of the Whole of Life in the CIC 1983 ............................. 61 1.4.1 — Nature of the Partnership ............................................................................ 61 1.4.2 — Essential Elements of the Partnership ......................................................... 72 1.4.2.1 — Bonum coniugum as an Essential Element of Marital Partnership ................... 72 1.4.2.2— Bonum prolis as an Essential Element of Marital Partnership ........................... 74 1.4.2.3 — Educatio prolis as an Element of Marriage ....................................................... 77 1.4.3 — Essential Properties of Marriage ................................................................. 84 1.4.3.1 — Unity of Marriage in Relation to Procreation ................................................... 85 1.4.3.2 — Indissolubility in Marriage in Relation to Procreation ...................................... 87 1.5 — Papal Teaching on Marriage after the Promulgation of CIC 1983 ........................ 90 iii iv Conclusion ........................................................................................................................ 93 CHAPTER TWO: JURIDIC RELEVANCE OF IMPOTENCE AND STERILITY TO CANONICAL MARRIAGE ......................................................................................................................... 97 Introduction ....................................................................................................................... 97 2.1— Canonical Understanding of Impotence.................................................................. 99 2.1.1 — Inhabilitas for Marriage Due to Impotence ................................................ 99 2.1.2 — Elements of Male Impotence .................................................................... 103 2.1.3 — Elements of Female Impotence ................................................................. 112 2.2 — Sterility in the Traditional Teaching of the Church ............................................. 116 2.2.1 — Sterility and Marriage in Roman Law ...................................................... 116 2.2.2 — Sterility and Marriage in the Works of Saint Augustine........................... 119 2.2.3 — Sterility in and Marriage in Decretum Gratiani ....................................... 124 2.3 — Canonical Understanding of Sterility................................................................... 127 2.3.1 — Sterility in c. 1068, §3, CIC 1917 ............................................................. 128 2.3.2 — Sterility in c. 1084, §3, CIC 1983 ............................................................. 131 2.3.3 — Application of c. 1084, §3, CIC 1983 in Rotal Jurisprudence .................. 135 2.4 — Juridic Relevance of Sterility to Marital Consent ................................................ 137 2.4.1 — Sterility as an Object of Error (c. 1097, CIC 1983) .................................. 137 2.4.2 — Sterility as an Object of Deceit (c. 1098, CIC 1983) ................................ 146 2.4.3 —Sterility as an Object of Condition (c. 1102, CIC 1983; c. 826, CCEO) ... 157 Conclusion ...................................................................................................................... 164 CHAPTER THREE: MEDICAL DIAGNOSIS AND THE MEANS OF RESOLVING STERILITY ...... 166 Introduction ..................................................................................................................... 166 3.1 — Medical Diagnosis of Sterility ............................................................................. 168 3.1.1 — Primary and Secondary Sterility ............................................................... 169 3.1.2 — Causes of Male Sterility ............................................................................ 172 3.1.3 — Causes of Female Sterility ........................................................................ 178 3.1.4 — Environmental Factors that Cause Sterility .............................................. 185 3.1.5 — Risk Factors that Cause Sterility ............................................................... 187 3.1.6 — Psychological Causes of Sterility.............................................................. 189 3.2 — Scientific Means of Infertility Treatment ............................................................ 192 v 3.2.1 — Treatment of Male Infertility .................................................................... 193 3.2.2 — Treatment of Female Infertility ................................................................
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