A Commentary of The National Catholic Bioethics Center on Health Care and the Life Sciences

claim a right. Specifically, does the use of an unperforated What Constitutes a condom to collect sperm to assist a couple to engender a child violate the moral object of the conjugal act? My Conjugal Act? purpose is not to argue for the moral liceity of using a perforated condom to collect sperm to assist the conjugal act in reaching its natural end, the bonum prolis. I accept that the perforated condom does not deprive the conjugal Two recent editions of Ethics & Medics have focused on act of its inherent force, but constitutes a “simultaneous a product to assist couples in engendering children.1 One and immediate cooperation of husband and wife” in this of the fundamental questions throughout that discourse very personal conjugal action. The same cannot be said of is what constitutes assisting the conjugal act and what the use of an unperforated condom. constitutes replacing the conjugal act. More specifically, is the use of an unperforated condom for the purpose of Canonical History collecting semen for insemination of the wife following The 1917 Code of Canon Law defined the primary end the conjugal act morally licit? Both Donum vitae and of marriage as the procreation and education of children. ­Dignitas personae provide guidance as to what constitutes a Thus, the object of marital consent was defined as “the moral act within assistive reproductive technologies.2 The perpetual and exclusive right to the body ordered to acts per ­guiding principle is that if an act assists the conjugal act se apt for the generation of offspring.”6 Furthermore, canon toward its rightful end of engendering children, it is moral. 1015 §1 of the 1917 Code defined the consummation of If the technology replaces the conjugal act, it is immoral. a marriage as “a conjugal act to which the matrimonial Assisting or Replacing the Conjugal Act contract is by its nature ordered and by which the spouses become one flesh.” What is of significance is not just what This reasoning is not new. Pope Pius XII, in his 1951 constitutes consummation of a valid marriage, but what address to midwives, stated, has been the understanding of the conjugal rights that can To reduce the common life of husband and wife and be claimed by the married couple, for instance a “right to the the conjugal act to a mere organic function for the body ordered to acts per se apt for the generation of offspring.” ­transmission of seed would be but to convert the ­domestic hearth, the family sanctuary, into a biological The Second Vatican Council document Gaudium et laboratory. Therefore, in Our allocution of September spes spoke of other goods, besides the procreative end of 29, 1949, to the International Congress of Catholic marriage, such as to “render mutual help and service to ­Doctors, We expressly excluded artificial insemination each other through an intimate union of their persons and in marriage. The conjugal act, in its natural structure, is of their actions.”7 However, Gaudium et spes also affirmed a personal action, a simultaneous and immediate cooperation that conjugal love is ordered toward the procreation and of husband and wife, which by the very nature of the education of children. Furthermore, while addressing the agents and the propriety of the act, is the expression of issue of contraception, but arguably being relevant to other the reciprocal gift, which, according to Holy Writ, effects the union “in one flesh.”3 methods of regulating fertility, Gaudium et spes stated that intentions do not suffice to justify the violation of objective 4 Pius XII, reflecting on the encyclical Casti connubii of his standards related to the conjugal act: predecessor Pope Pius XI, stated “that every attempt of either husband or wife in the performance of the conjugal act or in the development of its natural consequences which aims at depriving it of its inherent force and hinders the January 2010 Volume 35, Number 1 ­procreation of new life is immoral; and that no “indication” or need can convert an act which is intrinsically immoral What Constitutes a Conjugal Act? into a moral and lawful one.”5 Thus, while the intent in The Rights of Marriage in Canon Law the use of a condom to collect sperm is not to “hinder” Marie T. Hilliard, J.C.L., Ph.D., R.N. the procreation of new life, one must look at the object of the use of a condom, particularly an unperforated condom epression and enal ialysis which clearly “deprives” the conjugal act of “its inherent D R D force.” Rev. Joseph C. Howard Jr. et al. The purpose of this article is to describe what canon Rev. Mr. Peter J. Gummere, M.S., M.A. law defines as a conjugal act to which married couples can

Defending the Dignity of the Human Person in Health Care and the Life Sciences since 1972 Ethics & Medics January 2010 Hence the acts themselves which are proper to conjugal too does the use of an unperforated condom, despite all love and which are exercised in accord with genuine good intentions, violate the object of the conjugal act. human dignity must be honored with great reverence. Hence when there is question of harmonizing conjugal Marie T. Hilliard, J.C.L., Ph.D., R.N. love with the responsible transmission of life, the moral Marie Hilliard is the director of bioethics and public policy at The aspects of any procedure does not depend solely on sincere intentions or on an evaluation of motives, but National Catholic Bioethics Center in Philadelphia. 8 must be determined by objective standards. 1 Stephen Napier, “Morality of ‘The Conception Kit’: A New Product Simply stated, the procedures to assist fertility, regardless for Infertility,” Ethics & Medics 34.7 (July 2009): 3–4; Renée of the good intentions of the spouses, must comport Mirkes, “The Conceivex Kit Reconsidered: A Negative Moral Assessment,” Ethics & Medics 34.12 (December 2009): 1–3; and to objective standards consistent with the object of the Stephen Napier, “Defending Conceivex as Assistance: A Look ­conjugal act. at the Underlying Logic,” Ethics & Medics 34.12 (December Canonical tradition provides the definition of what 2009): 3–4. 2 constitutes consummation of marriage: “According Congregation for the Doctrine of the Faith, Donum vitae (February 22, 1987), II.B.7; and Congregation for the Doctrine of the Faith, to traditional canonical doctrine, the conjugal act that Instruction Dignitas personae on Certain Bioethical Questions ­consummates a marriage requires that the man’s penis (September 8, 2008), n. 12. penetrate the woman’s vagina at least partially and deposit 3 Pius XII, “Address to Midwives on the Nature of their Profession” semen in the vagina.”9 The 1983 revision of the Code of (October 29, 1951), emphasis added, available at http://www. Canon Law defines what constitutes consummation of a papalencyclicals.net/Pius12/P12midwives.htm. 4 valid marriage: “if the spouses have performed between Pius XI, Casti connubii (December 31, 1932). 5 Pius XII, “Address to Midwives,” emphasis added. themselves in a human fashion a conjugal act which is 6 Can. 1081 §2 , 1917 Code of Canon Law (Codex Iuris Canonici), in John suitable in itself for the procreation of offspring, to which P. Beal, James A. Coriden, and Thomas J. Green, New Commentary marriage is ordered by its nature and by which the spouses on the Code of Canon Law (Mahwah, NJ: Paulist Press, 2000), 1252, become one flesh.”10 Thus, whether the nature of the con- emphasis added. 7 jugal act is defined in terms of the right to the body which Vatican Council II, Gaudium et spes (December 7, 1965), n. 48. 8 Ibid, n. 51. one exchanges with a spouse (the “object of consent” in 9 Beal et al., New Commentary, 1364. 11 the 1917 Code ) or in terms of the act by which marriage 10 Can. 1061 §1, 1983 Code, in Code of Canon Law: Latin-English Edition, is consummated (the 1917 Code 12 and the 1983 Code 13), new English translation (Washington, D.C.: Canon Law Society tradition clearly indicates that such an act requires the of America, 1999), 1257. deposit of semen into the vagina. 11 Can. 1081 §2 , 1917 Code, in Coriden et al., New Commentary, 1252. The Intent Must Reflect the Object 12 Can. 1015 §1, 1917 Code. 13 Can. 1061 §1, 1983 Code. While laudable, the intent to enhance fertility by use of 14 Pius XII, “Address to Midwives.” an unperforated condom violates the object of the conjugal act, which is to be performed, as noted in canon 1061 §1 of the 1983 Code, “in a human fashion . . . which is suitable in itself for the procreation of offspring, to which marriage is ordered by its nature and by which the spouses become one flesh.” The definition of “how the spouses become one Depression and flesh” can be garnered from canonical tradition on what constitutes consummation of a marriage. The deposit of at Renal Dialysis least some semen in the vagina during the conjugal act is essential. The use of an unperforated condom objectively deprives the conjugal act “of its inherent force,” as required by Casti connubii. Furthermore, no semen is deposited Deacon Peter Gummere’s article “Discontinuing Renal ­simultaneously with the conjugal act. Analysis,” in the October 2009 issue of Ethics & Medics, Thus, the placement of a cervical cup containing semen ­discusses whether a woman could morally discontinue 1 obtained without the use of a perforated condom violates ­renal dialysis if she felt it was an undue burden. The the need for the conjugal act to be a “simultaneous and patient (hereafter referred to as Mrs. T) suffered from ­immediate cooperation of husband and wife.”14 In fact, diabetes and had been on dialysis for an extended period canon 1081 §2 of the 1917 Code speaks of the object of of time; she also had a history of depression. She expressed consent being the right of spouses to “the body ordered to fatigue from ongoing dialysis and wished to be with her acts per se apt for the generation of offspring.” While the deceased husband eternally. The bioethical issues at stake language of “rights” is not used in canon 1061 §1 of the 1983 include (1) whether or not renal dialysis in this case consti- Code, it provides insight into the canonical tradition of the tuted ethically ordinary or extraordinary treatment, and nature of the right to the conjugal act. Thus, the garnering (2) whether Mrs. T possessed the necessary freedom and of sperm through masturbation, even if intended to competence to request the discontinuation of dialysis. ­enhance fertility within marriage, is prohibited, as is the While Gummere acknowledges that Mrs. T had a deliberate deposit of semen other than in the vagina. So ­“history of depression,” other pertinent data were not 2 Ethics & Medics January 2010 provided. Professor Kathleen Foley, an eminent scholar on Rev. Joseph C. Howard Jr. is a Catholic priest and a graduate pain management and palliative care, argues that many ­student in moral theology and bioethics at the Catholic University persons making similar requests as are telling physicians of America, in Washington, D.C. David E. Hargroder, M.D., as strongly as they know how that they desperately need is a general surgeon and former transplant surgeon in private relief from their suffering and that without such relief they practice in Joplin, Missouri. Aaron M. Seamands is a lawyer in would rather die. Foley also notes that most of those who St. Louis, Missouri. are terminally ill with a desire to hasten death are suffer- 1 2 Peter Gummere, “Discontinuing Renal Analysis,” Ethics & Medics ing from depression. While it is true that other factors 34.10 (October 2009): 2–4. contribute to the wish for death, depression is the single 2 Kathleen Foley and Herbert Hendin, eds., The Case against Assisted most important.3 Suicide (Baltimore: Johns Hopkins University Press, 2002): 150; and H. M. Chocinov et al., “Depression, Hopelessness, and Sui- Foley maintains that physicians who are not psy- cidal Ideation in the Terminally Ill,” Psychosomatics 39 (August chiatrists are not able to reliably diagnose that depression 1998): 366–370; E. J. Emanuel et al., “Euthanasia and Physi- is impairing judgment.4 It would have been critical for cian-Assisted Suicide: Attitudes and Experiences of Oncology Mrs. T to have been properly examined by a licensed Patients, Oncologists, and the Public,” Lancet 347.9018 (June 29, ­psychiatrist. Foley also points out that in an Oregon study, 1996): 1805–1810. 3 a majority of psychiatrists felt that they could not properly Foley and Hendin, Assisted Suicide, 151; Chochinov et al., “Depres- sion,” 1998; Emanuel et al. “Euthanasia and Physician Assisted determine in a single visit if the patient was competent to Suicide.” 5 request suicide. Indeed, when such patients are treated 4 Foley and Hendin, Assisted Suicide, 151; and G. E. Murphy, by competent physicians who hear their ambivalence, “The Physician’s Responsibility for Suicide: (1) An Error of understand their desperation, and relieve their suffering, ­Commission and (2) Errors of Omission,” Annals of Internal the wish to die usually disappears; when the panic is not Medicine 82 (1975): 301–309. 5 addressed and the physician simply heeds the patient’s Foley and Hendin, Assisted Suicide, 152; and L. Ganzini et al., “Attitudes of Oregon Psychiatrists toward Physician-Assisted request, he or she often dies in a state of unrecognized Suicide,” American Journal of Psychiatry 153.11 (November 1996): terror.6 1469–1475. 6 The classical understanding of whether a treatment Foley and Hendin, Assisted Suicide, 5. 7 Ibid, 4; and H. Hendin and G. Klerman, “Physician-Assisted such as renal dialysis constitutes ethically ordinary or ­Suicide: The Dangers of Legalization,” American Journal of ­extraordinary treatment is of paramount importance. ­Psychiatry 150.1 (January 1993): 143–145. 8 ­Dialysis would be ethically ordinary for Mrs. T if it offered Social Security Amendments of 1972, Public Law 92-603, §299I, U.S. her a reasonable hope of recovery without imposing Statutes at Large 86 (1972): 1329, 1463–1464, amended by End-Stage ­excessive burden; it would be considered ethically Renal Disease Amendments of 1978, Public Law 95-292, U.S. Statutes ­extraordinary if it did not offer hope of reasonable at Large 92 (1978): 307. ­recovery or it imposed an excessive burden. We are  only morally obliged to use those treatments which are Reply to Howard, Hargroder, and Seamands: I would like ­ordinary to preserve our lives. It is critical to recognize to sincerely thank Fr. Howard, Dr. Hargroder, and Mr. that in this case one cannot validly determine if dialysis is ­Seamands for taking time to share their comments about truly an excessive burden apart from a proper psychiatric my article, “Discontinuing Renal Analysis.” They quite ­evaluation—especially regarding Mrs. T’s history of ­appropriately note that there are two questions in the case ­depression. Those suffering from clinical depression often of a patient on dialysis who is contemplating withdrawal have an exaggerated tendency to see their problems in from treatment: (1) whether dialysis constitutes ordinary black-and-white terms, thereby overlooking solutions and 7 care or an extraordinary treatment and (2) whether alternative possibilities. the patient “possess[ed] the necessary freedom and If the psychiatric evaluation revealed an absence of ­competence to request discontinuation of dialysis.” psychopathology, and dialysis truly was an extraordinary ­Toward the end of their article, they introduce another means of treatment, an alternative to the discontinuation of highly relevant question: Could the patient in question treatment might include renal transplantation (assuming be a candidate for a kidney transplant? she is an appropriate candidate). It should be noted that My focus in the original article was the first question, the federal government subsidizes dialysis treatment and namely, whether dialysis constituted ordinary care 8 most renal transplants for American citizens. or an extraordinary treatment. This was also Fr. B’s In the case of Mrs. T, the determination of whether or question­ when he requested my input on the case of not renal dialysis is ethically ordinary or extraordinary Mrs. T. In our conversation on this matter, I discussed treatment cannot be validly made without a proper depression and asked whether Mrs. T might benefit from psychiatric evaluation. Even when dialysis is truly an ­antidepressant therapy. Fr. B replied that Mrs. T had been ­extraordinary means of treatment, because it is excessively under psychiatric care for some time and that she was burdensome, there remains the option to carry the patient on antidepressant therapy. However, her psychiatrist on dialysis and attempt renal transplantation. ­reportedly had determined that she did have capacity to Rev. Joseph C. Howard Jr. make the decision. David E. Hargroder, M.D. Howard, Hargroder, and Seamands note that alter- Aaron M. Seamands, Esq. natives such as transplantation should also be explored. 3 The National Catholic Bioethics Center t

6399 Drexel Road, Philadelphia, PA 19151-2511 www.ncbcenter.org

Volume 35, Number 1 January 2010 Views expressed are those of individual authors and may ­advance positions that have not yet been doctrinally settled.Ethics & Medics makes every effort to publish articles consonant with the magisterial teachings of the Catholic Church.

Sufficeit to say that a good bioethicist remains alert for pos- Mrs. T’s decision was made prayerfully, not using sible alternative resolutions to difficult cases. In my original the “trump card” of unrestricted patient autonomy often conversation with Fr. B., he also noted that the patient was ­endorsed by secular bioethicists. To the end she sought not considered a candidate for renal transplant. to follow Church teaching. Fr. B provided her some of Consequently, when writing the article I simply the support and assurance she needed as she made final ­reviewed the issues involved in evaluating whether ­preparations for a good and holy death. ­dialysis could properly be considered extraordinary Rev. Mr. Peter J. Gummere, M.S., M.A. ­treatment, and hence not morally obligatory in the case Deacon Peter Gummere is a permanent deacon of the Diocese of where the patient considered the burden disproportionate ­Burlington, adjunct faculty at the Pontifical College Josephinum to the benefits. In retrospect, I should have included in Columbus, Ohio, and a pastoral associate in the chaplaincy ­additional background. department of Northeastern Vermont Regional Hospital, where I would like to reiterate some observations from my he is also a member of the ethics committee. original article. I noted that “patients on dialysis are . . . 1 Ibid, 3. See also Sheila Conneen et al., “Withdrawal from Dialysis: at risk for depression, as are patients with many other Ethical Issues,” Dialysis and Transplantation 27.4 (April 1998): chronic diseases. In response to the risk that patients 200. might withdraw from treatment because of depression, it has been suggested that dialysis patients be followed and treated by those who are experts in the psychological ­behavior of patients with chronic illness.” 2 Such a If you like Ethics & Medics . . . ­proactive clinical approach to the problem of depression, consider a subscription to along with excellent pastoral care, serves the best interest The National Catholic Bioethics Quarterly of the patient on dialysis. Called “the gold standard of Catholic opinion in bioethics” Howard, Hargroder, and Seamands provide useful by the Human Life Review, the NCBQ addresses the ethical, insight on the question of depression and emphasize the philosophical, and theological questions raised by the rapid importance of knowing the patient’s state of mind when pace of modern medical and technological progress. Each ­assessing the morality of a proposed course of action. ­issue contains a report from Washington, D.C., essays and Having already reviewed the burdens versus benefits of scholarly articles on contemporary issues in bioethics, letters ­continued renal dialysis in my original article, I will simply to the editor, verbatim transcripts, reviews of current journals note that the assessment is made from the perspective in science, medicine, and philosophy, and book reviews. of the patient. This is not a purely subjective judgment, but stays within the “guardrails” afforded by Catholic Annual print and online subscription moral principles. Mrs. T had made that assessment, and (4 issues): individual $48, institutional $165 her assessment was that dialysis was not providing a All subscriptions include the print edition and benefit that outweighed the burden she experienced on electronic online access to all back issues— an ongoing basis. She was exhausted from the burden of nearly ten years of expert analysis. treatment over an extended period of time. To subscribe, visit www.ncbcenter.org. 4

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