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AIDS and the Spousal Use of Condoms. Unintended Consequences of Embryo Adoption
ROME, MARCH 31, 2010 (Zenit.org).- Here are two questions on bioethics asked by ZENIT readers and answered by the fellows of the Culture of Life Foundation.

Q: Please, could [the fellows] address the issue of the use of the condom in HIV prevention?

Although there is no definitive magisterial pronouncement on this issue yet, it is a problem that is generating much controversy here in the Philippines, and in many other countries.

The Catholic Church is being heavily criticized often unfairly. Many thanks, Father J.M., Philippines

William E. May, Senior Fellow of the Culture of Life Foundation and retired Michael J. McGivney Professor of Moral Theology at the John Paul II Institute for Studies on Marriage and Family at The Catholic University of America in Washington, D.C., offers the following response.

A: In 2006, Cardinal Carlo Martini, retired archbishop of Milan and a respected biblical scholar, expressed his opinion that it was morally permissible and prudent for married couples to use condoms when engaging in genital intercourse to prevent transmission of HIV. In doing so, he made his own the view of Dominican Cardinal Georges Cottier, the former theologian of the Pontifical Household, and a number of bishops.

Earlier, in 2004, the well-known philosopher/theologian Martin Rhonheimer, a priest in the prelature of Opus Dei, published an essay in the London Tablet that many readers understood to support this point of view. But many other bishops and respected theologians/philosophers thought this opinion erroneous.

Naturally these claims by cardinals, bishops, and reputable Catholic theologians caused confusion among the faithful.

Although the magisterium has issued some statements relevant to the question regarding the use of condoms by married persons to prevent transmission of HIV/AIDS, it seems evident that it has not issued a clear and definitive judgment on the act itself. Therefore, those bishops, philosophers and theologians who have supported spousal use of condoms for this purpose have done so in good faith and have not dissented from clear Church teaching.

Moreover, those married couples, legitimately afraid that they might harm their spouse by engaging in intercourse with them and naturally longing to manifest spousal love by uniting bodily in the marital act, are acting in good faith and with the understanding that eminent members of the hierarchy support their acting in this way.

Along with many other Catholic theologians and philosophers -- many married -- who have wrestled with this problem for a long time, I think there are very good reasons for holding that it is never morally right for married men and women to use condoms when they choose to express their love in the marital act in order to prevent harm to their spouses. I will try to present these reasons here.

In doing so, I in no way seek to judge married couples who disagree with me and who think it morally permissible to do what I think is not right. No human person can read another human person's heart; only God himself can do so. Our loving Lord and Savior has told us that we are not to judge; that is what the Pharisees of his and our day do.

A different kind of act

I think that when spouses choose to use condoms they change the act they perform from one of true marital union (the marriage act) into a different kind of act. Why? To answer why it is necessary to be clear about the "object" morally specifying human acts. Pope John Paul II took up this question and answered it very clearly in "Veritatis Splendor."

In No. 78 of that encyclical he wrote: "In order to be able to grasp the object of an act which specifies that act morally, it is therefore necessary to place oneself in the perspective of the acting person. The object of the act of willing is in fact a freely chosen kind of behavior (emphasis added).

"To the extent that it is in conformity with the order of reason, it is the cause of the goodness of the will: it perfects us morally. [...] By the object of a given moral act, then, one cannot mean a process or an event of the merely physical order, to be assessed on the basis of its ability to bring about a given state of affairs in the outside world. Rather, that object is the proximate end of a deliberate decision which determines the act of willing on the part of the acting person" (emphasis added).

The "object" of a human act, in other words, is the subject matter with which it is concerned -- it is the intelligible proposal that one can adopt by choice and execute externally. For example, the "object" of an act of adultery is having intercourse with someone who is not one's spouse or with the spouse of another. This is what adultery is.

In No. 79 he goes on to write: "One must therefore reject the thesis, characteristic of teleological and proportionalist theories, which holds that it is impossible to qualify as morally evil according to its species -- its object -- the deliberate choice of certain kinds of behavior or specific acts, apart from a consideration of the intention for which the choice is made (emphasis added) or the totality of the foreseeable consequences of that act for all persons concerned."

This means that a human act is specified morally primarily by the "object" chosen here and now by the acting person; this is also the immediate or proximate end of the act as distinct from the further or more remote end which is the hoped-for benefit that will result as a consequence of the act.

Applying this to our case

The "object" freely chosen and primarily specifying the spouses' act is precisely to put on a condom while engaging in intercourse; this is also the "immediate" or "proximate" end. The "further" or "more remote" end for whose sake the couple chooses to use condoms while engaging in intercourse is the hoped-for benefit of not harming a spouse by transmitting HIV/AIDS. This further end is good; but the act freely chosen as the means to this end has as its morally specifying object the use of condoms while having intercourse.

I think that this "object" is different from the "object" morally specifying a marital or spousal act. In that act the spouses are choosing here and now "to give and receive each other in a bodily act, that is the only bodily act "apt" for generating new human life, even if one or the other is not fertile.

The "consummation" of marriage

Here it is necessary to note what the Code of Canon Law has to say about the "consummation" of a valid marriage in canon 1061, par. 1. There we read: "A valid marriage between baptized persons is said to be merely ratified, if it is not consummated; ratified and consummated, if the spouses have in a human manner engaged together in a conjugal act in itself apt for the generation of offspring: to this act marriage is by its nature ordered and by it the spouses become one flesh" (emphasis added).

In short, according to this teaching (the Code of Canon Law is meant to help teach the faith), if condoms are used while engaging in intercourse, the act is no long in itself apt for the generation of offspring and hence cannot consummate a valid marriage.

The "language of the body"

In my opinion the teaching of Pope John Paul II in his celebrated catecheses on the theology of the body is also relevant here, in particular his reflections on the "language of the body." I think that use of condoms to avoid harm to a spouse while engaging in intercourse changes this language. In the marital act the bodies of the spouses speak the language of a mutual giving and receiving, the language of an unreserved and oblative gift. Condomistic intercourse simply does not, in my judgment, speak this language.

In addition, it is not prudent for married couples to behave in this way because condoms in no way offer "safe sex" but only "less unsafe sex" and cannot be trusted to prevent a disease.

Concluding reflections

Many couples will reasonably conclude that if they accept the teaching that condomistic intercourse is unchaste and is not a true marital act the only alternative for them is abstinence, and this will surely be a demanding cross for many. The Church's response to their situation should be to help them to embrace that cross in their lives as the instrument of their salvation. It is precisely in embracing what makes its appearance as the cross in one's own life that one experiences the power of the Resurrection.

* * *

Follow-up: Rescuing Frozen Embryos

The March 17 column "Rescuing Frozen Embryos" elicited this response from a reader:

Q: Thank you sincerely for your recent extensive article on embryo adoption and its morality. I was looking for further on comment on a possible quandary I see in this debate. In considering embryo adoption I am wondering if an unintended consequence to the promotion of embryo adoption would be the creation of a market for embryos.

Considering if the embryos currently frozen are less and less viable over time, maybe those considering embryo adoption would eventually want embryos frozen for less and less time. So the IVF industry could possibly see the opening of a new market and embryos would be created solely to sell in adoption. The issue of those already long frozen embryos would not be addressed. In fact the problem could become larger.

I am definitely not an expert on this issue and so would greatly appreciate your insights on this. Thank you so much for all the work you do in defense of life. PAR; Naperville, Illinois

E. Christian Brugger, a Senior Fellow of Ethics at the Culture of Life Foundation and associate professor of moral theology at St. John Vianney Theological Seminary in Denver, Colorado, offers this response.

A: This question is very insightful and well formulated. Although I believe that embryo adoption is in principle legitimate and even can be praiseworthy, the problem of unintended harmful consequences is very real.

It is possible that if large numbers of people begin to choose embryo adoption, it will lead to the creation of more human embryos created by IVF and abandoned by their parents. This could happen for several reasons.

First, couples reticent about choosing in vitro fertilization (IVF), because they doubt the legitimacy of freezing their "spare" embryonic children, might say to themselves, "Well, our little embryos will be adopted by a loving family," and then go ahead with IVF.

Second, as suggested in the question, if IVF clinics smelled a potential market for abandoned embryos, they might prompt IVF couples to create more embryos than they otherwise would have done, precisely in order to increase the numbers of "extras."

Further, IVF clinics in the United States are almost entirely unregulated. They can create and store as many human embryos as their clients are willing to create and pay for. But the appalling fact that hundreds of thousands of embryos are frozen at those clinics is beginning to draw negative attention, putting pressure on the clinics to begin limiting the numbers of embryos they create.

If a market develops, these clinics might fashion themselves doing a service to the community by storing and making available abandoned embryos, giving the sordid practice a sheen of social legitimacy. If the U.S. adopted laws such as already exist in Germany, Italy and even Switzerland, which limit the number of embryos permitted to be created in any IVF cycle to those only that can be implanted (Germany and Italy also prohibit freezing embryos), then the second and third harm envisaged here could be mitigated.

Moreover, if large numbers of Catholics start adopting abandoned embryos, they (or their health care providers) will necessarily need to enter into contractual agreements with IVF clinics in order to have the embryos transferred for implantation. (I think it would be a bad idea to have the IVF clinic doctors perform the implantations.) This contracting, not evil in itself, could give the impression that the Catholic Church is complicit in the evil of IVF. If Catholic bishops soberly assessed the situation and judged that such contracting would cause scandal in the formal sense (i.e., be a cause of people beginning to believe that the evil actions in question are legitimate or choosing those actions), they might justifiably render a pastoral judgment that Catholics should not engage in embryo adoption.

Catholics, therefore, who believe that Jesus might be calling them to rescue one or more of our brother and sister embryos have a duty to factor into their considerations reasonable measures to minimize the possibility that these harmful side effects will occur.