Matrimonial consent and the "bonum prolis" (Monitor Ecclesiasticus 114 (1989-III), 397-404)

The 1917 Code of Canon Law described matrimonial consent as that "act of the will by which each party gives and accepts a perpetual and exclusive right over the body, for acts which are of themselves suitable for the generation of children" (1917 Code: canon 1081, # 2.). The 1983 Code describes this consent in apparently very different terms: it is that "act of the will by which a man and a woman, through an irrevocable covenant, mutually give and accept each other in order to establish a marriage" (1983 Code: canon 1057, # 2. ).

            The new definition corresponds to the more personalist view of marriage that has been emerging over the last 50 years. Already in 1930, in Casti connubii, Pius XI taught that a person enters marriage "through the generous surrender of his or her own person made to another for the whole span of life" (A.A.S. XXII (1930) 543. ). The Second Vatican Council accepted and consecrated this idea of "self-giving" as being at the heart of the conjugal union when it taught that marriage "is an institution confirmed by the divine law and receiving its stability from the human act by which the partners mutually surrender themselves to each other" (GS 48; cf. 49. ). In effect, canon 1057, # 2. is simply giving juridical expression to this aspect of the thought of Vatican II.

            Prior to the new Code, jurisprudence had developed a clear view of the rights and obligations involved in matrimonial consent, and therefore also of the reserves or exclusions which could invalidate it. This view moreover was harmoniously related to the traditional augustinian "bona matrimonialia": fides, sacramentum, proles - fidelity, indissolubility, offspring. The object of marriage consent was the "right over the body", for acts suitable for the generation of children (bonum prolis), and this right had to be given and accepted in a relationship both exclusive (bonum fidei) and life-long (bonum sacramenti). An exclusion of any one of these three essential elements - the right itself, or its exclusive character or its permanence - invalidated matrimonial consent.

            The principle by which the doctrine of the Church develops in a homogeneous fashion, applies also of course to Church doctrine about marriage. The law of the Church, for its part, taking revealed doctrine as the ultimate norm of justice, continues to care for the integrity, perpetuity and exclusiveness of the object of matrimonial consent. However, since the new Code does not present this object to us any longer as the "ius in corpus", but as the mutual "self-giving" of the spouses, jurisprudential thinking has clearly to be refined - in a line of continuity - if it is to determine what is the juridical content of this spousal "sese tradere"; and by what reserves or exclusions the contracting parties can no longer be said to make a conjugal gift of themselves.

            Our thought, if it is to work in continuity with the past, must also show how the newer understanding of matrimonial consent relates to the three traditional augustinian "bona" of marriage.

            In this article we do not propose to consider the "bonum fidei" or the "bonum sacramenti". Simply noting, with Gaudium et Spes, that the "intimate union of marriage demands total fidelity from the spouses and requires their indissoluble unity" (Gaudium et Spes, no. 48.), we wish to limit our attention to the "bonum prolis".

Conjugal self-donation, and one's attitude towards offspring

            It is of course an established principle of law that the exclusion of the "bonum prolis" - understood at least in the sense of the exclusion of the right to a true conjugal act open to offspring - nullifies matrimonial consent (cf. coram Wynen, May 6, 1941, S.R.R. Decis. vol. 33, p. 355; coram De Jorio, December 18, 1963, n. 2: S.R.R. Decis., vol. 55, p. 911; coram Di Felice, November 15, 1986, n. 3; coram Stankiewicz, October 29, 1987, n. 3, etc.).

            The juridical consideration of the "bonum prolis" in its relationship to the self-gift of marriage - to the conjugal "sese tradere/acceptare" (so proper to marriage that it is the very object of matrimonial consent) - resolves itself into the question of why the decision to marry and the attitude towards offspring should be so connected that, without openness to offspring, there can be no true conjugal self-donation, and therefore no true marriage.

            Our considerations - in line also, we believe, with the personalist understanding of sex and marriage that characterizes the teaching of the present Pope - will center on the marital act itself, so as to determine what makes it uniquely expressive of the mutual conjugal self-donation of the spouses, and why it is that if a person, in the moment of giving what appears to be marriage consent, refuses to grant the other party a right to that act in its integrity (including its natural consequences), he or she refuses to accept the other as spouse, and in consequence contracts no true marriage.

Giving one's "self"     

            Two persons can certainly bind themselves, physically or juridically, to one another; but they cannot actually give themselves to each other, other than in a moral or analogical sense. How can they actually give their bodies? Above all, how can they actually give their selves - their very persons? They can show their desire to give themselves, i.e. their desire for personal union, by their words, their deeds, their gifts... In order to prove his love for someone, a person can give to the one he loves something that is his - his time, his money, his care... The more proper to himself, the more intimate and unique, the gift he gives, the more deeply does he express his love for the other in giving it. Further, if his gift is accepted - in its entirety, without any reservation or rejection - then he senses that his love has been truly reciprocated. So, the more truly unique and personal the gift which spouses mutually exchange, the more deeply and singularly do they signify their desire for personal union.

            Many acts make up married life and can express married love. Of all of these acts, one however is considered to be so singularly expressive of the conjugal relationship that it is in fact termed "the marriage act". It is of the greatest importance to consider what it is in conjugal sexual intercourse that makes of it a totally unique expression of this "sese donans" of marriage.

            The greatest expression of a person's desire to give himself is to give the seed of himself [1]. "Giving one's seed is much more significant, and in particular is much more real, than giving one's heart. "I am yours, I give you my heart; here, take it", remains mere poetry, to which no physical gesture can give true body. But, "I am yours; I give you my seed; here, take it", is not poetry, it is love. It is conjugal love embodied in a unique and privileged physical action whereby intimacy is expressed - "I give you what I give no one" - and union is achieved: "Take what I have to give. This will be a new me. United to you, to what you have to give - to your seed - this will be a new "you-and-me", fruit of our mutual knowledge and love"." [2].

            In human terms, this is the closest one can get to giving one's self conjugally and to accepting the conjugal self-gift of another, and so achieving spousal union.

            If marital intercourse, therefore, expresses a unique relationship and union, this derives not from the sharing of a sensation but from the sharing of a power - of a sexual power that is complementary and extraordinary, and which is extraordinary precisely in virtue of its life-relatedness.

            In a true conjugal relationship, each spouse says to the other: "I accept you as somebody like no one else in my life. You will be unique to me and I to you. You and you alone will be my husband; you alone will be my wife. And the proof of your uniqueness to me is the fact that with you - and with you alone - am I prepared to share this God-given life-oriented power". In this consists the singular quality of intercourse. Other physical expressions of affection do not go beyond the level of a mere gesture; they remain a symbol of the union desired. But the conjugal act is not a mere symbol. In true marital intercourse, something real has been exchanged, with a full gift and acceptance of conjugal masculinity and femininity. And there remains, as witness to their conjugal relationship and the intimacy of their conjugal union, the husband's seed in the wife's body.

            Now if one deliberately nullifies the life-orientation of the conjugal act, one destroys its essential power to signify union. One in fact turns the act into self-deception or into a lie: "I love you so much that with you, and with you alone, I am ready to share this most unique power..." But - what unique power? In contraceptive sex, no unique power is being shared, except a power to produce pleasure. But then the uniqueness of the marital act is reduced to pleasure. Its significance is gone...

            "Contraception is in fact not just an action without meaning; it is an action that contradicts the essential meaning which true conjugal intercourse should have as signifying total and unconditional self-donation. Instead of accepting each other totally, contraceptive spouses reject part of each other, because fertility is part of each one of them. They reject part of their mutual love: its power to be fruitful... A couple may say: we do not want our love to be fruitful. But if that is so, there is an inherent contradiction in their trying to express their love by means of an act which, of its nature, implies fruitful love; and there is even more of a contradiction if, when they engage in the act, they deliberately destroy the fertility-orientation from which precisely derives its capacity to express the uniqueness of their love" (L'Osservatore Romano, October 10, 1988, loc. cit.).

In contraceptive intercourse there is no full gift of self

            A person therefore only gives himself or herself maritally, in a true sexual donation, when he or she respects the intrinsic procreative orientation of sexual union. The person who excludes openness to life from marital intercourse has not fully or truly given himself; and if his partner too rejects openness to life, he has not been truly or fully accepted.

            This means that in contraceptive intercourse, no marital union is achieved. In effect, as canon 1061, # 1 says, it is only by an act apt in itself for the generation of offspring that the spouses become "one flesh". The canon adds that marriage is "by its nature ordered" to such an open-to-life act. The same truth is affirmed, but in more personalist terms, in saying that those marrying are drawn, by the very nature of married love, to seek true sexual intercourse, open to life, by which they achieve union and become one flesh.

            Contraceptive intercourse is simply not conjugal intercourse; and the reason is that contraception necessarily involves the exclusion of part of the sexual gift of self. As Gaudium et Spes says, "the truly human performance of these (conjugal) acts foster the self-giving they signify" (no. 49.).

            Spouses having recourse to contraception, therefore, refuse to make to one another that full and unique marital gift to which human sexual love intimately urges them. Contraception contradicts the inner dynamism and truth of conjugal love.

            "In that act which expresses their conjugal love, the spouses are called to make a gift of themselves to one another: nothing of what makes up their "being a person" can be excluded from that gift. There is a passage in Vatican II, of exceptional depth, which is to the point. "Married love is an eminently human love because it is an affection between two persons ("a persona in personam") rooted in the will and it embraces the good of the whole person... Such a love, which brings together the human and the divine, leads the partners to a free and mutual gift of self" (Gaudium et Spes, n. 49). "A persona in personam": these simple words express the entire truth of conjugal love, of inter-personal love. A love that is wholly centered on the person, on the good of the person, a good which the spouses donate reciprocally to one another. Contraception introduces a substantial limitation into the heart of this reciprocal donation, and expresses an objective refusal to donate to the other, respectively, all of the good of femininity or of masculinity. In a word: contraception contradicts the truth of conjugal love" (John Paul II, Address, September 17, 1983 (Insegnamenti di Giovanni Paolo II, VI, 2 (1983), p. 563. Cf. Familiaris Consortio (A.A.S. LXXIV (1982) 119).).

            While contraceptive spouses may not be conscious that they are denying the very nature of married love, this is in fact the reason why they remain with a deep interior dissatisfaction. Between them there has been no true marital interchange, nothing that can adequately signify a unique gift of self: neither has fully accepted the other; neither can rejoice in the sense of truly possessing the other or being truly possessed by him or her.

Personalism in the urge to procreative intercourse

            It is natural therefore to want sexual union in that specific aspect which constitutes its true uniqueness: a sharing together in a power - the result of sexual complementarity - to bring about a new life. To dismiss this natural desire as merely "biological" shows a deficient understanding of sexuality: a failure to appreciate its doubly personalist nature.

            The urge to procreate certainly corresponds to a natural desire to perpetuate oneself. In the context of conjugal love, however, this natural desire for self-perpetuation takes on new personalist scope and meaning. It is no longer a matter of two separate selves, each wishing - perhaps in a selfish way - for self-perpetuation. Now it is rather the case of two persons in love, who naturally want to perpetuate the love that draws them to one another, and to see it take flesh in a new life, fruit of the mutual spiritual and carnal knowledge by which they express that spousal love (cf. Gen. 4, 1.).

            Two persons in love wish to do things together: to make or buy or furnish together something that will be peculiarly theirs, because it is the fruit of their united decision and action. Nothing is more proper to a couple than their child. Other people can have a similar or better house or car; only they can have their child (cf. C. Burke, "Marriage in Crisis", L'Osservatore Romano (English Ed.), September 23, 1976, p. 10.).

            Therefore, it must be emphasized, the life-orientation of sexual intercourse is not a "biological accident", with no intrinsic relationship to conjugal love. On the contrary, it corresponds to and satisfies both the deep longings of human nature and the interpersonal character of marital love. Sexual intercourse, deliberately deprived of its procreative orientation, loses its capacity to give distinctive expression to conjugal union. That is why the procreative aspect of conjugal intercourse is inseparable from its unitive significance (cf. Humanae Vitae, n. 12.).

            "Fecundity is the fruit and the sign of conjugal love, the living testimony of the full reciprocal self-giving of the spouses" (John Paul II, Familiaris Consortio (A.A.S. LXXIV (1982), 114).). It is natural to want this "signum amoris coniugalis", this unique proof of acceptance, of love, of union, which is involved in intercourse open to life, and which is absent from contraceptive intercourse. It is therefore natural to want fruitful marital-sexual union. The exclusion of fruitfulness, on the contrary, goes against the nature of conjugal love, so contradicting it that, if the exclusion is absolute, there is no "full reciprocal self-giving", and there can be therefore no true conjugal covenant or union. Marriage - "bono prolis excluso" - is not possible.

            "Since the "ordinatio ad bonum prolis" pertains to the ontological structure both of the marriage covenant itself ... as well as of the conjugal act of love..., it follows necessarily that this ordering to the transmission of the gift of human life constitutes an essential element of matrimony, the exclusion of which, through a positive act of the will, therefore renders marriage itself invalid" (decis. coram Stankiewicz, diei 21 iulii 1987, n. 6).


            The balance and harmony of canon 1055, # 1 becomes clearer in the light of these reflections. The "good of the spouses", on the one hand, and the "procreation and education of offspring", on the other - to both of which "the matrimonial convenant... is by its nature ordered" - , cannot properly be considered as separable or unconnected ends (and much less still as if they were in some way in mutual opposition). In the design of nature, these two aspects of marriage are rather meant to be thoroughly inter-dependent and mutually supportive.

            In marrying, a couple enter a relationship which is teleologically oriented towards other human beings as well: their possible children. In procreating, spouses not only fulfil the aspirations of mutual love and conjugality, but also acquire a moral duty towards these new persons, a duty to love and care for them - generously and for their own sake, and not merely as a perpetuation of their own spousal love or as an expression of their conjugal union.

            Having said this, one can add that the dedication to their children which marriage demands of spouses, tends - precisely in the effect it has of drawing them out of themselves - to contribute powerfully to the "bonum coniugum", to their development and maturing as persons who, in their married life (now, in their family life), are growing in worth and character and generosity, because they continue to be involved in the process of learning to love (cf. L'Osservatore Romano, September 23, 1976, art. cit.).


            Thus we conclude that the conjugal gift of self is inconceivable and in fact impossible without the giving and accepting of a right to truly conjugal acts that are open to life. This conclusion, as is evident, is in full continuity with the mainstream of rotal jurisprudential thinking (cf. coram Bejan, November 9, 1961, n. 4: S.R.R. Decis., vol 51, p. 496; coram De Jorio, February 19, 1966, n. 3: S.R.R. Decis., vol. 58, p. 97; coram Stankiewicz, July 29, 1980: S.R.R. Decis., vol. 72, p. 562, etc.).


[1] "Seed" here is taken in the sense of the "procreative element" (see coram Stankiewicz, October 29, 1987, n. 3), whether male or female.

[2] C. Burke: "Marriage and Contraception", L'Osservatore Romano, (English Ed.) October 10, 1988, p. 7; see also, Studi Cattolici, 328 (1988), p. 359.