Answering the Question: The Right to Marriage and Infertile Couples

Infertile couples have the right to marriage because they have the capacity to perform the conjugal act that is naturally ordered to procreation, even if it can't lead to procreation for reasons unintended by them. 

CORPUS CHRISTI, TX (Catholic Online) - I recently wrote an article on the issue of why there can be no such thing as a "right" to same-sex "marriage."  The article focused on the notion of marriage as a natural "office" (in Latin officium), and argued that, viewed as an "office," marriage gave rise to certain duties (in Latin a "duty" is also called officium), and it is from both the office and its duties that a person can be said to have natural rights to marriage.

The "office of marriage" is a natural office which anticipates the sexual or conjugal union of a man and a woman for reasons of procreation.  Although there are other benefits to the "office of marriage," it is the sexual or conjugal union naturally ordered to the procreation of children which is at the heart of this institution, which distinguishes it from any other natural communion or friendship, and which informs it above all else. 

It is one of its sine qua nons. It is not, however, its only sine qua non.  For example, as part of the office of marriage, the sexual or conjugal act has to be performed within the auspices of a permanent and exclusive commitment.

No same-sex couple has the capacity to assume the "office of marriage" since, as much as they may try, it is impossible that their sexual union can be in any manner procreative.  It is not even ordered remotely to procreation.  It has no procreative meaning at all.  In fact, it has the exact opposite meaning: it is anti-procreative.  It is an act that frustrates the natural purpose of the act, in fact makes a mockery of it. 

Accordingly, same-sex couples have no right to the "office of marriage," because they lack the capacity to perform its underlying duties.  To claim a "right," a false right, is to impugn and caricature the reality of marriage.

In response to the article, I received an email that was complementary of the article, but which posed a question that, I thought, justified a supplemental article.  The question: "If the right to marry can only be claimed by those who can fulfill the duties and obligations of marriage, and if the primary duty of marriage is procreation, then it would seem the argument would follow that the infertile couples could not marry."

Simply put: Can couples who are infertile assume the "office of marriage"? 

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(Here, I limit "infertility" to unintentional causes, i.e., to infertility due to physical impediments [e.g., low sperm count, ovarian problems], age, unintended consequences of medicines used to treat some malady, and so forth.  I do not address the issue of infertility caused by the intentional use of artificial contraception for the purpose of preventing procreation.  I will call conjugal acts involving the former situation (those not intentionally impeded) as "unimpeded conjugal acts."  This is to distinguish them from conjugal acts involving intentionally impeded conjugal acts, or sexual acts rendered sterile through artificial contraception, which are of an entirely different moral character, though these will not be addressed in this article.)

To answer the question, we have to focus more intently on the "office of marriage," and make an either/or distinction.  Here is the watershed question: Is the "office of marriage" fulfilled by the unimpeded conjugal act even if the parties know as a result of some physical, age-related, or other unintentional impediment procreation is impossible as a result?  Or, rather, is the "office of marriage" only fulfilled by the unimpeded conjugal act together with knowledge that procreation will, or will probably, or may possibly result?

We can therefore collapse the question to one framed in this manner.  Does the "office of marriage" involve the capacity to undertake a work or action: an unimpeded conjugal union that is naturally ordered to the procreation of children--or does it also involves the capacity of knowledge (whether certain, probable, or possible) of a result (conception) in addition to the action?

The clue to the answer is given, once again, in the meaning of the word "office."  As explained in the earlier article on this issue, "office" comes from Latin opificium, a combination of opus ("work") and facere ("to do" or "to perform").  What is involved in the "office of marriage" is the ability to do the "work," to perform the conjugal act that is naturally ordered toward the procreation of children.  The work or act of the "office of marriage" does not require us to have knowledge, whether certain, probable, or possible of a particular result from the conjugal act.

Therefore, the issue of knowledge as to whether an unimpeded conjugal act will, or will not, lead to conception is not relevant to the issue of the capacity to perform the duty, and hence is unrelated to the right.  This means that a man and woman capable of the conjugal act have the capacity to assume the "office of marriage," even though they may have knowledge of the fact that the act, for whatever unintended reason, is, may probably be, or may possibly be infertile. 

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Infertile couples have the right to marriage because they have the capacity to perform the conjugal act that is naturally ordered to procreation, even if it can't lead to procreation for reasons unintended by them.  Again, same-sex couples do not have the capacity to perform a conjugal act naturally ordered to procreation.  Therefore, fertility--certain, probable, or possible--is irrelevant to the question of capacity of the ability to perform a conjugal act ordered to procreation (i.e., whose intrinsic meaning is procreative, though some accidental and unintended quality may in fact render procreation impossible).

There are also some practical reasons why this has to be the case.  If, in addition to the performance of the conjugal act that is naturally ordered to procreation, knowledge that conception will, or may probably, or may possibly result is demanded, then it is virtually impossible for anyone to assume the "office of marriage."  No one "knows" whether a woman's ovum will be penetrated by a sperm cell as a result of any one particular unimpeded conjugal act.  This is beyond normal human capacity.  It is crazy to require it.

Also, to require knowledge of a future result--whether that knowledge is certain, probable, or even possible--is to fall into a sort of utilitarian or consequentialist view of marriage.  It is well-known how impossible the utilitiarian or consequentialist moral "calculus" is.  Similarly, if the "office of marriage" required a "calculus" of conception, we would be importing an impossible standard into the mix.  There is every practical reason to avoid this view.

Imagine: if the office of marriage, like the conjugal act, were only justified by a conjugal act that resulted in procreation, then we would not know whether a particular conjugal act was good or evil until we learned that it resulted in conception.  Such a view is not reasonable.

More, the capacity to undertake an office, which involves moral, psychological, physical, and perhaps legal capability, cannot depend upon contingencies that are outside of the person's control, things that involve conditions or even involuntary processes that occur even hours after the conjugal act.  We do not hold people morally responsible for things outside their control. 

In addition, one ought not forget that there are goods associated with the conjugal act in addition to procreation, which exist regardless of procreation, so that the good of the unimpeded conjugal act--even where it does not lead to conception for reasons of happenstance--remains.  These also justify the "office of marriage."

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While these honest goods (such as the expression of a permanent and exclusive love, remedy of concupiscence, etc.) are found in a conjugal act, these honest goods are not found in any sexual union outside of the conjugal act within marriage.  Sex outside marriage, homosexual sex, adultery, contraceptive sex, self-abuse, and other aberrant sexual expressions cannot be said to contain any honest goods.  It is simply wrong--intrinsically evil, in fact--to express love or unity or to ease concupiscence--by a sexual avenue other than the unimpeded conjugal act.

Finally, if procreation itself is viewed as the exclusive sine qua non of marriage and the conjugal act, then marriage and the conjugal act are reduced to instrumental goods.  Marriage and conjugal sex then become merely useful goods, means and not ends.  But marriage between a man and a woman, and any unimpeded conjugal act within such exclusive and permanent marriage, are goods in themselves, are ends in themselves, irrespective of whether they result in conception.  Marriage and the conjugal act within it are basic human goods, and need no further justification.  This is entirely untrue for same-sex marriage and sexual acts other than conjugal acts.

For these reasons, permanently or periodically infertile couples (so long as the couple is one man and one woman) are capable of assuming the honorable "office of marriage," are capable of making exclusive and permanent commitment, are capable of assuming its conjugal duties, and therefore have an authentic right to marriage and the conjugal act that is so essential to it.

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Andrew M. Greenwell is an attorney licensed to practice law in Texas, practicing in Corpus Christi, Texas.  He is married with three children.  He maintains a blog entirely devoted to the natural law called Lex Christianorum.  You can contact Andrew at agreenwell@harris-greenwell.com.

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