I always find it fascinating to watch what happens when absolutist positions clash with a reality which puts the absolutist positions in conflict with each other. Sex within AIDS marriages is one such reality. I'm not surprised the Church has no canons dealing with this issue. It's an issue which transcends the logic of Thomistic natural law.
Of course what's really happening on the ground is based in reality and not the transcendant sexual notions of the Vatican. AIDS marriages are happening all the time and people are using condoms within them. They can even have healthy AIDS free babies if they time unprotected intercourse with high CD4 (white cell counts) levels. The developing widespread access to cheap ARV's (Anti Retrovirals) is allowing people to live much longer, healthier and productive lives. AIDS is no longer a mandatory short term death sentence, and people who are responding to ARV's are also experiencing a heightened level of sexual desire. They have hope in a future and marriage is part of that hope.
In the meantime the Church in India and Burundi have made AIDS testing mandatory as part of the application for the Sacrament of Marriage. This has been received with mixed reviews. Some people feel it is an unwarranted intrusion into the couple's relationship, and others see it as one way of stopping a dishonest partner from infecting an unsuspecting partner. In both countries the Church maintains it will not prevent a marriage based on a positive test. I guess this means that it is in the hands of the local priest to decide how to counsel his couples. I actually don't understand why governments aren't mandating this as part of a marriage license. My ex husband and I had to undergo blood testing and I personally was glad to find out we had no Rh issues.
What's happening in Africa as we come to the twenty year marker for the pandemic is interesting indeed. AIDS educators have now admitted that it is absolutely essential to get the main religious leaders to speak about this subject. This is forcing the Muslim world to look at their own sexual theology. In general they reinforce the concepts of Abstinence and Being faithful, while turning the Condom issue over to their medical peers. Muslim Imams don't advocate for the use of condoms, but unlike in Catholicism it is not considered a sin to use them. They base their thinking on a form of PROPORTIONALISM. That is, it's a far lesser sin to use a condom than to potentially kill your partner by not using one. They consider this a PROLIFE position.
Anglicans stress all three of the ABC's, and officially Roman Catholics teach against the use of condoms. Officially. Unofficially the attitude is very close to that of the Imams. Priests talk about A and B and then refer to others for information on C. A position for which Caritas was castigated by an influential--probably self styled--US theologian as a purposeful tactic designed to circumvent the infallible teaching of Humanae Vitae.
It is also (sad to say) not unusual for traditionalist clergy to maintain that condoms don't work because the pores in the latex allow the virus to pass through, and that condoms break anyway. This notion, in spite of reams of evidence to the contrary, has just recently been reiterated by a Vatican Cardinal. This pronouncement would not be a case of proportionalism, but a case of delusionalism. That's the best case, delusionalism. Any other motivation for such a pronouncement would imply purposeful misinformation.
In any event, I hope we won't see any canon laws written to cover the situation of AIDS marriages. I really doubt any bishop's conference is going to want to be stuck with one position given to them from on high. The way things stand now the decisions are left at the place where they can--in theory--be best made. That at the level of the parish priest and the couple, who are the ones most impacted by their AIDS status.
The best case scenario is that the Vatican will finally come out with the very same reasoning the Islamic world has already beaten them too, and it will be OK to use condoms with in marriage. Actually that loophole was left open in the 1987 document Donum Vitae in which John Paul II declared that condoms could never be used by homosexual couples or non married couples, however, it omitted married couples. Since Cardinal Ratzinger also signed off on this, I doubt it was a clerical oversight. So while it will always be OK for gays and non married singles to kill each other through unprotected sex, ( they're sinners anyway) married couples may be given an out. I say maybe, because given the Vatican propensity to be terrified of the slippery slope, this all remains to be seen.
For those of you who might be interested in getting up to speed on what's happening on the ground in Africa in the lives of real married people dealing with AIDS within marriage, here's a great start on a great website: http://www.plusnews.org/InDepthMain.aspx?InDepthId=70&ReportId=62646&Country=Yes
Here's an update to this story. This is part of an interview with Msgr. Robert Vitillo, the Vatican advisor to Caritas International. Caritas is participating in the XVIII International AIDS Conference currently convened in Mexico City. If you read his answer to the question, you will see he doesn't answer the question. He gives the Vatican spin. The full article can be read here: http://www.zenit.org/rssenglish-23393
Q: Last week 50 Catholic groups asked Benedict XVI to lift the Church's ban on artificial contraception, and accused the Church's stance of having "catastrophic effects" in the spread of AIDS. Does the Church's position against condoms constitute an obstacle against fighting AIDS?