1. Introduction
2. The Right to Procreate
  2.1 Skinner v. Okla.
  2.2 Wiscon. v. Oakley
  2.3 Involuntary Sterilization
  2.4 Kin Selection
  2.5 Marriage
  2.5.1 Anonymous
  2.5.2 Tompkins v. Tompkins
  2.5.3 Williams v. Williams
  2.6 Transgender Marriage
  2.7 Polygamy
  2.8 Prostitution
  In Brief
3. Who Is My Family?
3.1 Family Identity and the Right to Associate with Kin
  3.2 Marriage and the Paternity Presumption
  3.2.1 Jones v. Trojak
  3.2.2 Michael H. v. Gerald D.
  3.2.3 William "TT" v. Siobhan "HH"
3.3 Paternity Estoppel
3.4 Equitable Parenthood
3.5 Duty to Support
  3.6 The Paramour Statute
  3.7 Maternal Transmission of Citizenship
  In Brief
4. Whose Child Is This?
  4.1 The Surrogate Cases
  4.1.1 Johnson v. Calvert
  4.1.2 Belsito v. Clark
  4.2 Shotgun Weddings
  4.2.1 Fairchild v. Fairchild
  4.2.2 Gard v. Gard
  4.2.3 B. v. S.
  In Brief
5. Shopping For Eggs & Sperm
  5.1 Bad Sperm
  5.2 Cryogenic Orphans & Waifs
  5.2.1 Gifts of Sperm
  5.2.2 Who Is My Father?
  In Brief
6. Sexual Orientation
  6.1 The Right to Practice One’s Sexual Orientation
  6.2 Discriminating on the Basis of Sexual Orientation
6.3 Same-sex Adoption
6.4 Same-sex Marriages
  In Brief

2.5.1.  Anonymous


89 Ala. 291; 7 So. 100; 1889 Ala. LEXIS 142

November, 1889, Decided

PRIOR HISTORY:  APPEAL from the Chancery Court of Butler.


Heard before the Hon. JOHN A. FOSTER.

The bill in this case was filed by the wife, and sought a divorce, on the ground that the abnormal size of her husband's private parts prevented the consummation of the act of sexual intercourse between them. The parties were married on the 8th July, 1888, and the bill was filed on the 26th September, 1888. The chancellor overruled a demurrer to the bill for want of equity, and his decree is here assigned as error.


HEADNOTES: Bill in Equity for Divorce, by Wife.

1. Physical incapacity, as ground of divorce.--Incurable physical incapacity to enter into the marriage state, as a statutory ground of divorce (Code, § 2322), means impotency, or physical incapacity to consummate the act of sexual intercourse, whether proceeding from physical imperfection or malformation; but, before the wife can obtain a divorce, on the ground that her husband is thus physically incapacitated by reason of the abnormal size of his private parts, she must submit to an examination of her person under the order of the court, to show that the defect is not on her part; and the husband must submit to an examination of his person, in order that the court may be satisfied that the proceeding is not consentive and collusive.






OPINION:  STONE, C. J.--The averments of the bill in this case are too offensive to modesty to allow their publication in our reports. But, as said by Lord Stowell in Briggs v. Morgan, 3 Phill. 325--1 Eccles. Rep. 408—“Courts of law are not invested with the powers of selection. They must take the law as it is imposed on them. Courts of the highest jurisdiction must often go into cases of the most odious nature, where the proceeding is only for the punishment of the offender. Here, the claim is for a remedy, and the court can not refuse to entertain it on any fastidious notions of its own."

Our statute, Code of 1886, § 2322, declares that either party to a marriage is entitled to a divorce from the bonds of matrimony, "when the other was, at the time of the marriage, physically and incurably incapacitated from entering into the marriage state." The meaning of the words, "physically incapacitated," as here used, is substantially the same as that of the word impotent, frequently met with in divorce proceedings. It means powerless, or wanting in physical power, to consummate the marriage. Animal desire between the sexes is one of the incitements to matrimony, the lawful gratification of which is encouraged and protected alike by moral sentiment and municipal regulation. Copulation, or coition--the act of gratifying sexual desire--is the consummation of marriage, inability to accomplish which, when it proceeds from incurable physical imperfection, or malformation, is precisely what our statute means and expresses, by the words "physically and incurably incapacitated." Barrenness, however, is in no sense the synonym of impotency. We consider it unnecessary, at this stage of this case, to go into further details. 1 Bishop Mar. & Div. (6th Ed.), §§ 322 to 338a, inclusive, treats the subject at length, and collates and reviews the adjudged cases. We approve his statement of the American doctrine, as set forth in said sections.-- Devanbagh v. Devanbagh, 28 Am. Dec. 443, note.

Is the malformation, or physical incapacity charged in the bill, if true, sufficient ground for divorce? Can we, as matter of law, or of indisputable fact, affirm that the charge is preposterous, and therefore untrue? Are the abnormal proportions, which are charged, impossible in the nature of things? We know of no rule of law or logic, by which we can reach such conclusion. We hold that the chancellor, in his decretal order, overruling the demurrer and refusing to dismiss the bill, did not err.

The briefs of counsel give evidence of diligent research, and they furnish no adjudged case, in which the malformation here complained of was the ground of complaint. We suppose such cases, if they exist at all, are very rare. To authorize the relief prayed, the proof should be very satisfactory, and the most direct which the nature of the question is susceptible of. The complainant must be required to submit her person to examination by physicians, or matrons skilled in such matters, to be appointed by the chancellor; and proof of such examination, by the persons so appointed, showing that the fault is not with her, must be made an indispensable condition of relief. If she refuse to submit to such examination, then let her bill be dismissed.

The defendant also should submit to a skillful examination, as a condition of his defense, if he contents the complainant's right to relief. But, if defense is not made as herein indicated, the chancellor should scrutinize the testimony narrowly, and have recourse to any other legal means, with a view of ascertaining if the proceedings have not become consentive and collusive. Finding such to be the case, relief should be denied, except on clear proof of the charge preferred in the bill; namely, that for the reason stated, the defendant "was, at the time of the marriage, physically and incurably incapacitated from entering into the marriage state."