MARKETS AND MORALS

                                 MARKETS AND MORALS
                                           (continued)


   The United States has not established a foreign legion, but it has taken a step in that direction. Faced with difficulties meeting recruiting goals as the wars in Iraq and Afghanistan have stretched on, the military has begun recruiting foreign immigrants currently living in the United States on temporary visas. The inducements include good pay and a fast track to American citizenship. About thirty thousand noncitizens now serve in the U.S. armed forces. The new program will extend eligibility from permanent residents with green cards to temporary immigrants, foreign students, and refugees. 
   The recruitment of foreign troops is not the only way the logic of the market plays out. Once you view military service as a job like any other, there is no reason to assume the hiring must be done by the government. In fact, the United States now outsources military functions to private enterprise on a large scale. Private military contractors play an increasing role in conflicts around the world, and form a substantial part of the U.S. military presence in Iraq.
   In July 2007, the Los Angeles Times reported that the number of U.S -paid private contractors in Iraq (180,000) exceeded the number of U.S. military personnel stationed there (160,000). Many of the contractors perform non-combat logistical support --- building bases, repairing vehicles, delivering supplies, and providing food services.But about 50,000 are armed security operatives whose work guarding bases, convoys, and diplomats often draws them into combat. More than 1,200 contractors have been killed in Iraq, though they do not return in flag-draped coffins, and their numbers are not included in the U.S. military's casualty count.
   One of the leading private military companies is Blackwater Worldwide. Erik Prince, the company's CEO, is a former Navy SEAL with a manic faith in the free market. He rejects the suggestion that his soldiers are "mercenaries," a term he considers "slanderous." Prince explains, "We're trying to do for the national security apparatus what Federal Express did for the postal service. Blackwater received over $1 billion in government contracts for its services in Iraq, but has often been at the center of controversy. Its roe first came to public attention in 2004, when four of its employees were ambushed and killed in Fallujah and two of the bodies were strung from a bridge. The incident led President G.W. Bush to order the Marines into Fallujah in a massive and costly battle with insurgents.
   In 2007, six Blackwater guards opened fire on a crowd in a Baghdad square, killing seventeen civilians. The guards, who claimed they had been fired upon first, were immune from prosecution under Iraqi law because of rules laid down by the American governing authority after the invasion. The contractors were eventually indicted for manslaughter by the U.S.  Justice Department, and the incident led the Iraqi government to demand the withdrawal of Blackwater from the country.
   Many in Congress and in the public at large object to the outsourcing of war to for-profit companies such as Blackwater. Much of the criticism focuses on the unaccountability of these companies, and their involvement in abuses. Several years before the Blackwater shooting incident, private contractors from other companies were among those who abused detainees at Abu Ghraib prison. Although the army soldiers involved were court-martialed, the private contractors were not punished. 
   But suppose Congress tightened regulations on private military companies to make them more accountable, and to hold their employees to the same standards of behavior that apply to U.S. troops. Would the use of private companies to fight our wars cease to be objectionable ? Or is there a moral difference between paying Federal Express to deliver the mail and hiring Blackwater to deliver lethal force on the battlefield ?
   To answer this question, we have to resolve a prior one : Is military service (and perhaps national service generally) a civic obligation that all citizens have a duty to perform, or is it a hard and risky job like others (coal mining, for example) that is properly governed by the labor market ? And to answer this question, we have to ask a broader one : What obligations do citizens of a democratic society owe to one another, and how do such obligations arise ? Different theories of justice offer different answers to this question. We'll be in a better position to decide whether we should draft soldiers or hire them once we explore, later in this discussion, the basis and scope of civic obligation. Meanwhile, consider another controversial use of the labor market. 

                                  PREGNANCY FOR PAY 

   William and Elizabeth Stern were a professional couple living in Tenafly, New Jersey --- he a biochemist, she a pediatrician. They wanted a baby, but couldn't have one on their own, at least not without medical risk to Elizabeth, who had multiple sclerosis. So they contacted an infertility center that arranged "surrogate" pregnancies. The center ran ads seeking "surrogate mothers"---women willing to carry a baby to term for someone else, in exchange for a monetary payment. 
   One of the women who answered the ads was Mary Beth Whitehead, a twenty-nine -year-old mother of two children, and the wife of a sanitation worker. In February 1985, William Stern and Mary Beth Whitehead signed a contract. Mary Beth agreed to be artificially inseminated with William's sperm, to bear the child, and to hand it over to William upon birth. She also agreed to give up her maternal rights, so that Elizabeth Stern could adopt the child. For his part, William agreed to pay Mary Beth a fee of $10,000 (payable on delivery), plus medical expenses. (He also paid a fee of $7,500 to the infertility center for arranging the deal.)
   After several artificial inseminations, Mary Beth became pregnant, and in March 1986 she gave birth to a baby girl. The Sterns, anticipating their soon-to-be-adopted daughter, named her Melissa. But Mary Beth Whitehead decided she could not part with the child, and wanted to keep it. She fled to Florida with the baby, but the Sterns got a court order requiring her to turn over the child. Florida police found Mary Beth, the baby was given to the Sterns, and the custody fight went to court in New Jersey. 
   The trial judge had to decide whether to enforce the contract. What do you think would be the right thing to do ? To simplify matters, let's focus on the moral issue, rather than the law. (As it happens, New Jersey had no law either permitting or prohibiting surrogacy contracts at the time.) William Stern and Mary Beth Whitehead had made a contract. Morally speaking, should it have been enforced ? 
   The strongest argument in favor of upholding the contract is that a deal is a deal. Two consenting adults had entered into a voluntary agreement that offered benefits to both parties : William Stern would get a genetically related child, and Mary Beth Whitehead would earn $10,000 for nine months of work. 
   Admittedly, this was no ordinary commercial deal. So you might hesitate to enforce it on one of two grounds : First, you might doubt that a woman's agreement to have a baby and give it up for money is fully informed. Can she really anticipate how she'll feel once the time comes to give up the child ? If not, it might be argued that her initial consent was beclouded by the need for money, and by the lack of adequate knowledge about what it would be like to part with her child. Second, you might find it objectionable to buy and sell babies, or to rent the reproductive capacity of women, even if both parties freely agree to do so. It could be argued that this practice turns children into commodities and exploits women by treating pregnancy and child bearing as a money-making business.
   Judge Harvey R. Sorkow, the trial judge in the "Baby M" case, as it came to be known, was not persuaded by either of these objections. He upheld the agreement, invoking the sanctity of contracts. A deal was a deal, and the birth mother had no right to break the contract simply because she'd changed her mind. 
   The judge addressed both objections. First, he rejected the notion that Mary Beth's agreement was less than voluntary, her consent somehow tainted : 

      Neither party has a superior bargaining position. Each had what the other wanted. A price for the service each was to perform was struck and a bargain reached. One did not force the other. Neither had expertise that left the other at a disadvantage. Neither had disproportionate bargaining power.

   Second, he rejected the notion that surrogacy amounts to baby-selling. The judge held that William Stern, the biological father, had not bought a baby from Mary Beth Whitehead : he'd paid her for the service of carrying his child to term. "At birth, the father does not purchase the child. It is his biological genetically related child. He cannot purchase what is already his." Since the baby was conceived with William's sperm, it was his baby to begin with, the judge reasoned. Therefore, no baby-selling was involved. The $10,000 payment was for a service (the pregnancy), not a product (the child). 
   As for the claim that providing such a service exploits women, Judge Sorkow disagreed. He compared paid pregnancy to paid sperm donation. Since men are allowed to sell their sperm, women should be allowed to sell their reproductive capacities. "If a man may offer the means for procreation then a woman must equally be allowed to do so." To hold otherwise, he stated, would be to deny women the equal protection of the law. 

Mary Beth Whitehead appealed to the New Jersey Supreme Court, and we'll take up that appeal next time.