Pregnancy For Pay

                                 Pregnancy For Pay--continued

   We learned yesterday that the trial court judge in the "Baby M" case ruled that the contract was binding and that the biological mother, Mary Beth Whitehead, had to give up the baby to William Stern and his wife. 
   Mary Beth Whitehead appealed the case to the New Jersey Supreme Court. In a unanimous opinion, the court overturned Judge Sorkow, the trial judge, and rued that the surrogacy contract was invalid. The court awarded custody of Baby M to William Stern, on the grounds that this was in the best interest of the child. Contract aside, the court believed the Sterns would do a better job of raising Melissa. But it restored Mary Beth Whitehead's status as the child's mother, and asked the lower court to determine visitation rights. 
   Writing for the court, Chief Justice Robert Wilentz rejected the surrogacy contract. He argued that it was not truly voluntary, and that it constituted baby-selling 
   First, the consent was flawed. Mary Beth's agreement to bear a child and surrender it at birth was not truly voluntary, because it was not fully informed : 

     Under the contract, the natural mother is irrevocably committed before she knows the strength of her bond with her child. She never makes a totally voluntary, informed decision, for quite clearly any decision prior to the baby's birth is, in the most important sense, uninformed.

   Once the baby is born, the mother is in a better position to make an informed choice. But, by then, her decision is not free, but is compelled by "the threat of a lawsuit, and the inducement of a $10,000 payment," making it "less than totally voluntary." Moreover, the need for money makes it likely that poor women will "choose" to become surrogate mothers for the affluent, rather than the other way around. Justice Wilentz suggested that this, too, called into question the voluntary character of such agreements : "We doubt that infertile couples in the low-income bracket will find upper income surrogates."
   So one reason for voiding the contract was tainted consent. But Wilentz also offered a second, more fundamental reason : 

     Putting aside the issue of how compelling her need for money may have been, and how significant her understanding of the consequences, we suggest that her consent is irrelevant. There are, in a civilized society, some things that money cannot buy. 

   Commercial surrogacy amounts to baby-selling, Wilentz argued, and baby-selling is wrong, however voluntary it may be. He rejected the argument that the payment is for the surrogate's service rather than for the child. According to the contract, the $10,000 was payable only upon surrender of custody and the termination by Mary Beth of her parental rights. 


     This is the sale of a child, or, at the very least, the sale of a mother's right to her child, the only mitigating factor being that one of the purchasers is the father. . . A middle man, propelled by profit, promotes the sale. Whatever idealism may have motivated any of the participants, the profit motive predominates, permeates, and ultimately governs the transaction. 

              SURROGACY CONTRACTS AND JUSTICE

   So who was right in the Baby M case --- the trial court that enforced the contract, or the higher court that invalidated it ? To answer this question, we need to assess the moral force of contracts, and the two objections that were raised against the surrogacy contract. 
   The argument for upholding the surrogacy contract draws on the the two theories of justice we've considered so far --- libertarianism and utilitarianism. The libertarian case for contracts is that they reflect freedom of choice ; to uphold a contract between two consenting adults is to respect their liberty. The utilitarian case for contracts is that they promote the general welfare ; if both parties agree to a deal, both must derive some benefit or happiness from the agreement ---otherwise, they wouldn't have made it. So, unless it can be shown that the deal reduces someone else's utility (and by more than it benefits the parties), mutually advantageous exchanges ---- including surrogacy contracts --- should be upheld. 
   What about the objections ? How convincing are they ? 

                             Objection 1 : Tainted Consent 

   The first objection, about whether Mary Beth Whitehead's agreement was truly voluntary, raises a question about the conditions under which people make choices. ( Situationists vs Dispositionists) It argues that we can exercise free choice only if we're not unduly pressured (by the need for money, say), and if we're reasonably well informed about the alternatives. Exactly what counts as undue pressure or the lack of informed consent is open to argument. But the point of such arguments is to determine when a supposedly voluntary agreement is really voluntary --- and when it's not. This question loomed large in the Baby M case, as it does in debates about the voluntary army.
   Stepping back from the cases, it's worth noticing that this debate, about the background conditions necessary for meaningful consent, is actually a family quarrel within one of the three approaches to justice we consider in this missive --- the one that says justice means respecting freedom. As we've already seen, libertarianism is one member of this family. It holds that justice requires respect for whatever choices people make, provided the choices don't violate anyone's rights. Other theories that view justice as respecting freedom  impose some restrictions on the conditions of choice. They say --- as did Justice Wilentz in the Baby M case---that choices made under pressure, or in the absence of informed consent, are not truly voluntary. We'll be better equipped to assess this debate when we turn to the political philosophy of John Rawls---a member of the freedom camp who rejects the libertarian account of justice. 

               Objection 2 : Degradation and higher goods 

   What about the second objection to surrogacy contracts --- the one that says there are some things money shouldn't buy, including babies and women's reproductive capacities ? What exactly is wrong with buying and selling these things ? The most compelling answer is that treating babies and pregnancy as commodities degrades them, or fails to value them appropriately.
   Underlying this answer is a far-reaching idea : The right way of valuing goods and social practices is not simply up to us. Certain modes of valuation are appropriate to certain goods and practices. In the case of commodities, such as cars and toasters, the proper way of valuing them is to use them, or to make them and sell them for profit. But it's a mistake to treat all things as if they were commodities.  It would be wrong, for example, to treat human beings as commodities, mere things to be bought and sold. That's because human beings are persons worthy of respect, not objects to be used. Respect and use are two different modes of valuation. 

   This discussion will continue tomorrow.