There’s a very real question of intent and timing baked into this discussion, which we should bring forth. Entering into a contract that you don’t believe is enforceable and you don’t intend to honor, but which you tell your counterparty that you think it’s valid, is fraud. Entering into a contract that you intend to honor, and you accept the contractual penalties even if unenforced is best-behavior. The middle grounds of “found out later that I don’t accept the effects of my agreement, and it turns out to be unenforceable” is in question—my intuition is it’s blameworthy, but there’s room for debate.
The more interesting part of this is the availability of unenforceable contracts. Where surrogacy is not enforced, it doesn’t happen nearly as often. Some may find this good (fewer people in the world!) and some may not (we need more people!), but it’s clear that Posner’s correct that disallowing it removes the supply rather than protecting the suppliers.
(it’s true that people find other ways to do it, like going to another country or lending money rather than direct payments, and then forgiving the debt as part of adoption proceedings. that’s not relevant to the question of whether to prevent some kinds of voluntary and optional contract).
There’s a very real question of intent and timing baked into this discussion, which we should bring forth. Entering into a contract that you don’t believe is enforceable and you don’t intend to honor, but which you tell your counterparty that you think it’s valid, is fraud. Entering into a contract that you intend to honor, and you accept the contractual penalties even if unenforced is best-behavior. The middle grounds of “found out later that I don’t accept the effects of my agreement, and it turns out to be unenforceable” is in question—my intuition is it’s blameworthy, but there’s room for debate.
The more interesting part of this is the availability of unenforceable contracts. Where surrogacy is not enforced, it doesn’t happen nearly as often. Some may find this good (fewer people in the world!) and some may not (we need more people!), but it’s clear that Posner’s correct that disallowing it removes the supply rather than protecting the suppliers.
(it’s true that people find other ways to do it, like going to another country or lending money rather than direct payments, and then forgiving the debt as part of adoption proceedings. that’s not relevant to the question of whether to prevent some kinds of voluntary and optional contract).