When people marry they that they promise to love each other forever. That’s a promise that’s not legally-enforceable, but that doesn’t make it fraud to make that promise. The government is not enforceing those promises of marries of issues of the sanctity of personal relations that are quite similar to the issues surrounding adoption.
It’s quite simple to do business this way. The prostition market isn’t substantially harmed by the fact that there’s no enforceability.
When it comes to adoption, if you pay people after the adoption goes through instead of paying them in advance you can still have a functioning market for babies that are up for adoption. It’s enough that you can write a contract that makes the payment binding when services have been delivered. You don’t need the ability to make the delievery of the services enforceable when there’s payment to have that market.
But a market for adoption is not a market for surrogate motherhood because in surrogate motherhood the mother develops an emotional attachment for a particular child well before the actual event of the adoption happens.
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).
When people marry they that they promise to love each other forever. That’s a promise that’s not legally-enforceable, but that doesn’t make it fraud to make that promise. The government is not enforceing those promises of marries of issues of the sanctity of personal relations that are quite similar to the issues surrounding adoption.
It’s quite simple to do business this way. The prostition market isn’t substantially harmed by the fact that there’s no enforceability.
When it comes to adoption, if you pay people after the adoption goes through instead of paying them in advance you can still have a functioning market for babies that are up for adoption. It’s enough that you can write a contract that makes the payment binding when services have been delivered. You don’t need the ability to make the delievery of the services enforceable when there’s payment to have that market.
But a market for adoption is not a market for surrogate motherhood because in surrogate motherhood the mother develops an emotional attachment for a particular child well before the actual event of the adoption happens.
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).