‘A Surrogate Motherhood Contract’ – a legal agreement whereby a woman consents to become pregnant, conduct her pregnancy accordingly, give birth to a child or children—all of this for another person or persons, who are or will ultimately become the parent(s) of the newborn child or children.
Both the legal and moral status of surrogacy differs widely from one country to another.[1] For instance, a surrogate motherhood contract is perfectly legal in India; German law considers such contracts clearly void[2]; in the UK only altruistic surrogacy is allowed[3]; and in Romania it is uncertain what the law says in respect of such legal agreements[4]. This clearly conveys that this topic is open to debate.
In case the surrogate mother gives birth to a child but after doing so refuses to offer it to the party that legally deserves it, she thus breaches the contract. Is it morally wrong to allow the ‘parents’ to enforce the contract and thus claim the child ‘back’? The traditional stance is that the child shall absolutely stay with his biological mother and a mere fictional agreement cannot render the mother unable to claim it. German law helps us put it differently and more concretely: ‘the mother of a child is the woman who gave birth to it’.[5]
Crucially, the idea that the intended parents should be able to enforce the contract and claim ‘back’ the baby from the woman who gave birth is usually regarded as morally wrong. But is it?
To try to figure out whether a certain action is morally right or wrong, one must not take moral convictions at face value – but seek to deploy thinking. By thinking, I mean endeavouring to recognize, strip off or question even your most deeply-rooted values; striving to entertain your thoughts unorthodoxly, whilst not necessarily seeking to come up with unorthodox views. Thinking also involves contrarian reasoning: one must try to argue against the majority view, regardless of how unpopular it may be.
I am going to contrast the traditional stance with an unconventional one offered by a prominent figure: Richard Posner—a former judge and law professor at the University of Chicago.[6] In his pioneering textbook on Economic Analysis of Law, he takes issue with the famous case Baby M (1988), in which the Supreme Court of New Jersey found the enforcement of a commercial surrogacy contract to be inadmissible. Or, in other words, they decided that the newborn child shall clearly stay with the biological mother if she demands so, no matter the circumstances – even though she signed a binding contract which conveys otherwise.
The ‘Baby M (1988)’ Case & Posner’s Counterarguments
Let’s have a look at some of the court’s arguments and at the way Posner dissents.
Court: the purpose of the surrogacy contract was to give the parents the rights to the child by destroying the rights of the biological mother.
Posner: the court overlooks that without this contract no child would have been born in the first place. The purpose of the contract was not to destroy the biological mother’s rights, but to encourage one woman help another woman. The contract is immensely productive: it helps to realize something that would otherwise not have been possible.
Court: allowing such contracts to come into effect probably means that, as time goes by, babies will go only to the wealthiest people, regardless of whether they are suited as parents.
Posner: unlike paintings by Van Gogh, there is no fixed supply of babies. Supply will increase if money can be earned and the ensuing competition among surrogate mothers will force down the price. The court should therefore not be worried that adoption is only available to the wealthy – because this will not be the case.
Court: infertile couples with a low income will not find surrogate mothers.
Posner: this argument is the ‘jurisprudence of envy’. Even if it were true that poor, infertile couples cannot afford the price of a surrogate mother, they are not helped by a rule that prohibits infertile high income couples from having one.
Court: society considers that there are more important values than bestowing upon the wealthy ones the right to buy whatever they can buy – be it labour, love or life.
Posner: it is not at all clear how these values are served by refusing to allow the enforcement of a surrogacy contract.
It is worth mentioning that Posner and his colleague Elisabeth Landes argued in favour of creating a market for babies. If a mother is allowed to put up her child for adoption, this would not only remedy the short-age of adoption babies, but it could also lead to fewer children being neglected by their parents, and to benefits for a mother who may not want to be burdened with the need to carry a baby for nine months. Moreover, an illegal market for babies probably already exists today and would disappear if one could validly contract about parental rights.[7]
One need not agree with all of Posner’s counterarguments to see that this issue is difficult. Anyhow, what’s your take on his opinions? What’s inaccurate about his statements? What does he overlook? Or, are his arguments, actually, virtually exhaustive?
But—Why Should We Even Care?!
I arrogantly find the challenge which I put forward clearly practical. It forces us to penetratingly think about a fragile and reasonably relevant modern life situation which is steadily getting more and more attention. This issue inevitably challenges common, ethical beliefs. Indeed, this matter does not constitute a fundamental global problem – but that’s not the point. I believe, since the world is rapidly changing, we will naturally come across more and more controversial problems, like this one. And we need to be prepared for them. We need to exercise. Consider the issue at stake one of the exercises. Crucially, it’s a real exercise; not an imaginary one: it’s happening right now – I didn’t make it up; it’s not a story.
Footnotes
[1] J.M. Smits, Contract law. A comparative introduction, 2nd ed., Edward Elgar 2017, pp. 182-186.
[6] Posner is one of the most cited legal authors worldwide – this indeed establishes his authority, yet precisely because of that I impress upon everyone to seek to question and critically analyse his stances. Why? Because he is so good at what he does: and what he essentially does is building up arguments. Whilst his arguments may indeed often be exquisite, he may be able to also excellently and slyly fabricate valid arguments which may be in fact only insufficiently true or even preposterous at times: FLOMO v. FIRESTONE NATURAL RUBBER CO LLC—https://caselaw.findlaw.com/us-7th-circuit/1573873.html
[7] J.M. Smits, Contract law. A comparative introduction, 2nd ed., Edward Elgar 2017, pp. 185-186.
Is It Morally Wrong To Enforce A Surrogate Motherhood Contract?
‘A Surrogate Motherhood Contract’ – a legal agreement whereby a woman consents to become pregnant, conduct her pregnancy accordingly, give birth to a child or children—all of this for another person or persons, who are or will ultimately become the parent(s) of the newborn child or children.
Both the legal and moral status of surrogacy differs widely from one country to another.[1] For instance, a surrogate motherhood contract is perfectly legal in India; German law considers such contracts clearly void[2]; in the UK only altruistic surrogacy is allowed[3]; and in Romania it is uncertain what the law says in respect of such legal agreements[4]. This clearly conveys that this topic is open to debate.
In case the surrogate mother gives birth to a child but after doing so refuses to offer it to the party that legally deserves it, she thus breaches the contract. Is it morally wrong to allow the ‘parents’ to enforce the contract and thus claim the child ‘back’? The traditional stance is that the child shall absolutely stay with his biological mother and a mere fictional agreement cannot render the mother unable to claim it. German law helps us put it differently and more concretely: ‘the mother of a child is the woman who gave birth to it’.[5]
Crucially, the idea that the intended parents should be able to enforce the contract and claim ‘back’ the baby from the woman who gave birth is usually regarded as morally wrong. But is it?
I am going to contrast the traditional stance with an unconventional one offered by a prominent figure: Richard Posner—a former judge and law professor at the University of Chicago.[6] In his pioneering textbook on Economic Analysis of Law, he takes issue with the famous case Baby M (1988), in which the Supreme Court of New Jersey found the enforcement of a commercial surrogacy contract to be inadmissible. Or, in other words, they decided that the newborn child shall clearly stay with the biological mother if she demands so, no matter the circumstances – even though she signed a binding contract which conveys otherwise.
The ‘Baby M (1988)’ Case & Posner’s Counterarguments
Let’s have a look at some of the court’s arguments and at the way Posner dissents.
Court: the purpose of the surrogacy contract was to give the parents the rights to the child by destroying the rights of the biological mother.
Posner: the court overlooks that without this contract no child would have been born in the first place. The purpose of the contract was not to destroy the biological mother’s rights, but to encourage one woman help another woman. The contract is immensely productive: it helps to realize something that would otherwise not have been possible.
Court: allowing such contracts to come into effect probably means that, as time goes by, babies will go only to the wealthiest people, regardless of whether they are suited as parents.
Posner: unlike paintings by Van Gogh, there is no fixed supply of babies. Supply will increase if money can be earned and the ensuing competition among surrogate mothers will force down the price. The court should therefore not be worried that adoption is only available to the wealthy – because this will not be the case.
Court: infertile couples with a low income will not find surrogate mothers.
Posner: this argument is the ‘jurisprudence of envy’. Even if it were true that poor, infertile couples cannot afford the price of a surrogate mother, they are not helped by a rule that prohibits infertile high income couples from having one.
Court: society considers that there are more important values than bestowing upon the wealthy ones the right to buy whatever they can buy – be it labour, love or life.
Posner: it is not at all clear how these values are served by refusing to allow the enforcement of a surrogacy contract.
It is worth mentioning that Posner and his colleague Elisabeth Landes argued in favour of creating a market for babies. If a mother is allowed to put up her child for adoption, this would not only remedy the short-age of adoption babies, but it could also lead to fewer children being neglected by their parents, and to benefits for a mother who may not want to be burdened with the need to carry a baby for nine months. Moreover, an illegal market for babies probably already exists today and would disappear if one could validly contract about parental rights.[7]
One need not agree with all of Posner’s counterarguments to see that this issue is difficult. Anyhow, what’s your take on his opinions? What’s inaccurate about his statements? What does he overlook? Or, are his arguments, actually, virtually exhaustive?
But—Why Should We Even Care?!
I arrogantly find the challenge which I put forward clearly practical. It forces us to penetratingly think about a fragile and reasonably relevant modern life situation which is steadily getting more and more attention. This issue inevitably challenges common, ethical beliefs. Indeed, this matter does not constitute a fundamental global problem – but that’s not the point. I believe, since the world is rapidly changing, we will naturally come across more and more controversial problems, like this one. And we need to be prepared for them. We need to exercise. Consider the issue at stake one of the exercises. Crucially, it’s a real exercise; not an imaginary one: it’s happening right now – I didn’t make it up; it’s not a story.
Footnotes
[1] J.M. Smits, Contract law. A comparative introduction, 2nd ed., Edward Elgar 2017, pp. 182-186.
[2] S 1591 BGB.
[3] Surrogacy Arrangements Act 1985.
[4] https://en.wikipedia.org/wiki/Surrogacy
[5] S 1591 BGB.
[6] Posner is one of the most cited legal authors worldwide – this indeed establishes his authority, yet precisely because of that I impress upon everyone to seek to question and critically analyse his stances. Why? Because he is so good at what he does: and what he essentially does is building up arguments. Whilst his arguments may indeed often be exquisite, he may be able to also excellently and slyly fabricate valid arguments which may be in fact only insufficiently true or even preposterous at times: FLOMO v. FIRESTONE NATURAL RUBBER CO LLC—https://caselaw.findlaw.com/us-7th-circuit/1573873.html
[7] J.M. Smits, Contract law. A comparative introduction, 2nd ed., Edward Elgar 2017, pp. 185-186.