Justice_ What's the Right Thing to Do_ - Michael Sandel [43]
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, or commercial fishing) 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 the book, the basis and scope of civic obligation. In the meantime, 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.31
One of the women who had 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