Justice_ What's the Right Thing to Do_ - Michael Sandel [44]
Judge Harvey R. Sorkow, the trial judge in the “Baby M” case, as it came to be known, was not persuaded by either of these objections.32 He upheld the agreement, invoking the sanctity of contracts. A deal was a deal, and the birth mother had no right to break the contract simply because she’d changed her mind.33
The judge addressed both objections. First, he rejected the notion that Mary Beth’s agreement was less than voluntary, her consent somehow tainted:
Neither party has a superior bargaining position. Each had what the other wanted. A price for the service each was to perform was struck and a bargain reached. One did not force the other. Neither had expertise that left the other at a disadvantage. Neither had disproportionate bargaining power.34
Second, he rejected the notion that surrogacy amounts to baby-selling. The judge held that William Stern, the biological father, had not bought a baby from Mary Beth Whitehead; he’d paid her for the service of carrying his child to term. “At birth, the father does not purchase the child. It is his own biological genetically related child. He cannot purchase what is already his.”35 Since the baby was conceived with William’s sperm, it was his baby to begin with, the judge reasoned. Therefore, no baby-selling was involved. The $10,000 payment was for a service (the pregnancy), not a product (the child).
As for the claim that providing such a service exploits women, Judge Sorkow disagreed. He compared paid pregnancy to paid sperm donation. Since men are allowed to sell their sperm, women should be allowed to sell their reproductive capacities: “If a man may offer the means for procreation then a woman must equally be allowed to do so.”36 To hold otherwise, he stated, would be to deny women the equal protection of the law.
Mary Beth Whitehead appealed the case to the New Jersey Supreme Court. In a unanimous opinion, the court overturned Judge Sorkow and ruled that the surrogacy contract was invalid.37 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.38
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.”39 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.”40
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.41
Commercial surrogacy amounts to baby-selling, Wilentz argued, and baby-selling is