Justice_ What's the Right Thing to Do_ - Michael Sandel [45]
This is the sale of a child, or, at the very least, the sale of a mother’s right to her child, the only mitigating factor being that one of the purchasers is the father. … [A] middle man, propelled by profit, promotes the sale. Whatever idealism may have motivated any of the participants, the profit motive predominates, permeates, and ultimately governs the transaction.42
Surrogacy Contracts and Justice
So who was right in the Baby M case—the trial court that enforced the contract, or the higher court that invalidated it? To answer this question, we need to assess the moral force of contracts, and the two objections that were raised against the surrogacy contract.
The argument for upholding the surrogacy contract draws on the two theories of justice we’ve considered so far—libertarianism and utilitarianism. The libertarian case for contracts is that they reflect freedom of choice; to uphold a contract between two consenting adults is to respect their liberty. The utilitarian case for contracts is that they promote the general welfare; if both parties agree to a deal, both must derive some benefit or happiness from the agreement—otherwise, they wouldn’t have made it. So, unless it can be shown that the deal reduces someone else’s utility (and by more than it benefits the parties), mutually advantageous exchanges—including surrogacy contracts—should be upheld.
What about the objections? How convincing are they?
Objection 1: Tainted consent
The first objection, about whether Mary Beth Whitehead’s agreement was truly voluntary, raises a question about the conditions under which people make choices. It argues that we can exercise free choice only if we’re not unduly pressured (by the need for money, say), and if we’re reasonably well informed about the alternatives. Exactly what counts as undue pressure or the lack of informed consent is open to argument. But the point of such arguments is to determine when a supposedly voluntary agreement is really voluntary—and when it’s not. This question loomed large in the Baby M case, as it does in debates about the volunteer army.
Stepping back from the cases, it’s worth noticing that this debate, about the background conditions necessary for meaningful consent, is actually a family quarrel within one of the three approaches to justice we consider in this book—the one that says justice means respecting freedom. As we’ve already seen, libertarianism is one member of this family. It holds that justice requires respect for whatever choices people make, provided the choices don’t violate anyone’s rights. Other theories that view justice as respecting freedom impose some restrictions on the conditions of choice. They say—as did Justice Wilentz in the Baby M case—that choices made under pressure, or in the absence of informed consent, are not truly voluntary. We’ll be better equipped to assess this debate when we turn to the political philosophy of John Rawls—a member of the freedom camp who rejects the libertarian account of justice.
Objection 2: Degradation and higher goods
What about the second objection to surrogacy contracts—the one that says there are some things money shouldn’t buy, including babies and women’s reproductive capacities? What exactly is wrong with buying and selling these things? The most compelling answer is that treating babies and pregnancy as commodities degrades them, or fails to value them appropriately.
Underlying this answer is a far-reaching idea: The right way of valuing goods and social practices is not simply up to us. Certain modes of valuation are appropriate to certain goods and practices. In the case of commodities, such as cars and toasters, the proper way of valuing them is to use them, or to make them and sell them for profit. But it’s a mistake to treat all things as