Comment on the judgments of the New Jersey Superior Court and Supreme
Court In the Matter of Baby “M”, a
surrogate motherhood case
*Written for the Theories
of Justice course with Professor Walsh
A Duty to Love
one's Off-spring?
Faced with the fascinating facts of Baby M's case, I think it would be useful to spend a moment thinking about how this unprecedented legal problem has come about. Before resolving such cases, it is important to spare a thought for why we are facing something so radically different from what we have been facing earlier.
The ethico-legal discourse of
almost every human tradition recgonizes a duty to respect one's parents.
Muslims, for instance, often refer to the following Quran passage which
beautifully connects concepts of fearing God, loving one's parents and
recognizing the labour of mothers:
"And We have enjoined on every human being to be kind to
his/her parents. How can he forget the travails that his mother suffered as she
bore him in her womb and as she fed him, for two years, all the way to the time
of his weaning! So hear ye my command: Thou shalt stay grateful to Me as well
as to both thy parents and remember that thou shalt be returned to me, in the
end." - from The Book of Luqman, Verse 14, The
Holy Quran (my own interpretive translation)
Based on this duty, those who willfully and culpably fail to
discharge it are made to incur liability in various ways. In classical Islamic
law, they could be made to pay maintenance. And the Chinese have only recently
passed a law strengthening this duty.
But traditional ethico-legal discourse often contains little
mention of a duty to love one's child. Why's that? Does it mean that there no
such duty? To the contrary, it seems to me, that this was a matter so
well-understood that it hardly needed any further emphasis. The love of one's chlidren,
as opposed to the respect due to one's parents, comes out straight from the
well-springs of human nature - both common sense and evolutionary biology
confirm this. And that which is natural, the ethico-legal discourse
usually just assumes as it is.
So how should the ethico-legal
tradition now deal with a situation where some parents do willingly (and
without facing duress, economic and otherwise) enter into contracts for selling
them? Or, to put it in legalese, where women are willing to freely enter into
contracts to relinquish all rights over the fruit of their wombs? Of course, we
resort to ethical philosophy and the science of jurisprudence.
Why
is the Commodification of Women's Labour problematic? How do we decide what it is that
money can or cannot buy?
In her article, Elizabeth S. Anderson argues the commodification
of what is "specifically women's labour - the work of bringing forth children
into the world" is immoral and unjust. (p. 149, Reader) She
contends that "[t]he application of economic norms to the sphere of women's labor
violates women's claims to respect and consideration in [various] ways..."
(p. 150, Reader) One of the problems with the concept of surrogate motherhood,
she points out, is that it requires one "to deliberately alienate
oneself from one's love for one's own child". If
conceded, this approach to pregnancy would remake it into a "drudgery
which is only performed for a wage...." (p. 150,
Reader)I fully agree with her stance against the commodification of motherhood.
But I wish to add just two points which might otherwise go unnoticed.
Firstly, I think it is
enlightening to bear in mind the non-egalitarian assumption which underlies her
argument - the assumption being that there are legal rights and duties which
accrue specifically to women, on account of their being different in nature from
men. Clearly, the ability to bear children in their wombs and to feed them
after birth are gifts unique to women. These are areas where the natural
inequality of men and women is most manifest; whether there are other such
areas is, of course, an empirical issue which remains highly contested in the
scientific community. What is important to note over here is that different
understandings of this empirical issue profoundly affect our normative views
about what is just and unjust: the commodification of gestation, a specifically
feminine vocation seems opprobious than the commodification of the kinds of
services that men provide, precisely because we assume that there is a
qualitative difference between men's labour and women's labour. We hold the
belief that the work that is specifically feminine is the work that is least
suited to commodification. If that assumption is removed by, let’s suppose, a
more equality-centric approach that denies gender difference, the issue might
become simpler; then, there will no outrage about commodification.
Secondly, I think that even from a standpoint which is not so
equality-centric, it would be difficult to completely confine her argument to
women's labour. In footnote 24, she makes an effort to confine her argument against
commodification to "parental love", this being a
more "profound means of valuation" than any other. But
this makes little sense. The problem she identifies is correct: modern
work-ethic does degrade vocations that have traditionally been considered feminine,
such as child-rearing and home-making;
these vocation have been made to appear as full of drudgery and having no
intrinsic meaning or ennobling aspects. To a lesser extent, the same has been
the fate of all labour.
In many traditional ethico-legal systems, labour, and especially
certain forms of labour, were considered as ennobling persuits. It was
understood that labor necessarily leading to the development of emotional ties
between a workman and his product. And the precedent for this was set by the
Divine being. It was God who first fell in love with his creation: the human
being. And creators ever since have often followed suit. What makes work worth
it for the worker is so often his love of the product he is creating, and not
just the price that the product would fetch him in the market. The work of
clergymen, doctors, authors, judges, painters, singers etc. has usually been
considered as falling in this category. The clergyman loves the sermons he
produces, the doctor loves the act of healing, the judge loves the resolution
he achieves and the singer loves the songs he give birth to. This is work worth
doing for the love of the product itself; what the product/service would fetch
from the market for services is besides the point.
The point I'm trying to make is
that the commodification process is a necessary concomitant using the free market
as the basic mechanism ordering the production and distribution of goods in a
society. But it is not the only mechanism for ordering the production and distribut
of good; other alternatives exist. These alternatives include the idea of a
“calling” or “vocation”; another alternative mechanism is “gift”. Commodification
is perhaps the most efficiency mechanism. But it also suffers from a certain
evil: it produces alienation between producer and product. It is this evil
which makes commodification an extremely unsuitable mechanism for dealing with
a service like human gestation (i.e. surrogate mother); this is what Elizabeth
is saying.
But it follows from her argument, although she
wouldn't admit it, that there may be other other forms of work where
commodification is so unsuitable as to be intolerable. Perhaps some of the
gender roles traditionally ascribed to women (care-giving, home-making,
hospitality etc.) too fall in this category.
So exactly where do the evils of
commodification become so opprobious that it cannot be tolerated? Exactly where
shall we draw the line between good that can be sold through the free market
and good which can only be produced through vocations like motherhood? Much as
we would like it, a simple one-liner answer to this question cannot
possibly come from ethical philosophy; the answers can only come from the legal
tradition, on case by case basis, using analogy with precedents. In other
words, you must try and extrapolate to the case at hand principles of justice
embodied in the law that you believe in. This is precisely what the judges in
Baby M's case do.
In the cases before us, we see the judges trying to determine
whether a surrogacy transaction is more analogous to an adoption or a sale of
goods contract. If the analogy is closer to the former, then it's legal
because, in Roman law and legal systems inspired by it, adoption of children is
legal; however, if the transaction is analogous to the latter, then the it's
unacceptable, because there are certain things that money cannot buy under the
law. And since the Christianization of law in Europe, children have been one of
those “things” which money cannot buy.
I've added this qualification about "faith in legal
system" because there readily come to my mind legal systems where adoption
of children is illegal (classical Islamic law) and where the sale of children
is perfectly OK ( early Roman law, the supposed root of Western legal system.)
In short, when determining whether a particular good or service is suited for
commodification, resort has to be made to the laws of one's own civilization.
Ethical philosophy on its own cannot furnish the answer. The New Justice Supreme
Court sums it beautifully: "[The surrogate mother's] consent is irrelevant.
There are, in a civilized society, some things that money cannot buy...There
are, in short, values that society deems more important than granting to wealth
whatever it can buy, be it labour, love, or life"
