Justice by Michael Sandel - Baby M case

upstairs for coffee

I am reading Justice by Michael Sandel. I have never read or taken a philosophy course so this book is a great introduction.

In the book he uses an example - 'the baby m' case - to discuss different viewpoints.

The story goes like this:

*A woman and her husband wanted a child. She suffered from MS so wanted to have a surrogate mother.

*They go to the Fertility centre who are the intermediary. Women willing to be surrogates and parents wanting a child via a surrogate are matched by the center.

*The woman and husband pay the fertility centre for "brokering" the deal and they pay the surrogate a fee as well as her medical bills.

*However when the baby was born the surrogate did not want to give the baby up and ran away.

*The surrogate was sued. Once court upheld the contract but superior courts rescinded the contract meaning she got to have visitation rights to the child.

My question is this: The superior courts decision for rescinding the contract was because of the emotional attachment that the mother now felt. They said the contract was invalid as the surrogate did not know how she would feel at the time of birth.

Does this ruling not just debunk the whole nature of a contract? There were 3 consenting parties; the husband and wife, the centre and the surrogate. They freely consented to this arrangement. But because the surrogate then felt an attachment to the child she ignored the contract.

I fail to see how this contract can be invalid, any one help? And anyone make any suggestion for future readings after Sandel's book?


Thanks

Manach

Offhand I think he also referenced this case in his series of free lectures on EDX.org.

Peregrinus

Well, there are things you can't resolve by contract. Slavery, for instance; even if you freely agree to sell yourself into slavery, the contract is unenforceable against you, or indeed by you, since slavery is something that, as a society, we consider repugnant.

Contracts concerning surrogacy are another very difficult area, because of course one person profoundly affected by the arrangement - the child - is not a party to the contract,, and the general principle followed in most western countries is that, in matters which affect a child, the best interest of the child are the paramount consideration.

The matters that can be determined by agreement between the parties to a surrogacy contract, and the limits within which those matters may be settled, are questions that society has to decide. And, since in many respects surrogacy is a fairly new possibility, not every society has yet arrived at a settled position on them.

I haven't either read the book or studied the judgments in the case that he mentions. But surrogacy leaps out as the kind of area in which there is really no reason to start from the premise that an agreement between the adults concerned can, or should, be accepted as disposing of all questions that may arise.

upstairs for coffee

Peregrinus wrote: »

Well, there are things you can't resolve by contract. Slavery, for instance; even if you freely agree to sell yourself into slavery, the contract is unenforceable against you, or indeed by you, since slavery is something that, as a society, we consider repugnant.

Contracts concerning surrogacy are another very difficult area, because of course one person profoundly affected by the arrangement - the child - is not a party to the contract,, and the general principle followed in most western countries is that, in matters which affect a child, the best interest of the child are the paramount consideration.

The matters that can be determined by agreement between the parties to a surrogacy contract, and the limits within which those matters may be settled, are questions that society has to decide. And, since in many respects surrogacy is a fairly new possibility, not every society has yet arrived at a settled position on them.

I haven't either read the book or studied the judgments in the case that he mentions. But surrogacy leaps out as the kind of area in which there is really no reason to start from the premise that an agreement between the adults concerned can, or should, be accepted as disposing of all questions that may arise.

But Surrogacy was legal at the time so therefore society did not mind. The ruling in my opinion made a sham of that market and all trust for that market would have been lost. There is no point in having a legal market if you are not going to enforce a contract that had 100% consent from each party. The court agreeing with the person who renegade on the deal is a baffling decision.

Peregrinus

upstairs for coffee wrote: »

But Surrogacy was legal at the time so therefore society did not mind.

So? Just because a particular activity is legal, it doesn't mean that every contract relating to that activity is 100% binding or enforceable. Employment is an obvious case; a contract of employment cannot be enforced against a worker; no matter what it says he cannot be forced to work. And of course there's a slew of health, safety, minimum wage and other regulations which limit what contracts of employment can effectively determine.

upstairs for coffee wrote: »

The ruling in my opinion made a sham of that market and all trust for that market would have been lost.

I can live with that. There's no principle of morality or justice that says that markets are the only or predominant mechanism for obtaining just outcomes, or that what parties agree in a contract has to be upheld against all other considerations.

upstairs for coffee wrote: »

The court agreeing with the person who renegade on the deal is a baffling decision.

I don't find it baffling. As I say, I haven't read the decision, but if the facts were that an emotional bond had developed between the birth-mother and the child, and if the overriding principle was to have regard to the best interests of the child, the decision doesn't seem baffling at all.

upstairs for coffee

Peregrinus wrote: »

So? Just because a particular activity is legal, it doesn't mean that every contract relating to that activity is 100% binding or enforceable. Employment is an obvious case; a contract of employment cannot be enforced against a worker; no matter what it says he cannot be forced to work. And of course there's a slew of health, safety, minimum wage and other regulations which limit what contracts of employment can effectively determine.


I can live with that. There's no principle of morality or justice that says that markets are the only or predominant mechanism for obtaining just outcomes, or that what parties agree in a contract has to be upheld against all other considerations.


I don't find it baffling. As I say, I haven't read the decision, but if the facts were that an emotional bond had developed between the birth-mother and the child, and if the overriding principle was to have regard to the best interests of the child, the decision doesn't seem baffling at all.

Employment contracts have built in caveats that cater for all sorts; 2 weeks notice and so on. A surrogacy contract, I'm assuming, doesn't have a caveat whereby if the mother suddenly feels an emotional attachment to the contract that the contract is rescinded and she gets to keep the child.

The fact is that an emotional bond was found after the contract had been signed. The mother should have known that developing a bond with the child was a possibility; it was her responsibility to sign the contract having weighed all the costs and benfits and deciding if it was the right thing to do for her.

Peregrinus

upstairs for coffee wrote: »

Employment contracts have built in caveats that cater for all sorts; 2 weeks notice and so on.

Yes. But if you have a contract which stipulates two weeks or one month’s notice, and you walk out tomorrow and refuse to work out your notice period, you cannot be compelled to come back to work, no matter what the contract says.

Contracts do not always override every other consideration and every other principle. As a society we decide what matters can, and what matters cannot, be regulated by contract, and the limits within which this can be done. The mere fact that people are free to enter into a contract for something does not mean that they are free to contract for any outcome they like, or that their agreement will be enforceable through the courts. You seem surprised at this, but you don’t say why you find this surprising.

upstairs for coffee wrote: »

The fact is that an emotional bond was found after the contract had been signed. The mother should have known that developing a bond with the child was a possibility; it was her responsibility to sign the contract having weighed all the costs and benfits and deciding if it was the right thing to do for her.

Possibly she should have, but is “the right thing for her” the only consideration here? When the case comes before the court there is a real live child whose welfare is in issue. It’s a child custody case, and the court is required to treat the interests of the child as the paramount consideration. Yet in your comments on the justice of the case you don’t mention the interests of the child at all, and you don’t suggest that any of the adults involved needed to do that either - in fact you say that it was the birth mother’s responsibilty to look after her own interests, rather than the child’s.

So if the parties to a contract enter into it to protect and advance their own interests, and if the contract affects someone else who is not a party to the contract, then it seems to me a no-brainer that the contract will not be a conclusive determination of all the issues; there has to be a mechanism for protecting the interests of the third party where the contract fails to do so.

I have googled the case, and found a Wikipedia article on it. Baby M was born in 1988 in New Jersey state. Her birth mother was also her genetic mother; her genetic father was the husband of the paying couple. Under New Jersey state law at the time, since the mother and father were not married to one another, the mother was going to have parental rights initially. Under the surrogacy agreement, she agreed that after the birth she would surrender her parental rights to the paying couple.

You say in post 3 that “surrogacy was legal at the time”, but in fact this is true only in the sense that, at the time, New Jersey had no legislation prohibiting commercial surrogacy contracts, or indeed dealing with them at all. While entering into a surrogacy agreement was not a crime and was not otherwise forbidden, there was no law saying that surrogacy agreements were valid, binding or enforceable. When we’re talking about a contract under which someone agrees to sell parental rights to their future children, I think most people will see that that raises difficult ethical issues, and therefore the paying couple had no reason to assume that such a contract would be valid or enforceable. They hoped it would be, but they knew (or would have known, if the surrogacy centre advised them correctly) that it might not be.

And indeed in the Baby M case the court held that such an agreement was contrary to public policy and was unenforceable. And so far as I know this is still the law in New Jersey.

dar100

upstairs for coffee wrote: »

Employment contracts have built in caveats that cater for all sorts; 2 weeks notice and so on. A surrogacy contract, I'm assuming, doesn't have a caveat whereby if the mother suddenly feels an emotional attachment to the contract that the contract is rescinded and she gets to keep the child.

The fact is that an emotional bond was found after the contract had been signed. The mother should have known that developing a bond with the child was a possibility; it was her responsibility to sign the contract having weighed all the costs and benfits and deciding if it was the right thing to do for her.

This is a child and it's mother you are speaking of, it's not a TV or some sort of inanimate object, and as such, feelings develop, and both parties develop, social and emotional attachments.

Your dichotomous thinking on the matter, is quite disturbing, tbh. Human-beings do not operate on black and white principles when it comes to such issues

upstairs for coffee

dar100 wrote: »

This is a child and it's mother you are speaking of, it's not a TV or some sort of inanimate object, and as such, feelings develop, and both parties develop, social and emotional attachments.

Your dichotomous thinking on the matter, is quite disturbing, tbh. Human-beings do not operate on black and white principles when it comes to such issues

But she signed the contract waving her legal rights to be called a mother. So she takes the 10,000 initial payment, the medical expenses and then also tries to keep the child. A blatant breach of contract, fraud even.

Personally I think your empathy for the "mother" is flagrant. This woman willingly signed the contract, she then broke said contract. Her actions, considering she was awarded visitation rights, I'm assuming seriously effected the original couple. I don't see how that is morally just?

dar100

upstairs for coffee wrote: »

But she signed the contract waving her legal rights to be called a mother. So she takes the 10,000 initial payment, the medical expenses and then also tries to keep the child. A blatant breach of contract, fraud even.

Personally I think your empathy for the "mother" is flagrant. This woman willingly signed the contract, she then broke said contract. Her actions, considering she was awarded visitation rights, I'm assuming seriously effected the original couple. I don't see how that is morally just?

Seriously? flagrant?, hardly. Although I do see where you're coming from, by the fact that you're willing to de-humanize the mother, with your inverted commas.

A biological mother, should always be put first, except for situations in which there are child protection concerns.

You are making the exact same argument, which I'd imagine you'd utilize for the purpose of disputing other contracts, of the non-human variety. Only one who can detach in this manner, would be capable of such a view, I'l stick with my empathy, thanks.

And how is it moral to take from a mother, a new born baby, one which has grown within her, over a period of months??, one which the other party will not have such an attachment too.

Peregrinus

upstairs for coffee wrote: »

. . . This woman willingly signed the contract, she then broke said contract. Her actions, considering she was awarded visitation rights, I'm assuming seriously effected the original couple. I don't see how that is morally just?

But justice can’t be reduced to a question of making an ethical judgment about the conduct of one party in a relationship, surely? Even if we shared your negative assessment of this woman’s change of mind, are there not ethical questions to be raised about her decision to enter into the contract in the first place? And about the decision of the other couple concerned? And are there not ethical questions to be raised about the welfare and interests of the child? Can it be just to ignore all those issues? And yet in your analysis you seem to ignore them.

Torakx

dar100 wrote: »

A biological mother, should always be put first, except for situations in which there are child protection concerns.

And so, if she signed a contract willingly and with full knowledge to give away this right, is she not to be held to her word?
If she did not want such a thing, why sign that natural right away or commit fraud?
Maybe she should be given the choice to keep the baby and face the consequences of said fraud or commit to the contract she signed.

Personally I think she should be allowed to keep her own children no matter what she said before, but should be held accountable for the damage she caused to other peoples lives.

Legally speaking the baby is registered with a government. So if one guardian wants to pass guardianship to another by means of a contract, the state should probably have the final word. Going by the law, that is.
In another sense the actual contract was fraudulant.
They offered her promisary notes or credit, of no intrinsic value, in exchange for a natural person and on that the natural mother can claim it's fraud. Both parties commited fraud at the same time I suppose.
The monetary fraud is allowed in todays society though. Otherwise the banks would fall down.

Peregrinus

Torakx wrote: »

And so, if she signed a contract willingly and with full knowledge to give away this right, is she not to be held to her word?

If she signed a contract of slavery, should she not be held to her word?

If she signed a contract of prostitution, can she be compelled to have sex?

If she signed a contract committing not to leave her job for five years, can she be compelled to work in that job for five years?

If she signed a contract saying she would send any male children she might have to Blackrock College, can that be enforced?

If she signs a contract agreeing to sell one of her kidneys but then changes her mind, can you strap her to the table and start sharpening your scalpel?

I’m not suggesting that the contract she signed was akin to one of slavery or prostitution or organ trading or even fixed-term employment; I’m just making the point that we have no general rule that all agreements are legally enforceable regardless of their terms, and there is no general rule that the failure to enforce an agreement is automatically unjust. You can make the argument that failure to enforce an agreement is intrinsically unjust, but you do actually have to set out the argument; you can’t just assert the conclusion and expect everyone to fall over backwards at the irresistible force of your logic.

And a contract to abandon parental rights, fairly obviously, is in the class of contracts where we should at least question enforceability. Parental rights are recognised, in large part, for the benefit of the child, and the child was not a party to this contract. So this was an agreement which had profound implications for someone who wasn’t a party to it, and who wasn’t consulted about it. That provides the basis for a very strong argument for saying that is agreement should not be enforced merely because the birth mother and the adoptive parents have made it; the interests of the child have to be considered, and may well override whatever moral weight we attach to the commitments made by the adults.

Torakx wrote: »

If she did not want such a thing, why sign that natural right away or commit fraud?

You might criticise her for signing the contract in the first place. That does not mean that justice requires the contract to be enforced.

Torakx wrote: »

Maybe she should be given the choice to keep the baby and face the consequences of said fraud or commit to the contract she signed.

There was no allegation of fraud made in the case, and no evidence of fraud.

Torakx wrote: »

Personally I think she should be allowed to keep her own children no matter what she said before, but should be held accountable for the damage she caused to other peoples lives.

Well, all three adults concerned signed a contract which was of doubtful enforceability (and which was in fact unenforceable). If the contract shouldn’t have been signed, then none of them should have signed it. What actually caused the arrangement to fall over - mother/child bonding - was something that all of them should have foreseen and expected, and the contract should have addressed what would happen in the events which did happen.

MRnotlob606

I like Michael Sandels ted talks