Lecture 9: Hired Guns?

During the Civil War, men drafted into war had the option of hiring substitutes to fight in their place. Many students say they find that policy unjust, arguing that it is unfair to allow the affluent to avoid serving and risking their lives by paying less privileged citizens to fight in their place. This leads to a classroom debate about war and conscription. Is today’s voluntary army open to the same objection?

Ethical Dilemma: Military Service: Markets & Morals

How should we determine who will serve in the military?

Readings and Discussion Guides

Superior Court of New Jersey
February 3, 1988

The opinion of the Court was delivered by Willentz, C. J.:

In this matter the Court is asked to determine the validity of a contract that purports to provide a new way of bringing children into a family. For a fee of $10,000, a woman agrees to be artificially inseminated with the semen of another woman’s husband; she is to conceive a child, carry it to term, and after its birth surrender it to the natural father and his wife. The intent of the contract is that the child’s natural mother will thereafter be forever separated from her child. The wife is to adopt the child, and she and the natural father are to be regarded as its parents for all purposes. The contract providing for this is called a “surrogacy contract,” the natural mother inappropriately called the “surrogate mother.”

We invalidate the surrogacy contract because it conflicts with the law and public policy of this State. While we recognize the depth of the yearning of infertile couples to have their own children, we find the payment of money to a “sur¬rogate” mother illegal, perhaps criminal, and potentially degrading to women. Although in this case we grant custody to the natural father, the evidence having clearly proved such custody to be in the best interests of the infant, we void both the termination of the surrogate mother’s parental rights and the adoption of the child by the wife/stepparent. We thus restore the “surrogate” as the mother of the child. We remand the issue of the natural mother’s visitation rights to the trial court, since that issue was not reached below and the record before us is not sufficient to permit us to decide it de novo.

We find no offense to our present laws where a woman voluntarily and without payment agrees to act as a “surrogate” mother, provided that she is not subject to a binding agreement to surrender her child. Moreover, our holding today does not preclude the Legislature from altering the current statutory scheme, within constitutional limits, so as to permit surrogacy contracts. Under current law, however, the surrogacy agreement before us is illegal and invalid….

Under the contract, the natural mother is irrev¬ocably 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, and any decision after that, compelled by a pre-existing contractual commitment, the threat of a lawsuit, and the inducement of a $10,000 payment, is less than totally voluntary. Her interests are of little concern to those who controlled this transaction.

Although the interest of the natural father and adoptive mother is certainly the predominant interest, realistically the only interest served, even they are left with less than what public policy requires. They know little about the natural mother, her genetic makeup, and her psychologi¬cal and medical history. Moreover, not even a superficial attempt is made to determine their awareness of their responsibilities as parents.

Worst of all, however, is the contract’s total dis¬regard of the best interests of the child. There is not the slightest suggestion that any inquiry will be made at any time to determine the fitness of the Sterns as custodial parents, of Mrs. Stern as an adoptive parent, their superiority to Mrs. Whitehead, or the effect on the child of not living with her natural mother.

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. Almost every evil that prompted the prohibition on the payment of money in connec¬tion with adoptions exists here.

The differences between an adoption and a surrogacy contract should be noted, since it is asserted that the use of money in connection with surrogacy does not pose the risks found where money buys an adoption.

First, and perhaps most important, all parties concede that it is unlikely that surrogacy will survive without money. Despite the alleged selfless motivation of surrogate mothers, if there is no payment, there will be no surrogates, or very few. That conclusion contrasts with adoption; for obvious reasons, there remains a steady supply, albeit insufficient, despite the prohibitions against payment. The adoption itself, relieving the natural mother of the financial burden of supporting an infant, is in some sense the equivalent of payment.

Second, the use of money in adoptions does not produce the problem—conception occurs, and usually the birth itself, before illicit funds are offered. With surrogacy, the “problem,” if one views it as such, consisting of the purchase of a woman’s procreative capacity, at the risk of her life, is caused by and originates with the offer of money.

Third, with the law prohibiting the use of money in connection with adoptions, the built-in financial pressure of the unwanted pregnancy and the consequent support obligation do not lead the mother to the highest paying, ill-suited, adoptive parents. She is just as well-off surrender¬ing the child to an approved agency. In surrogacy the highest bidders will presumably become the adoptive parents regardless of suitability, so long as payment of money is permitted.

Fourth, the mother’s consent to surrender her child in adoptions is revocable, even after surrender of the child, unless it be to an approved agency, where by regulation there are protections against an ill-advised surrender. In surrogacy, consent occurs so early that no amount of advice would satisfy the potential mother’s need, yet the consent is irrevocable.

The main difference, that the unwanted pregnancy is unintended while the situation of the surrogate mother is voluntary and intended, is really not significant. Initially, it produces stronger reactions of sympathy for the mother whose pregnancy was unwanted than for the surrogate mother, who “went into this with her eyes wide open.” On reflection, however, it appears that the essential evil is the same, taking advantage of a woman’s circumstances (the unwanted pregnancy or the need for money) in order to take away her child, the difference being one of degree.

In the scheme contemplated by the surrogacy contract in this case, 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. The demand for children is great and the supply small. The availability of contraception, abortion, and the greater willingness of single mothers to bring up their children has led to a shortage of babies offered for adoption. The situation is ripe for the entry of the middleman who will bring some equilibrium into the market by increasing the supply through the use of money.

Intimated, but disputed, is the assertion that surrogacy will be used for the benefit of the rich at the expense of the poor. In response it is noted that the Sterns are not rich and the Whiteheads not poor. Nevertheless, it is clear to us that it is unlikely that surrogate mothers will be as proportionately nurnerous among those women in the top twenty percent income bracket as among those in the bottom twenty percent. Put differently, we doubt that infertile couples in the low-income bracket will find upper income surrogates.

In any event, even in this case one should not pretend that disparate wealth does not play a part simply because the contrast is not the dramatic “rich versus poor.” At the time of trial, the Whiteheads’ net assets were probably negative—Mrs. Whitehead’s own sister was foreclosing on a second mortgage. Their income derived from Mr. Whitehead’s labors. Mrs. Whitehead is a homemaker, having previously held part-time jobs. The Sterns are both professionals, she a medical doctor, he a biochemist. Their combined income when both were working was about $89,000 a year and their assets sufficient to pay for the surrogacy contract arrangements.

The point is made that Mrs. Whitehead agreed to the surrogacy arrangement, supposedly fully understanding the consequences. 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. In America, we decided long ago that merely because conduct purchased by money was “voluntary” did not mean that it was good or beyond regulation and prohibition. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). Employers can no longer buy labor at the lowest price they can bargain for, even though that labor is “voluntary,” 29 U.S.C. §206 (1982), or buy women’s labor for less money than paid to men for the same job, 29 U.S.C. §206(d), or purchase the agreement of children to perform oppressive labor, 29 U.S.C. § 212, or purchase the agreement of workers to subject themselves to unsafe or unhealthful working conditions, 29 U.S.C. §§ 651 to 678. (Occupational Safety and Health Act of 1970). There are, in short, values that society deems more important than granting to wealth whatever it can buy, be it labor, love, or life. Whether this principle recommends prohibition of surrogacy, which presumably sometimes results in great satisfaction to all of the parties, is not for us to say. We note here only that, under existing law, the fact that Mrs. Whitehead “agreed” to the arrangement is not dispositive.

The long-term effects of surrogacy contracts are not known, but feared—the impact on the child who learns her life was bought, that she is the offspring of someone who gave birth to her only to obtain money; the impact on the natural mother as the full weight of her isolation is felt along with the full reality of the sale of her body and her child; the impact on the natural father and adoptive mother once they realize the consequences of their conduct. Literature in related areas suggests these are substantial considerations, although, given the newness of surrogacy, there is little information.

The surrogacy contract is based on principles that are directly contrary to the objectives of our laws. It guarantees the separation of a child from its mother: it looks to adoption regardless of suitability; it totally ignores the child; it takes the child from the mother regardless of her wishes and her maternal fitness; and it does all of this, it accomplishes all of its goals, through the use of money.

Beyond that is the potential degradation of some women that may result from this arrangement. In many cases, of course, surrogacy may bring satisfaction, not only to the infertile couple, but to the surrogate mother herself. The fact, however, that many women may not perceive surrogacy negatively but rather see it as an opportunity does not diminish its potential for devastation to other women.

In sum, the harmful consequences of this surrogacy arrangement appear to us all too palpable. In New Jersey the surrogate mother’s agreement to sell her child is void. Its irrevocability infects the entire contract, as does the money that purports to buy it.

These days, it seems that cash is king. But are there things that money shouldn’t be able to buy? Are there things that should not be treated as market goods or services?

Consider the following cases:

  1. In the American Civil War, men who were drafted for the army had the option of hiring a substitute to take their place, or paying a commutation fee to avoid military service. Are these practices tantamount to selling off one’s duty as a citizen, or are they perfectly acceptable market transactions? Does it make a difference whether the transaction takes place during a war or in peacetime?
  2. A commercial surrogacy contract is an agreement to carry to term someone else’s baby in one’s own body in exchange for money. Should people be allowed to act as surrogate mothers? Should prospective parents be allowed to pay for their services? Should surrogacy contracts be enforced by the courts, even if the surrogate mother changes her mind and wants to keep the baby?
  3. What do think about the morality of prostitution? Is it morally wrong to sell (or rent?) the use of one’s sexual organs? Is it morally wrong to buy sex? Should be it legal to buy or sell sex?
  4. There are Web sites on the internet that advertise grooms and brides. Is it morally wrong to buy a marriage partner from them, assuming that the transaction is voluntary and the bride or groom agrees to marry you? Should such transactions be illegal?
  5. Many people want to adopt a child, but there is always a shortage of infants. Should prospective parents be allowed to give money to young, single mothers who are considering giving up their children for adoption? Should the children who are now waiting to be adopted go to the highest bidder?
  6. Many people need organ transplants, but there is always a shortage of organs from deceased donors. Should the organs that are available go to the highest bidder? If not, how should they be assigned?
  7. In many developing countries, it is possible to buy a kidney for a few thousand dollars. The seller is often very poor and needs the money to support himself or his family. Is it morally permissible to buy his kidney? Should the sale of organs from living adults be illegal?

These days, it seems that cash is king. But are there things that money shouldn’t be able to buy? Are there things that should not be treated as market goods or services?

Consider the following cases:

Civic Duty
In the American Civil War, men who were drafted into the army had the option of hiring a substitute to take their place, or paying a commutation fee to avoid military service. What do you think of these options?

  1. Are substitution and commutation tantamount to selling off one’s duty as a citizen?
  2. Does the practice of hiring substitutes wrongly exploit poor people who are desperate and have no other option but to agree to be a substitute?
  3. Does the morality of buying one’s way out of the army depend on whether it is during a war or in peacetime?
  4. What is the moral difference between hiring a substitute and avoiding service by bribery, for instance?
  5. Today no one is conscripted. Those who serve in the army volunteer to do so in exchange for a salary and other benefits. What is the relevant moral difference between today’s system and a system of conscription that provides for the option to hire a substitute? Aren’t people who agree to be substitutes merely volunteering to join the army for money?
  6. Can utilitarianism, libertarianism, or Lockean rights theory make sense of the view that citizens have a duty to serve their country?
  7. Do you think that every citizen has a moral duty either to serve in the military or to perform some form of national service? If so, do you think this duty can be fulfilled by hiring someone else to perform it?
  8. “Substitution contracts maximize happiness because they give each party what he most wants—money, and avoidance of military service.” Do you agree? Is this a good argument for the moral permissibility of substitution contracts?
  9. “So long as they are voluntary, substitution contracts are fair.” Do you agree? What counts as a voluntary market exchange? Don’t people sometimes enter agreements because they are desperate or not well informed about the full cost or the danger? Do the conditions under which people enter agreements matter to the fairness of the agreements? Do the conditions matter to the validity of the consent? What background conditions are necessary for seemingly voluntary agreements to be fair?

A commercial surrogacy contract is an agreement to carry to term someone else’s baby in one’s own body in exchange for money. What do you think about the morality of such contracts?

  1. Should people be allowed to act as surrogate mothers? Should prospective parents be allowed to pay for their services?
  2. Suppose the surrogate mother changes her mind and wants to keep the baby. Should surrogacy contracts be enforced by the courts?
  3. A utilitarian would say that surrogacy contracts should be allowed, if they maximize happiness. A libertarian would say that people should be free to use their own bodies in whatever way they like, provided they do not violate other people’s rights. What do you think? Do either utilitarians or Libertarians have the right answer?
  4. Consider Elizabeth Anderson’s argument against surrogate motherhood. She thinks that surrogate motherhood “commodifies” children and women’s labor. But, thinks Anderson, to value these things in the way one values a commodity is inconsistent with the appropriate way of valuing them. The appropriate way of valuing children, for instance, is to love them, and not to treat them as fungible and exchangeable for money. Therefore, says Anderson, surrogate motherhood is wrong.
  5. Is Anderson right? Does her argument against surrogate motherhood imply that we shouldn’t commodify ourselves either (because that would be inconsistent with valuing ourselves)? So, should we abstain from selling our services to the army, for instance? Is a paid army impermissible?
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