I'm not sure that your definition of what a Surrogate Motherhood contract happens to be mean what it means in the literature. I think the standard meaning of the term is about a woman being pregnent with a child that not hers genetically but that has another genetic mother.
The German paragraph you referenced has nothing to do with adoption or contracts about it becoming void. It's still possible to adopt children in Germany and become a mother or father via adoption. Other laws specify the circumstances under which adoption can happen.
Then you confuse the idea of legality with the idea of enforceability. It's not illegal to write a contract that's not legally enforceable.
In Germany for example prostitution is legal but contracts around the delivery of sexual services aren't legally binding.
A lack of the government using it's monopoly on violence to enforce contracts that promise the delievery of sexual services.
When discussing a topic like this on LW, I would encourage you to be clear about the terms you use and not mash different issues like adoption markets and markets for surrogate motherhood together without distinguishing the issues.
Then you confuse the idea of legality with the idea of enforceability. It's not illegal to write a contract that's not legally enforceable.
Writing a contract that you don't plan to honor is fraud, isn't it?
When people marry they that they promise to love each other forever. That's a promise that's not legally-enforceable, but that doesn't make it fraud to make that promise. The government is not enforceing those promises of marries of issues of the sanctity of personal relations that are quite similar to the issues surrounding adoption.
It's quite simple to do business this way. The prostition market isn't substantially harmed by the fact that there's no enforceability.
When it comes to adoption, if you pay people after the adoption goes through instead of paying them in advance you can still have a functioning market for babies that are up for adoption. It's enough that you can write a contract that makes the payment binding when services have been delivered. You don't need the ability to make the delievery of the services enforceable when there's payment to have that market.
But a market for adoption is not a market for surrogate motherhood because in surrogate motherhood the mother develops an emotional attachment for a particular child well before the actual event of the adoption happens.
There's a very real question of intent and timing baked into this discussion, which we should bring forth. Entering into a contract that you don't believe is enforceable and you don't intend to honor, but which you tell your counterparty that you think it's valid, is fraud. Entering into a contract that you intend to honor, and you accept the contractual penalties even if unenforced is best-behavior. The middle grounds of "found out later that I don't accept the effects of my agreement, and it turns out to be unenforceable" is in question - my intuition is it's blameworthy, but there's room for debate.
The more interesting part of this is the availability of unenforceable contracts. Where surrogacy is not enforced, it doesn't happen nearly as often. Some may find this good (fewer people in the world!) and some may not (we need more people!), but it's clear that Posner's correct that disallowing it removes the supply rather than protecting the suppliers.
(it's true that people find other ways to do it, like going to another country or lending money rather than direct payments, and then forgiving the debt as part of adoption proceedings. that's not relevant to the question of whether to prevent some kinds of voluntary and optional contract).
First of all, I think you don't concretely understand what (standard, as you said) surrogacy is. Or perhaps you didn't express it correctly or I did not understand what you expressed. Surrogacy is where a woman becomes pregnant with the intention of handing over the child to someone else after giving birth. Generally, she carries the baby for a couple or parent who cannot or do not conceive a child themselves - they are known as "intended parents". It is genetically her child - but the sperm she receives is possibly from the father. What do you mean by 'not hers genetically'? It is hers genetically. How can you carry a child without being yours genetically, as a female?
Second of all, the German Article which I suggested HAS to do with the issue of surrogacy contracts because it establishes who the mother of a child is in a legal sense - and the mother of a child in a legal sense is the one who gives birth to it. Thus, the 'intended' mother cannot claim that she is the legal mother of the child since the law says that the mother of the child is only the female who gave birth to it. The courts interpret this piece of legislation extensively and consider it as an argument which proves that a surrogacy contract is void. It goes like this: since a mother can be only the one who gives birth to a child, then a surrogacy contract cannot be established because there is no such thing as an 'intended' mother - only a biological one. The rule was introduced in 1998 precisely because it wanted to strictly maintain that surrogacy contracts are illegal.
Third of all, I don't think I confuse the idea of legality with the idea of enforceability. In the Netherlands, such a contract is legal but cannot be enforced. In Germany it is banned; illegal. Same case applies to France. Prostitution is a different matter; and i am not familiar with it in terms of contract law. But, taking into account surrogacy contracts, in Germany such a contract is strictly illegal.
I don't think I "mashed" anything. Perhaps give my article a second read and a little bit more attention and research? Adoption was given as an extra argument, but not as a fundamental one, expressed by Posner.
Hope this clarifies everything.
How can you carry a child without being yours genetically, as a female?
The genetic orgin of the child comes from the woman that produced the fertilized egg. If you put that egg into another woman, you have a child where the genetic mother and the birth mother aren't the same person.
The German law you reference is about specifying that the "mother" means "birth mother" and not "genetic mother" for the purposes of German law. It doesn't have anything to do with adoption or the contracts you can make about adoption. Germany does have law that handles how a nonbirth mother can becoming a legal mother for a child through adoption.
If you think that such a contract is illegal in Germany, that law you referenced certainly doesn't make it illegal. Do you think there's another law that makes it illegal?
What you're talking about is NOT standard surrogacy. It's the exception type.
Check the case-law if you're so sure that Article which I reffered to has nothing to do with what I argued. You need to see the purpose behind a rule in order to understand it - not to merely read it. (That's quite a basic thing). That piece of legislation has the precise purpose I already told you about.
While I was reading your post originally, I assumed surrogacy referred to another woman receiving an implantation of a fertilized egg from the intended parents, and then carrying that to term.
So I just researched it, and apparently there are two types, which is why we're confused here: "Traditional surrogacy" and "Gestational surrogacy": https://en.wikipedia.org/wiki/Surrogacy#Traditional_surrogacy
Yes, it would help to define which type you refer to, as I find them very different ethically. (Or at least, emotionally, as a woman).
If you really want to explore this, figuring out the difference between other allowed and disallowed trades in various philosophies would be a good start. Prostitution, child labor, payment for (one's own) organs, and payment for keeping secrets (blackmail) are all things that on the face of it seem like private transactions with not much justification for preventing. But all are prohibited in some or all cultures.
I'm also curious if you think we should enforce the return of payment and reimbursement of expenses for fraudulent contracts. Accepting payment and valuable services, and then not performing according to the contract, seems like a crime in itself.
You could also go down the identity route - are the parties who (voluntarily, we presume) made the agreement actually the same moral entities as those who seek to nullify the contract? Is a mother-to-be the same person as a new mother? She may not understand her future-instance's emotions or preferences enough to be able to make binding decisions.
But don't take that too far, or you'll realize that the fiction of agreements and contracts isn't a moral issue, but a practical legal issue - things fall apart if you don't pretend that people are more responsible for their situation than they actually are. "consider the equilibrium" is basically Posner's argument, and it's pretty strong.
The question "Is it morally wrong?" only makes sense if you subscribe to moral realism. And since different moral realists cling to different sets of morals, they would hardly agree. A better question would be "what are the short-term and long-term consequences of such a contract being enforceable?" and this one can be (partially) answered by analyzing the historical data for various countries.
I think I can see your point, but I will expand a bit to transmit whether I indeed do. You argue that this matter would make sense only if moral realism were applied to it - because otherwise the answer may be relative and thus produce no practical explanation?
Now, about your suggestion, I thought about it beforehand. But I don't see how one can measure that (long-term) in the countries where such a contract is currently not enforceable. And, short-term, I think the answer is self-evident. Indeed, you said "partially" - but I don't think one can even partially analyze that, but only offer some mere predictions, like Posner did. But, maybe I am not creative enough when it comes to how I should analyze the data to provide meaningful answers to your question. You can check the data for India, where such a contract is already enforceable. And you can see the consequences.
Perhaps both Posner and the Court - but especially Posner - overlook the fact that a female, once she gives birth to a baby - her maternal instinct comes to life and thus influences her emotions and perhaps potentially her decisions. Her perspective thus naturally changes after she gives birth. It is something she cannot easily control. It's a biological process, after all. Could this be relevant?
‘A Surrogate Motherhood Contract’ – a legal agreement whereby a woman consents to become pregnant, conduct her pregnancy accordingly, give birth to a child or children - all of this for another person or persons, who are or will ultimately become the parent(s) of the newborn child or children.
Both the legal and moral status of surrogacy differs widely from one country to another.[1] For instance, a surrogate motherhood contract is perfectly legal in India; German law considers such contracts clearly void[2]; in the UK only altruistic surrogacy is allowed[3]; and in Romania it is uncertain what the law says in respect of such legal agreements[4]. This clearly conveys that this topic is open to debate.
In case the surrogate mother gives birth to a child but after doing so refuses to offer it to the party that legally deserves it, she thus breaches the contract. Is it morally wrong to allow the ‘parents’ to enforce the contract and thus claim the child 'back'? The traditional stance is that the child shall absolutely stay with his biological mother and a mere fictional agreement cannot render the mother unable to claim it. German law helps us put it differently and more concretely: 'the mother of a child is the woman who gave birth to it'.[5]
Crucially, the idea that the intended parents should be able to enforce the contract and claim 'back' the baby from the woman who gave birth is usually regarded as morally wrong. But is it?
I am going to contrast the traditional stance with an unconventional one offered by a prominent figure: Richard Posner - a former judge and law professor at the University of Chicago.[6] In his pioneering textbook on Economic Analysis of Law, he takes issue with the famous case Baby M (1988), in which the Supreme Court of New Jersey found the enforcement of a commercial surrogacy contract to be inadmissible. Or, in other words, they decided that the newborn child shall clearly stay with the biological mother if she demands so, no matter the circumstances – even though she signed a binding contract which conveys otherwise.
The ‘Baby M (1988)’ Case & Posner’s Counterarguments
Let’s have a look at some of the court’s arguments and at the way Posner dissents.
Court: the purpose of the surrogacy contract was to give the parents the rights to the child by destroying the rights of the biological mother.
Posner: the court overlooks that without this contract no child would have been born in the first place. The purpose of the contract was not to destroy the biological mother’s rights, but to encourage one woman help another woman. The contract is immensely productive: it helps to realize something that would otherwise not have been possible.
Court: allowing such contracts to come into effect probably means that, as time goes by, babies will go only to the wealthiest people, regardless of whether they are suited as parents.
Posner: unlike paintings by Van Gogh, there is no fixed supply of babies. Supply will increase if money can be earned and the ensuing competition among surrogate mothers will force down the price. The court should therefore not be worried that adoption is only available to the wealthy – because this will not be the case.
Court: infertile couples with a low income will not find surrogate mothers.
Posner: this argument is the ‘jurisprudence of envy’. Even if it were true that poor, infertile couples cannot afford the price of a surrogate mother, they are not helped by a rule that prohibits infertile high income couples from having one.
Court: society considers that there are more important values than bestowing upon the wealthy ones the right to buy whatever they can buy – be it labour, love or life.
Posner: it is not at all clear how these values are served by refusing to allow the enforcement of a surrogacy contract.
It is worth mentioning that Posner and his colleague Elisabeth Landes argued in favour of creating a market for babies. If a mother is allowed to put up her child for adoption, this would not only remedy the short-age of adoption babies, but it could also lead to fewer children being neglected by their parents, and to benefits for a mother who may not want to be burdened with the need to carry a baby for nine months. Moreover, an illegal market for babies probably already exists today and would disappear if one could validly contract about parental rights.[7]
One need not agree with all of Posner’s counterarguments to see that this issue is difficult. Anyhow, what’s your take on his opinions? What’s inaccurate about his statements? What does he overlook? Or, are his arguments, actually, virtually exhaustive?
But - Why Should We Even Care?!
I arrogantly find the challenge which I put forward clearly practical. It forces us to penetratingly think about a fragile and reasonably relevant modern life situation which is steadily getting more and more attention. This issue inevitably challenges common, ethical beliefs. Indeed, this matter does not constitute a fundamental global problem – but that’s not the point. I believe, since the world is rapidly changing, we will naturally come across more and more controversial problems, like this one. And we need to be prepared for them. We need to exercise. Consider the issue at stake one of the exercises. Crucially, it’s a real exercise; not an imaginary one: it’s happening right now – I didn’t make it up; it’s not a story.
Footnotes
[1] J.M. Smits, Contract law. A comparative introduction, 2nd ed., Edward Elgar 2017, pp. 182-186.
[2] S 1591 BGB.
[3] Surrogacy Arrangements Act 1985.
[4] https://en.wikipedia.org/wiki/Surrogacy
[5] S 1591 BGB.
[6] Posner is one of the most cited legal authors worldwide – this indeed establishes his authority, yet precisely because of that I impress upon everyone to seek to question and critically analyse his stances. Why? Because he is so good at what he does: and what he essentially does is building up arguments. Whilst his arguments may indeed often be exquisite, he may be able to also excellently and slyly fabricate valid arguments which may be in fact only insufficiently true or even preposterous at times: FLOMO v. FIRESTONE NATURAL RUBBER CO LLC - https://caselaw.findlaw.com/us-7th-circuit/1573873.html
[7] J.M. Smits, Contract law. A comparative introduction, 2nd ed., Edward Elgar 2017, pp. 185-186.