正義だ第05話「何が正しいのか？第05話 "HIRED GUNS" (Justice: What's The Right Thing To Do? Episode 05: "HIRED GUNS")

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When we ended last time
we were discussing Locke's idea of government by consent
and the question arose
what are the
limits on government
that even the
the agreement of the majority can't override
that was the question we ended with
we saw
in the case of property rights
that on Locke's view
a democratically elected government has the right to tax people
it has to be taxation with consent
because it does involve the taking of people's property
for the common good
but it doesn't require
the consent of the each individual
at the time the tax
is enacted or collected
what it does require
is a prior act of consent
to join the society
to take on the political obligation
but once you take on that obligation you agree to be bound by the majority
so much for taxation
but what, you may ask
about
the right
to life
can the government conscript
people and send them into battle
what about the idea that we own ourselves
is the idea of self possession violated
if the government
can through coercive legislation and enforcement powers say
you must go risk your life to fight in Iraq
what would Locke say? does the government have the right to do that?
yes
in fact he says in one thirty nine
he says
what matters
is that the political authority
or the military authority
not be arbitrary that's what matters
he gives a wonderful example he says a
a sergeant even a sergeant
let alone a general, a sergeant
can command a soldier
to go right up to the face of a cannon
where he is almost sure to die
that the sergeant can do
the general can condemn the soldier to death for deserting his post or for not obeying
even a desperate order
but with all their power over life and death
what these officers can't do
is take a penny
of that soldier's money
because that has
nothing to do with the rightful authority
that would be arbitrary
and it would be corrupt
so consent winds up being very powerful in Locke, not consent of the individual to the
particular tax or military order,
but consent to join the government and to be bound by the majority in the first place
that's the consent that matters
and it matters so
powerfully
the even the limited government created by the fact that we have an unalienable right
to life liberty and property
even that limited government is only limited in the sense that it has to govern by generally
applicable laws, the rule of law, it can't be arbitrary
that's Locke.
well this raises a question
about consent. Why is consent such a
powerful moral instrument in
creating political authority and the obligation to obey
today we begin to investigate the question of consent
by looking at a concrete case
the case of military conscription.
now some people say
if we have a fundamental right
that arises from
the idea that we own ourselves
it's a violation of that right
for a government
to conscript citizens to go fight in wars.
others disagree others say that's a legitimate
power
of government, of democratically elected government anyhow,
and that we have an obligation to obey
let's take the case
the united states fighting a war in Iraq.
news accounts tell us
that the military
is having great difficulty meeting its
recruitment targets
consider three policies that the
US government might undertake
to deal with the fact that it's not
achieving its recruiting targets
solution number one
increase the pay and benefits
to attract a sufficient number
of soldiers,
option number two
shift to a system of military conscription
have a lottery
and who's ever numbers
are drawn
go to fight in Iraq,
system number three
outsource, hire
what traditionally have been called mercenaries
people around the world who are qualified,
able to do the work, able to fight well
and who are willing to do it
for the existing wage
so let's take a quick
poll here
how many favor increasing the pay?
huge majority.
how many favor going to conscription?
all right maybe a dozen people in the room
favor conscription.
what about the outsourcing solution?
okay so there maybe
about two, three dozen.
during the civil war
the union
used
a combination
of conscription
and the market system
to fill the ranks of the military to fight in the civil war
it was a system that
began with conscription
but
if you
were
drafted
and didn't want to serve
you could hire a substitute take your place
and many people did
you could pay whatever the market
required in order to find a substitute
people ran ads in
newspapers in the classified ads
offering
five hundred dollars
sometimes a thousand dollars
for a substitute who would go fight the civil war
in their place
in fact
it's reported that Andrew Carnegie
was drafted
and hired a substitute to take his place
for an amount
that was
a little less than the amount to spend for a year on fancy cigars
now I want to get your views
about this civil war system call it the a hybrid system
conscription but with the buyout provision
how many think it was a just system how many would defend the civil war system?
anybody?
one, anybody else?
to three
four five.
how many think it was unjust?
most of you don't like the civil war system you think it's
unjust, let's hear an objection
why don't you like it? what's wrong with it?
yes. well by paying
three hundred dollars for
to be exempt one time around you're really putting a price on valuing human life
and we established earlier that's really hard to do so
they're trying to accomplish something that really isn't feasible.
good, so
so paying someone three hundred or five hundred or a thousand dollars
you're basically saying that's what their life is worth you. that's what their life is worth
it's putting a dollar value on life
that's good, and what's your name? Liz.
Liz.
well who has an answer
for Liz
you defended the civil war system
what do you say?
if you don't like the price then
you have the freedom to
not be sold or for so it's
up to you and I don't think it's necessarily putting
a specific price on you and if it's
done by himself I don't think there's anything that's really morally wrong with that.
So the person who takes
the five hundred dollars let's say,
he's putting
his own
price on his life
on the risk of his life
and he should have the freedom to choose to do that. exactly.
what's your name? Jason.
Jason thank you.
now we need to hear from another critic of the civil war system. yes.
it's a kind of coercion almost of people who have lower incomes
for Carnegie he can
totally ignore the draft three hundred dollars is
you know irrelevant in terms of his income, but for someone of a lower income they are
essentially being coerced
to draft to be drafted or
I mean it's probably they're not able to find a replacement the
tell me your name. Sam.
Sam, all right so you say Sam
that
when a poor laborer
buys his, accepts three hundred dollars to fight in the civil war
he is in effect being coerced
by that money
given his economic circumstances
whereas Carnegie can go off pay the money
and not serve
I want to hear if someone has a reply
to Sam's
argument
that what looks like a free exchange
is actually
coercive
who has an answer to
to Sam. go ahead
I'd actually agree with him. You agree with him
I agree with him in saying that
it is coercion
in the sense that it robs an individual
of his ability to reason properly
okay and what's your name? Raul.
ok so Raul and Sam
agree
that what looks like a free exchange, free choice voluntary act
is actually coercion it involves coercion
it's profound coercion of the worst kind because it falls so disproportionately
upon one segment of society
good, all right so Raul
and Sam have made a powerful point
who would like to reply
who has an answer
for Sam and Raul? Go ahead
I just I don't think that these drafting systems are really terribly different from you know all
volunteer army sort of recruiting strategies
the whole idea of
you know having benefits in pay for joining the army is you know sort of a coercive strategy
to get people to
join
it is true that
military volunteers come from disproportionately, you know, lower economic
status
and also from certain regions of the country where you can use the patriotism
to try and coerce people, if you're like it's the right thing to do to
volunteer to go over to Iraq.
and tell me your name. Emily.
alright Emily
says
and Raul you're going to have to reply to this so get ready
Emily says
fair enough
there is a coercive element
to the civil war system when the laborer
takes the place of Andrew Carnegie for five hundred dollars
Emily concedes that
but she says
if that troubles you
about the civil war system
shouldn't that also trouble you
about
the volunteer army today?
and let me,
before you answer, how did you vote on the first poll,
did you defend a volunteer army?
I didn't vote.
you didn't vote.
either way
you didn't vote
but did you sell your vote to the person sitting next to you?
no, all right
so what would you say to that argument?
I think that the circumstances are different and that
there was conscription
in
the civil war there is no draft today
and I think that
the volunteers for the army today
have a more profound sense of patriotism that is of an individual choice
than those who
were forced into the military in the civil war
somehow less coerced. less coerced. even though
there is still inequality in American society even though as Emily points out
the make-up
of the American military is not reflective of the population
as a whole. Let’s just do an experiment here
how many here
have either served in the military
or have a family member
who has served in the military
in this generation
not parents
family members in this generation
and how many have neither served
nor I have any brothers or sisters who have served
does that bear out your point Emily?
Alright now we need
we need to hear from
most of you defended
the idea
of the
of the all-volunteer military overwhelmingly
and yet overwhelmingly people
consider the civil war system unjust
Sam and Raul
articulated
reasons for objecting to the civil war system
it took place against a background of inequality
and therefore the choices people made to buy their way into military service
were not truly free
but at least partly coerced
then Emily extends that argument
in the form of a challenge
all right everyone here who voted
in favor of the all-volunteer army
should be able
should have to explain
well what's the difference in principle
doesn't the all-volunteer army
simply universalize
the feature that almost everyone find objectionable
in the civil war buy-out provision
did I state that challenge fairly Emily?
ok, so we need to hear from
a defender
of the all-volunteer military who can address
Emily's challenge
who can do that? Go ahead
the difference between the civil war system and the all-volunteer army system is that
in the civil war
you're being hired not by the government but by individuals
and as a result different people to get hired a different individuals, get paid different
in the case of the all-volunteer army everyone who gets hired is hired by the government
and gets paid the same amount
it's precisely the universalization of all
of essentially paying your service you pay your way to the army that makes the all
volunteer army just.
Emily? I guess I'd frame the principal slightly differently, on the all-volunteer
army
it's possible for somebody to just step aside and not really think about, you
know, the war at all. it's possible to say well I don't need the money,
you know I don't need to have an opinion about this I don't need to feel obligated to take
my part and defend my country with a
coercive system, I'm sorry,
with an explicit draft,
then
you know there's the threat at least that every individual will have to make some sort of
decision
you know, regarding military conscription and you know perhaps in that way it's more equitable you know
it's true that
Andrew Carnegie might not serve in any case but in one you know he can completely step
aside from it and in the other there is some level of responsibility.
While you're there Emily,
so what system do you favor
conscription
I would be hard to say but I think so because it makes the whole country feel a
sense of responsibility for the conflict instead of you know having a war that's maybe ideologically
supported by a few but only if there's no
you know, real responsibility.
good. who wants to reply, go ahead.
so I was going to say that
the fundamental difference between the all-volunteer army
and then the
army in the civil war is that
in all volunteer army if you want to volunteer that fact comes first and then the pay
comes after whereas in
the civil wars system
the people who are volunteering, who are
accepting the pay aren't necessarily doing it
because they want to, they're just doing it for the money first.
what motivation beyond the pay do you think
is operating in the case of the all volunteer army?
Like patriotism for the country.
patriotism
well what about pay. And a desire to
defend the country and
there's some motivation in pay but
the fact that
it's first and foremost in an all-volunteer army will motivate them first, I think personally
okay
you think it's better, and tell me your name. Jackie.
Jackie do you think it's better if people serve in the military out of a sense of patriotism
than just for the money
yes definitely because that people who
that was one of the main problems in the civil war
I mean is that the people that you're getting to go in it
or to go to war
aren't necessarily people who want to fight and so they won't be as good soldiers as they
will be had they been there because they wanted to be
all right what about Jackie’s
having raised the question of patriotism
that patriotism is a better or a higher motivation than money
for military service
who, who
would like to address that question?
patriotism absolutely is not necessary in order to be a good soldier because mercenaries
can do just as good of a job of
the job as anyone who
waves the American flag around and wants to
defend what the government believes that we should do.
did you favor the outsourcing
solution? yes sir.
all right so let
Jackie respond, what's your name? Phillip
what about that Jackie?
so much for patriotism
if you've got someone who's heart is in it more
than another person's they're going to do a better job
when it comes down to the wire
and there is like
a situation in which
someone has to put their life on the line
someone
who is doing it because they love this country
will be more willing to go into danger than someone who's just getting paid they don't care
they've got the technical skills
but they don't care what happens because the really have
they have nothing, like,
nothing invested in this country
there's another aspect though once we get on to the issue of patriotism
if you believe patriotism
as Jackie does, should be the foremost consideration
and not money
does that argue for or against
the paid army we have now
we call it the volunteer army, though if you think about it that's
a kind of a misnomer
a volunteer army as we use the term is a paid army. so
what about the suggestion
that patriotism should be
the primary motivation for military service
not money?
does that argue in favor
of the paid military that we have
or does it argue
for conscription
and just to sharpen that point building on Phil's case for outsourcing
if you think
that the all-volunteer army, the paid army
is best
because it lets the market allocate
positions according to people's preferences and willing
willingness to serve for a certain wage
doesn't the logic
that takes you
from a system of conscription
to the hybrid civil war system
to the all-volunteer army
doesn't the
the idea of expanding freedom of choice
in the market
doesn't that lead you all the way if you followed that principle consistently
to a mercenary army?
and then if you say no
Jackie says no, patriotism
should count
for something
doesn't that argue
for going back to conscription if by patriotism you mean a sense of civic
obligation
let's see if we can step back from
the discussion that we've had
and see what we've learned
about
consent
as it applies to market exchange.
we've really heard two
arguments
two arguments against
the use of markets
and exchange
in the allocation of military service
one was the argument raised
by Sam and Raul
the argument
about coercion
the objection
that
leading the market allocate military service
may be unfair
and may not even be free
if there is
severe inequality in this society
so that people
who buy their way into military service
are doing so
not because
they really want to
but because they have so few economic opportunities that that's their
that's their best
choice
and Sam and Raul say there's an element of coercion in that
that's one argument.
then there is a second objection
to using the market to allocate military service
that's the idea
that military service
shouldn't be treated as just another job for pay
because it's bound up with patriotism
and civic obligation
this is a different argument
from the argument about unfairness and inequality
and coercion
it's an argument that suggests that maybe where civic
obligations are concerned
we shouldn't allocate
duties and rights
by the market
now we've identified two
broad objections
what do we need to know to assess those objections
to assess the first the argument from coercion inequality and fairness, Sam,
we need to ask
what inequalities in the background conditions of society
undermine
the freedom
of choices people make
to buy and sell their labor
question number one.
question number two, to assess the civic obligation patriotism
argument
we have to ask
what are the obligations of citizenship
is military service
one of them
or not
what obligates us as citizens what is the source of political obligation
is it consent
or are there some
civic obligations we have
even without consent
for living in sharing
in a certain
kind of society.
we haven't answered either of those questions
but our debate today
about the civil war system and the all-volunteer army
has at least raised them
and those are questions we're going to return to in the coming weeks.
Do you think you should be able to
bid for a baby that's up for adoption?
That's Andrew's Challenge.
Do I think that I should be able to bid for a baby?
I'm not, sure.
it's a market.
today at I’d like to turn our attention
and get your views
about an argument over the role of markets
in the realm of human reproduction and procreation.
now with infertility clinics
people advertise for egg donors
and from time to time in the
Harvard Crimson
ads appear for egg donors, have you seen them?
there was one that
ran a few years ago
it wasn't looking for just any egg donor,
it was an ad that offered a large financial incentive for a donor
from a woman
who was intelligent
athletic
at least five foot ten
and with
at least
fourteen hundred or above on her SAT's
how much do you think
the person looking for this together was willing to pay for an egg from a woman of that
description
what would you guess?
thousand dollars?
fifteen thousand? ten?
I’ll show you the ad
fifty thousand dollars
for an egg
but only
a premium egg
what do you think about that?
well there are also sometimes ads
in the Harvard crimson and in a other college newspapers
for sperm donors
so the market
in reproductive
capacities
is an equal opportunity market
well not exactly equal opportunity they're not offering fifty thousand dollars for sperm
but there is a company
a large commercial sperm bank
that markets sperm
it's called California cryobank
it's a for-profit company
it imposes
exacting standards on the sperm it recruits
and it has offices
in Cambridge between Harvard and MIT
and in Palo alto near
Stanford
cryobank's marketing materials
play up
the prestigious source of its sperm
here is
from the web site
of cryobank
the information
here they talk about the compensation
although compensation should not be the only reason for becoming of sperm donor
we are aware of the considerable time and expense involved in being a donor
so you know what they offer?
donors will be reimbursed
seventy five dollars per
specimen
up to nine hundred dollars a month if you donate three times a week
and then they add, we periodically offer incentives
such as
such as movie tickets
our gifts certificates for the extra time and effort expended
by participating donors
it's not easy
to be a sperm donor
they accept fewer than five percent of the donors who apply
their admission criteria are
more demanding than Harvard's
the head of the
sperm bank said the ideal sperm donor
is six feet tall
with a college degree
brown eyes
blond hair
and dimples
for the simple reason that these are the traits
that the market has shown
the customers want
quote, quoting the head of the sperm bank, if our customers wanted high school dropouts we would
give them high school dropouts.
so here are two instances
the market in eggs for donation and the market in sperm
that raise a question
a question about
whether
eggs and sperm
should or should not be bought and sold
for money.
as you ponder that
I want you to consider
another
case
involving
a market
and in fact a contract
in human
reproductive, in the human reproductive capacity
and this is the case
of commercial surrogate motherhood.
and it's a case that wound up in court
some years ago it's the story of baby M
it began with William and Elizabeth
Stern, a professional couple
wanting a baby
but they couldn't have one of their own,
at least not without medical risk to Mrs. Stern.
they went to an infertility clinic
where they met Mary Beth Whitehead
a twenty nine-year-old mother of two
the wife of a sanitation worker
she had replied to and ad
that the center had placed
seeking the service
of a surrogate mother
they made a deal
they signed a contract
in which William Stern
agreed
to pay
Mary Beth Whitehead a ten thousand dollar fee
plus all expenses
in exchange for which
Mary Beth Whitehead agreed to be artificially inseminated with William
Stern's sperm,
to bear the child and then
to give the baby
to the Sterns
well you probably know
how the story unfolded
Mary Beth gave birth
and changed her mind
she decided she wanted to keep the baby
the case wound up in court
in New Jersey
so let's take
put aside
any legal questions
and focus on
this issue as a moral question
how many
believe
that the right thing to do
in the baby M case
would have been to uphold
the contract, to enforce the contract?
and how many think the right thing to do would have been
not to enforce that contract?
so it's about the majority say enforce
so
let's now hear the reasons that people have either for enforcing or refusing to enforce this
contract
first from those, I want to hear from someone in the majority,
why do you uphold the contract
why do you enforce it?
who can offer a reason? yes. stand up.
it's a binding contract
all the parties involved
knew the terms of the contract before any action was taken
it's a voluntary agreement
the mother knew what she was getting into
all four are intelligent adults regardless of formal education or whatever so
it makes sense if you know what you're getting into beforehand and
you make a promise
you should uphold that promise in the end. Ok, a deal is a deal in other words?
Exactly. And what's your name? Patrick
is Patrick’s reason the reason that most of you
in the majority
favored upholding the contract? yes? 0:36:37.769,0:36:38.969 all right now let's hear
from someone who would not enforce the contract
what do you say to Patrick? Why not? Yes
well I mean I agree I think contracts should be upheld when
all the parties know all the information but
in this case I don't think
there's a way a mother
before the child exists
could actually know
how she's going to feel about that child
so I don't think the mother actually had all the information
she didn't know the person that was going to be born
and didn't know how much she would love that person
so that's my argument
so you would not, and what's your name?
Evan Wilson
Evan he says he would not uphold the contract because
when it was entered into
the surrogate mother couldn't
be expected to know in advance how she would feel
so she didn't really have
the relevant information
when she made that contract
who else
who else would not uphold the contract?
I think, I also think that a contact should generally be uphold but I think
that the child has an inalienable right to
its actual mother
and I think that if that mother wants it then that child should have a
right to that mother. you mean the biological mother not the adoptive mother. right.
and why is that, first of all tell me your name. Anna.
Anna, why is that Anna?
because I think that
that bond that is created by nature is stronger than any bond that is created by
you know a contract.
good thank you. Who else, yes.
I disagree I don't think that a child has a
inalienable right to her biological mother
I think that adoption and surrogacy are both trade offs
and I agree with the point made
that day it's a voluntary agreement, an individual made,
and you can't
apply coercion to this argument
you can't apply the
objection from coercion to this argument.
correct. what's your name?
Kathleen
Kathleen, what do you say to Evan,
that though there may not have been, Evan claimed that the consent was tainted
not by coercion
but by lack of adequate information
she couldn't have known the relevant information namely, how she would feel about the child
I don't think her emotion content plays into this
I think the emotional content or her feelings plays into this, I think in, you know, in a case
of law, in the justice of this scenario,
her change of feelings are not relevant if I give up my child for adoption and then
I decide later on that I really want that child back
too bad, it's a trade-off
it's a trade off that the mother has made.
so a deal is a deal, you agree with Patrick? I agree with Patrick, a deal is a deal, yes.
good, yes. I would say that
though I'm not really sure if I agree with
the idea that the child has a right to their mother
I think the mother definitely has a right to her child.
and I also think there are some areas where market forces shouldn't necessarily penetrate, I think that
the whole surrogate mother
area
smacks a little bit
of dealing in human beings
it seems dehumanizing
and it doesn't really seem right
so
that's my main reason
and what is could, tell us your name.
I'm Andrew. Andrew.
what is dehumanizing
about
buying and selling
the right to a child
for money, what is the humanizing about it?
well because
you're buying
someone's
biological right
I mean you can't
and the law
as it states you can't sell your own child like were you to have a child
I believe that the law prohibits you selling it
to another person. so this is like baby selling?
Right. To a certain extent, I mean though there is a contract with another person, you've made
agreements and whatnot
there is an undeniable emotional bond that takes place between a mother and child
and it's wrong to simply ignore this because you've written out something contractually.
you want to reply to Andrew? to stay there
you point out that there is an undeniable emotional bond
I feel like when in this situation we're not necessarily against
adoption
or surrogacy in itself we're just sort of pointing out
the emotional differences
well but wait, it's easy to break everything down to just numbers and say
well we have contracts like you're buying and selling a car
but there are underlying emotions I mean you're dealing with people
I mean these are not objects to be bought and sold but what about Andrew's claim that
this is like baby selling I believe that adoption and surrogacy should be permitted whether I actually
will partake in it
is not really relevant but I think that the government should, the government should
give its citizens the rights to
allow for adoption and surrogacy. But adoption, adoption is not according to.. Is adoption
baby selling?
well
do you think you should be able to
to bid for a baby that's up for adoption
that's Andrew's challenge
Do I think that I should be able to bid for a baby?
I'm not... sure.
it's a market I mean,
I feel like the extent to which it's been applied
I'm not sure if the government
should be able to permit it and I have to think about it more but,
Alright fair enough, are you satisfied
Andrew? well ya, I think surrogacy should be permitted
I think that people can
do it
but I don't think that it should be forced upon people
that once a contract is signed it's absolutely like
the end-all
I think it's unenforceable
so people should be free, Andrew, to enter into these contracts
but it should not be enforceable in a court
not in a court no.
who would like to turn on one side or the other
I think I have an interesting perspective on this because my brother was actually one
of the people who donated to a sperm bank
and he was paid a very large amount of money
he was six feet tall, but not blond
he had dimples though,
so he actually has, I'm an aunt now and he has a daughter
she donated sperm to a lesbian couple in Oklahoma and
he has have been contacted by them and he has seen pictures of his daughter
but he still does not feel an emotional bond to his daughter
he just has a sense of curiosity about what she looks like and what she's doing and how
she is
he doesn't feel love for his
child
so from this experience I think the bond between a
mother
and a child
cannot be compared to the bond between the father and the child. That's really interesting.
what's your name? Vivian.
Vivian
so we've got the case of surrogacy, commercial surrogacy
and it's been compared to baby selling and we've been exploring whether that analogy
is apt and
it can also be compared, as you point out
to sperm selling
but you're saying
that sperm selling
and baby selling or even surrogacy are
very different. Because they're unequal services.
they're unequal services
and that's because
Vivian you say that the tie, the bond,
yes and also the time investment
that's given by a mother, nine months
cannot be compared to
the man, you know going into a sperm bank
looking at pornography
you know, and depositing into a cup. I don't think those are equal
good. Alright so we, Because that's what happens in a sperm bank.
alright so, this is really interesting we have
notice the arguments that have come out so far,
the objections
to surrogacy
the objections to
enforcing that contract,
are of at least two kinds
there was the objection
about tainted consent
this time
not because of
coercion or implicit coercion
but because of
imperfect or
flawed information
so tainted or flawed consent
can arise either
because of coercion or because of
a lack of
relevant information
at least according to one argument that we've heard
and then a second objection
to enforcing the surrogacy contract
was that it was somehow
the humanizing.
now when this case was decided by the court
what did they say
about these arguments?
the lower court
ruled that the contract was enforceable
neither party had a superior bargaining position
a price for the service was struck and a bargain was reached
one side didn't forced the other
neither had disproportionate
bargaining power
then it went to the new Jersey supreme court
and what did they do
they said this contract is not enforceable
they did
grant custody
to Mister Stern
as the father because they thought that would be in the best interest of the child
but they restored
the rights
of Mary Beth Whitehead
and left it to
lower courts to decide exactly what the visitation
rights should be
they invoked two different kinds of reasons
along the lines that Andrew proposed
first
there was not sufficiently informed consent
the court argued
under the contract the natural mother is irrevocably committed
before she knows the strength of her bond with her child
she never makes
a truly voluntary informed decision
for any decision prior to the baby's birth
is, in the most important sense,
uninformed. that was the court
then
the court also
made a version of the second argument
against commodification
in this kind of case
this is this
the sale of a child the court said
or at the very least
the sale of a mother's right to her child
whatever idealism may motivate the participants, the profit motive predominate, permeates and
ultimately
governs
the transaction
and so regardless the court said, regardless of any argument about consent or flawed consent
or full information
there are some things in a civilized society
that money can't buy, that's what the courts said
in voiding this contract
well what about these two arguments
against
the extension of markets
to procreation
and to reproduction
how persuasive are they?
there was, it's true,
a voluntary agreement a contract struck between William Stern and Mary Beth Whitehead
but there are at least two ways that consent can be other than truly free
first
if people are pressured or coerced
to give their agreement
and second
if their consent is not truly informed
and in the case of surrogacy the courts said
a mother can't know
even one who already has kids of her own,
what it would be like
to bear a child and give it up for pay.
so in order to assess
criticism, objection number one,
we have to figure out
just how free
does a voluntary exchange have to be with respect to the bargaining power
and equal information
question number one.
how do we assess
the second objection?
the second objection
is more elusive, it's more difficult
Andrew acknowledged this right?
what does it mean to say there's something dehumanizing
to make
childbearing
a market
transaction?
well one of the philosophers
we read on this subject Elizabeth Anderson
tries to give some bring some philosophical clarity to the unease
that Andrew articulated
she said by requiring the surrogate mother
to repress
whatever parental love she feels for the child
surrogacy
contracts convert women's labor into a form of alienated labor
the surrogate’s labor is alienated
because she must divert it from the end
from the and
which the social practices of pregnancy
rightly promote,
namely an emotional bond
with her child
so what Anderson is suggesting is that
certain goods
should not be treated as open to use
or to profit
certain goods are properly valued
in ways other than use
what are other
ways of valuing and treating?
good that should not be open to use?
Anderson says
there are many,
respect,
appreciation,
love,
honor, awe, sanctity
there are many modes of valuation
beyond use
and certain goods are not properly
valued
if they're treated
simply as objects of use.
how do we go about evaluating that argument of Anderson?
in a way it takes us back to the debate
we had with utilitarianism
is use
the only, in utility
is use,
the only proper way
of treating goods?
including life
military service
procreation
childbearing?
and if not,
how do we figure out
how can we determine
what modes of valuation
are fitting
are appropriate
to those goods
several years ago there but the scandal surrounding a doctor
an infertility specialist in Virginia named Cecil Jacobson
he didn't have a donor catalog
because unknown to his patients, all of the sperm he used to inseminate his patients
came from one donor
doctor Jacobson himself.
at least one woman who testified in court was unnerved
at how much
her newborn daughter
looked just like him
now it's possible to condemn
doctor Jacobson for failing to inform the women
in advance
that would be the argument about consent
the columnist Ellen Goodman
described the bizarre scenario as follows
doctor Jacobson, she wrote, gave his infertility business
the personal touch
but now the rest of us,
she wrote,
are in for a round of second thoughts
about sperm donation
Goodman concluded that fatherhood should be something you do
not something you donate,
and I think what she was doing
and what the philosopher Elizabeth Anderson is doing
and what Andrew was suggesting with this argument about dehumanization
is pondering whether there are certain goods that money shouldn't buy
not just because of tainted consent
but also perhaps
because certain goods are properly
valued
in a way a higher
than mere use
those at least are the questions we're going to pursue with the help of some philosophers
in the weeks to come
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