10 July 2018

Contract Limits? Or, Why Everyone Should Read Adeline Allen's Paper: Part 1

Given our culture's fixation on individual autonomy, what subjects, if any, should be outside the bounds of contractual freedom? Whether one is a free-market libertarian or a devotee of maximal sexual expression, contracts are central to your worldview. Contractual assent is the universal solvent in lieu of doing the hard work of figuring out the right and wrong of ethical questions.

Of course, one might begin from a different ethical framework, say, welfarism. As with autonomy, starting from the premise of increasing personal subjective welfare puts few limits on the subject-matter of a contract. There is little constraint on what parties may agree as long as at the time of contracting both believe they will be made better off. That one party may later conclude that what she got wasn't worth the price is merely regret which is endemic to the human condition and certainly no reason to unravel a contract.

But what if we start from another position, neither individual autonomy nor social welfare? What if, instead, we begin with a thicker notion of what it means to be human and from that starting point identify certain "goods" that are consistent with being human? A large measure of autonomy is certainly one aspect of being human. Freedom of choice, a function of the human capacity to identify the good and pursue it, is itself a good. And freedom of choice includes the freedom to be wrong; we can either misperceive the good or pursue a good in the wrong way. But freedom cannot be the only arbiter of the good because without a notion of the good to which choice aims, freedom loses its moral significance. In other words, freedom of choice is a secondary good, a distinctively human means to the end of identifying (and pursuing) a more primary good.*

What does the foregoing have to do with contract law and its limits? To help answer this question we can turn to Adeline Allen's recent article, Surrogacy and Limitations to Freedom of Contract: Toward Being More Fully Human, published in the Harvard Journal of Law and Public Policy (download here).

Allen's conclusion is straightforward:
This Article will show that commercial surrogacy arrangements do not properly belong in the realm of freedom of contract, but rather in the limitation to freedom of contract. Human flourishing and the common good require both the affirmation and limitation of that freedom, given that parties to a contract are rational beings, but imperfectly so.
Her argument is long but accessible. Over the course of  the second two-thirds of her article, Allen affirms that having a child who carries one's genetic nature is indeed a good. Yet, severing that undeniable good of the woman whose genetic nature comprises half of the new life through surrogacy produces substantial and irremediable negative effects that, in Allen's judgment, outweigh the good of the begetting one who shares her mother's nature.

Allen describes the negative effects that outweigh the good in terms of those that affect the child and those that harm the surrogate mother. Much of this evidence was new to me and, with respect to the surrogate, it includes findings from the field of epigenetics on the permanent biological effects of gestation on the surrogate as well as longitudinal studies of the psychological effects of surrendering the child whom she bore. With respect to the child born from such an arrangement: "A child is fragmented and damaged by not being raised, known, and loved by his biological parents (that is, his genetic parents and his birth mother) in the practice of surrogacy." (With citations to studies demonstrating her conclusion.)

Allen does not limit her arguments against surrogacy to the results of empirical research. There is, after all, more to moral decision-making than listing material and efficient causes. Allen quotes secular legal scholar Margaret Radin (see my earlier posts here and here) who "speaks of 'a deep bond between a baby and the woman who carries it . . . created by shared life,' even apart from DNA or genetic connection." More bluntly,
Medical sociologist Barbara Katz Rothman states: If you are pregnant with a baby, you are the mother of the baby that you’re carrying. End of discussion. The nutrients, the blood supply, the sounds, the sweep of the body. That’s not somebody standing in for somebody else to that baby. That’s the only mother that baby has.
Only in the contemporary morally desiccated West could anyone be so credulous to believe that the woman who carries a child for nine months does not have a unique and unmarketable bond with her child.

I won't do any more to develop Allen's arguments because they must be studied with care to feel their full weight. But what of my initial premises, that freedom of choice is an aspect of the moral nature of human beings and that "freedom of choice includes the freedom to be wrong"? Should people be deprived of the right to enter into surrogacy contracts even if Allen is correct, that the ills proceeding from surrogacy outweigh its goods? To answer this question takes us to the first third of Allen's article where she does an excellent job of unpacking and framing the application of John Finnis's "new" natural law approach to public moral reasoning. I'll defer my discussion of this part of Allen's argument to Part 2.

* For a wonderful application of the notion of the good (and not the will or efficiency) as the ground of political association read Susannah Black's, New York, New Jerusalem (here).

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