Commodifying The Personal: Again

But there's more here: 

Exactly how many donor children Mr. Meijer has around the world is impossible to say. But Ties van der Meer, the director of the Dutch Donor Child Foundation, and his colleagues have calculated that if Mr. Meijer’s known pattern of clinic and private donation was any indicator, the number could run to several hundred, even 1,000.

In an email, Mr. Meijer dismissed that conclusion. “I have approximately 250 children,” he said. “Assumptions of 1,000 are ridiculous. I am disappointed by the obsession of the numbers.

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Interesting piece from the NYT here. The headline says it all: "The Sperm Kings Have a Problem." Elaborating: "Many people want a pandemic baby, but some sperm banks are running low. So women are joining unregulated Facebook groups to find willing donors, no middleman required."

Compensation for sperm donors is prohibited but they may be reimbursed for expenses (typically travel). The cost to prospective donees, however, is high, up to $1100 per vial for the best sperm. ("Best" being from donors who are good-looking, highly-educated, and successful.) With the pandemic, sperm donations to regulated banks are down so, as the article notes, some women are turning to the grey market.

All of which invites some non-market observations. As noted in my posts on the work of Adeline Allen on surrogacy contracts (here and here), there should be more than satisfaction of a personal good when evaluating the ethical; I hope no one takes rule-based utilitarianism (e.g., law and economics) as an adequate moral philosophy. With respect to surrogacy contracts, I believe that Allen successfully argues that the undeniable good of having a child to whom one is genetically related is outweighed by the negative good ("bads") that surrogacy entails. Pregnancy via sperm donation, however, presents the opposite biological scenario; the male, not a female, is the surrogate.

Is this distinction sufficient to render sperm donation licit? Although I think the answer is no, reasonable minds might differ. And even if we conclude that such contributions to human life are unethical, (how) should the law (of, e.g., contracts) incorporate such a moral judgment?

No clear answers from me but certainly questions worth pondering.

Straining Toward Natural Law: Margaret Radin and Contract Degradation Part 1.5.1

Last week I posted some initial comments about Professor Margaret Radin's article Access to Justice and Abuses of Contract here. I had planned to get to Part 2 this week but an apposite comment by Eric Enlow, dean of Handong International Law School in Pohang, Korea, has forced me to reconsider two points I made my first time around.

Dean Enlow first questions my conclusion that, just as contracts are means by which humans obtain private goods, so too public remedies for breach of contract are private goods. Quoting myself,

[I]s a right to claim damages for breach of contract a public good? It seems not: the remedy of contract damages--like the practice of contracting--is a private good. 

To which Dean Enlow responds, 

I don't understand why the practice of courts' remedying of breaches of contract concerns only private good. To the contrary, if courts create a state of affairs where the public knows that a breach of a private contract may be remedied, then it creates public conditions where people may contract at lower costs and with greater confidence. Courts thereby facilitate more commercial transactions by lowering transaction costs. Courts may also promote the moral development of personal responsibility in taking responsibility for certain commitments with others and making amends for harms caused by failing in those commitments. 

In other words--my words--provision of a civil remedy for a private wrong (damages suffered as a result of breach of a contract) contributes to the public good in two ways. First, contract law works to increase the frequency of the social practice of contracting and, second, contract law functions as a tutor of private virtue, in particular the virtue of promise-keeping or fidelity. The first promotes an increase in the aggregate number of private goods while the second, the goad of potential civil liability for contract breach, works to increase our individual well-doing, our individual flourishing. In turn, individual flourishing contributes to the flourishing of society as a whole.

In response, I agree with the second of Enlow's points but not the first. With respect to his first criticism, increasing the quantity of private goods (what economists call welfare maximization) may be good for an individual but the effects of American consumerism (my thoughts about consumerism here; even better ones here) suggests that welfare maximization may in fact detract from growth in individual and collective virtue. (Some earlier thoughts on that point here.) In any event, and returning to a point I made in my initial post, I remain unconvinced that welfare maximization is a condition sufficient to identify a public good. I suspect that nothing can be a public good that affirmatively reduces our capacity for private goods but I don't believe the converse follows. In other words, increasing welfare is a necessary but not a sufficient condition by which to identify a public good.

I stand corrected by Enlow's second observation. Promotion of the virtue of fidelity is a public good and contract law can promote fidelity. It is particularly vexing to have overlooked this point because I've made it on previous occasions (see my posts here and here). We all must admit that we need socially instantiated practices to grow in virtue, a habitual turn to the good, and contract law is one such practice. Thus, I affirm that contract law is a public good.

In conclusion, I am grateful to know that someone reads what I write and takes the time to respond thoughtfully to it. Dean Enlow raised an additional point about my Aristotelian account of justice to which I hope to respond soon.

Virtue in Law

Back in June I posted a series of entries here, here, and here discussing the relationship between the bankruptcy discharge and the virtue of forgiveness. These had followed my earlier musings about what I called the morality of promise-receiving.

I am pleased to note that I'm not alone in wondering about a place for the virtues in the law. Avery Katz of Columbia Law School posted a piece here entitled "Virtue Ethics and Efficient Breach." Katz nicely summarizes the utilitarian and deontological arguments for and against the doctrine of efficient breach (that the law should not penalize contract breaches so long as the breacher pays the aggrieved party its expectation damages; in other words, contract promisors have an unstated option to perform or pay). He then develops an argument that, notwithstanding its efficiency, permitting promisors such an option might undercut moral character, civic solidarity, and a flourishing community. In my terms, since the virtue of fidelity accounts for the morality of promise-keeping, it should be part of its legality as well.

But, as I also argued, a corresponding virtue exists. Some call it forgiveness; Katz calls it clemency or magnanimity. I called it forbearance. Whatever the name, I am intriged to see an increasing use of an ethical perspective grounded in the virtues when it comes to looking at the law.

Katz's short piece does no more than suggest what a full-blown virtue-based account of the efficient breach might look like. I hope someone--perhaps one of my students?--pursues it in depth.