Some time ago I posted here under the title "Perfecting Children and Raising Children." I concluded with words that, in retrospect, continue to disquiet me:
Second, and more recently, I came across this article about a California case in which the "father" likewise escaped financial responsibility for the child he had conceived in vitro. This time the language of the agreement was clear. What is also clear, according to the court, is that due to cancer treatments the mother will never be able to bear a child and that the father was afraid that mom "would use a child to exploit him financially."
Especially if the father's fears about mom's bad faith are true, we see even more clearly the consumptive nature of contemporary child creation. Either mom wanted a child to consume dad's assets or dad's primary interest was to keep his money. Or both.
The trend toward commodification of human life continues unabated. It has been the case for decades that we no longer see child-bearing an expression of openness to the future. Instead, it's about dollars and cents. What has changed more recently is the consumptive and destructive effects of subjecting human life to the vagaries of the market.
Both using abortion to cull the heard, so to speak, and raising children in middle-class America have the same goal: perfection. But not moral perfection; not excellence in the virtues of character. Perfection understood in the narrow sense of controlled material success. The market meets the family, and the market wins. When parents in effect consume their children, the family has been turned inside-out. Of course, such parents should be wary of how their children might consume them when their performance begins to slip after, say, age 70 or so. (Emphasis added.)Two things refreshed my recollection about this issue. First, during the fall semester of Contracts I again covered two cases that dealt with the contractual implications of an agreement between the parents of embryos conceived in vitro. In one case, the court enforced the contractual disposition and in the other it did not. Putting aside the courts' contractual analyses, I observed that the effect of each decision was to prohibit the mother from implanting the zygote and bringing the child to birth. In other words, each case relieved the sperm-donor/husband from the financial obligations of fatherhood thus permitting him, metaphorically speaking, to "consume" his child.
Second, and more recently, I came across this article about a California case in which the "father" likewise escaped financial responsibility for the child he had conceived in vitro. This time the language of the agreement was clear. What is also clear, according to the court, is that due to cancer treatments the mother will never be able to bear a child and that the father was afraid that mom "would use a child to exploit him financially."
Especially if the father's fears about mom's bad faith are true, we see even more clearly the consumptive nature of contemporary child creation. Either mom wanted a child to consume dad's assets or dad's primary interest was to keep his money. Or both.
The trend toward commodification of human life continues unabated. It has been the case for decades that we no longer see child-bearing an expression of openness to the future. Instead, it's about dollars and cents. What has changed more recently is the consumptive and destructive effects of subjecting human life to the vagaries of the market.
After reading the other blog posts commenting on sperm-donation and surrogacy births, as well as the articles linked within, I found myself thinking back to the case of A.Z. v. B.Z. It was held by the Massachusetts court that "public interest in freedom of contract is sometimes outweighed by other public policy considerations; in these cases the contract will not be enforced." (page 225 of our casebook).
ReplyDeleteWe were lectured on the various perspectives of justifications for contract avoidance. These perspectives include the normative perspective, the existential perspective, and the situational perspective. The normative perspective of contract avoidance has everything to do with public policy and, according to Professor Pryor, is typically a subjective standpoint in evaluating avoidance of a contract. Although a person may consent to sign away their sperm or right to keep a baby carried via surrogacy, I believe that factual instances need to be examined on a subjective, case-by-case basis. However, it is within the interest of public welfare to sustain healthy families in raising children. As stated on page 225 again, it would be against public policy to "enforce an agreement that would compel one donor to become a parent against his or her will." It is further drawn that the freedom to enter--or not to enter--into a familial relationship outweighs the freedom to contract or freedom not to contract.
To conclude, from an ethical standpoint--regardless of good-faith or bad-faith monetary consequences of conceiving and raising a child--I am of the belief that it is imperative for the courts to recognize that this is an instance in which there needs to be a limit on the freedom to contract or freedom from contract. The beauty and nature of birth should be considered in holding that a child should be brought into the world by personal liberty of the parents and not by enforcing a half-undesired contract through the courts.