09. Maternidade: à venda

har University Justice from Michael sandle today 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 that wasn't looking for just any egg donor it was an ad that offered a large Financial incentive for an egg donor from a woman who was intelligent athletic at least

5'1 and with at least 1,400 or above on her SATs how much do you think the person looking for this egg donor was willing to pay for an egg from a woman of that description what would you guess $1,000 15,000 10 I'll show you the ad $50,000 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 other college newspapers for sperm donors so the market in reproductive capacities is uh an equal opportunity Market well not exactly equal opportunity they're not offering

$50,000 for sperm but there is a company a large commercial sperm bank that markets sperm it's called California cry bank it's a for-profit company it impos oses exacting standards on the sperm it recruits and it has offices in Cambridge between Harvard and MIT and in paloalto near Stanford cryo bank's marketing materials playay up the prestigious source of its sperm here is uh from the website of cryobank the information here they talk about the compensation although compensation should not be the only reason for becoming a sperm donor we are aware of the considerable time and expense

involved in being a donor [Applause] so do you know what they offer donors will be reimbursed $75 per specimen up to $900 a month if you donate three times a week and then they add we periodically offer incentives such as [Applause] oh such as movie tick or gift certificates for the extra time and effort expended by participating donors it's not easy to be a sperm donor they accept fewer than 5% of the donors who apply their admission criteria are more demanding than Harvard the head of the sperm Bank said the ideal sperm donor is 6

feet tall with a college degree brown eyes blonde 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 in

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 on their own at least not without medical risk to Mrs Stern they went to an infertility Clinic where they met Mary Beth Whitehead a 29-year-old mother of two the wife of a sanitation worker she had replied to

an 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 $10,000 fee plus all expenses in exchange for which Mar Beth White had 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 BBM case would have been to uphold the contract to enforce the contract and 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 had 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 if it's a voluntary agreement the mother knew what she was getting into the all four intelligent adults regardless of formal education whatever so it makes sense that if you know what you're getting into beforehand and you make a promise you should uphold that promise in the end okay 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 all right let's hear now 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 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 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 uh who else who else would not uphold the contract yes um I think I also think that a contract should generally be uphold but I think um that

the child has an inalienable right to uh its actual mother um and I think that if that mother wants it then that child should have that the 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 um because I I think that um 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 legitimate trade-offs um and I agree with the point made um that it's a voluntary agreement uh an individual made it's a voluntary agreement and I 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 beened 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 what do you say to that I don't think the emotional content of her feelings plays into this I think in you know in a case of law in the Justice of this scenario her 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 it's a trade-off it's a trade-off that the mother is made so a deal is a deal you agree with Patrick I agree with Patrick

a deal deal is a deal yes good yes I would say that though I'm not really sure if I agree with the the idea that the child is right to their mother I think the mother definitely has a right to her child and I also think that 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 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 dehumanizing about it well because you're you're buying someone's biological right I mean you you can't in the the law as it as it say 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 or selling so this is like baby selling right to a certain extent I mean though 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 a child and it's wrong to Simply ignore this because you've written out something contractually all right you want to reply to Andrew stay there uh you point out there's an undeniable emotional bond um I feel like we're in this situation we're not necessarily arguing against adoption or surrogacy in itself we're just sort of pointing out the emotional differences well but but wait I mean it's it's easy to break everything down to numbers and say oh 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 all right what about what about Andrews claim that this is like baby selling I believe that adoption and surrogacy should be permitted whether or not I actually will partake in it is is not really relevant but I think that the government should it the government should give its citizens the rights to allow for adoption and surrogacy but adoption adoption is not according to to is adoption Babys 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 I should be able to bid for a baby I'm not sure it's a market I mean I I feel like the extent the W to which it's been applied I'm I'm not sure if the government should be able to permit it and I have to think about it more but all right fair enough are you satisfied Andrew well yeah I mean I just 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 the contract is signed it's it's it's absolutely like the end all I think that it's unenforceable so people should be free Andrew to enter into these contracts but it should not be enforcable in a court not in a court no who would like to join on one side or the other yes um 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 6 feet tall

but not blonde he had dimples though so he actually has I'm an aunt now and he has a daughter he donated his SPM to a lesbian couple in Oklahoma and um he has um 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 um from from this experience I think the bond between a 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 Vivien Vivien 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 celling but you're saying that sperm celling and baby celling 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 9 months cannot be compared to a man you know going into a sperm Bank looking at pornography and you know depositing into a cup I don't think those are equal good all right so we cuz that's what happens in a sperm bank all right so this is really interesting we have right 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 dehumanizing now when this case was decided by the courts 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 force 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 enforcable they did Grant custody to Mr 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 invoke 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 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 predominates 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 court 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 or

coerced to give their agreement and second if their consent is not truly informed and in the case of surrogacy the Court 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 acknowledge this right what is it mean to say there is 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 parent Al love she feels for the child surrogacy contracts convert women's labor into a form of alienated labor the surrogate labor is alienated because she must divert it from the end from the end 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 Goods 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 is 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 or appropriate to those goods several years ago there was a scandal surrounding a doctor an infant ility 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 dror 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 Dr 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 Dr 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 his 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 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 [Applause] [Music] [Music] [Music]