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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 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 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?
And what about the idea that we own ourselves?
Isn't 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 139, he says,
"What matters is that the political authority or the military authority
not be arbitrary, that's what matters."
And he gives a wonderful example.
He says "A sergeant, even a sergeant, let alone a general,
a sergeant can command a soldier to go right up to a 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
that 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 government to conscript citizens
to go fight in wars. Others disagree.
Others say that's a legitimate power of government,
of democratically elected governments, anyhow,
and that we have an obligation to obey.
Let's take the case of the United States fighting a war in Iraq.
News accounts tells us that the military is having great difficulty
meeting its recruitment targets.
Consider three policies that the U.S. 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 whose 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?
A huge majority.
How many favor going to conscription?
Maybe a dozen people in the room favor conscription.
What about the outsourcing solution?
Okay, so there may be 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 to 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 500 dollars, sometimes 1000 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 he spent in the year on fancy cigars.
Now I want to get your views about this Civil War system,
call it the hybrid system, conscription but with a buyout provision.
How many think it was a just system?
How many would defend the Civil War system?
Anybody? Anybody else?
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 $300 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 paying someone $300 or $500 or $1,000...
You're basically saying that's what their life is worth to you.
That's what their life is worth, it's putting a dollar value on life.
- That's good. 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 hired so it's completely up to you.
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 $500,
let's say, he's putting his own price on his life
or 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, people who have lower incomes,
for Carnegie he can totally ignore the draft, $300 is an irrelevant
in terms of his income but someone of a lower income,
they're essentially being coerced to draft, to be drafted,
it's probably they're not able to find a replacement.
Tell me your name.
Sam.
Sam. All right so you say, Sam, that when a poor laborer
accepts $300 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.
Alright. I want to hear someone who has a reply to Sam's argument,
that what looks like a free exchange is actually coercive.
Who has an answer to Sam? Go ahead.
I'd actually agree with him in saying that...
You agree with Sam.
I agree with him in saying that it is coercion in the sense that it robs individual of his ability to reason.
Okay, and what's your name?
Raul.
All right. So Raul and Sam agree that what looks
like a free exchange, free choice, voluntary act
actually involves coercion.
It's profound coercion of the worst kind
because it falls so disproportionately upon one segment of the society.
Good. Alright. 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 don't think that these drafting systems
are really terribly different from all volunteer army
sort of recruiting strategies.
The whole idea of having benefits and pay for joining the army
is sort of a coercive strategy to get people to join.
It is true that military volunteers come from disproportionately
lower economic status and also from certain regions of the country
where you can use like patriotism to try and coerce people
to feel like it's the right thing to do to volunteer and 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 a laborer takes the place
of Andrew Carnegie for $500. 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?
Before you answer, how did you vote in the first poll?
- Did you defend the volunteer army? - I didn't vote.
You didn't vote. By the way,
you didn't vote but did you sell your vote
to the person sitting next to you? No. Alright.
So what would you say to that argument.
I think that the circumstances are different in that
there was conscription in the Civil War.
There is no draft today and I think that 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 makeup 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 have any brothers or sisters who have served?
Does that bear out your point Emily?
Yes.
Alright. Now we need to hear from... most of you defended the idea
of the all volunteer military overwhelmingly and yet overwhelmingly,
people considered 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 in to military service
were not truly free but at least partly coerced.
Then Emily extends that argument in the form of a challenge.
Alright, everyone here who voted in favor
of the all volunteer army should be able... should have to explain
what's the difference in principle.
Doesn't the all volunteer army simply universalize the feature
that almost everyone found objectionable in the Civil War buyout provision?
Did I state the challenge fairly Emily?
Yes.
Okay. 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 an individual and as a result, different people who get hired
by different individuals get paid different amounts.
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 essentially paying your way
to the army that makes the all volunteer army just.
Emily?
I guess I'd frame the principle slightly differently.
On the all volunteer army, it's possible for somebody
to just step aside and not really think
about the war at all. It's possible to say,
"I don't need the money, 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 the coercive system, or sorry, with an explicit draft
then there's the threat at least that every individual
will have to make some sort of decision
regarding military conscription and perhaps in that way,
it's more equitable.
It's true that Andrew Carnegie might not serve in any case but in one,
he can completely step aside from it, and the other there's some level of responsibility.
While you're there, Emily, so what system do you favor, conscription?
I would be hard pressed to say but I think so
because it makes the whole country feel a sense of responsibility
for the conflict instead of having a war
that's maybe ideologically supported by a few but only if there's no 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 the all volunteer army, if you want to volunteer
that comes first and then the pay
comes after whereas in the Civil War system,
the people 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...
And a desire to defend the country.
There is some motivation in pay but the fact that it's first and foremost
an all volunteer army will motivate them first I think, personally.
Do 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 the people who... That was one of the main problems
in the Civil War is that the people
that you're getting to go in it 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.
Alright, 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 would like to address that question? Go ahead.
Patriotism absolutely is not necessary in order to be a good soldier
because mercenaries can do just as good of a 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.
Alright, so let Jackie respond. What's your name?
Philip.
What about that Jackie? So much for patriotism.
If you've got someone whose heart is in it
more than another person, they're going to do a better job.
When it comes down to the wire and there's like a situation
in which someone has to put their life on the line,
someone who's 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 they 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 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 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 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 letting the market
allocate military service may be unfair
and may not even be free if there's severe inequality
in the 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 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 unfairness, 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 and 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.
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 5'10",
and with at least 1400 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? A 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 the 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 $50,000 for a 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 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.
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 movie tickets 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 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 6 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 that customers want.
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 market and in fact a contract
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 Standard 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 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?
The majority say enforce so let's now hear the reasons
that people had, either for enforcing or refusing
to enforce this contract.
First 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 intelligent adults, regardless of formal education, whatever.
So it makes sense that if you know that 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? Alright, 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 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.
Who else? Who else would not uphold the contract? Yes.
I also think that a contract should generally be upheld
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 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?
Because I think that that bond is created by nature
is stronger than any bond that is created by a contract.
Good. Thank you. Who else? Yes.
I disagree. I don't think that a child has an inalienable right
to her biological mother.
I think that adoption and surrogacy are both legitimate tradeoffs
and I agree with the point made that it's a voluntary agreement,
the individual who made it, it's a voluntary agreement
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 add
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 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 tradeoff,
it's a tradeoff that the mother has made.
So a deal is a deal, you agree with Patrick?
I agree with Patrick, a deal's a deal.
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 that there's 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.
It doesn't really seem right so that's my main reason.
And what is... could you 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 buying someone's biological right.
I mean you can't... in the law as it stated, you can't sell your own child
like were you to have a child, I'd believe that the law
prohibits you selling it to another person or...
So this like baby selling?
Right. To a certain extent.
Though there's a contract with another person,
you've made agreements and what not, there is an undeniable emotional bond
that takes place between the mother and the child and it's wrong
to simply ignore this because you've written out something contractually.
Right. You want to reply to Andrew? Stay there.
You point out there's an undeniable emotional bond,
I feel like in this situation, we're not necessarily arguing
against adoption or surrogacy in itself, we're just sort of
pointing out the emotional differences.
But wait, I mean, it's easy to break everything down
to numbers and say "Oh, we have contracts,"
like you're buying or selling a car but there are underlying emotions,
I mean, you're dealing with people, these are not objects to be bought and sold.
Alright. What about Andrew's 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 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 is... adoption is not according to...
Is adoption baby selling?
Well, 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 I should be able to bid for a baby?
I'm not... Sure! It's a market, I feel the extent to which it's been applied
and 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, yeah, I mean, 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 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 enforceable in the court.
Not in the court, no.
Who would like to turn on one side or the other? Yes.
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, he has a daughter,
he donated his sperm to a lesbian couple in Oklahoma and he has 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...
Yes, 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 a man going into a sperm bank,
looking at pornography, 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 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 enforceable.
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 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 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 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 acknowledged this, right? What does 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 brings 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 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 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 infertility specialist in Virginia named Cecil Jacobson.
He didn't have a donor catalogue because unknown to his patients,
all of the sperm he used to inseminate his patients came from one donor,
Dr. 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.
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正義 第五集 徵兵 代理孕母 (Government Conscription and Surrogate Motherhood)

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Jessica Yang 發佈於 2013 年 12 月 18 日
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