Week 3 Reading/Lecture Notes
Week 3 Reading/Lecture Notes Philosophy 341
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This 10 page Class Notes was uploaded by Hannah James on Thursday September 17, 2015. The Class Notes belongs to Philosophy 341 at University of Wisconsin - Madison taught by Dan Hausman in Fall 2015. Since its upload, it has received 52 views. For similar materials see Contemporary Moral Issues in PHIL-Philosophy at University of Wisconsin - Madison.
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Date Created: 09/17/15
Philosoth 341 Readings Surrogate Motherhood Week Three John Locke Of the State of Nature Men are naturally in a state of perfect freedom to order their actions and dispose of their possessions and persons as they see fit so long as it lies within the bounds of nature and does not infringe on the will of another man Men are also in a state of equality where no power or judgment of one man is above another 0 Unless God by an evident and clear appointment gives one man an undoubted right to dominion and sovereignty Though man has a natural state of freedom to dispose of his person or possessions he does not have the freedom to destroy himself or any creature in his possession 0 Unless some nobler use than its bare preservation calls for it The state of nature has a law of nature to govern it 0 Reason which is that law teaches that although we are free no one ought to harm another in his life health liberty or possessions because we are God s creations Unless his life is at stake a man should do everything he can to protect others and may not take away or impair the life of another unless it is to do justice to an offender Every man has a right to punish transgressors of the law of nature in order to prevent its violation for the law like any other law would be useless if no one could execute it 0 If any one may punish another for evil deeds everyone may do so I Naturally there is no jurisdiction over one another in this state of perfect equality and everyone has a right to uphold the law If a man has power over another he cannot use it to execute his feelings or will only to retribute the criminal in a way that is proportionate to his transgression 0 This is the only reason to do harm to another man and it is called punishment A person who breaks the law of nature declares himself to live by another set of rules that that or reason and equity which God created for the security of men 0 Thus he becomes a danger to mankind 0 Any one has a right to punish this man to make him repent and create an example from him so the law will not be broken again I And in the case and upon this ground every man hath a right to punish the offender and be executioner of the law of nature This may seem a strange doctrine but tell me by what right any prince or state can punish an alien for any crime he commits in their country 0 Their laws do not pertain to a stranger they don t speak about him nor is he bound to listen to them I The legislative power of the ruler has no power over him 0 If by the law of nature every man cannot punish offenses against it how can the magistrates of any community can punish an alien since they have no more power than what every man naturally may have over another Besides the crime which consists in violating the law a man declares himself to quit the principles of human nature 0 In this there is often injury done to someone I He who received damage can punish the offender like any other man and can seek reparation from him Any criminal who sheds blood by man his blood shall be shed ex Cain Bible Everyone may exact judgment but men cannot judge their own cases or cases of their friends for they will not be objective God has appointed government to prevent impartiality and Locke grants that government is the proper remedy for this 0 But he reminds us that absolute monarchs are men too and that a form of government with an absolute monarch is worse than the state of nature I In an monarchy one man can judge his own case and may do to all his subjects whatever he pleases and no one has the freedom to question him I In nature men are not bound to submit to the unjust will of another and the unjust are answerable for their actions to the rest of mankind It is often asked where are or ever where there any men in the state of nature 0 All rulers of independent governments in the world are in a state of nature I So the world never was nor ever will be without a number of men in that state Men may make promises and agreements while still being in the state of nature they just cannot agree mutually to enter into one community and to make one body public All men are naturally in that state and remain so until they make themselves members of some politic society JCS Sorkow Opinion in the BabvM Case 10 to 15 percent of all married couples are involuntarily childless 3X 20 years ago 0 The demand for assisted fertilization shows the importance people attach to having a child that is genetically theirs reproduces blood lines furthers generations etc 0 Adoption is often considered but is deemed impractical age availability etc One alternative method of reproduction is in vitro fertilization wife s egg is removed and introduced to the husband s sperm then placed back in the wife Another is arti cial insemination sperm is introduced to a third party s egg 0 Neither of the foregoing methods involves genetic manipulation only conception gestation and birth Surrogacy laws are still undefined and unclear The court can only decide on legal principles alone and must not manage morality 0 It is to examine what law there is and apply it to the fact proven in a case In this case William Stern was born in Berlin Germany on January 27 1946 His parents were the sole surviving members of his family to escape the Holocaust I His father died when the boy was twelve years of age leaving his mother as his only surviving relative I With the death of his mother in 1983 Mr Stern became the only surviving member of all branches in his family Elizabeth Stern s mother is in ill health and her brother unmarried live in East Lansing I The Sterns had discussed having children prior to and after their marriage but mutually concluded that until Mrs Stern39s pediatric residency was completed her time to devote to family would be inadequate and thus unfair to the child Mrs Stern was diagnosed with multiple sclerosis I There is no known treatment for the disease I The Sterns learned that the disease would be exacerbated during pregnancy I Could cause loss of hearingvision loss of bladder control paralysis etc The Sterns concluded that she would not risk debilitating illness by becoming pregnant I The current knowledge of the disease says that exacerbation during pregnancy is remote but in the late 197039s the opposite was the prevailing view I The Sterns decided to research surrogacy Mary Beth and Richard Whitehead filed for bankruptcy and Richard Whitehead is a known alcohol abuser I Mary Beth calls this abuse his problem and does not seem to think it affects the family unit or its security Baby M was born in 1983 and seems to be fully and normally developed Mary Beth Whitehead applied and was accepted as a surrogate volunteer I She tried unsuccessfully to surrogate for one couple before she met the Sterns When the agreement was reached Mary Beth agreed to give up the child so long as she got a yearly photo and letter of the child s progress Mrs Whitehead signed the second version of the contract without legal advice expecting it to be the same as the first The agreement included the following I Mr Stern39s name would appear on the child39s birth certificate I Mrs Whitehead would assume the risks of the pregnancy and child birth I Mr Stern had the right to name the child I In the event of the death of Mr Stern the child would be placed in the custody of Mr Stern39s wife I Mrs Whitehead would not abort the child I Mrs Whitehead would undergo amniocentesis and if the child was found to have a genetic or congenital abnormality it would be aborted if Mr Stern requested it I Mrs Whitehead was to be paid 10000 and all her medical expenses I Under the present medical definition Mrs Whitehead had informed consent as to the procedure 0 She was competent at the time of entering into the contract and was aware of its terms 0 Approximately one month prior to the birth of the child Mr and Mrs Stern learned that Mrs Whitehead had delayed signing the papers acknowledging Mrs Stern39s paternity of the child I Mrs Whitehead nevertheless indicated that she had no intention of repudiating her contract with Mr Stern I Eventually Mr and Mrs Whitehead signed the acknowledgement of paternity 0 When Baby M was born Mr Stern could not hold his newborn daughter because he was not identified as the father I He could only view the infant through the nursery window I Mr Whitehead39s name appeared in the Birth Certificate as the child39s father 0 The information was given to the hospital by either or both of the Whiteheads violating their contract 0 Mrs Whitehead recognized her contract throughout her pregnancy but when the baby was born she refused to honor the contract I When the baby was finally given to the Sterns Mary Beth called them an asked for a one week visit with the baby 0 They agreed but Mary Beth took the 5 day old to Florida to visit her parents 0 After a time with the baby Mrs Whitehead informed the Sterns that she would be keeping it and said that if the law became involved that she would leave the country I When Mr Stern asked to hold her one last time Mrs Whitehead threatened to call the police 0 The Sterns returned later with the police and Mr and Mrs Whitehead snuck out with the child and remained missing for 87 days I During this period of hiding the child saw no doctors and was not immunized against any childhood diseases 0 Mrs Whitehead call Mr Stern on day and threatened to take her own life and the life of the child before he got her I She also threatened to accuse him of molesting her 10 year old daughter I Arguments against surrogacy and the court s opinion on all 0 Protection of child the child will not be protected there is no evidence supporting this argument 0 Exploitation of surrogate The arrangement is made when the desire and intention to have a family exist on the couple s part but the surrogate has an opportunity to consult take advice and consider her act She is not forced into the relationship and she is not yet pregnant 0 Human dignity to produce or deal with a child for money denigrates human dignity The court agreed with this statement and the law of adoption in New Jersey prohibits the exchange of any consideration for obtaining a child The fact is however that the money to be paid to the surrogate is not being paid for the surrender of the child to the father 0 At birth mother and father have equal rights to the child absent any other agreement 0 The biological father pays the surrogate for her willingness to be impregnated and carry his child to term 0 At birth the father does not purchase the child it is his own biological genetically related child 0 He cannot purchase what is already his 0 Applicability of adoption statutes The laws of adoption in this State do not apply to surrogacy contracts 0 The traditional family Surrogacy will undermine traditional notions of family How can that be when the childless husband and wife so very much want a child They seek and intend to have a family 0 Exploitation of lower economic class An elite upper economic group of people will use the lower economic group of women to quotmake their babies This argument is insensitive and offensive to the intense drive to procreate naturally and when that is impossible to use what lawful means are possible to gain a child regardless of economic status 0 Validity of Contract 0 There is now a living child and she is proof of that which the Whiteheads and Mr Stern in concert agreed to do The child was conceived with a mutual understanding by the parties of her future life Now Mrs Whitehead has failed to perform one of her last promises which was to surrender the child and renounce parental rights 0 She has otherwise performed the personal service that she has undertakenthe conception and carrying the child to term 0 It is argued that Mrs Whitehead should have a time period after delivery to determine if she wants to surrender the child Such a rule has been developed in Kentucky 0 To wait for birth to plan and then be told that the child will not come home this idea deeply offends the conscience of this court 0 A person who has promised relies on the concomitant promise of the promisor I This court holds that in New Jersey although the surrogacy contract is signed the surrogate may renounce and terminate the contract until the time of conception 0 However once conception has occurred the parties rights are fixed the terms of the contract are firm I Exception After conception only the surrogate shall have the right to decide to abort the fetus 0 Her decision to abort must comply with the guidelines set forth in Roe V Wade 0 Remedies for Breach of Contract 0 A surrogate parenting agreement is a valid and enforceable contract pursuant to the Laws of New Jersey I The rights of the parties to contract are constitutionally protected under the 14th Amendment of the US Constitution 0 This court further finds that Mrs Whitehead has breached her contract in two ways 1 By failing to surrender to Mr Stern the child born to her and Mr Stern 2 By failing to renounce her parental rights to that child I What are the remedies available to the plaintiff 0 Award of money damages or specific enforcement of the terms of the contract I This court holds that whether there will be specific performance of this surrogacy contract depends on whether doing so is in the child39s best interest 0 Mrs Whitehead has misled the court about her assets and is so emotionally attached to the child that she cannot separate the child s needs from her own 0 She has also declared bankruptcy and has moved constantly in the past few years 0 She has been declared to be an unfit guardian for Baby M and thus custody will go to the Sterns Katha Pollitt The Strange Case of Babv M I It seems in New Jersey a woman can rent her uterus but not her vagina and can get a check for turning over the product to its father 0 This is not babyselling a crime because the man has a desire to procreate and the child is also half his I The women paid to fulfill this desire is only performing a service and thus has no claim on the child I Surrogacy agreements are so unprecedented that the arrangements bear no resemblance adoption custody or others arrangements involving parents and children 0 They bear resemblance to the allsalesfinal style of a usedcar lot 0 While feminists and legal scholars do not agree with the Judge s ruling polls show that most people do 0 This could be because of the horrible impression Mrs Whitehead left during the case or to the ineptitude of her lawyer I He never challenged the horrible image of Mary Beth nor did he question the perfect family image of the Sterns 0 Mrs Stern listed herself as infertile when she only had multiple sclerosis which complicates pregnancy 0 Did she not want kids as much as Mr Stern 0 And does her limited health actually make Mrs Whitehead a better mother despite their income difference 0 The entire trial seemed riddled with stereotypes prejudice calluses etc I Want to clear away some of the foolish things being said in support of the ruling 0 Mary Beth is called a surrogate mother but mother refers to the relationship between a mom and child I Because she supplied the DNA and carried the child like any mother would Mrs Stern is actually the surrogate mother she wants to be the substitute for the child s actual mother 0 This terminology trivializes Mrs Whitehead s role in the birth of the child making her contribution a physical means by which the Sterns desire which is what really mattered was fulfilled I Mr Stern was always referred to as the natural father even though all he did was ejaculate into a jar 0 People say surrogacy is a startling new technological development I It is as simple as a turkey baster and it doesn t involve science but law it s only about the contract I The only new thing is that women can now sign away their rights to children rights that they didn t even have until the 20th century 0 People say surrogacy is the answer to female infertility I Surrogacy only provides men with children as the wives names often don t even appear on the contract 0 Rather than empower women through an act of sisterly generosity maternity contracts make one woman a baby machine and the other irrelevant I These contracts don t need to be limited to men married to infertile women 0 Mrs Stern wasn t infertile and the men don t even need to be married at all why should a man s drive to procreate be dependent on a woman s permission 0 This makes is a limiteduse purchase of a woman s body by a man reproductive prostitution 0 So What A woman has a right to control her body I The issue is not whether a woman can bear a child for whatever reason she likes but whether she can legally promise to sell that child I Maternity contracts would actually decrease women s rights because now men can control women s choices during pregnancy force an abortion force a caesarian prohibit painkillers etc 0 He could also possible sue her if she s negligent miscarries or has a defective baby The exchange of money compromises the right health or life because the risk of coercion is great that s why you cannot sell your kidney 0 A woman cannot know what the pregnancy will mean for her health or her ability to have children later so how is it different 0 We cringe at Asian practices to pay men to have vasectomies to use their shortsightedness to deprive them forever of something so how is this different The law cannot protect women from being coerced into having children by their husbands their family etc all to put food on the table You cannot promise in contracts involving human feeling because you cannot know ex engagements are broken divorces happen etc 0 Fatherhood and motherhood are identical The proper pair to sperm donation is egg donation and although there are genetic halves carrying a child is not like a sperm donation We cultivated Mr Stern s desire to procreate but not Mrs Whitehead s desire to nurture 0 A man who fights for custody for a child he s never seen or touched is sane but a woman who carried a child for nine months and loves it is insane this makes no sense 0 Women need more options not fewer Why should women be able sell children to the highest bidder because of financial struggle you can put older kids up for adoption so why not sell them too 0 EX a man tried to sell his 4 year old to her dead mother s parents for 100000 Women get another job that pays 150 an hour that could damage their health or kill them and force them to allow strangers to dictate what they do with their body this is not opportunity 0 People are going to do it anyway shouldn t they be protected Only 500 women have signed up to be a surrogate so it is not a valid practice accepted by many humans thus making it illegal would not be futile 0 Most surrogates have been pleased with their experience Baby M is just a hard case making a bad law Regulation might make contract motherhood less haphazard but there is no way it can be made anything other than what it is an inherently unequal relationship involving the sale of a woman 39s body and a child Also the parents are not the only people involved 0 What about a surrogate s other kids They sit and watch their mother carry a child their halfsibling and then just sell it 0 Mom loves you no matter what only your baby sister has a price tag 0 What about the contract child Adoption has horrors but nothing compared to this 0 Your mother loved you so much that she wanted to keep you but we took you away because a deal s a deal and she was a terrible person anyway 0 Surrogacy fills a need there s a shortage of babies for adoption and people have the right to a child 39 The shortage is really only of the perfect newborn healthy white babies 0 You don t have the right to a child you only have to right to try to have a child 39 Goods can be distributed according to the ability to pay or a need People can t Rulin of the New J erse Su reme Court 0 The contract providing for this case is called a quotsurrogacy contractquot 0 The natural mother inappropriately called the quotsurrogate motherquot 0 We invalidate the surrogacy contract because it con icts with the law and policy of this State 0 We find the payment of money to a quotsurrogatequot mother illegal perhaps criminal and potentially degrading to women 0 Although in this case we grant custody to the natural father the evidence having clearly proved such custody to be in the best interests of the infant we void both the termination of the surrogate mother39s parental rights and the adoption of the child by the wifestepparent 0 We thus restore the quotsurrogatequot as the mother of the child 0 We find no offense where a woman voluntarily and without payment agrees to act as a quotsurrogatequot mother provided that the contract is not legally binding 0 Under current law however the surrogacy agreement before us is illegal and invalid 0 Facts 0 The trial court claimed the surrogacy contract was valid but devoted most of its time to the best interests of the child I This is inconsistent as the valid contract already said that the child s best interests would be served by the Sterns 0 Invalidity and Unenforceability of Surrogate Contract 0 The contract is invalid because it directly con icts with existing statutes and with public policies of New Jersey 0 Constitutional Issues 0 Both parties argue their cases through the right of privacy the right to procreate and the right to the companionship of one39s child I These rights come from the fourteenth amendment or the ninth amendment Custody 0 Custody goes to the Sterns because it is what s best for Baby M Conclusions 0 We have found that our laws do not permit the surrogacy contract used in this 02186 Nowhere however do we find any legal prohibition against surrogacy when the surrogate mother volunteers without any payment to act as a surrogate and is given the right to change her mind and to assert her parental rights
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