Children as Products
Ellen Goodman’s column about the outsourcing of industrial pregnancy - by fact of biology to a 100% female workforce - gives a microcosm of much that is wrong with our legal system and culture.
As one woman put it, "We give them a baby and they give us much-needed money. It's good for them and for us." A surrogate in Anand used the money to buy a heart operation for her son. Another raised a dowry for her daughter.
Nevertheless, there is - and there should be - something uncomfortable about a free-market approach to baby-making. It's easier to accept surrogacy when it's a gift from one woman to another. But we rarely see a rich woman become a surrogate for a poor family. Indeed, in Third World countries, some women sign these contracts with a fingerprint because they are illiterate.
For that matter, we have not yet had stories about the contract workers for whom pregnancy was a dangerous occupation, but we will. What obligation does a family that simply contracted for a child have to its birth mother? What control do - should - contractors have over their "employee's" lives while incubating "their" children? What will we tell the offspring of this international trade?
Looking closely at this trade in human beings, the contracting of the use of womens’ bodies and lives as temporary incubators of a product, a human child, has the potential to help understand what happens, more generally, when people become objects in commerce.
In this case there are two distinct people who are transformed into commodities, the women who become pregnant and the children after they are born. No matter how well intentioned the contractors, the fact is that both become items of commerce, they become subject to the worst obscenities of contract law in all its pretended impartiality.
The anger and discomfort of people who may have relatively pure motives in initiating the transaction at having this pointed out doesn’t change that fact. Even if they, themselves, might never press the issues stemming from these contracts to their worst ends, more than just reminiscent of the worst of legalized slavery, it is just about certain that others will and that with the crop of judges we’ve got now, things will just about certainly go to the bottom fast.
Contracts seem to have replaced the concept of inalienable rights in modern morality and, so, law. Doesn’t the idea that “consent” in an actual or ‘implied’ contract is the only relevant issue in human interactions negate the idea that human rights are inherent and inalienable? How can someone’s inalienable rights be rendered non-existent even by signing a contract with a signature, never mind with a fingerprint as Goodman describes? How can an individual lose their most basic rights by legal agreement? What dangers does allowing people to trade away their rights pose for the rest of humanity?
How can anyone pretend that a, powerless, illiterate person, motivated by the most horrible poverty and need, perhaps in a country with even worse laws than here, is an equal party in a contract, when her consent is to an agreement formed by people with resources, sophistication and with the knowledge of a legal system that will willingly be gamed to suit their ends? *
None of that contractual agreement with the woman whose body is rented** addresses the child who is the product being produced and their own, inherent, inalienable rights. Neither the woman who is compelled by poverty to produce the child nor those who see it as a product would seem to be dependable guardians of their rights, though in some cases either one side or both may have only the child’s rights and well-being in mind. You have to wonder if the buyers weren’t satisfied with the product how many of them might have their best intentions turn bad. And isn't the law supposed to address the worst cases?
All of this is profoundly troubling. It makes apparent and compelling the consequences and complex range of problems that come from the law treating people and their lives as objects of trade. Our society is increasingly urged to give up any legal protection in favor of throwing us all up to be winnowed by the winds of commerce. We are increasingly led to consider the lives, as well as the rights and well-being of those blown away as mere chaff.
I don’t know what left anyone else belongs to but my left is unalterably opposed to allowing that.
* I suspect that those judges who consider the lives of the people put at risk as more or even just equally important to the sacred contract are an endangered species. And trade groups and lobbyists are always at the ready with an ad campaign to get unprofitable laws changed when those kinds of decisions are made.
** I think it was Katha Pollit who pointed out that it's illegal for women to rent out their Vaginas for a half hour but legal for them to rent out their entire bodies for nine months.