THE FACTS OF THE CASE: Elizabeth Stern was not infertile, but had multiple sclerosis and she and her husband William Stern were worried about the potential health implications of pregnancy, including temporary paralysis, and transmitting genes that might put a child who shared them at risk of developing the same illness. The Sterns and Mary Beth Whitehead entered into a “surrogacy contract,” according to which Whitehead would be artificially inseminated with Stern’s sperm, and relinquish her parental rights in favor of the Sterns, in return for $10,000, and possibly expenses. On March 27, 1986, Whitehead gave birth to a daughter (Baby M). She managed, initially, to get a birth certificate naming the infant Sara Elizabeth Whitehead.
Three days after the birth, the infant was handed to the Sterns, who renamed her Melissa Elizabeth Stern. However, within three days of transferring physical custody to the Sterns, Whitehead went to them and demanded that the baby be given back to her, allegedly threatening suicide. The Whiteheads, though claiming Mary Beth Whitehead was suffering a debilitating post-partum bladder infection at the time, kidnapped the infant, and left New Jersey, taking the infant with them. After some court battles, visitation was awarded in an attempt to create the best situation for the child as well as satisfying all parties.
The Case of Baby M is a unique and difficult case because it pits the law and societal norms versus human nature and human rights. Before one can begin answering the question as to whether the outcome was ethical, just, or even fair, all points of view and ethical principles must be taken into consideration in order to reason with clarity. In addition to consequentialism/utilitarianism, deontology, and virtue ethics the facts need to be considered in conjunction with the law, society, and human nature/rights.
Justice and fairness is largely determined by the perception of the process, organization, or outcome. In this way, it is not unreasonable to assert that being denied rights is largely unfair and unjust. The adoptive parents cannot have children which is a terribly real reality for people and absolutely unfair. The biological mother, too, is denied her child when natural and common biological impulses cause her too much pain to bear. And even after the case is put to rest with visiting rights, there is no way any party is as happy as they could be. Additionally, the situation Baby M was put into is incredibly unfair in that every child should have the best possible environment with which to grow so they may, in turn, try to be happy. And finally, the very concept of displacing a baby at birth and giving it away to adoptive parents does not seem to be fair or justice. On all accounts, it is difficult to argue that anything in this situation is fair or just.
Pure consequentialism dictates that people are “morally required to perform the act with the best consequences” – or rather, the act “with the very best outcome”. In this frame of reasoning, the consequences rather than the act determines right and wrong. In this particular case, I am not convinced that consequentialism in a strict interpretation is the best way to reason. The consequences, considered at every point, are difficult to determine and difficult to determine which is the very best outcome. No matter the outcome, there will still be a couple unable to have children and who cannot have custody of Baby M. And there will be a mother who cannot see or have custody of her birth child.
Utilitarianism is a more useful tool in this situation in that it has a hedonistic-type method of weighing pleasures of all parties involved. In this way, utilitarianism holds that “actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. By happiness is intended pleasure and the absence of pain” (John Stuart Mills, 4). This principle is quite an improvement from strict consequentialism and seems to be the underlying principle in the surrogacy process where the goal is to promote happiness for all parties. But the flaw in both utilitarianism as well as the case is that the consequences are unknown and cannot be known with certainty so when one party (in this case, the biological mother) regrets the commitment, much pain is produced. Although there is a contract to solidify the agreement, but where the contract protects the adopting party, but provides “no corresponding provision for securing the peace of mind of the surrogate” (Anderson, 84). In the application of the law and the contract, the surrogate mother’s wellbeing is not considered so the case does not truly utilize utilitarianism, though it would seem to be it’s goal. But even if there were a provision for the surrogate mother to keep the baby, there is unhappiness for the adoptive parents. One could argue that utilitarianism seeks to maximize pleasure while avoiding the most pain, so in this way there is a solution to have some sort of shared custody, but that does not seem to be what either party would ideally want so it seems ultimately unrealistic. Ultimately, the best outcome would be if the surrogacy would not happen whatsoever.
In considering quite a different point of view, deontology judges right and wrong based on actions rather than consequences. From here, one could reason that the surrogacy should not have occurred either. Not because the act of having someone else’s child for them out of altruism is a bad act, but the act of commodifying birth and children in general seems to be a grotesque notion in general. But, as with consequentialism, there is not one simple conclusion anyone can draw – even those operating within the same ethical principle. Deontologists, especially those reasoning within a legal point of view, would argue that because the contract was agreed upon, the law would dictate that the biological mother must deal with the consequences and honor the contract (Constantin, 1). In this latter conclusion, those trying to reason clearly and with all party’s best in mind, we are no closer to a decision than with consequentialism. Plus, legal reasoning is something of a pseudo-ethic in that laws are not necessarily right, moral, or just (Paul and Elder, 13-14). But the former conclusion may provide with some sense in this situation and deserves some further investigation – an unusual opinion of deontology for me to be sure!
The very first reaction to this case is often a polarized knee-jerk reaction with one side declaring the surrogate ought to obey the law and contractual agreement. The other side feels that the biological mother ought to be considered and may even argue that the surrogacy deal in general is unethical or immoral. An important point to note is that the act of surrogacy is an attempt to right natural or perceived unfairness. Some people are unable to have children, a natural and strong human need. Some people are willing to carry a child for them, generally out of altruism than monetary needs (Anderson, 86). So, as a point of exchange, society and the law has rigged up a system where this un perceived unfairness can be remedied through surrogacy and adoption. And while the law is catering to the couple who cannot have a child on their own, they seem to disregard the biological mother. With that in consideration, the ethical question has been confronted with an economical one when these “voluntary exchanges among individuals produce benefits for the parties involved (Younkins, 1). But in this case, it does not benefit all parties. So with the biological mother’s reaction, it would seem the legal solution fails to address the human nature.
My favorite philosopher, David Hume, was a master of human nature and found that people, although inherently flawed, possess a natural moral sense. Hume and Adam Smith, close friends, were together in the fact that “right and wrong does not emanate from god’s will” from law or pure reason – instead, “morality [is] an eminently practical and human phenomenon rather than one based on any kind of sacred, mysterious, or otherworldly authority” (Rasmussen, 88). Others in Adam’s orbit, such as Francis Hutcheson, also claimed that people had “an innate sixth sense” to feel what is the right thing to do (Younkins, 2). This human’s sixth sense works with sympathy and empathy through an induction process to develop one’s own moral sense. To utilize this inherent skill, the Scottish pair assert that we ought to adopt the common point of view, “that is, we must take into account the effects of a person’s actions and character traits not just on ourselves but also on those who have any commerce with the people we consider” (Rasmussen, 89). And although our normal everyday experiences do not hold normally produce such extreme circumstances, there is still sentiment towards both the adopting family and the biological mother.
Adam Smith argues that the basis for morality is sympathy, and “by sympathy, Smith means harmony of any emotion ranging from compassion to pity or joy” and people have “an innate desire for mutual sympathy of sentiments and gain pleasure from seeing their own sentiments reflected in others” and vice versa (Youkins, 2). Smith also describes “an impartial spectator” akin to Rousseau’s general will or Kant’s noumenal self and assists individuals in judges actions and, assuming man can act on this and every person has the same sort of sympathetic conscience then everyone has the capacity to judge the world around them (Youkins, 3). The actions and judgements happens in a forum of the market where, when good arises “we have to decide what kind of good it is and how it should be valued. This requires a moral judgements that economists, at least in their role as social scientists, hesitate to make” (Sandel, 127). In the decision to set up the surrogacy system, we, as a society, were attempting to solve a deeply troubling problem – but now, as we see it applicated, must make that decision as to whether it is a commodity we want and, “we must also ask whether market norms will crowd out nonmarket norms, and if so, whether this represents a loss worth caring about” (Sandel, 130). Adding to the lineup of Scottish Philosophers in this paper, Adam Ferguson insisted that “Civilization is the result of human action but not of human design” and that “progress is achieved through coordination and cooperation” through social mechanisms (Koopman 156). But seeing as the mechanisms are so complex, and the human mind is so fallible, people cannot understand and process all the information involved – something of a Herbert Simon type of limited rationality. These mechanisms, as such, have the possibility of not being ethical or moral systems.
Societal norms regarding pregnancy and birth are often strong felt passion and deeply sentimental. The surrogacy process, however, is one that “substitutes market norms for some of the norms of parental love” because the whole process revolves around creating conditions where the woman’s labor and the child are conditional and favors the adopting parents, yet dismisses the birth mother and the child (Anderson, 76). The value social norms assigned to motherhood, children, and their relationship together are degraded and devalued as economic norms. At its base, “when women’s labor is treated as a commodity, the women who perform it are degraded. Furthermore, commercial surrogacy degrades children by reducing their status to that of commodities” (Anderson, 75). Additionally, when the biological mother in the case no longer wishes to follow through with the contract, she and the baby are not only treated as a commodity, but an involuntary commodity! A Brave New World sort of hatchery where the formerly sacred process of childbirth is reduced to nothing more than a process.
Considering our trio of Scottish philosophers, we can view this case from the point of view of human nature and human interaction with the markets. Sympathy with the mother and child, something the contractual agreement fails to do in a major way, When the process breaks societal norms in such a way, it begs to be evaluated because, at this time with these conditions, it is an incredibly immoral. Adams, Hume, and Ferguson would agree that the markets and human sense have the capacity for morality and can judge these deeply inhuman moral and ethical implications. Utilizing utilitarianism as the best possible system to judge this case, the outcome, visitation between the adoptive parents and the biological mother, is probably one of the best outcomes possible – but the best overall would be no surrogacy whatsoever assuming no better contractual agreements were possible.
Anderson, E. S. “Is Women’s Labor a Commodity?” Philosophy & Public Affairs, Vol. 19, No. 1 (Winter, 1990), pp 71-92.
Constantin, E. “Deontology in Public Administration” Spiru Haret University.
Koopman, C. “Morals and Markets: Liberal Democracy through Dewey and Hayek” Journal of Speculative Philosophy, Vol. 23, No. 3 (2009), pp. 151-179.
Rasmussen D. C. (2017) The Infidel and the Professor: David Hume, Adam Smith, and the Friendship that Shaped Modern Thought. Princeton University Press: New Jersey.
Sandel M. J. “Market Reasoning as Moral Reasoning: Why Economists should Re-engage with Political Philosophy” Journal of Economic Perspectives, Vol. 27, No. 4 (Fall 2013), pp 121-140.
Youkins, E. W. “Adam Smith’s Moral and Economic System” Le Quebecois Libre Montreal, No 153, April 15, 2005.
Featured Image: Robert Warren Harrison, Danse Macabre (1918)