Babies for sale - New Birth Technologies call for rethinking the definition of family and individual

Public Interest, Spring, 1993 by Robin Fox

Looking to the Constitution

Thus any such contract must first get over the hurdle of whether or not it is "void as contrary to public policy." Even if it makes it past that test, the issue of "specific performance" is still open. But there is yet another hurdle. Such a contract may still be void if it infringes one or other of the parties' constitutional rights. What relevant constitutional issues might the surrogate mother cases raise? This has been much discussed but boils down essentially to three issues: the constitutional prohibition of slavery (the Thirteenth Amendment and Anti-Peonage Act); the "right to privacy" derived from the Fifth Amendment and applied, for example, to a woman's right to abortion in the famous Roe v. Wade case; and the equally derivative "right to procreate" with its corollary the "right to marry." The "right to procreate" is ambiguous insofar as it does not specify whether it extends automatically to custody rights over the results of its exercise. This case was to test just how far a right to procreate went. Then there is the mother's "right to the companionship of her children." And we could go on.

The fact is that often these basic constitutional rights (or basic rights derived from the Constitution) seem to be obscure or in conflict. They only become definitive through court rulings in specific cases. And these rulings can appear to conflict in turn. Much ingenious ink is spilled by eager students in law journal "notes" in attempts to reconcile the varying interpretations of the Constitution. For our purposes it is enough to note that the contract and its enforcement have to face the constitutional hurdles mentioned. Some commentaries, for example, have insisted that since the child is being given up to its father, it is not being enslaved, and therefore the Thirteenth Amendment is not infringed. But this overlooks the issue of whether the contract effectively enslaves the mother. The whole issue is muddied by the fact that family relationships have always been treated by all courts as special cases: Thus children are, according to some ultra-liberal critics, effectively enslaved to their parents with the acquiescence of the courts, and marriage contracts are treated differently from ordinary commercial contracts.

As I have mentioned, one of the most interesting aspects of the surrogate parenting issue is precisely this blurring of what have traditionally been separate areas: family relationships and contractual commercial relationships. The writers of "surrogate parenting" contracts seem to want to have it both ways: They want the contracts upheld as commercial documents, and at the same time they want constitutional protections for the privileged "parental" (i.e., non-commercial) status of the "father."

The combination of unprecedented consequences of non-coital reproductive techniques and the clash of principles in contract versus motherhood, as well as the specifics of the human drama in New Jersey, was what I believe made the Baby M case so intensely interesting to the world. We were not just deciding the fate of one baby, but perhaps getting close to redefining the nature of the family, and even the individual, in a world of Lockean contractual relations gone haywire.