Surrogacy Contracts and Inalienable Rights:

A Rothbardian Analysis

Roderick T. LongPhilosophy, Auburn University | Molinari

Institute

Surrogacy Contracts

A surrogate agrees to carry a pregnancy to term and then surrender the resulting baby to a new guardian

The baby may be the genetic offspring of the surrogate, the prospective guardian, both, or neither

Surrogacy Contracts

Should surrogacy contracts be:

• allowed and enforced?

• allowed but not enforced?

• forbidden?

Surrogacy Contracts

Reason to allow and enforce surrogacy contracts: freedom of contract

Reason to forbid, or else to allow but not enforce, surrogacy contracts: bodily inalienability

Surrogacy Contracts

Rothbardians embrace both freedom of contract and bodily inalienability What solution should they favour?

Contract Rights

Mistake to start with presumption of enforceable contracts and then look for grounds for non-enforcement in special cases

Contract is not a basic right

Promising to do something does not ordinarily license use of compulsion against the promisor

So what needs justifying is enforcement

Title-Transfer Theory of Contract

▪ Murray N. Rothbard, The Ethics of Liberty, 1982; 2nd ed. 1998

▪ Williamson Evers, “Toward a Reformulation of the Law of Contracts,” Journal of Libertarian Studies I.1 (1977)

▪ Randy Barnett’s “Contract Remedies and Inalienable Rights,” Social Philosophy & Policy IV.1 (1986)

Title-Transfer Theory of Contract

Contract rights are rooted in property rights

You transfer to me the title to your property X, on condition that I do Y for you

Title-Transfer Theory of Contract

If I don’t do Y for you, the condition isn’t met

Ownership of X (along with, presumably, damages for your temporary loss of X) reverts to you

Whence Title-Transfer?

But the right to transfer property titles isn’t a basic right either; it needs grounding too

If I give or sell you my copy of Ethics of Liberty, two things happen in the moral universe:

Whence Title-Transfer?

a) my using the book without your authorisation passes from the permitted to the forbidden category

b) your using the book without my authorisation passes from the forbidden to the permitted category

Whence Title-Transfer?

Yet our moral obligations – what we are morally forbidden, permitted, or required to do – are not the products of our wills

Moral obligations are grounded in natural law and cannot be simply wished into or out of existence

Whence Title-Transfer?

How, then, can I, by giving you my book, bring into existence a new obligation for myself (not to use the book without your permission) and cause one of your obligations (not to use the book without my permission) to vanish?

Whence Title-Transfer?

The right to transfer property titles cannot be taken for granted

It must be grounded in the basis of property itself: self-ownership

It is alienability, not inalienability, that needs justification

Whence Title?

Louis Wolowski and Émile Levasseur, in an 1864 article praised by Rothbard:

“If man acquires rights over things, it is because ... he spreads over external nature ... and makes it his own. ... It is his because it has come entirely from himself .... Before him, there was scarcely anything but matter .... The producer has left a fragment of his own person in the thing which has thus become valuable, and may hence be regarded as a prolongation of the faculties of man acting upon external nature. ...

Whence Title?

... As a free being he belongs to himself; now, the cause, that is to say, the productive force, is himself; the effect, that is to say, the wealth produced, is still himself. ... Property, made manifest by labor, participates in the rights of the person whose emanation it is; like him, it is inviolable so long as it does not extend so far as to come into collision with another right ....”

Whence Title?

The material we transform through labour becomes part of us in the same way that the particles we eat, drink, and inhale become part of our bodies – instruments of our ongoing purposes

My duty to respect your property is simply an extension of my duty to respect you

Whence Title?

In building a hut I do not create a new, previously nonexistent basic obligation on the part of others not to appropriate my hut

I simply extend the boundaries of my self, relying on others’ preexisting obligation not to appropriate me

Whence Title-Transfer?

Likewise, in giving you my hut I do not destroy one of your basic obligations and create a new basic obligation of my own

I simply transfer the hut from the boundaries of my self to the boundaries of your self, so that my obligation not to appropriate you now applies to it

Whence Title-Transfer?

Title-transfer is possible because I can alienate external property from myself by ceasing to use it as an instrument of my ongoing purposes

Hence alienability, hence the legitimacy of contract

But I cannot alienate from myself anything that is still incorporated within me – cannot, e.g., sell my blood while it is still in me

Hence bodily alienability

Contracts, Enforceable and Otherwise

Two ways of enforcing contracts:

• compel the contracting party to do what she agreed to do (“specific performance”)

• compel the contracting party to pay back value received plus damages

Contracts, Enforceable and Otherwise

In cases of contracts for personal services or bodily contents, specific performance is forbidden – but requiring repayment plus damages (= external property) is not

Upshot for Surrogacy Contracts

Whether one regards the surrogate’s right to her unborn fetus as her owning the fetus, or as her having guardianship over the fetus, she cannot alienate that right while the fetus is still inside her; the prospective guardian cannot adopt it until it is born

Upshot for Surrogacy Contracts

Hence the surrogate retains:

a) the right to abort the fetus (either on inalienable self-defense grounds, if it is a person, or as her property, if it is not a person) and discontinue her incubation service

Upshot for Surrogacy Contracts

And the surrogate also retains:

b) the right to carry the fetus to term and then refuse to give it up for adoption (since it is still hers up to that point)

Upshot for Surrogacy Contracts

But the surrogate does not have:

c) the right to accept money on condition that she hand over a child, and then refuse to meet the condition while also refusing to return the money

Upshot for Surrogacy Contracts

Therefore: surrogacy contracts are legitimately enforceable if interpreted as binding the surrogate to pay damages in the event of non-performance, but not if interpreted as binding the surrogate to specific performance

THE END