The term "Kafkatrapping" describes a sort of ambiguous accusatory argument that attempts to use a person's denial of guilt as further evidence of guilt.
The term was coined in a 2010 paper by author and open source software advocate Eric Raymond and is a reference to Franz Kafka's novel The Trial "in which the protagonist Josef K. is accused of crimes the nature of which are never actually specified, and enmeshed in a process designed to degrade, humiliate, and destroy him whether or not he has in fact committed any crime at all. The only way out of the trap is for him to acquiesce in his own destruction; indeed, forcing him to that point of acquiescence and the collapse of his will to live as a free human being seems to be the only point of the process, if it has one at all."(1)
A quote from The Trial sums this up nicely.
"You are considered guilty. Your case will probably not even go beyond a minor court. Provisionally at least, your guilt is seen as proven." "But I'm not guilty," said K., "there's been a mistake. How is it even possible for someone to be guilty. We're all human beings here, one like the other." "That is true," said the priest, "but that is how the guilty speak.""
Raymond describes numerous variations of the kafkatrap. They are:
Model A:
“Your refusal to acknowledge that you are guilty of {sin,racism,sexism, homophobia,oppression…} confirms that you are guilty of {sin,racism,sexism, homophobia,oppression…}.”
The Model C:
“Even if you do not feel yourself to be guilty of {sin, racism, sexism, homophobia, oppression…}, you are guilty because you have benefited from the {sinful, racist, sexist, homophobic, oppressive,…} behavior of others in the system.”
The Model D:
“The act of demanding a definition of {sin, racism, sexism, homophobia, oppression} that can be consequentially checked and falsified proves you are {sinful, racist, sexist, homophobic, oppressive}.”
The Model L:
“Your insistence on applying rational skepticism in evaluating assertions of pervasive {sin, racism, sexism, homophobia, oppression…} itself demonstrates that you are {sinful, racist, sexist, homophobic, oppressive,…}.”
The Model M:
“The act of arguing against the theory of anti-{sin, racism, sexism, homophobia, oppression} demonstrates that you are either {sinful, racist, sexist, homophobic, oppressive} or do not understand the theory of anti-{sin, racism, sexism, homophobia, oppression}, and your argument can therefore be dismissed as either corrupt or incompetent.”
The Model P:
“Even if you do not feel yourself to be guilty of {sin, racism, sexism, homophobia, oppression…}, you are guilty because you have a privileged position in the {sinful, racist, sexist, homophobic, oppressive,…} system.”
The Model S:
“Skepticism about any particular anecdotal account of {sin, racism, sexism, homophobia, oppression,…}, or any attempt to deny that the particular anecdote implies a systemic problem in which you are one of the guilty parties, is itself sufficient to establish your guilt.”
Model T:
"Designated victims of {sin, racism, sexism, homophobia, oppression} who question any part of the theory of {sin, racism, sexism, homophobia, oppression} demonstrate by doing so that they are not authentic members of the victim class, so their experience can be discounted and their thoughts dismissed as internalized {sin, racism, sexism, homophobia, oppression}."
The "White Fragility" Example
White fragility is a term sometimes used by social justice warriors in an attempt to shutdown white people that would dare to oppose their narrative. The term was coined by Robin DiAngelo in a 2011 journal article where she defines it as:
"a state in which even a minimum amount of racial stress becomes
intolerable, triggering a range of defensive moves. These moves include
the outward display of emotions such as anger, fear, and guilt, and behaviors such
as argumentation, silence, and leaving the stress-inducing situation. These behaviors,
in turn, function to reinstate white racial equilibrium. This paper explicates
the dynamics of White Fragility. "
It doesn't take much effort to see that white fragility is essentially a form of the kafkatrap dressed in intellectual lingo.
To do evil a human being must first of all believe that what he’s doing is good, or else that it’s a well-considered act in conformity with natural law. Fortunately, it is in the nature of the human being to seek justification for his actions.
Macbeth’s self-justifications were feeble – and his conscience devoured him. Yes, even Iago was a little lamb too. The imagination and the spiritual strength of Shakespeare’s evildoers stopped short at a dozen corpses. Because they had no ideology.
Ideology – that is what gives evildoing its long-sought justification and gives the evildoer the necessary steadfastness and determination. That is the social theory which helps to make his acts seem good instead of bad in his own and other’s eyes, so that he won’t hear reproaches and curses but will receive praise and honors. That was how the agents of the Inquisition fortified their wills: by invoking Christianity; the conquerors of foreign lands, by extolling the grandeur of their Motherland; the colonizers, by civilization; the Nazis by race; and the Jacobins (early and late), by equality, brotherhood, and the happiness of future generations.
Thanks to ideology, the twentieth century was fated to experience evildoing on a scale calculated in the millions. This cannot be denied, nor passed over, nor suppressed. How, then, do we dare insist that evildoers do not exist? And who was it that destroyed these millions? Without evildoers there would have been no Archipelago.
Michael Sandel: When we ended last time, we were discussing Locke's idea of government by consent, and the question arose, what are the limits on government that even the agreement of the majority can't override? That was the question we ended with.
We saw, in the case of property rights, that on Locke's view, a democratically elected government has the right to tax people. It has to be taxation with consent, because it does involve the taking of people's property for the common good, but it doesn't require the consent of each individual at the time the tax is enacted or collected. What it does require is a prior act of consent to join the society- to take on the political obligation. But once you take on that obligation, you agree to be bound by the majority. So much for taxation.
John Locke on Right to Life
But what, you may ask, about the right to life? Can the government conscript people and send them into battle? What about the idea that we own ourselves? Isn't the idea of self-possession violated if the government can, through coercive legislation and enforcement powers, say you must go risk your life to fight in Iraq. What would Locke say? Does the government have the right to that? Yes. In fact he says in 139, he says, "What matters is that the political authority, or the military authority, not be arbitrary. That's what matters." And he gives a wonderful example. He says, "A, a sergeant, even a sergeant, let alone a general, a sergeant can command a soldier to go right up the face of the cannon, where he is almost sure to die. That the sergeant can do. The general can condemn the soldier to death for deserting his post or for not obeying even a desperate order. But with all their power over life and death, what these officers can't do is take a penny of that soldier's money. Because that has nothing to do with the rightful authority. That would be arbitrary, and it would be corrupt. So, consent winds up being very powerful in Locke, not consent of the individual to the particular tax or military order, but consent to join the government, and to be bound by the majority in the first place. That's the consent that matters. And it matters so powerfully, that even the limited government created by the fact that we have an unalienable right to life, liberty and property. Even that limited government is only limited in the sense that it has to govern by generally applicable laws, the rule of law, it can't be arbitrary. That's Locke.
Consent and Military Conscription
Well this raises a question about consent. Why is consent such a powerful moral instrument in creating political authority and the obligation to obey? Today we begin to investigate the question of consent by looking at a concrete case, the case of military conscription. Now some people say, if we have a fundamental right that arises from the idea that we own ourselves, it's a violation of that right for government to conscript citizens to go fight in wars. Others disagree. Others say that's a legitimate power of government, of democratically elected governments anyhow, and that we have an obligation to obey.
Let's take the case of the, the United States fighting a war in Iraq. News accounts tell us that the military is having great difficulty meeting its recruitment targets. Consider three policies that the U. S. Government might undertake to deal with the fact that it's not achieving its recruiting targets. Solution number 1) increase the pay and benefits to attract a sufficient number of soldiers. Option number 2) shift to a system of military conscription. Have a lottery, and whoever's numbers are drawn go to fight in Iraq. System number 3) outsource. Hire, what traditionally have been called, mercenaries. People around the world who were qualified, able to do the work, able to fight well, and who are willing to do it for the existing wage.
So let's take a quick poll here. How many favor increasing the pay? Huge majority. How many favor going to conscription? Alright, maybe a dozen people in the room favor conscription. What about the outsourcing solution? OK. So there are maybe, two, three dozen.
During the Civil War, the Union used a combination of conscription and the market system to fill up the ranks of the military to fight in the Civil War. It was a system that began with conscription, but if you were drafted and didn't want to serve, you could hire a substitute take your place and many people did. You could pay whatever the market required in order to find a substitute. People ran ads in newspapers, in the classified ads, offering $500, sometimes $1000 for a substitute who would go fight the Civil War in their place. In fact, it's reported that Andrew Carnegie was drafted and hired a substitute to take his place for an amount that was a little less than the amount he spent in a year on fancy cigars. Student Discussion
Now, I want to get your views about the Civil War system, call it the hybrid system, conscription but with a buyout provision. How many think it was a just system? How many would defend the Civil War system? Anybody? One. Anybody else? Two, three, four, five. How many think it was unjust? Most of you don't like the Civil War system. You think it's unjust. Let's hear an objection. Why don't you like it? What's wrong with it? Yes.
Liz: Well by paying $300 for a, to be exempt one time around, you’re really putting a price on the, on valuing human life. And we established earlier that's really hard to do. So they're really trying to accomplish something that really isn't feasible.
Michael Sandel: Good. So, so paying someone $300 or $500 or $1000...
Liz: You're basically saying that's their life is worth to you.
Michael Sandel: That's with their life is worth. It's putting a dollar value on life. That's good. And what your name?
Liz: Liz.
Michael Sandel: Liz. Ah, well, who has an answer for Liz, You defended the Civil War system. What do you say?
Jason: If you don't like the price, then you have the freedom to not be sold or hired, so it's completely up to you. So I don't think it's necessarily putting a specific price on you and if it's done by himself, I don't think there's anything necessarily morally wrong with that.
Michael Sandel: So the person who takes the $500, let's say. He's putting his own price on his life, on the risk of his life, and he should have the freedom to choose to do that.
Jason: Exactly.
Michael Sandel: What's your name?
Jason: Jason.
Michael Sandel: Jason. Thank you. Now we need to hear from another critic of the Civil War system. Yes.
Sam: It's a kind of coercion almost, ah, people who have lower incomes. For Carnegie, he can totally ignore the draft. $300 is a, you know, irrelevant in terms of his income. But someone of a lower income, they're essentially being coerced to draft, to be drafted. Or, umm, I mean it's probably they're not able to find a replacement or...
Michael Sandel: Tell me your name.
Sam: Sam.
Michael Sandel: Sam. Alright, so you say, Sam, that when a poor laborer buys his, accepts $300 to fight in the Civil War, he is in effect being coerced by that money, given his economic circumstances. Whereas Carnegie can go off, pay the money, and, and not serve. Alright. I want to hear someone has a reply to Sam's argument. That what looks like a free exchange is actually coercive. Who has an answer to, to Sam. Go ahead.
Rauel: I'd actually agree with him in saying that...
Michael Sandel: You agree with Sam.
Rauel: I agree with him in saying that it is coercion in, in the sense that it robs individual of his ability to reason.
Michael Sandel: OK. And what's your name?
Rauel: Rauel.
Michael Sandel: Alright, so Rauel and Sam agree that what looks like a free change, free choice, voluntary act is actually it, it involves coercion.
Rauel: It's profound coercion of the worst kind because it falls so disproportionately upon one segment of the society.
Michael Sandel: Good, alright. So, Rauel and Sam have made a powerful point. Who would like to reply? Who has an answer for Sam and Rauel. Go ahead.
Emily: Umm, I just, I don't think these drafting systems are really terribly different from, you know, all volunteer army sort of recruiting strategies. Umm, the whole idea of, you know, having benefits and pay for joining the army is sort of a coercive strategy to get people to, umm, join. Umm, it is true that military volunteers come from disproportionately, you know, lower economic, umm, status, and also, you know, from certain regions of the country where you can use, like, the patriotism to try and coerce people to feel like it's the right thing to do, to volunteer and go over to Iraq.
Michael Sandel: Good. And tell me your name.
Emily: Emily.
Michael Sandel: Alright, Emily says, and Rauel you're going to have to reply to this, so get ready. Emily says, fair enough. There is a coercive element to the Civil War system, when the laborer takes the place of Andrew Carnegie for $500. Emily concedes that. But she says, if that troubles you about the Civil War system, shouldn't that also trouble you about the volunteer army today? And let me, and before you answer, how did you vote on the first poll? Did you defend the volunteer army?
Rauel: I didn't vote.
Michael Sandel: You didn't vote.
Rauel: No.
Michael Sandel: By the way, you didn't vote. Did you sell your vote to the person sitting next to you? No. Alright. So what would you say to that argument?
Rauel: I think that the circumstances are different in that, there was conscription in the Civil War. There is no draft today. And I think that volunteers for the army today have a more profound sense of patriotism that is of an individual choice than those who were forced into the military in the Civil War.
Michael Sandel: Somehow less coerced.
Rauel: Less coerced.
Michael Sandel: Even though there is still inequality in American society. Even though as Emily points out.
Rauel: Yes.
Michael Sandel: The makeup of the American military is not reflective of the population as a whole. Let's just do an experiment here. How many here, umm, have either served in the military or have a family member who has served in the military in this generation, not parents? Family members in this generation. And how many have neither served, nor have any brothers or sisters who have served? Does that bear out your point Emily? Alright, now we need, we need to hear from, most of you defended the idea of the, ah, of the all volunteer military, overwhelmingly. And yet, overwhelmingly, people consider the Civil War system unjust. Sam and Rauel articulated reasons for objecting to the Civil War system. It took place against a background of inequality, and therefore the choices people made to buy their way into military service were not truly free, but at least partly coerced. Then Emily extends that argument in the form of a challenge. Alright everyone here who voted in favor of the all volunteer army should be able, should have to explain, well what's the difference in principle? Doesn't the all volunteer army simply universalize the feature that almost everyone found objectionable in the Civil War buyout provision. Did I state the challenge fairly Emily?
Emily: Yes.
Michael Sandel: OK. So we need to hear from a defender of the all volunteer military who can address Emily's challenge? Who can do that? Go ahead.
Student: The difference between the, the Civil War system and the all volunteer army system is that, in the Civil War you’re being hired, not by the government, but by an individual. And, and as a result, different people'll get hired by different individuals get paid different amounts. In the case of the all volunteer army, everyone who gets hired is hired by the government and gets paid by the same amount. It is precisely the universalization of, ah, of essentially paying your service, paying your way to the army, that makes the all volunteer army just.
Michael Sandel: Emily?
Emily: I guess I'd frame the principle difference slightly differently. Umm, on the all volunteer army it's possible for someone to just, you know, step aside and not really think about, you know, the war at all. It's possible to say, well I. I don't need the money. You know, I, I don't need to have an opinion about this. I don't need to, you know, feel obligated to take my part and defend my country. With a coercive system or, or I'm sorry, with an explicit draft, then, you know, there's the threat, at least, that every individual will have to make some sort of decision, you know, recording military conscription and, you know, and perhaps that way it's more equitable. It's, it's true that, you know, Andrew Carnegie might not serve in any case, but in one, you know, he can completely step aside from it, and the other there's some level of responsibility.
Michael Sandel: While you're there Emily, so, what system do you favor? Conscription?
Emily: I, I would be hard-pressed to say, but I think so because it makes the whole country feel a sense of responsibility for the conflict instead of, you know, having a war that's maybe ideologically supported by a few, but only if there's no, you know, real responsibility.
Michael Sandel: Good. Who wants to reply? Go ahead.
Jackie: Umm, so I was going to say that the fundamental difference between the all volunteer army and then the, the army in the Civil War is that, in the all volunteer army, if you wanna volunteer that comes first, and then the pay is, ah, comes after, where as in the Civil War system, the people who are, who are accepting the pay aren't necessarily doing it because they want to, they're just doing it for the money first.
Michael Sandel: What motivation beyond the pay do you think is operating in the case of the all volunteer army?
Jackie: Like, patriotism for the country.
Michael Sandel: Patriotism. Well what about the...
Jackie: And the desire to defend the country. I mean, there is, there is some motivation in pay, but the fact that, that it’s first and foremost an all volunteer army will motivate them. I think.
Michael Sandel: You think it's better, and tell me your name.
Jackie: Jackie.
Michael Sandel: Jackie, do you think it's better if people serve in the military out of a sense of patriotism than just for that money?
Jackie: Yes, definitely, because the people who, that was one of the main problems in the Civil War, I mean, is that people that you're getting to go in it are, to go to war, aren't necessarily people who want to fight. And so they won't be as good soldiers as they will be had been there because they wanted to be.
Michael Sandel: Alright, what about Jackie's having raised the question of patriotism. That patriotism is a better or a higher motivation than money for military service. Who, who would like to address that question? Go ahead.
Phillip: Patriotism absolutely is not necessary in order to be a good soldier because mercenaries can do just as good of a job of the job as anyone who waves the American flag around and wants to defend what the government believes that we should do.
Michael Sandel: Did you favor the outsourcing solution?
Phillip: Yes sir.
Michael Sandel: And, alright, so let, let Jackie respond. What's your name?
Phillip: Phillip.
Michael Sandel: What about that Jackie? So much for patriotism.
Jackie: If you've someone whose heart is in it more than, more than another person’s, they're going to do a better job. When it comes down to the wire, and there's like a situation in which someone has to put their life on the line, someone who's doing it because they love this country will be more willing to go into danger than someone who's just getting paid. They don't care. They've got the technical skills, but they don't care what happens because they really have, they have nothing, like, nothing invested in this country.
Conclusion
Michael Sandel: There's another aspect though. Once, once we get on to the issue of patriotism. If you believe patriotism, as Jackie does, should be the foremost consideration and not money, does that argue for or against the paid army we have now? We call it the volunteer army, though if you think about it, that's a kind of misnomer. A volunteer army is, as we use the term, is a paid army. So, what about the suggestion that patriotism should be the primary motivation for military service, not money. Does that argue in favor of the paid military that we have? Or does it argue for conscription? And just to sharpen that point, building on Phil's case for outsourcing, if you think that the all volunteer army, the paid army is best because it lets the market allocate positions according to people's preferences and willingness to serve for a certain wage, doesn't the logic that takes you from a system of conscription to the hybrid Civil War system, to the all volunteer army, doesn't the, the idea of expanding freedom of choice in the market, doesn't that lead you all the way, if you followed that principal consistently, to a mercenary army? And then if you say no, Jackie says, no patriotism should count for something, doesn't that argue going back to conscription? If by patriotism you mean a sense of civic obligation.
Let's, let's see if we can step back from the discussion that we've had and see what we've learned about consent as it applies to market exchange. We've really heard two arguments, two arguments against the use of markets and exchange in the allocation of military service. One was the argument raised by Sam and Rauel. The argument about coercion. The objection that, letting the market allocate military service may be unfair, and may not even be free, if there's severe inequality in the society, so that people who buy their way into military service, are doing so, not because they really want to, but because they have so few economic opportunities that that's their, that's their best choice. And Sam and Rauel say there's an element of coercion in that. That's one argument. Then there is a second objection to using the market to allocate military service. That's the idea that military service shouldn't be treated as just another job for pay, because it's bound up with patriotism and civic obligation. This is a different argument from the argument about unfairness and inequality and coercion. It's an argument that suggests that maybe where civic obligations are concerned, we shouldn't allocate duties and rights by the market.
Now, we've identified two broad objections. What do we need to know to assess those objections? To assess the first, the argument from coercion, inequality and unfairness, Sam, we need to ask, what inequalities in the background conditions of society undermine the freedom of choices people make to buy and sell their labor? Question number one. Question number two, to assess the civic obligation patriotism argument, we have to ask, what are the obligations of citizenship? Is military service one of them or not? What obligates us, as citizens, what is the source of political obligation? Is it consent or are there some civic obligations we have, even without consent, for living and sharing in a certain kind of society? We haven't answered either of those questions but our debate today about the Civil War system and the all volunteer army has at least raised them, and those are questions we're going to return to in the coming weeks.
Part II: Motherhood: For Sale
Michael Sandel: Today I'd like to turn our attention and get your views about an argument over the role of markets in the realm of human reproduction and procreation. Now, with infertility clinics, people advertise for egg donors. And from time to time in the Harvard Crimson, ads appear for egg donors. Have you seen them? There was one that ran a few years ago that wasn't looking for just any egg donor, it was an ad that offered a large financial incentive for an egg donor from a woman who was intelligent, athletic, at least 5 ft. 10, and with at least 1400 or above on her SATs. How much do you think the person looking for this egg donor was willing to pay for an egg from a woman of that description? What would you guess? $1000? $15,000? $10? I'll show you the add. $50,000, for an egg. But only a premium egg. What do you think about that? Well, there are also sometimes ads in the Harvard Crimson and other college newspapers for sperm donors. So the market in reproductive capacities is an equal opportunity market. Well not exactly equal opportunity, they're not offering $50,000 for sperm. But there is a company, a large commercial sperm bank that markets sperm. It's called California Cryobank. It's a for-profit company. It imposes exacting standards on the sperm it recruits. And it has offices in Cambridge, between Harvard and MIT, and in Palo Alto near Stanford. Cryobanks marketing materials play up the prestigious source of its sperm. Here is, ah, from the web site of Cryobank, the information. Here they talk about the compensation. "Although compensation should not be the only reason for becoming a sperm donor, we are aware of the considerable time and expense involved in being a donor". So you know what they offer? Donors will be reimbursed $75 per specimen, up to $900 a month, if you donate three times a week. And then they add, we periodically offer incentives such as, such as movie tickets or gift certificates for the extra time and effort expended by participating donors. It's not easy to be a sperm donor. They accept fewer than 5% of the donors who apply. Their admission criteria are more demanding than Harvard's. The head of the sperm banks said the ideal sperm donor is 6 ft. Tall, with a college degree, brown eyes, blond hair, and dimples. For the simple reason that these are the traits that the market has shown the customers want. Quote, quoting the head of the sperm bank, "If our customers wanted high school dropouts, we would give them high school dropouts." So, here are two instances, the market in eggs for donation and the market in sperm, that raise a question. A question about whether eggs and sperm should or should not be bought and sold for money.
Surrogacy Contracts
As you ponder that, I want you to consider another case involving market and, in fact, a contract human reproductive and the human reproductive capacity, and this is the case of commercial surrogate motherhood. And it's a case that wound up in court, some years ago. It's the story of baby M. It began with William and Elizabeth Stern, a professional couple, wanting a baby, but they couldn't have one on their own, at least not without medical risk to Mrs. Stern. They went to an infertility clinic where they met Marybeth Whitehead, a 29-year-old mother of two, the wife of a sanitation worker. She had replied to an ad that the center had placed seeking the service of a surrogate mother. They made a deal. They signed a contract, in which William Stern agreed to pay Marybeth Whitehead a $10,000 fee, plus all expenses, in exchange for which, Marybeth Whitehead agreed to be artificially inseminated with William Stern's sperm, to bear the child, and then to give baby to the Sterns. Well you probably know how the story unfolded. Marybeth gave birth and changed her mind. She decided she wanted to keep the baby. The case wound up in court in New Jersey. So let's take, put aside any legal questions, and focus on this issue has a moral question. How many believe that the right thing to do in the baby M case would've been to uphold the contract, to enforce the contract? And, and how many think the right thing to do would've been not to enforce that contract? So it's about, the majority say enforce, so, let's now hear the reasons that people had, either for enforcing or refusing to enforce this contract. First from those, I want to hear from someone in the majority. Why do you uphold the contract? Why do you enforce it? Who can offer a reason? Yes. Stand up.
Discussion
Patrick: It's a binding contract. All the parties involved knew the terms of the contract before any action was taken. If the voluntary agreement, the mother knew what she was getting into, the, all for intelligent adults, regardless of formal educational or whatever. So, it makes sense that, if you know what you're getting into beforehand, and you make a promise, you should uphold that province in the end.
Michael Sandel: OK. A deal is a deal in other words.
Patrick: Exactly.
Michael Sandel: And what's your name?
Patrick: Patrick.
Michael Sandel: Is Patrick's reason the reason that most of you in the majority favored upholding the contract? Yes? Alright, let's hear, now, someone who would not enforce the contract. What do you say to Patrick? Why not? Yes.
Evan: Well, I mean, I agree. I think contracts should be upheld when, when all the parties and all the information. But, in this case, I don't think there is a way a mother, before the child exists, could actually know how she's gonna feel about the child. So, I don't think the mother actually had all the information. She didn't know the person that was going to be born, and didn't know how much she would love that person. So that's my argument.
Michael Sandel: So you would not, and what's your name?
Evan: Evan Wilson.
Michael Sandel: Evan says he would not uphold the contract because, when it was entered into, the surrogate mother couldn't be expected to know in advance how she would feel. So she didn't really have the relevant information when she made that contract. Ah, who else? Who else would not uphold the contract? Yes.
Anna: Umm. I think, I also think that a contract should generally be uphold, but I think, umm, that the child has an inalienable right to, ah, it's actual mother. Umm, and I think that, if that mother wants it, then that child should have that, the right to that mother.
Michael Sandel: You mean biological mother, not the adopted mother.
Anna: Right.
Michael Sandel: And why is that? First of all tell me your name.
Anna: Anna.
Michael Sandel: Anna. Why is that Anna?
Anna: Umm, because I, I think that, umm, that bond is created by nature is stronger than any bond that is created by, you know, a contract.
Michael Sandel: Good. Thank you. Who else? Yes.
Kathleen: I disagree. I don't think a child has an inalienable right to her biological mother. I think that adoption and surrogacy are both legitimate trade-offs. Umm, and I agree with the point made, umm, that it's a voluntary agreement, ah, an individual made. It's voluntary agreement and I, you can't apply coercion to this argument.
Michael Sandel: You can't apply the objection from coercion to this argument.
Kathleen: Correct.
Michael Sandel: What's your name?
Kathleen: Kathleen.
Michael Sandel: Kathleen, what do you say to Evan, that though there may not have been, Evan, Evan claimed that the, the consent was tainted, not by coercion, but by lack of adequate information. She couldn't have known the relative information, namely, how she would feel about the child. What do you say to that?
Kathleen: I don't think the emotional content of her feelings plays into this. I think, and, you know, in the case of law, and the justice of this scenario, her, her change of feelings are not relevant. If I give up my child for adoption, and then I decide later on that I really want that child back, too bad. It's, it's a trade-off. It's a trade-off that the mother has made.
Michael Sandel: So, a deal is a deal. You agree with Patrick.
Kathleen: I agree with Patrick. A deal is a deal.
Michael Sandel: A deal is a deal.
Kathleen: Yes.
Michael Sandel: Good. Yes.
Andrew: I would say that, though, I'm not really sure I agree with the idea that the child has rights to their mother. I think the mother definitely has a right to her child, and I also think there are some areas where market forces shouldn't necessarily penetrate. I think that the whole surrogate mother area smacks a little bit of dealing in human beings. Seems dehumanizing, and it doesn't really seem right. So, that's my main reason.
Michael Sandel: And what is, could, tell us your name.
Andrew: I'm Andrew.
Michael Sandel: Andrew. What is dehumanizing about buying and selling the right to a child for money? What is dehumanizing about it?
Andrew: Well because you're, you're buying someone's biological right. I mean you can't, in the law, as it, as it's stated, you can't sell your own child. Like, were you to have a child, I believe that the law prohibits you selling it to another person or so on...
Michael Sandel: So this is like baby selling.
Andrew: Right. To a certain extent. I mean that, though, though there is a contract with another person, you've made agreements and whatnot, there is undeniable emotional bond that takes place between a mother and a child. And it's wrong to simply ignore this because you've written out something contractually.
Michael Sandel: Alright, you want to reply to Andrew? Stay there.
Kathleen: Ah, you point out there is an undeniable emotional bond. Umm, I feel like we're, in this situation, we're not necessarily arguing against adoption, or surrogacy in itself, we’re just sort of pointing out the emotional differences.
Andrew: But, but, but wait. I mean, it’s, it's easy to break everything down to numbers and say, oh we have contracts, like you're buying a selling a car. But there are underlying emotions. I mean, you're dealing with people. I mean, these are not objects to be bought and sold.
Michael Sandel: Alright. What about, what about Andrew's claim that this is like baby selling?
Kathleen: I believe that adoption and surrogacy should be permitted. Whether or not I will actually partake in it is, is not really relevant, but I think that the government should, if the government should give its citizens the rights to allow for adoption and surrogacy.
Michael Sandel: But adoption, adoption is not, is not, according to the law...
Kathleen: Is adoption baby selling?
Michael Sandel: Well, do you think you should be able to, to bid for a baby that's up for adoption? That's Andrew's challenge.
Kathleen: Do I think I should be able to bid for a baby? I'm not… Sure. It's a market. I mean, I, I feel like the extent to which it's been applied, I'm, I'm not sure if the government should be able to permit it. And I have to think about it more, but...
Michael Sandel: Alright. Fair enough. Are you satisfied Andrew?
Andrew: Well yeah. I mean, I just, I think surrogacy should be permitted. I think that people can do it. But I don't think it should be forced upon people, that once the contract is signed it's absolutely, like, the end all. I think that it's unenforceable.
Michael Sandel: So people should be free, Andrew, to enter into these contracts, but it should not be enforceable in a court.
Andrew: Not in a court, no.
Michael Sandel: Who would like to join in on one side or the other? Yes.
Vivian: Umm, I think I have an interesting perspective on this because my brother was actually one of the people who donated to a sperm bank, and he was paid a very large amount of money. He was 6 ft. tall but not blond. He had dimples though. So he actually had, I'm an aunt now, and he has a daughter. He donated his sperm to a lesbian couple in Oklahoma, and, umm, he has been contacted by them, and he has seen pictures of his daughter, but he still does not feel an emotional bond to his daughter. He just has a sense of curiosity about what she looks like, and what she is doing, and how she is. He doesn't feel love for his child. So, umm, from this experience, I think the bond between a, a mother and a child cannot be compared to the bond between the father and the child.
Michael Sandel: That's really interesting. What's your name?
Vivian: Vivian.
Michael Sandel: Vivian. So, we've got the case of surrogacy, commercial surrogacy, and it's been compared to baby selling, and we've been exploring whether that analogy is apt. And it can also be compared, as you point out, to sperm selling. But you're saying that sperm selling, and baby selling, or even surrogacy are very different because...
Vivian: Because they're unequal services.
Michael Sandel They're unequal services. And that's because, Vivian, you say, that the tie, the bond...
Vivian: And also the time investment that's given by a mother, nine months, cannot be compared to a man, you know, going into a sperm bank, looking and pornography, and, you know, depositing into a cup. I don't think those are equal.
Michael Sandel: Good. Alright. So we...
Vivian: 'Cause that's what happens at a sperm bank.
Conclusion
Michael Sandel: Alright, so, this is really interesting. We have, right, notice the arguments that have come out so far, the objections to surrogacy, the objections to enforcing that contract are of at least two kinds. There was the objection about tainted consent. This time, not because of coercion or implicit coercion, but because of imperfect or flawed information. So, tainted or flawed consent can arise, either because of coercion, or because of a lack of relevant information, at least according to one argument that we've heard. And then a second objection to enforcing the surrogacy contract, was that it was somehow dehumanizing.
Now when this case was decided by the courts, what did they say about these arguments? The lower court ruled that the contract was enforceable. Neither party had a superior bargaining position. A price for the service was struck and a bargain was reached. One side didn't force the other, neither had disproportionate bargaining power. Then it went to the New Jersey Supreme Court. And what did they do? They said this contract is not enforceable. They did grant custody to Mr. Stern as the father, because they thought that would be in the best interests of the child. But they restored the rights of Marybeth Whitehead, and left it to lower courts to decide exactly what the visitation rights should be. They invoked two different kinds of reasons. Along the lines that Andrew proposed. First, there was not sufficiently informed consent, the court argued. Under the contract, the natural mother is irrevocably committed before she knows the strength of her bond with her child. She never makes a truly voluntary informed decision for any decision prior to the baby's birth, is, in the most important sense, uninformed. That was the court. Then, the court also made a version of the second argument against commodicification in this kind of case. This is the sale of a child, the court said, or at the very least the sale of the mother's right to her child. Whatever idealism may motivate the participants, the profit motive dominates, permeates and ultimately governs the transaction. And so regardless, the court said, regardless of any argument about consent or flawed consent or full information, there are some things in a civilized society that money can't buy. That's what the court said in voiding this contract.
Well, what about these two arguments against the extension of markets to procreation. How persuasive are they? There was, it's true, a voluntary agreement, a contract struck between William Stern and Marybeth Whitehead. But there are at least two ways that consent can be other than truly free. First if people are pressured or coerced to give their agreement, and second, if their consent is not truly informed. And in the case of surrogacy, the court said, a mother can't know. Even one who already has kids of her own, what it would be like to bear a child and give it up for pay.
So in order to assess criticism, objection number one, we have to figure out, just how free does a voluntary exchange have to be with respect to the bargaining power and equal information? Question number one. How do we assess the second objection? The second objection is more elusive, is more difficult. Andrew acknowledged this, right? What does it mean to say there is something dehumanizing to make childbearing a market transaction? Well, one of the philosophers we read on this subject, Elizabeth Anderson, tries to give some, bring some philosophical clarity to the unease that Andrew articulated. She said, by requiring a surrogate mother to repress whatever parental love she feels for the child, surrogacy contracts convert women's labor into a form of alienated labor. The surrogate’s labor is alienated because she must divert it from the end, from the end, which the social practices of pregnancy rightly promote. Namely, an emotional bond with her child. So, what Anderson is suggesting is, that certain goods should not be treated as open to use or to profit. Certain goods are properly valued in ways other than use. What are other ways of valuing and treating goods that should not be open to use? Anderson says there are many. Respect, appreciation, love, honor, awe, sanctity, there are many modes of valuation beyond use. And certain goods are not properly valued if they are treated simply as objects of use.How do we go about evaluating that argument of Anderson? In a way it takes us back to the debate we had with utilitarianism. Is use the only, is utility, is use the only proper way of treating goods, including life, military service, procreation, childbearing? And if not, how do we figure out, how can we determine what modes of valuation are fitting or appropriate to those goods.
Several years ago there was a scandal surrounding a doctor, an infertility specialist in Virginia, named Cecil Jacobson. He didn't have a donor catalog, because unknown to his patients, all of the sperm he used to inseminate his patients came from one donor, Dr. Jacobson himself. At least one woman who testified in court was unnerved at how much her newborn daughter looked just like him. Now, it's possible to condemn Dr. Jacobson for failing to inform the women in advance. That would be the argument about consent. The columnist Alan Goodman described the bizarre scenario as follows. "Dr. Jacobson," she wrote, "gave his infertility business the personal touch. But now the rest of us," she wrote, "are in for a round of second thoughts about sperm donation." Goodman concluded that fatherhood should be something you do, not something you donate. And I think what she was doing, and what the philosopher Elizabeth Anderson is doing, and what Andrew was suggesting with his argument about dehumanization, is pondering whether there are certain goods that money shouldn't buy, not just because of tainted consent, but also, perhaps, because certain goods are properly valued in a way higher than mere use. Those at least are the questions we’re going to pursue, with the help of some philosophers, in the weeks to come.
