Health Care Analysis 9: 101–107, 2001. © 2001 Kluwer Academic Publishers. Printed in the Netherlands.

Surrogate Motherhood, Rights and Duties: A Reply to Campbell HUGH V. MCLACHLAN1,∗ and J.K. SWALES2 1 Division of Sociology and Social Policy, School of Social Sciences, Glasgow Caledonian University; 2 Fraser of Allander Institute and Department of Economics, University of

Strathclyde (*author for correspondence, E-mail: [email protected]

Abstract. In a recent article in Health Care Analysis (Vol. 8, No. 1), Campbell misrepresents our specific arguments about commercial surrogate motherhood (C.S.M.) and our general philosophical and political views by saying or suggesting that we are ‘Millsian’ liberals and consequentialists. He gives too the false impression that we do not oppose, in principle, slavery and child purchase. Here our position on C.S.M. is re-expressed and elaborated upon in order to eliminate possible confusion. Our general ethical and philosophical framework is also outlined and shown to be other than Campbell says that it is. In particular, a moral philosophy that is based on neither consequentialism nor Kantianism is presented. C.S.M., it is argued, is not child purchase. It is like it in some respects and unlike it in others. It is unlike it in the respects which, relative to the present discussion, matter. Key words: child purchase, commercial surrogate motherhood, commodification, consequentialism, Kantianism

Campbell (2000) misrepresents our specific arguments about commercial surrogate motherhood (C.S.M.) and our general philosophical and political views by saying or suggesting that we are ‘Millsian’ liberals and consequentialists.1 He gives too the false impression that we do not oppose, in principle, slavery and child purchase. Our position, as presented in the article under discussion might be expressed, or re-expressed, as follows. The arguments of Anderson and of Brazier et al. in relation to ‘commodification’ do not establish that C.S.M. is, because of its consequences, wrong. We do not think that, on grounds other than consequences, C.S.M. is wrong but it might be. The arguments of Anderson and of Brazier et al. in relation to ‘commodification’ do not show that C.S.M. is a breach of a mother’s maternal duty but other arguments might show that C.S.M. is in breach of that or of some moral principle. We do not think that it is merely the consequences of actions which render them right or wrong. For instance, an act of adultery, even if it had good

102 consequences, might be wrong because it breaches the principle that you ought not to do what you promised not to do. However, it does not follow that adultery should be a crime. Similarly even if, because of its consequences or on some other grounds, C.S.M. is morally wrong, it does not follow that it should be a crime. Even if it would be legitimate for the state to have laws against adultery and C.S.M. – and, as non-Millians, we are not addressing that particular issue – it would not, in our view, be wise, at least in the context of Britain, to have them. Campbell writes: ‘. . . I am willing to be convinced that, after all, there is no real risk in a free market in parenthood’ (2000, pp. 39–40). We hope that he is not brought to this view by anything that we wrote. We are not in favour of the buying and selling of parenthood (and nor of the buying and selling of children). We do not advocate a market – whether or not a ‘free’ one – in parenthood (nor in children). We are not against the buying and selling of the services of a carrying mother and it is the exchange of money for this service wherein, in our view, the essence of commercial surrogate motherhood lies. One of the advantages of making C.S.M. contracts legal would be the specification of exactly what is being bought and sold. Whether refraining from pursuing the claim to legal rights of parenthood, which is not the same as reneging on the moral duties that one has concerning it, should be (as we suggested) legally buyable and sellable is debatable. It is, in any case, not pivotal to the issue of C.S.M. Campbell writes: In our era, the combination of a Millsian liberalism and a postmodern scepticism about communal norms makes the kinds of arguments espoused by McLachlan and Swales . . . sound much more reasonable and persuasive than such claims to the priority of parental duty over freedom to trade . . . Defenders of the liberal view of autonomy shift the burden of proof the other way. In the style of John Stuart Mill, they demand clear evidence of harm (to child or surrogate mother) before we are entitled to interfere in the liberty of commissioning couples and surrogate mothers to trade parental options. (Campbell, 2000, p. 36) This is not our view. What we said was that the onus is on those who propose making and/or keeping C.S.M. illegal to justifying the legal restriction rather than on those who are against that particular legal restriction to justify its absence. There might well be a justification for the legislation. What Anderson and Brazier et al. say about ‘commodification’ does not, in our view, constitute one: that was the essence of our piece. (Other issues, notably that of alleged ‘exploitation’, arise in the debate about C.S.M. See, for instance, McLachlan and Swales, 2000b.)

103 We did not say that the only possible justification of the legislation is a Millian and nor do we believe it to be. It might well turn our that a nonMillian justification for the illegality of C.S.M. will be put forward. We see no reason for rejecting the possibility a priori. For instance, if we reject aspects of the case of, say, Brazier et al. as a weak paternalistic argument, it does not follow that we are, like Mill, against paternalism as such: perhaps a stronger paternalistic argument against C.S.M. would, were one to be presentable, convince us.2 It is specifically not our view that it is harm merely to the child or to the surrogate mother which could justify the illegality of C.S.M. We wrote: It could turn out that there are good reasons for making C.S.M. illegal. Brazier et al. talk as if the only relevant interests concerned here were those of the parties directly concerned . . . We think that the proper target of public policy lies elsewhere. For instance, if it could be shown that children born by commercial surrogate mothers are particularly delinquent and, throughout their lives, a burden to the other members of their societies, then there might well be at least the basis of a powerful case for illegalising C.S.M. (McLachlan and Swales, 2000a, p. 16) It is inaccurate to call us Millian liberals. It is inaccurate and, to us, offensive to suggest that we are consequentialists. Campbell writes: . . . brides cannot be purchased, nor can children; and although the rights and duties of parenthood can be voluntarily relinquished, they cannot be sold or purchased. These institutional arrangements are based on an understanding of the moral character of the relationships themselves, and are not dependent simply on a prediction of good and bad consequences. They are grounded in non-consequential arguments of a similar kind to those which oppose slavery in principle. For those who believe that only consequentialist arguments are truly rational and convincing, such assumptions will be questioned by use of the “happy slave” type of counter argument. (Campbell, 2000, p. 37) There are, or might be, consequentialist grounds for and against thinking that C.S.M. is immoral just as there are or might be non-consequentialist grounds for thinking the same things. Campbell is relying upon a false dichotomy here. The ‘moral principles’ which he alludes to do not all nor necessarily point in the one direction. Even if Campbell is right in saying that there is a moral principle relating to parental duty which tends to push C.S.M. out of moral bounds, the principle of favouring and fostering human autonomy, (and not merely that one) pulls in the other direction.3 Similarly, one might accept some consequentialist arguments without being a consequentialist i.e. without believing that only consequentialist

104 arguments should count. Campbell might be thought to deny this when he says: . . . consequentialist arguments are rational and convincing only to those who accept their assumptions. To others, their treasure chest of the components of human goodness seems sadly empty. (Campbell, 2000, p. 37) One is not compelled to choose between consequentialism and nonconsequentialism. That by virtue of which good actions are good actions is not the necessarily the same in all instances. Some good actions are good because of their consequences. Some good actions are good ones for other reasons. Utilitarianism gives a correct account of the ethics of some actions. Kantianism gives a correct account of the ethics of others. Some actions are not correctly accounted for by either utilitarianism or Kantianism. Some are accounted for correctly by a combination of both. So, at least, is what we think.4 We might be wrong in thinking this but we would rather be known for thinking it than be wrongly thought of as thinking something else and, in particular, as being consequentialists. A distinction too should be made between consequentialism in relation to ethics and consequentialism in relation to public policies. One might think that public policies are to be justified or condemned solely in terms of their consequences without thinking that actions are morally good or morally bad ones solely because of their consequences. In relation to ethics in particular, we are definitely not consequentialists. For instance, we wrote in an article unrelated to C.S.M. that: ‘Often, it matters not merely what is done but why it is done’ (McLachlan and Swales, 1999, p. 7). We wrote too that: . . . it is not a ludicrous point of view that there are some sorts of decisions that people ought not to make no matter what are the consequences of failure to make them. Sometimes, when people perform their duties and do, in particular circumstances what they ought to do – and this might be to refuse to make a particular sort of decision – the outcome can seem to be ludicrous. Yet, to do their duty in such circumstances is, perhaps, what people ought to do. (McLachlan and Swales, 1999, p. 7) This hardly sounds like consequentialism. We are ‘alldependsists’.5 We are not sceptics, relativists nor postmodernists. We think that the short, correct answer to all or, at least, to most philosophical questions is: it all depends. When an action is a good one or a bad one, by virtue of which is it such? It all depends. When one knows that X is true, how does one know? It all depends. What is it to be an X, when an X is a class term such as ‘table’, ‘horse’ or ‘game’? It all depends. Essentialism

105 gives a correct account of some universal terms. Nominalism gives a correct account of some others. Yet more are correctly accounted for by neither of these theories. When, to quote Mill, are ‘. . . mankind warranted, individually or collectively, in interfering with the liberty of action of any of their number . . .’? (Mill, 1966, p. 135). Mill says that the question can be given a general answer in terms of ‘one very simple principle’, namely: ‘self protection’. We say: it all depends. Campbell paints us as consequentialists and as not being against child purchase in principle when he says the following: . . . they . . . go on to state that: “Even if it were the purchase of a child, as long as the child were treated subsequently as a child should be treated, the ‘commodification’ involved might be excusable, or, even, laudable” (p. 23) Thus it appears from this statement that they see no objection in principle to child purchase, provided good consequences come of it. (Campbell, 2000, p. 36) This is not what we say and we are surprised to be told that it appears from what we say. To talk of a child being treated as a child should be treated is not to talk merely about the effects of the treatment of the child. There are objections in principle to child purchase. Actions are often simultaneously in accord with and in conflict with a variety of principles. There are objections in principle, say, to telling lies and killing people yet even when they involve telling lies and killing people some actions – think, say, of the Second World War and some of the events which comprised it – are excusable and, even laudable. There might well be objections on the basis of various principles, for instance, the principle that the state should not encourage nor appear to encourage sex outside marriage and the principle that those who use something, rather than those who do not, should pay for it to the distribution by the state of free condoms even if in some circumstances – such, say, as exist in South Africa at present in relation to Aids – the distribution might, because of its possible consequences, be justifiable. We stress the qualification even if it were the purchase of a child. C.S.M. is not, for reasons which we outline in our article, the purchase of a child. As a matter of legal fact, in, for instance, Britain, the purchase of a child is an impossibility. And so it should be. The point is that we see – because, in our view, Anderson and Brazier et al. have shown none – no objection in any principle pertaining to commodification to commercial surrogate motherhood. C.S.M. is not child purchase. If it were, there would be an objection in principle to it. Even then, on the basis of other principles and/or the consequences of it C.S.M. might still be justifiable either in general or in particular instances.

106 According to Campbell: We – with the possible exception of McLachlan and Swales – already accept that child purchase and financial rewards for giving up one’s child for adoption are morally wrong and must be illegal. (Campbell, 2000, p. 37) Child purchase is morally wrong and also must be illegal. We oppose child purchase just as we oppose slavery in principle (and in other relevant ways as well). What might be and seems to be at issue between Campbell and us is the nature of the principle or principles concerned. Slavery as slavery is, as we said, wrong: we suggested that it was not the issue of money changing hands that constitutes the wrongness of slavery. Similarly, we suggested that the exchange of money does not render C.S.M. wrong. It certainly does not make it slavery. It does not constitute child purchase in the way that an exchange of money in particular circumstances can constitute, say, house purchase. C.S.M. is, in some respects, like wrong things. However, it is unlike them in other respects and not like them in the respects which, morally, matter. There is a story told of shipwrecked sailors who were on a life-raft. They realised that the life-raft too was sinking. Death seemed imminent. ‘Do something religious’, one of them said: ‘Do something religious’. In response, another of the doomed men took a collection. The association of ideas is, as Hume indicated long ago, a powerful psychological phenomenon. However, the collecting of donated money will not in itself render an action an appropriate and a good one any more than the commercial exchange of money will render it an inappropriate and a bad one.

Notes 1 2 3 4 5

See Campbell, 2000 and McLachlan and Swales, 2000a. See McLachlan and Swales, 2000b. See McLachlan, 1997. See McLachlan, 1981. See McLachlan and Swales, 1998.

References Campbell, A.V., (2000) Surrogacy, Rights and Duties: A Partial Commentary. Health Care Analysis 8, 35–40. McLachlan, H.V. (1981) Wittgenstein, Family Resemblances and the Theory of Classification. International Journal of Sociology and Social Policy 1(1), 1–16. McLachlan, H.V. (1997) Defending Commercial Surrogate Motherhood Against Van Nierkerk and Van Zyl. Journal of Medical Ethics 23, 344–348.

107 McLachlan, H.V. and Swales, J.K. (1998) The Methodology Rather than the Rhetoric of Economics: McCloskey on Popper and Hume. Journal of Interdisciplinary Economics 9(2), 125–143. McLachlan, H.V. and Swales, J.K. (1999) A Drunk Driver, A Sober Pedestrian and the Allocation of Tragically Scarce and Indivisible Emergency Hospital Treatment. Health Care Analysis 7(1), 5–21. McLachlan, H.V. and Swales, J.K. (2000a) Babies, Child Bearers and Commodification: Anderson, Brazier et al. and the Political Economy of Commercial Surrogate Motherhood. Health Care Analysis 8(1), 1–18. McLachlan, H.V. and Swales, J.K. (2000b) Scotland, the Church and Surrogate Motherhood. Scottish Affairs (Summer) (32). Mill, J.S. (1966) On Liberty. In M. Warnock (Ed.), Utilitarianism. London: Collins.