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Justice. While discussing the justice it is important to distinguish the categories of justice itself and the morality. Could law be just or unjust? Any social group should follow some rules which are the laws themselves.
The law is a domain of the state which is according to Hobbes is the sovereign, i. e. the structure that consolidates the society and makes it able to resist the laws of nature. According to Hobbes man transfers his rights to the sovereign and these rights should not contradict to the laws of Nature. According to Hobbes man transfers his rights to the sovereign and these rights should not contradict to the laws of the Nature. Regardless of the government or law Hobbes believes no man can transferred his Right to save himself e from Death, Wounds, and Imprisonment 1 Hobbes says the government is responsible for the mans safety.
But this responsibility is rather affected through the providence of the government than through the education because the government is not interested in educating the people. The mans education may cause the resistance to the sovereign. The sovereign has the right to judge. The justice is blind. This is the main principle of Justice which should be directed by the laws only and the laws in this case are considered to be human and just. In case of The Baby M there were two opposite court verdicts.
The case itself is unusual because it incorporates two aspects of justice the moral and the legal one. It would be ideally if both aspects were congruent in all the cases. But unfortunately the Justice is blind and it is directed by the law. The commercial surrogacy is common practice and is valid from the point of view of generally accepted laws.
On one hand the aim of such phenomenon is a noble one. People who can not have children due to their physical state apply the commercial surrogacy to have their successors. This procedure makes people satisfy their natural instinct to pass their knowledge and experience to their adopted children and to grow up their successors. This procedure is admitted by law and society. But is this procedure moral? From the point of view of society in general it is absolutely moral because it is aimed to satisfy the noble desire to take care of a child, to adopt him and to give him proper education and make him a member of society.
It may seem noble because the child is supposed to be born by a woman who can not give the proper education and take proper care of the newly born child. The law admits such procedure. While discussing the moral aspect of the commercial surrogacy it is worth mentioning that the commercial surrogacy contradicts to the natural law, i. e. the law of reproduction. It violates the natural right of the surrogate mother of the child, the right to grow up her biological successor.
It would be too simplified approach if justice were considered according to the written conventional law only. The justice, according to John Stuart Mill implies something which it is not only right to do, and wrong not to do, but which some individual person can claim from us as his moral right. 2 So the moral right of the woman though she is a surrogate mother to grow up her child. In case of The Baby M there were two courts and two opposite decisions. Both decisions were driven by two different aspects of justice, legal, according to the law and the moral one.
The moral right of the surrogate mother contradicted to the legal right of the costumer of the commercial surrogacy. The costumer is the cruel word in this case but it corresponds to the nature of the person who paid for the surrogacy. The moral aspect of the case is going beyond just the conventional law justice. It raises the question if the commercial surrogacy is acceptable in general. If it is immoral then is it moral to enter into such kind of agreement from the point of view of the surrogate mother? If the answer is positive then how many standards of morality could be?
Any case may create the legal precedent. The law is blind. If the precedent is created then how will it correspond to the legal norm admitting the commercial surrogacy? If the actions of the surrogate mother are considered to be moral and the actions of Mr. Stern immoral then what is the essence of the Mr. Stern immorality?
The essence of the Mr. Stern immorality is in his initial desire to have a baby in his family, to give the child proper education, to make the child a good citizen. The morality of Mary Beth Whitehead then was to earn money by any possible means, to collect agreed amount and to refuse fulfilling her obligation according to the contract. The relations between the law and morality are as old as the mankind itself. The primary objective of law being the instrument of the sovereign is to protect the society and the individual. The law should be blind in order not to create the dangerous precedents.
The death penalty is immoral and inhuman but it has to be applied to protect the society. The commercial surrogacy is acceptable by the law and that is why it is moral regarding the child. The actions of Mary Beth Whitehead are immoral from the very beginning. If the argument of the court that Mrs.
Whitehead did not know and could not have known before the birth of the child what kind of attachment she would have to the child is just, then all the system of legislation may loose its sense because there are a lot of actions, some of them are illegal, consequence of which could not be predicted. But that does not approve the people who commit such actions. If such moral arguments were taken into consideration then any action which may bring negative consequence may be approved from the point of view of morality. Mary Beth Whitehead violated the natural law of maternity from the very beginning by entering into the agreement and it may be more morally to fulfill the terms of the contract because she crossed the moral border between the cold benefit and the moral values and nobody could guarantee that this border would remain uncrossed in the future. Mary Beth Whitehead felt free to sign the immoral agreement on commercial surrogacy thus violating the natural law and later she claimed her rights on the child applying the same moral principles which had been violated by her. Another argument which could be considered against Mary Beth Whiteheads position is that she admitted the validity of the law by signing the agreement.
The basic principle of law is that it should not be revised. According to Kant the moral worth of an action does not lie in the effect expected from it, nor in any principle of action which requires to borrow its motive from this expected effect 3. That means that immorality does not lie in the effect of the action, i. e. consequence of action, but in action itself.
The decision of the New Jersey Supreme Court was taken considering the possible moral effect assuming that Mary Beth Whitehead could not predict such effect before the contract was fulfilled in terms of giving the birth to a child thus defining the questionable moral issue to be dominating over the legal one. The case of Mary Beth Whitehead is a particular one, but it makes the legislation to re-evaluate the legal aspect of the commercial surrogacy in general. If it is assumed that the decision of the contract superseding is accepted as just and moral then that means the people who can not have children due to various reasons and who wish to become parents though by means of the commercial surrogacy are acting immorally. It could be considered immoral regarding the surrogate mothers but it is absolutely moral regarding the children who were given the lives just because the decisions of immoral commercial parents. Bibliography L EV I AT H A N by Thomas Hobbes, available at web John Stuart Mill, UTILITARIANISM, 1863, available at web Kant - Groundwork for the Metaphysics of Morals, First Section, TRANSITION FROM THE COMMON RATIONAL KNOWLEDGE OF MORALITY TO THE PHILOSOPHICAL, available at web Citation: Thomas Hobbes. John Stuart Mill, UTILITARIANISM Ch. 5 Kant
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