Wednesday, December 10, 2008

Non-negotiable Obligations

In my column on FindLaw this week, I take up the question whether composing student term papers for purchase is either legitimate or constitutionally protected speech. The topic came to my attention when I heard a radio interview with a former term-paper ghostwriter of this sort and read an article by him (in which he describes and rationalizes his behavior). It will probably surprise no one that I reject the claim that writing term-papers for hire is either legitimate or protected by the First Amendment. In this post, I want to consider the more general topic of negotiable and non-negotiable debts.

What I would call negotiable debts are those obligations that we may delegate to someone else for payment on our behalf. Many (though not all) financial debts work this way. If, for example, I cannot afford to pay my rent this month but my brother can and -- more importantly -- is willing to pay it (in exchange for my undying gratitude or a few home-cooked meals), there is nothing wrong with his sending my landlord a check for my rent this month. Similarly, if I see a DVD at the video store that I desperately want to watch, it is perfectly legitimate for my mother to purchase it for me.

Non-negotiable debts include such things as apologies, appearances at a child's dance recital, and term papers. If I hurt my sister's feelings, for example, by saying that she was probably not qualified for the promotion that she just received, it would not be acceptable for my next-door neighbor to take money from me in exchange for his expressing his regret for what I said to my sister. Similarly, if neighbor called my sister on the telephone and pretended to be me, apologizing for hurting my sister's feelings, my sister would likely be very upset upon learning the truth, and she would almost certainly believe that I still owed her an apology (and perhaps two apologies now). Sending my colleague to attend my daughter's dance recital in my stead would likewise fail to satisfy anyone's idea of an attentive parent. And finally, a student's paying someone else to write his term paper for him would not legitimately fulfill the requirements of any course.

What unites the second, non-negotiable, set of obligations is that each has personal significance and thus loses its interpersonal value when the person involved changes. That is, an apology is a relational act by which the offending party expresses sincere remorse for harmful or offensive conduct toward the injured party. If the offending party absents herself from the transaction, then the relationship between her and the injured party is necessarily not repaired by the third party's apology or expressions of regret. Attending a child's performance represents an act of celebration of and delighting in the child's accomplishments; sending a colleague to attend the recital instead represents neither of the above. And paying a third party to write a paper deliberately evades the behavior -- the preparation and writing of the paper -- that is truly the requirement of the course, of which the finished product is, to some degree, merely evidence. That is, the professor has actually required the student to do the work of the paper production, and the finished product (assuming it is not publication-worthy) provides a means for the professor to evaluate whether and how well the process was completed. With apologies, attendances at recitals, and term papers, one might say that the process rather than the end product is what counts, and one cannot legitimately delegate the process of remorse, celebration, or reading and writing.

It is with this dichotomy in mind that I pondered an article -- the cover story -- that appeared in the New York Times magazine two Sundays ago. The article was about a woman who had experienced heartache and frustration in her attempts at procreation and finally decided to hire a gestational surrogate to become pregnant with and give birth to the genetic child of the writer and her husband. Many readers wrote angry and critical responses to the article, suggesting that it ignored the class-difference component of the surrogacy arrangement and that the surrogate was in fact a "servant" for the wealthy and privileged woman who could go about her life while another person carried her baby.

I found these reactions, as reported by Times Public Editor, Clark Hoyt, interesting and somewhat perplexing. Whenever one person asks another person to do something difficult for pay, the odds are that the buyer is either wealthier than the seller or the seller has a special talent that the buyer lacks. In the case of surrogacy, both of these are typically the case. The Times writer who hired the surrogate was both wealthier than the surrogate and lacked the ability (which the surrogate had) to gestate a pregnancy successfully to term. I suspect that critics would not have been (as) offended if the writer had hired a person to clean her house or to babysit for her child, even though in such cases, the class difference would have been even more decisive, because the talent difference would not be a factor. So why the anger?

To my mind, the anger results from the (contested but probably dominant) view that biological motherhood must not be delegated to another person, that it is -- in other words -- one of those non-negotiable items like apologies and term papers. To call a person a "servant" rather than an "employee" is to imply that the person is performing a service that everyone should perform for himself or herself (or not at all). As Professor Radin at Stanford has suggested, then, giving birth to a child is not something that should be commodified (in the same way as kidneys and livers should not be commodified). Interestingly, far fewer people seem to have this intuition about sperm donation (or about the fact that whenever a couple has a biological child in the ordinary fashion, the woman is in some ways acting as a gestational surrogate for the man, though not for a financial payoff).

There is thus a built-in unfairness in calling a man a biological "father" when he contributes genetically and allows his wife or girlfriend to carry the pregnancy while simultaneously calling the woman who delegates gestation to a surrogate exploitative and, implicitly, an inadequate biological mother. One additional unfairness we might note is the fact that just as one might view the distribution of financial resources as arbitrary or unfair (in favoring the writer over the surrogate, in the Times story), one perhaps should not take the distribution of capacities as given. In other words, we might view the writer's inability to have a baby through pregnancy, despite her many attempts, as part of the unfairness of life, a part that might be remedied -- if imperfectly -- by permitting a woman with fewer financial resources to trade her own (unfairly bestowed) endowment for her employer's, especially if the end result is two women who feel at peace with their exchange.

By Sherry F. Colb