Sep 18, 2014

"Public Policy" and Non-Enforcement of Contracts

For the first decade or so of law teaching, my classes worked through the Baby M case to demonstrate the sort of circumstances that would justify non-enforcement of a contract on the ground of public policy. For those who don't remember, the battle in Baby M was over the enforceability of a contractual obligation to terminate parental rights. The gestational surrogate (and biological mother) who gave birth to "baby M" refused to surrender the newborn to the sperm-donor father and asserted her parental rights, both in contravention of the contract she had signed.

The New Jersey Supreme Court held the contract was unenforceable as against the state's public policy of terminating parental rights only when in the best interests of the child. In other words, the biological mother could not contract away the rights entailed by motherhood.

I no longer teach this case in part because "Baby M," Melissa Stern, is now an adult who has graduated from law school. More to the point, the case is out of date because no longer does the gestational surrogate contribute her egg to the child in her womb. Instead, the child is conceived in vitro outside anyone's womb and only later implanted in the one who bears the child through the course of pregnancy and delivery. We now read and discuss two cases on the enforceability of such contracts, one concluding "no problem" and the other reaching the contrary result. We also look at Virginia's statute that requires judicial pre-approval for such contracts.

All of this is a long introduction to "You Are Obligated to Terminate This Pregnancy Immediately: The Contractual Obligations of a Surrogate to Abort Her Pregnancy (download here). Cribbing form the abstract:
When Crystal Kelley learned that a couple wanted to hire her as their surrogate, she was ecstatic. Raising two children of her own, Crystal yearned for the opportunity to help another couple achieve their dream to become parents. And while Crystal’s motives were certainly altruistic in part, she was a single mother with a high school degree, doing her best to provide for her own family. The $22,000 fee that Crystal would be paid would help not just with medical expenses, but also with rent and birthday gifts for her own girls. It seemed to be a perfect situation for everyone, especially when one of the two embryos that the intended parents already had frozen was successfully implanted and Crystal became pregnant.
About halfway through her pregnancy, Crystal and the intended parents learned some heartbreaking news about the fetus. The fetus appeared to have a cleft palate, a heart abnormality, and potentially Down syndrome. While Crystal was devastated by the news, the response of the intended parents was simply shocking: the intended parents mandated that the child be aborted — and soon. When Crystal refused, even after being offered $10,000 for her to have the abortion, Crystal and her lawyer returned to the surrogacy contract that the parties had signed months before, which included a clause discussing the termination of the pregnancy. The surrogacy agreement, which was signed in Connecticut where surrogacy contracts are legally enforceable, stated in part that Crystal would abort "in case of severe fetus abnormality." Crystal adamantly believed that the child should be given a chance to survive, even if it meant a childhood of countless surgeries and likely lifelong disabilities, so when her options were to abort the fetus, to surrender the child to the intended parents — who made clear that they intended to abandon the child to the foster system immediately upon her birth — or to flee to a state that did not legally recognize surrogacy agreements, Crystal took her two children and moved to Michigan. A few weeks later, Baby S was born and adopted by a loving family.
The shocking nature of the facts of this particular case and its contract, whose "termination term" is standard, recall to mind the limits of contract law. There would be no objection to enforcement of a termination term in a purely libertarian world, at least one in which there was no philosophical anthropology. I urge folks to download and read Brittney Kern's complete article.

A thick notion of human nature provides warrant for limits on the tool of contract. For my thoughts about that "nature" feel free to read Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here).

Sep 13, 2014

More Intolerance From Up North

A whopping 137 out of 1,600 members of the New Brunswick Law Society (the equivalent of an American state bar association) voted to ask their bar council to reverse its decision to permit graduates of Trinity Western University's law school (scheduled to open its doors to students in the fall of 2016) to practice law in New Brunswick. Sadly, however, 137 were a majority of those who voted. Read the details here.

Yet another step along the road to "totalitarian libertarianism." (For earlier comments go here, here, and here.)

Prayers for strength, perseverance, and justice for the leadership and future students of TWU are in order.

Sep 11, 2014

Coming Soon! Regent Law School Summer Program in International Human Rights

Over the noon hour I spoke with 30 or so students about the 2015 iteration of Regent Law School's summer program in Strasbourg, France. You can read all about it here.

I will be directing the program and will be joined by faculty members including former Attorney General John Ashcroft, who will be teaching a course in Civil Liberties and National Security Law, and Professor David Smolin who is an expert on the international human rights law and practice. I will be teaching a course in Comparative Law, focusing on the law of contracts here in the United States and there in a number of European countries.

Registration will be open soon but I encourage readers who are law students to be watching the website and those who aren't students to let friends and family who are in law school know about this exciting opportunity.

Jul 14, 2014

Calvin: Natural Law Like Mutilated Headless Body, Otherwise Good

Ro 12:1 Therefore, I urge you, brothers, in view of God's mercy, to offer your bodies as living sacrifices, holy and pleasing to God-- this is your spiritual act of worship. 2 Do not conform any longer to the pattern of this world, but be transformed by the renewing of your mind. Then you will be able to test and approve what God's will is-- his good, pleasing and perfect will.
According to Calvin, Romans 12:1-2 shows that moral philosophers cannot ground their best claims. Paul shows here that the underlying principle of moral duty is to consecrate oneself to God in response to God's mercy, but philosophy does not rest on the transformative knowledge of God's mercy. Therefore, moral philosophies, like natural-law theory, are deeply imperfect.
Calvin Says "Philosophers Offer Only Great Mutilated Doctrines, Excellent Headless Bodies"
If it be, that through the saving knowledge of God and of Christ, the soul is, as it were, regenerated into a celestial life, and that the life is in a manner formed and regulated by holy exhortations and precepts; it is then in vain that you show a desire to form the life aright, except you prove first, that the origin of all righteousness in men is in God and Christ; for this is to raise them from the dead. 
And this is the main difference between the gospel and philosophy: for though the philosophers speak excellently and with great judgment on the subject of morals, yet whatever excellency shines forth in their precepts, it is, as it were, a beautiful superstructure without a foundation; for by omitting principles, they offer a mutilated doctrine, like a body without a head.

Natural Law Philosophy: Nice Pects But No Head
Not very unlike this is the mode of teaching under the Papacy: for though they mention, by the way, faith in Christ and the grace of the Holy Spirit, it yet appears quite evident, that they approach heathen philosophers far nearer than Christ and his Apostles. 
But as philosophers, before they lay down laws respecting morals, discourse first of the end of what is good, and inquire into the sources of virtues, from which afterwards they draw and derive all duties; so Paul lays down here the principle from which all the duties of holiness flow, even this, -- that we are redeemed by the Lord for this end -- that we may consecrate to him ourselves and all our members.
If knowledge of our redemption by Christ is "the principle" of all duties, then proponents of natural-law philosophy must admit either (1) that natural-law philosophy teaches Christ as the principle of all duties, or (2) that because natural-law philosophy does not rely on Christ, it is mutilated, "a beautiful superstructure without foundation ... a body without a head." If the former, then natural-law philosophers are really bad at showing the centrality of Christ and need to reform their arguments. If the latter, then natural-law philosophers believe that adequate philosophy does not require foundations. 

This latter seems to me the most promising route, i.e. the most self-understanding natural-law philosophy is a form of skepticism about the ability of man to ground his sense of duty, which also acknowledges the experience that man cannot shake his sense of duty. It leaves man with a choice between acknowledging the senselessness of life or turning to Christ, who can be shown to be the only available ground for our sense of good and right. Unfortunately, contemporary natural-law philosophers generally deny that the mercy flowing from Christ is the only available ground of our sense of good and right.