Notes
1 In the usual case of a parenting contract, the “surrogate” mother is the mother, both genetically
and gestationally. If the “surrogate” mother gestates another woman’s donated egg, it
is arguable that she should not be regarded as the legal mother of the child. Thus, she may
have no parental rights to relinquish, and any contractual arrangements concerning transfer
of custody would not involve commodification of the child. Her reproductive (gestational)
labor would still be objectionably commodified, but the reasons for thinking so would be
closer to those articulated by Debra Satz (Satz, 1992) (arguing that contract pregnancy is
objectionable because it reinforces a traditional gendered division of labor that underwrites
women’s inequality).
2 To avoid this conflict of interest, the other half of the contract – promising payment to the
mother in return for her giving up custody and parental rights – should also be held null and
void.
3 Perhaps they would take a fallback position: that the mother does not relinquish her parental
rights in the contract, but that these rights are to be balanced against the father’s rights as
defined in the contract. This amounts to the view that the child’s best interests are no longer
to be regarded as the sole factor in a custody dispute, since they may be traded off against
the interests of the parents as defined in their contract. They want us to believe that this way
of regarding children is better for them than when their interests are preeminent in custody
disputes. Or maybe just that a little commodification of children at the point of acquisition
is of no consequence, if this will afford them better (or merely adequate?) treatment by the
parents who acquire them. But how are we to assure this, if the best interests of the child do
not govern the termination of parental rights and allocation of custody at the outset?
4 This means that even a pregnancy contract that specified that the mother would keep
custody of her child if she changed her mind should not be enforceable. At the time of dispute,
the relevant question concerns the best interests of the child, and this may mean that the father
should get custody. Fathers also have inalienable rights and duties with respect to their children
Notes1 In the usual case of a parenting contract, the “surrogate” mother is the mother, both geneticallyand gestationally. If the “surrogate” mother gestates another woman’s donated egg, itis arguable that she should not be regarded as the legal mother of the child. Thus, she mayhave no parental rights to relinquish, and any contractual arrangements concerning transferof custody would not involve commodification of the child. Her reproductive (gestational)labor would still be objectionably commodified, but the reasons for thinking so would becloser to those articulated by Debra Satz (Satz, 1992) (arguing that contract pregnancy isobjectionable because it reinforces a traditional gendered division of labor that underwriteswomen’s inequality).2 To avoid this conflict of interest, the other half of the contract – promising payment to themother in return for her giving up custody and parental rights – should also be held null andvoid.3 Perhaps they would take a fallback position: that the mother does not relinquish her parentalrights in the contract, but that these rights are to be balanced against the father’s rights asdefined in the contract. This amounts to the view that the child’s best interests are no longerto be regarded as the sole factor in a custody dispute, since they may be traded off againstthe interests of the parents as defined in their contract. They want us to believe that this wayof regarding children is better for them than when their interests are preeminent in custodydisputes. Or maybe just that a little commodification of children at the point of acquisitionis of no consequence, if this will afford them better (or merely adequate?) treatment by theparents who acquire them. But how are we to assure this, if the best interests of the child donot govern the termination of parental rights and allocation of custody at the outset?4 This means that even a pregnancy contract that specified that the mother would keepcustody of her child if she changed her mind should not be enforceable. At the time of dispute,the relevant question concerns the best interests of the child, and this may mean that the fathershould get custody. Fathers also have inalienable rights and duties with respect to their children
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Notes
1 In the usual case of a parenting contract, the “surrogate” mother is the mother, both genetically
and gestationally. If the “surrogate” mother gestates another woman’s donated egg, it
is arguable that she should not be regarded as the legal mother of the child. Thus, she may
have no parental rights to relinquish, and any contractual arrangements concerning transfer
of custody would not involve commodification of the child. Her reproductive (gestational)
labor would still be objectionably commodified, but the reasons for thinking so would be
closer to those articulated by Debra Satz (Satz, 1992) (arguing that contract pregnancy is
objectionable because it reinforces a traditional gendered division of labor that underwrites
women’s inequality).
2 To avoid this conflict of interest, the other half of the contract – promising payment to the
mother in return for her giving up custody and parental rights – should also be held null and
void.
3 Perhaps they would take a fallback position: that the mother does not relinquish her parental
rights in the contract, but that these rights are to be balanced against the father’s rights as
defined in the contract. This amounts to the view that the child’s best interests are no longer
to be regarded as the sole factor in a custody dispute, since they may be traded off against
the interests of the parents as defined in their contract. They want us to believe that this way
of regarding children is better for them than when their interests are preeminent in custody
disputes. Or maybe just that a little commodification of children at the point of acquisition
is of no consequence, if this will afford them better (or merely adequate?) treatment by the
parents who acquire them. But how are we to assure this, if the best interests of the child do
not govern the termination of parental rights and allocation of custody at the outset?
4 This means that even a pregnancy contract that specified that the mother would keep
custody of her child if she changed her mind should not be enforceable. At the time of dispute,
the relevant question concerns the best interests of the child, and this may mean that the father
should get custody. Fathers also have inalienable rights and duties with respect to their children
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