Reference no: EM133302215

Case: True morality, Kant had said, could not be founded, as utilitarian moralists generally suppose, upon the subjective feelings and drives of sympathy or compassion. Instead, true morality, said Kant, resides in each rational being's power to render his conduct and acts consistent with a perfectly "good will," namely, a will that lays down ("autonomously") objective "laws of nature" binding on all rational beings. For all rational beings, if they in fact be rational beings (not crazy), would recognize and respect the right of such a "good will" and the "law of nature" which obliges us all, universally, to respect that right.

The sensuous feelings of sympathy and compassion, said Kant, force themselves upon us "heteronomously," from the outside, and very often come into conflict with our power to act "autonomously," namely, with self-determination. When one acts in such a way that it would be irrational to disrespect what he is doing, or has done, he makes "natural law" through his own will, and thus his action is not only totally moral, but totally free as well, for no rational being would challenge his right so to act.

Hence Immanuel Kant, in his "Doctrine of Right" (1797), held that the right and just consists in a reciprocal accountability or duty of care in accordance with the freedom of every one under the principle of a universal freedom, so that social and economic inequalities must be arranged so as to maximize the greatest benefit of the least advantaged. Examine now Kant's own formulation of this "supreme principle of law" or "first principle of justice," (translated into English by J.W. Semple, in "The Metaphysics of Ethics by Immanuel Kant," pub. by Calderwood, Edinburgh: T. & T. Clark, 1886, 3rd edition),

Here I offer a brief summary of the essential facts and law of the Matter of Baby M. case, wherein the New Jersey Supreme Court resolved a custody dispute over whether a questionable contract for services arranged by an assisted reproduction clinic (the ICNY) between an artificial insemination donor (Mr. Stern) whose wife was infertile, and a "surrogate" fertile woman (Mrs. Whitehead, a married mother of two children), was enforceable as against the surrogate mother when she refused to relinquish custody of the baby after it was born so that it could be adopted by the Sterns. Under the ICNY's "Surrogate Parenting Agreement," the surrogate mother would receive a fee for undergoing the artificial insemination by the clinic and for carrying the fetus to healthy childbirth, waive her right to elect an abortion in the event of a change of position, and agree that no compensation would be paid if the child was miscarried prior to the fifth month of pregnancy or, if the child were miscarried after that time, they would receive only $1,000 of the agreed amount. The Court, rejecting the trial court's finding that the terms of the contract had been freely entered into and binding upon the parties, invalidated any right of the Stern family to legally adopt the baby. Nonetheless, in restoring the surrogate mother's parental rights, the New Jersey Supreme Court deemed it "in the best interests of the child" not to reverse the trial court's grant of custody to the Sterns, with whom the baby had now been living for several years, but rather to order the trial court to modify its custodial award to accommodate visitation rights by the legal parents. The high Court's reasoning included findings that the "agreement" precluded therapeutic counseling for the biological mother mandated by law to assist her in exercising her natural right to choose whether to give up her child for adoption, illegally purported to be irrevocable, and illegally purported to offer compensation for adoption. In Section II.A of the opinion, the Court ruled: "The surrogacy contract conflicts with: (1) laws prohibiting the use of money in connection with adoptions; (2) laws requiring proof of parental unfitness or abandonment before termination of parental rights is ordered or an adoption is granted; and (3) laws that make surrender of custody and consent to adoption revocable in private placement adoptions."

Question: How a "natural law" or "autonomy" based jurisprudence (in the style of Kant's metaphysics of morals), should have been applied, in resolving the issues that were resolved by the New Jersey Supreme Court in its controversial decision in the Matter of Baby M., 109 N.J. 396, 537 A.2d 1227 (N.J. Supreme Ct., 1988).