Surrogacy Contracts and
Inalienable Rights:
A Rothbardian Analysis
Roderick T. Long
Philosophy, Auburn University | Molinari Institute
Surrogacy Contracts
A surrogate agrees to carry a
pregnancy to term and then
surrender the resulting baby
to a new guardian
The baby may be the genetic
offspring of the surrogate,
the prospective guardian,
both, or neither
Surrogacy Contracts
Should surrogacy contracts be:
• allowed and
enforced?
• allowed but not
enforced?
• forbidden?
Surrogacy Contracts
Reason to allow and
enforce surrogacy
contracts: freedom of
contract
Reason to forbid, or else
to allow but not enforce,
surrogacy contracts:
bodily inalienability
Surrogacy Contracts
Rothbardians embrace
both freedom of contract
and bodily inalienability
What solution should
they favour?
Contract Rights
Mistake to start with presumption of enforceable
contracts and then look for grounds for nonenforcement in special cases
Contract is not a basic right
Promising to do something does
not ordinarily license use of
compulsion against the promisor
So what needs justifying is enforcement
Title-Transfer Theory of Contract
▪ Murray N. Rothbard, The Ethics
of Liberty, 1982; 2nd ed. 1998
▪ Williamson Evers, “Toward a
Reformulation of the Law of
Contracts,” Journal of Libertarian
Studies I.1 (1977)
▪ Randy Barnett’s “Contract
Remedies and Inalienable Rights,”
Social Philosophy & Policy IV.1
(1986)
Title-Transfer Theory of Contract
Contract rights are
rooted in property
rights
You transfer to me
the title to your
property X, on
condition that I do Y
for you
Title-Transfer Theory of Contract
If I don’t do Y for you,
the condition isn’t met
Ownership of X (along
with, presumably,
damages for your
temporary loss of X)
reverts to you
Whence Title-Transfer?
But the right to transfer
property titles isn’t a basic
right either; it needs
grounding too
If I give or sell you my copy
of Ethics of Liberty, two
things happen in the moral
universe:
Whence Title-Transfer?
a) my using the book
without your authorisation
passes from the permitted to
the forbidden category
b) your using the book
without my authorisation
passes from the forbidden to
the permitted category
Whence Title-Transfer?
Yet our moral
obligations – what we
are morally forbidden,
permitted, or required
to do – are not the
products of our wills
Moral obligations are
grounded in natural law
and cannot be simply
wished into or out of
existence
Whence Title-Transfer?
How, then, can I, by
giving you my book,
bring into existence a
new obligation for
myself (not to use the
book without your
permission) and cause
one of your obligations
(not to use the book
without my permission)
to vanish?
Whence Title-Transfer?
The right to transfer
property titles cannot
be taken for granted
It must be grounded in
the basis of property
itself: self-ownership
It is alienability, not
inalienability, that
needs justification
Whence Title?
Louis Wolowski and Émile Levasseur, in an
1864 article praised by Rothbard:
“If man acquires rights over things, it is
because ... he spreads over external nature ...
and makes it his own. ... It is his because it
has come entirely from himself .... Before
him, there was scarcely anything but matter
.... The producer has left a fragment of his
own person in the thing which has thus
become valuable, and may hence be regarded
as a prolongation of the faculties of man
acting upon external nature. ...
Whence Title?
... As a free being he belongs to himself;
now, the cause, that is to say, the
productive force, is himself; the effect,
that is to say, the wealth produced, is
still himself. ... Property, made
manifest by labor, participates in the
rights of the person whose emanation it
is; like him, it is inviolable so long as it
does not extend so far as to come into
collision with another right ....”
Whence Title?
The material we transform through labour becomes part
of us in the same way that the particles we eat, drink, and
inhale become part of our bodies – instruments of our
ongoing purposes
My duty to respect your property is simply an extension
of my duty to respect you
Whence Title?
In building a hut I do not create a new, previously
nonexistent basic obligation on the part of others not to
appropriate my hut
I simply extend the boundaries of my self, relying on
others’ preexisting obligation not to appropriate me
Whence Title-Transfer?
Likewise, in giving you my hut I do not destroy one of
your basic obligations and create a new basic obligation of
my own
I simply transfer the hut from the boundaries of my self
to the boundaries of your self, so that my obligation not
to appropriate you now applies to it
Whence Title-Transfer?
Title-transfer is possible because I can
alienate external property from myself by
ceasing to use it as an instrument of my
ongoing purposes
Hence alienability, hence the legitimacy
of contract
But I cannot alienate from myself
anything that is still incorporated within
me – cannot, e.g., sell my blood while it is
still in me
Hence bodily alienability
Contracts, Enforceable and Otherwise
Two ways of enforcing contracts:
• compel the contracting party to do what she agreed to do
(“specific performance”)
• compel the contracting party to pay back value received
plus damages
Contracts, Enforceable and Otherwise
In cases of contracts for personal services or
bodily contents, specific performance is
forbidden – but requiring repayment plus
damages (= external property) is not
Upshot for Surrogacy Contracts
Whether one regards the
surrogate’s right to her
unborn fetus as her owning
the fetus, or as her having
guardianship over the fetus,
she cannot alienate that
right while the fetus is still
inside her; the prospective
guardian cannot adopt it
until it is born
Upshot for Surrogacy Contracts
Hence the surrogate
retains:
a) the right to abort the
fetus (either on inalienable
self-defense grounds, if it is
a person, or as her
property, if it is not a
person) and discontinue
her incubation service
Upshot for Surrogacy Contracts
And the surrogate also
retains:
b) the right to carry the
fetus to term and then
refuse to give it up for
adoption (since it is still
hers up to that point)
Upshot for Surrogacy Contracts
But the surrogate does not
have:
c) the right to accept
money on condition that
she hand over a child, and
then refuse to meet the
condition while also
refusing to return the
money
Upshot for Surrogacy Contracts
Therefore: surrogacy
contracts are legitimately
enforceable if interpreted
as binding the surrogate to
pay damages in the event
of non-performance, but
not if interpreted as
binding the surrogate to
specific performance
THE END