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That's a good point. I think I should have given a more elaborate basis for my argument. And I figured (quite late) that this article is not necessarily in harmony with the LW community perspective, as it involves a legal aspect rather than something related to rationality. So, after pondering for a while, I admit, my approach was flawed, and from now on I won't write anything that fundamentally involves a difficult legal problem, but something related to rationality per se.
Anyhow, what I don't personally get is why would one disagree with an argument which he does not understand. There's one thing to state: "hei, can you provide more explanation for your argument" and there's another to state: "I am not familiar with this topic, I am not willing to do any research, but you are wrong." if people strongly disagree with your argument, it makes you expect that they are familiar with the topic. So whilst you are right in saying that I was wrong to expect people to be familiar with this topic, I think one who is not familiar may either ask questions, do some research or simply ignore the discussion.
I talked about the German piece of legislation - OF COURSE. It has to do with that. That's basic legal knowledge in German law. This is the last comment I am sending in respect of this issue. Maybe do your research? How many legal cases from Germany have you read, about this issue, honestly?
What you're talking about is NOT standard surrogacy. It's the exception type.
Check the case-law if you're so sure that Article which I reffered to has nothing to do with what I argued. You need to see the purpose behind a rule in order to understand it - not to merely read it. (That's quite a basic thing). That piece of legislation has the precise purpose I already told you about.
If one doesn't explicitly say it's Gestational, then it's traditional. Indeed though, mentioning it may help.
First of all, I think you don't concretely understand what (standard, as you said) surrogacy is. Or perhaps you didn't express it correctly or I did not understand what you expressed. Surrogacy is where a woman becomes pregnant with the intention of handing over the child to someone else after giving birth. Generally, she carries the baby for a couple or parent who cannot or do not conceive a child themselves - they are known as "intended parents". It is genetically her child - but the sperm she receives is possibly from the father. What do you mean by 'not hers genetically'? It is hers genetically. How can you carry a child without being yours genetically, as a female?
Second of all, the German Article which I suggested HAS to do with the issue of surrogacy contracts because it establishes who the mother of a child is in a legal sense - and the mother of a child in a legal sense is the one who gives birth to it. Thus, the 'intended' mother cannot claim that she is the legal mother of the child since the law says that the mother of the child is only the female who gave birth to it. The courts interpret this piece of legislation extensively and consider it as an argument which proves that a surrogacy contract is void. It goes like this: since a mother can be only the one who gives birth to a child, then a surrogacy contract cannot be established because there is no such thing as an 'intended' mother - only a biological one. The rule was introduced in 1998 precisely because it wanted to strictly maintain that surrogacy contracts are illegal.
Third of all, I don't think I confuse the idea of legality with the idea of enforceability. In the Netherlands, such a contract is legal but cannot be enforced. In Germany it is banned; illegal. Same case applies to France. Prostitution is a different matter; and i am not familiar with it in terms of contract law. But, taking into account surrogacy contracts, in Germany such a contract is strictly illegal.
I don't think I "mashed" anything. Perhaps give my article a second read and a little bit more attention and research? Adoption was given as an extra argument, but not as a fundamental one, expressed by Posner.
Hope this clarifies everything.
Thank you for your comment. I will come back to you soon.
I think I can see your point, but I will expand a bit to transmit whether I indeed do. You argue that this matter would make sense only if moral realism were applied to it - because otherwise the answer may be relative and thus produce no practical explanation?
Now, about your suggestion, I thought about it beforehand. But I don't see how one can measure that (long-term) in the countries where such a contract is currently not enforceable. And, short-term, I think the answer is self-evident. Indeed, you said "partially" - but I don't think one can even partially analyze that, but only offer some mere predictions, like Posner did. But, maybe I am not creative enough when it comes to how I should analyze the data to provide meaningful answers to your question. You can check the data for India, where such a contract is already enforceable. And you can see the consequences.
I'll sleep on it. Good suggestions. Thanks!
Perhaps both Posner and the Court - but especially Posner - overlook the fact that a female, once she gives birth to a baby - her maternal instinct comes to life and thus influences her emotions and perhaps potentially her decisions. Her perspective thus naturally changes after she gives birth. It is something she cannot easily control. It's a biological process, after all. Could this be relevant?