Tuesday, December 02, 2003


In Howard Bashman's excellent "20 Questions" for Richard Posner, Posner refers to the infamous "baby-selling" article that has widely been mentioned as one reason that Posner could never be nominated to the Supreme Court:
I would have some trouble being confirmed today, though I might squeeze through the way Mike McConnell did, with support from liberal law professors like Cass Sunstein. (My notorious "baby selling" article had been published before I became a judge, yet didn't block me. And, by the way, let me take this opportunity to correct the record: neither in the article, nor in my subsequent writing on family law and economics, have I ever advocated "baby selling." I have merely pointed out the consequences of the present legal regime, in which monetary transfers incident to adoption are (nominally) capped, and have suggested, by way of experiment only, that some adoption agencies be permitted to pay women contemplating abortion to carry the fetus to term and put the newborn child up for adoption. I continue to think it would be a worthwhile experiment.)
I was struck by this, having never read Posner's original article for myself. What is really so wrong with what he proposed? Consider all the ways that people already make money from selling children, or the means by which children are produced:
  • Adoption agencies charge a lot of money to adoptive parents -- $20,000 isn't uncommon. It's usually about half-price when the child is black or Hispanic, which, while distressing, shows that the agencies are responding to market demand. And while most agencies are technically "non-profit," some are classified as "for-profit." Even with "non-profit" agencies, people are still making a living by charging money for the transfer of children from their mothers to someone else. If that doesn't deserve the title "baby-selling," I don't know what would.

  • Sperm banks sell sperm, often charging a few hundred dollars per vial. They also typically offer the donor $50 per . . . um . . . installment.

  • People will pay several thousand dollars for a human egg donation.

  • Doctors and hospitals sell in-vitro fertilizations, which can cost $10,000 to $20,000.

  • Surrogate mothers can make tens of thousand of dollars by carrying and delivering a child that will belong to another couple.
With all the money changing hands over children and their production, I'd say that "baby-selling" is already legal in several forms. What's so bad about paying a woman not to have an abortion, as Posner suggested? In fact, why wouldn't that form of "baby-selling" be morally preferable to the other forms?

On the other hand, if we as a society are going to be so nervous about "baby-selling," then what are we doing allowing the buying and selling of eggs, sperm, surrogate motherhood, etc.? I can't think of a consistent rationale for the current state of the law here.