Document Type
Article
Publication Date
1994
Publication Information
18 Seton Hall Legis. J. 553 (1993-1994)
Abstract
Among the more controversial ideas advanced by prominent United States Circuit Court Judge and law professor Richard Posner is his suggestion that a market in babies would rectify many of the problems of the adoption system. His concept has, to say the least, provoked a tremendous reaction in various segments of American society. His critics proclaimed that sales of children would serve to demean the children and their mothers, relegating them to the status of mere commodities. Unscrupulous but wealthy parents might purchase children solely to abuse them. "Baby-selling" became a code word for the foolish extreme to which its proponents could carry law-and-economics.
The truth is that an adoption market already exists, however distasteful that may seem. As Posner aptly described it, there is already a regulated price for babies. States have set the price so low that the demand for adoptable infants vastly exceeds their supply. Because of the discrepancy between supply and demand, a black market has evolved in which the price is extremely high simply because baby selling is illegal.
Posner suggests that legalization of compensation would benefit most of the players in the adoption market, because the supply of adoptable babies will increase given a legal market price. Adoptive parents will acquire the children they so badly desire. The suffering inherent in giving a child up for adoption will decrease since natural mothers will be compensated for bearing the children." The market will provide incentives for the pregnant women to take better care of themselves so the children will be healthier." Arguably fewer women will terminate unplanned pregnancies by abortion. Finally, the children will go to the parents who value them most.
Perhaps the greatest problem with Posner's market theory remains largely unexplored. Courts, legal theorists, and economists invariably focus discussions about children upon the rights of the related adults. While child custody statutes and decisions begin with a "best interests of the child" standard, they end with choosing the interests of one parent or one set of parents. Sometimes judges and legal academic writers accomplish this sleight-of-hand by presumption. Other times the rationale is more explicit. Frequently the child suffers.
This paper looks at the transactions costs imposed by parental revocations and their effect on the current adoption market. The focus, therefore, veers away from natural parental rights and moves toward what is in most cases defacto, rather than preemptively, best for children.
Recommended Citation
Margaret F. Brinig,
The Effect of Transaction Costs on the Market for Babies,
18 Seton Hall Legis. J. 553 (1993-1994).
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/595
Included in
Family Law Commons, Human Rights Law Commons, Marketing Law Commons
Comments
Discussion of Richard Posner's Views; Reprinted: Family Ties: Adoption Reader, Chan & Hollinger eds., New York University Press (2004)