Can you buy children?- Margaret Brazier
(c) Jordan Publishing Limited 1999 CFam 11.4(345)
(c) Jordan Publishing Limited 1999
CHILD AND FAMILY LAW QUARTERLY
LENGTH: 7339 words
TOPIC: CHILDREN AND YOUNG PERSONS
TITLE: Can you buy children? n1
AUTHOR: Margaret Brazier
Professor of Law, Institute of Medicine, Law and Bioethics, University of Manchester
LEGISLATION REFERRED TO:
Bioethics Convention; Embryology Act 1990; Convention for the Protection of Human Rights and Dignity of the Human Being with the Application of Medicine and Biology; Adoption Act 1976; Criminal Justice Act 1982; Administration of Justice Act 1982
In 1978 one of the finest legal scholars in the USA, Judge Richard Posner, caused a furore on the other side of the Atlantic. In a seminal article, written with Elizabeth Landes, he was popularly, albeit inaccurately, supposed to have advocated an unrestricted trade in children. 2 A letter in the Wall Street Journal accused Landes and Posner of seeking to bring about a state of affairs in which the wealthy parents of a sick child could buy a healthy baby and ‘harvest’ its organs to save their own infant. They advocated nothing of the sort. Landes and Posner went no further in their original article than an argument that financial inducements to bring about an adoption should not be outlawed. A limited and regulated market in babies could be beneficial. Attaching a price-tag to children did not undermine their moral value. In particular, paying women to reject the option of abortion, to carry a child to term and then surrender her for adoption could have significant social benefits. It would be at least ‘a good experiment’.
Imagine the headlines in the Daily Mail were any British academic to have the courage to answer the question posed in the title of my article, ‘Why not – yes you can buy children?’. The very notion of a baby trade sanctioned by law and involving the selling of British-born babies seems far-fetched. Yet how far are we from a market in babies? The Roman Catholic Church in Scotland openly advertises the availability of payments, or at any rate payments in kind, to encourage pregnant women not to have abortions, leaving open the option of the woman surrendering her child for adoption at birth. In the context of the reproductive technologies, advertisements in the American press offer $50,000 for eggs from young women students at Ivy League universities who enjoy perfect health, are over 5′ 10″ tall and have SAT scores of 1400 plus. The Internet advertises customised eggs and sperm to British buyers. 3 Surrogates are recruited and openly remunerated for their services in the USA. Surrogate mothers in this country are paid ‘expenses’ of £ 10-15K. 4 If an infertile couple can buy an egg, and rent a womb, why should they not buy the finished product? It will be argued of course that in purchasing gametes and/or the services of a surrogate, they are not buying a baby. I hope to demonstrate that that argument is specious. If, in the UK we wish to sustain objections to trade in babies, payment to surrogates should continue to be outlawed, and continuing payments to gamete donors must be, at the least, a cause for concern.
/ˈspiː.ʃəs/ adj formal disapproving
seeming to be right or true, but really wrong or false
a specious argument/claim
/ˈspiː.ʃə.snəs/ n [U]
(Definition of specious adjective from the Cambridge Advanced Learner’s Dictionary)]
Moreover in relation to paid surrogacy and trading in gametes, other considerations reinforce the case against commodification. In debate on commercialising human reproduction, many commentators continue to look to the USA for comparisons and to contend that what can be done there, should happen here, or that we have no choice but to toe the American line. Prohibition will be futile, we are told, because the procreative tourist will simply cross the Atlantic. Crossing the Channel is more likely, and there is a tendency to overlook the fact that our European partners 5 have for the most part firmly rejected trade in body parts or bodily services. They adhere wholeheartedly to Article 21 of the Bioethics Convention 6 which declares that ‘the human body and its parts shall not, as such, give rise to financial gain … organs and tissue … should not be bought or sold or give rise to financial gain for the person from whom they have been removed or for a third party, whether an individual or a corporate entity, such as, for example, a hospital’. In this article, however, I shall focus pre-eminently on baby selling.
WHY NOT ‘BUY’ BABIES?
Adoption laws in the UK prohibit payments in consideration of adoption, giving agreement for adoption, or handing over a child with a view to adoption. 7 Private placements of a child for adoption, save with a relative, are unlawful. 8 Unlike some states in the USA, the surrender of a child from one family to another is clearly a public, not a solely private matter. The background against which debate on pricing babies takes place is therefore somewhat different to that in which Landes and Posner advanced their case for ‘buying’ babies. The differences do not however affect the central tenets of their case.
There are many unhappy couples, who are unable to have children naturally, yet are able and willing to offer a child a stable family life, and who want to found a family. The supply of children for adoption to meet this demand has declined dramatically in the last two to three decades. The numbers of terminations of pregnancies have risen, as have the numbers of single women who elect to keep their babies. Supply fails to meet demand. Landes and Posner argued that on an experimental basis some USA adoption agencies should be allowed to pay women to forego abortion, to have the baby and put it up for adoption via the agency. They contended that abortion is perceived by many women as a last resort. The ‘price’ of an extra baby for adoption might be ‘little more than the maintenance and medical expenses of pregnancy plus any lost earnings’. 9 Women contemplating abortion would be offered a modest financial inducement to continue their pregnancy.
Confronted by critics who accused him (inter alia) of encouraging the exploitation of the poor, a trade in babies for the purposes of child abuse, and encouraging an ‘auction’ whereby wealthy couples bid for the best baby, Posner, in defence of the original proposal, seized the initiative and attacked his opponents. 10 If we allow exchange of babies, and we do, in sanctioning the surrender of a child from one family to another, he asked what good reasons militate against attaching overt monetary value to that exchange? The birth mother after all always makes a monetary gain in that she is relieved of the cost of raising her child. Posner fired at several of the anti-baby selling arguments. Will pricing babies ensure that only wealthy couples could adopt and so drive up the price of babies? Will baby markets become akin to property markets, generating price wars? Posner argued that such an outcome was highly unlikely. Raising children is expensive. Wealthy people have high costs of time and, child-rearing being a time expensive business, raising children costs the wealthy more. Wealthy people, Posner commented, tend to have fewer children. Therefore no greater demand for babies to buy is likely to come from wealthy couples. Wealthy prospective adopters would not drive the less well off out of the baby market by inflating prices.
Did Posner ignore uncomfortable facts? Fertility problems become more prevalent as couples, especially women, age. Better off couples, especially couples where the woman pursues a profession, are likely to delay attempts to have children. A greater proportion of wealthy couples may thus find themselves having difficulty in procreating naturally. If such couples decide to enter the baby market and to allocate a proportion of their resources to child-rearing, those resources will inevitably enable them to offer higher inducements to persuade the birth mother to provide them with a child. Moreover I am less sanguine than Posner that pregnant women will forego termination for a minimal payment. Simply meeting the expenses of pregnancy is unlikely to be enough. Women will expect to make some net gain. Once monetary gain motivates women to continue a pregnancy, the level of the gain necessary to provide the requisite inducement to do so may well begin to rise. The higher the bid the more likely the sale. That problem could be met by regulating baby prices. A standard and moderate price might be set which those responsible for adoption services would seek to maintain at a point sufficient to ensure supply without so distorting the market that suitable adopters are deterred by high prices. As Duxbury 11 has pointed out, implementing Landes’s and Posner’s proposal does not ‘necessitate an unregulated market’. Nor should we forget that Posner advocated an experiment only.
/ˈsæŋ.gwɪn/ adj formal
(of someone or their character) positive and hopeful
They are less sanguine about the prospects for peace.
See also: optimistic
(Definition of sanguine adjective from the Cambridge Advanced Learner’s Dictionary)]
What of the consequences for the child? Do we devalue or demean babies if we treat them like chattels? 12 Posner again answered in the negative. He maintained that as long as we regulate the baby market effectively no ascertainable harm is done to the welfare of the child. Five limitations would prevent harm to children:
(1) Child abuse laws would rule out the scenario whereby a millionaire buys a baby to ‘harvest’ its liver for the salvation of her dying child.
(2) Screening of prospective adopters would continue. Unfit parents would be no more permitted to buy a baby than to be given one.
(3) The normal remedies for breach of contract would not be available. Buyers would not be permitted to reject defective products nor would specific performance be available against the natural mother.
(4) Only infants could be ‘sold’. Once a child had established a bond with the parents no further exchange of the child should be allowed.
(5) Regulations should be devised to prevent the development of eugenic breeding programmes.
Given such constraints, Posner argued that there are no rational or practical objections to his limited experiment in baby selling. The case against him rests, he suggested, in symbolism, in arguments that attaching a price-tag to babies devalues babies. He attacked what he perceived as a slippery slope argument. People who argue that to allow limited baby markets opens the door to monstrous practices, who equate paying for babies with slavery, fail to separate what he is actually proposing from nightmare scenarios which a properly regulated market would rule out. Couples in the USA already pay adoption agencies. Adoption already has a financial cost. Direct open inducement to pregnant women and birth mothers with infant children only brings the benefit of a more adequate supply of babies. A social evil, abortion, may be diminished.
Reflect for a moment on Posner’s limited baby market. It is by definition a quasi-market. The ordinary rules of contractual exchange are excluded from this market. The limitations on exchange of babies set out in the proposal are expressly designed to protect the child. No incentive to child abuse is present in this regulated market. Many of the objections expressed to the proposal are exaggerated and unfounded, approaching what Duxbury has described as a ‘caricature’ of what was originally suggested. 13 Paying women to carry a child to term, who would otherwise never have been born, does not necessarily result in a market ‘offering children of all ages to the highest bidder’. 14 Markets and property in non-human animals do not license animal cruelty. We might ask whether they lower the barrier to mistreatment?
n1 This article is based on a paper given at a seminar organised by Child and Family Law Quarterly and held at All Souls College, Oxford, on 2 July 1999. I gratefully acknowledge the stimulus and support of the Commission of the European Communities (DG XII) Biomedical and Health Research programme (BIOMED 2) (Contract No BMH4-CT96-1444). I thank Jean McHale and Sara Fovargue for their comments on an earlier draft of this article.
n5 Payments to surrogate mothers are prohibited in France, Denmark and The Netherlands. Surrogacy itself is effectively prohibited in Austria, Germany and Sweden. Payments for gametes are expressly outlawed (inter alia) in Germany, Switzerland, Italy, Denmark, France and Spain.
n9 R. A. Posner, ‘The Regulation of the Market in Adoptions’ (1987) 67 Boston University Law Review 59, at p 63. And see the incisive analysis of Landes and Posner by J. Robert and S. Prichard, ‘A Market for Babies’ (1984) 34 University of Toronto Law Journal 341.