Markets without Limits includes a lengthy discussion of “baby buying”.

I’ve already covered markets in designer babies here and here. Today, let’s talk about markets in adoption rights.

Michael Sandel complains, “Even if buyers did not mistreat the children they purchased, a market in children would express and promote the wrong way of valuing them. Children are not properly regarded as consumer goods but as beings worthy of love and care.” This is what Jaworski and I call an instance of a “wrong signal” objection to markets. We debunk that and other semiotic objections to markets in everything here. (Ungated pre-publication draft here.) But even once we get rid of the semiotic objections, other objections remain.

Objection: Children Aren’t Property, So You Can’t Sell Them!



The question of “baby selling” is not really about whether we can buy and sell babies as if they were property. Instead, the interesting question in the commodification debate is whether it is permissible to buy and sell adoption rights.

How Adoption Markets Nicely Illustrate our Thesis



Our thesis, recall, is that if you may give something to someone, you may sell that thing to him or her. If you may take something from someone for free, then you may buy that thing from him or her. Let’s apply that kind of reasoning here. Some people object to markets in adoption rights. But, for their objection to genuinely be about markets in adoption rights, they need to hold that 1) there are cases where it is permissible to transfer adoption rights for free, without the exchange of money, but 2) it would be inherently wrong in those cases to transfer adoption rights for money.

We think the interesting moral questions about markets in adoption rights aren’t really about the markets per se. Instead, we see two major moral questions:

When, if ever, is it permissible for a person to relinquish, voluntarily and without compensation, his or her parental rights over her child? What conditions and factors, independent of the willingness and ability to buy adoption rights, make a potential parent fit to adopt a child?

In our view, the ethics of adoption markets just reduces to the answers to these questions. Markets themselves play no explanatory role in explaining when it is wrong to buy and sell adoption rights.

We don’t ourselves have an answer to the first question, and it’s not essential that we do. Suppose you think parents may voluntarily relinquish their parental rights only if they are in distress. Our response would be that if that view is correct, then only parents in distress may sell parental rights. Or, suppose you think, as many of our left-liberal colleagues do, that new biological parents may always voluntarily relinquish their parental rights, provided they can find a suitable home for their children, or find a suitable governmental or non-governmental agency that will in turn ensure their offspring’s welfare. Our response would be that if that view is correct, then any parents meeting those conditions may sell their parental rights. Or, suppose you think that parents may never voluntarily relinquish their parental rights. Our response would be that, if so, then they may never sell rights to adopt, but that’s not because selling per se is wrong. Rather, it’s because they may not give these rights away, period.

As for the second question: some potential parents are unfit and so should not be allowed to adopt or care for children. Others are fit and should be allowed to adopt or care for children. We do not ourselves have any full developed theory of parental fitness, though there are philosophers and others who work on explaining this distinction. We accept commonsense ideas, such as that pedophiles should not be allowed to adopt or care for children. We also accept the commonsense idea that we ourselves are fit enough to be parents—our children should not be taken away from us, and we should be allowed to adopt. But beyond uncontroversial claims like these, we do not have a fully worked out theory.

However, let’s just say that there is such a theory, the Correct Theory of Fitness, that explains which would-be parents are fit to adopt, and which are not. We don’t ourselves know what the Correct Theory of Fitness is, and we don’t ourselves know if anyone else knows what it is. However, presumably there is some truth of the matter here.

Now, according the Correct Theory of Fitness, some would-be parents are fit to adopt. Others are not. Our view is that this is that the question of who may buy adoption rights reduces to this Correct Theory of Fitness. It is permissible for you to buy adoption rights, so long as you are fit parent, as judged by the Correct Theory of Fitness. If, according to the Correct Theory of Fitness, you are fit to adopt a child for free, then, we hold, you may pay as much as you’d like to adopt that child.

Our main concern for markets in adoption or guardianship rights is just that babies not go to unfit parents. But this is a question of the design and regulation of the market, not an inherent problem with the market that can never be solved.

The Economic Argument for Adoption Markets

See Landes and Posner here. See also Krawiec here.

According to Landes and Posner, here are some of the main dysfunctional aspects of adoption markets, at least as of 1978:

There is a massive shortage of healthy white babies. That is, the quantity of white babies demanded by would-be adopters far exceeds the quantity of available white babies supplied by biological parents. However, there is a glut of unhealthy and minority babies.

Since outright baby selling is illegal, this pushes many baby sales to the black market. However, as one might expect, black market baby selling suffers from many problems, just as all black markets have problems. The quality of the “product” is lower and less reliable. Sellers are less reliable and trustworthy. Some of the babies are obtained via kidnapping or coercion. And the price for the babies is made very high.

Parents who wish to adopt a strangers’ baby outside the black market typically must go through highly regulated adoption agencies. These adoption agencies are permitted to and do in fact charge fees, but they do not compensate mothers who relinquish their babies. Mothers receive some money to defray their medical costs, but not enough to compensate for the full costs of carrying a baby to term, let alone for their emotional costs. Moreover, because mothers receive such low fees, this causes a large queue—too many would-be parents are willing to “buy” at that low price, but not enough mothers are willing to “sell” at that price.

Almost all adoptions (among strangers) are brokered by licensed not-for-profit adoption agencies, who have a near monopoly on the market. They suffer from the typical problems of non-profits and monopolies, and so their services are low quality.

So, in short, there are pre-existing markets in babies. However, the legal market is dysfunctional because the legally mandated price of white babies is artificially low. This leads, predictably, to a shortage of babies, with long, inefficient queues. At the same time, it also leads, predictably, to a black market in babies, with artificially high prices, and all the other undesirable and dangerous consequences of black markets.

Landes and Posner think that a less restricted market would reduce many of the problems with the existing market. They think it would reduce the shortage, eliminate or at least significantly curtail the black market, reduce the time parents spend waiting to acquire babies for adoption, and also lead to a better allocation of babies, an allocation more likely to serve the babies’ interests. By pricing adoption rights, it becomes more likely that older or less desirable children will be adopted. If I see that the price of a newborn is $25K, but the price of a 10-year-old boy is $2K, I might well decide to adopt the older child, even though I’d prefer the newborn if the prices were the same. A less regulated market might allow both would-be sellers and buyers to contract with one another to ensure certain health or safety outcomes.

Note, finally, that Landes and Posner are not saying that babies should just go to the highest bidder, regardless of anything else. Of course, bidders should be fit parents. Known pedophiles, etc., should not be allowed to buy children.

Objection: If There’s a Market for Adoption Rights, Only the Rich Will Get Babies

This is an instance of what Jaworski and I call an allocation objection to markets. As with any allocation objection of this form, on response is to say, “Okay, if that’s your only worry, then why not not allow a market, but have government-subsidized adoption-market vouchers for the poor? Wouldn’t that be better?”

Another response, available to us, would be to grant this complaint, but then ask if it has any moral weight. Few viewers of Juno complained that Juno gave her baby to rich, successful Vanessa, rather than a fit but less successful would-be mother. As it stands, most people seem to accept that, in those cases where parents may voluntarily relinquish their children, these parents may relinquish their children to any fit parents of their choosing. When people are free to choose, some will have more advantages than others. But that isn’t necessarily wrong. At any rate, we need to be supplied here with a moral argument showing that all fit parents merit an equal chance of getting the same babies.

A second response is to note that the supply of babies available for adoption is not fixed. It is endogenous to the market. If adoption rights can be sold, then some people who would otherwise not have relinquished their parental rights will choose to do so. A market in babies will increase the supply of babies. Think, for example, of the typical college student who accidentally gets pregnant. Right now, many (perhaps most) such students choose abortion over A) carrying their fetuses to term and raising the babies themselves or B) carrying the fetuses to term and then giving the babies up for adoption. However, if these college students could receive a monetary reward for choosing option B over an abortion, more of them would choose to do so.

It’s tempting to think that markets in adoption rights would simply raise the price of adoptions and thus make babies even more unattainable. However, right now, most of the money spent in acquiring adoption rights goes to adoption agencies, rather than to the mother providing the child. But, as Landes and Posner argue, in a more deregulated market, mothers relinquishing their parental rights would be allowed a higher payment themselves for those rights. The middleman adoption agencies would see their role and their payments diminished. If so, then it’s quite possible that in a less regulated system, because mothers who supply babies would receive more money, the supply of babies would increase, even as the total cost to would-be parents of acquiring babies would decrease.

Objection: White Babies Would Cost More, and That’s Repugnant

A final objection to markets in adoption rights is that prices would reflect underlying racial biases. After all, most people prefer to adopt someone of their own race, but in the US, white people tend to be richer than black people, and so the effective demand for white babies will likely be higher. At the same time, there are more black children available for adoption than white children. White babies will thus fetch a higher price than black babies. This seems unsavory, at the very least.

Our response here begins by noting that in the existing adoption market, in which parents pay adoption agencies but only offer token compensation to mothers, white babies already cost more than black babies. Also, the queue and waiting times for white babies are longer than for black babies, meaning that the non-pecuniary costs of white babies are already higher. Unless the objector could show a less regulated market would exacerbate these problems, then the objector should have no real complaint against a less regulated market.

As far as we can tell, the market here does not introduce any immoral racial preferences, but simply reflects underlying racial preferences. It also reflects other underlying issues and inequalities, such as that, thanks to historical injustice, blacks have less income than whites. The problem here, then, isn’t with the market. The market does not introduce a problem where there wasn’t any to begin with.

Bottom Line:



At the end of the day, most people who’ve read about the economics of adoption markets seem to conclude there’s a strong welfarist case for adoption markets. That doesn’t mean there should be an unregulated free market in adoption rights, but having a market in adoption rights is better than not having any such market. Nevertheless, most people just feel that it’s “icky” or “noxious”. As Peter and I argue in the last part of Markets without Limits, a great deal of people’s opposition to commodification is a projection of disgust.