Monthly Archives: July 2014

Regulating Reproduction. Or Not . . .

medical-tourism-puerto-vallarta-mexicoThe N.Y Times had a (somewhat) interesting front-page article on commercial surrogacy a few days ago. I add the qualifier “somewhat” because the article is factually interesting, detailing the scandal associated with Rudy Rupak’s Planet Hospital, a California-based medical tourism company. But the article, while implying that regulation is needed to stop these sorts of abuses in the future, doesn’t explore what I think is the far more interesting question of the trade-offs that are often politically necessary when it comes to regulating reproduction, including commercial surrogacy.

The article describes Mr. Rupak’s dealings as an international surrogacy intermediary, connecting prospective parents with surrogates and clinics in surrogacy hotspots like India, Mexico, and Thailand. Among other offenses (including egg splitting and failing to adequately screen surrogates), Rupak apparently accepted payments for surrogacy services and kept the payments without performing the agreed services. According to the story, Rupnak is now bankrupt and under investigation by the FBI.

As the article notes, this is only the latest in a series of scandals, some of which I’ve written about before. And such scandals are likely to continue as prospective parents seek to avoid onerous home country regulations or avoid the high cost of surrogacy services in the United States. The article continues:

In fact, hundreds of new surrogacy businesses advertise their services on the Internet because anyone can establish an agency, regardless of background or expertise. Agencies are started and disappear, sometimes reappearing under a new name.

I’m sympathetic to this complaint, and have previously argued that greater regulation could improve many aspects of the surrogacy market. What the article doesn’t acknowledge, however, are the costs that would likely accompany grater oversight of the commercial surrogacy market. As I discuss in prior work on “baby markets” more generally (which include, but are not limited to, commercial surrogacy):

The failure to acknowledge the full breadth of the legal baby market imposes severe costs on the market and its participants. Those costs include the forgone opportunity to develop legal policies designed to improve the functioning of the market, as discussed in Part II.A., and forgone opportunities to further particular public policies unlikely to be advanced solely through the goal of profit-maximization, as discussed in Part II.B.

This is not to suggest that legal oversight is a panacea without costs of its own. Greater government involvement means that costs are likely to rise, some services that people desire may be prohibited, and certain types of customers — for example, older parents, single parents, and gay and lesbian parents – risk being legislated out of the market. These are the costs that must be weighed against attempts to improve the baby market.

With time, I suppose I’ve become even less optimistic (or, one might argue, more realistic) about the possibility of effective “baby market” regulations that do not eliminate large sectors of the marketplace. For some that would obviously be a welcome outcome. But it would not be welcome by many of those who argue for greater regulation of the surrogacy, ART, and gamete markets, suggesting, perhaps, that such advocates should be careful of what they wish for.

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Shanghai: Work, Food, and More



I was in Shanghai last week for the first time, attending a conference and an alumni dinner. The conference – The 2014 International Forum on Financial Law — was at KoGuan Law School at Shanghai Jiao Tong University and was a lot of fun. The conference format was a new one for me and I thought worked very well, especially for an international audience.

Image - Version 2The morning consisted of public lectures by party officials, regulators, practitioners, and academics with simultaneous translation. One or two of the Chinese academics were fairly critical of various aspects of the Chinese legal system, and watching the responses from fellow presenters and audience members was especially interesting, though I’m sure that I missed many of the subtleties of these exchanges.

IMG_0539The afternoon was divided into parallel sessions, one in Chinese and one in English, with paper presentations by invited guests. My presentation was in the English session, of course, so I can only speak to the specifics of that one, but I was very pleased with the quality of the presentations and discussion. I learned some new things about emerging corporate law and financial regulation issues in China, Singapore, and Japan, and was struck by both the similarities and the differences of the concerns: for example, several of the papers were on shadow banking in China, which is clearly a concern (as it is in the U.S.), but the character of shadow banking appears quite different in China, making the US experience only partially comparable.

IMG_0544My panel line-up was scheduled as follows, though for scheduling reasons there was a last minute switch of Shen Wei’s presentation on Chinese local government debt and shadow banking (which was excellent) instead of Cheng-Yun Tsang (who did a fine job on the next panel):

Host: Shen Wei, Professor of KoGuan Law School, SJTU

Discussant: Douglas Arner, Professor of The University of Hong Kong


Kim Krawiec, Professor of School of Law, Duke University

Wang Jiangyu, Associate Professor of Law School, National

University of Singapore

Manabu Matsunaka, Professor of Nagoya University

Tang Yingmao, Associate Professor of Law School, Peking University

Cheng-Yun Tsang, Doctoral Student of School of Law, Duke University

Naturally, I made time for some food tourism as well (courtesy of UnTour, which I highly recommend). Included are photos of my street food breakfast in Shanghai on the day of departure, which was delicious, and can be roughly divided into three categories: noodles, dim sum, and deep fried dough (yum, yum!)

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