Category Archives: Surrogacy

Baby Markets Roundtable . . . IX?

I recently returned from the annual “Baby Markets” roundtable, which this year was hosted at Harvard by Glenn Cohen. Apparently this is the 9th iteration of the roundtable, which seems impossible to me, since that means I’ve been working on reproductive markets for 10 years and I can’t possibly be that old or that boring.

I haven’t been to the roundtable the past couple of years, because I’ve mostly been working on issues surrounding organ donation and not so much on reproductive markets. But this past year I have been working on a couple of papers related to the ongoing egg donor antitrust litigation that I’ve blogged about here before, as well as the “taxing eggs” decision, which was the subject of an earlier mini-symposium at The Faculty Lounge.

In brief, I try to tie the legal difficulties these cases present to cultural notions of egg donation as incompletely commodified. That is, regardless of the economic realities of the transaction, egg donation is framed by market participants (including donors, intended parents, and fertility professionals) as not really gift, not really market, but a little of each – a concept that works fairly well as a cultural account, but not so well with an antitrust and tax regime that is (properly, I argue) attuned to egg donation’s status as a market exchange. I hope to be back later when I have more time to discuss these ideas more fully with readers.

But, it was great to catch up with old roundtable friends like Judith Daar, Martha Ertman, Kim Mutcherson, and others. And to catch up with folks I haven’t seen there before, like John Robertson, Reva Siegel, and Kim Buchanan. I also enjoyed finally meeting folks who I know from Facebook or reading their work, but didn’t really know in person, like Gaia Bernstein and Jody Madeira. I’m looking forward to Baby Markets X, which apparently will be a big event at UC Irvine next year.

Share:Tweet about this on TwitterShare on FacebookDigg thisShare on RedditShare on StumbleUponEmail this to someone

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.

Share:Tweet about this on TwitterShare on FacebookDigg thisShare on RedditShare on StumbleUponEmail this to someone