On Monday, I blogged about the announcement by the UK's Human Fertilisation and Embryology Authority that it will reconsider its restrictive caps on payments to egg and sperm donors, due to donor shortages and the resulting reproductive tourism. The proposed change is prompting heated debate across the UK about the propriety of markets not only in eggs and sperm, but in organs and blood, as well. For example, callers weighed in on the topic for an hour yesterday on the BBC’s World Have Your Say. Click here to download the podcast: Download World have your say-1. (HT: Jennifer Jenkins)
I previously blogged about the issue of “immoral” markets here, although I prefer the term “taboo” or “forbidden” markets. That’s what I call the course I teach on this topic each spring (“Taboo Trades and Forbidden Markets”) and the (waiting-to-be-published) volume of Duke’s Law & Contemporary Problems organized around that theme (Show Me the Money: Making Markets in Forbidden Exchange).
But what does the term “taboo trade” or “forbidden exchange” mean? We might distinguish (at least) three separate categories of items and activities in which the law forbids or restricts exchange: (1) illegal ones, (2) inalienable ones, and (3) those that are both legal and alienable, but in which exchange for profit is banned or limited. Sometimes exchange is forbidden as a means to restrict access to an item or activity considered dangerous or harmful to society (illegal drugs, some types of weapons). In these cases, the ban on exchange is largely incidental to the overriding goal of public protection from harm. Illegal items and activities are simply prohibited altogether—their possession, acquisition, and exchange forbidden whether acquired by gift, purchase, or any other method.
Other items, activities, or entitlements are legal but inalienable. Although possessing these items or participating in these activities is legal—perhaps, admired—the right to possess the item or engage in the activity cannot be transferred to another for any purpose, commercial or otherwise. Exchange (for any motive) in these items and activities is, therefore, forbidden—not because we consider the items and activities harmful to society, but because they are so closely tied to the individual’s rights and responsibilities as a member of the community that the state does not allow their separation (e.g. the right to vote for holders of public office or the right to freedom of speech).
Finally, commercial exchange is sometimes restricted in items and activities that are neither illegal nor inalienable, but that nevertheless cannot be sold for profit, a trait sometimes referred to as market-inalienability. The law frowns on, or may ban outright, the mixing of items and activities that are viewed as inherently noncommercial—even sacrosanct—with the crasser aspects of pecuniary markets. It is this third category of activity that I term “forbidden exchange,” and that has held a particular fascination for researchers across a wide range of disciplines, including the contributors to this volume, perhaps because it seems so inconsistent with our default norms that the voluntary exchange of goods and services for payment is not only permitted, but encouraged.
The volume contributors were asked to consider the consequences of making - and restricting - markets in various types of this third category of traditionally forbidden or contested exchange, including human blood, organs, eggs, sperm, reproductive services, and labor. What are the problems with, objections to, defenses of, impediments for, developments in, and challenges facing markets in these traditionally forbidden or contested areas of commercial exchange? What is the effect of prohibiting or impeding commercially-motivated transactions in these areas? As we move toward greater market-based exchange in some of these items and activities, what outcomes might we expect? What must those markets look like, who will intermediate them, and how must the legal regime governing the market participants be structured in order to guard against our traditional fears of market-based approaches to exchange in certain areas of life?
The contributors and their topics (with a link to the paper if it has been posted to SSRN) are:
Rene Almeling (Yale, sociology) --- eggs
David E. Bernstein (George Mason, Law) – labor
Clark C. Havighurst (Duke, law) -- blood
Thomas C. Leonard (Princeton, economics) -- labor
Julia D. Mahoney (Virginia, law) -- organs
Hugh V. McLachlan (Glasgow Caledonian University, School of Law & Social Sciences) – surrogacy
J. Kim Swales (University of Strathclyde, economics) -- surrogacy
For a more detailed discussion of the concept of “forbidden exchange,” as well as descriptions of the papers for which downloads are not yet available, see the volume foreword, here.