The Law & Contemporary Problems volume, Show Me The Money: Making Markets in Forbidden Exchange, which I’ve blogged about before (see here and here), was published this week. Here’s the table of contents, with hyperlinks to each of the published articles:
The articles are interesting contributions to the field of various “taboo trades,” including blood, organ, surrogacy, egg, sperm, parenthood, and some labor markets. For example, in Trafficking in Human Blood: Titmuss (1970) and Products Liability, Clark Havighurst concludes that theories, such as those popularized by Titmuss, that human blood collection should be left to the dictates of personal altruism and professional standards, rather than to market forces, liability rules, and consumer choice, arguably left the public more vulnerable to blood contamination in the face of the HIV crisis than would have been the case if a more commercial approach to the blood industry had been openly accepted.
In Altruism, Markets, and Organ Procurement, Julia D. Mahoney dissects traditional objections to organ markets—including objections based on improper commodification, the potential crowding out of donation, safety concerns, increased transplant costs, and the exploitation of the vulnerable— arguing that these criticisms “range from the highly contestable to the demonstrably wrong.”
Rene Almeling, in Gender and the Value of Bodily Goods: Commodification in Egg and Sperm Donation, and I, in Sunny Samaritans and Egomaniacs: Price-fixing in the Gamete Market, rely on similar data to reach both similar, and quite different, conclusions. We both argue that, for biological and social reasons, the structure of the gamete market is highly gendered. But Almeling contends that eggs and egg donors are more highly valued than sperm and sperm donors. I conclude instead that, as in most other industries, the economic forces of supply and demand are allowed to set sperm prices, while egg prices are set through the same type of professional standards and pricing “guidelines” that have been declared per se illegal in other industries.
In Commercial Surrogate Motherhood and the Alleged Commodification of Children: A Defense of Legally Enforceable Contracts, Hugh V. McLachlan and J. Kim Swales defend the legal enforceability of surrogacy contracts, as well as their prior work on commercial surrogacy, against criticisms by others, including Elizabeth S. Anderson, Eric Blyth, and Claire Potter, contending that rational prospective parents may consider that there are advantages and disadvantages to both altruistic and commercial surrogacy, and intended parents should be allowed to freely choose which system best suits their preferences. In Surrogacy and the Politics of Commodification, Elizabeth S. Scott examines the history of commercial surrogacy, from the moral panic seeking to stamp out commercial surrogacy that ensued after the Baby M decision, to the more sanguine view evidenced today by many courts and legislatures, which seek primarily to ensure certainty of parentage and to address other policy concerns arising from commercial surrogacy. Of particular interest is Scott’s analysis of the evolving views of feminists and liberals to the commercial surrogacy question and the resulting demise of the unstable coalition formed among feminists, liberals, and social conservatives in the wake of Baby M.
In The Debt Financing of Parenthood, Melissa B. Jacoby considers a vitally important, yet frequently overlooked, aspect of making markets in traditionally forbidden exchange: how such exchange will be financed and the potential policy implications of those financing choices. Finally, in Excluding Unfit Workers: Social Control Versus Social Justice in the Age of Economic Reform, David E. Bernstein and Thomas C. Leonard consider the original contested commodity—human labor. Bernstein and Leonard argue that immigration, working poverty, and the relationship of women to the marketplace are not simply modern political and economic issues, but were vital and contentious issues a century ago, laying the groundwork for American labor reforms, including minimum-wage laws, that had previously been considered unthinkable government limitations on free exchange in the labor market.
Money can’t buy everything, but as the contributors to this volume demonstrate, it buys more than is commonly assumed. From blood and organs to eggs, sperm, and parenthood, money is closely intertwined with numerous items, activities, and relationships that many contend should be impervious to, or even sacredly immune from, market forces. As demonstrated by these authors, popular notions regarding the existence of sacred spheres of life immune from market forces are, at a minimum, overstated and, in some cases, wholly false. Such beliefs, nonetheless, are genuine formal and informal constraints on the development of markets in forbidden exchange. Negotiating the boundaries and limits of legal and societal definitions of forbidden exchange in the face of resource constraints, scientific innovation, and changing social mores will be the future challenge for scholars in these fields.
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