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
Melissa B.
Jacoby (UNC, law) – fertility markets
Kimberly D.
Krawiec (Duke, law) – eggs and
sperm
Thomas
C. Leonard (Princeton, economics) -- labor
Julia D.
Mahoney (Virginia, law) -- organs
Hugh V.
McLachlan (Glasgow Caledonian University, School of Law & Social
Sciences) – surrogacy
Elizabeth
S. Scott (Columbia, law) -- 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.
Related Posts:
U.K.
To Reconsider Payments to Egg and Sperm Donors
On
Immoral Markets
Recent Comments