Life, Liberty and Property

A couple may try to go the independent adoption route, but this route is haphazard and disorganized, and information about babies available for adoption through it is hard to come by. Some states, moreover, have outlawed independent adoptions. 6 It goes without saying that both adoption through an agency and independent adoption favor the wealthy and well connected. The final alternative is the black market, a form of independent adoption. The black market is by definition illegal, 7 and illegality forces price up and quality down and makes prospective buyers uneasy. Long queues, shortages, uncertain quality, a black market — these are the classic symptoms of excess demand, whether in the baby market or the Soviet food market.

67 B.U.L. Rev. 59, 62 (also here)

The above is a quote from a 1987 law review article by Judge Richard Posner, discussing and defending his position on taking a market approach to adoptions. In this article, as well as at least one earlier one, he argues:

The supply of babies for adoption has been dramatically affected by the increase in abortions since the Supreme Court’s decision in Roe v. Wade. 9 The number of reported legal abortions rose from nearly 600,000 in 1972 (before Roe) to almost 1,300,000 in 1983, the last year for which reliable figures are available. 10 Of course, even if abortion were illegal, there would still be many abortions, and of the additional babies born many would be retained by the mother. Nevertheless the supply of babies for adoption would be greater. Because of Roe v. Wade, the state cannot compel a woman determined to have an abortion to have the baby and give it up for adoption, but it does not follow that the woman should not be given incentives to do so. For many women, abortion is a last resort; indeed, most supporters of a right to abortion insist that this is generally the case. Thus, for little more than the maintenance and medical expenses of pregnancy plus any lost earnings, and often for less, many women might be induced to forgo an abortion and give up the baby for adoption. Dr. Landes and I proposed authorizing some adoption agencies, on an experimental basis, to use a part of their adoption fees to pay women contemplating abortion to forgo the abortion, have the baby, and put it up for adoption through the agency.

67 B.U.L. Rev. 59, 63

While Posner goes on to state that he is not calling for the repeal of laws forbidding the sale of babies for adoption, as I am, his argument is not that far off from the ones I have tried to make. I therefore apologize to the Judge for not doing my research prior to my initial post.

Here’s a quick summary of his arguments:

•  Free-market babies would probably cost less than under the current system, and the price would be a fraction of the total cost of raising the child. Perhaps comparable to the medical expense of pregnancy.
• Posner argues that child-abuse laws would prevent any insidious potential of such a market.
• He disagrees with me, arguing that specific-performance should not be a remedy for a breach of contract.
• He expresses an interesting concern about eugenicists who might go into the übermensch-breeding business, and suggests that government ought to regulate against that.
• Detractors of this system often extrapolate from experiences with the illegal market, but a legalized market would operate differently.
• Posner rejects the slippery-slope argument that selling babies would lead to slavery. He compares it to the argument against selling blood, the military draft, and the argument for socialized medicine — arguments that all rely on symbolism more so than logic.
• Though baby selling is illegal, almost half of the states (in 1987) had no specific restrictions on the amount of fees payable for adoption.

One million abortions a year is a serious social problem regardless of where one stands on the underlying ethical issues; so is a flourishing black market in babies combined with a severe shortage in the lawful market.