essays

Jan 2, 1979

On Baby Selling

Phyllis Schlafly on baby-selling: “What’s so wrong…? If I hadn’t been blessed [with] my own, I would have been happy to [pay] thousands of dollars for a baby.”

Baby Selling, by Nancy C. Baker. Vanguard Press, 206 pp., $8.95

THERE IS PERHAPS no arena of human endeavor which combines as much pain and delight as that of child adoption. People’s hopes and dreams, their quest for some measure of immortality, their feelings of inadequacy, are all involved in the decision to adopt a baby. How tragic it is then, that this process should be burdened with an extraneous, artificial, and unnecessary element of danger and heartbreak.

The problems which plague adoption are given eloquent treatment by Nancy C. Baker in her Baby Selling. Although given to what might be called the “Soap Opera-Modern” style of writing, Baker does succeed in portraying the pathos of the prospective parents for whom no infant is available; the dilemma of the pregnant woman who has agreed to give her baby up for adoption but changes her mind after birth; the pain and suffering of those who, because of a shortage of infants, are unable to adopt; the abuses attendant upon the “profiteering” and shoddy practices of the middleman, or “baby seller”. But her understanding of the causes of the problems is deficient, and her policy recommendations are the opposite of what is needed. On the whole, therefore, her book is more of a hindrance than a help to those who would alleviate the suffering she documents.

Why, in fact, is there a shortage of infants available for adoption? Why is there a “baby black market”? Why are such shady characters involved in these transactions? And why is there a pattern of all-cash-no-receipts-given in baby “deals”?

The answer is simple. Governmental restrictions, prohibitions and price controls have created the problems which plague adoption. Specifically, the law decrees a zero price control: no payment from adoptive parent to biological parent is allowed. And this intervention is at the heart of the problem. It is responsible for the trauma and heartbreak which attend adoption in the United States today.

If the argument is difficult to endorse, the reason may lie in our emotions—our feeling, perhaps, that money and babies don’t mix. Consider, then, what would happen if a zero price control were imposed on another commodity, one which does not engage any of our deep emotions. Take apples, for example. What would happen if a zero price control were imposed on them? Obviously the incentive to bring apples to market would be eroded. Farmers, forbidden to charge for their product on the legal market, would sell them elsewhere—or not at all. And no one would think the ensuing shortages of apples mysterious. No one would be surprised at the long lists of unsatisfied customers waiting for the few apples that were available. Or at the “unscrupulous” black market sellers who would violate the price control law and sell apples at high prices in the dead of night. Few people would blame the disturbance on greed, or profiteering. It would be clear to all that the cause was the law itself. So it is with babies, and with “black market” adoptions.

We can—and should—go even further. If there were no government intervention—no price controls—in the “baby market,” prices there would have the same coordinating function they have in other markets. If, for example, the supply of babies exceeded the demand, prices would tend to fall.. As prices fell, the number of potential buyers would, of course, rise. Where would the process lead? Toward the point where the number of babies offered for adoption equalled the number that prospective parents wished to adopt.

What if—as is the case today—the demand for babies exceeded the supply? This too would be alleviated by a free and open “baby market.” Even now, at a zero price, a certain number of adoptable infants become available each day. Imagine how many more might become available if they could legally be sold at a substantial price. Women who would not enter the market as suppliers at a zero price might enter an open market. Furthermore, if the price rose high enough, some women might become professional breeders. All in all, the supply of babies would tend to increase as the market value of babies increased.

In brief, then, the market place has a built-in mechanism for resolving dissatisfaction. It would work for babies just as well as it works for apples—if we allowed it to. But we don’t. Instead, we seem to lose sight of basic economic principles when we start thinking about adoption. “Babies are not commodities,” people say. They are human beings, who have rights that must be respected. They mustn’t be thought of or dealt with as though they were apples!

Infants and apples are completely dissimilar with respect to political and moral values. But they are not dissimilar from an economic point of view. Both are subject to the laws of supply and demand.

Still, the notion of “selling” a baby is disturbing. It sounds wrong. It sounds like some form of slavery. Baker, in fact, makes the comparison time and time again. “More than 100 years after the abolition of slavery in this country,” she says in one place, “its about time we stopped allowing children to be bought and sold” (implying that the latter is not altogether different from the former).

But it seems clear that the language is what disturbs us, not the facts. Baker’s objection only reflects the confusion that the words create. For surely, allowing a price to be paid for the privilege of adopting an infant is not equivalent to enslaving that infant! The child adopted as a result of a payment would be legally indistinguishable from one adopted with no fee attached. It is simply not true, as Baker would have it, that if adoption payments were legalized, infants so involved would become slaves.

Aside from the implication about slavery, Baker’s case against baby selling consists of a list of abuses which come about, she says, because the practice is not sufficiently proscribed by law. In fact, the abuses she cites are real. But they are due not to the absence of prohibitionary law. Rather, they are due to its presence. Profiteering, for example, is something that vexes Baker to no end. She bewails “pregnancy for profit” and “made-to-order” babies who net the middleman $40,000 to $50,000 and more. Though her argument is far from clear, she seems to champion the old ecclesiastical doctrine of a “just price.” Thus, presumably basing her calculations on the costs the middleman must undergo, she suggests $500, or perhaps $750, as a proper, “legitimate” and “honest” fee.

But the “fair price” doctrine has long been outmoded—and Baker acknowledges this, at least implicitly. The cost of writing her book, for example, bears no relationship to the financial rewards she is likely to reap if it sells well. Just so, the cash outlay of the adoption middleman bears no relationship to the financial rewards he reaps—if he does well. True, his profits are huge. But that is not because he is greedy (most of us are greedy), but because what he does is illegal, and punishable by fines and jail sentences. If it were legal, the situation would be entirely different. For one thing, more people would enter the field. They would compete with one another for clients, and the fees these clients have to pay would fall. In addition, the pregnant woman herself would benefit. For brokers would have to compete for her patronage too. And she would undoubtedly use the services of the one who paid her the most.

As it stands however, the illegal baby broker earns his fee. For without him, the parties to the adoption would not even be able to find each other. Thus, in the absence of a free market, it is foolish to talk about “cutting out the middleman,” or even trying to reduce his fee. Without him there would be no transaction at all.

At one point, Baker tries to imagine what would happen if “baby selling” were legal. To her, the results would be nothing short of horrible. A past master of the aphorism and verbal taunt, she castigates unprohibited adoptions with appellations such as “stud service”, “piece of merchandise”, “breeding animal”, and “baby farm”, and raises the spectre of artificial insemination as an everyday occurence.

It is time to call a halt to such scare tactics. Not by denying the facts, but by honestly accepting them, and renouncing instead whatever outmoded puritanical instincts stand in the way of such acceptance. If baby selling becomes legal, perhaps an industry dedicated to the “production” (if we can use that word) of human infants for adoption will arise. And if it does, perhaps it will be modeled on the only analogous industry in existence: the breeding of barnyard animals. If so, then “studs”, “brood mares”, “covering fees” and all the rest will come to have their equiva1ents in the market for humans. But this is not a reductio ad absurdum of the whole idea. For it is not absurd at all. The public will become accustomed to it, just as it has become accustomed to “horseless carriages”, “woman nurses”, “test tube babies”, “contraception”, “abortion”, and “the germ theory of disease”—all of which were extremely disturbing, not to say “absurd” when first introduced. No one looks askance at a horse which serves the function of stud or brood mare. And given enough time, people would become accustomed to seeing human beings in these roles. The impropriety which now attaches to “baby production” flows from its illegality—not from anything intrinsic to baby production itself.

Baker also has some curious notions about “duress” and “coercion?” In her view, it is coercive to demand repayment of expense money from a pregnant mother who refuses to go through with a contracted adoption. Given the psychologically confused and troubled times of the last months of pregnancy, Baker says, a woman’s decision to give up her baby is necessarily “made under duress”. Surely this is verbal overkill. Contracts voluntarily undertaken, even by people who are “young”, “confused”, “depressed” or “guilt-ridden” cannot, for those reasons, be unilaterally set aside, without recompense to the disappointed party. If a general rule were made’ of this dictum, it would spell the end of commerce as we know it for these people.

In any case, what Baker describes is not the result of anything intrinsic to the baby market, but rather of misbegotten government rules. For the donors in the illegal adoption market are almost all “amateurs”, with all the innocence, instability, and ignorance implied by that word. Since the whole enterprise is illegal, contracts must be made informally: through a doctor, a nurse, a lawyer, the “lady down the street”, etc. Thus those who might be best fitted to take part cannot, for the most part, be reached.

Were adoptions for pay legalized, more professionals and fewer amateurs would be involved. Unfit donors would quickly be weeded out; and since the industry would be under public scrutiny, at least initially, we might even expect a charitable policy toward pregnant women who changed their minds after signing contracts.

We have argued that profiteering, “breeding for pay”, and requiring the fulfillment of contracts are not in themselves illegitimate. There are, however, a series of abuses in the present baby-selling market which are fully as bad as Baker says they are. These include not carefully checking or actually lying about the qualifications of prospective parents, concealing disease in the baby’s background, allowing the baby to fall into the hands of child abusers and alcoholics, threatening violence against mothers who refuse to give up their babies for adoption, reneging on the deal by the adopters, and conflicts of interest on the part of the lawyer-middlemen, who represent all three parties to the transaction—the mother, the adoptive parents, and the baby. But though they are evil, these and other abuses are also not intrinsic to the baby-selling industry. They are present whenever and wherever the government prohibits or restricts the sale of that which citizens greatly desire, whether it be marijuana, alcohol, taxi medallions—or babies. The results are always the same: shortages develop, profit margins rise, and entreprenuers enter the field who do not mind taking the risk of possible jail sentences. These businessmen, whether they are called “pushers” or “bootleggers” or just “the underworld”, have many things in common: experience with—and inclinations toward—force, fraud, extortion, murder, mayhem and evil. Their very presence gives a bad reputation to any industries they are associated with. In fact, people tend to confuse the two and to assume that the industry is, in itself, immoral, though there are countless examples to the contrary. The best example, of course, is alcohol. When it was prohibited by law, it was a “criminal industry” replete with “stills”, bootlegging, gun-fights and bribery. When the prohibitions were removed it became once again a “normal” industry. Four Roses does not, nowadays, raid, burn and loot the premises of Johnny Walker or Schenly.

No less can be expected of baby-selling. If and when it becomes legal, established firms will supplant fly-by-night operators. Cash-only deals in empty parking lots in the dead of night will give way to more traditional—and more responsible—business procedures. While fraud, violence, concealment and lies cannot be expected to disappear entirely, they will be no more prevalent in baby-selling than they are in any other field. There is no place this side of heaven where all such abuses are absent, but there is no reason to expect that the baby-selling industry will fall short of the levels of business propriety currently in operation elsewhere.

Finally, and most important of all, there is Baker’s claim that baby selling is sui generis, and that in this area all participants lose out. Baby selling, she claims, is not a victimless crime; on the contrary, everyone involved in it is a victim. Says Baker: “Everybody involved in a black market adoption—the natural parents, the adoptive parents, and, most of all, the baby—stands to lose. Everybody, that is, except the baby broker, who just gets richer and richer”

Thus Baker dismisses a basic postulate of economics: that all trades (in the ex ante sense of expectations) are viewed as mutually beneficial by the parties involved. If they were not, one or both parties would refuse to participate. True, in the ex post sense, one or both may come to regret their decision; but this does not contradict the premise that all people always expect to gain from their trades at the time that they make them. If I give you my bicycle in return for your radio, I must value your radio more than my bicycle; and you, if you have voluntarily entered the trade, must prefer my bicycle to your radio.

This point is so well established, and so basic to economics, that even Baker herself, in an entirely different connection, quotes someone in its support. In Chapter Five, which asks: “Why doesn’t somebody do something about the sleazy practice of baby selling for profit?” Baker points to the difficulties of mobilizing witnesses against the baby seller. She cites Donald Score, chief of the Operations Support Unit for the California State Department of Health, who states: “The natural mother is happy and doesn’t want to talk about the experience because she doesn’t want to be exposed as having had an illegitimate child. The adoptive parents ate happy because they now have a child and it’s apparently the quickest way—or the only way—they could get a child. And obviously the conduit (baby-seller) who makes money on the transaction is not about to talk because he could get himself in terrible trouble.” This is hardly a picture of oppression on all sides. Nevertheless, Baker plunges ahead with descriptions of the “victims”.

Citing New York City District Attorney Joseph Morello, Baker points first to the natural mother. Usually an impoverished, unsophisticated teen-aged girl, she is said to be “taken advantage of”, and “victimized”

We may sympathize with the young woman’s plight. But when she is said to be “victimized,” we must ask: How? And by whom? Her plight may be the fault of the errant father of the child, her own parents, her lack· of a “moral” upbringing, or any number of other factors. But surely the baby seller and the adoptive parents cannot be held responsible; since when the girl approaches them she is already in a state of misfortune!

No. In order to make an accurate assessment, we must take the natural mother’s unenviable plight as a given. Then we must ask: will she be made better off or worse off by voluntarily entering into an agreement to give her baby up for adoption in return for, say, room and board for the last few months of her pregnancy, plus a few hundred dollars? As we have seen, in the natural mother’s own estimation, the agreement will leave her better off. If she did not think so, she would not enter in to it. If she is considered a victim, then so must every other person who makes a trade in impecunious or otherwise troubled circumstances. And if baby-selling is declared illegal on this ground, then consistency demands that all “poor”, “unsophisticated”, or “troubled” people be prohibited from making any commercial arrangement for themselves. Such is the reductio ad absurdum of holding the natural mother as a victim.

What about the adoptive parents then? Are they “victimized” by the transaction? Desperate for a child, unable to get one because they fall afoul of the establishment adoption agency’s rules concerning age, income, religion, or anyone of a host of other requirements, and, because birth control pills have virtually dried up the supply of babies, the clients of the baby-seller positivelytreasure the infant. Nothing else can be deduced from their willingness to pay up to $50,000—and in some cases, even more—for the privilege of adoption. It is only perverse logic of the most extreme kind that can consider such people “victims” of the “black market.” “Beneficiaries, who have seen their most fervent wish come true,” would be much more accurate.

What about adoptive parents who have been placed on agency waiting lists but will not receive a baby because it was taken up by the black market? Baker sees this as a particular crime against the poor, because, in the words of Morello, “This racket says, ’Here is the economic breakpoint. If you have more than that, we can start dealing, but if you don’t, good-bye, we don’t want to talk to you’”.

But on this interpretation, the very price system itself is a “plot” against the poor. Only if no prices are charged for anything, and if goods are distributed in some way invariant to income will the poor be in the same position as everyone else. But of course, that “position” would be a terrible one. For without the price system, the economy, and society itself, would grind to a halt. Most people on earth, the poor included, owe their very lives to its existence. And it alone, by providing the incentive to create a baby-producing industry, can end the “baby shortage”, which is at the heart of the problem.

The courts, and the police too, are sometimes seen as victims of black market baby selling. For when a great deal of money is made by disobeying a law, part of it is likely to be funneled toward the executive and judiciary branches of government, thus corrupting them. This happened commonly during alcohol prohibiton and it occurs today in the illicit drug market. So far, there is little evidence of it in the baby-selling market. But it is certainly a possibility. And if it occurred, the government would be harmed. But would it be a victim? No. To turn the old adage around: in this case the government would be more sinning than sinned against. For it is the creator of the malignant legislation which is responsible for the problem in the first place.

Finally, let’s turn to the infant itself. Says Baker: “Black market adoptions [are] transactions in which money, not the child’s welfare, is the paramount factor?’ “The original selection of the adoptive parents is not being made either by the natural mother or by an agency but by somebody who wants to know only the color of the adoptive parent’s money?’ In contrast, while the state’s representation of the “three days old infant’s” rights are “[imperfect] mechanisms”; the baby at least “deserves to have those mechanisms invoked and applied.”

This is an important argument and one which at first glance may seem difficult to rebut. Can we show that free market operation will result in better protection for the baby than governmentally regulated operations? It seems that we can. For the regulated adoption agencies leave much to be desired. Baker herself tells us that “The courts, too often, see their function in any kind of independent adoption as merely rubber-stamping applications. There was almost never any close scrutiny of parents, attorney, or child.” She even cites one “California case where the judge approved an adoption after the social worker had supplied him with proof that the adoptive parents had physically abused the infant” (emphasis added). And although Baker spends the last 30 pages of her book informing readers about legitimate adoption agencies (presumably so that the evil black market might be avoided), she quotes one agency source as follows:

I visited agencies where case records of children were kept in cardboard boxes in the hallways, and there were records on “children” twenty-five and twenty-six years old who were married and raising families of their own, but whom the system still listed as kids. The situation is tragic in that we cannot estimate how many children need permanent homes for adoption because of the lack of administrative and recording systems within the agency which will keep track of these children.

So much for the operations. What about the rules themselves, which are supposed to safeguard the infant’s welfare? There are a whole host of them—racial, ethnic, religious, medical, and others, imposed by the “responsible” statist adoption agencies. But almost everyone who studies them calls them “arbitrary” and “unfair’: They do little to weed out unfit parents. Rather, they seem designed to satisfy the personal likes and dislikes of various bureaucrats.

Market agencies need do little to improve upon this sorry record. But improve upon it they undoubtedly would. For they would be dependent on voluntary contributions from satisfied clients. They could be forced into bankruptcy if they failed to act in accordance with the preferences and wishes of the general public. For example, if a free market agency placed infants with child beaters, it would soon go out of business—a fate which judges and public agencies need not fear. Public outrage and revulsion can erode the valuable brand-name capital of the former; it is impotent in the latter case. In addition, once adoption became a “free enterprise” endeavor, Nader-type groups would almost certainly be formed to serve as watchdogs. And since profit-oriented firms are dependent upon goodwill and public acceptance, the watchdog groups would have a great deal of power over them—much more than they will ever have over courts and social work agencies.

Such is the case for the legalization of baby selling. It is a good case, and a strong one. But perhaps libertarians will wish to hold back. They may think that it’s too radical, too far out; they may fear that an endorsement would retard the popularity of the movement with non-libertarians. They can take heart, then, from the stirring example set before them by none other than Phyllis Schlafly, hardly an outspoken extreme libertarian, who last year, in support of the decriminalization of baby selling, said: “What’s so wrong about that? If I hadn’t been blessed with babies of my own, I would have been happy to have paid thousands of dollars for a baby.”

Where the conservative Schlafly goes, can libertarians fear to tread?


Walter Block, who teaches economics at Rutgers, is the author of Defending the Undefendable.