Babies For Sale, In A Market Near You

Babies For Sale, In A Market Near You

Planned Parenthood may sell baby parts, but the surrogacy industry sells whole babies, alive.
Jeff Shafer
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The black market in baby sales is a predictable shadow enterprise of foreign surrogacy markets. The open question is how long it will remain a back-alley economy. Considering the form and function of the multi-billion-dollar child production industry, and the public shrug at its operation, the wonder may be that direct infant sales are still illegal.

It seems we have not yet internalized the logic of the surrogacy industry associated with these sales. We’ll see how long that condition endures.

The Traffic in Small Humans

In a recent episode of the HBO documentary news program “Vice” (“Outsourcing Embryos”), journalist Gianna Toboni investigated the booming surrogacy market in India. The latter portion of this episode presents Toboni undercover in a hidden-camera meeting she initiated to explore the black market in babies. That meeting yielded more than she was expecting: the baby brokers brought with them an infant they offered to sell her on the spot.

Where do such babies come from? A couple sources.

First, some clients don’t show up to retrieve the child they ordered. Within the surrogacy business, the woman carrying and giving birth to the child is a bio-service provider, not a mother. So the child-commodity is an isolated unit until customer pickup. Absent such retrieval, the child has no parents, so is available for sale to other customers.

Second, and more centrally, it is standard operating procedure in gestational surrogacy transactions for doctors to implant more than one embryo in the surrogate(s) to elevate the likelihood that an embryo will “take” and endure to viability. Manufacturing efficiency is advanced by front-loading embryo implantation rather than through successive single-implant attempts. When the supplemental embryos also endure, the industry convention is to abort them.

Within the surrogacy business, the woman carrying and giving birth to the child is a bio-service provider, not a mother.

But killing the “spare” children is not the only resolution. An entrepreneurial surrogacy enterprise might instead bring them to term and sell them. As Toboni explained to New York Magazine, “The commissioning couple may only want one baby, so sometimes, when more than one baby is born, the couple isn’t told, even though it’s their genetic offspring.”

Or it might not be their genetic offspring. The commissioning couple may just as well have purchased both sperm and eggs from donors. Surrogacy clinics give the baby to the clients who paid the technicians to orchestrate that child’s existence and gestation. Although genetic connection is often meaningful to the client, from the clinics’ perspective it is less than irrelevant. The very point of their business is to technologically overcome the naturalness that biological bonds represent. The contract is the decisive consideration, not genetics.

Thus we should expect a black market in infants, considering the facets and meaning of the biotech enterprise from which this market logically extends and whose production remainders it monetizes. Again,”spare” infants are among us due to either the standard multiple-embryo implantation regimen or the customer caprice endemic to commerce generally, manifest here in abandonment. The latter tragedy is enabled by the vast (and ethically profound) physical remove of intended parents from the gestating child.

Business Is As Business Does

The surrogacy industry exists to decouple child-creation from conjugal relations, to separate gestation from enduring motherhood, and to make biological ties irrelevant to legal child custody. Fragmenting persons, parts, and relations—submitting each to commercial negotiation—is its entrepreneurial essence.

Banning infant peddling doesn’t fit with the reproduction industry whose operations impel that phenomenon to begin with.

Accordingly, our visceral objection to direct, post-production infant sales exists only because and so long as we remember and privilege the natural norm from which the child-manufacture industry violently deviates. Without the procreative and custody baseline of natural families, the sale of extra babies itself (separate from the question of purchaser fitness for parenthood) is not problematic. The surrogacy model’s technological rationality precludes such concern. The tenets interior to this venture are wholly non-sexual, non-relational, parts-assembly technique.

To the obvious extent to which the gamete-surrogacy industry is the plausibility predicate and maidservant to same-sex marriage, the maxims of our reinvented marriage law also militate against the family ethic that objects to the purchased mechanistic manipulation of children into life in order to distribute them to genetically unrelated persons. Same-sex marriage both depends on and validates that sequence.

In sum, banning infant peddling doesn’t fit with the reproduction industry whose operations impel that phenomenon to begin with. This dissonance among principles is unlikely to endure. The precepts we accept and put in practice inexorably pull us to their inferences. In time, we will either accede to infant sales (benevolently regulated), or shut down the manufacturing enterprise whose logic encompasses them. Dissonance is a transitional condition.

Jeff Shafer serves as senior counsel at Alliance Defending Freedom. He has litigated public-interest and First Amendment cases in federal and state trial and appellate courts throughout the United States.

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