Carroll: “Re-Regulating the Baby Market: A Call for a Ban on Payment of Birth Mother Living Expenses”

Andrea Beauchamp Carroll (Louisiana State University, Baton Rouge) has posted Re-Regulating the Baby Market: A Call for a Ban on Payment of Birth Mother Living Expenses, Kansas Law Review (forthcoming) on SSRN.  Here is the abstract:

More than fifty years ago, state law on domestic infant adoption changed to uniformly prohibit the practice of baby selling, a development that eliminated the “black market” for babies that many argued previously existed. Nonetheless, one need not look far to find that the United States’ domestic adoption system is broken even today, and the cost structure of the domestic adoption scheme is the greatest offender. A domestic adoption currently costs in the neighborhood of $40,0000, with the vast majority of the associated expenses coming not from the payment of any professional fees, but rather from the payment of living expenses to the expectant birth mother. Adoptive parents typically front these monies, under the sanction of state law authorizing such expenditures.

This scheme, under which substantial living expenses are paid to a prospective birth mother, who makes the ultimate choice to parent her child the vast majority of the time, is fraught with problems. Comparisons between baby selling and a scheme allowing for the payment of substantial sums for housing or other expenses of daily life are almost inescapable. Questions about the voluntariness of a birth mother’s surrender arise in connection with the payment of living expenses and are more weighty than the concerns present for any other type of adoption-related expense. Quality adoptive parents defect to international adoption or are unable to adopt altogether because of the flawed system. And when adoptions do take place, birth mothers often actually profit from the payment of their living expenses, necessarily raising the same concerns which have been used to justify a ban on baby selling. Perhaps worst is that because not all birth mothers are similarly valued, allowing prospective adoptive parents to pay birth mother living expenses serves to injure society as a whole by striating race and class divisions.

 This article describes the harms of state law allowing virtually unfettered payment of birth mother living expenses and calls for a shift away from prevalent models of regulation to an outright ban on the payment of living expenses. Time has demonstrated that less conservative reform will be ineffective at solving the problems plaguing domestic adoption. The need to eliminate “gray market” adoption activities, and to re-regulate the baby market which has emerged of late, is long overdue.

 MR