What's Wrong with a Parenthood Market? A New and Improved Theory of Commodification

Abstract

Common sense tells us that parenthood is not and should not be for sale. Yet people routinely acquire parental rights and responsibilities for a price through adoption and reproductive technologies. Some commentators contend that these parenthood markets are the logical consequence of legal economic rhetoric, which, they assert, does not account for power disparities, nor the importance of alleviating them. Focusing on alternative insemination, this Article contends that a relatively unregulated parenthood market is beneficial because it facilitates formation of families on the basis of intent and function rather than biology and heterosexuality. Scholarly discourse on commodifying parenthood has overlooked these benefits, focusing only on dangers concerning eugenics, access, anonymity, and the objectification of children. This Article aims to correct this shortcoming in commodification theory, proposing an antiessentialist theory of commodification that accounts for both the benefits and dangers of the parenthood market. It concludes that thinking about commodification in a new way, one that recognizes the importance of particular contexts, allows us to think about privatization in general more coherently.

Keywords: Family law, commodification