Collaborative Family-Making: From Acquisition to Interconnection

Abstract

This article suggests a new way to resolve the baby markets dilemma by reframing collaborative family-making in assisted reproductive technologies (“ART”) and adoption as a process of interconnection as opposed to acquisition. Collaborative family-making occurs when families are created or expanded through the biological contribution to family-making by parties other than intended parents in the context of ART and through adoption. Such collaboration is both intimate and commercial. It is usually commercially driven, with fees being paid by intended parents to lawyers, intermediaries and collaborators, even if limited to expenses and lost wages. However, it also involves the exchange of genetic material and biological processes such as pregnancy which are often considered personal and non-commercial. We have firmly held beliefs reflected in well settled laws that people are not commodities that can be bought or sold, not in whole and not in part. This is the baby markets dilemma.

Despite marked similarities between the two systems of collaboration in terms of the threat of commodification and exploitation, “commodification anxiety” strictly limits the commerciality in adoption, especially intercountry adoption (“ICA”), while markets in ART thrive in a largely unregulated setting, even the highly commercialized process of international commercial surrogacy. This dichotomy facilitates the acquisition of genetically designed babies through ART while children in need of adoption suffer and languish in institutional settings. What is needed in order to save collaborative family-making from this ethical breakdown is a new frame of reference that avoids viewing collaborative family-making as a process of acquisition that consumes and commodifies human beings and instead humanizes collaborators through a frame of interconnection, based on openness and ongoing contact whether in the context of surrogacy or adoption. Based on myriad empirical studies that I rely upon, such a frame of interconnection is already reflected in in domestic surrogacy and domestic adoption, where ongoing contact and openness prevail. However, international collaboration is treated differently with foreigners being dehumanized, and fraud and corruption is more endemic. I argue that openness and interconnection should frame adoption, ex-ante, domestically and abroad, and I introduce a new legal framework focused on openness and ongoing contact, which allows financial transfers and relies on government facilitation.