Property Rights in Children

Barry E. Adler* & Alexis A. Alvarez**

In 1978, Dr. Elisabeth Landes and then-Professor, later-Judge Richard Posner, published The Economics of the Baby Shortage. The article openly discussed how economic analysis can address the allocation of babies available for adoption. The ideas expressed in the article were widely denounced as an inhumane commodification of children, something tolerable only in the twisted minds of academic authors. Despite the backlash, an odd thing happened in the more than four decades since Landes and Posner wrote on this topic: their ideas began to take hold. Today, almost all states in the United States permit, in some form, the contractual assignment of parental rights; that is, almost all states now permit the sale of babies. We suggest an ironic reason for the change: the modern technology of in vitro fertilization has quieted or overcome complaints about the commodification of children by moving surrogacy contracts into a longaccepted, though euphemistically labeled, realm of parental property rights in children.

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© 2020 Barry E. Adler & Alexis A. Alvarez. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Bernard Petrie Professor of Law and Business, New York University.

**J.D. Candidate, New York University School of Law, 2020.