No Money Allowed

University of Chicago Legal Forum Volume 2022 Article 9 2023 No Money Allowed Kimberly D. Krawiec Follow this and additional works at: https://chicagounbound.uchicago.edu/uclf Part of the Law Commons Recommended Citation Krawiec, Kimberly D. (2023) "No Money Allowed," University of Chicago Legal Forum: Vol. 2022, Article 9. Available at: https://chicagounbound.uchicago.edu/uclf/vol2022/iss1/9 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized editor of Chicago Unbound. For more information, please contact . No Money Allowed Kimberly D. Krawiec† I. INTRODUCTION Observers have long debated the propriety of certain market exchanges involving the body, including prostitution, organ and gamete selling, commercial surrogacy, and blood and plasma markets, so called “contested commodities” or “taboo trades.”1 Although such disputes about the nature of market boundaries are long-standing, particularly in the context of the human body, recent years have seen a renewed focus on the ways in which attitudes about the proper scope of commercial exchange shape markets—and, indeed, dictate whether exchange for money occurs at all. While the parameters of (and participants in) that debate have shifted over the years, one unifying theme is the argument that, although the market is a suitable mechanism for the allocation of many goods and services, other goods and services are not properly the subject of market trading. For simplicity, I will refer to such theorists as “market skeptics,” although it should be noted that these authors do not reject markets per se, but only markets in certain contested or taboo goods and services. These authors thus share a commitment to defining the moral limits of markets by identifying those goods and services inappropriate to market trading and providing a justification for state limitations on such transactions, even among apparently willing buyers and sellers.2 This Article considers one aspect of the ongoing debate about market trading in the body—namely, the purported harmful effects of market transactions on particular relationships, goods, services, or society † Charles O. Gregory Professor of Law and Sullivan and Cromwell Professor of Law, University of Virginia. 1 See generally Kimberly D. Krawiec, Show Me the Money: Making Markets in Forbidden Exchange, 72 LAW & CONTEMP. PROBS. i (2009) (using the phrase “taboo trade” and describing some of these debates); MARGARET JANE RADIN, CONTESTED COMMODITIES (1996) (coining the term “contested commodities”). 2 Vida Panitch, Liberalism, Commodification, and Justice, 19 POL., PHIL. & ECON. 62, 63 (2020). 221 222 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2022 at large, due to an inappropriate valuation. Often referred to as “commodification” or “corruption,” this critique asserts that market trading in the body is degrading or corrupting, not just to the willing parties to the exchange, but to society at large because such trading values the human body as a commodified economic asset rather than as the subject of love, reverence, or respect.3 A common critique of prostitution, for example, has been that legalized prostitution might cause us to evaluate all persons (but especially women) and all intimate relations in sexual dollar terms.4 A prominent critique against human organ markets has been that it would encourage us to value all humans as a collection of body parts with price tags attached, as opposed to full human beings, valuable in their own right without regard to what organs they can provide.5 More generally, some argue that the provision of certain goods and services through the marketplace, as opposed to through non-market relations, corrupts deeply held values and relationships.6 For example, paying for blood might weaken altruism in society and destroy the bonds of community that tie us to each other.7 To be sure, other objections have been levied against market trading in the body. Many objections to markets in the body and its parts, for example, rest on paternalistic concerns about dangers to the parties to the transaction, such as that particular exchanges are coercive or exploitative.8 Other objections rest on more concrete externalities allegedly posed by markets in the body and are the subject of robust empirical study—for example, that markets in sex will increase the transmission of disease, or that payments for blood or plasma will make the blood or plasma supply less safe.9 Still others worry that market 3 Although some authors treat these as distinct objections, I address them together in this Article, due to their shared focus on the potential harms of market trading in the body on important relations and social institutions. See I. Glenn Cohen, Regulating the Organ Market: Normative Foundations for Market Regulation, 77 LAW & CONTEMP. PROBS. 71, 73–74 (2014) (discussing the terms commodification and corruption and their use among market skeptics). 4 See infra note 26 and accompanying text (discussing corruption objections to prostitution). 5 MICHAEL J. SANDEL, WHAT MONEY CAN’T BUY: THE MORAL LIMITS OF MARKETS 110 (2012) (describing one prominent objection to organ markets as the argument that “such markets promote a degrading, objectifying view of the human person, as a collection of spare parts (the corruption argument)”). 6 Id. at 122–25 (describing and elaborating on Titmuss’s arguments against blood markets). 7 See generally RICHARD MORRIS TITMUSS, THE GIFT RELATIONSHIP: FROM HUMAN BLOOD TO SOCIAL POLICY (1971). 8 See, e.g., Stephen Wilkinson, The Exploitation Argument Against Commercial Surrogacy, 17 BIOETHICS 169 (2003) (discussing exploitation arguments against commercial surrogacy); STEPHEN WILKINSON, BODIES FOR SALE: ETHICS AND EXPLOITATION IN THE HUMAN BODY TRADE (2003) (discussing coercion, exploitation, and other objections to various market transactions in the body). 9 Nicola Lacetera et al., Rewarding Volunteers: A Field Experiment, 60 MGMT. SCI. 1107, 1124 (2014) (finding no evidence in reduction of supply or quality of donated blood after the introduction 221] NO MONEY ALLOWED 223 trading in the body undermines equality or could only be justified in a world of more equal access.10 Of note, however, is that many observers—including many market skeptics—do not believe that these objections fully explain (or should fully explain) legal limits on markets in the body. In other words, many of the most prominent and influential opponents of market trading in the body contend that even if problems of coercion, exploitation, safety, and inequality could be fully addressed, we should still limit certain market transactions in the body and its parts because to do otherwise reflects and fosters an inappropriate market conception of the body, with attendant negative effects on us all.11 Although some of these objections represent independent (...truncated)