Clarifying Commodification

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6 Responses

  1. Ken Arromdee says:

    I would suggest that the 1a coercion concern *can* be helped by making the terms more favorable to the seller. The problem is that his poverty forces him to take the offer. If enough money is paid that if he wasn’t poor he still might have accepted the offer, then his decision is no longer (in some percentage of cases) being forced by poverty.

    Price caps only solve this if the cap is so low that even a poor person wouldn’t find the money received to be much use. So you’d need a cap plus a floor: it has to be either high enough that you don’t need to be poor to find the offer favorable, or low enough that even being poor doesn’t make you more likely to accept (which probably means $0 + expenses).

  2. Hi Glenn,

    A few reactions–

    It’s odd that price caps are seen as a solution to the voluntariness problem. While a cap reduces the number of people for whom the exchange is “an offer you can’t refuse,” it also means (1) that only the poorest people “can’t refuse” and (2) that those people end up with less money. Maybe it would help to tease out some of the paternalistic versus redistributive concerns: Support for price caps without redistribution might more often arise from corruption concerns.

    A price cap could arise from the interaction of all three kinds of concerns. Thinking about the cap on egg prices, for example: prospective purchasers and the ART industry, a well-off group overall, all have an interest in eggs being available but not too expensive (cheap enough to ensure access for the upper middle class, not just the very rich). A price cap presumably helps keep the price down, even if it is not strictly adhered to; it mitigates worries about coercion and corruption that might otherwise be felt more strongly by the participants and the general public; it also mitigates crowding out, for similar reasons–the “donor” is still positioned as altruistic, the capped price can be characterized as something more like reimbursement, and depressed payment reduces the quality-control problem. So all three kinds of commodification worries are addressed at the expense of the person with least power in the transaction.

    On surrogacy, a lot of folks (myself tentatively included) conclude that surrogacy contracts should be allowed but not specifically enforceable against the gestational mother. Does that conclusion mean that the underlying concerns aren’t about “commodification”? Or is the desire to provide an “out” after the birth based on corruption-type concerns? I tend to think it’s a corruption concern that, as you say, “stem[s] from prior relationships of subordination,” but the stemming is more complicated than the possibility of re-education suggests. I take re-education to mean, “We used to romanticize motherhood and insist that it always be done altruistically, but now we recognize women’s autonomy to sell their reproductive abilities just as men sell sperm.” (See Kim Krawiec’s post on that a while back on Faculty Lounge.) But that shift will still be felt as a _de_-valuation of a capacity that is at the core of our construction of gender difference.

  3. A.J. Sutter says:

    I apologize for not having read your paper closely, and for commenting not on your taxonomy but on the substance of your discussion of the Essentialist argument, but:

    Your paper’s analysis of the nature of the transaction and the issue of “value equilibrium” might be even stronger if you consider that a problem with the market transaction is that it is ‘non-tuistic,’ in the sense of Phillip Henry Wicksteed (Chapter 5 of his The Common Sense of Political Economy (1910), later edited by Lionel Robbins). Wicksteed considered non-tuism a necessary feature of a transaction to bring it into the realm of economics.

    There’s also a notion of reciprocity that is anthropologically much closer to our civilization than are Kula gifts, potlach &c, based on the idea of “civil economy” espoused by the Neapolitan School that was contemporary with Adam Smith; a good introduction is in Civil Economy (Italian orig. 2004, but available in English) by Luigino Bruni and Stefano Zamagni. Those authors describe what distinguishes the Italian tradition of reciprocity (e.g., Antonio Genovesi) from neoclassical accounts of altruism and the like, and also discuss Wicksteed. The absence of what you call a value equilibrium (both in the present, and the expectation of one in the future) is quite pertinent to Genovesi’s idea of reciprocity.

  4. Glenn Cohen says:

    Thanks for the comments
    Ken- I think your point about VERY high forms of compensation that would be extremely attractive to both the poor and rich is very interesting, and one I need to think more about. Tangibly, if we established a price floor for egg sale of 5 million dollars, would that make the voluntariness variant of coercion argument go away? One thing I find interesting here is that such a solution would exacerbate the access variant, as well as (for reasons I’ll discuss in a moment) potentially make the corruption problem worse. This is one of the reasons why I think unbundling the different ideas that go under the rubric “commodification” is helpful to see how solutions to one strand increase the problems with others.

    Jennifer – I agree with your point about price caps, and I think it feeds into what I call the hypocritical argument. I will just drop a note of caution though about the crowding out claim — there is an empirical question – do price caps on egg donation reduce or increase the supply of eggs as compared to countries without such caps — and there is a separate question more like the intrinsic corruption argument. As A.J. references, in the old paper (from my student days) I linked to I introduce some ideas about the expressive nature of the transaction, and the issue of “Value equilibrium,” that one thing which distinguishes gifts from sales but might also distinguish some markets from others is whether the price paid is one that expressively is meant to “eat up” all of the value on the other side, to suggest a value equilibrium or even-steven symmetry. I think it is possible that price caps may help to express value non-equilibrium and thus less corruption, either in the intrinsic approach or even the consequentialist experience-modifying approach.
    On the question of whether barring specific performance is adequate or not as a solution, I discuss the issue (although tied more to contracting about other strands of reproductive liberty) briefly from a constitutional standpoint in this Stanford Law Review article http://ssrn.com/abstract=1114806 at page 1184, and more in-depth in this Southern California Law Review article http://ssrn.com/abstract=1116269 from a normative point of view on pages 1185-1187. I’d be curious to know what you think.
    A.J.- thanks for introducing me to the wonderful term “non-tuistic” and for these very erudite suggestions. I have not been writing much on commodification recently, but I may do some more work relating to medical tourism on the issue soon…

  5. Ken Arromdee says:

    Actually I was suggesting a combination price cap and floor. It can be either under the cap or above the floor.

    If it’s above the floor, it achieves equality between poor and non-poor because both would find the offer equally attractive (at least to some degree). If it’s below the cap, it achieves equality between poor and non-poor because both would find the offer equally unattractive. So you say “you can only sell organs for either at least $5 million (floor), or for $0 + expenses (cap).”

  6. I realize that in blog terms I’m commenting at a glacial pace, but, Glenn, here are a couple of thoughts about the specific performance question. I’ve talked with students about the analogy to artists’ right to their work, and I don’t think it is necessarily limited by the idea of avoiding forced labor. My understanding is that the artists’ right would extend to recovering the work at least under some circumstances, not just refusing to produce the work. (My colleague Gary Pulsinelli has pointed out that the goblins of Gringotts adhere to this theory.)

    The uniqueness of the object of the contract, which also comes up in the surrogacy context — what could be more unique than an individual baby, etc. But the intended parents did not contract for this individual baby, even if they hand-picked the gametes. They contracted for “a baby,” maybe with some particular specifications, but not for this unique individual, who _wasn’t_ a unique individual (in my view) until grown by the gestational mother. Until she relinquishes the child, she, much more than the intended parents, has a unique, individuated relationship. So I see the object of the contract as unique from the perspective of only one party. I realize a refund doesn’t make the intended parents whole. Ultimately I guess I think the family law analysis has to come before the contracts one. The “object to the contract” was not a party, and no one had the right to act on her behalf at the time it was made.