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The One Hundred Thousand Dollar Baby: The Ideological Roots of a New American Export
Cumberland Law Review (2019)
  • David M. Smolin
The thesis of this article is controversial: The United States of America, as represented by the United States government, some states, and leading legal institutions, is actively building worldwide markets in children. The ideological roots of these actions span left-right divides, making it more difficult to advocate against it. The practice of allocating children for family formation in large part through market mechanisms has attracted significant support from powerful and mainstream legal institutions. The combination of broad-based ideological support and deep financial pockets makes any engagement between supporters and opponents of these new markets in children asymmetric.
A primary manifestation of this worldwide market is surrogacy. Adoption, in the recent past, has served as another manifestation of efforts to construct demand-driven markets in children, as well as an arena of resistance to such markets.
This article reviews the ideological roots, from both the political right and left, of advocacy for market-based approaches to family formation, as well as the translation of that advocacy into case law and statutes in the United States. Efforts to export the one hundred thousand dollar baby, both as a concrete reality in the form of specific international surrogacy arrangements and also as a set of legal propositions, are described. The conflict between international children's rights norms and the practice and theory of using market mechanisms for family formation, is delineated. The article ends with a call to resistance against these uses of the market and with an argument that resistance to this kind of market is not futile.
  • surrogacy; adoption; sale of children; international; one hundred thousand dollar baby; children's rights
Publication Date
Winter 2019
Publisher Statement
Forthcoming, 49 Cumberland Law Review 1 (2018/2019)
Citation Information
David M. Smolin, The One Hundred Thousand Dollar Baby: The Ideological Roots of a New American Export, 49 Cumberland Law Review 1 (2019)
Creative Commons license
Creative Commons License
This work is licensed under a Creative Commons CC_BY-NC International License.