Feminist Law Prof Kim Krawiec (Duke) has posted to SSRN a draft of her working paper, “A Woman’s Worth.” Here is the abstract:
This Article examines three traditionally”taboo trades”: (1) the sale of sex, (2) compensated egg donation, and (3) commercial surrogacy. The article purposely invokes examples in which the compensated provision of goods or services (primarily or exclusively by women) is legal, but in which commodification is only partially achieved or is constrained in some way. I argue that incomplete commodification disadvantages female providers in these instances, by constraining their agency, earning power, and status. Moreover, anticommodification and coercion rhetoric is sometimes invoked in these settings by interest groups who, at best, have little interest in female empowerment and, at worst, have economic or political interests at odds with it.
The full paper is available here.
In this paper, Krawiec extends her thoughtful and sophisticated analysis of market constraints on the fertility industry. Her prior related work includes Price and Pretense in the Baby Market, Why We Should Ignore the ‘Octomom‘, Sunny Samaritans and Egomaniacs: Price-Fixing in the Gamete Market and Show Me the Money: Making Markets in Forbidden Exchange.
“A Woman’s Worth” includes an exploration of the role of taxation in anti-commodification objections to prostitution, the sale of oocytes and paid surrogacy arrangements. Professor Krawiec compares the adoption by Oakland (California) voters of a municipal tax on medical marijuana with the failure of a Nevada bill that would have imposed an excise tax on the “customers” (my quotes, not hers) of prostitutes. Professor Krawiec asks these two questions:
First, why would any industry actively seek to increase its tax liability? Second, why would any government, facing budget shortfalls and cutbacks in important state services, forgo additional tax revenue, particular when the industry subject to the proposed tax favors it and, in fact, has lobbied for taxation?
Krawiec answers the first question in three parts. Paying taxes (becoming a revenue source) increases a industry’s political strength, secures its own legality (hard to make illegal an industry that contributes big money to the budget) and increases to the industry’s social and cultural acceptance.
From the government’s perspective, Krawiec explains, reluctance to tax may reflect a reluctance to enhance the acceptability of an otherwise-legal industry. I think that Krawiec’s analysis is spot-on (and I make a similar point here). Professor Krawiec then takes the analysis two steps further. She suggests that a failure to tax (as in the case of the failed Nevada brothel tax) operates as a stigma on that activity (in this case, sex work). The stigma, in turn, operates as an impediment to a fully functioning market that would place women in positions of greater autonomy and bargaining power.
Krawiec’s focus on market constraints represents a pragmatic move in feminist scholarship. She says, “My thesis in this article is a relatively narrow one: given the transactions that we accept as legally and socially valid, commodification and coercion objections seem especially implausible vehicles through which to defend the specific constraints on taboo trades identified in this article.” Admittedly, there are reasonable people who will reject the claim that one or more of the “taboo trades” are acceptable under any conditions.
“A Woman’s Worth” invites us to expand on the thesis, stated narrowly, and engage with (what I read to be Professor Krawiec’s) larger claims: (1) there are multiple legal market in women’s bodies; (2) those markets don’t appear to be going away any time soon; (3) constraints on those market might hurt women more than they help women; (4) unless and until we understand the economic consequences of the market constraints, we cannot understand their impact on women’s autonomy.
“A Woman’s Worth” is a first step towards that understanding.