Amidst the outrage over the guilty pleas entered by two prominent attorneys who admitted to operating a baby selling ring has been a the question as to why the defendants were not charged with human trafficking. It would be natural to assume that the manufacture and sale of babies for commercial profit would clearly be covered by federal law prohibiting human trafficking. Somewhat surprisingly, it is not.

The Federal Human trafficking laws are set forth Title 18, Chapter 77 of the United States Codes. These laws focus on the act of compelling or coercing a person’s labor, services, or commercial sex acts. The sale of a baby through the use of a willing (albeit duped) gestational carrier, however, does not fall within the language of this statute. It is natural to wonder then why there is no federal statute directly on point that prohibits the intentional manufacture and sale of babies. My suspicion is that part of the problem in crafting such a statute is that it has to be narrowly tailored so as to avoid a constitutional challenge that it infringes on the fundamental constitutional right to procreate. Once you start defining the creation of life and attempting to attribute any illicit motivation to it, you embark down a slippery slope that invokes Roe v. Wade and other similar constitutional dilemmas including the provocative question of when does life begin.

I have no doubt that had the federal human trafficking statutes covered the creation and sale of babies for purposes of commercial profit, the United States Attorney’s Office would have charged these defendants accordingly. Without such a hook, law enforcement was left to creatively identify lesser offenses. While US prosecutors might have been impaired by the absence of any applicable federal statute, nothing in the Plea Agreement limits California or any other effected state from filing their own charges under applicable state laws.