This article appeared originally on Hamilton and Griffon on Rights
I wrote this book for personal and professional reasons. Contracts have been very, very good to me. Without them, I wouldn’t have my child, best friend, marriage, or job. Moreover, our son would only have two parents. Contracts, and mini-contracts I call “deals,” made it all possible.
I’ve taught contracts and written about family agreements for nearly twenty years and want to bring those lessons to a wider audience. Call it stealth self-help, packaging legal information in a palatable package so that people in the families I call “Plan B” realize that they have more power to shape their families than they may realize and that contracts and deals provide powerful tools to do it. If policy makers, judges, attorneys, therapists and other professionals help families drink the contract Kool-aid, so much the better.
Hoping to nudge readers’ thinking about families in new direction, Love’s Promises uses new terminology to make its arguments:
- Plan A & Plan B: Love comes in different packages, which I call Plan A and Plan B. Plan A—marriage, heterosexuality, and conceiving kids at home—is the most common way to be a family. But many people opt for Plan B—cohabitation, being gay, and having kids through reproductive technologies or adoption—when law, luck or biology block Plan A. Plan B is just uncommon, not unnatural or unworthy of legal protection.
- Contracts & Deals: People cobble together their families—Plan A or B—using both contracts and non-binding agreements I call “deals.” Doctrinally, “contract” means a legally binding agreement. But we should also notice the more informal, often implicit, arrangements that I call deals. They can be big—like vows of fidelity—or small, like I-cook-and-you-wash-up. While no one expects them to end up in court because they’re so personal or small, these deals nevertheless play an important role in family life.
- Contracts & Deals Complement Love: Recognizing the role of contracts and deals in all kinds of families shows that law and society should and often do see Plan B as a morally neutral variation of plan A. Plan B agreements may be more obvious because Plan B, by definition, requires people to make substitute arrangements when Plan A doesn’t pan out, but marriage also includes exchanges, like a couple’s common agreement that one will contribute more financially and the other by acting, as one court put it, as “chief cook and bottle washer.” Far from cold and calculating self-interest, these exchanges demonstrate the kind of “us-ness” that makes a family.
The ambitious goal of Love’s Promises is to nudge the zeitgeist—legal and social—toward continuing the trajectory of embracing Plan B families. If family comes in different packages—instead of one “natural” format that law supports and all the others that it ignores or vilifies—then moral judgments should give way to pragmatic recognition of the many contracts and deals that reflect these differences.
How I Wrote this Book
A longer answer explains how I wrote the book to get the messages about family contracts out to beach and treadmill readers as well as sociology and social work classrooms. It took nearly eight years to distill the essence of law review articles about family contracts for a non-law audience. After lots of experimenting I landed on a format that mixed memoir and legal analysis, an informal, often-irreverent voice, and substance that focused half on Plan B parenthood (reproductive technologies and adoption) and half on Plan B partnership (cohabitation and marital agreements).
Format: Braiding Law & Memoir
The opening chapter tells the story about how I became one of two moms and a dad—all gay—raising one beloved boy to show the heart in family deals. Since the book’s main message is that contracts can be friendlier than people think, I wrote to reach readers’ hearts, not just their minds. The idea is that memoir could more effectively counter the conventional wisdom that love and contracts are opposites than analytical material. Plus, a story written to elicit a few chuckles and even a tear could provide a spoonful of sugar to make more palatable the legal stories that come later.
Voice presented an additional challenge. I wrote as if chatting at a kitchen table, using the present tense, slang and contractions, and a dash of sly humor. For example, here’s a scene from the doctor’s office, just after the ob/gyn has inseminated me with my friend Victor’s sperm:
“After the insemination, Victor comes back in to chat while I lie with my heels up against the office wall. Imaging the little tadpoles splashing up against the uterine wall, he imitates Homer Simpson’s ‘D’oh!’ as if it’s him ricocheting around in there.” (1)
Likewise, I start the law chapter on the basics of reproductive technology with a frisky version of a Biblical story that’s familiar to many readers:
“Sarah, who was infertile, told her husband of many years, Abraham, to ‘go in unto’ her maid, Hagar. The child born of Abraham and Hagar’s union, Ishmael, grew up to become an Islamic patriarch. . . . But not every wife can happily send her husband to sleep with another woman. Moreover, it is a crime today to force your maid to sleep with the man of the house, though some maids cut their own deal with the boss. Mildred Baena, who kept house for California governor Arnold Schwarzenegger’s family, got him to put $65,000 toward a house for her and their love child.” (27)
These two excerpts aim to show—not just tell—key messages of the book: (1) that love, intimacy, and family come in different packages; (2) that contracts and not-binding-agreements I call “deals” shape those arrangements; and (3) the people involved and communities often benefit from those exchanges. My warm friendship with Victor developed alongside a bunch of agreements that have helped us remain friends now that the child is eleven years old, reproductive agreements akin to modern surrogacy are as old as the Bible, the children of these arrangements are generally alright. Moreover, Mildred Baena’s bargaining power with Arnold Schwarzenegger shows how contractual frameworks can accommodate changes like the increased social and legal power of women. If these techniques reach readers outside of law schools, then more people—straight and gay, married and single, related by adoption or genetics—would see that they too use contracts and deals to create, sustain, modify, and, when necessary, end family relationships.
I chose four contexts—repro tech, adoption, cohabitation and marriage—to show the range of private ordering in families. Seeing all these contracts hidden in plain sight may help readers realize that love and contracts are complementary, not opposites. If it’s entirely natural to speak of love and contracts in the same breath, then family law can and should honor those agreements. The Appendix includes three sample agreements—the parenting agreement from my own family, an open adoption that’s going beautifully, and a cohabitation agreement derived from Denis Clifford, Fred Hertz and Emily Doskow’s NOLO book A Legal Guide for Lesbian and Gay Couples (14th ed. 2007) and Ralph Warner, Toni Ihira and Fred Hertz’s Living Together: A Legal Guide for Unmarried Couples(15th ed. 2013).
Each legal chapter has a law-as-it-is section and a law-as-it-should-be section. Its approach is retail rather than wholesale, sometimes arguing for less state involvement and at others arguing for a stepped-up role for the state in family agreements. For reproductive technologies, I would resist the call to increase regulation like donor registries. I argue that we have enough regulation already between consumer protection legislation, medical ethics, the Uniform Parentage Act, and the fact that the low levels of litigation indicate that people must pretty much give and get what they expect in alternative insemination arrangements. The adoption chapter, in contrast, describes the trend toward state-enforcement of post-adoption contact agreements, or PACAs, and argues for legal enforceability of PACAs because birth parents as well as adopted children and even adopted parents can benefit from them. In cohabitation, I argue for relaxing the statute of frauds rules to increase the value that law and society accord homemaking labor, and in marriage I would limit property-hoarding prenups’ ability to let providers free-ride on their homemaking-spouses’ work to keep the family happy, healthy, and vaccinated.
That’s just a summary. Interested readers can check out a 2-minute youtube video that combines a bit of the memoir with substantive provisions, and the book’s Facebook page. If you have agreements in your own family—big or small—please post them. Every example in Love’s Promises is drawn from real life—including stories I collected from friends, family, colleagues and students—and I’m always on the lookout for more.
About the Author
Martha Ertman is a law professor at the University of Maryland Carey Law School and has taught, written, and spoken about contracts and family law for two decades. She edited Rethinking Commodification: Cases and Readings in Law and Culture and lives in Washington, DC, with her family. Follow her on Twitter at @MarthaErtman.