Race, Love, and Promise

Sheena and Tiara Yates

Martha Ertman’s wonderful new book, Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families, is a must read for anyone concerned about families or law. Ertman’s core argument is that “contracts and deals” can play a critical role in “helping people create and sustain families.” In advancing this claim, the book – which reads like a good novel even as it maps the complex, shifting landscape of modern family law – primarily relies on Ertman’s own, very compelling story of love and parenthood. Along the way, however, it also communicates the stories of other “Plan B” families, those that Ertman describes as being formed in “uncommon” ways. In doing so, it clears important space for lawyers and non-lawyers alike to consider the experiences of all families. 

Ertman persuasively makes the case that formal and informal “exchanges . . . [already] define family life” in a host of ways, and that greater reliance on such contracts could support the formation and functioning of Plan B families, as well as their more “common,” Plan A, counterparts. As a family law professor,I am deeply sympathetic to this view.  Even more, like so many others, my personal life is comprised of a patchwork of formal and informal contracts. On one hand there is my almost twelve-year legal marriage and the enforceable post-adoption contact agreement — something Ertman would call a “PACA” — that provides for annual visitation with my younger son’s birth mother. Then, on the other hand, sit the unenforceable, but nevertheless important “deals” that I have made with family members. These include the parenting norms that my spouse and I follow in raising our two children, and the mutual vows that we made before family and friends – such as “to love your body as it ages” and “to support you in the pursuit of your dreams.” These promises both help to define and affirm the contours of our loving commitment as a couple and a family.

Nevertheless, I often found myself seeking more from the story that Love’s Promises tells about the place of contract in family life. Like the students I teach, I have some nagging questions about how well contract can work for those who, for example, lack the money to hire a lawyer to draft or defend their cohabitation agreements, or who, because of past experience with the legal system, might never think about contract as a potentially liberating force in their lives. Moreover, I wanted a more complex narrative about the operation of race and contract in the family context than the book attempts to communicate.

To be clear, Love’s Promises does not ignore the subject of race. Indeed, Ertman deserves high marks for examining topics such as Whites’ exclusion of Blacks from marriage during slavery; the forced sterilization of African American women; and the concerns about transracial adoption articulated by organizations such as the National Association of Black Social Workers in the 1970s in crafting her vision of what the rules concerning contract and love should be. But, as important as this past history is, what I most craved was deeper engagement with what increased reliance on contract would mean for issues of race and family in the future.

Laws pertaining to family have historically structured families, but also race – how it is defined, understood, and experienced — in very consequential ways. Think, for example, about antimiscegenation laws that helped to give content to the very idea of race, determining who would be regarded as black or white, slave or free. I am thus very skeptical about the notion that, without more, we can expect that a norm which encourages greater reliance on agreements — especially those that would be more than mere “deals” and thus enforceable in court – will always have an equality-enhancing effect. A newspaper article that I recently read about the efforts of a black, lesbian couple (their picture appears at the outset of this post) to expand their family helps to explain why.

Sheena and Tiara Yates, fell in love and, after their 2011 New Jersey commitment ceremony, decided that they wanted a child. They successfully had one child and later tried to become parents again. As they had the first time around, Sheena and Tiara, who legally married in 2014, used in-home insemination to conceive. To formalize their family unit and intentions, they also entered into a written contract with the known donor whose sperm they utilized. Their agreement contemplated the donor’s relinquishment of all parental rights in the new baby, something designed to permit Sheena and Tiara to parent the child they’d longed for as a unit of two.

Despite the contract, the donor subsequently brought a custody suit to challenge the agreement’s terms and, at least preliminarily, succeeded in doing so. In a decision that the Yateses are now appealing, a judge granted him parental visitation rights. In cases involving insemination, New Jersey, where Sheena and Tiara reside with their family, courts will only recognize a non-biological parent’s rights if the insemination process was carried out by a physician. Although Sheena and Tiara, according to news sources, met with a doctor and were prescribed prenatal vitamins, the actual insemination process was performed at their home, without medical assistance. Significantly, this is the second custody suit that the Yateses have had to defend. The donor for their oldest child challenged the agreement that they had with him on similar grounds and now has visitation rights with that child as well.

Race, gender, and class intersect in troubling ways in the Yates case. Admittedly, it is not contract per se that produces the potential inequality. In fact, Sheena and Tiara clearly saw contract as an important tool in growing their family. But they entered into the donor contracts described within in a particular context, one in which the medical and legal costs that attend physician-assisted fertility treatments generally remain out of reach for low and even some middle-income families, a group in which African Americans — perhaps LGBTQ Blacks most of all — are disproportionately represented. It is not hard to imagine that health care costs figured into their decision to inseminate at home or, for that matter, to use a known donor rather than an anonymous donor affiliated with a sperm bank. Add to this the potential effects of other factors, such as fact that, given past history, many African Americans mistrust doctors and medical facilities, a phenomenon that Kimani Paul-Emile discusses in her work. All of this troubles the story of contract’s ability to advance the aspirations of all families equally.

Significantly, my lament is not simply that Love’s Promises passes up an opportunity to discuss how the realities of race and structural inequality in this country might diminish the power of contract for African Americans and other groups of color in the family context. Ertman’s book also misses a chance to say something about the particular advantages that contract could offer such groups. Despite my earlier argument, my sense is that there may be some places where contract could be very effectively deployed to disrupt the effects of racial stigma and inequality, especially if paired with other tools.

Consider the example of nonmarital black families, especially those with children. Today, African Americans are the most unmarried group in the country. While the U.S. has seen declines in marriage among all groups, they have been steepest among Blacks. Interestingly, African Americans place a higher value on marriage than many other groups. Studies suggest, however, that considerations regarding financial security and other related issues may prevent them from seeing marriage as a viable option for organizing their lives. In a recent law review article in the Hastings Law Journal, I make the argument that, instead of investing in marriage promotion programs that too often ignore the structural racial inequality (e.g., poverty, school drop out rates, housing and food insecurity, and high incarceration rates) that often creates a barrier to marriage, we should work to honor and better support nonmarital black families where they stand.

When it comes to cohabiting couples, Ertman concludes that they “should be recognized as an ‘us’ in relation to one another through property-sharing rules,” such those proposed by the American Law Institute. She stops short, however, of saying that cohabitants should “be treated as an ‘us’ when it comes to institutions outside the relationship, like the IRS and the Social Security Administration.” As Ertman notes in addressing proposals advanced by other law professors, a focus on cohabitants alone won’t do much for African America, a community in which black “women . . . are three times more likely than white women never to live with an intimate partner and more likely than white women to center their lives among extended kin.” But contract might be a more effective tool if extended to nonmarital families with children, whether the parents reside together or not. This might be especially true if combined with changes in tax policy and the structure of benefits that Ertman is less comfortable making in the absence of marriage.

For reasons already articulated, I do not think that adults in poor, nonmarital black families will or should run out to find lawyers who can draft binding contracts for them. But I can still imagine a world in which a contract-based norm works to destigmatize such families by making it plain that they have structures and “deals” like many others, not just the “tangle of pathology” described in the Moynihan Report issued fifty years ago.   In such a world, even informal contracts could assist the adults in “fragile” families in negotiating the many challenges that they face and serve to reduce conflict. Further, such agreements, to the extent that they help reveal the precise terms of the negotiations in which such families already engage, might uncover the reasons that fragile black families seem to be able to navigate co-parenting better than their counterparts. They might also disrupt stereotypes about the contributions that fathers, in particular, make to such families. Despite the racialized trope of the “dead beat” dad, studies show that nonmarital African American fathers tend to be more involved with their children than nonmarital White fathers, and regularly contribute diapers and other goods as a way of providing support, even when dramatically reduced job opportunities make money scarce.

Love’s Promises helps us see the current realities of both “Plan A” and “Plan B” families, and to imagine what the future could and should be as a normative matter. I’m very grateful to Martha, the symposium organizers, and my fellow participants for helping me to think even more about the possibilities of contract in the family law context, especially where families of color are concerned. On this day, especially, when the U.S. Supreme Court has affirmed that LGBT couples are “Plan A” families in the eyes of the Constitution, I only hope that Ertman decides to write another book that builds on the important foundation that she has set.


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1 Response

  1. It took a while to think through Robin Lenhardt’s compelling comments on Love’s Promises, and I’m sure that my thoughts will continue evolve. I’ll start by saying what a pleasure it is an author to have a commentator meet me where my project resides – a courtesy that’s entirely consistent with her overall contention that family law ought to meet families where they stand. She knows of what she speaks, both from personal experience in her own family with a post-adoption-contact-agreement (PACA) and in her writing about how family law polices identity and shapes citizenship for uncommon families. The question is whether contract – literal agreements and contractual frameworks – can help family law shape race and gender in more equality-enhancing ways than it has in the past.

    Thanks, Robin, for the reference to the case of Sheena & Tiara Yates, whose DIY at home insemination exposed them to claims of legal parenthood from a man who had formally agreed to be just a donor. (A widely-distributed article about the case includes sage advice from another participant in this symposium, Kimberly Mutcherson.) Their story – and the expense, acrimony and uncertainty that the litigation doubtless is causing – presents as good an argument as can be made for doing away with the requirement that doctors be involved with alternative insemination in order for the donor contract be legally binding, instead of a mere deal that the donor or the state can disregard as they see fit. In addition to the compelling reasons that Robin lists (economics, well-founded hesitance about approaching medical institutions), that evolution makes sense since the Internet makes possible sperm donation through Facebook and Craig’s List.

    I would retain the bright-line rule that makes a genetic dad a legal dad when the child is conceived through coitus. Cases like Kesler v. Weniger, explored in the repro tech chapters of Love’s Promises, show the damage that could result to both the children involved and those who raise them if family law greases the tracks to bio dads backing out of legal responsibility. In that case Susan and Conrad were lovers for 15 years and lived together for some time, though Conrad remained married to another woman. If family law entertained Conrad’s claim that he was just donating sperm those 15 years, the Susans of the world would have to expend tremendous time, money, and emotions deflecting the claims. Since it’s the general pattern – more than 9 out of 10 American kids are conceived through coitus and most are raised by their genetic parents – the general rule ought to assume that people follow that pattern. If they contract out of legal parenthood, it makes sense to require a writing or other evidence showing that intent, for the same reasons that other big transactions (land, services that last more than a year) require writings to be legally binding.

    The larger question that Robin raises – and others raise in this symposium – is whether contract could be a wedge in the door of inequality. An alternative is that contracts – actual agreements and contractual frameworks – could delay real reforms by serving as stop-gap measures addressing a few cases but not fixing the overall system to better respond to families as they’re living their lives. As Robin notes, Love’s Promises integrates racial elements of stories it conveys about repro tech, adoption, cohabitation and marriage. But not until I read Robin’s comment in this symposium did it occur to me that family law may shape race as much as race shapes family law. It’s a thought that’s bound to shape my thinking in future work.

    Though I think my memoir-writing days are behind me, I can’t help but look in the rear view mirror and wonder: how would my story be different if Victor were African-American? Would my parents – and his – have been as warm and accepting as they were? And if I were African American instead of descended from Western Europeans, would I have felt as cheerfully confident about a court enforcing my arrangements? These questions and others inspire me to figure out how to teach the landmark surrogacy case Johnson v. Calvert in a new way, one which asks whether it matters for the case and for contract and family law that Anna Johnson, a Black woman and gestational mother, lost to Mark & Crispina Calvert, whom the press described as Caucasian and Asian.

    Though I agree with Katharine Bartlett’s statement at the recent AALS mid-year meeting in Orlando that no silver bullet can solve all of family law (and family) problems, it bears thinking about what role contract and contractual frameworks can and do play. Early drafts of Love’s Promises explored some of the extended kinship networks that Robin mentions, suggesting that anthropologist Sarah Blaffer Hrdy’s work on Other Mothering exchanges could be helpful in reforming family law to recognize more forms of connection. Both space limitations and anticipated blow-back to evolutionary science that Hrdy’s work includes relegated this material to the cutting room floor. Robin’s comment encourages me to pick it up again, and see how it might help us get to the goal of meeting families where they stand.