I’m honored to be part of the symposium celebrating Martha Ertman’s important new book, Love’s Promises. Ertman writes in an accessible, engaging style and weaves in her own deeply moving—and encouraging—family story. Even as Ertman provides a text for a general audience, she makes a substantial intervention in ongoing debates among family law scholars. By showing how contracts and deals shape family life, Ertman debunks the conventional wisdom that intimacy and childrearing are incompatible with the cold language of bargain and exchange. And, as importantly, she shows how contract actually facilitates a freedom in family formation that we should celebrate. As Ertman argues, “society and people individually are better off when we can choose when, how, and with whom to have a family.” (p. xiv)
Ertman focuses on what she calls Plan B families. She means Plan B to convey “exceptions to the general rule instead of unnatural or inferior.” (p. xiv) Plan A “is what’s common: more than nine out of ten kids are raised by their genetic parents, marriage is the most common family form, and most people are straight.” (Id.) Plan B, on the other hand, “covers a wide variety of uncommon families, from repro tech and adoption to cohabitation.” (Id.) As Ertman explains, “‘common’ is not the same as better.” (Id.) The Plan A/Plan B dichotomy translates into legal frameworks. The law, Ertman explains, devises “a general rule for the most common state of affairs”—Plan A—but “[w]hen something unusual happens, like repro tech, adoption, or cohabitation”—Plan B—“the law carves out exceptions to fit that situation.” (p. xv)
In this post, I rely on Ertman’s Plan A/Plan B distinction to say more about the relationship between the two, conceptually and legally. The Plan A/Plan B distinction is unstable, and that is partly what makes it so illuminating. As Ertman’s examples throughout the book demonstrate, families can be Plan A along some dimensions and Plan B along others—a married same-sex couple, or a different-sex couple using reproductive technology. And so Plan A rules may fit the mold in some ways and yet fail to fit in others. Because of this blurriness, the legal regulation of families may use different justifications to apply the same rule in different circumstances; a Plan A rule may be interpreted to apply to a Plan B family. And as rules are devised and principles articulated for Plan B families, Plan B concepts and rationales may seep into Plan A rules and reasons. My main point is that as the law grapples with and recognizes Plan B families, the logic it employs—in Ertman’s terms, a contractual one—reverberates across family law’s regulation of all families.