Category: Love’s Promises Symposium

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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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What’s Law Got to Do with It? Reflections on Martha Ertman’s “Love’s Promises”

Western political thought has viewed love as something that can exist only in the absence of law. Law is for the public sphere. In the private sphere the language of law should not be spoken, because it can only contaminate relationships, injecting terminology of rights and obligations where the language should be that of love, trust and caring. Accordingly, a nineteenth century common law doctrine deemed contracts between spouses as unenforceable. Not surprisingly, it benefitted those who were in control of the family’s assets, the men. Husbands who promised to pay their wives for their work at home could easily avoid enforcement of their promises arguing that a husband and a wife cannot, by definition, enter a legally binding promise with each other.

This doctrine lived well into the twentieth century. Beginning in the 1970s Feminist critique of this doctrine has called attention to its fallacies. Susan Moller Okin argued in “Justice, Gender, and the Family” that the notion of unenforceability of agreements between spouses magnifies the vulnerability of women within the family and servers the interests of men. Contracts and legal commitments not only will not poison marital relationships but will promote and ensure more justice and equality for women.

Similarly, Patricia Williams has powerfully demonstrated how important it is for one’s sense of personhood to be considered legally competent to become a party to an enforceable contract; her now classical 1987 article “Alchemical Notes” discussed the importance of contracts to African Americans, who had been, as slaves, subjects of contracts, but never parties to them. Now “Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families” joins this important lineage of scholarly paradigm-shifting works on the importance of contracts for minorities and disenfranchised individuals and communities, showing the inherent connection between family law, contact law, and the recognition in the full humanity of LGBTs and other individuals who want to create the families of their choice. Read More

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Mushy Language and the Limits of Intimate Agreements: Reflections on Love’s Promises

It is an honor to be invited to comment on Professor Martha Ertman’s thought-provoking and excellent book. I have taught family law for 15 years and devote a lot of class time to assisted reproduction, adoption, palimony, and prenuptial agreements—in other words, contracts. However, until I read Love’s Promises, I, like many others, did not fully appreciate the ubiquity of contracts in families and family law. After all, we rarely refer to agreements between intimate partners as “contracts”—apparently preferring the softer “agreement” as in co-parenting agreement, cohabitation agreement, or prenuptial agreement—precisely because we don’t think (or want to think) about contracts and love in the same sentence. Professor Ertman deftly demonstrates that we all rely on contracts and non-legally binding agreements (which she calls “deals”) in our intimate relationships to our benefit. I found it impossible to read Love’s Promises without examining my own family relationships and noticing how many contracts and deals we have created. But in the end Love’s Promises is a love story between co-parents, between a parent and a child, and between intimate partners—a love story made possible by carefully thought-out contracts. Read More

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Promises Are Meant to Be Broken: Thoughts on Martha Ertman’s Love’s Promises

 

Professor Martha Ertman’s wonderful book, Love’s Promises, pushes readers to reject ingrained beliefs about the separation of love, family, marriage, parents, and children from the world of markets and contracts. She deftly uses her personal story to illustrate her central argument that contracts and deals facilitate the creation of varied family structures and that family law should continue to embrace this trend. I firmly agree with Ertman’s premise that much of family law is explicitly or implicitly based on contracts (legally enforceable) and deals (not legally enforceable). Surely anyone who has ever been in a relationship or raised a child knows that these experiences require agreements about what relationships mean and about what we owe to each other as we create and sever familial ties. Ertman’s book makes a strong case for the value of planning, focus, and deal making when creating families to help guide those families through life and, if necessary, to help dismantle them with minimum acrimony when they fail. I hope that this part of her book resonates deeply with readers who are thinking of creating Ertman like “Plan B” families, as she calls them. Despite my strong agreement with Ertman’s central premises, I left her book with lingering questions, a few concerns, and a desire to hear more about her view of the intertwining of law and family. Read More