Blends memoir and legal cases to show how contracts can create family relationships
Most people think of love and contracts as strange bedfellows, or even opposites. In Love’s Promises, however, law professor Martha Ertman shows that far from cold and calculating, contracts shape and sustain families.
Blending memoir and law, Ertman delves into the legal cases, anecdotes, and history of family law to show that love comes in different packages, each shaped by different contracts and mini-contracts she calls “deals.” Family law should and often does recognize that variety because legal rules, like relationships, aren’t one size fits all. The most common form of family—which Ertman calls “Plan A”—come into being through different kinds of agreements than the more uncommon families that she dubs “Plan B.” Recognizing the contractual core of all families shows that Plan B is neither unnatural nor unworthy of legal recognition, just different.
After telling her own moving and often irreverent story about becoming part of a Plan B family of two moms and a dad raising a child, Ertman shows that all kinds of people—straight and gay, married and single, related by adoption or by genetics—use contracts to shape their relationships. As couples navigate marriage, reproductive technologies, adoption, and cohabitation, they encounter contracts. Sometimes hidden and other times openly acknowledged, these contracts ensure that the people they think of as “family” are legally recognized as family in the eyes of the law.
Family exchanges can be substantial, like vows of fidelity, or small, like “I cook and you clean.” But regardless of scope, the agreements shape the emotional, social, and financial terrain of family relationships. Seeing the instrumental role contracts will help readers better understand how contracts and deals work in their own families as well as those around them.
Both insightful and paradigm-shifting, Love’s Promises lets readers in on the power of contracts and deals to support love in its many forms and to honor the different ways that our nearest and dearest contribute to our daily lives.
“Ertman’s book will help lawyers, policymakers, and families better navigate the current landscape—and offers a vital reminder that we’re all on the same map.”
—Dana Rudolph, Women’s Review of Books
“At a time of dramatic transformations in Americans' family lives, Love's Promises offers unique insights into how to manage diverse intimate arrangements. Blending vivid personal memoir with legal analysis, Ertman makes a compelling case for why, when, and how contracts can enhance loving relationships. A pioneering book that should be read by all those concerned with current and future families.”
—Viviana A. Zelizer, Lloyd Cotsen '50 Professor of Sociology at Princeton University, and author of The Purchase of Intimacy and Economic Lives
“Love's Promises is a skillful melding of law and intimate relationships. Increasingly these interrelationships exist outside of marriage, in part because of the reluctance of our state governments to extend the legal protections of marriage to the unconventional relationships that have become so common. Ertman shows that private contracts can go far to substitute for formal marriage, because judges are far more willing, in the name of free choice, to give private contractual arrangements the stamp of legality than legislatures are to update their marriage codes.”
—Judge Richard A. Posner, U.S. Court of Appeals for the 7th Circuit and author of Sex and Reason
“Love’s Promises is the North Star for ‘Plan B’ parenting. In sharing her experiences as a mother, and expertise as a lawyer, Ertman charts a course to parenthood protected by the letter and the loving care of the law.”
—The Reverend Dr. Susan Newman Moore, pastor, counselor, and author
“Readers will delight in basking in the company of Ertman’s utterly original, provocative mind, work, and self.”
—Judith Stacey, Professor Emerita of Social and Cultural Analysis and Sociology at New York University, author of Unhitched and In the Name of the Family
“A unique and refreshing take on age-old topics of law, love, and intimacy. Nobody with a family will want to miss this.”
—Jennifer Levi, Transgender Rights Project Director, GLAD
“Anybody practicing or teaching in the fields of family law and contracts could benefit greatly by reading and thinking about Love’s Promises.”
—Art Leonard, New York Law School
“Makes families’ challenging circumstances much easier by giving us language and a way to organize our complex lives. Love’s Promises fuses the personal and political to protect ourselves and those we love.”
—Kate Kendell, Executive Director, National Center for Lesbian Rights
A Note from the Series Editor
1. The Heart of the Deal
PART I: PLAN B PARENTHOOD
2. Basics of Reproductive Technology Agreements
3. Legal Rules of Reproductive Technology Agreements
4. Basics of Adoption Agreements
5. Legal Rules of Adoption Agreements
PART II: PLAN B PARTNERSHIP
6. Basics of Cohabitation Agreements
7. Legal Rules of Cohabitation Agreements
8. Basics of Marital Agreements
9. Legal Rules of Marital Agreements
- Uprising Radio/KPFK, interview, 10/6/2015
- Harvard Business Review, original piece, 8/17/2015
- The Washingtonian, feature, 8/12/2015
- Richard Zorza's Access to Justice blog, review, 7/11/2015
- The Weekly Wonk, feature, 7/2/2015
- Law & Social Inquiry, listed, Spring 2015
- Dan Rodricks/NPR Baltimore, interview, 6/26/2015
- Concurring Opinions, second write-up, 6/25/2015
- Concurring Opinions, write-up, 6/25/2015
- WYPR/Maryland's Morning Show with Sheilah Kast, interview, 6/10/2015
- Women's Review of Books, original blog post
- Slate.com, original blog post, 5/26/2015
- Salon.com, excerpt, 5/25/2015
- UMB News, book announcement, 5/20/2015
- American Association of Law Librarians/AALL Spectrum Blog, review, 5/1/2015
- Ertman defines a contract as “legalese for the kind of agreement courts enforce”, while she defines a deal as a “not-legally-binding” agreement.
- Further discuss the differences between contracts and deals and give examples of both. Why draw a distinction between contracts and deals? How are each important in maintaining relationships?
- What contracts and deals have you made with people in your own life? What kind of effect do you think these exchanges have on your relationships? Are there aspects of your relationships that could be helped or hurt with a contract or deal?
- The author states that there are two types of families, which she defines as Plan A and Plan B, and that most families are a mix of Plan A and Plan B. She states, “‘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. But ‘common’ is not the same as better. When someone veers toward the road less traveled, I call it ‘Plan B.’ Plan B covers a wide variety of uncommon families, from repro tech and adoption to cohabitation.”
- What do you think of the author’s statement? Do you agree or disagree? Consider society’s social progress and the advantages and disadvantages of both Plan A and Plan B families.
- What kind of family do you think you come from: Plan A, Plan B, or a mix of both? How has this affected the way you live your life and the way you see the world?
- The author describes how “homemaking labor” has been often treated as “a gift.”
- What does she mean by this, and how does this idea affect family relationships?
- The author points out that family law can treat all or part of a contract as a mere deal “when a child’s health is at stake.” Later she talks about how former baseball player Barry Bonds contracted out of property sharing with his wife by entering a prenup. She argues, “When Bonds contracted out of his duty to share, he transformed their exchange into a one-way deal.” What does the author mean by a “one-way deal”? Can you think of a case when doing what Barry Bonds did is in the best interest of the child?
- In the first chapter, the author gives many examples of deals she has made with Victor, Karen, and other family members. What are some of these deals, and how do they differ from the formal contracts she has made? Which do you think is more important to honor: deals or contracts? Or do both play an equally important role in a relationship? Discuss.
- The author points out that while she and Victor are an “us,” they are not a couple but friends. They never pledged to honor one another in love, but they pledged “to raise Walter together in the loyalty, admiration, and trust of friendship.” She clarifies that friendship, “even a coparenting friendship . . . calls forth more gratitude than entitlement.”
- What does the author mean by this, and do you agree? Why or why not?
- Do you think deals and contracts in friendships differ from those in romantic relationships? If so, how? If not, why? Discuss.
- Ertman points out, “[T]here’s nothing especially new, or even unnatural, about contracting for reproductive goods and services.” She also explains how she refers to noncoital insemination as “‘alternative’ instead of ‘artificial’ because ‘alternative’ better conveys the message that coital reproduction is not the only natural method of becoming a parent.”
- Do you agree that these nontraditional methods are natural? Why or why not?
- Ertman also points out that some people have a “tendency to go overboard.” She gives the example of “Octomom,” a “single mother with six children, [who] bore octuplets in 2009, conceived through IVF.” She explains, however, that Octomom was an outlier in the case of reproductive technology. How does the case of Octomom affect the argument that nontraditional methods of conception, such as IVF (in vitro fertilization), are natural? Can one still make just as strong an argument that it is? Discuss.
- So far, Ertman’s main focus has been on exchanges made in Plan B families. Think about the kinds of contracts and deals made in Plan A families. How do they compare to those made in Plan B families? In other words, how are they the same, and how are they different?
- The author opens this chapter with a vignette that describes a meeting with her lawyer in which they discuss the importance of including emotional clauses as part of her coparenting contract with Victor. Despite the fact that emotional deals cannot be enforced in a court of law, why are they important to include in the agreement? Specifically, why were they important for Ertman to include in her contract? Think of relationships in your own life. What emotional deals have you made with the people you care about, and how do they help shape your relationships?
- In this chapter, the author includes an observation made in the book Unhitched by sociologist Judith Stacey, who writes that people living in Plan B families are “at once freer and more obliged than most of the rest of us to craft the basic terms of their romantic and domestic unions.” Do you agree with this statement? Why or why not? Use examples to support your answer.
- The author discusses the difference between “relational” contracts and “one-shot” contracts. She explains that relational contracts are “long-term and complex,” such as dad contracts, while one-shot contracts represent a “single interaction between people who then go their separate ways,” such as sperm-donation contracts or buying a Slurpee at 7-Eleven. Both contracts must be consensual. What are some other examples of relational contracts and one-shot contracts that you know of or even have personally agreed to in your life? Discuss.
- The author gives examples of several donor cases that have been brought to court. Each of these cases and their outcomes has certain moral or ethical implications about sperm donation vs. legal fatherhood. Give examples of some of these cases, as well as the moral obligations between donors, legal parents, and children. Also discuss the moral or ethical attitudes of the mothers who receive these sperm donations. What is your personal standpoint on the disputes between the biological parents in these cases? Does Ertman adequately consider the children’s point of view? In other words, putting aside the case outcomes in court, which side did you agree with?
- At the end of the chapter Ertman discusses her personal views on family law and how it should be. She explains, “People’s view of uncommon methods of baby-making probably depends on how much they think that law should protect people from harmful choices.” Keeping that in mind, do you agree with the suggestions Ertman proposes for family law? What is your personal standpoint on the issues of family law raised so far in the book? Discuss.
- Ertman explains how adoption agencies charge different prices for children based on how “adoptable” they are. For example, one agency charged a “‘special’ rate—half off—that applied to ‘older, black and other handicapped children.’” What do you think of this policy? Do you think it is necessary and/or ethical? Discuss.
- So far, we have learned about the legal and emotional processes of both sperm donation and adoption as uncommon methods of becoming a parent. Ertman has given many examples in which she illustrates the pros and cons of each method. Given this information, if you were to choose between one of these methods as a way to become a parent, which one would you prefer, and why?
- Ertman gives many examples of birth mothers being treated unfairly by adoption agencies or other organizations who seek to “assist” them in making the best possible choice for their child. What are some of these injustices, and how do you propose we solve them?
- The author provides us with many examples of adoptive parents and agencies breaking PACAs (post-adoption contract agreements) with birth parents, such as in the Stickles case, in 1931; the Weinschel v. Strople case, in 1983; and the Vela v. Marywood case, in 2000.
- Why do you think the adoptive parents and agencies kept breaking their deals with the birth parents? Do you think they did this intentionally from the start? Does it matter when they decided not to keep those promises?
- In either case, do you think they had the best interest of the child in mind? If they did, do you agree with their reasoning? Discuss.
- The author explains that many Plan B parents, including herself, spend years “banging their heads against barriers to Plan A.” In the end, however, she explains how “once you’re in Plan B, you start to appreciate the beauty of its landscape.” Give examples of what the author means by “the beauty” of a Plan B family’s “landscape.”
- The author mentions how the “National Association of Black Social Workers opposed transracial adoption to help African American kids form a ‘total sense’ of themselves ‘physically, psychologically, and culturally.’” However, she also gives examples of how love and family can overcome the barriers of race and sexuality in cases of adoption. Specifically, she talks about a black boy named Vito who was adopted by a Latino couple. She explains how Vito “called his foster parents Mom and Dad and saw his foster siblings as his brothers and sisters.” Vito also identified himself as Latino. In addition, she tells the story of a black boy named Cardel and his black siblings, who were to be adopted by two white, gay men. Originally, the birth father opposed the adoption on the grounds that the men were not only white but also gay. However, “when the birth dad spent a little time with the new dads and Cardel...the birth dad took the stand to tearfully announce that Cardel ‘would do well with them, that he was in the right place.’” Shown these examples, do you agree with the above statement? If yes, given our country’s history, is this statement true for children of all races, or just black children? Discuss.
- Ertman describes two different views on exchanges—the Nothing But and the Hostile Worlds—terms coined by the economic sociologist Viviana Zelizer. Ertman explains how a Nothing But approach “sees the world as transacting business of all sorts in a single currency, from sex to Slurpees,” while a Hostile Worlds approach “sees sharp, impermeable boundaries between money and contested commodities like love, babies, and body parts and claims that any overlap between markets and intimacy will contaminate one or both.”
- What are the flaws in each of these arguments on exchanges? Use examples from the text, as well as examples from your own experience.
- How would you incorporate and perhaps tweak the Nothing But view as a way to explain the book’s term a “pair bond exchange?”
- Ertman explains that a central claim of her book is that “love and contracts are not opposites,” and she argues that “it’s entirely natural to speak of families and exchange in the same breath.” With that said, if love and contracts are not opposites and if every family has a foundation built on exchanges, do you think love and contracts are actually one and the same? In other words, is love itself an unspoken contract or deal? Discuss.
- Shelley Taylor, a UCLA psychologist, explains that taking care of one another, which she dubs the “tending instinct,” is “as natural, as biologically based, as searching for food or sleeping” and that “nature does not leave vital tasks to chance.” Ertman explains that “we have back-ups to ensure that essential functions like social connection will be performed.” In other words, the book argues that establishing social connections is a natural human instinct underlying both Plan A and Plan B forms. How does the book support this argument? Do you agree with it? Does the focus on social connection suggest ways that the law should regulate families? Use examples from the text and your own life to support your answer.
- Why do you think education, race, and socioeconomic status affect marriage and divorce rates? Discuss.
- Chapter 7 focuses on how caregiving is undervalued in cohabitation and proposes changes to family law that could remedy this issue. Proposals by Cornell University law professor Cynthia Bowman and American University law professor Nancy Polikoff are discussed in the text. Those changes to family law may be beneficial under certain circumstances, yet paradoxically may also end up hurting the people they sought to protect.
- Discuss the pros and cons of each proposal using examples from the text and your own life.
- What does Ertman think about the Bowman and Polikoff proposals? Do you agree with her? If you had the power to change family law and grant more rights to cohabitants, what would you propose and why? Discuss.
- Ertman makes many points that illustrate how getting married has financial consequences but is also a much more personal decision than entering a business contract. For example, she explains how “marriage retains many elements of a legally binding exchange,” such as the “to have and to hold” clause of wedding vows, which refers to property rights and the possession of real estate. However, she also states how claiming “irreconcilable differences” as grounds for divorce reflects “society’s growing view of marriage as a vehicle for individual fulfillment.” Most importantly, she argues that “marriage remains synonymous with ‘family.’” Do you think that marriage is just as much a financial institution as it is a personal, emotional one? How does this affect social and legal views on the meaning of family? Should the law highlight, encourage, or discourage business-like or personal-fulfillment aspects of marriage? Discuss.
- Ertman mentions several cases involving prenuptial agreements, or prenups. Many of her examples illustrate how prenups often cheat homemakers out of their fair share of wealth and property in divorce cases by treating their caregiving labor as a gift instead of as an element of the pair-bond exchange. What is your personal view on prenups? Do you think they are fair and/or necessary in certain cases? Would you ever enter into such an agreement? Why or why not? Imagine yourself as both the homemaker and the one bringing home the bacon. Also consider prenups made without financial intentions, such as those covering sex, drugs, and religion. How do children figure into your views? Connect your answer to what you decided for question 1 of chapter 8.
- Ertman gives examples of contracts within marriage relating specifically to religion. She explains how these contracts are valid as long as they do not undermine public policy. While some people argue that contracts created in the name of religion go against constitutional norms regarding the separation of church and state, Ertman quotes a judge who says that some types of religious contracts—Jewish and Muslim marriage agreements, for instance—can also further “the important public policy of honoring ‘a custom and tradition that is unique to a certain segment of our current society.’” In contrast, agreements to raise children within a particular religion are considered mere deals. What is your view of these types of agreements? In the case of religious contracts enforceable by law, do you think they entangle church and state affairs? If yes, how do you propose we address this issue? Should the general rule be legal enforcement, or should that be available only in exceptional circumstances? Discuss.
- When the author sees her lawyer a decade after drafting up her first contract with Victor, she appears excited to tell her about how smoothly everything is working out for her and her Plan B family. However, the lawyer remains unconvinced that family contracts benefit from including the “mushy,” emotional terms that Ertman included in her own contracts. Recall that Ertman originally said, “We’re talking to ourselves as much or more than to a judge,” when asked why she was including these emotional terms. Thinking back to question 1 of chapter 3 and using examples from the sample contracts, explain what Ertman meant when she said this. Do you find the emotional appeal in each contract to be effective, despite the fact that it cannot be enforced in court? In other words, do you think the language used in each contract would be effective if it was you breaking up with a partner or determining whether a man is a dad or just a donor? Or do you agree with Ertman’s lawyer that this language is just unnecessary mush? Discuss.
- If you were to write up one relationship agreement based on what you’ve learned by reading and discussing Love’s Promises, what would it be? If you were to tell a personal story about relationship agreements in your life, what story would you tell?