The Supreme Court's pending decision regarding the constitutionality of same sex marriage reflects the dramatic impact the rule of law has on intimate partnerships. Now more than ever, those involved in family relationships, from heterosexual and same sex marriage partners to those in less structured co-habitation arrangements, need to understand how formal and informal contracts shape the emotional, financial, and legal terrain in personal relationships.
In her new book Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families, University of Maryland Francis King Carey School of Law Professor Martha Ertman, JD, explores how deals and contracts create and transform all kinds of families. Mixing memoir and family legal cases,Love’s Promises disproves the commonly held assumption that contracts are often “selfish, cold, and calculating,” and provides a framework for couples grappling with how the law treats relationships and children.
A contract, Ertman explains, is legalese for an agreement courts would enforce. Informal deals like “I cook dinner and you wash the dishes,” common in relationships, are not legally binding. For Ertman, a contract law expert and the Carole & Hanan Sibel Research Professor of Law, these formal and informal arrangements shape intimate relationships because they create “expectations of reciprocity and grounds for changing the relationships when one person isn’t holding up his or her end of the deal.”
Ertman recalls her personal journey to becoming part of a “Plan B” family through alternative insemination from the help of her gay best friend, Victor. According to Ertman, “Plan A” families are the most common family with children raised by genetic heterosexual parents, whereas “Plan B” families include a variety of uncommon situations, ranging from LGBT parents to cohabitation and adoption.
Ertman recounts how she and Victor wrote an extensive four-page contract to have a child together and support each other financially and emotionally. Years later, Ertman would amend that original agreement to include her new partner, Karen, as her son’s other mom, and even include specific details about how to patch together the couple’s Jewish and Unitarian traditions.
“The wonderful thing about contracts, and even nonbinding deals, is that they allow people to tailor the rules to their particular situation,” writes Ertman. Throughout the book, she explains “on-the-ground as well as on-the-books” types of family agreements.
With new advancements in reproductive technology and changes in adoption laws, Plan B families continue to adapt contracts and deals to suit their needs. Ertman reports that between ten and fifteen percent of the adult population experiences infertility, resulting in the reproductive tech industry bringing 40,000 babies to American families each year via alternative insemination agreements. Looking at different case studies involving reproductive technology, Ertman analyzes when a father is not a father and when an anonymous donor is no longer anonymous. Family law, Ertman notes, is increasingly allowing people to decide for themselves who is in the family circle.
Ertman also examines the emotional and financial contracts between adult partners, which she describes as exchanges, looking first to cohabitation, and then to marriage. Cohabitation rates in America, Ertman notes, have increased 1,000 percent between 1960 and 2000. She argues for marriage as the family structure conveying the most rights and obligations, yet would have family law recognize many cohabitants’ “reasonable expectations about what’s shared and what’s not.”
Marital agreements can be based on money, sex, and even religion, like the ketubah in Jewish tradition or the mahr in Muslim culture. Drawing on insights from economists, anthropologists, sociobiologists, and psychologists, Ertman analyzes the fundamental role of exchange in couples’ lives—from household chores and childcare to shared cultural traditions and caregiving in times of sickness. In the courtroom, Ertman explains, full-time caregiving is still not as highly valued as being in the workplace.
“Once you uncover the central role of contracts and deals,” writes Ertman, “you can see families in a new light.”