Charles Carroll, who would grow up to be a signer of the Declaration of Independence, was born in 1737 into one of Colonial Maryland’s most prosperous Roman Catholic families. Under British law, Carroll’s religion was a greater hindrance to his coming career than the fact that he was illegitimate. Waiting until Charles had proved himself a worthy heir, his parents delayed getting married until Carroll was 20 and studying in Paris.
Martha Ertman tells Carroll’s story in her book Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families as an example of how American family law has long been willing, she writes, to let “actions speak as loudly as formal agreements on paper.”
It helps, of course, if your family is a typical tribe of landed patricians. Nontraditional groups haven’t always found the law so affirming. For decades, gay and lesbian couples often sought out the safety of written agreements to secure their rights and privileges in relationships where the usual duties and privileges were not assumed.
Now that the Supreme Court has extended the right to marry to same-sex couples, it may become easier to make all kinds of families. Jana Singer, who teaches with Ertman at the University of Maryland’s law school, says contracts have served as a way station during a time when society’s rules, and the science of reproduction, have been changing rapidly. But Ertman isn’t content to let the moment pass without celebrating contracts as a basis for fulfilling relationships—a love note to this most mundane variety of legal paperwork.
“That love comes in different packages I think most people know,” says Ertman, who lives in American University Park with her wife, Karen Lash. “But contracts play a huge—and positive—role in the shaping of those packages.”
In a book that’s part memoir, part legal how-to, Ertman recommends that everyone contract for love—including those who have enjoyed the benefits of family law for centuries.
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Only a law professor, perhaps, could look at a contract and see a beating heart. But Ertman herself offers her marriage as a model for the art of contractual love. In 2001, she ended a 12-year relationship when her lesbian partner refused to join her in parenting the child Ertman desperately wanted to have. Single and 38 years old, Ertman began refiguring her plan to create a family.
She called her friend Victor Flatt, a gay classmate from Northwestern University School of Law. Over the years, the two had discussed having a baby together, half seriously and half jokingly. When Ertman asked Flatt if he wanted to act on those discussions, he responded, “What did you have in mind?”
She wanted more than a sperm donor—she wanted her baby to have a father who would be involved in the child’s life. After spending hours on the phone discussing the plan, Ertman and Flatt rented a house in Cape Cod for the summer to see how they’d get along. The two worked out a detailed agreement covering how they’d share school costs and vacation time and even support each other’s romantic relationships. Once she was pregnant, they put it all in writing.
The power of a contract, Ertman points out, is that the partners are sure of their roles and are free to be proactive and creative inside those lines. In her case, the actual baby-making was as loose and exciting as it might have been awkward and guarded. Flatt flew to Salt Lake City, where Ertman was teaching, and accompanied her to the fertility clinic.
“When the nurse calls Victor’s name, he shoots up,” Ertman writes in Love’s Promises. “Ten minutes later, I welcome him back with ‘Hey, big guy!’ and a high five, gleefully sharing the sense of getting away with something.”
After that attempt doesn’t take, Victor discovers a service called OverNite Male that allows him to provide fresh sperm overnight from where he’s living in Seattle. When Ertman calls to tell him she’s finally pregnant, he “screams with delight and says that this is the best news he’s ever had in his whole life.”
The author’s retinue continues to grow in complexity and number as her due date draws near: “As we’re settling in [in the maternity room], the ER doc I’m dating stops by . . . . When two nurses come in, I introduce everyone and specify each person’s role: my baby daddy; my date, the ER doc; my friend, the birth coach. One nurse sneers, ‘Whatever,’ but the other asks whether any of us live together.”
When Ertman admits that none of them do, there’s an awkward silence. “Despite this army I’ve assembled,” she realizes, “I’m still single, more or less.”
Her son was still in diapers when Ertman met a fellow lawyer named Karen Lash. After they fell in love and decided to marry, they amended the original parenting contract between Ertman and Flatt, formally adding Lash as the boy’s other mother. They also added a provision for Ertman’s rights with the child if she and Lash should split up.
It wasn’t until Flatt and Lash met—after he flew, with a broken ankle through icy weather, to attend his son’s birthday—that Lash recognized the value his contract had brought to his relationship, and hers. Seeing “how clear they were about their roles and relationship, that clarity helped me to see that there was room for me,” she says.
It also changed forever the way Lash views contracts: “I see them everywhere. I thought, ‘Well, at least I didn’t fall in love with a torts professor.’ ”
Today Ertman, Lash, their 11-year-old son, and a dog named Lucky all live together. Flatt visits frequently.
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The history of contracts that govern our most intimate relationships is as old as Moses. In Exodus, after the infant lawgiver’s mother sends him down the Nile in a basket to protect him from Pharaoh, Pharaoh’s daughter finds him and unknowingly consents to an open adoption when she hires Moses’s birth mother as his nurse. In many places today, distressed mothers can relinquish their children anonymously under a statute known as the “Baby Moses law.”
Indeed, much of Love’s Promises is concerned with the question of whose baby is whose, naturally addressing the fallout of advances in reproductive technology—surrogate mothers, the rights of egg donors, commercial sperm banks, and how the law determines who among all the contributors is a legal parent. But Ertman’s book also has plenty to say about time-honored institutions such as marriage, divorce, and cohabitation.
All families are in a sense governed by contracts, tacit or expressed, large or small. I make dinner; you clean up. I’m drinking—I drove last time. Parents send children to college with the implicit agreement that the kids will do well enough not to waste their money.
Before we married, my husband and I agreed to raise our children Jewish. I, the non-Jewish parent, duly schlepped them to Sunday school at temple. In return, we had a big, fat Italian Christmas with my family every year, full of ravioli, meatballs, and stockings from Santa. As our nest emptied, we “contracted” to have adventures abroad, taking turns picking the country. Bob and I recently returned from a three-year posting for his job in China. He knows our next move will be to France.
People don’t like to think of pair bonds as quid pro quos. We want to be motivated purely by love, to be willing companions on a journey through life. The signing of the marriage license is the least fetishized part of our Western wedding ceremony.
To formalize the particulars of our agreements could appear mistrustful, more focused on limiting clauses than on loving sacrifices. But contracts, Ertman argues, are not inherently unloving. “There is such smug certainty that love and contracts are separate,” she says, “which I want to dislodge with 8,000 examples.”
Putting agreements in writing, or at least discussing them, she explains, builds in “something recognizably human and emotional.” When people have problems, the contract “wakes up” the emotional connections that form its core. The partners can then find a way around a dispute.
This kind of talk from a contract lawyer can come across as a bit fuzzy. Ertman’s argument is less crisply logical than inspirational, relying mostly on her fund of examples, including the few sample contracts she includes at the back of the book. If she can find happiness with a legal agreement, she seems to say, you can too.
Ertman’s colleague Jana Singer says the real value of Love’s Promises, and the practice of making contracts, is to stress the advantage of “thinking through the process.” This can be worthwhile in the least exotic of relationships—though, Singer adds, “the more diverse families are, the more useful the contract is.”
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Ertman is clear that contracts don’t guarantee a loving response, and when one partner has a change of heart, a written agreement reverts to a contract’s primary purpose: to force compliance. She tells the story of a 2005 case in Texas in which a lesbian and a gay man who barely knew each other contracted to conceive an infant and raise the child together in two households. The mother conceived quickly but lost the baby. When her co-parent headed to Paris for a romantic getaway with his boyfriend instead of helping her through the ordeal, she drew up a new contract promoting her girlfriend to the status of parent and reducing the father to nothing more than a donor.
But the second contract was never signed, and the mother conceived again and had the baby without telling the father. Though the mother eventually agreed to observe the terms of the original contract, the case became a landmark in Texas because the court effectively recognized the validity of parenthood contracts.
Cases like this will continue despite the Supreme Court’s decision. As Founding Father Charles Carroll’s history shows, marriage is deficient to answer all the complexities of life and love. “The wonderful thing about contracts, and even nonbinding deals,” Ertman writes, “is that they allow people to tailor the rules to their particular situation. For those of us who fall outside of convention in one way or another—and often, simultaneously, within other conventions—that knowledge can literally make or unmake a family.”
It may be that same-sex couples will redefine marriage—not, as some opponents argue, by demeaning the institution but by erecting a new body of contract law that matches our desires more closely.
Debra Bruno recently returned to Washington from Beijing, where she wrote for the Wall Street Journal and the Atlantic.
This article appears in our August 2015 issue of Washingtonian.