Public Policing of Intimate Agreements
57 Pages Posted: 27 Jul 2013
Date Written: June 2013
Decisions like the one to bear or beget a child, to enter into or disentangle oneself from a long-term relationship or marriage, or to allocate resources and duties within a family unit are often treated as central to a person’s identity. But many of these individually constitutive decisions necessarily involve the cooperation of others. One might therefore suspect that contract law — which operates to fix parties’ mutual commitments — would be a useful tool for securing greater certainty regarding these important decisions. Nevertheless, courts have often refused to enforce agreements between intimates concerning such decisions on the grounds that they violate public policy.
This Article criticizes the use of the public policy doctrine to avoid enforcement of intimate agreements. It begins with a concrete example of how courts have used the public policy doctrine to invalidate agreements regarding the use of assisted reproductive technologies, a realm in which uncertainty can result in tragic consequences for the users of those technologies. The Article demonstrates that the appearance of the public policy doctrine in this context is just the latest instantiation of a longstanding practice of policing the border between the market and domestic spheres. The extension of the public policy doctrine to the reproductive realm perpetuates the doctrine’s historical effects — namely, the perpetuation of gender roles that tend to subordinate women — even as it cloaks courts with power to regulate who can reproduce and in what circumstances. This judicial policing of the family burdens minority family units, such as gay and lesbian couples, who in many cases rely on intimate agreements to structure their lives, and it deprives society of the benefits that a plurality of family structures can provide. The Article therefore calls for greater awareness of the myriad ways in which the public policy doctrine regulates intimate behavior and increased skepticism regarding its use in the context of intimate agreements.
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