Parentage agreements are proliferating. In a fertility clinic, an egg donor, sperm donor, and gestational surrogate may agree to waive their parental rights, and the intended parents may agree to share parenthood. In a maternity ward, a birth mother may agree to acknowledge a partner as a parent. In an adoption agency, birth and adoptive parents may agree to an open adoption with ongoing visitation. In a home, a parent may agree to share parentage with a cohabitant, enabling the cohabitant to become a legal parent later after raising the child and developing parental bonds.
Good reasons underlie this drift toward “private ordering” in parentage law. Many parentage agreements should be enforced to promote child welfare, reproductive liberty, LGBTQ+ equality, and familial pluralism. Unfortunately, a strand of contractual rhetoric threatens to divert the current to different ends. It is tempting to think about parentage agreements as if they are contracts: adults have expressed their ex ante intention about legal parenthood, and the law ought to treat their intentions as binding unless it will impede child welfare. This Essay urges scholars, judges, and lawyers to avoid being carried away by this contractual analogy.
The analogy between contracts and parentage agreements is shallow at best. Characteristic doctrines of contract law play only a minor role in parentage because the reasons for enforcing contracts against parties do not apply to parentage agreements. At worst, the analogy may mislead parentage reforms. Because contract law enforces parties’ ex ante intentions irrespective of their content, the analogy may lend undue support to novel agreements that tailor parental rights or divide parenthood among many adults. Such novel familial arrangements might be permissible, even salutary. However, this conclusion should rest on evidence that they fulfill the child’s relational needs as well as fulfill more traditional forms of parenthood, not on a hasty contract analogy.
Despite the “agreement” label, lawyers and theorists should resist the temptation to understand parentage agreement law by analogy to contract law. This Essay surveys the moral foundations of contract law to explain why contract principles have limited use in parentage agreements. After Part I briefly surveys the modern law of parentage agreements, Part II argues that these agreements share few moral similarities with legal contracts. That does not mean the law should not enforce parentage agreements, only that the justifications for legal enforcement lie elsewhere.