Public Policing of Intimate Agreements

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 core choices constitutive of 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 t Thomas C. Grey Fellow, Stanford Law School. I thank Albertina Antognini, Rick Banks, Beth Colgan, Dick Craswell, Robert Esposito, Andrew Gilden, Thea Johnson, Jeanne Merino, Melissa Murray, Nancy Polikoff, Elizabeth Pollman, Marjorie Shultz, Norman Spaulding, Ryan Wong, and the participants in the Stanford Law School Fellows' Workshop and the Lavender Law Junior Scholars' Forum for valuable conversations and comments on earlier versions of this Article. The librarians and staff at the Robert Crown Law Library at Stanford Law School provided expert research assistance. Finally, I thank Luci Yang and the editors of the Yale Journal of Law and Feminism for their insightful comments and suggestions. Copyright C 2013 by the Yale Journal of Law and Feminism Yale Journal of Law and Feminism doctrine regulates intimate behavior and increased skepticism regarding its use in the context of intimate agreements. INTRODUCTION ....... 160 I. PUBLIC POLICY AND AGREEMENTS REGARDING FROZEN EMBRYOS 166 A. The Agreements 166 B. The Policies in Context 171 1. State Regulation of Intimacy 171 2. Forging a Public Policy Against Forced Procreation 174 II. REGULATING INTIMATE RELATIONSHIPS THROUGH THE PUBLIC POLICY DOCTRINE ...... ......... 177 A. Reinforcing Separate Spheres 178 B. Naturalizing Motherhood ....... 183 III.THE COSTS OF PUBLIC POLICING 190 A. Contract Doctrine and the Production of Gender.. 190 B. Marginalizing Sexual Minorities ...... 195 C. Interfering with Innovation 200 IV.REVISITING THE PUBLIC POLICY DOCTRINE IN THE INTIMATE AGREEMENT CONTEXT 204 A. Shortcomings of the Public Policy Doctrine ......... ......... 204 B. Addressing Concerns About Offensive Agreements 212 CONCLUSION 2........ 15