Taboo Trades
Taboo Trades
Families By Agreement with Brian Bix
My guest today is Brian Bix, the Frederick W. Thomas Professor of Law And Philosophy at the University of Minnesota School of Law. He teaches and writes in the areas of family law, contract law, and jurisprudence. He joins us today to discuss his 2023 book, Families by Agreement: Navigating Choice, Tradition, and Law, published by Cambridge University Press.
I really enjoyed this episode – it was both educational and entertaining. Brian is not only a productive scholar, but a generous one – note his discussion of other important scholars in the field during this episode, including Martha Fineman, June Carbone, Naomi Cahn, and Jody Madeira, among others.
Also interesting is the discussion with my UVA Law student co-hosts, Alexa Rothborth and Tanner Stewart. Alexa is the second donor-conceived co-host to moderate a discussion about gamete donors on the podcast. That Season 3 episode, with Mary Anne Case and co-hosted by Reidar Composano and Bryan Blaylock, is linked in the show notes below. Reidar was also donor-conceived, as he discusses in that episode roundtable.
Further Reading
- Bix Bio https://law.umn.edu/profiles/brian-bix
- Advanced Introduction to Contract Law and Theory (Edward Elgar Publishing, 2023)
- Families by Agreement: Navigating Choice, Tradition, and Law (Cambridge University Press, 2023)
- Jurisprudence: Theory and Context, (Sweet & Maxwell (UK), Carolina Academic Press (US), 1st ed., 1996; 2d ed., 1999; 3d ed., 2003; 4th ed., 2006; 5th ed., 2009; 6th ed., 2012; 7th ed., 2015; 8th ed., 2019; 9th ed., 2023; translated into Chinese (Law Press, 2007), Greek (Kritiki Publications, 2007), Spanish (Universidad Nacional Autonoma de Mexico, 2010), Italian (G. Giappichelli Editore, 2016), Portuguese (Tirant lo Blanch 2020), and Georgian (Varlam Cherkezishvili Institute, 2023)
Amazon UMN Libraries UMN Libraries
- Krawiec Bio https://www.law.virginia.edu/faculty/profile/kdk4q/1181653
- Donorsexuality with Mary Anne Case https://tabootrades.buzzsprout.com/1227113/episodes/11655810-donorsexuality-with-mary-anne-case
Hey, hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Kravick. If my sister glances at anything I'm doing, she just looks at it and she's like, this is so boring. Why do you do
SPEAKER_01:this? I'm sorry, your stuff is boring. Let's sell ourselves into slavery.
SPEAKER_05:My guest today is Brian Bix, the Frederick W. Thomas Professor of Law and Philosophy at the University of Minnesota School of Law. He teaches and writes in the areas of family law, contract law, and jurisprudence. He joins us today to discuss his 2023 book, Families by Agreement, Navigating Choice Tradition and Law, published by Cambridge University Press. I really, really enjoyed this episode. It was both educational and entertaining. Brian is not only a productive scholar But a generous one. Just listen to his discussion of other important scholars in the field during this episode, including Martha Fineman, June Carbone, Naomi Kahn, and Jodi Madera, among others. Also interesting is the discussion with my UVA Law student co-hosts, Alexa Rothforth and Tanner Stewart. Alexa is the second donor-conceived co-host to moderate a discussion about gamete donors on this podcast. That season three episode with Marianne Case and co-hosted by Ryder Camposano and Brian Blaylock is linked in the show notes below. Ryder was also donor conceived as he discusses in that prior episode roundtable. Welcome, guys. Thanks for joining me today. Thanks for having us. Glad to be here. Why don't you start by introducing yourselves to our listeners?
SPEAKER_09:My name is Alexa Rossworth. I'm a 3L at UVA Law. I'm from New York. I'm really excited to be on the podcast and host this episode with Tanner. Hi,
SPEAKER_06:everyone. My name is Tanner Stewart. I'm also a 3L at the UVA School of Law, and I'm from Northern Virginia.
SPEAKER_05:Great. So as you both know, we are talking today to Professor Brian Bix, and we are discussing his recent book, Families by Agreement. And specifically, we're going to talk to him about Chapter 5, Agreements About Parentage. And both of you volunteered to be co-hosts for this episode. What made you choose this particular episode that you wanted to be hosts for? Alexa, why don't we start with you?
SPEAKER_09:Yeah, so I'm actually donor-conceived myself, so... When I saw this topic come up, I thought it was something really interesting and something I haven't really explored through a legal lens yet. I've obviously seen it in a personal context and seen the questions and reactions that people have when they find out. So I'm really interested in learning how the law navigates these questions.
SPEAKER_05:That's really interesting. Before we move on to Tanner, can I just like follow up on that? Because you are the second student that we've had who was donor conceived, who hosted an episode on donors. Can you talk a little bit about whether you always knew that you were donor conceived, whether you found out at some point how you felt about that? This was a topic of discussion in our prior episode with Marianne Case that I want to alert listeners to. I'll put a link to it in the show notes.
SPEAKER_09:Yeah. So I did always know. I grew up with a single mom, but I do have a lot of past siblings that I've discovered through the past years through the same donor. So a lot of people have different stories about when they found out how they reacted to it. I think for me, I didn't really have a reaction just because I always grew up knowing. So it was never something that really bothered me or made me question my identity at all.
SPEAKER_05:That's really interesting. And I'll have to say, consistent with a lot of the sociological research on how people feel about this is often driven by when they found out and the way in which they found out. How did you find your half-siblings? Was it through, like, I forget what they're called, the DNA registries of various types?
SPEAKER_09:Yeah, so I did a DNA test when I was in high school. I did 23andMe. I think at that point I only discovered one half-sibling who was a few years older than me. But during COVID, a lot of people started doing them, and I think they became a lot more popular. So now I think we're at about 89 half-siblings, which is pretty crazy.
SPEAKER_05:Really? Really? 89. That is interesting in and of itself. This was a very popular donor. Yeah.
SPEAKER_09:Yeah, very popular. So yeah, it basically started in high school through DNA tests, but I think people have connected in different ways. There's also a donor sibling registry online where people are able to communicate also. So
SPEAKER_05:this is giving me then some insight into one of your questions that you had said you wanted to ask Brian today, which we'll get to. But essentially, to cut to the chase, it's about donor anonymity and the practicality of that given. Yeah. our current capacities to do DNA testing, which we will come back to that. Let me turn to Tanner for just a minute. Tanner, what about you? What prompted you to want to co-host this episode?
SPEAKER_06:Sure. So my first exposure to kind of parentage and the law was in a trust and estates class that I took last fall. And we kind of were learning about the Uniform Partnership Act and just how the law defines when someone is a parent to a child. This was, of course, in the context of wills and estates, but it kind of sparked my interest. And the natural progression of that is now looking at like the surrogacy agreements and other agreements besides adoption that will convey and take away these parental rights.
SPEAKER_05:Was that class with Professor Naomi Kahn?
SPEAKER_06:It was, yes. Fantastic class to anyone listening.
SPEAKER_05:In addition to being an expert in trust and estate, she's also an expert in family law. So I'm not surprised that that class took your interest in this direction. Okay, so we've talked about why you're both here. Let's talk now about what you hope to get out of our discussion with Brian. Alexa, what about you? What do you want to talk to him about and hope that you learn from our conversation?
SPEAKER_09:So this semester, I'm actually also in an IOMECON class. I'm taking single people in the law with her, which we're learning, obviously, about how the law really discriminates against single people. And it's given me a new insight into that. And I think Both through that class and this class, I really learned about how the law favors a two-parent household. So I think it's really interesting looking at Brian's book about when a parent is allowed to basically separate from a child legally and not claim responsibility and when the law allows that and the different policy reasons for that.
SPEAKER_05:That's interesting. So you actually do have a number of personal connections to the issues that he brings up in the book, including, as he discusses at some length, sort of the preference for or the presumption, right, of two parent families. Tanner, what about you?
SPEAKER_06:Yeah, so I think a lot of people hold the family sphere as something very sacred and very kind of immune to government intervention. So for this podcast, I'm really excited to explore any concerns raised by kind of allowing the courts to come into the space and define the duties and rights in regards to parentage for others.
SPEAKER_05:Great. Yeah, I'm interested in what he has to say about that, too. So let's join the others. Okay. Welcome, Brian. Thank you for joining us.
SPEAKER_01:Thank you so much. It's a great honor to be here. I'm a big fan of the podcast.
SPEAKER_05:I would say my mother, but my mother doesn't, in fact, listen to the podcast.
SPEAKER_01:My mother and my wife used to read all my stuff, and then they gave up. So, you know, I just read it to my stuffed animals.
SPEAKER_05:Well, okay, so let's talk about your book, Families by Agreement. I just wanted to start with getting your take on sort of why you wrote the book, what your goals were, and who the intended audience was. was what inspired you?
SPEAKER_01:Well, you know, I've written in this area for a long time and having written a lot of pieces about what I also call private ordering and family law. I thought it was time to try to bring them together, to try to think about the topic in a more general and sort of comparative way. And I wanted to do it in a text that might be useful at multiple levels that I hope is of value to actual practitioners, a lot of digging into the statutes and the cases, but also that considers the policy arguments that come forward and sort of the moral or philosophical issues to the extent they're different from the policy arguments. And I recall... I sent the manuscript around for comments, and one of my more libertarian friends wrote back and said, well, of course the agreements are enforceable. There's nothing, you know, agreements in family law is no different than agreements on a Tuesday, right? There's no particular reasons you'd want to treat it any differently. And then, you know, there are other people I sent it to, and it's like, God, no, you can't. You can't enforce these things. It's family. Yeah. And in some ways, the book is about trying to find a comfortable place in between those positions, that there is something special about families, that there are concerns that we reasonably have about enforcing agreements in this area, but at the same time, that if families if the area is sufficiently regulated, if there are sufficient safeguards, then the real benefits of agreements apply here as well.
SPEAKER_05:Thank you. That's very helpful to think about situating it between the two extremes, both of which one sees in the literature, right? Yeah. Okay. So let me turn this over to Tanner and Alexa, who, as I said, are the co-hosts this week, and they're going to really run the show from here.
SPEAKER_06:Awesome. Thank you again, Brian, so much for being here today and being here to speak with us. I'm leading us off with our first question, so I'll just get right into it. So when discussing agreements that grant and waive parental rights, you mentioned that the minority courts that do enforce such agreements consider if enforcement is in the child's best interest. And while that makes sense, there is also a presumption in other areas of family law of a deference to parents. parental determinations about the child's welfare within limits, things like schooling, vaccinations, other things. Are there concerns raised by allowing the court to kind of step into this zone of privacy and define what the child's best interests are by choosing whether to enforce an agreement? And in particular, are we concerned that this might allow biases, societal or otherwise, to infect or shape determinations that are so integral to the family sphere?
SPEAKER_01:Well, you know, family law is complicated. And there are lots of moving parts and always potentially conflicting values and principles. The one relative constant throughout family law is best interest of the child. If you had to say, what is the one, you know, tort laws, corrective justice, contract laws, promises, what is the one principle of family law? The most consistent thing is best interest of the child. And while courts will regularly say that this trumps all other considerations, and that is largely true, but it's not entirely true. As you indicate, certain aspects of parental rights and prerogatives will trump best interests, at least up to a point, to the point where the harm is great enough to constitute abuse and neglect. And it's also true for certain policy judgments, as when the courts declare that they will not take into account community prejudice or not taking into account the potential advantage of home care over even mediocre child care and making child custody determinations. Some theorists like Jim Dwyer believe that family law should take the best interests of the children even more seriously than it currently does, and that the task of determining best interests should be left to a potentially interventionist court. But the view of the courts and many commentators is that the better policy is for parents, at least at first, to be the ones who determine what's in the best interest of the children, with social services agencies, prosecutors, and courts as backups only when the parents get things badly wrong. And if nothing else, this approach certainly saves our badly overburdened family courts from an onslaught of cases that might be brought by advocates and activists on behalf of children. Now, you talked about the bias and Family law is full of open-ended, vague, and multi-factor standards, which invites bias and prejudice, unfortunately. And family law historically has gone back and forth between more open-ended deference to judges using their best judgment and creating strong presumptions and creating guidelines and creating standards. And There are obvious advantages to presumptions and guidelines to avoid inconsistency and avoid prejudice and bias. But especially in family law, where it's very hard to bring child custody down to a simple set of factors, at least to do it fairly, we keep moving back to more discretionary standards. And we just hope that we do a better job of creating a diverse and representative set of judges and a competent set of appellate courts.
SPEAKER_05:Brian, I just wanted to follow up on this, if it's not too far outside of the scope of this chapter. Often when I talk to family law people, they're quite hostile to the best interests of the child standard for some of the reasons that Tanner alluded to. And I just wanted to get your take on that. Do you count yourself as among the people who are either a defender or hostile to it? Or I don't know, I would just like to get your take on that if you're willing. I'm ambivalent,
SPEAKER_01:right? So we used to have in family law and at various times have had in custody matters strong presumptions, right? There was a maternal presumption for at least for tender years for the younger children. Then we had psychological parents. We had primary caregivers. And part of the advantage of this is that, you know, the standards were clear. The outcomes were relatively predictable. I mean, part of the problem about, if nothing else, one of the problems about best interests is it means that things are less predictable. And you get situations where it's often the case where one parent, more often the mother, is very concerned. This parent's primary concern is getting custody. They want to make sure they get custody. And since best interest leads some uncertainty, they're willing to give up a lot to avoid that uncertainty. So I think Scott Altman, amongst others, has also written about this, the problem of parents, again, more often mothers and fathers, giving up you know, a lot of financial rights and entitlements and property division, spousal support, et cetera, even child support levels in order to make sure they got custody in a separation agreement. So, you know, in custody matters, I think primary caregiver wasn't a bad idea. If we moved off the gendered maternal profits to a primary caregiver or psychological parent, I think there were cases where it would lead to problematic results, but at least it would avoid that sort of uncertainty. There are other contexts where, I mean, best interest at least gives the court a backstop, right? A backstop from saying things like, no, I mean, I know this comes up in questions later. No, we won't let you waive your rights to visitation and in exchange for giving up obligations of their child support because we're here to protect the best interest of the child. There are other contexts where, you know, as always, discretion depends on how you use it, right? There's a context of open adoption, where open adoption agreements are subject to court approval for the best interest of the child. And in Minnesota, the statute says, and this is, I think, in Washington state as well, or at least some other states, and the court will be willing to alter these open adoption agreements in the best interest of the child. And The problem is, again, that that creates unpredictable situations. If you get to a judge who's not a fan of open adoption, and they're certainly out there, right? You'll get cases where they'll restrict or try to entirely end the open adoption agreement, which the birth parents have entered into a reliance, right? I'm willing to give up the child because I've been guaranteed ongoing contact. If you undermine... You know, part of the advantage of enforceable agreements is that people can rely on them. And if you have a best interest backstop, then that creates unpredictability. And again, on one hand, unpredictability may make a parent give up financial rights to get custody. Unpredictability may lead a birth parent not to give up a child that they really don't want to raise, but they do want to stay in contact with to intended parents who might be better parents or at least more interested parents. So, you know, I'm deeply ambivalent, but then again, I don't seem to have firm opinions on anything. That makes for longer articles.
SPEAKER_05:Thank you. Thanks for that answer.
SPEAKER_06:That's a really good point, kind of talking about how the best interest will result in different outcomes on a case-specific basis. Next, we go to Laura, who has a similar question about how this best interest might be applied differently in practice.
SPEAKER_10:Hi, Brian. Yeah, so you mentioned how we don't allow bargaining to waive child support in exchange for the father not seeing the child, for example. So I'm curious, why do we view sperm donors so differently? It seems that this best interest of the child standard should apply equally even to a single mother who goes to a sperm bank wanting to be a mother, but we treat this case very differently. So I'm curious to Does this mean that courts have determined that the public policy in favor of encouraging reproduction through sperm donation outweighs the benefits of support from the biological father?
SPEAKER_01:So here is another area of conflicting or overlapping principles. So the starting point, as you indicate, is a preference for the child to have two legal parents, or at least two, and to not allow parents to waive or trade away their parental obligations. At the same time, there are people who cannot have children without the help of gamete donors. And to encourage their use, especially in the early days when these were being used almost exclusively by married couples, the inducement to the gamete donors as well as the intended parents was that the donors would have neither rights nor obligations in relation to the resulting child. Of course, now it's increasingly common for the intended parent to be an unmarried single parent. And there's a more obvious tension between wanting to encourage donors by assuring them that they will have no obligations towards the child and leaving the child with only one legal parent. But I mean, I'm, for what it's worth, happy to stay with the original bargain. Now, we have this situation now, and the states are a little complicated in this. I talk about it elsewhere in the book. where, you know, especially in cases of informal gamete donation, the sperm donor and sometimes the egg donor can remain a part of the child, can have ongoing contact, ongoing connections with the child, if the parties so choose. And there are cases like in Kansas, where the important thing was the statute says you can do this if you put it in writing. And then someone came to an oral agreement and didn't put it in writing, and they then wanted to know where their rights were, and they went up to the state Supreme Court, who took a year and a half to decide, but basically said, you know, it may be unjust in this case, but there's a good reason why, you know, an agreement of this sort should be in writing, and we're going to enforce it. But, I mean, the point is, GAMI donors can be added to the people who have rights and obligations. But we're very reluctant to take away legal parents unless there is a good reason. And the good reason, as I said, originally was gamete donors in the context of married couples. The policy arguments are slightly different with single parents, but still we believe that we would want to encourage gamete donors who don't want to have rights and obligations while leaving options in context where the parties do want them. that have rights and obligations.
SPEAKER_09:Hi, Brian. Thank you again for being here with us today. And thanks for the question, Laura. I also have a question on sperm donation and the policies surrounding that. So in the chapter, you discuss how state laws often ensure that sperm donors have no legal rights or obligations toward any children resulting from their donation. Another key aspect of these agreements is the anonymity clause, which prevents the unborn children from knowing their biological father's identity. How does the law approach this aspect of the agreement, particularly in terms of limiting a child's ability to discover their parentage? And given the rise of internet tools and DNA testing, how might this legal landscape shift if it hasn't already, as it becomes easier for donor-conceived children to independently uncover a donor's identity?
SPEAKER_01:I mean, to be honest, this is a developing area where I'm not currently entirely fluent with all the changing case law and legislation. I should first note that anonymity with donors, as with adoption, has never been a full guarantee. It's always been open to a court to require revealing the information if there was a strong enough reason, usually a deed to get medical information. And as you indicate, with the prevalence of genetic snooping available through 23andMe and like services, children of gamete donors are increasingly able to track down both their donor biological parents and their biological siblings being raised in other families. And I should note that in the parallel world of conventional adoption, anonymity for birth parents appears to be disappearing. under pressure both from advocacy groups and from commentators on one hand, and the greater availability of genetic testing and tracing, as already discussed. So I think you're right. I think whatever clinics try to offer, whatever legislation tries to offer, is being undermined by the reality on the ground.
SPEAKER_09:So I actually was donor-conceived. So I have donor half-siblings, which I found through 23andMe. And We also did discover the identity of the sperm donor through that. So I think that was what definitely prompted my question. So do
SPEAKER_01:you guys get together or at least have like a Facebook page or something?
SPEAKER_09:Yeah, there's an Instagram group. I met a few of them a few years ago. How
SPEAKER_01:similar are you to your genetic siblings?
SPEAKER_09:I don't know if I'm that similar. I think a lot of it's obviously nature versus nurture, but a lot of People look a lot alike, which is interesting, and have similar traits. So it's cool to see that.
SPEAKER_05:There's 89 of them, Brian. Is that
SPEAKER_01:right, Alexa?
SPEAKER_05:89? 89.
SPEAKER_01:Yeah. I mean, there was this article about the donor who had 230 genetic children. But yeah, 89.
SPEAKER_05:Wow. That's
SPEAKER_09:a lot.
SPEAKER_01:Yeah. That's a person who must have been going through medical school or something. Engineering. Engineering. Okay. Yeah. Wow. No, I mean, and this, of course, brings up a whole different set of questions. When there are that many genetic half-siblings running around, there are real issues about accidentally dating or marrying someone who you're related to. So half the state you have to avoid.
SPEAKER_09:Yeah. Well, thank you for that answer. Thank
SPEAKER_01:you for sharing the information. I think you should start working on that article.
SPEAKER_09:Well, yeah, I'm looking forward to keeping an eye on all the policy changes in the future. And next, we have a question from Lauren.
SPEAKER_02:Hi, Brian. Thank you so much for being here. I'd like to continue with a question about genetic privileging in the landscape of gamete donation and surrogacy. So egg and sperm donor contracts, as well as gestational surrogacy contracts, tend to be pretty heavily favored by the law, while traditional surrogacy contracts seem to be very disfavored. But if we were to break traditional surrogacy into its constituent parts, it's one, egg donation, followed by two, an agreement to carry a child to term, the only difference being that the carrier is also the genetic parent of the child. Why is a genetic connection to the birth mother considered such an important distinguishing factor here, especially as the focus has shifted from genetics as defining parenthood to intent and willingness to be a parent as defining parenthood?
SPEAKER_01:So there certainly is a greater move towards recognition of parenthood by function and by intent, but genetic parenthood is still incredibly important. Gamete donation is the exception, but That is due to the strong policy in favor of helping out infertile couples, historically, especially married infertile couples. And note that even here, there continues to be cases, as I mentioned, where the gamete donor and the intended unmarried parents do not follow all the legislative procedures. And there are cases where the donor may be declared the legal parent of the resulting child. Even if mere genetic parenthood is not enough on its own, let's say under Lehrer v. Robertson to allow an unmarried father to block an adoption, note that it is enough to ground a child support obligation should the mother or the state seek it. But you're right that there's a world of difference in both court decisions and legislation between the treatment of traditional surrogacy and gestational surrogacy. But note historically one little trick. I don't know how... The case that introduced the more favorable treatment of gestational surrogacy, Johnson v. Calvert, in that case was one in which the intended mother was in fact also the genetic mother of the resulting child. A situation which does occur from time to time, but which was then and still is unusual in gestational surrogacy situations. And in the case, the California Supreme Court emphasized the presumption for parenthood by genetic connection was just as strong as the presumption based on gestation. And they then used intent as the tiebreaker. But then in later cases, the more usual factual case where the contest was between a gestational carrier and an intended parent who was not genetically related, the courts, the California courts, continued to say intent is a standard to be applied. So it's interesting that genetics was part of the power persuasion of Johnson versus Calvert, but it drops out.
SPEAKER_05:I had forgotten, Brian, that that was the original facts of Johnson v. Calvert. I'm glad it could be of some
SPEAKER_01:value.
SPEAKER_06:Awesome. And just a quick follow-up to that, Brian. I was just curious, from my own knowledge, have the majority of states adopted the UPA or some variation of it?
SPEAKER_01:Yeah. Again, UPA comes in many, many flavors. I don't know the exact numbers, but I think the majority have adopted either the most recent version 2023 and then the one before is 2018 or something like that. I've adopted one of the two more recent versions of the UPA.
SPEAKER_06:Awesome. Thank you for that. Next, we are going to Alyssa Lawrence with a question about when this selective enforcement of parental agreements might be beneficial.
SPEAKER_07:Thanks, Tanner. Hi, Brian. So my question is in situations where the relationship between the biological parents of a child are not amicable or ideal, I can understand entering into an agreement where one parent waives their parental rights entirely and that being the preferred situation because they want to be independent, can support themselves and their child fully and do not want to feel controlled or obligated to rely on someone who does not want the responsibility of the child. I would like to know your opinion on these types of situations where a complete waiver of parental rights by contract might be ideal for both the child and the parent who would like to maintain their parental responsibility.
SPEAKER_01:Yes, thank you. So as in much of the law, there's a great deal of difference between the law and the books and what happens in the real world. Family law doctrine takes a very strong line that legal parents have at a minimum a duty to pay child support, and they have a right to some level of contact with their children, and that these are also in part the rights of the children themselves to be supported and to have contact with both of their legal parents. So for that reason, it's held that the parents have no power to waive those obligations and rights or to trade them away without the consent of the state. But the reality of the ground is often different. With divorced or unmarried parents subject to court orders of child support and visitation, a large number of non-custodial parents are, in particular non-custodial fathers. These parents see their children less and less over time. And simultaneously, and perhaps independently, many child support obligations are not fully paid or not paid at all. And if the custodial parent does not go into court seeking enforcement, then the couple have in effect, even if not expressly, even if not officially, traded off no child support payments for no visitation, even though if the parents had gone in the court, the court would not allow this to happen. They don't allow lack of visitation to be a defense for not paying child support, or by the way, the other way around. Also, my colleague, June Carbone, working with Kim's colleague, Naomi Khan, have published books and articles documenting and discussing the way that in poorer communities, women often choose not to get married in part to control access to children, that mothers will throw unreliable male partners out of the house and raise the children without them, and that this is accepted in the community, even though if the fathers had gone to court, the court would have ordered access to the children along with child support. Though in these communities, the fathers rarely do go to court, not least because going to court is time consuming and can be expensive. And a court order of child support will bring its own risks, including potential jail time for nonpayment.
SPEAKER_06:That was really interesting. Thank you, Brian. On a similar vein, John Henry has a question about how some of these factors play into selective enforcement, particularly notions of fatherhood and motherhood.
SPEAKER_00:Thanks, Tanner. Yeah, so... Thanks, Brian. As you outlined in your book, you map out a pattern of selective enforcement of familial agreements. So some are tolerated by courts, others are not enforced. We've discussed throughout this podcast about the roles of parenthood vis-a-vis the best interest of the child, but I kind of want to dive into kind of the gendered aspects of this. How do conceptions of motherhood and fatherhood and the differences between those two concepts affect the selective enforcement of familial agreements across the court cases that you cite throughout your book?
SPEAKER_01:So one area where this may well be an underlying part of the legal and social response is the new reproductive technologies in general and surrogacy in particular. As Kim has written about, the attempt to regulate and cap the payments to egg donors was often justified by a commodification argument. one that should have been equally applicable to sperm donation, but the connection was rarely made. And the opposition to surrogacy, whatever its merits otherwise, I think it's a very complicated issue. The opposition to surrogacy seems clearly to be tied up with certain strong feelings about motherhood and the idea that good mothers should not give up their children or be encouraged to do so, or to do so only as a selfless act, completely pure of the taint of payment. Also, as Sylvia Law pointed out before your time, there is much a family law that both reflects and reinforces a view that mothers are deeply connected with their children while fathers are uninvolved. That occurs not only in the agreement context, but also regarding the limited rights of unmarried fathers to block adoptions, the differing legal standards for citizenship for children of unmarried couples where only one of the parents is a U.S. citizen, with differences if the citizen parent is the father rather than the mother.
SPEAKER_09:Thank you for that insight, Brian. Next, we have a question from Nia concerning the rights of surrogates.
SPEAKER_03:Hey, Brian. Thank you for joining our class and writing such an insightful piece. My question is, critics of surrogacy arrangements disagree with the commodification of reproduction and argue that allowing a surrogate's parental rights to be waived or transferred by contract is effectively subordinating women's status. Yet most surrogates, like most sperm and egg donors, do not want the rights and obligations of legal parents and might want a legal standard that assign legal parental rights to them. To what extent, as alluded to by Martha Feynman, is the policing of women by courts meant to perpetuate the control of motherhood?
SPEAKER_01:So, thanks. Martha Feynman's argument was also more general. She argued that it seems to be just in those areas where women might be said to have a market advantage, and she included prostitution along with surrogacy, that market exchanges are forbidden or sharply limited. And as Kim wrote about the efforts to cap the price paid for egg donors, which we already talked about, when part of the justification was to reduce the high cost of IVF, no one had suggested that there being any cap on the doctor's fees or the agency fees for the process, even those fees contributed at least as much and likely much more to the overall cost of IVF. Of course, what percentage of the opposition to surrogacy and egg donation is controlling women and women's sexuality? What percentage is just what Kim might label ingrained repugnance? And what percentage is genuine concern about the commodification of women's labor and the commodification of children is never easy to say. It should also be noted, of course, that when the Alabama Supreme Court earlier this year in LePage versus the Center for Reproductive Medicine used an Alabama statute to put IVF practice at risk in that state, the response from even conservative politicians to protect IVF was surprisingly strong and quick. Of course, it's all politics. IVF is very popular, but then so are abortion rights, and as referendum after referendum has shown. But their conservative politicians are much slower to adjust their views, perhaps because sexism, misogyny, and control of female sexuality is much more to the forefront in abortion than it is in IVF. And IVF, of course, skews more to the upper economic classes than abortion does.
SPEAKER_05:Thanks for making this podcast about me, Brian. I appreciate that.
SPEAKER_01:You know, it was that or a cash payment, and I'm a little short.
SPEAKER_06:I myself am a little short on cash as a student, but we'll see what we can do. Alrighty, next we have Alyssa Marshall asking a follow-up to Nia's question.
SPEAKER_04:I have a follow-up question to Nia's question and was wondering, or a two-part question actually, and was wondering, in previous classes we have learned about nudging and choice architecture. And sometimes default rules may be set to replicate what most people would desire or would want most of the time. But sometimes they're designed in a way that they nudge people towards a particular choice. And here we appear to have a default rule that is the opposite of what the parties want. And I'm just wondering, what is the public policy behind that choice? And then secondly, I'm wondering, based on what you had said a few minutes ago, you mentioning that women kicking men out if they're not suitable, it made me wonder, really, if norms changed in society, would there be more regulation and enforcement of fatherhood that does not currently exist? Because currently, I guess I see this trend where we make laws and we create enforcement of regulation based out of the norms of society. So how would that change things?
SPEAKER_01:Well, as you indicate, there's always a lot going on with legislation. And part of what's going on is with legislation is sometimes merely expressive, or maybe not merely, it's expressive, right? We want to express that we're against this, but sometimes we only go so far to express or enforce that. And let me give you an example from a very different context. There's legislation on the books in most jurisdictions still to this day making adultery illegal, but with no effort whatsoever to have that crime criminal law in force, and if anyone did try to regularly enforce it, they'd be fired. The legislature just wants to express, as the saying goes, that adultery is a sin and they're against it. Contrast both what is going on with surrogacy in some European countries and what's going on in abortion in parts of this country. In some countries, not only can one not do surrogacy, but if one hires a surrogate in another country, upon one's return, the child will not be recognized as yours. Even if the surrogate has no objection, and even if the local law where the surrogacy occurred fully endorsed your parenthood. And in this country, of course, some states not only forbid abortion, but threaten to prosecute anyone who seeks an abortion in another state or anyone who helps someone to get an abortion in another state. In the diminishing number of states that oppose surrogacy, the legislation is generally much weaker than that. There's no effort to stop intended parents from, say, hiring a surrogate in California. And once you hire the surrogate in California, the child's born in California, you will have parental rights under California law. And constitutional full faith and credit and various pieces of federal legislation will guarantee that those parental rights will be recognized in every other state. And Courtney Joslin and other commentators have pointed out that every piece of legislation in American states on surrogacy in recent years has been in the direction of greater legal enforcement and authorization. And this is very different from what's happening in nearly every other country in the world, where the trend seems to be mostly in the direction of restricting access and recognition. So, you know, the connection between social norms, legislation, what's actually enforced, the second tier and second level of multi-state recognition is, shall we say, complicated.
SPEAKER_09:Great question, Alyssa. And Brian, really interesting point on the enforcement of laws opposing surrogacy versus the laws opposing abortion. Next, we have a question from Liv about a New York law regarding extra embryos.
SPEAKER_08:Hi, Brian. Thanks so much again for joining us today. So kind of narrowing the focus a little bit here, I was really intrigued by the 2021 law mentioned in the chapter in New York regarding the disposition of excess embryos. And I'm really curious to hear any thoughts you have regarding that requirement for each parent to consult with an independent lawyer in that process. I'd be interested in your thoughts on kind of the wisdom of that law, and more importantly, its workability and practice, because these are multifaceted issues. And on the one hand, the requirement of independent counsel can ensure that each party is protected. But on the other hand, it can also increase costs and decrease the efficiency of these agreements, which could be disfavorable to some of the parties involved.
SPEAKER_01:Thank you. So I was a little self-promotion here. I was the reporter for the Uniform Premarital and Marital Agreements Act. And there's a provision in that act requiring each party to have the opportunity to consult with an independent attorney. You don't actually have to have an independent attorney, but you have to have the time and if maybe the resources from the other party to pay for an independent attorney. You can waive that. You can say, no, I don't need one. Anyways, there's a requirement that you have an opportunity, financial and time-wise, to consult with an independent attorney. And I think that speaking to an independent attorney, especially for the poorer party, the party that's not initiating the premarital agreement, makes great sense with those sorts of agreements. Because parties often have no sense of what rights they might be waiving. And because those parties may be, as they say, in love, right? And so there are bounded rationality issues. They can't imagine that this love will ever end or this marriage will ever end. result in divorce, and the parties might benefit from being forced to confront the real probability that things might end badly and to think about what should happen then. I don't have quite the same level of fears for couples entering IVF and thinking about the disposition of unused embryos. These are couples who have already thought a lot about the IVF process. It's not something you do on the spur of the moment, not for that expense. And they're likely far enough along in their married or unmarried relationships to imagine that the relationship might end. And thus can think fairly clearly about what they want to do with embryos in that case or in the case of one of them dying. Also, in general, as we've mentioned and you mentioned as well, IVF is a very expensive process already. A significant portion of the couples who use it are not well off. They'll take out loans, they'll take out mortgages, second mortgages, third mortgages to pay for the process that having a biological child is that important to them. And to add to that expense, I'm less worried about the time, but add to that expense for what appears to be a relatively limited benefit, I agree doesn't seem a benefit worth the cost.
SPEAKER_09:Thanks, Brian. Next, Nia has a question regarding courts' attempts to enforce parental obligation mandates.
SPEAKER_03:In your book, you note that the courts are reluctant to allow parents to waive their parental responsibilities, but frequently court mandates to fulfill parental obligations, for example, child support, as you mentioned earlier, are neglected. To this end, how much of the court's attempts at enforcing two-parent households are unworkable in practice?
SPEAKER_01:So, of course, the first thing to note is the obvious point that courts only respond to the cases that are brought to them. And the state has neither the motivation nor the resources to seek enforcement of more than a small fraction of child support orders. Now, there's a whole very long discussion, Professor Tenbrook, brought this up, professors Carbone and Kahn have written about it. The family law that applies to the poor is very different than the family law that applies to the rich. And certain norms of family life are enforced and supervised with poor communities that aren't with other communities. And as also, as we've discussed here this morning, There are communities which seem to have developed social norms about parenthood support and visitation, which vary from the official legal standards. And to be honest, I'm not entirely sure how I feel about that. I understand why mothers might be reluctant to share parenting with fathers who they perceive to be unreliable or worse. But I'm also concerned about giving mothers, invariably not parents, at least some of whom may not be acting for the very best motives all the time. I'm a little concerned about giving mothers full veto rights over father's ability to see their children. Professor Carbone and I are working on an article about thinking about the possibility of creating community mediation centers where parties would have some limited ability to create agreements about their relationships and their parental rights that might vary somewhat from the official legal standard. But I think it's complicated and it's potentially risky.
SPEAKER_06:Thank you, Brian. And to close this out today, Alyssa Lawrence has one final question. So without further ado, please take it away, Alyssa.
SPEAKER_07:Thank you. So my last question, with reference to Baby M and Johnson v. Calvert cases, you mentioned that many have doubts about the fullness of the consent of the woman who agreed to be surrogates. Although I do believe that, yes, in some situations, surrogacy can be coercive, I also believe that women should be free to make their own decisions about their bodies and that those who want to and or cannot have children of their own should be able to make these agreements. Moreover, I worry that those committed to having children and those committed to providing them for a fee would find their way to transacting even in the absence of a safe and regulated market, would commercial surrogacy not provide a safer and more well-regulated foundation for these agreements to make sure that all parties understand the risks and terms rather than having people navigate this world on their own through informal Reddit meetups and the like?
SPEAKER_01:Okay, great. Thank you. Before I answer the question, let me just say it's been a wonderful honor to be on this podcast, and these questions are really great and press me on just the issues that should be pressed. I hope all of you are volunteering to read my next manuscript before the book comes out. But returning to this question, I think your view is absolutely correct, and it's supported— by a lot of scholarship, including an article by June Carbone and Jody Lene Madera in the Washington Law Review Online, that shows that professional commercial agencies are just better at having safeguards and procedures that avoid most, of course, not all of the worst surrogacy outcomes that come from informal surrogacy arrangements. Also, I think If you look at the legislation in states like Illinois, Illinois' Gestational Surrogacy Act, they do a fairly good job of avoiding some of the dangers of coercion, fraud, and bounded rationality, that surrogates must receive counseling and independent legal advice, that they're only eligible to be surrogates if they've had children in the past, that surrogacy agreements have certain protective provisions. regarding insurance for the surrogate that also covers post-pregnancy complications and so on. So yeah, I absolutely agree that as in many areas, and then I assume this has come up regularly in your course, the alternative, we shouldn't assume that if we don't authorize something, it doesn't happen, right? When you don't authorize something, it happens, but it happens in the black market with fewer protections And, you know, with bad choices and no good regulations. I'm not saying that everything of all kinds should always be legal. But, you know, especially with cases, you know, at the border, I think there's a lot to be said for legal regulation, professionalization, supervision going forward.
SPEAKER_05:Thanks so much, Brian. This was fun.
SPEAKER_01:I enjoyed it.
SPEAKER_05:And you're continuing your trend of being concise. Look, we didn't even
SPEAKER_01:take the entire time. Everyone's invited over for donuts right afterwards.
SPEAKER_05:Well, thank you so much. And thanks to our co-hosts and thanks to all of you guys for your fabulous questions today. It's nice to kind of have a free-flowing exchange when we have time, which we don't always because not everybody is as concise as Brian.
SPEAKER_01:And people speak slower.
SPEAKER_05:Well, thank you for doing this. We'll
SPEAKER_01:let you go. It's been a great pleasure and an honor. And you guys do a wonderful job. And I look forward to hearing all of the podcasts except for this one.
SPEAKER_05:Thanks, Ryan.
SPEAKER_01:I think this is going to be the best
SPEAKER_05:one. It is the best one.
