Taboo Trades

Sexual Agreements with Albertina Antognini & Susan Frelich Appleton

• Kim Krawiec • Season 5 • Episode 7

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I’m thrilled today to welcome new friend, Albertina Antognini and old (by which I mean long-time) friend, Susan Appleton. Albertina Antognini is the James E. Rogers Professor of Law at the University of Arizona where she teaches Family Law, Property, Trusts & Estates, and a seminar surveying different legal regimes that shape the contemporary American family. Professor Antognini’s work examines the ways that legal rules actively regulate, and in the process define, families. Her research is centrally preoccupied with considering how categories that may appear “natural” are in fact products of law, with the aim of opening them up to a more rigorous critique.

Susan Appleton is the Lemma Barkeloo & Phoebe Couzins Professor of Law at Washington University School of Law. She is a nationally known expert in family law and feminist legal theory. Her research, scholarship, and teaching address reproductive justice, parentage, gender, sexualities, and public assistance for families. They join us today to discuss their recent article, Sexual Agreements, published in the Wash. U. Law Review. UVA Law 3L, Laura Habib, co-hosts this episode.

Further Reading

SPEAKER_00:

There's a great case from Portugal. It's called Carvalho Pinto de Sousa More versus Portugal. Plaintiff was a 50-year-old woman who had two children. As a result of medical malpractice, a gynecological condition she had was aggravated, and it ruined her ability to participate in sex and enjoy it. And she got a big verdict in the trial court, and the Court of Appeals reduced it on the ground that she was already a 50-year-old woman and older women don't enjoy sex anyway, and that she already had children. And after all, isn't that what women see the purpose of sex as, to procreate? And she took it to the European Court of Human Rights, which reinstated the larger verdict, saying that the reduction in damages devalued her interest in sex based on stereotypes related to gender and age. Hey, hey, everybody. Welcome to

SPEAKER_05:

the Taboo Trades podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Kravick. I'm thrilled today to welcome new friend Albertina Antonini and old, by which I of course mean longtime friend, Susan Appleton. Albertina Antonini is the James E. Rogers Professor of Law at the University of Arizona, where she teaches family law, property, trust in estates, and a seminar surveying different legal regimes that shape the contemporary American family. Professor Antonini's work examines the ways that legal rules actively regulate and in the process define families. Her research is centrally preoccupied with considering how categories that may appear natural are in fact products of law, with the aim of opening them up to a more rigorous critique. Susan Appleton is the Lemma Barkaloo and Phoebe Cousins Professor of Law at Washington University School of Law. She is a nationally known expert in family law and feminist legal theory. Her research, scholarship, and teaching address reproductive justice, parentage, gender, sexualities, and public assistance for families. They join us today to discuss their paper, Sexual Agreements, in the Washington University Law Review. Hi, Laura. Thanks for joining me today. Hi. Thanks for having me. So why don't we start by having you introduce yourself to the listeners?

SPEAKER_08:

Great. Yeah. So my name is Laura Habib. I'm a 3L here at UVA Law, and I'm originally from Charlotte, North Carolina. I'm

SPEAKER_05:

doing the cheering hand wave for North Carolina.

SPEAKER_08:

Yeah, go Tar Heels.

SPEAKER_05:

Laura, you specifically signed up to be the co-host for this episode. So what What was it about this paper or this topic or these authors that made you want to engage a little more deeply with this topic?

SPEAKER_08:

Yeah, I just think it's really fascinating that we kind of as a society have decided that prostitution and other things like that are so marginalized and so taboo that we don't want to talk about it. We don't want to acknowledge it. Even sometimes in these intellectual and academic settings, we still avoid the topic. So I thought it was really fascinating that Susan and Albertina really took that on and just laid it out there. And not only that, but they kind of showed how prostitution and and these sort of sex for consideration agreements don't need to be so marginalized and in fact are more normalized than we think because um you know they show how in reality we see these sorts of agreements or similar types of agreements in things that we as a society have really accepted and normalized and even revered like marriage

SPEAKER_05:

Your statements, of course, are for normal law school classes, not ours, where we actually discuss taboo topics every week. It's kind of why we're here, but you are absolutely correct. And I was really happy to see their discussion of these cases. I do have some questions about the other types of agreements that they're comparing them to and how similar they really are. So hopefully we will get into that during the discussion. But we all really enjoyed reading this paper and discussing it in class, and I'm sure we're going to enjoy learning more about it from them because this is only one of several papers that they've written or plan to write on this topic. So I'm sure there's really more than even what we've gotten here. So we've talked a little bit about why you were interested in this. You have some questions for them. Your classmates have some questions for them. What is it that you are hoping to get out of this episode sort of substantively?

SPEAKER_08:

Yeah, so I'm just really interested in learning where they think these sorts of trends are going and if they see these sorts of agreements starting to become more normalized or if they think that's going to happen or if this is instead going to lead courts to kind of double down on their ideas of marriage and what a traditional marriage should look like and instead be even more protective of marriage and those sorts of traditional agreements rather than accepting these different sorts of ideas.

SPEAKER_05:

Yeah, this was one of the really interesting things that came out of my discussion with you guys, right, is that because obviously conceptions of marriage are changing and have changed very quickly. And I will be interested to see whether court's approaches to these types of agreements changes to reflect those changing realities of how we view not just marriage, but relationships more generally and sort of perhaps thinking of them as less fitting into a specific box. And I don't know which way that might cut. I mean, I would expect that courts eventually change to reflect changing social realities. But at the same time, I can imagine a scenario in which courts initially become more protective of traditional institutions because they're perceived as being under threat. So I'm interested in sort of what that development looks might look like. And of course, we're all just guessing, but Albertina and Susan will have better guesses than the rest of us, probably, given their research in this area. Anything else that you are hoping to get out of our discussion today?

SPEAKER_08:

Yeah, I don't know. I'm curious to just hear what they have to say. I found the paper really interesting. Parts of it really honestly challenged me. I found myself actually getting a bit defensive at one moment. So I am married, and when they were comparing prostitution to marriage that started raising this defensiveness in me thinking, no, my marriage isn't like that. But then I think it had me thinking deeper about themes of the paper and what they're really trying to show and how this idea of sex in agreements and sex adjacent agreements is like, you know, like I've said before, and like they point out in their papers may be more common than we think. And really at its core, there are similarities between prostitution and marriage and other things that we see. And so it had me sort of rethinking my defensiveness and realizing that maybe they had a point there.

SPEAKER_05:

Yeah, well, so that'll be a really interesting discussion. I'm glad you brought up your own perspective of that, right? Because I think we tend to assume that there's a generational divide on some of these issues that may not always be the case with young people being more embracing of sort of sex-positive feminism, I guess, for lack of a better term. And I'm glad that you bring up that your initial reaction was actually in the opposite direction. Okay, so let's join the others. So why don't we just begin by Albertina and Susan telling me a little bit about what motivated the research, what you were responding to, why you felt that this article and this project more generally was something that was needed in the literature.

SPEAKER_04:

Yeah, absolutely. So this paper actually came out of a presentation I gave at WashU, which Susan attended, on a piece I wrote called Non-Marital Contracts. And in that piece, I consider how courts are interpreting express contracts defined as oral and written contracts between unmarried couples. And I'm painting this in a very broad way. brushstrokes kind of way. But what I found essentially after looking through the case law is that courts are very reluctant to uphold these contracts, not on the basis that these contracts didn't exist, but on the basis that individuals cannot contract for exchanges that inhere in the relationship itself, like such as domestic services rendered or that took place in a relationship that could have been marital. And one of the results of refusing to enforce these contracts is that it devalues work done within the home, and it also limits access to property by the individual who undertook these services and was often the individual who was seeking protection. property when the relationship ends. So I end with a prescription, and I argue essentially that these unmarried couples who have no rights available to them based on the status of their relationship, their relationship has no recognized status, should at least have the right to enter contracts, which is a widely available private law claim. And one of the questions I would routinely receive, which I received when I presented my piece at Washi, was, well, if we start recognizing these contracts, wouldn't that entail that I'm recognizing a right to contract for sex, given that sex is also often exchanged in these relationships. And I would basically respond, no, I'm really not talking about sex here. I'm talking about agreements that these parties entered that address services rendered or property, and they nowhere mention sex. And in fact, courts are erroneously conflating the provision of domestic services with the provision of sex. So that was sort of my categorical response. Susan wasn't quite satisfied by that. So she kept on asking and she pushed me really to consider why sex shouldn't be subject to contract. Why should I accept that limit? And that's really where this paper, Sexual Agreements, began.

SPEAKER_00:

Yeah, Albertina's paper on non-marital contracts is amazing, and she criticizes the cases for all sorts of reasons that I found very compelling. But she left untouched that issue of contracting for sex. She accepted without really questioning it the fact that sex has to be severed from these contracts, which is what Marvin v. Marvin said. So I had been teaching and writing about sex, and so I do love That's why I've always

SPEAKER_05:

liked you so much, Susan, one of many reasons.

SPEAKER_00:

For a while. And so I said, well, really, Albertina, that should be your next project. You should question the need to sever sex. A few weeks later, I was asked to be on a panel for a law and society meeting, and the panel was called Bodies in Law. And as I tried to think of something that I would talk about, this idea that I had proposed to Albertina for her project, I said, well, I don't know. kept interrupting my thoughts. And so I decided I really wanted to do it too. So I proposed to Albertina that we might collaborate and do this investigation, putting together her knowledge of non-marital contracts and my knowledge of sex. The other thing that influenced me is I was very actively involved in the American Law Institute's efforts to revise the Model Penal Code sexual assault provisions. And because consent is now the key line between sex that's legal and sex that's illegal, the language of consent started sounding very contractual. And so it just seemed to me to be peculiar that we'd make sex legal sort of contractual in the criminal law space, but in this civil law space, we were saying that contracts about sex were taboo. And so those two things, I think, launched the project.

SPEAKER_05:

Well, a topic for another day, I'm sure, Susan, but my recollection is that that was extremely controversial, wasn't it, that

SPEAKER_00:

project? Extremely controversial, and in fact, the final version has not yet been published because I think the comments and illustrations are still to be written, but it was very controversial. And I'll just leave it by saying I did not get my way. I was on the losing end of some of the debates.

SPEAKER_05:

Thank you for that introduction. We're going to get much deeper into a lot of the topics that you guys just raised during your introduction. I'm going to turn this over to Laura now. She is the co-host for this episode, and she's going to run the show from here.

SPEAKER_08:

Hi, thank you guys both so much for being here. I just wanted to start us off by talking about how marriage and relationships have started to look a lot different, I think, in the past couple of decades with the rise of gay marriage and queer relationships and polyamory. I think less and less young people are interested in marriage and there's more cohabitation outside of marriage. And so I'm curious... in line with your paper, how do you see these trends continuing? I know you've noted a few cases in your paper where non-traditional relationships were validated by the court. I'm thinking of the example where you mentioned throuple. So I'm curious if you think courts will start to put less emphasis and value into marriage and begin to start validating these sorts of non-traditional agreements that you discuss.

SPEAKER_04:

Yeah, thank you. That's a great question. Well, what's interesting is is that as the rules regulating marriage have become more egalitarian, the rules regulating non-marriage have pretty much remained untouched. So there are many reasons and varied reasons for this, like the fact that the rules of divorce, which have been the subject of numerous reforms, don't apply to unmarried couples who have to rely on common law claims that they raise in courts. As a constitutional matter, too, there are different rules that regulate unwed parents parents, that contain a lot of sex-based distinctions that we no longer see in other areas. So non-marriage seems to have different rules, less egalitarian rules that apply to it. And so I think that this is a place where what the law does and what we as a society accept and are actually doing really differ. You know, when I started writing about non-marital couples, there was a sense that this was a space free from regulation, right, given that they exist outside of the institution of marriage. But at least in these cases that we consider, Non-marriage is replete with regulation. Specifically, it's steeped in marital norms. And in fact, I think a lot of what's happening in these non-marital cases is that there is this ancient law that used to regulate marriage proper called the law of coverture that is now influencing the way that courts are addressing claims between unmarried couples. And the law of coverture is understood to have largely been abolished within marriage. So, you know, there are scholars that very convincingly argue, like Reva Siegel or Jill Hasday, that we can still see elements of coverture, this law that regulated marriage in contemporary marital laws. And I argue that we can still see the effect of coverture outside of the status of marriage entirely. And one of the prime examples of the continued vitality of this doctrine is this presumption that domestic services rendered in the course of a relationship is somehow gratuitous. They inhere in the relationship and therefore are rendered freely. So I guess this is a long-winded way of saying that we still have a lot more work to do despite, you know, some movement forward. There's still a lot of work to do before I think courts can get away from the pull of marriage and begin to validate these agreements without resorting to marriage as the paradigm.

SPEAKER_08:

Great. Thank you so much. That makes a lot of sense. We have a lot of work to do. Now we're going to pass it to Nia, who wanted to ask about your comparison to gestational surrogacy.

SPEAKER_07:

Good morning and thank you both for coming. My question is, the article attempts to draw parallels between gestational surrogacy and sex contracts, but it seems like the two are different in important ways. Notwithstanding the fact that in some cases women are forced to not engage in sex while acting as gestational surrogates, even if they are married, there's no sex act involved in surrogacy. And even in your paper, you seem to make a distinction between surrogacy and children conceived through sex. What are the important similarities that compelled you to see surrogacy as a strong example of enforceable sex contracts, despite the fact that the very nature of surrogacy is the absence of sex?

SPEAKER_00:

So thanks, Nia. That's a really provocative question and makes us focus on why we chose the parallels that we did. I think we concede, and you seem to say this, that gestational surrogacy is sex adjacent rather than being sexual itself. But at the same time, I think we wouldn't want to undercut the parallel between the two, which we think that Carol Pateman, writing back in the 80s, accurately sets out. And let me just read the quotation we use from her that I think establishes why these two practices are so similar. From the standpoint of contract, talk of baby selling, she's talking about surrogacy, reveals that surrogacy is misunderstood in exactly the same way that prostitution is misunderstood. A prostitute does not sell her body. She sells sexual services. In a surrogacy contract, there is no question of baby being sold. merely a service. The contract is for the use of the property a woman owns in her uterus. Now, As I said, she was writing back in the late 80s, I think, and the type of surrogacy that was in the spotlight then was traditional or full or genetic surrogacy, as in Baby M, where the genetic mother is also the gestational carrier of the child. But I think now that we've moved into an era of what we call gestational surrogacy, where genes and gestation are split, so it's either the intended mother I think it's even more accurate to say that we're talking about the gestational surrogate selling a service. in the same way that we might say a sex worker is selling a service. So I thought that that parallel is, I don't know, very persuasive to me, at least, even with the absence of sex. Now, I can tell you another story about how I got here as well. So when I first started writing about sex in family law, which for reasons that you all know in this course, it's not often discussed, I felt I needed to get up to speed on literature about sex and sexuality. So I enrolled in an undergraduate course at my university called Contemporary Female Sexualities. And I was in the class with 20 undergrads. And in the Professor said that I could take the course only if I really took the course. I had to write all the papers. I had to do all the group exercises with the undergrads. This was back in about 2007 or 8. And so I agreed to do it because I really wanted a reading list and I wanted an opportunity to discuss the topics that we read so I would have a better grasp on them. Anyway, one assignment at the very end of the semester was a group project where maybe three or four students in the class and I was one of them. would be in a group, and each group had to find a, quote, sex worker in our community to interview. And I was already interested in assisted reproduction, and I knew that Carol Pateman was statement. So I said, well, let's interview a gestational surrogate and see if she thinks she's a sex worker in our community. And I learned a lot about gestational surrogacy from that interview I'd called a local family law attorney who put me in touch with one. My group, including the undergraduates in it, talked with her. And she very definitely did not see herself as a sex worker. So I add that for whatever it's worth. But I like your question.

SPEAKER_08:

Yeah, it's a really interesting parallel that our class was interested by, and it was a big part of our discussion. And now Alyssa has a follow-up question to Nia's question.

SPEAKER_01:

Thank you for being here. As Laura said, I have a follow-up to Nia's question, and my question is... In your paper, you provide an example of a gestational surrogacy contract that utilizes a no-sex clause. Specifically, you state that this clause interferes with an essential element of the surrogate's marriage, but the procreative interest of the intended parents, married or not, prevail or at least prevent voiding the agreement or requiring severance of the particular clause. Are there cases in which courts enforce this provision? Or, like many provisions in surrogacy agreements, is its inclusion considered primarily aspirational?

SPEAKER_00:

So I think it does have an aspirational aspect, Alyssa, and I like the question. But I think there's a practical dimension to it as well. The worry is that the child produced will turn out to be the genetic child of the gestational carrier's husband rather than the intended father who donated the sperm. And so I think the way the issue comes up is if somehow genetic testing after the birth reveals that the child genetically is the gestational carriers and her husband's rather than being the genetic child of the intended father. And then that would be considered a breach of the gestational carrier contract, gestational surrogacy contract. And it would mean... think that the rest of the terms then would not have to be performed, including payment, and probably the intended parents would not accept the child. There's one case that I'm familiar with in which this happened. It's called Stiver v. Parker, and it was in the Sixth Circuit in 1992. At the time, Michigan made surrogacy illegal, and in fact, Michigan did keep surrogacy illegal until just this year, I think just this year. changed the law to allow it. But in that particular case, the child was born with multiple handicaps, and the intended parents didn't want to take the child. And then as the child was tested, it turned out that the child was conceived by the gestational surrogate and her husband. And then they went ahead and sued the surrogate. gestational carrier and her husband sued the surrogacy company and the intended father because they claimed that the birth defects that the child had were caused by cytomegalovirus in the intended father's sperm. So insemination took place, but conception actually came from the sexual intercourse of the gestational carrier and her husband. So I think that's the reason for those So I think there is a practical issue there. I mean, if you want the child that you intended to have, but I think the way the issue surfaces legally would be if that clause were breached.

SPEAKER_05:

So, Susan and Albertine, I'm going to just follow up on Alyssa and Nia's questions. Sure. I definitely agree with your conclusion, but I similarly struggled with some of the analogies, this being one of them. So Susan, based on your clarification here, it seems to me that the best case scenario that we can say for the gestational surrogate agreements is that they're like the marriage agreements, not like the non-marriage agreements, in the sense that it's an agreement to... not have sex within the context of a marriage, right? And so I guess my struggle was... The fact that both gestational surrogacy services and sex services are things that are traditionally expected to be provided for free, typically by females within the context of an intimate relationship, doesn't, to me, make them legally similar for contract purposes, I guess is what I would say. I take Pateman's assessment and agree with it, and it's, to me... It still doesn't make it a persuasive analogy to me.

SPEAKER_00:

So I think our thinking on surrogacy has evolved so much. You know, I don't know where you were back in 1988 with Baby M, but the feminist literature was very divided. And I think this is, you know, some of your earlier work was about assisted reproduction, Kim, if I remember correctly. It

SPEAKER_05:

was, but I was always very critical of the people that you're citing. Yeah. And so I mean, I've always, as you know, I think, Susan, I have long been an advocate for legalized And for enforcing people's contracts as they write them. So I'm very sympathetic to your conclusion. I'm really just poking at sort of the specifics of the analogy.

SPEAKER_00:

So, I mean, what we're really trying to get at with that analogy, or at least I'll speak for myself, is to say, look at how our thinking on surrogacy has evolved. It's now... legally accepted in many, many states. There's the booming industry. It is really part of the fabric of our society, and family law accepts it without skipping a beat. And so why is it that we could see that kind of progress and development, even if we disagreed with the ban on enforcing the sexual part of non-marital contracts is so sticky that that part of the law just hasn't changed at all since Marvin, which was back in the 70s. And so it's really, I think the reason the parallel seemed so compelling to me is the different trajectories that the issues have taken.

SPEAKER_05:

Okay, yeah, that I see. I like that. And I'll just make a plug for the Courtney Cahill episode last week. And because you guys also build on some of her work, part of what we discussed there was the lack of movement in toplessness regulation, given how much else has changed in society and in legal discourse in that same time period. And so I take your point that this appears to have remained stagnant while other controversial and taboo areas have changed.

SPEAKER_00:

Yes. And I listened to that episode and it was terrific. And actually, I teach some of those topless cases in my regulating sex course.

SPEAKER_05:

I want to take that course. I'll do the papers.

SPEAKER_00:

I want to take this one.

SPEAKER_04:

Yeah, I'll guess I'll just add briefly, too, that the idea is just to look at... Thank you so much for joining us. you know, sex has been part of the contract. So really it is a way of identifying not perfectly analogous situations, but places where sex has been more front and center and the law hasn't done what it's doing in these non-marital agreements contexts.

SPEAKER_08:

Thank you both so much for your comments. Now we're going to shift gears a little bit with Cyrus's question.

SPEAKER_02:

Hi. So my question is that Let's say that sexual agreements become legally enforceable. How might that affect other areas of law? For instance, you can imagine some scenario where there's a contract for sex that stipulates that a female partner has to use some form of birth control, and she neglects to do so, and a child is born from the encounter. How do you think that a court would look at that situation? Would she owe damages to the father? Would he be liable for child support? Would the two cancel each other out?

SPEAKER_04:

Yes, great question. It's also true in the context of tort law, in the loss of consortium context. So in many ways, making sexual agreements enforceable would just help clarify the muddled reasoning that we currently see rather than set out any... new rules. The most significant change that I would see is that sex wouldn't be a barrier to making out certain private law claims, right? It would lose its pride of place in foiling certain agreements. And so one consequence that we see that might follow from our proposal is that it might lead to help de-exceptionalize sex in general. So, you know, our paper argues that the law should be more open to recognizing sex as part of life's exchanges, which it already does to a certain extent in certain contexts, right, like in the context of marriage. But we want to further de-link the law's recognition of sex from the state's definition of that. It's currently very much linked to how the state sets out the rules regarding marriage. And we want to delegate to individuals to decide for themselves how sex figures in their specific relationships. So I'm not sure that would lead to any new claims, but it would mean that the law would defer to individuals more in how they define their expectations and their relationships. But there are a few cases that actually address your specific question, Cyrus, and I'll let Susan respond to that.

SPEAKER_00:

Yeah, so I don't know if you're familiar with cases about contraceptive fraud, but there are a number of situations in which, for example, a man and a woman engage in sex. The man insists that the woman use birth control or she says that she is. She assures him she is or that she has been sterilized, that there's no possibility of pregnancy when, in fact, she is purposely deceiving him. She wants to get pregnant. She wants to have a child. In a number of these cases, the man then has sued for damages, for unwanted fatherhood, for the child support that he's going to have to pay, and the courts uniformly say no. that he basically assumed the risk that if he was that concerned about avoiding pregnancy, he could have taken precautions himself. I think what we're trying to show against the background of those cases is the issue there really isn't sex, it's child support, that there is this dependent child that's going to need care and support and that law places that burden on parents. But law can also decide that there are even more compelling policy goals. So, for example, a genetic father is not a legal father if he provides sperm for sperm donation and he goes through all the proper steps to shield him from legal parentage. We have a rule called donor non-paternity. So there, I would say that the law thinks that procreative opportunities for infertile people... is a higher policy goal than making a genetic father support his children. But I don't think it's the, I think sex is a red herring here. I think that there are other policies that are really taking the lead, and it's very easy to pin the blame on sex when other factors are at work. I don't know if you want to add to that, Albertina.

SPEAKER_04:

I think that's a, yeah, I think that makes, that's a great response, Susan. The Only thing, you know, this is what makes I think family law so interesting is that even once we start recognizing sex, it wouldn't necessarily trump any other values. And in any specific family law case, you have a series of competing values. And one very strong strand is to privatize support. So in the context of these, you know, contraceptive fraud cases, you very much see courts identifying at least two parents to provide support for the child, regardless of other considerations that might be at play.

SPEAKER_00:

Yeah. And on the other, you know, we cite the case of the thruple that was mentioned. But there, I think the court decided that the policy of maintaining the child's bonds with all three people who had agreed to be parents was more important than the fact that they made an agreement about sex.

SPEAKER_08:

Yeah, that's really interesting. Now we're going to give it to Lauren, who has a question sort of along these lines.

SPEAKER_09:

Yeah, I want to thank you so much for both of you for being here. I had a little bit of a follow up, especially since you mentioned loss of consortium and recognizing those, you know, sex is a part of court claims. So my question is that courts are able to place value on sex and loss of consortium claims as part of that bundle, but really consistently. basically refused to do so in claims where sex is part of a non-marital contract. So how would you propose courts calculate the value of sex in a non-marital remedies context, in that civil context? Would you do it as the same of consortium cases or different? Should they evaluate the total package of promised services? similar to severing and offending provision under some current case law, or evaluate the sexual services as a completely distinct part of that contract?

SPEAKER_04:

Yeah, this is such a hard question and such an important one. So the non-marital cases say overall that sex is meretricious consideration, prostitution, and I'm going to use that term because that's the term that the cases use, is illegal. And so it can't be the basis for any contract, right? It's not consideration. And a similar argument as your question raises is like applies to services too, services rendered. Domestic services are freely provided. They can't count as consideration. They don't have any expectation of being compensated. Now, further, outside of courts, scholars have argued that if something like services were to be valued, it would be very difficult as a descriptive matter to do so. And as a normative matter, we don't want courts engaging in these types of determinations. So this is why the loss of consortium cases are so important to us, because they're a counterpoint to the argument that sex and also services just don't have value or cannot be valued. And the Laws of consortium cases really show that courts can and do value sex, and parenthetically, they can also value services, and that the law understands that these activities actually have value. Although the loss of consortium cases are not necessarily the only answer to go about valuing these types of claims. So the first step that we hope our piece accomplishes is to show that sex can be valued. And we do so in part to get more people, not just Susan and I, to have this conversation about how we should do so. But I'll give you a more concrete response to the issue of how to value services. And that is, Well, to look at what the parties themselves intended, right? To look at the agreement that sex is currently... foiling. So parties often discuss their expectations, and some even do so via express contracts. And sex currently is foiling those very contracts. So one way to value these services is to follow the content of the agreement and the property distribution laid out therein. Another response is to consider what the market would pay for such services, right? The market for homemaking services is a bit more flashed out than sex work, given that sex work and the The U.S. is mostly illegal, but we could perhaps look to places where sex work is legal, like Nevada, or perhaps look at how sex-adjacent work is valued, like how adult entertainers are paid. I will say that this would not by any means be a perfect metric because the market already often undervalues this kind of work in ways that are very gendered, but it might be a starting point.

SPEAKER_05:

I just wanted to ask Albertina, because I may have been operating under a misconception about some of the cases, which is, am I understanding you correctly that it's not just sexual services that the court says they're not willing to value in these non-marital contracts, but other domestic services as well? So it's not just sex exceptionalism. It is sort of the entire bundle that they're struggling with. Is that right? That is

SPEAKER_04:

absolutely correct. Yes. So outside of the cases we address in our peace sexual agreements, there are number of cases where there's an agreement. And, you know, there are also another set of cases that address equitable claims. We're really focusing on contract claims here. But there are a number of cases where there's an agreement between a couple. Sometimes they mention their relationship. Sometimes they mention specific homemaking services. Nowhere do they mention sex. And courts will read sex into the agreement, even though the claim is domestic services. Separately, some cases that address domestic services without paying attention to sex cannot recognize domestic services because of various reasons, but that mostly take on the form of, well, these services were done out of love and affection, and therefore they cannot form the basis for a contract. Or they were presumed gratuitous based on the nature of the relationship, and so we cannot adequately compensate them. Now, this presumption of gratuity is, seems to, at least courts present it as though they're just describing these relationships as a factual matter. But, you know, I've argued that this presumption of gratuity very much has its roots in coverture, which defined the duties that the wife provided. It was, again, a very gendered system. The wife had the duty to provide services which were owed to the husband and were basically his given that the wife under coverture, had no rights to own property. And so these presumptions of gratuities, I think, find their origins not in the nature of all relationships, but rather in the law of coverture that defined things like domestic services as the duties that a wife had to provide within marriage.

SPEAKER_00:

Thank you. That is super helpful. So I wanted to chime in with another tort case reference. And it ruined her ability to participate in sex and enjoy it. And she got a big verdict in the trial court. And the Court of Appeals reduced it when the defendant appealed on the ground that she was already a 50-year-old woman and older women don't enjoy sex anyway, and that she already had children. And after all, isn't that what women see the purpose of sex as, to procreate? And she took it to the European Court of Human Rights, which reinstated the larger verdict, saying that the reduction in damages devalued her interest in sex based on stereotypes related to gender and age. So I think, I mean, that's an example of a court seeing that sex had more monetary value than the Court of Appeals did. And so I think it's just one more bit of evidence to show that sex can can be valued and courts have done it in some isolated situations already.

SPEAKER_08:

Yeah, that's a really fascinating case. Now we're going to go back to some of the policy considerations you had mentioned earlier with Kimberly's question.

SPEAKER_10:

Hi, good morning. Thank you so much for joining us today. So I understand that certain policy considerations such as those involving the welfare of children may take precedence over those related to sexual contract violations. Well, I think.

SPEAKER_00:

Family law is full of relevant policies that need to be put in the mix when we think about what should the policies about the legal treatment of sex be. So Albertina mentioned keeping dependency private earlier, and I do think that courts are always on the lookout, or I should say family law is always on the lookout for at least a second parent for a child. And so we have rules like the marital presumption or the presumption of legitimacy, which might sweep under the rug, say, an extramarital affair that a married mother had in order to make her husband the legal father of the resulting child. We do talk about the adult entertainment industry in our article, and I think some of you suggested, at least based on the notes that consent that maybe the freedom of expression was overriding policy there. But I think it could also just be the profit motive. I mean, I think this is a booming industry in California, and they figured out ways to get around the law against sexual contracting. And then, you know, as we wrote, sex is already inherent in in marriage. So we say you cannot contract for it there.

SPEAKER_08:

Great. Thanks so much. Now we're going to move on to Alyssa.

SPEAKER_06:

Thank you for having me. Yes, absolutely. That is a great question.

SPEAKER_04:

So the law does view marriage as the only site where sex can coexist with property. And these cases that decline to recognize exchanges outside of marriage are in effect protecting the status of marriage. You see this, as your question, Alyssa, mentions, both in refusing to recognize sex and also separately in the refusal to recognize things like domestic services. And legal rules once explicitly channeled all sexual relationships into marriage, right? They did so by criminalizing sexual conduct outside of marriage. of marriage and imposing a negative, a host of negative social consequences as a result too. Remember that there was an entirely different status for children who were born out of wedlock. They were considered illegitimate with severe consequences to them and also their mothers who were the only recognized parents. So law and social norms worked in tandem to support marriage as the only licit site for sex and childbearing. Now, the push towards marriage is much less explicit, right? And no longer necessarily carried out through criminal law. But this... You know, this identifying marriage as the sole site for sex and certain exchanges that we define as marital is still there. And you can see the cases enforcing marriage as the place to have these types of exchanges. So, again, you see this in courts' refusal to recognize sex as the basis for an agreement outside of marriage. You also see it more generally in their refusal to distribute any property, either on equitable or contractual basis, outside of a marital relationship. What I will say is that this isn't always or it isn't necessarily an intentional effort to promote marriage, although this is happening and it is there. But it's also based on the very limited tools that courts have at their disposal. So the private law, common law claims that courts are considering in these cases are, again, as I mentioned in response to Kim's question previously, foiled by the legacy of coverture and of the exchanges that courts determine should be present in marriage, which impose very gendered understandings of how agreements are made in the context of all relationships. So even in Marvin versus Marvin, which Susan mentioned, it's sort of understood as the case decided in California in 1976 to set out the rights of unmarried Basically establishing that unmarried couples do and can contract with each other and have other potential economic rights as against each other. Even in that case, it cannot get away from the presumption of gratuity that attaches to services provided during the course of a relationship. that they rendered services with the expectation of monetary reward, meaning they have to overcome the presumption that these services were rendered gratuitously. So you can see that coverture is very much a theme here. I actually dressed up as coverture for Halloween to the joy of my family law students.

SPEAKER_05:

Wait a minute. You have to get more details of that.

SPEAKER_00:

I want to hear about that

SPEAKER_05:

too. Yeah. What is dressing up

SPEAKER_04:

like coverture look like? Well, it was complicated to dress up As an old legal doctrine, coverture itself contains some hints. You know, coverture is you're under the cover of the husband. The wife upon coverture was under the cover of her husband. She was a femme couvert, so I wore a cloak. I also stapled a contract to my cloak, sort of saying I hereby no longer own any rights to property. But under coverture, the wife also lost her ability to contract, so I also rendered that contract void. I will say that in both my classes, despite the presence of coverture, it was a very hard Right. costume to ultimately pull off.

SPEAKER_05:

You're just making the rest of us look bad, all you people that managed to dress up for Halloween. I never do, even though I like Halloween. And it's always because I'm so disorganized that I wake up one day and I'm like, why is everybody dressed so weird? Oh, it's

SPEAKER_04:

Halloween. non-marriage and marriage alike is that it's decreasing the differences among these two statuses. These statuses that the law is attempting to keep separate, the law is actually treating very similarly. So again, just to be clear, this is a statement about what the law does. Individuals do and can still order their affairs as they see fit and they're doing that, but the law hasn't been able to rid itself of these very gendered understandings of how individuals come together.

SPEAKER_00:

And I was just going to chime in that despite Marvin's squeamishness about sexual terms of these contracts, it really was an important step forward because before Marvin, at least one strand of legal thinking suggested that the fact that two people were in an intimate relationship meant that they couldn't write a contract with each other about anything. And so Marvin did do that. It also removed some of the stigma of non-marital cohabitation prior to that courts often referred to that the practice as concubinage and that the woman of course was the only one stigmatized so she was the the concubine it was like a pretend wife and that is why some of these ideas from coverture also entered the analysis

SPEAKER_08:

thank you both so much for your enlightening responses and i wish we could have seen your halloween costume albertina now we're gonna move on to tanner who wants to ask about separation agreements and how they play into ideas of sexual agreements.

SPEAKER_11:

Hi. Yeah. So you guys discuss a couple of examples of, you know, sex adjacent and sex involved contracts, which are upheld by courts kind of drawing the line that these agreements serve marriage and marital roles like gestational surrogacies and surrogate partner therapies. But then on the other end, there's cohabitation agreements where provisions concerning sex are severed because they compete with marriage. And, you know, you guys just kind of talked about in function this view is protecting the state's perception of marriage or keeping it separate from different areas. But I was curious how, like, when courts will uphold separation agreements between already married couples, this kind of shows, like, that they are upholding some agreements that directly oppose the state interest in marriage generally. Yeah. And I was wondering if this challenges in any way the proposition that marriage is the real decider of enforceability, or if it can be explained by some other interests in family law, like the child's best interest or something. And if so, I was wondering if these competing interests factor into this kind of subtextual marriage-based analysis that goes on when courts consider sexual intercourse.

SPEAKER_00:

That's a great question, Tanner. I think that divorce and separation can be rationalized as actually supporting marriage. There are some marriages that would never take place if there weren't some known escape valve like divorce or separation. And so I've even seen scholarly analyses that say that the right to divorce, or at least the right to access to divorce, which the Supreme Court recognized in Body v. Connecticut, actually facilitates remarriage. And so in that way, it actually promotes marriage. Now, I think it's worth noting that at one time, prenuptial agreements were considered void as against public policy if they specified what was going to happen financially. at divorce. And the reason that they were considered to violate public policy was that they took the risk out of divorce. If you knew what your financial outcome was going to be upon dissolution, it might encourage you to divorce. There's been a sea change in that. Courts love today when parties, as long as they don't overreach and enter unconscionable agreements, tell the court how they want things divided. The court will take a look and make sure everything was fair. And done without coercion. But courts like to see how parties want to resolve things. So I would say that separation agreements, prenuptial agreements and the like today are considered consistent with a pro-marriage policy, even though it might appear that that's not so.

SPEAKER_04:

Yeah, what's also, I think, important to note is the way that these prenuptial agreements are enforced, which is to create a divide between what can be subject to a contract and what cannot be, what is considered too important or essential to the marriage itself, and what isn't. So let me explain. So premarital contracts are often used to protect the party who is bringing more assets into the relationship. They often... right around state divorce laws that would provide for a more active distribution of assets at the end of a divorce. And when the premarital contracts address things like property, they're generally upheld. But when they address things like, again, domestic services or other non-monetary contributions, courts generally decline to uphold them. And Kate Silbaugh has written beautifully and extensively on this exact topic. And the reasoning for this distinction is Again, based on the fact that services are integral to the marriage relationship while property isn't. What's weird here is that the duty to provide support was actually a duty imposed on the husband, just like the duty to provide services were duties imposed on the wife. And so while the duty to provide services has remained as this inviolable aspect of the relationship, the duty to provide support, this property, hasn't. And so that is subject to contract, but the duty to provide services remains untouchable by contract. So all of this to say is that even how prenuptial contracts are enforced is in this large So can I just follow up? Since Tanner brought up another one of the analogies, can I

SPEAKER_05:

just follow

SPEAKER_04:

up?

SPEAKER_05:

As I read– so I'm getting a different sense from our discussion of the purpose of the analogies than I might have gotten from the paper. So as I read the paper, one– again, I'm very sympathetic to your conclusions and your proposals, but I struggled with the analogies, none of which to me were– fell into the sex for consideration bucket, therefore making them the tight legal analogy I think you were seeking to make. But now as I'm talking to you and hearing your responses, perhaps the analogies are actually intended to do something different, which is to trace this trajectory of how courts treat intimate exchanges more generally, the way in which they're developing in other areas, sometimes with the help of courts and sometimes not. So sex surrogacy and BDSM contracts and stuff are mostly continue to be outside of the court. And so is that what it is? If so, then I just kind of like read it differently than our discussion here.

SPEAKER_00:

Well, I think we were trying to de-exceptionalize sex. and say that it's part of life's ordinary exchanges and should be treated as such. And I think we invoke these other areas to show the increasing traction sex has achieved in other contexts where the law has evolved in a more open way. And yet somehow in these cases of non-marital agreements involving sex, there's still this very clear rule that you have to sever the sexual terms. And when you do that, other things might fall with them. And so that the remedy after the relationship ends is not going to be fair.

SPEAKER_04:

Yeah. And I think we really want to bring sex back into conversation. I mean, just the way that I was engaging with these cases was also to accept the rationale that Marvin sets out that, oh, we can't allow sex to be consideration because that's meretricious, that's illegal. And so, and I know that in teaching Marvin, I would often accept that rationale. And I think what Susan really pushed us to do is to say, but why are we accepting that when, again, sex is not necessarily being used as consideration in these other contexts we mention, but sex is very much recognized as having value and as something being something that the law does not necessarily shy away from recognizing. And so we really wanted to re... And so we looked at all these other places where sex is actually the basis for an agreement and the law is not responding to it in the same way as it is in these non-marital cases.

SPEAKER_00:

And I would say from my point of view, notwithstanding Nia's very perceptive question, I do think the board with it. And now even many of those states are allowing full traditional surrogacy as in BBM shows that there's been a huge development in the law. And I think the comparison is very striking to the absence of movement in the Marvin type cases.

SPEAKER_04:

And not inevitable, right?

SPEAKER_05:

because it is perceived as a threat to traditional marriage and traditional gender roles, right?

SPEAKER_08:

Right. Okay. I think we're going to move on to our last question from John Henry now.

SPEAKER_03:

Hi, thanks, Laura. So my question is a follow-up, I guess, to a number of questions and discussion that we've had today. I think you all have done... I really appreciate you all teasing out this thesis that the stagnation of recognizing sex is part... of non-marital contracts and the idea that sex can be valued in contractual agreements. It's what you all hammer this on the head in the conclusion of the paper when you all say, like, argue that recognizing sex and valuing it apart from marriage would cut across questions of gender, race, and class, thereby allowing sex to take its proper place as part of life's ordinary exchanges. So I think we've talked a lot about court's unwillingness to grapple with intimacy and its interaction with other types of exchanges as, like, the greater problem that kind that underlies this dichotomy of marital and non-marital contracts. So I just wanna talk about how should proponents encourage courts to reevaluate sex and intimacy outside of marriage's shadow? How do proponents or litigants or policymakers begin to make those changes in the law that you all are advocating for across jurisdictions?

SPEAKER_04:

Wow, yeah, that's the challenge, right? Getting out of marriage's shadow, that's like the million dollar question. I will say, though, in response to part of your question, is that I'm not sure that courts are unwilling to grapple with intimacy, right? Like intimacy arises in a number of different fields and a variety of legal issues. Employment law can be very intimate, right? People love their jobs. The relationships you make in a workplace can be the most important ones in your life. Contract law outside of family relations can involve, you know, longstanding relationships deeply intertwined relationships. I'd also like to point out to like all of tort law, which deals with intimacy. And, you know, today in class, in my family law class, we're going to get into fault-based grounds for divorce. And one of the questions is, it was their opportunity and inclination to commit sexual intimacy, adultery, such that a plaintiff can make out a claim for a fault-based ground adultery for divorce. And these are really detailed, uncomfortable inquiries that the court is not shying away from. So it's not that courts are unwilling to grapple with intimacy. And I think that this apparent refusal to engage with intimacy, just like Court's blanket appeal to prostitution works to obscure that these decisions are enforcing a particular distribution of resources. The decisions not to enforce these contracts have very real material consequences for the individuals. And I think this appeal to like, we can't get into this or this is prostitution is somehow obscuring that, right? Especially where the relationship already took place, the sex already took place, the services already took place, and the court is basically just refusing to uphold the other part of the bargain, which is the property side of the bargain. So our concern is really material. It's with how resources are being distributed and how sex prevents this agreed-upon distribution. And this is particularly problematic in these cases addressing unmarried couples because they already are disadvantaged in that they don't receive any of the benefits associated with marriage. And You know, the unmarried couple realm is very heterogeneous, but they often have lower levels of wealth and education than their married counterparts. And so courts in this space are sort of further marginalizing them by preventing them from accessing resources that would otherwise be available to them. So I guess we really want to remove sex as a barrier to recognizing the ways that a relationship which involves sex might also lead to property.

SPEAKER_00:

Yeah, I completely agree with Albertina that our concern is material, or if you wanted to put it on a more theoretical or moral level, our concern is fairness. And we do think that sex is, because it's being treated as exceptional, it is a barrier to agreed upon and fair distribution. resources after the sex is over. We're not suggesting that contracts to perform sex should be subject to specific performance or enforced that way, but in all of these cases, the sexual part of the relationship is over. The couple has broken up, and they're just trying to fairly settle the results of that relationship. So I would say that in that sense, we join those Scholars who are calling to de-exceptionalize sex, to just say that it's really an ordinary part of life. And in some ways, that's a bridge to a project that Albertina and I are just embarking on to make families less exceptional. Inspired by some literature on sex workers' political positions, we've learned that sex workers support the family abolition movement, that is the movement to abolish the family. Turns out, and it was news to us, even as family law scholars, that there is a body of scholarship outside of law on abolishing the family. Who knew? Because family law has not comprehensively grappled with this idea. It has maybe intervened in discrete aspects of the analysis, and one of the things we've done already is to go through possibly relevant family law literature to look for clues or hints of possible abolition of the family, but no one in family law grapples with it comprehensively the way scholars in other fields are, where they are calling for the abolition of the family. And the sex worker literature suggests that getting direct compensation for sexual services is much more satisfying and gives one much more control than entering into, say, a marital relationship where the compensation for sex is indirect and and perhaps not within someone's sole discretion. And so it's been a fascinating adventure for us to read many of these sources.

SPEAKER_05:

You know, Susan, just to follow up on that, That also has class-based elements to it as well. I mean, not everybody has—leaving aside that not everybody has that desire, right? Not everybody has the ability to enter into the sort of longer-term supporting of another in exchange for the bundle of services. So there's a class-based element to the type of sexual exchanges for property or value that we— if not explicitly permit, at least kind of ignore as an enforcement matter. I

SPEAKER_04:

really wanted to bring up this piece written by Lorelei Lee that we cite in our sexual agreements piece. They are a sex worker. And what really comes through their piece, they wrote this piece called Cash Consent in N Plus One. And what really comes through is that we live in a society in which we have to work to survive. And they have a really incredibly complicated description of the need to work, right? They say that working at a coffee shop can be exhausting and terrible in the same ways that engaging in sex work can be exhausting and terrible. And so they're really couching it in what you're saying. This is in a world in which we have to work to exist. Sex work is one option that can be no worse, no better than other options available to individuals who need this to survive.

SPEAKER_08:

Thank you so much for being here. This was really interesting and I think clarified a lot of the questions and thoughts that we discussed in class before.

SPEAKER_00:

Well, thank you for the opportunity. Your questions were all terrific. And you've also clarified for us some of the aspects of our article that maybe we didn't come to terms with exactly.

SPEAKER_05:

Well, thank you for this very valuable discussion. As always, when I engage with your work, I learn a lot every time. So thank you both for joining us. This was really a lot of fun. It's going to be a great episode, I can tell.

SPEAKER_00:

Excellent. Thanks so much for inviting us. And thank you for your excellent questions.

SPEAKER_04:

Yes, thank you. We really appreciated this.

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