Parentage Agreements Are Not Contracts

Parentage agreements are proliferating. In a fertility clinic, an egg donor, sperm donor, and gestational surrogate may agree to waive their parental rights, and the intended parents may agree to share parenthood. In a maternity ward, a birth mother may agree to acknowledge a partner as a parent. In an adoption agency, birth and adoptive parents may agree to an open adoption with ongoing visitation. In a home, a parent may agree to share parentage with a cohabitant, enabling the cohabitant to become a legal parent later after raising the child and developing parental bonds. Good reasons underlie this drift toward “private ordering” in parentage law. Many parentage agreements should be enforced to promote child welfare, reproductive liberty, LGBTQ+ equality, and familial pluralism. Unfortunately, a strand of contractual rhetoric threatens to divert the current to different ends. It is tempting to think about parentage agreements as if they are contracts: adults have expressed their ex ante intention about legal parenthood, and the law ought to treat their intentions as binding unless it will impede child welfare. This Essay urges scholars, judges, and lawyers to avoid being carried away by this contractual analogy