Reviving Proxy Marriage

Marriage is merely a contract. It creates myriad rights and responsibilities - essentially conferring a status - but the American states recognize without exception that the parties’ relationship is at base nothing more than a contractual one. Still, modern society has elevated the marriage contract above all others. This distinction has overwhelmingly focused on the very personal nature of the marital relationship, a feature nonexistent in the arms-length contractual dealings with which we are accustomed to working when applying contract law. As a result, marriage is subject to a number of requirements, even at the level of contractual formation, which are unknown to the general law of contract. No contract is subjected to as high an entry requirement - typically a formal ceremony - as is marriage. Moreover, the application of one of the most fundamental doctrines of contract law, namely, that a contracting party need not formally enter into the contractual relationship himself but may instead designate an agent to act on his behalf, is generally viewed as inapplicable to the marital relationship. So-called “proxy marriages,” then, whereby one party authorizes an agent to stand in his stead at the marriage ceremony, are widely disdained in the United States. Only five American states have recognized otherwise, and nearly all in an exceptionally narrow context involving military personnel. So serious is the contempt for proxy marriage that the doctrine has been rejected throughout most of this country for nearly one hundred years. Elsewhere, proxy marriage is not so abhorred; acceptance of the doctrine is viewed as an equitable necessity throughout much of the world. Indeed, a United Nations Convention studying marriage and its entry requirements identified diverse views on the permissibility of proxy marriage as one of the most globally divisive issues plaguing family law today. This article argues that the time has come for American states to reevaluate the efficacy and equity of continuing a distinction between marriage and all other contractual relationships to which agency theory may apply. The proliferation of couples (and their children) who stand to benefit from the acceptance of proxy marriage is at an all-time high given rates of military deployment abroad, parties pursuing employment away from home, and the increased number of same sex couples seeking to establish a marital relationship. Each of these groups has a compelling argument for the necessity of proxy marriage, and no other avenue exists for conferring upon them the legal relief they desire. Moreover, agency law has evolved drastically in the last thirty years. Agency theories, once relegated almost exclusively to commercial transactions, now have application to scores of personal dealings. Among other things, one can, only as a result of very recent legal developments, appoint an agent to make end-of-life decisions, appoint an agent to draft a will, even appoint an agent to exercise custody over one’s child. In other words, agency doctrine has permeated the most personal of our relationships, save the marital relationship. The time has come to reassess our long-standing intolerance of proxy marriage and to stop singling out the marital contract as unworthy of the regime of agency. Creating symmetry in agency law by sanctioning proxy marriage is simply the next logical step in the evolution of agency doctrine as applied to intimate relationships and it is a step that can be taken confidently given the strong foundation of protection that American agency rules already affords principals. In short, agency principles are ripe for application to the contract of marriage, and states should begin to embrace the idea of a proxy marriage - a groomless, perhaps even brideless, wedding

Discrimination in Baby Making: The Unconstitutional Treatment of Prospective Parents Through Surrogacy

The article focuses on limited use of reproductive technologies in defense of discriminating against unmarried intended parents. It emphasizes to eliminate unconstitutional treatment of prospective parents involved in the surrogacy process. It informs that State laws related to surrogacy create discrimination which is based on marital status. It suggests that surrogacy should be included as a permissible reproductive avenue for right to married and unmarried intended parents in the U.S

Reviving Proxy Marriage

Marriage is merely a contract. It creates myriad rights and responsibilities - essentially conferring a status - but the American states recognize without exception that the parties’ relationship is at base nothing more than a contractual one. Still, modern society has elevated the marriage contract above all others. This distinction has overwhelmingly focused on the very personal nature of the marital relationship, a feature nonexistent in the arms-length contractual dealings with which we are accustomed to working when applying contract law. As a result, marriage is subject to a number of requirements, even at the level of contractual formation, which are unknown to the general law of contract. No contract is subjected to as high an entry requirement - typically a formal ceremony - as is marriage. Moreover, the application of one of the most fundamental doctrines of contract law, namely, that a contracting party need not formally enter into the contractual relationship himself but may instead designate an agent to act on his behalf, is generally viewed as inapplicable to the marital relationship. So-called “proxy marriages,” then, whereby one party authorizes an agent to stand in his stead at the marriage ceremony, are widely disdained in the United States. Only five American states have recognized otherwise, and nearly all in an exceptionally narrow context involving military personnel. So serious is the contempt for proxy marriage that the doctrine has been rejected throughout most of this country for nearly one hundred years. Elsewhere, proxy marriage is not so abhorred; acceptance of the doctrine is viewed as an equitable necessity throughout much of the world. Indeed, a United Nations Convention studying marriage and its entry requirements identified diverse views on the permissibility of proxy marriage as one of the most globally divisive issues plaguing family law today. This article argues that the time has come for American states to reevaluate the efficacy and equity of continuing a distinction between marriage and all other contractual relationships to which agency theory may apply. The proliferation of couples (and their children) who stand to benefit from the acceptance of proxy marriage is at an all-time high given rates of military deployment abroad, parties pursuing employment away from home, and the increased number of same sex couples seeking to establish a marital relationship. Each of these groups has a compelling argument for the necessity of proxy marriage, and no other avenue exists for conferring upon them the legal relief they desire. Moreover, agency law has evolved drastically in the last thirty years. Agency theories, once relegated almost exclusively to commercial transactions, now have application to scores of personal dealings. Among other things, one can, only as a result of very recent legal developments, appoint an agent to make end-of-life decisions, appoint an agent to draft a will, even appoint an agent to exercise custody over one’s child. In other words, agency doctrine has permeated the most personal of our relationships, save the marital relationship. The time has come to reassess our long-standing intolerance of proxy marriage and to stop singling out the marital contract as unworthy of the regime of agency. Creating symmetry in agency law by sanctioning proxy marriage is simply the next logical step in the evolution of agency doctrine as applied to intimate relationships and it is a step that can be taken confidently given the strong foundation of protection that American agency rules already affords principals. In short, agency principles are ripe for application to the contract of marriage, and states should begin to embrace the idea of a proxy marriage - a groomless, perhaps even brideless, wedding

Re-Regulating the Baby Market: A Call for a Ban on Payment of Birth Mother Living Expenses

More than fifty years ago, state law on domestic infant adoption changed to uniformly prohibit the practice of baby selling, a development that eliminated the “black market” for babies that many argued previously existed. Nonetheless, one need not look far to find that the United States’ domestic adoption system is broken even today, and the cost structure of the domestic adoption scheme is the greatest offender. A domestic adoption currently costs in the neighborhood of $40,0000, with the vast majority of the associated expenses coming not from the payment of any professional fees, but rather from the payment of living expenses to the expectant birth mother. Adoptive parents typically front these monies, under the sanction of state law authorizing such expenditures. This scheme, under which substantial living expenses are paid to a prospective birth mother, who makes the ultimate choice to parent her child the vast majority of the time, is fraught with problems. Comparisons between baby selling and a scheme allowing for the payment of substantial sums for housing or other expenses of daily life are almost inescapable. Questions about the voluntariness of a birth mother’s surrender arise in connection with the payment of living expenses and are more weighty than the concerns present for any other type of adoption-related expense. Quality adoptive parents defect to international adoption or are unable to adopt altogether because of the flawed system. And when adoptions do take place, birth mothers often actually profit from the payment of their living expenses, necessarily raising the same concerns which have been used to justify a ban on baby selling. Perhaps worst is that because not all birth mothers are similarly valued, allowing prospective adoptive parents to pay birth mother living expenses serves to injure society as a whole by striating race and class divisions. This article describes the harms of state law allowing virtually unfettered payment of birth mother living expenses and calls for a shift away from prevalent models of regulation to an outright ban on the payment of living expenses. Time has demonstrated that less conservative reform will be ineffective at solving the problems plaguing domestic adoption. The need to eliminate “gray market” adoption activities, and to re-regulate the baby market which has emerged of late, is long overdue

Examining a Comparative Law Myth: Two Hundred Years of Riparian Misconception

This article is a first step in an effort to critically examine - and to debunk - some of the myths that persist about the degree to which the common and civil law systems differ. Specifically, the article questions the validity of recent scholarly commentary suggesting that the primary differences between the systems can be found in their substantive legal rules or in their respective spirits. A relatively narrow issue of riparian access perfectly highlights the problem. Nearly all of the high courts in the United States that have examined this particular riparian issue have chosen to adopt either the so-called common law rule or the so-called civil law rule of riparian access. In fact, these courts are perpetuating a false choice. The civil law rule adopted by at least six of our states\u27 high courts is not actually a rule of the civil law at all. It is, instead, the relatively modern and spontaneous generation of one European jurisdiction in response to peculiar policy choices. The rule at civil law is exactly the same as that at common law. But the United States Supreme Court made an error of interpretation years ago that pulled a distorted rule into American jurisprudence and falsely attributed it to civilian sources. That error has been perpetuated by courts around the country ever since. This article seeks to correct that two-hundred year-old mistake as an important step towards preserving judicial integrity and discovering and benefiting from the true differences between the common and civil law systems

Discrimination in Baby Making: The Unconstitutional Treatment of Prospective Parents Through Surrogacy

Roundtable on Regulating Assisted Reproductive Technology 201

Incentivizing Divorce

Marriage is an important relationship, both for the parties to it and for society as a whole. Its benefits, stemming from the economies of scale and joint consumption inherent in the relationship, are largely unquestionable. And when marriage fails, the results are rather staggering. Economically, it is estimated that the annual cost of divorce to American taxpayers approaches $30 billion. From a social science perspective, the negative impacts of divorce on women and children have long been decried. In the face of these facts, we expect family law to fulfill a certain role. It should channel parties into the relationship that best serves society and take reasonable steps to insure that they remain there. Generally, family law functions in exactly this manner. This article explores the failure of family law to perform that role in an area in which we would expect the law to be most protective of the marital relationship. Specifically, the article explores how marital property rules often serve to incentivize divorce. Three examples of marital property rules which render spouses better off divorced are explored. First, spouses may divorce to garner an advantage vis-a-vis their creditors. Surprisingly, some states actually allow spouses to substantially narrow the assets creditors may seize to satisfy their debts by simply divorcing. Second, a spouse who finds himself married to a spendthrift may find divorce is the only way to protect himself from the other\u27s mismanagement. Because the American states have not widely adopted a method of unilateral termination of the marital property regime which is common abroad, a spouse in this country has no mechanism whereby he might terminate his marital property regime, yet still remain married. Third, the federal rules governing most pensions create an incentive for an ailing spouse to consider a quickie divorce. Specifically, the provisions of the Employee Retirement Income Security Act (ERISA) give protections to divorced spouses that the heirs of spouses whose marriages end by death are not afforded. The effect of each of these rules, then, is to incentivize divorce. A shift in thinking about the rules of marital property is desperately needed. In addition to pushing ambivalent spouses toward divorce, these marital property rules fail to fulfill the normative and expressive functions typically served by rules in the family law sphere. These rules send the wrong message, both about marriage itself and about the core of the spouses\u27 economic partnership. This article seeks to incite a change in the rules of marital property. If these substantive rules are not reversed entirely, family law scholars and lawmakers should, at a minimum, begin to focus calls for reform on modifying the rules to remove the perverse incentives to divorce that they carry