MAY JUNE 2018 | MOTHER JONES 71in for major expenses like college and
spend summers with them. Four years
later, Ertman fell in love with Karen Lash.
Ertman and Flatt wrote her into their legal
agreement, and when the two women tied
the knot in 2009, they made their own
contract. “Without the contracts, it’s a
mess,” Ertman told me.
Some contracts go beyond mere legal
provisions to lay out a family’s emotional
expectations. Hessenthaler and Sommer-
ville wrote several drafts as they pondered
details like how long they would try to get
pregnant and what the baby would call
Ross. (They settled on “Uncle.”) Ross sur-
prised the women, and himself, when he
realized he wanted to be the child’s legal
guardian in the case of their deaths.
Unfortunately, these contracts remain
a Band-Aid solution. Judges have “a lot of
discretion” in deciding what’s in a child’s
best interests, New York lawyer Andy
Izenson says. There’s a patchwork of laws
governing whose name goes on a baby’s
birth certificate. In states like Alabama,
judges or hospitals could decide that for
children of same-sex couples who insem-
inated at home, the donor is the legal
parent. But at least a written document
forces people to put their expectations
on the table in advance. “It made us think
through things,” Hessenthaler told me.
If you’re planning to write a contract
with your partner, Ertman recommends
pouring a glass of wine and creating a list
of what you care about, including col-
umns with what you’re willing to give up
and what you want to receive. For instance,
how much of your paycheck do you want
to deposit into a joint bank account with
your partner? If you’re going to ask a friend
for sperm to make a baby, consider whether
he’ll be a donor, or a father figure—and
what those two things mean to you. Then,
sit down together and “let the back-and-
forth set the stage for this new aspect of
your relationship,” Ertman says.
Sure, these contracts can feel clinical—few
besides Ertman would call the experience
romantic. But romance without the ability
to agree on what matters is a lot like living
on a boat: awesome when it’s sunny, not so
much when the weather gets rough. Qwith their progeny. The Trump adminis-
tration’s efforts to undermine Obama-era
lgbt protections have put nontraditional
families further on alert.
Which is why Hessenthaler, Sommerville,
and Ross decided to sit down and puzzle out
the details—visitation, financial responsi-
bilities, what would happen if Hessenthaler
miscarried—and codify them in a contract
called a “known-donor agreement.”
Martha Ertman, a University of
Maryland law professor and the author of
Love’s Promises: How Formal and Informal
Contracts Shape All Kinds of Families, is the
foremost evangelist for setting the terms
of less-than-mainstream relationships in
writing. A family contract may feel “cold
and mean and scary,” she acknowledges,
but the “default rules can be a lot colder
than people realize.” The legal rights and
responsibilities of marriage—spousal in-
heritance, shared custody of children,
etc.—are suicient for most people, she
says, but “Plan B families” need an extra
layer of protection. Trump is empowering
social conservatives who may be inclined
to deny nontraditional families their rights.
“If you can whip out a contract that says
‘order of parentage,’” Ertman explains, “that
suggests to the person behind the desk, ‘I’m
buying myself a huge headache.’”
These legal arrangements may turn out
to have special currency in the Trump era,
but the conversation has been going on for
decades. Long before gay marriage became
legal, same-sex couples were drafting their
own enforceable agreements. In the 1980s,
tennis star Martina Navratilova and her
girlfriend, Judy Nelson, had a contract
that promised Nelson half of the millions
that Navratilova earned during their re-
lationship if the couple were to split. In
1992, gay sex was still illegal in Georgia
when the state Supreme Court upheld a
woman’s written agreement to co-own
her home with a female partner.
Sixteen years ago, Ertman decided to
have a child with Victor Flatt, a gay male
friend. There were details to be worked
out before he FedExed his sperm. Ertman
borrowed a sample contract from a sociol-
ogist and tailored it: She would do most
of the parenting, and Flatt would chip
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