1. Introduction
2. The Right to Procreate
  2.1 Skinner v. Okla.
  2.2 Wiscon. v. Oakley
  2.3 Involuntary Sterilization
  2.4 Kin Selection
  2.5 Marriage
  2.5.1 Anonymous
  2.5.2 Tompkins v. Tompkins
  2.5.3 Williams v. Williams
  2.6 Transgender Marriage
  2.7 Polygamy
  2.8 Prostitution
  In Brief
3. Who Is My Family?
3.1 Family Identity and the Right to Associate with Kin
  3.2 Marriage and the Paternity Presumption
  3.2.1 Jones v. Trojak
  3.2.2 Michael H. v. Gerald D.
  3.2.3 William "TT" v. Siobhan "HH"
3.3 Paternity Estoppel
3.4 Equitable Parenthood
3.5 Duty to Support
  3.6 The Paramour Statute
  3.7 Maternal Transmission of Citizenship
  In Brief
4. Whose Child Is This?
  4.1 The Surrogate Cases
  4.1.1 Johnson v. Calvert
  4.1.2 Belsito v. Clark
  4.2 Shotgun Weddings
  4.2.1 Fairchild v. Fairchild
  4.2.2 Gard v. Gard
  4.2.3 B. v. S.
  In Brief
5. Shopping For Eggs & Sperm
  5.1 Bad Sperm
  5.2 Cryogenic Orphans & Waifs
  5.2.1 Gifts of Sperm
  5.2.2 Who Is My Father?
  In Brief
6. Sexual Orientation
  6.1 The Right to Practice One’s Sexual Orientation
  6.2 Discriminating on the Basis of Sexual Orientation
6.3 Same-sex Adoption
6.4 Same-sex Marriages
  In Brief

2.5.  Marriage

Marriage is the primary social and political institution through which sexual relationships and procreation are legitimized.  In Western society, it is the custodian of reproductive function, and a fundamental unit of society – like a cell is to a whole organism.  In the classic view, it is a bond established between a man and woman that is formalized by the state.  When two parties marry, they obtain a marriage license issued by the local government that transforms their relationship into a state-regulated civil contract.

Marriage is another example of the codification of a law of natural selection.  The custom of marriage has been found in almost every human society.  Human infants are very underdeveloped when born, requiring almost two decades of care to fully mature.  The bond between the father and mother is a response to their baby’s psychological and economic needs.  By forming a stable parental relationship, the baby’s chances of surviving to a reproductive age are enhanced.  Mothers and fathers who form such bonds are more likely to have grandchildren, and more of them.  As a result, the genes that stimulate bonding behavior become highly represented in the population.  Marriage is simply a formalization of this selective, natural force.  See, Allport, S., A Natural History of Parenting, Harmony Books, New York, 1997, Pages 46-51.

Early twentieth century cases involving marriage described three significant benefits to American society:

To achieve procreation within the authority of the state (“Lord Penzance has observed that the procreation of children is one of the ends of marriage. … I do not hesitate to say that it is the most important object of matrimony, for without it the human race itself would perish from the earth.” Turney v. Turney, 113 A. 710, N.J. Ct. Chancery, 1921).  Marriage safeguards the legitimacy of the children produced by the contracting parties, ensuring that property and other family assets pass unencumbered through successive generations.

To avoid sin (“the sexes should not associate promiscuously as prompted by mere animal instinct, but to ‘pair off,’ to use an expression applied to the birds of the air.”  Bishop, J.P., 1881, quoted in Wadlington, W., Domestic Relations, 2nd Edition, 1990, Page 14).  Marriage is an expedient by which society regulates sexual relations between men and woman, and justifies sex.

To provide mutual support and a permanent, stable family.  A crucial objective of marriage is to secure the permanence of the family unit, providing a stable environment in which to socialize the children.

Divorce or annulment of the marital contract was available only in limited circumstances.  Until the 1960’s, a marriage could be terminated in most states only for specific reasons, not simply because of the desire of one or both parties to end the marital relationship.  Adultery was a common ground for divorce in many state statutes.  Impotence was another.  The duty to engage in sexual intercourse was considered a central duty of the marital relationship. Borton, 102 Columbia Law Review 1089, 2002.  “Capability of consummation is an implied term in every marriage contract; and in the case of marriages between young persons, capacity for lawful sexual indulgence is regarded of special importance to the happiness of the wedded state and to the fulfillment of the ends of matrimony, viz., a lawful indulgence of the passions in order to prevent licentiousness, and the procreation of children.”  Vanden Berg v. Vanden Berg, 197 N.Y.S. 641 (NY, Monroe Cty., 1923).  So much so that the inability to perform sexually was grounds for annulment.  An annulment was the judgment that a marriage was invalid, and was as if it had never occurred, relieving the parties of support and other obligations that would have incurred if they had instead divorced.

The rule permitting divorce if a party were incapable of having sexual relations – the impotence rule – suggests that sex was the legal consideration for the marital contract, the material benefit that induces the contracting parties to enter a contractual relationship.  Under contract law, a promise is not legally enforceable unless valuable consideration is exchanged between the parties.  Since a marriage could be legally dissolved when sex was not exchanged between the marital partners, sex served the same purpose of consideration by providing the mutual benefit supporting the execution of the marital contract.

What would be the consequence of enforcing the marriage when the consideration failed, and sexual intercourse was not performed as promised?  For any contract, the purpose of consideration is to ensure that both parties benefit from the agreement.  It is considered unfair and economically inefficient to enforce a contract when no mutual benefit has accrued.  The words that begin a typical marriage ceremony reflect the terms of the marital agreement between the parties: “I, Jane/John, take you John/Jane to be my wife, to have and to hold from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish till death do us part.”  These words indicate the intent of the parties to live together permanently, to support each other, and to maintain their relationship even under adversity.  Brinig and Crafton, 23 J. Legal Stud. 869, 1994.  If Jane is impotent and unable to provide sex to John as agreed, why should John fulfill his part of the bargain by remaining faithful and providing money to Jane?  Since he has received no benefit, it makes sense for him to terminate the agreement, and find a substitute contract that provides the promised gain.

 If procreation were so important to marriage, then it would seem that infertility would be grounds for annulment or divorce, as well.  However, in contrast to impotence, “mere sterility” was not a sufficient basis in any American state for ending the marital contract.  Borton, 102 Columbia Law Review 1089, 2002.  “It seems to us clear, therefore, that it cannot be held, as a matter of law, that the possession of the organs necessary to conception are essential to entrance of the marriage state, so long as there is no impediment to the indulgence of the passions incident to this state.”  Wendel v. Wendel, (NY App. Div. 1898).  Only when a spouse fraudulently concealed and failed to disclose the condition prior to marriage would a court terminate the marriage.  See, e.g., Williams v. Williams (NY, Monroe Cty., 1939).  According to these cases, although procreation was the purpose of marriage, there was no assurance that every couple would succeed in their effort.  Bearing fruit was unnecessary as long as intent and capability were present.  Several judges argued, it was against public policy to deny the privileges of the marriage relationship to individuals simply because they were sterile as a result of disease, hereditary, or age (having “passed the prime of life.”). Wilson v. Wilson, 191 A. 666 (PA, 1937).  The risk the one partner would be infertile was therefore shared equally by the parties to the marital contract, encouraging even more prudence in the choice of reproductive partners. 

Is the failure to grant a divorce on the grounds of infertility an evolutionary maladaptive rule?  Consider it from the viewpoint of the individuals who are bound by the marriage contract, but despite their desire and repeated efforts, are unable to conceive progeny.  Continuing the marriage relationship means both parties loose the opportunity to have biological children and pass their genes to a successive generation, irrespective of which one is at fault.  What good can this be for the fertile individual who looses the chance to seed the gene pool?  As indicated in Wilson, the beneficiary is the sterile party who does not have to face loosing their marital partner upon discovery of their physical inability to procreate.  For the fertile partner, however, the result is destructive since it binds her to a fruitless partnership through no fault of her own.  The numbers are not insignificant either.  It is estimated that infertility affects at about 10% of couples of child-bearing age. www.umm.edu/men/infertil.htm.  Given this harsh rule, a spouse confronted with these circumstances, may well conceal infertility as the reason for dissatisfaction with the conjugal relationship, and base a divorce proceeding on another, but statutory, grounds.

Maybe there is another angle to it.  Single males without legitimate access to females are a source of societal conflict.  As long as the relationship provides a sexual outlet for the male, his aggressive mate-seeking behavior is subdued, making him a more manageable member of the group.  From the community’s point of view, the “mere sterility” rule could be a group selection rule that benefits the population as a whole.  Unmarried men are viewed as troublemakers for the wives of married men (e.g., Stockard, J.E., Marriage in Culture, Harcourt College Publishers, 2002, Page 31).  When the ratio of men to women precipitously increased in Eastern Europe, this was described as a recipe for social turmoil, and even violence.  Kirschbaum, E., Reuters, 26 Dec. 2003.

One of the purposes of marriage is to facilitate the transfer of property through the family bloodline.  Money follows the genes.  Providing economic resources to relatives is an important strategy to promote the success of an individual organism’s genes since one’s relatives share many of the same genes.  Inheritance law codifies this principle (see, also, Section 3, Note 3).  State law has elaborate provisions for how property is to be distributed when a decedent dies without a will – first to surviving spouse and children, and if none, then, in the following order, to parents, to brothers and sisters, to nieces and nephews, and so on.  Not only does a fruitless couple’s genetic line not end with them as long as they have living relatives capable of procreation, but their failure to produce fruit of the marriage does not necessarily sever the attachment of the family money to the family genes.  In this light, the “mere sterility” rule reflects the principle of kin substitution since they possess equivalent genes to the infertile couple.  No one is damaged since the genes continue to flow through the family gene pool.  As a group strategy, the rule keeps the males happy, and as an individual strategy, it keeps the money linked with the genes.

But what happens when people bound in an infertile marriage cheat and commit adultery?  The rule favors the female.  This is evolutionarily justifiable since her egg is a scarcer resource than the male’s sperm, and it is expected that group rules would place a higher value on it.  A child born to a married woman living with her husband is presumed to be a child of the marriage.  See, Section 3.1.  In an otherwise fruitless marriage, should the fertile partner be a woman, and should that woman seek extramarital viable sperm, any child born as a result would be presumed to be the marriage’s legitimate heir.  This permits the female, but not the male, to address her mate’s infertility disorder by seeking a reproductive partner outside the marriage, and then bringing her child into the marriage to reap its benefit.  The family money tracks the fertile female’s genetic jewels, but robs the male of his.   

The similarly situated male could father a child by a woman other than his wife, but the law would preclude him from bringing the fruits of his labor to the marital unit.  He achieves the objective of reproducing, but fails to keep his economic and genetic resources together.  His money separates from his genes, and his progeny lose any of its advantages.  Unlike the female, divorce is the only way in which the male in a union with an infertile partner can pass his wealth on to his offspring.

The American legal system is in the minority as far as the infertility rule.  Of 186 world cultures surveyed, 75% permitted divorce for sterility reasons (Betzig, L., Current Anthropology, 30(5): 654-676, 1989).  Only adultery was higher, with 88% of the societies describing it as permissible grounds for conjugal dissolution.  The majority was pre-industrial, but this same trend appeared in modern societies, as well.  Several of the cultures practiced polygyny as an alternative, when divorce was prohibited or unacceptable.  For instance, in pre-industrial Chinese society, if a wife did not produce a son to maintain patrilineal continuity, a wealthy man might take on a second wife to bear the male heir (Stockard, J.E., Marriage in Culture, Harcourt College Publishers, 2002, Page 53).