Binding Future Selves

Louisiana Law Review Volume 75 | Number 1 Fall 2014 Binding Future Selves Kaiponanea T. Matsumura Repository Citation Kaiponanea T. Matsumura, Binding Future Selves , 75 La. L. Rev. (2014) Available at: http://digitalcommons.law.lsu.edu/lalrev/vol75/iss1/8 This Article is brought to you for free and open access by the Law Reviews and Journals at DigitalCommons @ LSU Law Center. It has been accepted for inclusion in Louisiana Law Review by an authorized administrator of DigitalCommons @ LSU Law Center. For more information, please contact sarah.buras@law.lsu.edu . Binding Future Selves Kaiponanea T. Matsumura ∗ ABSTRACT Courts traditionally treat a person entering an agreement as the same person at the time of enforcement notwithstanding the passage of time or an intervening change of mind. For certain agreements between intimates, however, courts have adopted the novel view that the enforcement of a person’s earlier commitment would improperly constrain that person’s will rather than serve as an expression of it. These cases rest on the assumption that an intervening change has created meaningful—and legally significant—differences between the later self (at the time of enforcement) and the earlier self (at the time of commitment) and that the later self deserves protection from the earlier self’s choices. This “different selves” rationale has arisen primarily in the context of agreements pertaining to matters such as embryo disposition, surrogacy, and parentage. Courts and commentators appear to believe that the centrality of these types of choices to personhood justifies exceptions to general contract principles. But even assuming that choices of this sort differ from choices embodied in “normal” contracts, the different selves rationale does not provide a principled basis for resolving a dispute between the selves; it does not explain why a choice central to personhood made at an earlier time is less central to that person than a choice made at a later time. This Article contributes to the existing literature on several fronts. It reveals the increasing adoption by courts of the different selves rationale, which, until recently, was thought to be merely theoretical. It also exposes the ungrounded assumptions on which the rationale rests: that it applies only to a certain set of choices, that it can identify Copyright 2014, by KAIPONANEA T. MATSUMURA. ∗ Associate Professor of Law, Sandra Day O’Connor College of Law, Arizona State University. I thank William Baude, Stewart Chang, Beth Colgan, Richard Craswell, Sharon Dolovich, Elizabeth Emens, Robert Esposito, Robert Gordon, David Horton, Sonia Katyal, Nancy Leong, Benjamin Means, Alison Morantz, Elizabeth Pollman, Russell Robinson, Jane Schacter, Marjorie Shultz, Brian Soucek, Norman Spaulding, Rebecca Stone, George Triantis, and Ryan Wong for their helpful conversations and comments on drafts of this Article. Thanks also go to the workshop participants at Arizona State University’s Sandra Day O’Connor College of Law, Stanford Law School, and UCLA School of Law. I thank Michele Cumpston and the librarians and staff of Stanford’s Robert Crown Library for their expert research and support. Finally, I thank the editors of the Louisiana Law Review for their thoughtful comments and careful editing. 72 LOUISIANA LAW REVIEW [Vol. 75 the proper choices to protect, and that it can actually protect those choices. Finally, this Article uses the different selves rationale as an occasion to examine the role of personal identity in contract law. Theories of personal identity emphasize the importance of self-continuity and future-regarding action, both of which are disserved by an approach that prizes a person’s preference at the time of dispute rather than her earlier commitment. TABLE OF CONTENTS Abstract ..................................................................................71 Introduction ............................................................................73 I. Changed Preferences, Changed Selves? ................................79 A. Defining Personal Identity ................................................79 B. Scholarly Foundations of the Different Selves Rationale ...........................................................................82 C. The Rise of the Different Selves Rationale in the Courts..........................................................................86 II. A Critical Examination of the Different Selves Rationale .....92 A. Future Commitments and Alienability .............................92 B. Beyond Negative Liberty: The Unbounded Self? ............97 C. Choosing Between Selves ................................................99 III. Personal Identity and Contractual Commitments ................102 A. The Concept of Narrative Identity ..................................103 B. How Narrative Identity Theory Undermines the Different Selves Rationale ..............................................107 1. Concerns About Differences Between the Selves Should Not Normally Relieve Parties of Their Contractual Commitments ........................................108 a. Against the Discontinuity Assumption ...............108 b. Against the Assumption of Limits on Future-Regarding Choice ...................................111 c. Against Privileging the Time 2 Self .....................111 d. Summary ............................................................115 2. The Future-Oriented Aspect of Narrative Identity Weighs in Favor of Enforcing Agreements ..............115 3. Limits of the Narrative Identity Theory ...................120 Conclusion ...........................................................................122 2014] BINDING FUTURE SELVES 73 INTRODUCTION The law of contracts is not sympathetic to regret. Indeed, the enforcement of commitments even after a promisor has come to regret her promises has been called “the very essence of contract.” 1 On certain matters of great personal significance, however, courts have second-guessed this well-established principle. A.Z. v. B.Z. , which involved a couple’s fifteen-year saga to have biologically related children, exemplifies this departure. 2 For the first two years of their marriage, the couple experienced difficulty conceiving a child, and when the wife conceived, she suffered an ectopic pregnancy that necessitated the removal of one of her fallopian tubes. 3 Eight years passed during which the couple participated in a year’s worth of additional fertility treatments without success. Eleven years into their marriage, the couple turned to Gamete Inter-Fallopian Transfer—the simultaneous transfer of removed eggs and sperm into the fallopian tube—but this procedure resulted in a second ectopic pregnancy, destroying the wife’s remaining fallopian tube. 4 Left with few other options, the couple decided to pursue parenthood through in vitro fertilization. 5 Before the first of their procedures, the fertility clinic presented the couple with a form entitled “Consent Form for Freezing (Cryopreservation) of Embryos,” on which they were asked to indicate the disposition of leftover frozen embryos upon certain listed contingencies, including separation or death. 6 The form prompted the couple to select the options “donated” or “destroyed,” but it also provided a blank line on which the couple could specify other 1. Elizabeth S. Scott & Robert E. Scott, Marriage as Relational Contract , 84 VA. L. REV. 1225, 1247 (1998). See also Marjorie Maguire Shultz, Contractual Ordering of Marriage: A New Model for State Policy , 70 CALIF. L. REV. 204, 214 (1982) (observing that the “freedom to pursue individualization and diversity that characterizes private ordering” involves “yesterday’s legally binding private choice . . . overrid[ing] today’s contrary private choice”). 2. A.Z. v. B.Z., 725 N.E.2d 1051, 1052–53 (Mass. 2000). 3. Id. at 1052, 1052 n.6 (explaining that an ectopic pregnancy is one that occurs outside the uterus). 4. Id. at 1053. 5. Id. The in vitro fertilization process includes the extraction of eggs from the intended mother, fertilization of eggs in a laboratory, implantation of one or more of the resulting embryos, and cryopreservation of any leftover embryos for later use. See id. 6. Id. at 1053–54. Specifically, the form listed the contingencies of “wife or donor reaching normal menopause or age forty-five years; preembryos no longer being healthy; one of us dying; [s]hould we become separated;” and “[s]hould we both die.” Id. at 1054 (internal quotation marks omitted). 74 LOUISIANA LAW REVIEW [Vol. 75 preferences. 7 For the contingency, “‘[s]hould we become separated,’” the wife, in the presence of her husband, wrote that the embryos should be “‘return[ed] to [the] wife for implant,’” and she and her husband signed the form. 8 That first procedure was unsuccessful, but the couple tried several more times, with the husband signing a blank consent form thereafter and the wife filling out the form with identical language regarding their preferences in the event of their separation. 9 Finally, three years later, the wife conceived and gave birth to twins. 10 When the couple divorced several years after the twins’ birth, the wife sought judicial enforcement of the consent form over her husband’s objection in order to gain possession of the remaining four embryos for her use. The court held that under the circumstances, the parties did not enter into a binding agreement. 11 Remarkably, however, the court stated that “even had the husband and the wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen preembryos, [the court] would not enforce an agreement that would compel one donor to become a parent against his or her will .” 12 By basing its decision on a disjunction between the husband’s will at the time of the legal dispute and his will memorialized in the earlier agreement, the court’s reasoning represents a novel departure from...