Part I of this Article describes the general nonrecognition of altruism in the law. It then focuses on contract law, discussing cases involving parties who cohabitate without formalizing their relationship in a marriage, and those who are not sexually intimate but are nevertheless interrelated members of an extended family. I argue that when a relationship ends, a caretaker becomes aware of her sacrifice and effort on behalf of another and experiences a sense of loss. However, recovery in contract requires the perverse recharacterization of the parties as self-seeking strangers impersonally bargaining over market services in a commodity exchange. Courts indulge in the legal fiction that the caretaker bestowed services with the expectation of being paid, ignoring the family bonding and commodifying what is an expression of love into the sale of labor.
Part II comments on some of the reasons for the law's reluctance to legitimize the nontraditional family and its inability to believe that altruism is a credible explanation for the caretaker's conduct. Compelling the recipient to compensate the caretaker without his having voluntarily assumed the obligation in a contract blurs the bright-line rules defining the family, which separate the private from the public sphere and imposes a generalized duty of care in the public world. The law guards the boundaries of a divided world because, as a society, we are unable to express a coherent ideology of altruistic collective responsibility. In an impersonal, bureaucratized society, influenced by a philosophy as well as a psychology celebrating a self in separation from others, we have come to believe in the social divisions the law tells us cannot be changed.
Part III argues that the discourse is also an outgrowth of a divided society in which many women identify with their mothers and assume responsibility for child care and housework, while men are raised to earn a living in the market. An individual's sense of self and the self's relationship to others is in part affected by the fact that women assume primary responsibility for child care. The female child, raised by the same-sex caretaker, internalizes the mother, gradually evolving an experience of self that is subjectively relational. The male, however, is compelled to detach himself from the opposite-sex caretaker at an early stage of development and forms a firmly bounded ego in denial of the maternal bond. Despite the felt need for intimacy, many men perceive connection to others as a threatening invasion of self-boundaries.
Redefining the Family: Recognizing the Altruistic Caretaker and the Importance of Relational Needs,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol25/iss2/4