Few would find it surprising that an agreement for sex falls outside the bounds of contract law. Prostitution—defined as an exchange of sex for money—has long been a crime, a point that courts often make in declining to enforce agreements between unmarried partners. A closer look at the legal treatment of sexual agreements, however, tells a more complicated story. Moreover, several contemporary developments cast doubt on the proposition that sex, or a perceived similarity to prostitution, must always doom agreements.
In the parentage context, for example, legislatures and courts increasingly treat paid surrogacy arrangements as enforceable contracts, rejecting earlier arguments that emphasized the parallels to illegal sex work. Courts have also become more willing to acknowledge parentage agreements that involve sexual conception, and surrogate partner sex therapy and adult entertainment employment have escaped legal sanction.
Beyond the incipient recognition of sexual arrangements as legal contracts, contract-based ideas have become salient in contemporary sexual regulation.
Modern understandings of crimes like rape and sexual assault emphasize sexual autonomy and make consent and its absence the pivotal considerations, displacing earlier elements of force, resistance, gender, and nonmarriage.
This Article juxtaposes the traditional approach to sexual contracts with the emerging convergence of sex and contract. Given that sex is not actually differentiating the contracts that courts enforce from those they do not and given the various inequities that result from the current system, this Article ends by considering what it would mean to carry the contractual approach to its logical conclusion by recognizing sex itself as subject to contract. A recent conversation simmering in the academy and the popular press alike asks whether fairness requires not only the redistribution of wealth but also, provocatively, the redistribution of sex.
