Are Abortion Contracts Illegal?
A few years ago, J.J. Redick allegedly signed an abortion contract with his mistress. Redick vehemently denied this.
The alleged 2007 agreement between the NBA player and Lopez was posted by MediaTakeOut.
The purported contract:
- Lopez shows proof of an abortion. If this happens, then she and Redick “shall attempt to establish and maintain a social and/or dating relationship” for one year.
- Lopez doesn’t show proof of her abortion. If this happens, then there are no obligations for either party.
- Lopez shows proof of an abortion, but Redick breaks up with her before a year. If this happens, then Redick would owe Lopez $25,000.
- Lopez shows proof of an abortion, but she breaks up with Redick before a year. If this happens, then Redick would not have to pay Lopez a dime.
In general, parties are free to sign on any dotted line they want. The real question is, if one of the parties doesn’t perform, can the other side take them to Court and enforce it? (FORCE them to perform)?
Courts will not enforce illegal contracts.
Once a contract is deemed “illegal and void”, the court will refuse to enforce the contract and leave the parties as it finds them. (Yoo v. Jho (2007) 147 Cal.App.4th 1249.
California Civil Code 1608
The law on this is found in California Civil Code § 1608, which states “…If any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void.”
Under Civil Code § 1667 , “unlawful” is broadly defined as that which is contrary to an express provision of law; contrary to the policy of express law, though not expressly prohibited; or, otherwise contrary to good morals.
In determining illegality, the extent of enforceability and the remedy granted depends upon a variety of factors, including the policy of the transgressed law, the kind of illegality and the particular facts. ( Asdourian v. Araj (1985) 38 Cal.3d 276, 282).
As Applied To Family Law
In In re Marriage of Mehren Dargan 13 CalRptr3d 522 118 CalApp4th 1167 Cal App 2004, Husband and Wife entered into a post-nuptial agreement where husband agreed to give wife all of his interest in community property should he use drugs.
The Court found this contract was illegal because promising to not commit a crime is wrong, and it was the only consideration for this.
Abortion Clauses in Surrogacy Contracts
Abortion clauses frequently arise in the area of surrogacy contracts. The question is whether the surrogate has the ultimate say on abortion. For example, Jack and Jill couple contract with Susan Surrogate. Does Jack and Jill have the power to enforce an abortion clause against Susan for any reason?
Crystal Kelley was such a case. In 2012, Crystal was 5 months pregnant when the Connecticut couple who hired her to be their surrogate demanded her to undergo an abortion. An ultrasound had revealed the baby girl would be born with special needs and likely require numerous surgeries.
Demand for Abortion
They offered Crystal $10,000 to abort their baby. The couple hired a lawyer, Douglas Fishman, who sent a demand letter: “You are obligated to terminate this pregnancy immediately…Time is of the essence.”.
Soon Crystal would be 24 weeks pregnant, and after that, she couldn’t legally abort the pregnancy, he said. Fishman reminded Crystal she had signed a contract agreeing to “abortion in case of severe fetus abnormality.”
She was in breach of contract, he wrote, and if she did not abort, the parents would sue her to get back the fees they’d already paid her – around $8,000 – plus all of the medical expenses and legal fees.
The parents then stated that they planned to exercise their legal right to take custody of their child — and then immediately after birth surrender her to the state of Connecticut, foster care.
Different States, Different Laws
They were determined to force her to abort. She refused, and fled Connecticut for Michigan. In Michigan (where surrogacy contracts are not recognized), the law says the baby legally belongs to the woman carrying the baby. She would be safe from the law there.
In Ann Arbor, Crystal gave birth to Seraphina, a little girl with severe medical conditions. The legal dispute continued.
The Connecticut couple sued her, and the case turned more complicated when it turns out the egg didn’t belong to the wife – they had used an anonymous egg donor.
3 weeks after Seraphina was born, the case settled with this agreement: Baby Seraphina would be adopted by a new family, one with experience raising special needs children.
The Connecticut father agreed to give up his paternal rights as long as he and his wife could keep in touch with the adoptive family about Baby Seraphina’s health.
Seraphina was warrior. For the 8 years she lived in this world, she was a fierce warrior and fought for her life. She had multiple surgeries.
She learned sign language.
Her favorite sign was “I love you”. She went home to our Lord at age 8.
Baby Seraphina’s story can be found here.
The outcome could have been very different had Crystal stayed in Connecticut.
Surrogacy Contracts Unlike Other Personal Services Contracts
As the battle for abortion rages on, there will be more and more legal questions about specific performance and abortion contracts. Will abortion ever be forced on a woman who signed a contract agreeing to do so?
I found an interesting article, by Harvard Law Bill of Health.
“Unlike other contracts for unique personal services, commercial surrogacy contracts may contain specific provisions directing the surrogate to undergo risky and invasive medical procedures, or even purporting the power to compel her to undergo an abortion. I’ve described previously how this constitutes a drastic anomaly; unlike any other medical context, where patients may revoke consent, intended parents expect the surrogate to waive her right to informed consent irrevocably. This decision occurs long before any medical intervention, before becoming pregnant, before hearing of risks and benefits of each intervention.”
It will be interesting to see what happens in the future, especially in states with few restrictions on abortion.
Mitt Romney’s Son’s Surrogacy Agreement Contains Abortion Clause
Mitt Romney’s son, Tagg and his wife Jen, along with the surrogate and her husband, signed a Gestational Carrier Agreement dated July 28, 2011. Paragraph 13 of the agreement reads as follows:
“If in the opinion of the treating physician or her independent obstetrician there is potential physical harm to the surrogate, the decision to abort or not abort is to be made by the surrogate.”
Translation: Tagg and Jen gave the surrogate the right to abort the fetuses even if her life wasn’t in danger. All the surrogate has to show is “potential physical harm,” which could be something like preeclampsia — a type of high blood pressure that could damage the mother’s liver, kidney or brain, but is not necessarily life-threatening.
Paragraph 13 goes on:
“In the event the child is determined to be physiologically, genetically or chromosomally abnormal, the decision to abort or not to abort is to be made by the intended parents. In such a case the surrogate agrees to abort, or not to abort, in accordance with the intended parents’ decision.”
And there’s another relevant provision in Paragraph 13:
“Any decision to abort because of potential harm to the child, or to reduce the number of fetuses, is to be made by the intended parents.”
Translation: Tagg and his wife, Jen, had the right to abort the fetuses if they felt they would not be healthy.
Very interesting legal discussion here, again by Harvard Law Bill of Health.
Other Examples of Illegal Contracts
Hired Hitman – Murder. Contracts for selling or distributing drugs or other controlled substances. Prostitution contracts. Contracts for employing underage workers.
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