fertility and lawsuits - could a contract about childbirth be enforced?

Factual Questions
1

like they say, completely free market capitalism will result in a pound of flesh being sold in the supermarket…

Anyway, so would the current American legal environment permit contracts about child birth? For instance, could a boyfriend and girlfriend sign a contract that says that the girl promises not to give birth in a particular time interval and otherwise she pays a pre-agreed fine? Motivation, of course, might have to do with improving the incentive to take the pill on a regular basis and so forth.

2

You might look into the Baby M case, a famous custody case that dealt with surrogacy contracts as a matter of public policy. It’s commonly taught in undergrad business law or undergrad ethics classes but I don’t know beyond that cursory level so I won’t say any more except to point it out. I don’t know anything about new laws or case law since 1986.

3

IANAL - but…

Basically a contract is a payment for consideration. I do X or give you X, you pay me Y. Some things are not contractable(?)- obviously, you cannot sell a person. Anything surrounding marriage has it’s own set of laws, generally.

I suspect the judge would toss the case on numberous grounds; but specifically - if the GF becomes pregnant - whose fault is it? If the BF made her pregnant, then he obviously was willing to accept the consequences when he did the deed. Every birth control includes a risk of failure and determining what caused the “accident” a few months later is pretty tricky.

If the guy expected to be able to continue reproductive actions and not suffer the consequences, it would seem to much like a contract for prostitution. Even worse if the contract was “He will pay her if she does not have a child…”

In every “contract” there is an inherent duty to mitigate. You must take reasonable steps to prevent the damage being any worse than it needs to be. If you sit in your nice warm house and watch a freezer full of meat spoil because the freezer died; and there’s an icy garage just out the door - the judge is not likely to make the appliance company pay you for the meat you could easily have saved. (Whereas, if you came home from a weekend out to find the stinking mess- different story).

So what would the BF’s duty to mitigate be in this case? Don’t have sex? He is at least 50% to blame for the contract failure, more than 50% if he did not use a condom when he could have, and probably more than 50% to blame if he did use a condom and she got pregnant anyway.

Plus, a contract that is unconscionable or unreasonable - like expecting a woman to control something she has no absolute control over, like reproduction or birth control failure - would probably be tossed.

if the clauses included any suggestion that the woman needed to have an abortion, it woyuld probably be tossed as a violation of her personal privacy.

Oh, and the right to child support is a right belonging to the child. The mother cannot sign it away by herself. In fact, in some jurisdictions, if the mother is not collecting support and goes on welfare, the welfare department will initiate support proceedings to recoup some of the welfare paid to support mother and child.

If you don’t want a child, have a vasectomy (which could fail too). Good luck trying to find a doctor who will do a vasectomy on a young male without children, for fear of a lawsuit 10 years down the road when he finally grown up and changes his mind…

4

md2000,

no need to get carried away with advice to me personally. There are easier ways to prevent problems, like not having a girlfriend :slight_smile:

Note that this (formally) does not have to do with child support. It’s just a contract. In many cases contracts are made over things where one of the parties does not have full control over (like, will enough corn grow in my field to deliver to the buyer on time? who knows?), but the contract stands anyway.

Incidentally, so if it’s wrong to have such contract with the boyfriend, how about a 3rd party? Maybe the 3rd party is called “Morons united for a child-free world” or something like that. They are not having sex with the girl or otherwise in any way contributing to the danger of her having a baby.

5

Sorry. Not getting personal, just pointing out the facts of life (ha ha).

What contract with what 3rd party? Again, IANAL but what consideration would a 3rd party get for such a one-sided contract? If the group offered “we will pay you not to have a child” and paid it in advance, then wanted a refund, then maybe; I don’t see how the group could argue they gave her a benefit in her (not) having a child - so what would she receive in return for paying them if she gives birth as per the original post contract?

The classic “non-contract” example is like “I promise to give you a Rolls Royce if I win the lottery”. The lottery winner receives nothing from you (unless you run the lottery!) so he has no legal obligation to you and your driving needs.

You could always argue that since conception is a gamble, that there is no way to enforce gambling debts too…

6

IAAL, but not an American one. Still, the principles governing contracts are not very different between common-law countries. What follows are some general remarks about contracts that might help guide the discussion.

Simplest definition of a contract that I’ve ever seen: “A contract is an agreement giving rise to obligations which are enforced or recognised by law.” G.H. Treitel, The Law of Contract, Seventh Edition (London: Stevens and Sons, 1987). Spelling is as in the original.

Key words from this definition, at least in terms of the OP, are “enforced or recognised by law.” Generally speaking, contracts are not enforceable if the subject matter is an illegal act, or if they go against public policy in some way. Thus, you cannot enforce a contract for murder, or for the sale of drugs–both are illegal acts. Somewhat similarly, though much more of a grey area, is public policy; and it’s the public policy angle that I think the OP is asking about.

The OP asks, “[C]ould a boyfriend and girlfriend sign a contract that says that the girl promises not to give birth in a particular time interval … otherwise she pays a pre-agreed fine?” Such a contract could be drafted and signed, certainly; but whether or not it is enforceable, would be dependent on whether denying a woman the choice of how she wishes to use her body at any time goes against public policy. It would seem to me that the answer would have to be jurisdiction-dependent: just how much control does the jurisdiction’s public policy grant a woman over her body? Does she have more control, or do the men or other entities (e.g. statute laws, religious bodies in a heavily-religious jurisdiction, general community standards, etc.) in her life have more control? I’d say that there is necessarily no single answer that would satisfy the OP’s question, but it could certainly be answered for a given jurisdiction.

7

Spoons - one point I heard was that a contract required “mutual consideration” - both sides had to receive something substantial.

I’d like to hear a real legal argument over what the GF would receive in the original contract. She does all the work herself (of staying not pregnant), gives him nothing; and yet pays a penalty if she messes up. In what way does that qualify as a legal contract? If he agreed to pay her in return for childlessness, that might be considered a contract.

Binding or not is a whole different debate.

It’s specious to argue they can sign whatever they want. Technically, if it can’t be enforced it’s not a contract, it’s just a pretty piece of paper.

8

md2000, who determines what is and is not “something substantial”? If I pay $1000 to buy a Rolex watch, do I get something substantial or am I being ripped off and hence should have the right to reverse the contract at will? Maybe the lady in question does in fact get something in return, but apparently the something’s “monetary value” (however we might wish to figure that out) is fairly small, otherwise this discussion would have belonged to the field of buyer/seller regulations.

Ok, so maybe she gets exclusive access to the “Morons United” educational field trips where she gains valuable insight about the moronic united child-free world ideology. A $10K value, yours absolutely free. Does this make any difference?

9

Sorry. As a lawyer, I sometimes forget that what I take for granted isn’t necessarily common knowledge.

You’re correct, though I would replace “substantial” with “something of value.” Each party to a contract puts forth something of value, and receives something of value in return. This is “consideration,” and every contract requires it. My $200 for your watch, for example. I was assuming the OP’s contract contained consideration; since without consideration, there is no contract at all.

In the OP’s contract, the woman would have to receive something of value as consideration. It could be a cash payment of any size, or a promise where the man pays the rent and buys groceries for the period of the contract, or similar. As long as the woman receives something of value–even something small, like a peppercorn, as every first-year law student learns–and if the man receives something of value (and presumably, her not getting pregnant is valuable to him), then there is a contract.

I’m assuming again, sorry. There must also be offer, acceptance, a meeting of the minds (consensus ad idem), and consideration in order to form a contract; but yes, the woman would have to receive consideration under this contract.

Right again. And sadly, I deal too often with such pretty pieces of paper; and end up telling a client that what he or she thought was a contract, isn’t really one at all.