QLD Abortion and extortion

[Rob3hoch]

Hypothetical;
Jack is 34
Jill is 31
They are married and childless.
Jill has been diagnosed with terminal cancer. She has been given 1 year to live.
Jack and Jill want to have a child as a legacy of their relationship. The doctors have told Jill that if she were to fall pregnant the foetus would not survive to term.
Jack and Jill are advised that the only likely way that they might have a child of their own is for Jill to provide an egg, Jack to provide sperm and for the fertilised egg to be implanted and carried to term by a surrogate mother.
A surrogate is found. Her name is Heather. She is 32 and she declares that she been a surrogate on 3 previous occasions. Heather agrees to act as surrogate for Jack and Jill. She agrees to carry the foetus to term if a fertilised egg can be successfully implanted and provided that there are no medical indications that would prevent her from doing so. She will charge no fee but all costs associated with every aspect of the hoped-for pregnancy will be covered by Jack and Jill.
A formal, legal contract is signed by all parties.
A fertilised egg is successfully implanted.
10 weeks into the pregnancy, Heather approaches Jack and Jill and demands that they pay her $100,000.00. If they fail to agree to her demands she threatens to abort the foetus.
Jack and Jill cannot afford to pay Heather what she asks and they feel that they are the victims of an extortion.
They seek your advice. Can they insist that Heather continue to carry the foetus to term? Can the law prevent Heather from carrying out her threat to abort? Can Heather demand her right to abortion?
Is this a scenario where a woman’s right to determine what happens with respect to her body is not an absolute priority and where the rights of other involved must be taken into account?
Thank you in anticipation of your thoughts on this matter

 

[Nighthelyn]

Dear Rob3hoch,

Sry but your hypothetical is too tidy, precise and all the key elements cleanly fall in the relevant grey area in the family surrogacy law, feels not like a real scenario but like a hypothetical that law students consider, and it is currently the university exam period. In case it is, I will only give you several hints:

1. What are the grey areas in law in Australia in surrogacy law- specifically - what is legal and not legal with respect to commerciality in surrogacy, penalty by sum or by conduct in any surrogacy agreement?

2. What are the jurisdictional limit in QLD court with respect to family matters, especially with parentage order, and parenting order? Especially with the options and limitations in enforcement?

3. When is criminal law involved with respect to abortion?

4. In what situation is it possible for someone who is alleged of ”extortion” plead reasonable cause?

5. Does the location of Heather matter - jurisdictionally? Ethically? If Heather is in US especially, the recent decision of the Dobbs case in US this year (more commonly known as the case that overturns Roe v Wade) how does it affect?

6. How does a court determines when commercial law, criminal law and family law contradicts - who’s interest does it pay attention to in Australia?

Good luck!
-Nighthelyn

 

[Tim W]

...not like a real scenario but like a hypothetical that law students consider, and it is currently the university exam period.

Could well be.
To me though, the phrase

"A formal, legal contract is signed by all parties."

doesn't sound like the way a law academic would write an exam question.
In particular, because anyone setting an exam question on this topic in Queensland
knows that surrogacy in Queensland is not, and cannot be, contractual.
On which basis, I would be surprised to see such a petty trick of language in a formal examination.
So, in my mind... might be an exam question... but, sadly, it might also be real people
who have got themselves into a jam.

(and don't even start me on the ethics of having a child as a "legacy of a relationship"...)

 

[Rob3hoch]

Thanks Tim W. I’m NOT a law student and I’m NOT preparing for an examination. I’m retired and I’m simply seeking an opinion from anyone with a legal background who might be interested in providing one.
Do you know of any cases of precedent that might give me some insight?

 

[Nighthelyn]

Okay - I am assuming this is a real question (and exam period is mostly over in QLD anyway so) and provide some notes - the matter is quite grey.

Breaking your scenario into various questions, I note:

Q1 - is it possible For there to be a formal legal contract in surrogacy in Queensland? Would Jack and Jill have any meaningful chance to sue for compensation or some form of injunction to Heather?

I agree with Tim W. Not really. In Queensland, surrogacy arrangements are governed by the Surrogacy Act 2010. A person may enter into a surrogacy agreement if: a. the intended parents, the surrogate and their partner are at least 25 years old, b. the intended parents are residents of Queensland; c. and All parties have had legal advice and counselling. However, arrangements must not be commercial and only gestational surrogacy is permitted. That means, there can be a contract, but there can’t be any contractual obligations that are in any way commercial in nature - e.g. no fee, no if you do not deliver the baby to term the other party gets compensation etc. In other words, there can be a surrogacy contract, but it won’t be “formal”, “legal” in the sense that it can be enforced under current law in any ordinary courts for money etc. As to equitable action e.g. injunction to stop Heather from aborting the baby - there is limited caselaw but given abortion is time sensitive due to its legality and health of the mother I am of the view it would be unlikely for the court to wish to be involved.

Q2 - Is abortion legal to the surrogate mother? Does she need someone’s permission e.g. Jack or Jill or some other people?

Yes it is legal mostly and would not require Jack nor Jill’s input in any way. In Australian law, abortion is decriminalised as long as the pregnancy is up to 22 weeks and six days gestation. Practically, if a person is thinking of aborting her foetus, 10 weeks is very close for a person to begin the procedures to consult seek medical assistance etc.

Q3 - Is there any crime in the alleged action by Heather - “extortion” ”abortion” of baby?

Assuming the action of extortion is on paper/in writing, it is possible for police to be involved. Queensland has a discrete offence of 'extortion', which is contained in s415 Criminal Code 1899. The section is titled 'Extortion' and prescribes a maximum penalty of 14 years in prison for any person who, without reasonable excuse, makes a demand with the intention to gain a benefit for any person or to cause a detriment to any other person, in circumstances where the demand contains a threat to cause a detriment to any other person. Unfortunately in this scenario it was unclear the situation of Heather, was the threat explainable or it is possible to prove menace, the fact that this whole situation does not appear to be entirely above board that Jack and Jill may not be unaffected.

Q4 - what legal action can Jack and Jill consider?

Not really given their financial situation. If the baby was carried to term and Heather refused to give up the child, QLD Family Court may be involved by applying for a parentage order or Parenting order depending on the situation. But (top of my head, subject to research) while the court is unlikely to have any jurisdictional limit, this scenario it is unlikely to be involved.

Q5 - what are the ethical and other concerns in this scenario?

While most would agree that it is not the surrogate mother who should risk imprisonment for entering these arrangements, there is concern that surrogacy is fundamentally exploitative and should be banned altogether. The current law does not address all issues and case law does not favour Jack and Jill.

In theory, the Australian principles in surrogacy is the concern paramount of the welfare of the child - but legally speaking the law is neither that comprehensive and this is open to any result I am aware of in law.

The recent US Dobbs case (also known as the case that overturns Roe v Wade) means if Heather situate in some of the states in US right now, it is possible for any access of her to abortion to be illegal but the law is very murky right now. Ironically Jack and Jill are probably favouring a more pro-life stance in this debate in their situation.

Q6 - how would a solicitor advise Jack and Jill in this situation

If this is a real situation, Jack and Jill will have to talk to a specialist family law lawyer but the reality is unless there is something quite significant not mentioned in the scenario, there is no good outcome possible for them

I am not a family lawyer but I have some experience how they operate. In this case however, given the very critical timeframe, the fact this whole arrangement is problematic and likely neither party are totally clean, the only way of resolving is by negotiations and any payment if any to resolve the dispute will have to be held in some form of escrow account to be released only once the surrogate mother came to term. If Jack and Jill is prepared to hose the whole thing then report to the police but it is unpredictable what if any action the police would take against Heather.

It is risky for Heather as well as she could not delay her decision to carry the baby to term or abort very long.

Good luck!
-Nighthleyn