Request By:
Hon. Michael H. Brown
The Madison Company
P.O. Box 206
Berea, Kentucky 40403
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Asst. Deputy Attorney General
You request an opinion of this office on the following question:
"Are there in fact any Kentucky laws prohibiting a single woman from moving in with a married couple, bearing the man's children, and retaining custody of the child herself under the laws of contract?"
We assume from your letter that you have in mind a single woman's moving into the household of a married man under a contractual arrangement whereby she agrees to lend herself to having a child or children by the married man, if biologically possible. The contract would provide, we assume, that the single woman would retain custody of the children produced by her. It would also provide, we assume, that she would be treated, during her sojourn under the married man's roof, as if she were a second wife, i.e., she would be adequately housed, fed and clothed in that household. We also assume that the married man's wife would agree to this arrangement. Factually, we are treating this as three consenting adults.
The act of sexual intercourse on the part of the married man and the single woman in this situation, as relates to fornication or adultery, would not be a crime under the Kentucky Penal Code. See KRS 500.020(1).
It has been written that "the right to make and enforce contracts is one of the most valuable and sacred rights of individuals. . . ." 17 Am. Jur. 2d, Contracts, § 155, p. 506.
This right to contract, with some exceptions, "is a liberty which falls within the protection of the due process clause of the Fourteenth and Fifth Amendments to the Constitution of the United States." 16 Am. Jur. 2d, Constitutional Law, § 373, pp. 704-705. It has also been written that "parties may incorporate in their agreements any provisions that are not illegal or violative of public policy." 17 Am. Jur. 2d, Contracts, § 155, p. 506.
In 17 Am. Jur. 2d, Contracts, § 184, pp. 548-549, it is stated that "An agreement or understanding founded upon a consideration in whole or in part for the commencement or continuance of meretricious sexual intercourse is directly contrary to law or public policy and the best interests of society." In
Doty's Admr's v. Doty's Guardian, 118 Ky. 204, 80 S.W. 803 (1904), the Court pointed out that the rule in Kentucky is that a contract made in consideration of future illicit intercourse is void. The saving feature in that case was that the contract was not concerned with future illicit intercourse, but only with who was to control the bastard child.
In
Sackstaeder v. Kast, Ky., 105 S.W. 435 (1907), Joseph Kast separated from his wife and took a woman from a house of prostitution as his mistress. He paid all her bills, gave her spending money, and provided for her while he lived. He died, leaving a will. By his will he left her the household furniture and $500. The executor delivered the furniture and the $500 to her, whereupon she immediately opened a house of prostituion, and brought this suit against the estate, charging that for five years before the testator's death she served him as housekeeper, and that such services were worth $500 a year, claiming that the testator promised to pay her at that rate. The Court of Appeals, in rejecting her claim, wrote that she was not a housekeeper, but only a mistress. Her services were only in relation to that role. The Court in its ruling cited the earlier case of
McDonald v. Fleming, 51 Ky. Reports 285, 12 B. Mon. 286 (1851), and wrote this at page 435:
"So far as the services for which compensation is claimed were incidental to the illegal condition in which the parties lived and the improper connection subsisting between them, they are not of a character which the law countenances or for which any action can be maintained. As she occupied the attitude of a wife, without having been one, the services she performed in acting as house-keeper resulted from the position in which she had placed herself, and do not in law entitle her to any compensation."
The situation you present is virtually in point with Sackstaeder v. Kast, above, in that the consideration furnished on the part of the single woman relates primarily to her having sexual intercourse with the other woman's husband, and contemplates a continuance of that relationship. Such intercourse is a vital part of the contract. Thus the Kentucky law will not permit enforcement of a contract based on this illicit or immoral consideration. Such a contract would be void ab initio. The Court is saying in effect that one cannot lawfully contract to do that which has a tendency to be injurious to the public morals. See Lytle v. Newell, 24 Ky. Law rep. 188, 68 S.W. 118 (1902) 119, 120.
Later Kentucky cases reiterate the doctrine that not even an express contract to compensate a woman for maintaining sexual relations with a man not her husband will permit a recovery for compensation. See
Nicely v. Howard, 195 Ky. 327, 242 S.W. 602 (1922). In
McMillan v. Massie's Ex'r, 233 Ky. 808, 27 S.W.2d 416 (1930), Judge Stanley wrote this at pages 419-420:
"The principle of
McDonald v. Fleming, supra, is that the law will not countenance an action for compensation for services which are incidental to an illegal cohabitation. That principle is sound and secure. There can be no justifiable departure from it. . . . It is only where the illicit relations between a man and a woman form all or part of the consideration for a contract that it will not be enforced as a matter of public policy." (Emphasis added.)
In the recent of
Cogler v. Fackler, Ky., 510 S.W.2d 16 (1974), the Court wrote this about contracts involving a consideration of illicit sexual intercourse at page 18:
"A bargain in whole or in par for and in consideration of illicit sexual intercourse or a promise thereof is illegal; but subject to this exception such intercourse between parties to a bargain previously or subsequently formed does not invalidate it. Restatement of the Law of Contracts, § 589 (1932). See also
Croslin v. Scott, 154 Cal.App.2d 767, 316 p.2d 755 (1957).
According to Corbin, it is the rule that: 'A bargain between two persons is not made illegal by the mere fact of an illicit relationship between them, so long as that relationship constitutes no part of the consideration bargained for and no promise in the bargain is conditioned upon it.' Corbin on Contracts, § 1476, at 622 (1962). See also Williston, A Treatise on the Law of Contracts, § 1745 (3d ed. 1972); 17 C. J.S. Contracts § 266 (1963)."
A central point in this matter is that "contracts of an immoral tendency or based upon an immoral consideration, whether or not involving a violation of the criminal law, are invalid. . . ." 17 C.J.S., Contracts, § 265. Further, it is written in 17 C.J.S., Contracts, § 266, p. 1171, that a contract by a father to support his bastard child in consideration of future illicit cohabitation by the mother is illegal and void.
The basic rule that an agreement for future illicit cohabitation is invalid has been adopted by the federal courts. See
McClelland v. Cowden (U.S.C.A. -5, 1949) 175 F.2d 601, 603
CONCLUSION
Based upon the foregoing authorities and the consistent holding of the Kentucky courts, it is our opinion that the proposed contract, involving the consideration of future illicit sexual intercourse, is illegal, and no part of it can be enforced, including the matter of custody of children.
Since the proposed contract would be void and illegal, it would appear that the actual father of such bastard child or children could go into Circuit Court under a petition asking the Court for custody of his illegitimate child or children, provided he can show that he is suited to the trust and that such would be to the best interest of the child or children. See