Ethics And The Broadway Star’s “Accidental” Pregnancy

In July, just four months after the show opened to rave reviews, producers closed the hit Broadway musical, “Shuffle Along, Or The Making of the Musical Sensation of 1921 and All That Followed.” “Shuffle Along,” with 10 Tony nominations this year, had the makings of a long-running bonanza, but producers decided that when its acclaimed star, multiple past Tony Award winner (six!) Audra McDonald, had to leave the cast due to a surprising pregnancy (the actress was 45), it was too risky to continue. As soon as a replacement was named, ticket sales plummeted.

The show, which was capitalized for up to $12 million, had purchased a $14 million insurance policy from Lloyd’s of London to cover any damages arising if McDonald “was unable to perform because of an accident or illness.” Now producers are asking Lloyd’s to pay up, covering losses created by the pre-mature closing of the musical and by the  effects on the production occasioned by other health issues related to McDonald’s pregnancy while she was still performing.  “Since the beginning of previews of the Show, Ms. McDonald was unable to appear in numerous performances of the Show due to circumstances related to illness, a knee injury, and her pregnancy,” a lawsuit says. Her role was a strenuous one, requiring, among other things, a lot of tap-dancing.

Why the lawsuit, you ask? Lloyd’s says that the policy’s terms haven’t been met, arguing that the actress’s pregnancy and the associated medical conditions were neither due to an ‘accident’ nor an ‘illness’ under the policies.” The show’s position, as articulated by a lawyer representing the show, is that”‘Shuffle Along’ bought an insurance policy to cover it in the event that Ms. McDonald was unable to perform, and she was unable to perform.”

I love this story! It has everything—cold-eyed insurance executives, a perhaps manipulative diva, the sanctity of pregnancy, buck-passing, Hail Marys, feminist taboos, and Broadway!

According to the lawsuit, Audra McDonald was contractually  committed to perform 52 weeks in the show’s cast. About four days before opening night, she informed the producers that she was pregnant.  The lawsuit says that “given her age and medical history, the news of her viable pregnancy came as a surprise to her and, consequently, to “Shuffle Along.” So we begin with the question of what constitutes an “accidental” pregnancy. I assume we can all agree that the “illness’ provision doesn’t apply. Having children at advanced ages is something of a rich celebrity fad these days, and most of the time, it is certainly not an accident, since getting pregnant at that age usually requires a special effort.

Did McDonald get pregnant and withhold the information from producers until it was too late to replace her? That would be the rebuttable presumption, if I were judging the case. The timing is very suspicious. If she got pregnant intentionally after signing her performance contract, knowing she was trying to have a baby, then she deliberately misled her producers to have her baby and the marquee too.

I assume that asking an actress if she’s pregnant, trying to get pregnant or likely to do so during the run of the show is prohibited during employment negotiations; nevertheless, it is still unethical for a non-fungible, essential employee to intentionally incapacitate herself from delivering on contractual obligations. If her pregnancy wasn’t an accident, in other words, McDonald placed a Broadway show, a large investment, and many jobs and careers in jeopardy for her own ends.

I also assume that the producers have a duty to mitigate damages. Once they knew McDonald was pregnant, they had to know a reckoning was coming. Especially with a 45 year old expectant mother, an early order from doctors to stop tap-dancing was, or should have been, entirely predictable. Why didn’t they just delay the show’s opening and replace her immediately? Were they afraid of feminists attacking their decision as part of  “war on women”?  Is the lawsuit just a desperate attempt to avoid the consequences of either their star’s double-cross or their own bad gamble? Did they say at some point, “Okay, let’s see if we can get the show established while Audra can still tap, and if it looks like audiences won’t buy tickets without her, we can always make Lloyd’s pay for it.”

This could be attempted insurance fraud. Is there a legal presumption that a pregnancy is volitional? How about a logical presumption? Does the presumption reverse if a 45-year-old woman is the mother? Does privacy figure in this at all? Are the producers counting on Lloyd’s being squeamish about trying to prove in court that Audra had tried to get pregnant? I think that the show has the burden of showing that the terms of the policy were met, which means finding convincing evidence that the pregnancy was an accident.  Good luck with that, although Audra has every  motivation to help them, because if it wasn’t an accident, she intentionally harmed the production.

The producers could sue her next. Would they dare to sue a popular female performer for getting pregnant, though?

I can’t wait to see what happens. Based on what we know, however, Lloyd’s is on the right legal and ethical side.

Pointer and Facts: New York Times

14 thoughts on “Ethics And The Broadway Star’s “Accidental” Pregnancy

  1. I got pregnant accidentally (absolutely accidental because we already had 4 children and weren’t trying to have more) when I was 42, and had the baby when I was 43. So, I know it’s possible. Would 3 more years make that much difference? I doubt it.

  2. The timing seems strange, but the child was born in mid-October 2016, so she would have informed the producers almost as soon as she had known. (October-9=March; March+4=July). At 45, she may very well have assumed this was impossible; but being in presumably good health (as demonstrating to committing to at least a year of performances), it may have been easier than might have been expected, and she might have been actually taken by surprise. The only argument, (which is actually a reasonable argument), is that she had remarried in 2012, and might have wanted a child with her new husband. This is sticky, and kind of icky to think too hard about..

  3. Accidental middle-age pregnancies were used a long time ago to comedic and heartwarming effect in movies such as “Never Too Late,” with Maureen O’Sullivan and Paul Ford. This movie was successful in part because it portrayed a situation that was well known at that time. Birth control? What’s that. When I got married at the age of 45, birth control wasn’t even on my radar because I figured it was highly unlikely that I would get pregnant at that age, which turned out, luckily, to be true. (Whew!) But it might have turned out differently.

    Is there any evidence to show that Audra was trying to get pregnant? If not, this might well have been a true accidental pregnancy. And no one had better criticize her for not getting an abortion so that she could fulfill her contractual professional agreements.

  4. Just to go there…

    I thought that abortions were the pinnacle of the feminist experience? We are told how proud women should be, and everyone should try it at least once…

    I would not have been surprised to see this woman encouraged to abort.

  5. I would think this is not the first time a theater company negotiates an insurance policy for a female actor.
    So, what is the standard procedure regarding pregnancy related performance problems?

  6. How about this line of reasoning.

    The fact that that Mrs. McDonald is pregnant, accidental or not is not that relevant. Being pregnant is a natural condition, not a disease.

    However, the fact that Mrs. McDonald can’t perform because of the specific circumstances of this pregnancy is an accidental (unintentionally, unexpectedly) situation.

  7. My wife’s mother had been told by several doctors that she could not bear a child. Obviously, that turned out not to be the case, which surprised the heck out of her.

    So here’s another hypothetical: What if McDonald had been told by her doctors that she was unable to bear a child? Might not a surprise pregnancy under those circumstances qualify as something a lot like a medical accident?

  8. This is fascinating to me as an ex-insurance lawyer, feminist, and amateur theater gal.

    First, everyone has to understand that pregnancy is covered by insurance — all the time. Every employed woman has to first exhaust her company’s temporary disability insurance before looking to other leave such as vacation, unpaid leave, etc. So, pregnancy — or complications from pregnancy — is considered a disability generally to the extent in prevents a woman from doing her job.

    But the type of insurance involved here is not disability insurance. And it gets a little murkier because insurance disputes are governed under state law, so the laws differ state to state. In general, however, an accident is typically defined as something “unexpected and unintended.” I wonder if Lloyds is going to argue that every act of unprotected sex by a 45 year-old woman was “expected and intended?” And what if she was using protection? That argument goes out the window pretty quickly.

    The bigger problem is the “illness” piece. Pregnancy itself is not an illness, but it is a health condition which can be considered an illness depending on the risk factors involved. A 45 year-old woman’s pregnancy already puts herself into the highest of high risk categories — singing, dancing, and performing long hours would be a no-no by many doctors because it would increase the risk of miscarriage dramatically. So, if she cannot perform her duties under her job because of a high risk pregnancy, then yes, I think many courts would find that this is an “illness.” This argument would be bolstered by the fact that high risk pregnancies, need for bedrest, etc. already is treated as an illness in every state for purposes of disability coverage.

    (As an aside, I was put on bed rest for my first pregnancy because I developed preeclampsia, a potentially very dangerous condition for the mother and the fetus. Luckily, I was able to do my job at the time in bed with a laptop on top of my huge stomach and my cellphone next to me. If I were starring in a musical however, the play definitely would not have gone on. So, while my pregnancy might not have been an illness, the preeclampsia was an illness caused by the pregnancy.)

    As to Hillyard, whether or not she knew she was pregnant is pretty immaterial to the lawsuit, although it might make her a bad person if she did know and said nothing given the nature of the entertainment industry. The general rule is that a woman doesn’t tell her employer until 3 months have gone by because of the risk of miscarriage. The only thing worse then telling your employer that you’re pregnant is telling your employer that you lost a baby. It is quite possible that Hillyard thought that the pregnancy wouldn’t be viable, it also is possible that she thought she could go on performing until a doctor informed her otherwise. I would be willing to give her the benefit of the doubt though — she might not have known she was pregnant for several months, especially since menstrual cycles are erratic at her age and intense physical activity also affects menstruation.

  9. The article left out the very important fact that Audra Mcdonald was scheduled to leave the show for 90 days starting June 21st to perform in London to reprise her role as Billie Holiday in Lady Day at Emerson’s Bar & Grill for a nine-week engagement at London’s Wyndham’s Theatre. Previews were to begin on June 25, 2016 and the production was to run through September 3, 2016; opening night was scheduled for July 5, 2016.

    The show, by excepting this already reported hiatus, admitted publicly its belief that it can function without the star. This is a very critical detail left out of an otherwise good analysis. The producers made a decision to accept her London engagement and announce it to the public and their investors actually before she was pregnant.

    The producers had several red flags flapping in their vision that Audra for one reason or then another would miss a.substantial part of the show’s early run and made the decision numerous times to not postpone the show. And by doing so frankly told all and their investors that the show could weather her absense.

    The producers chose to go forward for their own reasons knowing that she would be gone within weeks of the Tony Awards. They expected her to win her seventh one. Their choice to “damning the torpedoes…” for a host of reasons only known to them is why this show got blown up.

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