So, a man sued his ex-girlfriend for fraud and emotional distress after she secured a court order demanding he pay child support for their two year-old daughter. The reason? This woman saved his semen after performing oral sex and secretly impregnated herself. No, this is not a new plotline of absurd television show One Tree Hill but actual events that formed the basis of a 2005 legal battle in Illinois.
Although this case is six years old and garnered some media attention at the time, we recently came across it on Professor Jonathan Turley’s blog and couldn’t resist an opportunity to discuss it.
But before we get to the legal issues presented in this case, namely how a man can be ordered to support a child when his sperm was used without his knowledge, the soap opera-esque facts surrounding this situation deserve to be explained in greater detail. Trust us.
It all began when Dr. Sharon Irons (an internist) and Dr. Richard Phillips (a family practitioner) began dating in January 1999. Dr. Irons led Dr. Phillips to believe she was divorced and within a few months, they became engaged. According to Dr. Phillips, the two discussed the possibility of having children and he made clear his intentions: that he did not want children until after they were married and any pre-marital sex would require the use of condoms. Throughout the course of their relationship, they engaged in only three instances of oral sex: they never went “all the way.â€Â
On one of these intimate occasions, Dr. Irons did something rather remarkable: After fellating Dr. Phillips, she held his semen in her mouth (where it was suitable to sustain viability) and then inseminated herself with it. She did not inform Dr. Phillips of her actions.
Dr. Irons also never informed her boyfriend that she was, in fact, still married. Five months into their relationship, she confessed to Dr. Phillips that she was not divorced and he decided to end their relationship.
Fast-forward to November 2000, when, surprise! Dr. Irons slapped her surely stunned ex-boyfriend with court papers to establish paternity and child support for “their†daughter.
To quote Justice Scalia in 1989’s Michael H. majority opinion (a paternity case also dealing with convoluted family relations, although not as entertaining as here), “The facts of the case are, we must hope, extraordinary.â€Â
Extraordinary they are, indeed. And while Dr. Irons’ act of stashing semen away definitely made for attention-grabbing headlines, the media focused more on the sexy- slash-crazy angle and less on the actual law. We decided to explore the legal claims advanced by the parties and the reasoning behind Dr. Phillips seemingly unjust obligation to support a child whose existence was beyond the realm of expectation.
In his suit, Dr. Phillips alleged the unauthorized use of his semen constituted actionable claims of fraudulent misconception, conversion and intentional infliction of emotional distress. A lower court dismissed these grievances, and he appealed.
The Appellate Court of Illinois found that a fraudulent misconception claim was only available for “economic†wrongs, and so dismissed this claim. (Dr. Phillips was suing for physical and emotional harms he alleged that he’d suffered as a result of Dr. Irons’ actions).
The court next turned its attention to the conversion claim. Conversion is “an unauthorized act that deprives a person of his property permanently or for an indefinite period of time.†The arguments on both sides of the conversion claim are worth noting.
Dr. Phillips argued that his ex-fiancé took his property, his sperm, without his permission to conceive a child. Dr. Irons countered by asserting the sperm was a gift: Dr. Phillips delivered it to her with the intention that she keep it because if he really wanted to retain his semen, he would have put on a condom and “kept its contentsâ€Â.
The court agreed with Dr. Irons: Dr. Phillips cannot claim he was deprived of his property because he did not intend that the semen be returned.
Finally, the court considered Dr. Phillips’ claim of intentional infliction of emotional distress (IIED). To bring an IIED claim, the plaintiff must prove that 1) the conduct was “truly extreme and outrageousâ€Â; 2) the defendant had to intend, or be aware that, her conduct would cause severe emotional distress; and 3) the conduct did actually cause severe emotional distress.
The court stated that Dr. Irons’ conduct in deceitfully engaging in oral sex to procure the sperm necessary to impregnate herself would, according to any reasonable person, be considered “extreme and outrageous†conduct (Ed. Note: well, duh). Considering the nature of Dr. Irons’ actions and Dr. Phillips’ clear expression of not wanting a child out of wedlock, the second element of IIED was met. For the actual distress, Dr. Phillips claimed a whole slew of anguish including nausea, loss of appetite, interference with his profession, insomnia and more, which was enough to keep the case alive.
The final decision or current status of the case is unavailable which means that the case is still being litigated or the parties settled.
Regardless, what confused us most about the case was that the child support obligation on behalf of Dr. Phillips was not contested. How could a father be forced to pay child support if the conception of the child was beyond (way, way beyond) a reasonable person’s expectation? The court itself stated that the mother’s actions were “extreme and outrageousâ€Â, after all.
The answer? Public policy. In a note for the Drake University Law Review, A Man’s Right to Choose: Searching for Remedies in the Face of Unplanned Fatherhood, author Adrienne D. Gross explained the general policy in law of looking out for a child’s best interest in both child support and paternity statutes. Undisputedly, a child’s best interest is to have the financial support of both biological parents, regardless of their marital status, and according to Ms. Gross, “the child should not suffer from a parent’s indiscretion concerning the events leading to conception.â€Â
Basically, if you father a child and the paternity is established, you are on the hook for child support payments. (A father can sue for IIED, if the mother’s actions in the conception meet the requisite level of crazy, but there is no guarantee he will win.)
A 1983 paternity case sheds some light on how New York courts balance the best interest of the child with a father’s dealing with an unwanted pregnancy and child support obligations in unorthodox situations. The father, established by paternity tests, had been assured that the mother was on birth control. He alleged fraudulent misrepresentation and argued that he should not be responsible for child support. The court disagreed, and held that fraud and deceit have no bearing on determining child support obligations.
The court explained that the “primary purpose†of New York’s paternity statutes “is to ensure that adequate provision will be made for the child’s needs†and does not allow for the “consideration of the ‘fault’ or wrongful conduct of one of the parents in causing the child’s conception.†If the father really did not want to have a child, despite the woman’s assurance that she was on birth control, he should have used a condom during sex.
Decisions like this seem to signal, rather unfairly, we think, that a man can be held legally and financially responsible for any unilateral actions his partner takes to conceive a child, no matter how absurd or unforeseeable those actions are.
And Dr. Phillips seems to have been treated particularly unfairly. He didn’t even have intercourse which is the one and only act that, outside of fertility clinics, can foster a reasonable expectation of conceiving a child. In fact, without intercourse (and outside of fertility clinics) creating a life is, simply, impossible. There was no way, short of checking what his partner did with his semen after oral sex (do you know anyone who does that?) that he could have known that he could possibly father a child.
But the courts don’t care about how the egg was actually fertilized: because at the end of the day, there’s a child now involved. And the concern, from a legal perspective, is whether or not the child will be adequately cared for, regardless of its conception.
Lesson to be learned: If you don’t want any babies, use protection – and make sure your partner isn’t hiding a test tube under the pillow.
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Originally published on Legal As She Is Spoke
Sarah Berent is a contributor to Legal As She Is Spoke, an online project of the Program in Law and Journalism at New York Law School.
