A DISCUSSION OF LAW AND JOURNALISM

Man Receives Oral Sex; Must Pay Child Support?!

http://3.bp.blogspot.com/_Ymg9VAvJo3E/SZxoSSlf8hI/AAAAAAAAHE4/0T3eEVpqBLE/s1600-h/In-Vitro-Fertilization.jpg

By Sarah Berent

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.”

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.”

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 contents”.

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 outrageous”; 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 outrageous”, 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.”

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.

Comments

39 Comments »

39 Responses

  1. Billy says:

    ARE YOU KIDDING ME? THIS IS THE UNITED STATES OF AMERICA? IT SOUNDS LIKE SOMETHING OUT OF GEORGE ORWELL!!!!

  2. mjay says:

    Male children are even liable for child support to their female molesters if they should become pregnant as a result of their assault and then go on welfare as a result of their crime.

    http://www.supportguidelines.com/articles/art199903.html

    Welcome to American family court – a prison for men and boys.

  3. ActaNonVerba says:

    He should get custody because of her obvious lack of character; she should go to prison for the event. After, she should pay him child support. Disgusting woman.

  4. anon says:

    Feminists complain about misogyny. What is this:

    “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.”

    But a clear statement of institutionalized misandry?

  5. Anonymouse says:

    “But a clear statement of institutionalized misandry?”

    Lots of women throughout history have had children to raise that they did not want to have.
    The courts are quite right not to consider whether one parent acted properly or improperly in relation to the conception.
    Once the child is here, it has parents and those parents have responsibility.
    I guess parents who wanted the responsibility are more ready for it and accepting of it, but regardless a child of yours remains your responsibility.

  6. LanceSmith says:

    Interesting…so a woman has choices: abortion, adoption, abandonment, and – of course – keeping the child. And a man has responsibilities: whatever the mother wants.

    How that isn’t institutionalized misandry and sexism, I’ll never know or accept. Introduce the concept of a paper abortion – where the man may disavow all rights to and responsibilities for a child, and then perhaps equality will be gained. Until then, it is certainly a woman’s world.

    (and before anyone tries to use past perceived wrongs women have supposedly endured in an attempt to rationalize this sort of sexism, let’s remember that the goal of an egalitarian society should be equality – not revenge).

  7. Jim says:

    “Lots of women throughout history have had children to raise that they did not want to have.”

    And how is that not misogyny? And how is this any different? Or is it suddenly acceptable to you when the victim has the wrong plumbing?

    “The courts are quite right not to consider whether one parent acted properly or improperly in relation to the conception. Once the child is here, it has parents and those parents have responsibility.”

    If the courts care half as much about this child as you claim, they have no excuse to leave it in the custody of that “mother”.

  8. daveinga says:

    she molests young boy – boy pays, gov pays

    she lies to hubby about paternity, has affair, not his kid(s) – he pays

    she steals sperm – he pays

    she violates oath of marriage – he pays

    she violates divorce agreement and denies visitation – he better pay

    and it goes on and on. i’m just amazed courts still claim to be impartial.
    a blind monkey could spot this scam.

  9. Isome says:

    He pay, he pays, he pays. That seems to be the primary complaint. The issue being overlooked is that if he doesn’t pay then the child (theoretically) is the one penalized.

    IMO, the lesson should be for men to be more discerning than ever when it comes to their sexual partners, even if the sexual contact does not include intercourse. If a man chooses to have sex with a woman simply because she is willing and he finds her desirable, then he may wind up with a child he did not want and he’ll be on the hook for child support. Es la ley!

  10. D says:

    It may be wrong to say this but he should just give up his parental rights as a father. We as women have more than one option if we decide we do not want a child. Men don’t have many options at all.

  11. Dad says:

    The other obvious, not adressed action is that she felt scorned and it was her way to get revenge against this man and also against the situation she found herself in. I can only imagine her explanation of the events. It may of been a way at first to save her reputation with her family and collegues. It then took a turn to national interest, not what she was expecting. One way to prevent this from happening in the future is for a credible organization to put together legislation to define the lines of responsibility. And at the same time this paticular case is one in a million. It is sad, and I feel sad for this lady, she truely has a mental problem that she is going to be pass onto the child

  12. Dana says:

    If you can’t take care of a child do not have one. This world is fucked with too many people anyways. And its the dumb ass people having tons of kids. We are just gonna get dumber and dumber. If you want a baby fucking adopt. Don’t bring other people down for your own self pity. Good god. Some people just need to die

  13. Sky says:

    On a side note that child will be called a bastard because she never told him…

  14. anon says:

    What is the principle that says the child needs two parents?

    Can you expand that then, and explain how that implies we should not let single parents adopt? And in your principle that the child is better off having two parents, can you move from there to the child being better off with heterosexual parents, since of course the child is not a result of a union of homosexual intercourse?

    Perhaps since the child is better off with two parents, we should outlaw divorce.

    And if you’re going to knock out the “obvious” requirement that a child have two biological parents, than why isn’t that child better off with three parents, four, or six?

  15. K says:

    I hate when this shit happens, because the child suffers. It is unfortunate that this happens. A woman of in that profession. If he wants the child file for full custody. How are you going to explained to your child, because in the future someone will. It is his child and by law once DNA is established he has to support it. Please don’t show no animosity towards the child, it is not her fault.

  16. Critic says:

    This is why I am gay…disgusting women; i mean, what the hell..? She held the semen in her mouth and then impregnated herself with it? I just don’t get why no one shut her up in an institution.

  17. Dom says:

    There are even worse cases out there, how about non-biological fathers? Why is it that just because a woman takes you to court it paternity doesn’t really even matter?

  18. [...] Man Receives Oral Sex; Ordered to Pay Child Support?! [...]

  19. If this isn’t the whackiest thing I’ve ever read I’ll eat my hat!

  20. [...] first is a cautionary tale indeed!  (spolier alert: this is icky!!) I had to check the science out and apparently it is [...]

  21. Ange says:

    Critic I’m pretty sure your being gay has nothing to do with the fact that some women can be big meanies don’t you think?

  22. josh says:

    The laws for child custody and child support drastically need reform. People and courts love to use the word “Responsibility” all to often, how about “Responsibility” for her actions? She wanted the child, why doesn’t she accept full responsibility for the child? More importantly, why does a court of law not impose this? If this man wishes to be a part of this child’s life,great and if he doesn’t he should be allowed to sighn it away. Sperm to an egg, does not a father make, what a child really needs are parent\s that love them, not an unwilling participant or a forced paycheck.

  23. Even Keel says:

    this is disgusting.

  24. Bertha says:

    No one forced the sperm out of the man at gunpoint. The woman had an egg, and the man made his sperm available, voluntarily. It was a case of deception that he didn’t know her intentions, but the fact that he is now financially responsible for a child is not because the court is biased against men. Just wait until women figure out how to get a mans sperm out of his body against his will. Now THAT will make for some interesting cases…

  25. Joe says:

    Here is the bigger picture. The courts rule in favor of the child with good reason. The only problem is women abuse this. However, I believe that in this instance she should do some major hours of community service for this. Some women will abuse this privilege. Impregnate themselves from football players so they can get a strong income but then not give the child the income for it. If I was his kid, I would make sure that if he doesn’t get all the money from his mom, to sew for all the money she spent that was supposed to go to you. That way it pays for college as well as prevents abuse of this system.

  26. ezwelchman says:

    Seriously, anyone justifying this woman’s actions, clearly has some serious mental issues themselves.

    This is fucked up.

  27. Chris says:

    Wow Bertha… That’s just… no…
    Yes, he was not forced to ejaculate at gunpoint; He got a blowjob. “Making sperm available voluntarily” is arguable- why is it “available voluntarily”?… it seems to me that you don’t know that ejaculating actually FEELS good. This was intended to be a pleasurable act, not an act of conception. If we had different biological makeups, and it were now the man causing her to orgasm and release a multitude of eggs, would the woman be held responsible since she made her eggs available using your logic? (This assumes that the man kept the eggs viable in his mouth and impregnated himself without her knowledge- remember, we’ve got different biological makeups in this situation- and don’t even think it unreasonable for birth to happen out a penis, hyenas do that all the time.) Do you consider spooning an act of enjoyment? a Male would likely consider a blowjob an act of enjoyment, not conception. There’s foul play here, and the responsibility is not the man’s, it’s hers for deciding to impregnate herself. If she didn’t want to pay for it she should not have had it! ESPECIALLY when financial responsibility is piled onto the one who didn’t even want the child in the first place!

  28. Med_stu says:

    OK, wow. Everyone needs to calm down. For one thing this is not a common occurrence, it is mercifully rare. Also, it happens equally to men and women. Generally when it’s men doing it it tends to be abusive partners trying to make their wife/girlfriend more dependent on them. Techniques include putting holes in condoms, replacing birth control pills with sugar pills. In contrast with women it tends to be random strangers or people sleeping with someone and jacking their sperm.

    There are also many laws that suck. Yes, it’s appalling that a boy could be abused by a woman and then be forced to financially support a child. It’s also appalling that a male rapist can claim parental rights of a child born from rape.

    Either way these things are abominations. But when it boils right down to it, there is now a child on the planet, who did nothing, and I don’t really think it would be fair for the government to not make sure the child has everything it needs. I don’t think the answer lies in changing the laws about child support. I think the answer lies in treating this sort of offence as a CRIME, and allow people to be prosecuted as such. I know it would be difficult to prove, but so is rape. You still have to have the law, it would dissuade some people.

    I also think that some of the outrage about this is that men are having to deal with something that they probably haven’t had to deal with before. Women have been being told since god knows when, that there is a risk of being raped. Not everyone is a rapist, but some people are, and you need to be careful. They’re told not to go out alone at night, to always let someone know where they are, not to meet new people at their houses, always bring their own car, etc. This advice isn’t considered victim blaming, it’s considered common sense. Women have been taking precautions about all manner of things when dealing with the opposite sex so it seems normal. If I go home with someone I need to take precautions about not getting pregnant (this means taking the pill EVEN if they say they ‘ll use a condom), and being raped (this means knowing who the person is, making sure someone knows where I am and what the guy looks like). If a guy goes home with someone they now have to worry about someone stealing their sperm and having a baby. This means you guys need to take precautions about what happens to your sperm. If this means taking it home with you so you feel safe, then do that.

    The way the world works, no matter how many laws we change we’ll never stop there being SOME people who’ll commit sexual or reproductive abuse, of both genders. Even if you get them to remove your obligation to pay, someone has produced a child that is YOURS, out there in the world. No law can change that, and it’s a big deal. I guess what I’m saying is, we can work on changing society, but in the meantime all the normal people need to take precautions against all the crazies. Women just have more practice so it seems more normal to us.

  29. hubski says:

    http://hubski.com:8080/pub?id=46501

    “…Crying emotional distress and stolen property seems like the silliest possible approach – “distress” is subjective and “property” clearly runs afoul of all sorts of law associated with discarded material. I wouldn’t have gone with conversion…”

  30. nosir says:

    Uhh, she’s an internist. She CLEARLY makes enough money to support that baby herself. Are we just going to overlook that? Don’t act like this baby is some welfare child that will have a terrible life.

  31. swaran singh says:

    Too much sperm is going out.

  32. [...] first is a cautionary tale indeed!  (spolier alert: this is icky!!) I had to check the science out and apparently it is [...]

  33. […] between lawyers, the media, and the public. Recent blog entries have included the case of a man ordered to pay child support for a daughter who was conceived via an ex-girlfriend’s act of deception, and Washington […]

  34. cros99 says:

    Just remember….underneath all that sexy sweetness….
    All Women are Evil.

  35. […] More» Man Receives Oral Sex; Must Pay Child Support?! – Legal As She Is Spoke. […]

  36. Simpl want to say yourr article is as amazing. The clarity in
    your post is just cool and i can assume you’re aan expert on
    this subject. Well with your permission allow me to grab your feed to
    keep up to date with forthcoming post. Thanks a million and please carry on the
    gratifying work.

  37. Mika Hakkinen says:

    You know what they say: never get with a woman, never let one in your house, never let one go through your garbage.

Leave a Reply


+ nine = 13