We have been following a series of paternity cases (here and here and here and here) where courts have rejected claims of lack of consent or knowledge by a parent in forcing child support payments. I just ran over a case that, while now a bit dated, is remarkable. The case involves a Chicago doctor who was forced to pay child support after his girlfriend, without his knowledge, saved sperm from oral sex and arranged to be impregnated with it. The case came to public attention after an appellate court ruled that Dr. Richard O. Phillips could sue Dr. Sharon Irons for emotional distress in the case.
Here are the facts:
During their relationship, the parties discussed the possibility of having children only after they married. Plaintiff informed defendant he did not wish to have children prior to marriage, and intended to use a condom if and when they engaged in sexual intercourse. Defendant understood and agreed. During the entire course of their relationship, the parties engaged in intimate sexual acts three times, with two of those times occurring on the same date. Vaginal penetration never occurred; the parties engaged only in acts of oral sex. Defendant told plaintiff she did not want to have sexual intercourse due to her menses. On or around February 19, 1999, and March 19, 1999, defendant “intentionally engaged in oral sex with [plaintiff] so that she could harvest [his] semen and artificially inseminate herself,” and “did artificially inseminate herself.”
Plaintiff’s complaint alleged further that in May of 1999, defendant confessed to plaintiff that she still was married to her former husband, Dr. Adebowale Adeleye. She told plaintiff she planned to get a divorce, and showed him a “Petition for Dissolution of Marriage,” which was filed on May 20, 1999. In the petition, defendant swore she was not pregnant. The parties’ relationship terminated in May of 1999, upon plaintiff learning defendant was not divorced.
On November 21, 2000, defendant filed a “Petition to Establish Paternity and Other Relief” against plaintiff, claiming she and plaintiff had a sexual relationship eight to ten months before the birth of defendant’s daughter, Serena, on December 1, 1999. DNA tests have confirmed plaintiff is Serena’s biological father.
In the circuit court below, Kathy M. Flanagan ruled that Irons conduct was not so extreme and outrageous to sustain a legal action by Phillips. That court was reversed after the appellate court ruled that Irons “deceitfully engaged in sexual acts, which no reasonable person would expect could result in pregnancy, to use plaintiff’s sperm in an unorthodox, unanticipated manner yielding extreme consequences.”
While ruling that the emotional distress claim could go forward, the court ruled that he could not allege theft because the sperm technically belonged to Dr. Irons. Phillips alleged that Irons committed “calculated, profound personal betrayal” when she used the sperm to produce offspring. He found out about the deception two years after the child was born and tests confirmed that he was the father after paternity tests. He was ordered to pay $800 a month in child support.
What is interesting is that it is intentional infliction of emotional distress as opposed to negligent infliction. To meet that standard, he must show (1) extreme and outrageous conduct; (2) intention to inflict severe emotional distress, or know that there is at least a high probability that it will cause severe emotional distress; and (3) severe emotional distress. The court found:
Under these circumstances, even if defendant intended to accomplish only conception and procreation, she knew there was at least a high probability that her manner of so doing would inflict severe emotional distress on plaintiff. According to plaintiff, defendant was aware of his desire to have children only after marriage. Further, plaintiff believed defendant could not become pregnant, not only due to the nature of the sexual acts, but because he believed she was infertile at the time as a result of her menstrual cycle. Months later, however, defendant informed plaintiff he fathered her child. From these facts, if proved, it may be inferred reasonably that defendant knew manipulating plaintiff into unwittingly conceiving a child out of wedlock would inflict severe emotional distress. Further, contrary to defendant’s assertion, plaintiff is not claiming the act of filing the paternity suit itself caused him severe emotional distress; it was the result of defendant’s actions in their entirety.
The court agreed with Irons that she could not be charged with conversion since “there was no agreement that the original deposit would be returned upon request, or where the transaction did not create a bailment, a claim for conversion cannot be sustained.”
I also found the court’s holding on fraudulent misrepresentation to be interesting. It rejected the claim because ‘[]the tort of fraudulent misrepresentation historically has been limited to cases involving business or financial transactions where plaintiff has suffered a pecuniary harm . . . it is an economic tort under which one may recover only monetary damages. Neurosurgery, 339 Ill. App. 3d at 186. Therefore, plaintiff may not recover on allegations of physical and emotional distress.” However, this fraud did cause financial harm given the paternity award against Phillips.
I also do not understand the basis for child support when the pregnancy was achieved artificially and without his consent or knowledge.
I have not been able to locate the current status of this case after the remand. The last published opinion was Phillips v. Irons, 354 Ill. App. 3d 1164, 2005 Ill. App. LEXIS 1807 (Ill. App. Ct. 1st Dist. 2005)
Jonathan Turley
AY,
Don’t ask,don’t tell, isn’t that from another thread??
rafflaw,
Thats ok I have never been a fan of kiss and tell….I understand….never complain, never explain….or don’t ask….don’t tell….
AY,
Careful….!
rafflaw,
My eyesight is getting as bad as my hearing….at first I thought I read…..yum….
Blouise,
Yuk sums it up pretty well!
Blouise,
I take it that you find this matter hard to swallow….which I was always assured was the bird of love….oh well…it would be hard to just take it and shove it when it happens this way…
Yuk … et al
As Dr. Irons gave Dr. Phillips no consideration in return for the sperm, they were a gift, hence the property of Dr. Irons to do with as she pleased.
However, the gift from Dr. Phillips came with an undisclosed cost, and, for neglecting to fully and accurately inform Dr. Irons of the undisclosed cost of the gift, Dr. Phillips, a professional, through his negligence is fully liable; the remedy for his professional negligence being his paying child support.
And the law works as intended.
Justice accomplished.
AY,
I think calling them selfish is putting it mildly! That was some case that you had. Just one more reason why I avoided family law cases other than adoptions!
ishobo,
thanks for the clarification.
Buddha, I knew someone would say what you said, I was just waiting to see who would go there!! 🙂
I’ve been resisting the urge. Seriously. It hasn’t been easy. I really have considering this was my initial reaction to this story. It wasn’t easy and I was hoping AY would go for the joke, but nooooooo! If you want something done right, you have to do it yourself. However, I can no longer resist, so many apologies in advance. I am a crude, rude and socially unacceptable laughing green man and if the Prof wants to edit out this comment I completely understand.
This story just goes to prove nice girls really do swallow.
Oh yeah.
I went there.
Again, most humble apologies for any offense or emotional distress this joke may have caused. However, it is in the end just a joke. I mean no disrespect for nice girls. Or naughty girls for that matter. Girls are some of the best people I know. And they generally smell good too.
Please feel free to hurl insults as you deem fit.
One lives to be of service.
“I also do not understand the basis for child support when the pregnancy was achieved artificially and without his consent or knowledge.”
—
It is called strict liabiliy in family court, with decades of statutes and case law supporting this view. Deception is irrelevant to the issue of paternity and support. Even raping a minor male does not excuse him from financial obligations. Except for sperm donation, a male is responsible for support when the use of his sperm results in a child. Child support statutes are based on the financial situation of the parents and the needs of the child, not the personal agreements of two people.
‘the sperm technically belonged to Dr. Irons’
wow
kinda makes the issue of consent a little clearer….no?
according to the facts…this man was very careful to lay out the sexual groundrules, declare his intent regarding pregnancy, and did not engage in vaginal intercourse. The SHE however, took great and independant advantageof the situation putting both the partner and the child at great personal loss.
so, this fits my definition of theft and rape…
she’s just creepy and I hope child protective services are keeping a close eye…
Which is why I regard common law marriage as the only valid marriage.
As I understand that Bill Clinton may have semenly tried to demonstrate, when the transfer happened by physical consent of Dr. Phillips and Dr. Irons, they became married by mutual consensual contract.
Which is why common marriages need to be deemed perfectly valid.
Which is why polygamy and polyandry need to be legal!
Did I really write that?
No?
Who did?
Oh. Sorry.
Quick! Exorcism needed!
Evil One, begone from me!
Bye, bye…
Whew! That was close!
Better, now.
I again have control of my fingers doing the typing…
Not again!
Does the above iron out the problem of the thing in the thing at the other end from the usual thing?
Oops.
Better to be a planarian?
rafflaw,
I may be wrong…but I presume that this is more about control than it is about the money…it appears that both for what ever reason are selfish…and in it for only immediate gratification…not thinking about the long term ramifications….
I had a client onetime that was married to a female doctor…they had children…the issue was not about support…but visitation….she did not want my client to have visitation…after 2 years of patience of the judge and some client control the judge ordered the doctor to jail for contempt…90 days…as she was being taken off to jail…the doctor said to the judge you can’t do this…I am a doctor…the judge said…I just did and for her to think about a change of custody for the children as my client was awarded full primary custody…and she should use this time to think of what she can do to promote visitation….
The second part of the order did not stand up because it was not properly in front of the court as he had limited the show cause to visitation…..
blhlls,
Good point on hearing both sides. AY, I am with you and I wonder if he will pay the support no matter what. Time to be a man Doc.
blhlls,
Assume that they had sexual intercourse…was a condom used? If so, why was there the need for the artificial insemination…I think the court struck a balance and placed each on a pari-delicto basis…the suit is for emotional distress, I believe…he is obligated to pay the support….assume that he is successful… in his suit…the question comes down to will be step up to the plate and be a father? Regardless of the outcome of this suit?
It appears from earlier coverage that the mother disputed the father’s account regarding the extent of their relationship and how she became pregnant. Just thought I’d throw that in, as the discussion seems to assume the father’s allegations are true. Of course, this doesn’t affect the legal analysis since the court had to accept them as true in considering the motion to dismiss.
Come on this is the best and worst decision that I have ever seen…what smacks as unfair is the defendant doctors moral character to practice as she has indicated her propensity towards deceitfulness…on the other hand….when to you expect this to happen….usually…maybe I should consult Charlie when he is available….
I think that the court of appeals got this one right and its is unfortunate for the child….the real victim…I hope that the father does take an active and interesting role with his child…
What a lot of folks miss its not just child support that is open for discussion but inheritance….since the child has been ruled the product of the act….
This is just plain assed crazy….
Wow! I had not seen this case either. I am not sure that I agee with the emotional distress claim. What does that say to the child when he or she is old enough to read this nonsense? That is one crazy “couple”. It amazes me that someone would go to those lengths to get pregnant with a specific party. Even doctors can be wacky as hell, I guess.