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
New York Law School’s legal reporting blog LASIS analzyes the legal issues in this case and whether this man could actually be on the hook for child support – http://www.lasisblog.com/2011/02/26/man-receives-oral-sex-ordered-to-pay-child-support/
What I don’t understand is why the woman is not being tried for rape. If the man tricked the woman into wearing a condom and then secretly took it off to impregnate her, wouldn’t there be charges? What if she said to stop intercourse but he continued for 5-10 seconds afterwards? It seems to me that she continued sexual intercourse after he had withdrawn his consent and in a manner to which he did not agree.
Also, what is the legal definition of “best interests of the child”? How does this policy fare under the 14th Amendment? Shouldn’t the court have to prove that the child is better off as a result of its decisions?
Kay,
Yes…..
Child support is about supporting the CHILD, and he consented to sex (albeit that it was paid for).
There’s no law anywhere that says if you pay for sex you don’t have to support the child that came out of it.
Have prostitutes won child support?
I also do not understand the basis for child support when the pregnancy was achieved artificially and without his consent or knowledge.
Best interests of the child, not the parents.
A similar fact pattern I learned 25 years ago in law school with Frank Serpico, who was duped (“I’m on the pill”) into impregnating a woman. He fought against paying child support and lost.
@Isabel Darcy
It is true that family courts bend over backwards to find someone liable for child support “in the best interests of the child,” but I believe this is taking it beyond the limits.
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It has been this way for decades. Except for state sanctioned severing of parental rights (such as anonymous sperm donation), the designated father is financially obligated to pay child support. It does not matter if the father is a 12 year old boy raped by his teacher; a paitent in a hospital where a nurse offers oral stimulation and collects the sperm for personal use; or a man passed out at a party that has his penis made erect by manual stimulation, then inserted into a woman’s vagina. All are real cases where the father was forced to pay for support.
States generally assign parental rights if a man openly acknowledges an out of wedlock child as his and supports the child; the biological status is irrelevant if he later decides to end support.
This is not about men’s rights or feminism, it is about a child. A man should never put himiself in a position where his sperm could be used without his knowledge. The best defense is a vasectomy.
Rafflaw, I assumed that the facts quoted by the Professor were the court’s finding in rendering the decision. If those are the findings of fact of the court then I am disturbed that an act of fraud can be used to assign responsibility for the product of that fraud to the victim of the fraud.
It might be in society’s interest to have an economic expense resulting from the fraud (the child) supported by enough relevant parties to insure that none of the burden falls on the state. It may likewise be in the best interest of the child. Even so, I’m not one to put the need of the child above the simple justice of the victim to not be made to pay for their victimization as if they were a willing participant.
That is getting very close to making victims of rape pay for their victimization by prohibiting abortion and the right to give up the child for adoption.
@ Rafflaw
I agree that there is probably more to this story than the facts presented in this motion to dismiss, where, as you know, they have to assume the facts alleged are true. Who knows what the real story is.
It would be interesting to see how the family court found this man to be the “father” of this child. The only way a man could protect himself from involuntary “fatherhood” and payment of $800 per month child support would be to use a condom even in oral sex and make sure he took the condom and contents with him. Ridiculous.
It is true that family courts bend over backwards to find someone liable for child support “in the best interests of the child,” but I believe this is taking it beyond the limits.
Natasha,
You are making an assumption that the biological father is telling the truth and the mother is not. What are you basing your claim on? Usually in these situations, it takes two to tango. And doesn’t the child get punished no matter who is tellng the truth? By the way, I am not available and I have been happily married for over 36 years. Better luck next time.
@rafflaw You do not see the emotional distres??!! YOU DO NOT SEE THE EMOTIONAL DISTRESS?! Let me know if you’re avaliable so I can lie to you and make you a father against your will, so I can ask for child support will impact you financilly for years to come, being the monthly reminder that I manipulated you and cause you to bring a human being to this world against your wishes. It seems like an quick way to make a buck.
What Woost said.
Lotta,
We don’t know as a fact that what the Man said is accurate. The woman disputes his claim of no sexual intercourse so he may just be a liar or she may be the liar. If the woman is telling the truth, the male isn’t being punished. I understand your point about deception and if it is true than maybe the deceived party should not be “punished” as you say. However, when the deception causes a child to be born wouldn’t it be the child who is being punished if the law does not mandate some responsibility from both biological parents?
The law that makes the plaintiff responsible for the child in this case, and perhaps any case where deception is used, leaves me with mixed feelings. Once this legal view becomes enforced in even the most egregious circumstances, as in this case, isn’t it a law that mandates males always use a birth control device?
I don’t have a problem with that wisdom when used voluntarily and would insist on it in fact, but to say, use a condom or don’t have sex because the law won’t protect you from deception that has a long-term, life altering and expensive result is not IMO a good public policy. I see SOME equivalency, SOME similarity, with the attempt to redefine rape for the purpose of Federal payment for women’s healthcare. Are not both sex’s being ‘punished’ for the consequences of acts which were not a matter of consent?
[youtube=http://www.youtube.com/watch?v=5RSQ1JSwP24&w=480&h=390]
Buddha,
I am sorry….I missed that one….well it did come later and is still dribble….not to be wasted….is it the bird of true happiness or love that is named the swallow…..
Just call me Leon Redbone….
Anonymously Yours
1, February 1, 2011 at 5:01 pm
rafflaw,
My eyesight is getting as bad as my hearing….at first I thought I read…..yum….
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🙂
rafflaw,
You are correct…
e-bob,
Do you have her number?
From the urban dictionary:
“Schemer
any person, specifically a women, who hatch diabolical schemes in order to advance their personal interest, aka “get” and “play games” with multiple men.