The following article is reprinted from Volume 11, No. 1 of Divorce Litigation, a publication of National Legal Research Group, Charlottesville, Virginia. copyright © 1999 National Legal Research Group and Laura Wish Morgan. All rights reserved.
IT'S TEN O'CLOCK: DO YOU KNOW WHERE YOUR SPERM ARE?
TOWARD A STRICT LIABILITY THEORY OF PARENTAGE
Laura Wish Morgan
I. INTRODUCTION: THE STORY
Peter Wallis and Kellie Smith worked together in Albuquerque, New Mexico at a local hospital. After Ms. Smith and Mr. Wallis began living together, Ms. Smith discovered she was pregnant. Mr. Wallis offered to marry Ms. Smith, but Ms. Smith declined on the basis that she believed Mr. Wallis didn't love her. Mr. Wallis then evicted Ms. Smith from their apartment, and Ms. Smith went to live with her parents.
After the baby was born, Mr. Wallis sued Ms. Smith for breach of contract (for failing to take the pill when she promised to use birth control), fraud (for supposedly lying about taking the pill; Ms. Smith states the pregnancy was accidental), and conversion, for "intentionally acquiring and misusing" his genetic material, to wit, his sperm, for the purpose of becoming pregnant without Mr. Smith's consent. Mr. Wallis claimed that even though Ms. Smith had not sued Mr. Wallis for child support (she sued only for a declaration of paternity), he was nonetheless damaged because he had become a father without his consent and had to see his daughter born into a "broken home," a situation that "broke his heart," according to one interview. Ms. Smith claimed that the sperm should be considered a gift, because Mr. Wallis "surrendered any right of possession to his semen when he transferred it during voluntary sexual intercourse."
This story gathered much attention. In fact, the story was picked up by the wire services and published in every major news outlet in the United States and Canada, causing pundits and commentators to wring their hands, beat their breasts, and rend their garments. Sociologist Barbara Katz Rothman, quoted in an article by Barbara Vobejda for the Washington Post Wire Service and published in dozens of papers on November 23, 1998, said that Mr. Wallis's lawsuit is symptomatic of a culture that treats sperm as a commodity by banking, donating, and selling it. Others in various op-ed pages opined that the story is symptomatic of a culture that condones sex out of marriage and views a woman's decision to have a baby out of wedlock as normal; the man's tort suit was the only way to prevent women from having children out of wedlock. In Slate (the on-line magazine), Scott Shuger stated, "A woman's promise to take charge of birth control and then not doing so remains the only form of monetary fraud ... that is not only not punished, but is in fact regularly rewarded." In Newsday, Sheryl McCarthy said that if Wallis is telling the truth, he should get a child-support reduction: "A deal ... is a deal," he said. Taking the other side, Katha Pollitt, writing in the December 28 issue of The Nation, said, "If this is fraud, then should we call a man's insincere promise to 'put it in for just a minute' assault? ... How far would a woman get in court if she charged theft of womb and demanded financial compensation [for an unwanted pregnancy]?"
Despite the ink generated, the "story" is not a story at all. It broke no new legal ground. It does, however, provide a good starting point for a discussion on the liability of fathers for child support when they do not intend to become fathers.
II. "YES, I LIED. NOW PAY YOUR CHILD SUPPORT."
The story of Peter Wallis and Kellie Smith is just another in a long line of cases where the father of a child has claimed he is not liable for child support and/or that he is entitled to tort damages because of the mother's misrepresentations as to birth control and or/fertility. A woman's fraudulent misrepresentation regarding the use of birth control or the ability to become pregnant, however, has never shielded the father from child support liability.
A. The Fourteenth Amendment's Right to Privacy
In some these cases, the man has claimed that the woman's fraudulent misrepresentations regarding contraception and/or fertility violated his right to privacy and his right to procreative choice guaranteed by the 14th Amendment to the United States Constitution, as enunciated in Griswold v. Connecticut, 381 U.S. 479 (1965) (guaranteeing the right to privacy in matters of family planning) and Planned Parenthood v. Casey, 505 U.S. 833 (1992) (the Constitution places limits on a state's right to interfere with a person's most basic decisions about family and parenthood). Consequently, the man has argued, he should not have to pay child support for a child he had no choice in bringing into the world.
The courts have uniformly held that those very same rights guaranteed in Griswold v. Connecticut and its progeny prevent the court from interfering with and/or enforcing the private conversations and agreements concerning birth control between the parties. In one of the first cases to discuss the issue, Stephen K. v. Roni L., 105 Cal. App. 3d 640, 164 Cal. Rptr. 2d 618 (1980), the court held that the father's argument that he should not have to pay child support because his partner lied about contraception was nothing more than a request for court supervision of the promises made between the parties in the bedroom concerning their private sexual conduct. The court further opined that since no method of birth control is 100% effective, if the man had wished that his conduct not result in pregnancy, he could have taken precautionary measures regarding birth control regardless of the representations made to him. In essence, the constitutionally protected right to privacy includes the right of an individual to be free from unwarranted governmental interference into matters so fundamentally affecting a person as the decision whether to bear or beget a child, but it does not extend to the right to avoid child support obligations once a child has resulted.
105 Cal. App. 3d at 644-645, 164 Cal. Rptr. at 620.
105 Cal. App. 3d at 643, 164 Cal. Rptr. at 620. Accord Beard v. Skipper, 182 Mich. App. 352, 451 N.W.2d 614 (1990); L. Pamela P. v. Frank S., 59 N.Y.2d 1, 462 N.Y.S.2d 819 (1983); M. v. G., 114 Misc. 2d 282, 451 N.Y.S.2d 607 (1982); Sorrel v. Henson, No. 02A01-9609-JV-00212 (Tenn. Ct. App. 12/19/98) (1998.TN.42268); Linda D. v. Fritz C., 38 Wash. App. 288, 687 P.2d 223 (1984).
B. The Fourteenth Amendment and Equal Protection
In addition to the constitutional concerns voiced by these courts that recognition of a tort or a defense to child support based on the failure to use birth control would plunge the court into a zone of intimate personal relations that it should not enter, two of these courts held that to allow a father to deny responsibility for a child born out of wedlock as a result of the mother's misrepresentations as to fertility or contraception would create a new and inferior category of children based on the circumstances of their conception. M. v. G., 114 Misc. 2d 282, 451 N.Y.S.2d 607 (1982); Linda D. v. Fritz C., 38 Wash. App. 288, 687 P.2d 223 (1984). See also People in Interest of B., 651 P.2d 1213 (Colo. 1982) (relying on Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), which held that a spouse compel the other spouse to have an abortion, the court rejected a man's 14th Amendment claim that his right not to procreate was violated by the woman's decision not to have an abortion); Harris v. State, 356 So. 2d 623 (Ala. 1978); L. v. C., 601 N.W.2d 475 (Tex. Ct. App. 1980); Dorsey v. English, 283 Md. 522, 390 A.2d 1133 (1978); Troppi v. Scarf, 31 Mich. App. 240, 187 N.W.2d 511 (1971); Hur v. Virginia Department of Social Services, 13 Va. App. 54, 409 S.E.2d 454 (1991).
C. Tort Liability, If Any, Is Irrelevant to Child Support
In these same cases discussed thus far, as well as in other cases, the father has claimed that the damages arising from the tort of fraud and misrepresentation offset the child support due. The courts have universally held that the father's allegations that the mother had deceived him were totally irrelevant to the issues of paternity and support. Child support statutes are based on the financial situation of the parents and the needs of the child, not the personal agreements concerning contraception between the parties. Erwin L.D. v. Myla Jean L., 41 Ark. App. 16, 847 S.W.2d 45 (1993); Beard v. Skipper, 182 Mich. App. 352, 451 N.W.2d 614 (1990); Faske v. Bonanno, 137 Mich. App. 202, 357 N.W.2d 860 (1984); Murphy v. Meyers, 560 N.W.2d 752 (Minn. Ct. App. 1997); Welzenbach v. Powers, 139 N.H. 688, 660 A.2d 1133 91995); Pamela P. v. Frank S., 59 N.Y.2d 1, 462 N.Y.S.2d 819 (1983); Weinberg v. Omar E., 106 A.D.2d 448, 482 N.Y.S.2d 540 (1984); Douglas R. v. Suzanne M., 127 Misc. 2d 745, 487 N.Y.S.2d 244 (1985); Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811 (1985); Yost v. Unanuae, 1986 Ohio Lexis CA-6928 (1986); Hughes v. Hutt, 500 Pa. 209, 455 A.2d 623 (1983); Linda D. v. Fritz C., 38 Wash. App. 288, 687 P.2d 223 (1984). See generally, Anne M. Payne, Annotation, Parent's Child Support Liability as Affected by Other Parent's Fraudulent Misrepresentation Regarding Sterility or Use of Birth Control, or Refusal to Abort Pregnancy, 2 A.L.R.5th 337 (1992 & Supp. 1998); Note, Fraud Between Sexual Partners Regarding the Use of Birth Control, 31 Ky. L.J. 593 (1983).
While these cases held that tort liability, if any, is irrelevant to the issue of child support, some cases have gone so far as to say tort liability for fraud or misrepresentation as to birth control and/or fertility will simply not lie. Stephen K. v. Roni L., 105 Cal. App. 3d 640, 164 Cal. Rptr. 2d 618 (1980) (father's tort claim against mother for falsely representing her use of birth control rejected); Barbara A. v. John G., 145 Cal. App. 3d 369, 193 Cal. Rptr. 422 (1983) (mother's claim against father for tort damages relating to his representation he was sterile was barred on public policy grounds); C.A.M. v. R.A.W., 237 N.J. Super. 532, 568 A.2d 556 (1990) (mother's tort claim against father for his fraudulent misrepresentation that he had a vasectomy barred on public policy grounds); Douglas R. v. Suzanne M., 127 Misc. 2d 745, 487 N.Y.S.2d 244 (1985) (man's claim against woman that she defrauded him as to her use of birth control was barred on public policy grounds); Moorman v. Walker, 54 Wash. App. 461, 773 P.2d 887 (1989) (father of illegitimate child not permitted to bring tort action against mother for wrongful birth of child). Contra D. v. M., 113 Misc. 2d 940, 450 N.Y.S.2d 350 (1982) (accepting tort theory but finding that woman had not proven the man's requisite state of mind for fraud). The same public policy underlying rejection of "wrongful life" suits underlie the rejection of tort damages for bringing a healthy child into the world.
The message from these cases is clear: If a man intends to have sexual intercourse with a woman and a baby results, the man is liable for child support.
II. "YES, YOU WERE UNDERAGE. NOW PAY YOUR CHILD SUPPORT."
What if, however, the man is legally incapable of "intending" to have sexual intercourse because he is underage? Is he still liable for child support? Again, the answer is yes.
In every case that has addressed the issue, the court has held that a man who was underage at the time of the conception of the child, and was therefore a victim of statutory rape, is nonetheless liable for child support. Typical of the reasoning in these cases is San Luis Obispo County v. Nathaniel J., 50 Cal. App. 4th 842, 57 Cal. Rptr. 2d 843 (1996). In that case, the court stated:
50 Cal. App. 4th at 845, 57 Cal. Rptr. 2d at 844. Similarly, in State ex rel. Hermesmann v. Seyer, 252 Kan. 646, 847 P.2d 1273, 1279 (1993), the court concluded:
Accord Schierenbeck v. Minor, 367 P.2d 333 (Colo. 1961); Department of Revenue ex rel. Bennett v. Miller, 688 So. 2d 1024 (Fla. 5th DCA 1997); In re Paternity of J.S., 193 Ill. App. 3d 563, 550 N.E.2d 257 (1990); Rush v. Hatfield, 929 S.W.2d 200 (Ky. Ct. App. 1996); Commonwealth v. A Juvenile, 387 Mass. 678, 442 N.E.2d 1155 (1982); Jevning v. Chicos, 499 N.W.2d 515 (Minn. 1993); Mercer County v. Alf M., 155 Misc. 2d 703, 589 N.Y.S.2d 288 (Fam. Ct. 1992); In re Paternity of J.L.H., 149 Wis. 2d 349, 441 N.W.2d 273 (1989). Cf. Division of Child Support Enforcement ex rel. Esther M. v. Mary L., No. 94-33812 (1994.DE.19031), (mother of children did not have to pay child support for children conceived as a result of the rape/incest of her brother; intercourse was involuntary and nonconsensual).
The message from these cases is equally clear: If a man intends to have sexual intercourse with a woman and a baby results, the man is liable for child support. The sexual intercourse in these cases is "factually voluntary" and thus intentional, even if it is nonconsensual in the criminal sense.
III. "YOU INTENDED THAT I BECOME PREGNANT WITH YOUR SPERM. NOW PAY YOUR CHILD SUPPORT."
In the cases discussed so far, the obligation to pay child support has been predicated upon the voluntary act of sexual intercourse. Is a man still liable for child support even if he does not engage in sexual intercourse with a woman, but merely provides sperm for artificial insemination and agrees with the mother that there shall be no child support liability? Once again, the answer has been yes. In these cases, the courts have uniformly held that outside the strict requirements of the jurisdiction's statute governing artificial insemination, a mother simply cannot waive child support on behalf of the child and the father cannot waive his parental rights; such a contract is void as against public policy. (For an excellent discussion of why parties should be free to enter into such contracts, see Nancy D. Polikoff, The Deliberate Construction of Families Without Fathers: Is It An Option for Lesbian and Heterosexual Mothers?, 36 Santa Clara Law Review 375 (1996).)
By way of introduction, parents cannot enter into an agreement for insemination by way of sexual intercourse, whereby one parent is completely relieved of child support. In Estes v. Albers, 504 N.W.2d 607 (S.D. 1993), the mother wished to have a child. The mother asked the father to impregnate her, and they both agreed that the father would have no financial responsibility for the child. The child was conceived naturally and born in 1986. Thereafter, the father claimed that by virtue of the agreement, his status was nothing more than a semen donor, and he was not obligated to pay child support. The court rejected this argument out of hand, noting that the child was conceived naturally. Therefore, the man's status as a semen donor is inconsistent with the artificial insemination statute.
Similarly, in Straub v. B.M.T. by Todd, 645 N.E.2d 597 (Ind. 1994), the mother and father entered into a "preconception agreement" where the father agreed to impregnate the mother and the mother agreed to hold the father harmless for any child support. The father likewise claimed that he was nothing more than a semen donor, and the mother had conceived by "artificial insemination by intercourse." The court rejected the argument, holding that if one wishes to avoid child support by claiming artificial insemination, then the insemination must be artificial and all the requirements of the Uniform Status of Children of Assisted Conception Act, 9B U.L.A. (Supp. 1998) must be followed.
The courts have taken this principle and further held that even where the insemination is truly "artificial," that is, the delivery system for the sperm is a syringe and not a penis, if the parties have not adhered to the requirements of the jurisdiction's artificial insemination statute, then the father is still liable for child support and may seek filiation, and the mother may still seek child support. This was the case in Jhordan v. Mary K., 179 Cal. App. 3d 386, 224 Cal. Rptr. 530 (1986). In that case, the father provided semen directly to the mother, which she then used to inseminate herself. The mother and father agreed that the father would not be responsible for child support. The father then sought an order of filiation. The court held that because the baby was not conceived in accordance with the provisions of the Uniform Parentage Act, Jhordan was entitled to an order of filiation. Accord Thomas S. v. Robin Y., 209 A.D. 2d 298, 618 N.Y.S.2d 356 (1994); M. v. C., 152 N.J. Super. 160, 377 A.2d 821 (1977) (man who gives woman semen for artificial insemination is father, fulfilling same function as husband); C.O. v. W.S., 64 Ohio Misc. 2d 9, 639 N.E.2d 523 (1994) (statute extinguishing parental rights of anonymous sperm donor was inapplicable to case where mother solicited sperm from donor). Cf. McIntyre v. Crouch, 98 Or. App. 462, 780 P.2d 239, review den. 308 Or. 593, 764 P.2d 1100 (1989) (Oregon's statute providing that donor of semen for use in artificial insemination was barred from asserting parental rights was not limited to anonymous donors and was applicable in situation where donor knew donee).
Once again, the message from these cases is equally clear: If a man intends to make a baby with his sperm, and he and the mother do not comply with the jurisdiction's artificial insemination statute, the man is liable for child support.
IV. "IT WAS YOUR SPERM. NOW PAY YOUR CHILD SUPPORT."
The above cases have demonstrated that either intent to have sexual intercourse or an intent to impregnate a woman will result in child support liability. Can a man escape this liability if he has neither the intent to have sexual intercourse nor the intent to make a baby? The answer is no. So long as a man engages in an intimate sexual act resulting in his depositing of his sperm with a woman who then becomes pregnant, he is liable for child support.
In State of Louisiana v. Frisard, 694 So. 2d 1032 (La. Ct. App. 1997), the mother and father of the child for whom support was sought met in a hospital while the father was visiting an ill relative. The mother was a nurse's aid who has access to a variety of medical equipment. The mother offered to perform oral sex on the father, and, in the words of the father, "as ... any male would, I did not refuse[.]" 694 So. 2d at 1035. The mother had the father wear a condom. The mother then removed the condom for the father, and unknown to the father, she inseminated herself with the father's sperm using a syringe.
The Louisiana court, noting that the probability of paternity was 99.9994%, held the father's testimony that he "had some sort of sexual contact with the plaintiff around the time frame of alleged conception, although he denied that they had sexual intercourse" was sufficient to prove paternity. 694 So. 2d at 1036. This fact of paternity obliges a father to support his child. 694 So. 2d at 1034. In essence, because the father intentionally engaged in a sexual act resulting in his deposit of sperm with the mother, he is liable for child support.
Another case reaching the same result on facts that are, quite frankly, bizarre is S.F. v. Alabama ex rel. T.M., 695 So. 2d 1186 (Ala. Civ. App. 1996). In that case, the father testified that he went to a party at the mother's house. He had been drinking for several hours before he arrived, and had in fact gotten sick on the way to her house. At the mother's house, the father continued to drink, and the last think he remembered was getting sick again and his brother putting him in bed at the mother's house. The next morning, the father awoke in that same bed with only his shirt on. The father did not remember having sex with the mother, and he did not knowingly and purposely have sex with her.
The father's brother testified as to the same facts. A friend of both the mother testified as to the same facts, plus the fact that about two months after the party, the mother said she had sex with the father while he was "passed out" and that it saved her a trip to the sperm bank. Another friend testified that the mother had said she had sex with the father, "and he wasn't even aware of it."
A physician testified that it is possible for a man who is intoxicated to the point of losing consciousness may nevertheless have an erection and ejaculate; they are not conscious, voluntary activities.
The father argued that because he did not have sex voluntarily with the mother, he was not liable for child support. The court disposed of the argument, comparing it to the arguments made in L. Pamela P. v. Frank S.: the wrongful conduct of the mother in causing conception did not obviate the father's support obligation. The court also compared the father's argument to the arguments put forth in the statutory rape cases, concluding that the "rape" of the father could not preclude a finding of liability for support.
The dissent would have held the father liable for child support, but would have deviated from the presumptive child support guidelines because "the mother's sexual conduct was reprehensible and is a misdemeanor. Because of the mother's inappropriate conduct, the trial court should have deviated from the guidelines." 695 So. 2d at 1191.
The lesson one can take from Frisard is simple: a man is strictly liable for where his sperm ends up when he voluntarily engages in a sexual act. The lesson one must take from S.F. v. T.M., however, is somewhat troubling: a man is strictly liable for where his sperm ends up even when he unknowingly and involuntarily engages in a sexual act. Instead of comparing the father's predicament with the mother's predicament in Division of Child Support Enforcement ex rel. Esther M. v. Mary L., No. 94-33812 (1994.DE.19031), where a mother was relieved of her child support obligation because she was raped, the court imposed a child support obligation because of the fact of paternity. This can only be termed a strict liability theory of sperm.
Where will the strict liability theory of sperm lead? Consider the following fact situation that is currently before the trial court in Kansas: Two couples go to the local lover's lane in one car, one couple in the front seat, and one couple in the back seat. They discover that among them all, they have only one condom. The couple in the back seat engage in intercourse using the condom, and then give the condom to the couple in the front seat. The gentleman in the front seat, not wanting to spread disease, turns the condom inside out. The couple in the front seat then engage in intercourse. One month later, the lady in the front seat discovers she is pregnant. After the birth of the child, DNA tests reveal that the father is the gentleman from the back seat. Clearly, the gentleman in the front seat engaged in an intimate sexual act with the mother of the child. Yet, it is the sperm from the gentleman in the back seat who impregnated the mother. Who is on the hook for child support? Should the court impose a "joint enterprise" theory of liability? Or is the gentleman in the back seat "strictly liable" because it was his sperm?
In all of these cases except S.F. v. T.M., the fathers complained that the reproduction decision was solely in the mother's hands, because once conception took place, he couldn't force her not to bear the child. But what the men have failed to understand is that in all of these cases, the women assumed not only all the "reproduction rights," they assumed the reproduction risks of the failure of birth control.
Both men and women have reproductive rights and responsibilities. By virtue of biology, because a woman is the one to bear the child, it so happens that men must exercise their rights not to bear children earlier than women, that is, in the bedroom and not at the abortion clinic or the courtroom. In the words of one court,
Ince v. Bates, 558 P.2d 1253, 1254 (Or. App. 1977).
As stated somewhat differently in Stephen K. v. Roni L., 105 Cal. App. 3d 640,645, 164 Cal. Rptr. 618, 621 (1980):
Thus, to all men who complain about paying child support for children they did not want, the simple advice is, "Shut up and put on a condom. And dispose of it yourself."
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