llinois Court Rules Man Can Sue Over Deceptive Use of Sperm By Girlfriend To Impregnate Herself 
Published 1, February 1, 2011

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:

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 plaintiffs 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 defendants assertion, plaintiff is not claiming the act of filing the paternity suit itself caused him severe emotional distress; it was the result of defendants 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 courts 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

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.

"ishobo" wrote:

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.

"J. Brian Harris, Ph.D., P.E." wrote:

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, isnt it a law that mandates males always use a birth control device?

I dont have a problem with that wisdom when used voluntarily and would insist on it in fact, but to say, use a condom or dont have sex because the law wont 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 womens healthcare. Are not both sexs being punished for the consequences of acts which were not a matter of consent?

"lottakatz" wrote:

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.

"Isabel Darcy" wrote:

Rafflaw, I assumed that the facts quoted by the Professor were the courts 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 societys 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, Im 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.

"Lottakatz" wrote:

@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.



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 womans 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 mens 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.

"ishobo" wrote:

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 (Im on the pill) into impregnating a woman. He fought against paying child support and lost.

"Turk" wrote:

I love how a 12-year-old raped by his teacher is putting himself in a position where his sperm can be used.

"Nonstopdrivel" wrote:

In my opinion, if in the eyes of the law the sperm becomes the woman's property after the man has deposited it, then she should be fully liable for whatever purpose she puts the sperm to and whatever consequences accrue from her use of that sperm, and the man should be absolved of any liability to which he does not explicitly consent. After all, it's no longer his property.

"Nonstopdrivel" wrote:

I'd become a lot more pro-choice if men were accorded the same degree of choice women are. If a woman is allowed by law to have sex with a man under any pretense whatsoever and yet choose whether or not she wants to keep the baby, then I think a man should also be able to choose whether or not he wants the baby. If against the man's wishes, the woman chooses to go ahead and have it anyway, the man should be able to relinquish any and all liability for the child. In addition, the woman making that choice should forfeit all privileges to welfare entitlements for the maintenance of the child. Likewise, if a man decides he does want the child, he should be able to protect his rights in the matter, in exchange for agreeing to assume all liability for the care and maintenance of the child; and he also should not be able to rely on the welfare system for its upkeep.

And no, Cheesey, such rules would not result in a massive epidemic of absentee dads. It would probably have the exact opposite effect -- reducing the incidence of out-of-wedlock births, as women would become a hell of a lot more careful about using protection if they knew they might be on the hook for an unplanned baby.

"Nonstopdrivel" wrote: