Do we need some additional language in the Texas theft laws?
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Court: Man Can Sue for Distress Over Surprise Pregnancy, but Sperm Were Hers to Keep

The Associated Press
02-25-2005

An appeals court said a man can press a claim for emotional distress after learning a former lover had used his sperm to have a baby. But he can't claim theft, the ruling said, because the sperm were hers to keep.

The ruling Wednesday by the Illinois Appellate Court sends Dr. Richard O. Phillips' distress case back to trial court.

Phillips accuses Dr. Sharon Irons of a "calculated, profound personal betrayal" after their affair six years ago, saying she secretly kept semen after they had oral sex, then used it to get pregnant.

He said he didn't find out about the child for nearly two years, when Irons filed a paternity lawsuit. DNA tests confirmed Phillips was the father, the court papers state.

Phillips was ordered to pay about $800 a month in child support, said Irons' attorney, Enrico Mirabelli.

Phillips sued Irons, claiming he has had trouble sleeping and eating and has been haunted by "feelings of being trapped in a nightmare," court papers state.

Irons responded that her alleged actions weren't "truly extreme and outrageous" and that Phillips' pain wasn't bad enough to merit a lawsuit. The circuit court agreed and dismissed Phillips' lawsuit in 2003.

But the higher court ruled that, if Phillips' story is true, 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."

The judges backed the lower court decision to dismiss the fraud and theft claims, agreeing with Irons that she didn't steal the sperm.

"She asserts that when plaintiff 'delivered' his sperm, it was a gift -- an absolute and irrevocable transfer of title to property from a donor to a donee," the decision said. "There was no agreement that the original deposit would be returned upon request."

Phillips is representing himself in the case. He could not be reached for comment Thursday.

"There's a 5-year-old child here," Mirabelli said. "Imagine how a child feels when your father says he feels emotionally damaged by your birth."

Maybe the deed records need to be expanded with a requirement that the "recipient" file a document of ownership whenever such a transfer of title occurs. Just think of the new market for title insurance.

What about the old adage "it is better to give than to receive"? Or neither a borrower or a lender be? (Banjo music fades out in the background...)

Hm. Why doesn't the law place a burden on the mother in the paternity suit to show that the man reasonably should have known that oral sex could result in pregnancy? Having to meet a burden that steep might curb this kind of "motherly" conduct.

I wonder what value you place on the requisite amount of semen stolen. I also wonder if Illinois has a particular statute that covers theft by deception.

What about misapplication of fiduciary funds/property? Can you claim that the deposit was made for non-procreational purposes alone?

Then again, since the good doctor has demonstrated her low moral character, perhaps the man was merely discarding his deposit in the proper waste bin or receptacle. Interesting thought: (though grotesque) What if the genetic material was collected from a tissue discarded in a waste bin? Would it matter who tossed it in the trash? One man's garbage is another woman's treasure, it seems.

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I wonder what value you place on the requisite amount of semen stolen.

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I'm guessing that they could come up with some sort of value ladder based upon either the amount or quality of the "stolen" product.

As a potential juror in such a case, if ever one should come up in my county, and I'm on the panel, and I make it past voir dire (excuse my French)and all the strikes run out before the lawyers reach my position on the pew, I would want to know something before I arbitrarily made a judgment on behalf of the good side:
How did she get the goods from point A to the point of no return, without severe whiplash or irreplaceable damage to the C-4, unless of course she's part giraffe, or maybe one of those contortionists from Ringling Bros.? Now, don't take the easy way out and say that she got advice from Boliver and his brother, either. You won't be able to get away with it that simply if I'm on the jury. Now, I did know a mandolin player once who could turn his head in about 351 degrees, sort of like that little girl in "The Ecorcist" but he certainly wasn't pliable enough to touch his toes with his nose.

A.P.: Probably by way of a contraption consisting of a spittoon and a turkey baster. The demonstrative evidence in such a case would likely be quite disturbing.

As an aside, would the appropriate charge here be misapplication of fiduciary property?

Well, if she used a turkey's baster and not one of someone she was related to at least by the third degree of sanguinity, then maybe federal game laws would apply more than the fiduciary statutes. Of course I realize that wouldn't apply to a domestic turkey, whose baster probably isn't protected by federal ordinances and regulations.

WOW, I'm glad I got to hear this discussion. For years, men have been 'tricked' into parenthood in various ways, but this is new and novel. So, here is my question: (and I hope this post topic doesn't disappear like some others)

If Tom Cruise uses a condom, and discards it in the trash, and some fan rummages through his trash and impregnates herself with the used sperm, lawfully discarded, do we have a paternity action. Or, could Tom Cruise not have lawfully expected to be a father. Is this a new defense?

Beck, that's exactly what I was getting at. Shouldn't there be some sort of reasonable foreseeability standard for paternity?

Just another sterling example of how bad facts can make bad law. If the circumstances are as described by the putative father, and it would be interesting to read the deposition of the mother, then, under equity, how could the law mandate that he support his unplanned, unforeseen and totally unpredicted spawn?

The example Beck throws out, although seemingly ridiculous, could happen, under a variety of similar circumstances, although I think there is a very short time span that the "future parent" would have to act before nature prevents such an occurrence.

Every court in Texas is a court of law AND a court of Equity. I wonder about the state in question. Surely an interesting case. This year is producing all sorts of legal fodder for this forum to discuss.