When Oral Sex Results in a Pregnancy: Can Men Ever Escape Paternity Obligations?

By SHERRY F. COLB
Wednesday, Mar. 09, 2005

In a lawsuit against his ex-girlfriend, Richard O. Phillips has alleged that about six years ago, he engaged in oral sex with her. Unbeknownst to Phillips, he says, his girlfriend, Sharon Irons, allegedly saved the resulting semen and used it to inseminate herself. A pregnancy resulted, Irons gave birth to a baby, and DNA tests proved Phillips to be the genetic father.

Though Phillips allegedly did not learn of either the pregnancy or the birth until some time later, a court nonetheless ordered him to pay approximately $800 a month in child support.

Irons disputes Phillips's claims and asserts that she conceived her child in the ordinary way. For purposes of this column only, however, I will assume the truth of Philips's allegations.

Phillips's suit originally contained allegations of theft, fraud, and intentional infliction of emotional distress. An Illinois Appellate Court, however, dismissed the theft and fraud claims a few weeks ago, allowing only the emotional distress action to go forward.

The facts of this case raise significant questions about the contours of a man's right -- if any -- to avoid paternity.

A Woman's Right to Control Paternity

When a woman becomes pregnant, the man who impregnated her has few legal rights with respect to that pregnancy. He cannot, for example, require the woman to remain pregnant if she chooses to have an abortion. Conversely, he cannot force her to have an abortion if she wants to remain pregnant and give birth.

Whether it is the right to become a parent or to avoid becoming a parent, then, the pregnant woman's choice trumps that of the father of the pregnancy. Furthermore, if the woman chooses to go to term with the pregnancy, the father is legally liable for child support.

All of this may seem quite unfair. If a man has no control over paternity, then why should he have to pay for the resulting child? Don't responsibilities ordinarily come with rights, and vice versa?

One reason for the inequity between women and men surrounding pregnancy is the disparate physical circumstances in which a pregnant woman and the man who impregnated her, respectively, find themselves. To grant a man a legal say in whether or not a woman stays pregnant and bears his and her child is effectively to give him dominion over his partner.

As the crucial three-Justice plurality opinion stated in Planned Parenthood of Southeastern Pennsylvania v. Casey, the case in which the Supreme Court declined to overrule Roe v. Wade and accordingly struck down the husband-notification provision of a Pennsylvania statute, "it is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother's liberty than on the father's. The effect of state regulation on a woman's protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family, but upon the very bodily integrity of the pregnant woman."

Providing otherwise would give a man not simply a voice in whether or not he acquires the status of parent. It would authorize him to order the invasion of a woman's body, whether to destroy a pregnancy that she wants to continue, or to force her to sustain a pregnancy she wishes to terminate.

As the Justices also said in Casey, "the Court today recognizes that, in the case of abortion, the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear." The law accordingly gives her the right unilaterally to override the wishes of the man who impregnated her.

The Financial Implications of Paternity

Even accepting the unequal distribution of rights over a pregnancy, however, some argue that if a woman has complete control over whether or not to have a baby, then she should also bear the financial consequences if she chooses to remain pregnant.

In other words, if a woman can impose biological paternity on a man against his wishes, then that power should simultaneously relieve the man of his obligation to support the child that results, shouldn't it?

The answer that the law gives is no. When a baby comes into the world, both the man and the woman whose genes led up to the child's existence are ordinarily responsible for the care of that baby, regardless of whether the child was "wanted" by both parents. Unless the two genetic parents decide to give up their baby for adoption, that responsibility continues until the child reaches the age of majority.

Men, in other words, can seemingly be conscripted into fatherhood against their will and then forced to take care of the child whom they never agreed to have.

Some say, in response, that the man, in effect, agreed to have the child when he had sex with a woman and thus risked such an outcome. On this view, a man who engages in sexual intercourse assumes the risk of becoming a father. If he wants to avoid paternity, he must abstain from sex or undergo sterilization. Because pregnancy as well as its termination have such physically intimate consequences for a woman, the man -- physically separate from these experiences -- loses control over paternity once he consents to having intercourse.

This argument, of course, is in some tension with the notion that a woman does not consent to maternity when she engages in intercourse. Such tension is surely not lost on disgruntled fathers.

But even if one accepts that intercourse equals consent to paternity, what happens when a man does not consent to intercourse? Does he still bear the risk of becoming a father? The case of Phillips and Irons - as described in Phillips's complaint - tests our intuitions about that very question.

Involuntary Paternity: Examples

When Phillips - according to his version of the facts - engaged in oral sex with Irons, did he truly assume the risk that he would have a child?

Let us examine a series of hypothetical examples and attempt, through them, to answer this question.

First, consider the case of Adam and Eve. Eve gives Adam the date rape drug GHB, and he becomes unconscious. She then uses a needle to extract sperm cells from his body. Eve promptly goes to a doctor with the sperm, and the doctor uses it to fertilize her egg, implanting the resulting zygote in her body.

If Eve gives birth, is the resulting child Adam's? Genetically yes, but it would nonetheless appear grossly unfair to require Adam to pay child support. He has done nothing, after all, to surrender his childless status.

Now take the case of Onan and Eve. Onan masturbates in his home and deposits the resulting semen in the garbage, located in his kitchen. Eve visits Onan's home shortly after his encounter with himself. When Onan leaves the room for a few minutes, Eve takes the opportunity to rummage through his garbage and finds the discarded semen. She makes a quick exit and proceeds to inseminate herself.

If Eve becomes pregnant and gives birth, should Onan have to pay her child support? Again, as in the case of Adam and Eve, it would seem unjust to impose financial obligations on Onan. Though less violently than in Adam's case, Eve has stolen semen that did not belong to her and has used it to make children that Onan had no way of predicting would come into being.

The case of Phillips and Irons, as narrated by Phillips, falls somewhat further down the line toward consensual fatherhood than these two cases do. As Irons asserted, and as the Illinois appellate court agreed, "when plaintiff 'delivered' his sperm, it was a gift - an absolute and irrevocable transfer of title to property from a donor to a donee . . . . There was no agreement that the original deposit would be returned upon request."

Unlike Eve, Phillips - even on his own version of the relevant events - did consensually surrender his sperm to Irons. Should this fact make a difference?

Does Oral Sex Assume the Risk of Paternity?

In the earlier examples, it was only through nonconsensual wrongdoing that Eve came into possession of Adam's and Onan's sperm cells in the first place. That is, if Eve had respected Adam's bodily integrity and the privacy of Onan's garbage, then she would not have been able to become pregnant through these men.

In our real-life scenario too, Irons allegedly crossed a line that Phillips did not anticipate, but that crossing occurred after she legitimately (and with his consent) came into possession of his sperm cells. In other words, Phillips may have expected and hoped that Irons would discard his sperm rather than keeping and using it, but - unlike Adam and Onan - he did give it to her of his own free will.

Is Secretly Omitting Birth Control Different From Secretly Using Sperm?

Is there a distinction, however, between Phillips (on his version of the facts) and a man who has consensual intercourse with a woman he (mistakenly) believes is using birth control?

If so, the distinction would seem to turn on a vision of "natural" versus "artificial" conception. When a man has intercourse with a woman, however "protected" from pregnancy he believes himself and her to be, he initiates a process that -- left to its own devices -- will sometimes yield a pregnancy. As a result, we hold him to have assumed the risk of such a pregnancy occurring, even when the man thinks that he and/or his partner have taken adequate precautions.

When a man does not engage in intercourse at all, however, then "nature," left to its devices, will never yield a pregnancy. It is only with the intervention of a third party (here, the woman with whom he allegedly engaged in oral sex) that the sperm will have the opportunity to fertilize an egg. In our real-life case, then, "but for" Irons's alleged intervention, the sperm cells were destined to die. In the language of torts and the criminal law, Irons's alleged actions rather than those of Phillips were therefore the "proximate cause" of the child's existence.

Though a man may have no right to expect nature to go as planned, he does perhaps have the right to expect that a human being will not affirmatively intervene and deliberately turn an act of "safe sex" into a pregnancy. Seen in this light, Irons's alleged use of artificial means to convert discarded semen into a pregnancy and ultimately a live birth appears to take Phillips out of the equation and to turn him into an unwilling sperm donor, just as Adam and Onan were.

But is the fact that Phillips surrendered his sperm voluntarily irrelevant? I would argue that it is. To understand why, consider an analogy.

Transforming a Gift into Something Else

Suppose John Doe invites a police officer to visit his home. The officer comes over and brings John a gift: a pottery vase. Without telling John, the policeman has placed a listening device into the vase. After leaving John's home, the officer is able secretly to monitor the conversations and other activities that go on in John's apartment.

It is clear that on these facts, John - by inviting the officer to his home - has not assumed the risk of the police listening to his conversations and the activities in his home. Indeed, the officer's behavior represents a violation of John's Fourth Amendment right against unreasonable searches and seizures.

The fact that John accepted the vase from the police officer has no Fourth Amendment significance, because what he accepted was a piece of pottery, a gift that in no way entails the assumption of audio-monitoring. The vase-as-vase, in other words, is an entirely different entity from the vase-as-listening device.

Similarly, when Phillips surrendered his sperm to Irons, allegedly through oral sex, he agreed only to her gaining custody of the sperm-as-sperm. Absent preservation and fertilization, moreover, sperm cells die and become garbage. Phillips thus consensually surrendered nothing more than waste products to Irons, on his version of the story, and Phillips legitimately relied upon Irons to leave the status of that waste alone.

Instead, through insemination and pregnancy, Irons purportedly converted the surrendered sperm into something else entirely -- a child.

What About the Child's Needs?

In examining these issues, one last concern deserves our attention. Child support, as its name suggests, is not simply a monetary payment by a non-custodial parent to a custodial parent. It is - primarily, in fact - the fulfillment of an obligation by a parent to his child, the latter of whom is an innocent bystander in his or her own conception.

Though, on his account of the facts, Phillips did not consent to the creation of his child, the child may still feel entitled - like other children - to have two parents that share financial responsibility. The child, in other words, did nothing wrong to Phillips and seems to deserve no less than another child of a "surprised" father.

One response to this point is that every child deserves to have everything that he or she needs, and to have people called "parents" take care of him or her for the duration of childhood. But when a man does nothing that foreseeably risks a pregnancy, the genetic link between him and the resulting baby is of no greater significance than that of two siblings who are wide apart in age. Yet the law does not demand child support of the older sibling, precisely because he or she did nothing to create the biological relationship with the younger one.

Even when he avoids intercourse and does nothing to donate sperm to a reproductive endeavor, a man can still be forced into factual biological parenthood. Irons's alleged actions demonstrate as much. Further, that reality may lead to great suffering, as the Illinois appellate court recognized by allowing Phillips's emotional distress claim to go forward. That reality should not, however, necessarily carry financial ramifications along with the emotional ones.

At some point, a man's lack of actual responsibility for the creation of a child must absolve him of financial responsibility as well. The circumstances of Phillips and Irons - as claimed by Phillips - seem a sensible place to start.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark.

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