Sperm: the gift that keeps on…coming?

Ok bad joke. But this story is too funny to pass by. An Illinois physician is suing his ex-lover for emotional distress caused by a surprise pregnancy and the theft of his sperm. A Dr. Richard Phillips accuses his paramour, Dr. Sharon Irons, of stealing of his sperm. Although Dr. Phillips says he only had not sex with that woman Presidential-style relations, Dr. Irons wound up pregnant and sued Dr. Phillips for paternity. Dr. Phillips then filed this suit with his claim for emotional distress and theft. The Illinois Court of Appeals let the emotional distress claim go forward, but ruled the sperm was a gift, not a theft.

Court: Man Can Sue Over Surprise Pregnancy

By CARLA K. JOHNSON, Associated Press Writer

CHICAGO - A man who says his former lover deceived him by getting pregnant using semen obtained through oral sex can sue for emotional distress — but not theft, an appeals court has ruled. Dr. Richard O. Phillips accuses Dr. Sharon Irons of a "calculated, profound personal betrayal" six years ago, but she says they had the baby through sexual intercourse. The Illinois Appeals Court said Wednesday that Phillips can press a claim for emotional distress after alleging Irons had used his sperm to have a baby, but agreed that however the baby was conceived, Irons didn't steal the sperm. "She asserts that when plaintiff 'delivered' his sperm, it was a gift," the decision said. "There was no agreement that the original deposit would be returned upon request."

Mr. Scriblerus doesn’t know anything about the Illinois criminal code and he is not a criminal defense attorney, but for those of you out there unfortunate enough to have attended law school, like Mr. S, you will recall the endless dry hypotheticals employed by law professors to illustrate a particular point. For the law school nerd in me, this case would present an intriguing, if prurient, and funny hypothetical.

Let’s see how the plaintiff's case stacks up here. If I recall correctly from the folks at barbri, the common law definition of a larceny is the unlawful taking and carrying away of the personal property of another with the intent to deprive him of possession permanently. We certainly have the asportation element, the carrying away, here and I doubt the defendant ever intended to give the property back so we've got the permanent deprivation. The key issue is the taking element. Unless the plaintiff was hepped up on rohypnol during the alleged act, it’s hard to say defendant “took” the sperm from him without some cooperation of his part in “giving” it to her. Bad puns galore.

Now, the common law elements of a gift are: a donative intent, an actual donation, and the acceptance of the gift. Well, you can fill in the blanks and apply the facts to the law yourself. No matter the location of the “donation,” I think the Illinois Appellate Court got it right here.

Maybe Dr. P should have argued it was a larceny by trick, where the taker misleads the rightful possessor by a misrepresentation of fact into giving up possession, but not title, to the property. Or a action in tort for conversion? Ok I'll stop.

I will keep an eye out for the opinion when it’s posted and we'll see if my analysis is on point.