The Gift That Keeps On Giving
February 25, 2005
In both state and federal courts the fate of a lawsuit can turn on the not-so-tender conscience of a judge. Bring a Fourteenth Amendment claim and submit to the "shocks the conscience standard." It takes a lot to shock a federal judge.
It also takes a lot to outrage a state-court jurist. The tort of intentional infliction of emotional distress, or outrage, as it is called in some states, requires extreme and outrageous behavior, behavior outside the bounds of that tolerated in a civilized society.
In Chicago, fellating lovers are now on notice: It's not all right to convert passion's product to procreation.
Some tawdry facts: Two physicians had a hot and heavy affair six years ago. It ended badly when male doctor learned his amore was still, in fact, married at the time all the sparks were flying. He ended the affair.
But Hell, dear reader, Hell hath no fury like a woman scorned. The two lovers had, well, made love of a kind. On several occasions he had been fellated by she of oh-so voluptuous lips.
Two years after the affair ended, she sued him for paternity, and tests confirmed that he was a daddy. How, oh, how had she become pregnant? Call it radical self-help.
The Illinois Appellate Court ruled that these facts support a claim for emotional distress. However, it did uphold dismissal of the man's claim for fraud and theft.
"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." Dynamo Hum