First there was Watergate. Now thirty-seven years later we have Surroga0te, but given the amount of pain one particular incident is causing, call it Sorrowgate.
This is not an article for the squeamish or for those not versed in the ways of this brave new world in which we live. Watergate was about the theft or attempted theft of information. Since then we’ve had identity and other forms of robbery based on the manipulation of computer data as well as human credulity.
Increasingly, the old adage about sparing the rod and spoiling the child gave way to artificial insemination, test tube babies and in vitro fertilisation. Along the way came ethical and other questions like, “If Michael Jackson was cloned, would it have been against the law for him to play with himself as a child?” There was even a reworking of the old nursery rhyme, “Mary Had A Little Lamb” the first two lines of which are: Mary had a little lamb, its fleece was slightly grey, It didn’t have a father, just some borrowed DNA. This ‘borrowing’ of the stuff of life (or the gift that keeps on giving) created considerable concern and controversy a few years ago.
In 2003, a family doctor, Richard Phillips, was slapped with a paternity suit – what we call in the Caribbean ‘maintenance’ – by another physician, Dr. Sharon Irons, an Internist, with whom he admitted having a relationship. However, Phillips said that while they were together for a four-month period they never had intercourse but had oral sex three times. The relationship ended when Phillips learned Irons had lied to him about being recently divorced and was, in fact, still married to another doctor from whom Irons was subsequently divorced.
Two years later, Irons filed the suit and despite his claim that they did not have a sexual relationship (except in the Clintonesque sense), Phillips had to pay US$800 a month maintenance because the DNA tests showed that the child was his.
According to the Associated Press (AP), Phillips then sued Irons, claiming her actions robbed him of sleep and caused him to have trouble eating. He contended that Irons, without his knowledge, kept some of his semen and used it to impregnate herself. He said he was haunted by “feelings of being trapped in a nightmare.”
Irons responded that her alleged actions weren’t “truly extreme and outrageous” and that Phillips’s pain wasn’t bad enough to merit a lawsuit. The circuit court agreed and dismissed Phillips’ suit in 2003. My Trinidadian friends had a good time punning on the female doctor’s surname and, using the principle that one might as well be hanged for a sheep as for a lamb, believed that Phillips should have given her more of her last name.
Phillips appealed and took the case to the Appellate or higher Court accusing Irons of a “calculated, profound personal betrayal”. This Court ruled that if Phillips’s story was 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 Court agreed that Phillips could press a claim for emotional distress.
However, the Court agreed with the woman’s lawyers that she did not steal the man’s sperm as he claimed and dismissed fraud and theft claims against Irons. “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.”
A Trini friend of mine said tongue-in-cheek, “When Phillips heard the decision he blurted out ironically, ‘Give me a break!’”
The Phillips case seems to have opened up a new frontier. A Wisconsin man says he has proof that aliens violated him and he has children in outer space. A Winnipeg man on trial for rape claims he was forced to have anal sex with his alleged victim against his will, accusing her of stealing his sperm so she could have a mixed-race baby. When asked by the Crown whether he thought pregnancy could result from anal sex, the man replied: “I’m not in the medical profession.”
In Israel (story from the Israel News), the Haifa Family Court rejected a petition by a man to have a woman he accused of “sperm theft” terminate her pregnancy. The judge ruled that a pregnant woman’s right over her body is absolute and that no one – not even an inadvertent father – has the right to prevent her from having a baby, should she choose to do so.
The ruling was made in the case of a 21-year-old man who asked the court to order a 26-year-old woman he accidentally got pregnant to terminate the pregnancy. He claimed that the woman, a divorcee with two children, “stole his sperm” by seducing him while he was under the influence of alcohol and further alleged that she assured him she was using birth control pills…Becoming a father at his young age, he pleaded, “would ruin his life by causing him financial damage and emotional anguish, and harm his chances to get married in the future.”
The Judge rejected the petition, saying that a woman’s right to choose whether to see a pregnancy to term is anchored in the State’s Basic Laws which pertain to the right to physical integrity. As for the allegation of “sperm theft,” the Judge advised that the matter should be heard by a civil court, and not by the family court.
While serious questions of law and the right to property, solid or liquid, have emerged from these cases, it took a Jamaican friend of mine, a lawyer, to ask the ultimate question, “Suppose the woman had choked on her oral burden, would her death have been deemed spermicide?”
*Tony Deyal was last seen asking, “What do men and sperm have in common?” The answer most favoured by women is, “They both have a one-in-a-million chance of becoming a human being.”
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