                    IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                 ______________________________________________

LARRY AUBREY HENSON,

       Plaintiff-Appellant,
                                                                         FILED
                                            Shelby Circuit No. 79501
                                                                      January 8, 1999
Vs.                                         C.A. No. 02A01-9711-CV-00291
                                                                         Cecil Crowson, Jr.
ELIZABETH ELLEN SORRELL,                                                 Appe llate Court C lerk

      Defendant-Appellee.
____________________________________________________________________________

                   FROM THE SHELBY COUNTY CIRCUIT COURT
                   THE HONORABLE JAMES F. RUSSELL, JUDGE




                                  Hal Rounds of Memphis
                                       For Appellant

                               No Appearance For Appellee




                                       AFFIRMED

                                       Opinion filed:




                                                           W. FRANK CRAWFORD,
                                                           PRESIDING JUDGE, W.S.



CONCURS:

ALAN E. HIGHERS, JUDGE

SEPARATELY CONCURS AND DISSENTS:

HOLLY KIRBY LILLARD, JUDGE
    This case involves allegations of promissory fraud, fraudulent concealment, breach of

contract, conversion, and intentional infliction of emotional distress arising from a woman’s

failure to inform her partner that she had stopped taking birth control pills, her subsequent
pregnancy, and the birth of a child. The plaintiff, Larry Aubrey Henson (Henson), appeals the

trial court’s judgment for the defendant, Elizabeth Sorrell (Sorrell), after a trial on the merits.

             The parties first met in 1989 while attending Memphis State University. While the two

were friends, they did not become romantically involved at that time. In fact, both parties

married other people, yet stayed in contact with one another. They began having lunch “dates”

in the early 1990's, yet it was not until their marriages began to fail in 1995 that a romantic

relationship began. While both parties were separated from their spouses, a sexual relationship

began in April 1995. Both parties subsequently divorced their respective spouses, and Henson

began to reside with Sorrell. According to testimony, the parties engaged in sexual intercourse

daily.

         Prior to the beginning of their sexual relationship Sorrell informed Henson that she was

taking birth control pills. According to the trial record and exhibits, Sorrell was experienced

with a variety of birth control methods and had been taking birth control pills since December

1994. However, in late June 1995 Sorrell stopped taking birth control pills because she was

experiencing side effects associated with the contraceptive. Sorrell admits that she did not

inform Henson about stopping the birth control pills, and the parties did not engage in any

alternative form of birth control.

         As ninth grade biology teaches us, intercourse everyday, coupled with a lack of birth

control measures, can cause pregnancy. As would be expected, Sorrell became pregnant shortly

after she stopped the birth control pills, and gave birth to a child in March 1996. There is no

contention in this appeal that Henson is not the father of that child. In fact according to

testimony, Henson was supportive of Sorrell during the pregnancy, and currently pays $300 per

month in child support.1

         Several months after the child was born, Henson filed suit against Sorrell alleging five

causes of action:

A. Promissory Fraud

         The complaint alleges that defendant induced plaintiff to engage in sexual intercourse and

to inseminate defendant by falsely representing that she would assume the exclusive


         1
        In another appeal currently before this Court, Henson appeals the paternity ruling of the
juvenile court and challenges the constitutionality of the Tennessee Paternity Statute.

                                                  2
responsibility to protect against conception, that she knew that this representation was false

because she intended to cease taking birth control pills in order to conceive, that plaintiff relied

upon her representation without any knowledge of the falsity thereof, and failed to take any

precaution to prevent conception.

B. Fraudulent Concealment

       Plaintiff alleges that defendant represented that she would have exclusive responsibility

to prevent conception but failed to inform the plaintiff that she had ceased taking birth control

pills and fraudulently concealed this material fact in order to induce plaintiff to inseminate her.

C. Breach of Contract

       Plaintiff alleges that the parties had an express agreement to practice and be responsible

for birth control procedures to prevent conception of a child and that defendant intentionally

breached this agreement when she ceased taking the birth control pill. Plaintiff alleges that he

continued to perform the terms of the agreement by “continuing sexual relations with defendant,

in reasonable reliance that the defendant was fulfilling her obligations under the agreement.”

D. Conversion

       Plaintiff alleges that defendant wrongfully converted property of the plaintiff of her own

use in that she intentionally acquired and misused his semen which the parties had expressly

agreed would be disposed of without conception.

E. Intentional Infliction of Mental Distress

       Plaintiff alleges that after the child was born, the defendant, while having sole custody,

refused to allow the plaintiff to take the child to visit plaintiff’s terminally ill father. The

plaintiff also alleges that defendant communicated with plaintiff’s wife and parents during the

pregnancy and early weeks of the child’s life, making it more difficult for plaintiff’s family

relationships.

        The complaint seeks damages in the amount of $84,000.00 for the amount of plaintiff’s

future obligation of child support, and prenatal and natal medical and other costs of the

defendant. It also seeks $50,000.00 for violation of plaintiff’s right to choose to not procreate.

Plaintiff also seeks $100,000.00 for the loss of dominion and control of his sperm which

defendant converted to her own use, and $10,000.00 for the intentional infliction of extreme

mental distress.

                                                 3
        Defendant filed a motion to dismiss the complaint for failure to state a claim upon which

relief can be granted and subsequently filed an answer to the complaint which admitted their

intimate relationship but denied the other material allegations. The case was tried by the court

without a jury and at the conclusion of the trial, the trial court entered an order of judgment for

defendant finding that there was no fraud committed, there was no breach of an express contract,

there was no act of conversion, there was no infliction of emotional distress upon the plaintiff.

Although the order further provided that the complaint fails to state a cause of action on which

relief can be granted the order specifically stated that plaintiff’s complaint alleging the various

causes of action “is denied on the merits.” Plaintiff has appealed and presents the following six

issues as stated in his brief:

                1. Whether Tennessee law regarding the right to not procreate, as
                recognized by the Tennessee Supreme Court, is available to a
                male in any circumstance other than in vitro fertilization.

                2. Whether the right not to procreate can be secured under the
                principles of contract or tort law by making an agreement with
                another party when the parties are contemplating production of
                gametes through sexual activity.

                3. Whether, under contract law, Tennessee provides a cause of
                action for recovery of damages for a male whose right to choose
                to not procreate is violated by a sexual partner who materially
                misrepresents to him her compliance with such an agreement, and
                her state of fertility during the sexual relationship, thereby
                inducing him to continue the sexual relationship with taking
                contraceptive measures on his own, thus proceeding to make him
                a father, in violation of his expressed wishes.

                4. Whether the facts of this case show, as a matter of law, a
                breach of such agreement, thus violating Henson’s right not to
                procreate, and show damages, as a matter of law, were the
                proximate result of such a breach, and are quantifiable and
                recoverable.

                5. Whether public policy interests of the State conflict with the
                interests of Henson, and whether such conflicting interests, as a
                matter of law, outweigh the interests of Henson.

                6. Further, if such damages are recognized, is the female, by her
                successful achievement of parenthood, immunized from
                compensating the male for his injury as a result of her breach? Is
                this a circumstance where Tennessee imposes an exception to the
                common law actions of breach, fraud, or conversion which denies
                the father any right to recover proven injuries?

        As noted, the trial court found that defendant did not commit any fraud or concealment,

that there was no agreement between the parties as alleged, there was no conversion of property



                                                4
as alleged, nor was there any infliction of mental distress as alleged. Plaintiff simply did not

carry his burden of proof as to any of the alleged causes of action. There was no proof

concerning any express agreement between the parties, nor was there any proof concerning the

promise by defendant to provide for contraception. The conversion claim likewise fails for lack

of proof of any agreement regarding the disposal of the semen. As to the infliction of mental

distress, the record presents no proof of any emotional distress on the part of plaintiff resulting

from the failure of grandparent visitation. Any conflicts in the testimony must be resolved by

the trial court as the credibility of witnesses rests in the first instance with the trial court and will

be given great weight by the appellate court. Haverlah v. Memphis Aviation, 674 S.W.2d 297,

302 (Tenn. App. 1984). Since this case was tried by the court sitting without a jury, we review

the case de novo upon the record with a presumption of correctness of the findings of fact by the

trial court. Unless the evidence preponderates against the findings, we must affirm, absent error

of law. T.R.A.P. 13 (d).

               From our review of the record, we conclude that the evidence does not preponderate

against the findings of the trial court. However, since the trial court stated that plaintiff’s

complaint did not state a claim upon which relief can be granted, and plaintiff’s issues for review

peripherally addressed that finding, we will address that issue on appeal.

                Although we are not aware of any Tennessee cases directly on point, our research has

revealed numerous cases from other jurisdictions with essentially the same set of facts alleged

by Henson. I n s o m e j u r i s d i c t i o n s , t h e f a t h e r h a s a t t e m p t e d t o u s e t h e m o t h e r ’ s f a l s e r e p r e s e n t a t i o n s a s a d e f e n s e

t o s u p p o r t c l a i m s b u t w i t h o u t s u c c e s s . Erwin L.D. v. Myla Jean L., 8 4 7 S . W . 2 d 4 5 ( A r k . A p p . 1 9 9 3 ) ; Faske

v. Bonanno, 3 5 7 N . W . 2 d 8 6 0 ( M i c h . A p p . 1 9 8 4 ) ; L. Pamela P. v. Frank S., 4 4 9 N . E . 2 d 7 1 3 ( N . Y . 1 9 8 3 ) ;

Hur v. Virginia Dept. of Soc. Serv. Div. of Child Support Enforcement, 4 0 9 S . E . 2 d 4 5 4 ( V a . A p p .

1 9 9 1 ) . S u i t s s u c h a s t h e c a s e a t b a r in w h i c h t h e f a th e r a tt e m p t s to r e c o v e r d a m a g e s f r o m t h e m o t h e r b e c a u s e o f f a l s e

r e p r e s e n t a t i o n s c o n c e r n i n g b i r th c o n t r o l a l s o h a v e b e e n u n iv e r s a l l y r e j e c te d p r i m a r i l y o n t h e b a s i s o f p u b l i c p o l i c y .2

See Stephen K. v. Roni L., 1 6 4 C a l . R p t r . 6 1 8 ( 1 9 8 0 ) ; Welzenbach v. Powers, 6 6 0 A . 2 d 1 1 3 3 ( N . H . 1 9 9 5 ) ;


               2
         This scenario seems to be quite frequent in what some commentators describe as “sexual
fraud.” One scholar writes, “[a] frequent fact pattern in sex fraud cases is where one sexual
partner falsely claims to be infertile or to be using birth control. If a child is subsequently born,
does the defrauded party have a cause of action? I have found no cases holding for plaintiffs in
these circumstances.” Dan Subotnik, “Sue Me, Sue Me, What Can You Do Me? I Love You”--
A Diquisition on Law, Sex, and Talk, 47 Fla. L. Rev. 311, 409 (1995)(citations omitted).

                                                                                                  5
C.A.M. v. R.A.W., 5 6 8 A . 2 d 5 5 6 ( N . J . 1 9 9 0 ) ; Jose F. v. Pat M., 5 8 6 N . Y . S . 2 d 7 3 4 ( N . Y . S u p . C t . 1 9 9 2 ) ;

Smith v. Price, 3 2 8 S . E . 2 d 8 1 1 ( N . C . A p p . 1 9 8 5 ) ; Moorman v. Walker, 7 7 3 P . 2 d 8 8 7 ( W a s h . A p p . 1 9 8 0 ) ;

Linda D. v. Fritz C., 6 8 7 P . 2 d 2 2 3 ( W a s h . A p p . 1 9 8 4 ) . See also A n n e M . P a y n e , Sexual Partner’s Tort

Liability to other Partner for Fraudulently Misrepresentation Regarding Sterility or Use of

Birth Control Resulting in Pregnancy, 2 A . L . R . 5 t h 3 0 1 ( 1 9 9 2 ) .

           Although the opinion of our Supreme Court in Smith v. Gore, 728 S.W.2d 738 (Tenn.

1987) involved a medical malpractice case for wrongful pregnancy or conception, we perceive

the reasoning of the Court to be equally applicable to the case at bar. In Smith, a 25-year old

female had a tubal ligation, but subsequently became pregnant and gave birth to a heathy, normal

baby boy. She sued the doctor who performed the procedure, the hospital, and the manufacturer

of the materials used. She alleged that the doctor and hospital were negligent, and her claim

against the manufacturer was predicated on failure to warn and breach of warranty. She sought

recovery of damages for emotional distress, loss of income, medical expenses, and the expenses

of rearing the child to majority. The trial court denied the defendant’s motion to dismiss the case

for failure to state a claim for recovery of expenses of rearing a normal, healthy child. The Court

of Appeals reversed, holding that the damages were limited to those immediately related to

pregnancy and the birth of the child. The Supreme Court affirmed the Court of Appeals and

remanded the case for further proceedings consistent with its opinion.

           The Court noted that the case involved an ordinary tort action and that plaintiff had

suffered a foreseeable consequence that she had sought to avoid by having the operation. The

question to be resolved was the scope of the damages recoverable by the plaintiff and “[t]he

question then becomes whether the legal cause of Plaintiff’s injury (i.e., the necessity to support

her fifth child) can be considered to be the acts or omissions of Defendants.” Id. at 749. The

Court said:

                             As Prosser further observed, the determination of the
                      extent of liability and legal causation inescapably involves
                      notions of public policy. Torts (4th ed. 1971), § 3, at 14-15; § 42,
                      at 244. The relationship of legal causation to the extent of
                      damages must be analyzed carefully in this case. The
                      Restatement Second of Torts, § 431, states:

                                  “The actor’s negligent conduct is a legal cause of
                                  harm to another if (a) his conduct is a substantial
                                  factor in bringing about the harm, and (b) there is
                                  no rule of law relieving the actor from liability

                                                                      6
                         because of the manner in which his negligence has
                         resulted in the harm.” (Emphasis added.)

                 Thus, if some definable policy relieves Defendants of the
                 responsibility for the otherwise foreseeable consequences of the
                 failed pregnancy avoidance technique, then they cannot be held
                 liable for the rearing expenses of Plaintiff’s health child.

Id.

       The Court then noted the numerous Tennessee statutory enactments concerning parents’

obligations for the support of their children, including a father’s obligation to support children

born out of wedlock, discussing these provisions extensively, the Court then said:

                          Although Plaintiff has alleged an ordinary common law
                 tort and, if successful, may recover damages for the foreseeable
                 consequences of the tortious injury, as Section 431 of the
                 Restatement Second of Torts provides, the manner in which the
                 harm (i.e., the birth of a normal child who must be supported until
                 at least the age of majority) resulted limits Defendants’ liability
                 for the support of this child because legislative enactment of such
                 comprehensive statutory schemes controlling child custody and
                 support demonstrates that the public policy of Tennessee is that
                 the obligation for support of minor children is affirmatively
                 placed on the parents of the children. The fact that a normal child
                 is the result of a failed pregnancy avoidance technique will not
                 shift this responsibility from the parents to the defendant in such
                 a case. Application of general common law principles of tort
                 recovery is not appropriate in this case because both the common
                 law itself and statutory law have specifically established
                 responsibility for the support of children. If this responsibility is
                 to be shifted away from the parents, such a determination is for
                 the Legislature and not the Judiciary. Significant and far-
                 reaching questions of social policy are involved, “and it is the
                 prerogative of the General Assembly to declare the policy of the
                 State touching the general welfare.” Baptist Mem. Hosp. v.
                 Couillens, supra, 176 Tenn. at 311-312, 140 S.W.2d at 1093.

                         We conclude that in a wrongful pregnancy action the law
                 relieves these Defendants of liability for the otherwise foreseeable
                 consequences of the failed pregnancy avoidance technique to the
                 extent that the obligation to support minor children clearly rests
                 upon the parents. The responsibility for support of Plaintiff’s
                 fifth child rests with Plaintiff and the father of this child. The
                 laws of the State will assist Plaintiff in assuming this
                 responsibility. In view of the nature of the injury to Plaintiff and
                 the numerous, complex and competing social policies involved,
                 the firmly established common law and statutory obligation of
                 parents to support their children is not shifted as a result of the
                 tort of wrongful pregnancy. Defendants’ negligence cannot be
                 considered the legal or proximate cause of the damages incurred
                 by Plaintiff for the support of her normal, healthy child in the
                 circumstances of this case. The extent of recovery is thus limited
                 to those damages immediately flowing from the failed pregnancy
                 avoidance technique.

Id. at 750-51.

                                                  7
       Although the alleged actions of the defendant in the case at bar are intentional, as

opposed to the allegedly negligence acts in Smith, we find no discernable difference in the legal

obligations imposed. In Smith, an attempt was made to shift the parents’ responsibility to

defendants, and in the present case the attempt is made to shift one parent’s responsibility totally

to the other parent. By analogy with Smith, we conclude that in a case where a party seeks

damages resulting from a misrepresentation concerning conception, the law relieves the

defendant of liability for the otherwise foreseeable consequences of the sexual intercourse “to

the extent that the obligation to support minor children clearly rests upon the parents.” Id. As

in Smith, the extent of recovery would be limited to those damages immediately flowing from

the defendant’s wrongful conduct. Id.

        The concurrence and dissent states that an inference may be drawn from the majority

opinion that a party such as Henson may recover damages immediately flowing from the

wrongful conduct as provided for in Smith v. Gore, 728 S.W.2d 738 \(Tenn. 1987). It points out

that payment of expenses for pregnancy and child birth is addressed in T.C.A. § 36-2-311

(a)(13), and we have no disagreement with that statement. We do note, however, that the statute

referred to provides that the court make a “determination of liability for a mother’s reasonable

expenses for her pregnancy, confinement, and recovery to either or both parties.” T.C.A. § 36-

2-311 (a) (13) (emphasis added). This statutory provision was enacted by the legislature in

Chapter 477, Public Acts of 1997. This Act, among other provisions, repealed T.C.A. § 36-2-

102, which specifically provided that a father of a child born out of wedlock is liable for, among

other thing, the expenses of the mother’s confinement and recovery. It seems significant that the

legislature abandoned this mandatory provision concerning expenses and substituted in its place

a provision for a court determination of liability to either or both parents.

        The Smith Court premised its decision on the common law and statutory provisions

obligating both parents for the support of minor children. Although changing the mandatory

obligation of the father to pay for expenses, the legislature did not change the provisions of

T.C.A. § 34-11-102 (a)(1997) obligating both parents for the support of minor children. We

consider there to be a distinct difference between the parents’ obligation of support as required

by T.C.A. § 34-11-102 (a) and the discretionary assessment of medical expenses incurred with


                                                 8
a birth as provided for in T.C.A. § 36-2-311 (a)(13).

       The costs of confinement and the expenses incurred in connection with the maternity are

obligations incurred, not by the child, but by the party involved. However, the obligation of

support under the common law and by statute is an obligation owed to the child. The Court in

Smith was very careful to state the basis for its decision:

               Rather than ground our decision on abstract notions of public
               policy, we rest our holding limiting Defendants’ liability in this
               case on two grounds: (1) that the State of Tennessee imposes by
               statute the responsibility for the support of children upon the
               parents, thereby relieving Defendants of the liability for the
               support of Plaintiff’s healthy child, and (2) considering not only
               the extensive statutory law regarding the obligation to support,
               but in light of both the common law obligation to support and this
               Court’s restricted role in declaring public policy, shifting the
               common law and statutory obligation from the parents to
               defendant in such cases as these must be left to legislative action.

728 S.W.2d at 745.

       There is no doubt that matters involving intimate relations between the parties are

essentially very private affairs. Notwithstanding that fact, we do not feel that in a case alleging

fraud and misrepresentation where legal causation can be proven (which is not the case as to

parental support) this Court should not attempt to establish a rule to preclude such a cause of

action. To do so would, of course, equally affect the situation where the female of the liaison

had a cause of action for fraud or misrepresentation and sued for expenses incurred for the

avoidance of the pregnancy and any physical pain and suffering as a result thereof. We simply

feel that until the legislature speaks on this matter, the common law rights resulting from

fraudulent misrepresentation should not be abolished in an appropriate case where legal

causation can be shown.

       The judgment of the trial court is affirmed. Costs of the appeal are assessed against the

appellant.

                                                        _________________________________
                                                        W. FRANK CRAWFORD,
                                                        PRESIDING JUDGE, W.S.



CONCUR:

____________________________________
ALAN E. HIGHERS, JUDGE



                                                9
SEPARATELY CONCURS AND DISSENTS:

HOLLY KIRBY LILLARD, JUDGE




                             10
