Court to Decide If a Man Has a Right to Choose Fatherhood

By Barbara Vobejda

Washington Post Staff Writer

Monday, November 23, 1998; Page A01

Their romance was typical, even classic. Peter Wallis and Kellie Smith

met at work, fell in love, shared an apartment. But when Smith discovered she was pregnant, the fairy tale ending didn't come.

Instead, the couple split up, and now, a year after their baby girl was

born, Wallis is making history: He is suing Smith for becoming pregnant

against his will, accusing her of "intentionally acquiring and misusing" his semen when they had sexual intercourse.

In a case that taps into long-standing male frustration and newly

emerging legal questions, Wallis is claiming that Smith promised to take birth control pills but then quit without telling him, essentially forcing him into a role he did not choose: fatherhood and the child support that goes with it.

Smith said she became pregnant accidentally while on the pill. In

addition, she argues in a legal filing that she could not have stolen

Wallis's sperm because he "surrendered any right of possession to his semen when he transferred it . . . during voluntary sexual intercourse."

It should be considered a "gift," she said.

But if the case flows from age-old emotions surrounding sex, it also

arises during an era of high-tech fertility, when babies are produced using sperm banks, egg donors, petri dishes and frozen embryos. In effect, the new frontier has altered society's view of sperm, introducing it as something that can be bought and sold in an ever-changing marketplace.

The lawsuit arrives "in this context of banking, donating, selling --

when sperm becomes a commodity," said sociologist Barbara Katz Rothman. "He's saying he's been robbed of it. That's because we've turned it into a commodity."

Even when babies are made the old-fashioned way, it seems there are

difficult, unanswered questions: Does a man have a right not to become a parent? Who is responsible for contraception? And why can a woman abort an unwanted child but a man in the same situation be required to pay years of child support?

Wallis, a 36-year-old Albuquerque real estate broker, said the lawsuit

is essentially about fraud. Both he and Smith talked about birth control early in their relationship, he said. "I told her the only method that was foolproof enough for me was the pill," he said. She agreed to take the pill and that amounted to a contract, he argued.

When he discovered she was pregnant, he said, "I felt shocked,

overwhelmed and rather betrayed." He asked her to marry him. She said no. He urged her to have an abortion. She refused.

Smith, 37, describes events differently. The couple didn't discuss any

agreement that she would go on the pill, she claims, but she does say

she told Wallis that was her intention. "I never stopped taking birth control pills," she said. "It was an accident. I was shocked."

She says she didn't marry Wallis because "I realized that he didn't love me."

He kicked her out of the apartment and she moved home with her parents,

she said, where she still lives, supporting herself as a hospital secretary. And almost exactly one year ago, Smith gave birth to Taylor, a chubby-cheeked, green-eyed girl.

This tale of lost love reads even more harshly in the legal documents,

where Smith's alleged sins are described not only as a breach of contract but as "conversion" -- the label applied to the "misuse" of Wallis's semen.

Smith's attorney, Mary Han, has asked a state judge to dismiss the case, arguing that Wallis has failed to show he suffered any harm. She warned of a "flood of litigation" if fathers could escape financial responsibility for their children by blaming the mothers for failing to use birth control.

"If he was so adamant, why didn't he use a condom or, excuse me, just

not emit," Han said. "This is about a man who just does not want to accept his sexual responsibility. Talk about a whiner."

In fact, Wallis's complaint touches upon ancient fears and frustrations. For centuries, it was believed that witches stole the sperm from men as they slept, made them impotent and sometimes caused them to become sterile.

Wallis, it would seem, has given that mystic tale an updated twist. And

some men's groups think he has a point.

When it comes to procreation, they complain, women continue to hold all

the power.

"If a man wants her to have an abortion, that's an option solely within

the control of the woman. If he doesn't want her to abort, that's an option solely within the control of the woman," said Hugh Nations, executive director of the Texas-based Men & Fathers Resource Center, a group that assists men in custody, child support and other disputes. "That's the way we approach reproductive matters. We leave all the options with the female."

Women's advocates counter that men should take equal responsibility for

preventing pregnancy, and even when they do, be mindful that no method

is foolproof. And to some extent, biology is destiny.

"You are coming up against an absolute fact of life. They are not the

ones who get pregnant," said Katz Rothman, a City University of New York professor and author of "Genetic Maps and Human Imaginations."

The long-simmering gender wars are further complicated by new

reproductive technologies and evolving legal theories. Until recently, for example, the law paid virtually no attention to whether a man or woman intended to become a parent in determining legal responsibility. But that has changed with the introduction of surrogate motherhood, egg donation and other high-tech methods.

R. Alta Charo, a law professor at the University of Wisconsin in

Madison, cited a California custody fight involving a woman whose

fertilized egg was implanted in a surrogate mother. In that case, one of the tests created by the court to determine who should be allowed to keep the baby was which of the two women had intended to become a mother.

Still, in cases like Wallis's, where there is no question about his

genetic relationship with the child, argued Charo, "lack of intention doesn't excuse you from parenthood." And, she said, he has no legal right not to become a parent.

Wallis has not yet set a figure for the damages he is hoping to win from Smith to help cover the child support he says he expects he will be forced to pay down the road. But he argues that this case is not about money, nor should it be seen as men vs. women.

"My daughter was born into a broken home," he said. "That's something I

really have a problem with. I know I'll never collect money, but I hope that because of what I do, maybe people will give a second thought before they commit fraud."

 

Smith said she would prefer not to receive any child support from

Wallis, to avoid the entanglements, but realizes it is not her choice.

Because she filed for sole custody of the child, the question of child support will inevitably come up and the state probably will force him to pay something, regardless of her views. But she is not trying to keep Wallis from seeing their daughter, she said.

"If he wants to come in and be a healthy part of her life, I welcome

that," Smith said. "But if not, I would just prefer that he leaves us alone."

But Smith said she is dismayed by the lawsuit.

"The whole thing is sick," she said. "I would like to have all this

ugliness go away and get back to being a mom and raising my daughter in

peace."