Ex Lied About Vasectomy

Just wondering if any of you are attorneys. I used to be a mere legal assistant in family law - and it seems I'm more familiar with the law than those who are responding. If I still had access to a LexisNexis account, I would simply do the case law research myself. I had assumed (perhaps mistakenly) that this was a legal forum and that I would receive expert legal advice.

I clearly stated that I would be conducting a DNA test and IF the baby is his, I wanted to bring a cause of action against him. I think a BABY and a DNA test confirming paternity is all the proof I'm going to need to bring a case against him... at which time he will have the opportunity to respond and provide his proof whether or not he had a vasectomy.

Is anyone actually READING what I write? Or (much like all the attorneys I had the "pleasure" of working with) do you just like to hear yourself talk? Sorry if that sounds harsh, but I'm getting really frustrated. If you're not actually going to READ what I am writing, and provide me with some applicable law or case history, then please do not bother responding.

Thankyouverymuch.

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Quoting Mr. Knowitall

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Well, that would be what discovery was for. But, even if we assume a lie about the vasectomy, so far I'm not seeing a viable cause of action. The "compensation" you get from the other parent for your child is called "child support".

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Of course he would be responsible for supporting the child regardless. However, there should be other damages due to his negligence. If I aborted the baby, or put the baby up for adoption, he would not be paying child support, however, there should still be consequences for his actions. Someone should not be able to behave in such a reckless manner with another person's life and leave the injured party with no recourse.

If he lied to me about having an STD, there would be consequences, correct? So why is it that when what he "infects" me with is an unwanted pregnancy, there is supposedly no cause of action. I don't think anyone is thinking deeply enough about this. However, I realize it's an online forum and none of you really care about my circumstances the way that I do.

In my limited research (thanks Google), I was able to find this case: 145 Cal. App. 3d 369, 193 Cal. Rptr. 422 (1983), which, while dismissed, is at least a springboard and starting point. Unfortunately, I'm using dial-up and Google and investigating this is very slow going - which is why I thought I may be able to find some useful responses here, and possible a new direction in which to look.

If you don't like the answers you're getting, the usual problem is that they're not what you want to hear as opposed to their not being legally correct.

Use lexisone or Google Scholar (select California case law at the bottom of the page) to research the case law, then come back and tell us what you have found.

BeBeB, I'm just a layperson, but I do think you have a plausible argument and from my perspective, I can't see how a civil case of this nature would be denied, but then again, that's just my opinion.

As for aid with your research two things: first, can you get to your local library and use their faster internet connection? Second, have you tried to contact your former family law co-workers and discuss the possibilities of a case with them? Perhaps a consult with a "friend" lawyer is a better bet for specific case law than this forum; for the most part, we seem to be limited to the same Google recommendations that you are finding.

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Quoting aaron

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If you don't like the answers you're getting, the usual problem is that they're not what you want to hear as opposed to their not being legally correct.

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It has nothing to do with "what I want to hear" - most of the responses I got didn't actually answer my questions and assumed things that I had not written (i.e., I never mentioned wanting to sue the doctor who may have performed the vasectomy - because I don't believe he truly underwent the procedure).

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Quoting NdK1009

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BeBeB, I'm just a layperson, but I do think you have a plausible argument and from my perspective, I can't see how a civil case of this nature would be denied, but then again, that's just my opinion.

As for aid with your research two things: first, can you get to your local library and use their faster internet connection? Second, have you tried to contact your former family law co-workers and discuss the possibilities of a case with them? Perhaps a consult with a "friend" lawyer is a better bet for specific case law than this forum; for the most part, we seem to be limited to the same Google recommendations that you are finding.

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Unfortunately, my former co-workers and employers are also my references - and I can't imagine coming to them with such an embarrasing situation. I have discussed this with my best friend (who is actually a judge) - but he only has access to case law from the computer in the courtroom - while he's on the bench. The computer in his chambers apparently doesn't allow him access (weird), so doing any research for me is much harder for him than it would be for me.

Truth be told, he said he thought it was doubtful I had a case - but that such an action had never been brought before him (only the opposite of men trying to get out of paying child support based on the mother's claim that she was on birth control), and therefore, he had no basis for an honest assessment on the merits of my claim. He has promised to help me during his free time, but he's a very busy man and I'd rather do the research myself.

Bebe, I am also not an attorney, but since you were a legal assistant, you know that Tort law can be VERY state specific. If you intend to pursue a possible fraud/misrepresentation suit claiming a wrongful life/birth cause of action, then a Tort Attorney needs to be consulted.

You talked about mitigating your damages, as damages will be a key part of the complaint.

Let's assume you can move for an order in your paternity action to subpeona his doctor's records, as this is the only way to prove it one way or another, if he had one that is, if he did, then what damages can you claim now except child support?

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Quoting BOR

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Bebe, I am also not an attorney, but since you were a legal assistant, you know that Tort law can be VERY state specific. If you intend to pursue a possible fraud/misrepresentation suit claiming a wrongful life/birth cause of action, then a Tort Attorney needs to be consulted.

You talked about mitigating your damages, as damages will be a key part of the complaint.

Let's assume you can move for an order in your paternity action to subpeona his doctor's records, as this is the only way to prove it one way or another, if he had one that is, if he did, then what damages can you claim now except child support?

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Child support is money for the child's benefit (he won't pay it anyway - he's already $100,000 in arrears for his other 4 kids). That is not making ME whole... he needs to compensate ME for the damage he has caused ME as well as my other children. I am now going to be paying to support this child as well for the next 18 years - which I would not have had to do if he had been honest. I had cosmetic surgery (breast reduction and tummy tuck) after my last child was born 12 years ago because I never planned on having more children. That's $15,000 down the drain because I will now have the sagging breasts and stretch marks that I already paid to have fixed. How about the intentional infliction of emotional distress? I pleaded with him to tell me the truth while there was time to abort - and he stuck to his story. If I can prove he lied and CONTINUED TO LIE to me, I believe I have a case against him.

This wasn't just a lie in the "heat of the moment"... it was ongoing deceipt. He also had the opportunity to get out of a child support order by being honest with me, because I would have terminated any pregnancy that resulted from being intimate with him.

I don't see why anyone would think that child support is enough. Child support is his legal obligation regardless of the circumstances... there should also some serious financial consequences for deliberately impregnating someone and then walking away and leaving them to deal with the problem you created.

Honestly, I don't think I'd ever get a dime out of him regardless of what I may be awarded. But if I can set any type of precedent that it is NOT Ok to f*ck with other people in this manner, then I'm willing to do whatever I need to do to make that happen.

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Quoting BeBeB

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Child support is money for the child's benefit (he won't pay it anyway - he's already $100,000 in arrears for his other 4 kids). That is not making ME whole... he needs to compensate ME for the damage he has caused ME as well as my other children.

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He will not be compensating you for you not insisting on him wearing a condom which, even if there was a valid cause of action here, would be a major point in HIS favor and a major dent in your case. Vasectomy or not, you have as much (if not more, actually) control over your reproductive health.

I believe you are also misunderstanding something - once said child is born, if he is indeed shown to be the father and you file suit against him, the burden of proof is on YOU to show that he lied. NOT on him to prove otherwise.

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I am now going to be paying to support this child as well for the next 18 years - which I would not have had to do if he had been honest. I had cosmetic surgery (breast reduction and tummy tuck) after my last child was born 12 years ago because I never planned on having more children. That's $15,000 down the drain because I will now have the sagging breasts and stretch marks that I already paid to have fixed. How about the intentional infliction of emotional distress? I pleaded with him to tell me the truth while there was time to abort - and he stuck to his story. If I can prove he lied and CONTINUED TO LIE to me, I believe I have a case against him.

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He will also not be compensating you for the plastic surgery. There is also no case for IIED. But by all means seek local counsel.

(Though frankly I believe you'd be wasting your money as you're going to be told exactly what you've already been told here).

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This wasn't just a lie in the "heat of the moment"... it was ongoing deceipt. He also had the opportunity to get out of a child support order by being honest with me, because I would have terminated any pregnancy that resulted from being intimate with him.

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Basic biology: intercourse = risk of pregnancy. It's that simple. You cannot hold him solely accountable simply because you became pregnant - this is a known and somewhat predictable risk.

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I don't see why anyone would think that child support is enough. Child support is his legal obligation regardless of the circumstances... there should also some serious financial consequences for deliberately impregnating someone and then walking away and leaving them to deal with the problem you created.

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Now we've gone from lying about a vasectomy to deliberately impregnating you? Was he present while you did an ovulation test kit? How did you get to that conclusion? :confused:

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Honestly, I don't think I'd ever get a dime out of him regardless of what I may be awarded. But if I can set any type of precedent that it is NOT Ok to f*ck with other people in this manner, then I'm willing to do whatever I need to do to make that happen.

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You have no cause of action here other than filing for child support.

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Quoting BeBeB

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It has nothing to do with "what I want to hear" - most of the responses I got didn't actually answer my questions and assumed things that I had not written (i.e., I never mentioned wanting to sue the doctor who may have performed the vasectomy - because I don't believe he truly underwent the procedure).

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One person mentioned that, probably because that's where relief is typically sought in "wrongful conception" cases. If you think that's what "everybody" was saying, it would only stand to prove that you're not reading the responses to your questions.

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Quoting BeBeB

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Truth be told, he said he thought it was doubtful I had a case - but that such an action had never been brought before him (only the opposite of men trying to get out of paying child support based on the mother's claim that she was on birth control), and therefore, he had no basis for an honest assessment on the merits of my claim.

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He should, as it's the other side of the same coin - the "she said she was on the pill" argument is a guaranteed loser. If you are "damaged" by having to support your own child by virtue of the other partner's false claim to have taken steps to prevent conception, from a legal standpoint how do you propose a man's claim is any different than a woman's?

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Quoting BeBeB

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Child support is money for the child's benefit (he won't pay it anyway - he's already $100,000 in arrears for his other 4 kids).

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What do you think would be achieved by your paying thousands of dollars for a (meritless) lawsuit that would, at best, give you what you indicate will be an uncollectable judgment?

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Quoting BeBeB

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I am now going to be paying to support this child as well for the next 18 years - which I would not have had to do if he had been honest.

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Again, assuming he wasn't honest. He may have been honest.

But you previously told us,

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Quoting BeBeB

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According to all fertility/ovulation/conception charts & calculators, I should have concieved between the 25th & 28th so my ex and I assumed it was his (and sonograms all confirmed my conception date as did my doctors). However, just to be sure, he paid for a DNA test that was performed when I had my amniocentesis. The results came back that the baby is not his. Unfortunately, at 20 weeks pregnant, I am stuck and am forced to have the baby anyway.

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So you've stated that you voluntarily assumed the consequences of your pregnancy - the sole issue being that you were wrong about which of your boyfriends contributed the relevant sperm.

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Quoting BeBeB

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I had cosmetic surgery (breast reduction and tummy tuck) after my last child was born 12 years ago because I never planned on having more children. That's $15,000 down the drain because I will now have the sagging breasts and stretch marks that I already paid to have fixed.

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Same thing.

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Quoting BeBeB

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How about the intentional infliction of emotional distress?

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Perhaps you read that IIED involves "emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it", and thought, "No man is expected to go through childbirth"? Seriously, you think an IIED claim has any merit?

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Quoting BeBeB

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I pleaded with him to tell me the truth while there was time to abort - and he stuck to his story. If I can prove he lied and CONTINUED TO LIE to me, I believe I have a case against him.

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And, by the same token, completely undermine your claim for damages - you were content to go through with the pregnancy if boyfriend B was the contributor of the relevant sperm; other than your contempt for ex-boyfriend A, same outcome.

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Quoting BeBeB

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If he lied to me about having an STD, there would be consequences, correct? So why is it that when what he "infects" me with is an unwanted pregnancy, there is supposedly no cause of action. I don't think anyone is thinking deeply enough about this.

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"Anyone" meaning you? Because if you think a court won't be able to distinguish between an STD and a pregnancy, you're not thinking very hard. Take a look at Kathleen K. v Robert B. (1984) 150 Cal.App.3d 992, 198 Cal. Rptr. 273. That court was very much able to recognize that infecting somebody with a STD could support a tort action, while at the same time recognizing the long-standing public policy against "allow[ing] one parent to sue the other over the wrongful birth of their child" - quoting language right out of the one case you cite.

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Quoting Barbara A. v. John G., (1983), 145 Cal. App. 3d 369

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Further, we think it is not sound social policy to allow one parent to sue the other over the wrongful birth of their child. Using the child as the damage element in a tortious claim of one parent against the other could seldom, if ever, result in benefit to a child. Such a lawsuit would indeed be strong evidence of parental rejection, which could only be emotionally detrimental to the child. Such an action, with its potential for engendering disharmony between a mother and father, would also be contrary to the spirit of the recent legislation providing for mediation between parents in order to reduce acrimony. (See Civ. Code, § 4607.)

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The solution, as always, is that if you want a zero percent chance of a pregnancy resulting from intercourse with somebody, particularly somebody you don't know well enough to be sure you want as a coparent, don't sleep with that person.

There was a story in a local newspaper a few years back that was similar to your situation. Lady was suing for a huge amount of money for an unwanted pregnancy. The man admitted to a white lie about having a vasectomy. The man had to pay support, but the other suit was thrown out because both parties are responsible for birth control as well as supporting a child that might result no matter who lied. Most men don't like wearing condoms. Always have a back up just in case.

Follow up. I've done the research and found this:
2 A.L.R.5th 301 - which is a report on a sexual partner's tort liability to other partner for fraudulent misrepresentation regarding sterility or use of birth control resulting in pregnancy. I have the whole text if anyone wants to PM their email address for the file. I won't post any portion of it here due to copyright.


It seems I very well would have a claim against him. However, the more I learn about other things (the likelihood of DNA errors, etc.), the more I doubt there's any chance of him being the father. However, I am still pursuing this. I filed the petition to establish paternity with the man who claimed vasectomy - it's only been a week, and no response yet. I doubt he'll show up in court, which will give me a default order for the DNA test. When he doesn't comply with that (as I'm sure he won't), I will have to then file a motion for contempt. I had hoped to resolve this before the baby was born, as I have no intention of leaving the father blank on my son's birth certificate, but with both men being juveniles, I'm not left with any other options.

I was convinced that this jerk was lying about the vasectomy based on my assumption that the DNA test was accurate. I have since learned that it probably wasn't - based on the gestational age (which is what I believed all along - until the DNA came back). Unfortunately, father #1 wants to hold onto those results as his "get out of jail free card" and is throwing a temper tantrum because I want him to retest (not only himself, but his son... to rule out lab error and also genetic anomaly). So basically, I have to wait to see if Mr. Vasectomy will show up in court and comply with the test, or just wait and see when the baby is born.

This really cheeses me off how men have it so easy in situations like this. As if it's my sole responsibility to figure all of this out. Grrrrrrrrrrr.

I came back to post the above reference solely to help anyone who may come to this forum in the future looking for some real help on this subject.