Perry v. Atkinson

Brief Fact Summary.

Plaintiff sued Defendant for fraud, deceit, and intentional infliction of emotional distress after she had an abortion because Defendant promised to conceive a child with her the next year. The trial court denied Defendant’s motion for summary judgment as to Plaintiff’s claim for intentional infliction of emotional distress. It ruled in favor of Defendant as to the fraud and deceit claim.

Synopsis of Rule of Law.

A promise to conceive a child is not enforceable.

Facts.

In 1977, Lee Perry (Plaintiff) learned that she was pregnant with the child of Richard Atkinson (Defendant). Defendant urged Plaintiff to have an abortion. Plaintiff did not want to abort the pregnancy. Defendant promised Plaintiff that if she underwent an abortion, he would conceive a child with her the next year. Plaintiff thereafter aborted the pregnancy. Defendant, however, did not fulfill his promise. Plaintiff sued Defendant for fraud, deceit, and intentional infliction of emotional distress. The trial court denied Defendant’s summary judgment motion as to Plaintiff’s claim for intentional infliction of emotional distress. It ruled in favor of Defendant as to the fraud and deceit claim.

Issue.

Whether a promise to conceive a child is enforceable.

Held.

No. The trial court’s ruling is affirmed. A promise to conceive a child is not enforceable.

Discussion.

Although Plaintiff characterizes her fraud and deceit claims as tort causes of action, the essential question her case poses is whether Plaintiff has a cause of action for Defendant’s promise to conceive a child with her. In Stephen K. v. Roni L., 105 Cal.App.3d 640 (1980), Roni had falsely represented to Stephen that she was taking birth control pills and subsequently got pregnant with their child. The court in that case held that Stephen had no cause of action because of the intimate nature of the relationship and the promise. It reasoned that a court deciding such matters would be intruding upon an individual’s right to privacy. Similarly, although Defendant made false representations to Plaintiff in promising to conceive a child with her, the court cannot enforce a promise to impregnate, as it would constitute an improper intrusion into the parties’ privacy. Public policy requires that this court find that Plaintiff does not have a cause of action against Defendant for fraud and deceit.