Court Bars Damages for Child Conceived on the Sly

HOUSTON (CN) – Texas law bars the recovery of mental-anguish damages for the birth of a healthy child, a state appeals court ruled, nixing the claims of a man whose former lover conceived a son with his sperm on the sly.

Layne Hardin testified in a jury trial that he keeps a low profile in his small Louisiana town, avoiding funerals and weddings and carefully planning his outings to avoid seeing Tobie Devall and the son she had with sperm he had preserved at a Houston medical clinic in 2002 before getting a vasectomy.

“He described the situation as a ‘painful’ ‘nightmare’. He missed some work because he ‘didn’t feel like getting out of bed.’ He testified, ‘This ripple effect continues to go on and on and on and there is no stopping. This is forever,’” according to the case record recounted in a June 6 order by the 1st Texas Court of Appeals in Houston.

He says he is also ill at ease there because Devall has turned some people against him.

Hardin says neighbors have confronted him and called him names because Devall spread false rumors that he gave her permission to impregnate herself with his sperm, then had the gall to sue Devall, the clinic and its parent company, over the birth of his son Mack (not the boy’s real name) in July 2010.

Hardin had eight vials of his sperm preserved in 2002 at the Texas Andrology clinic. The agreement gave Hardin’s then-domestic partner, Katherine LeBlanc, authority over the sperm in the event of his death.

Hardin’s fling with Devall prompted LeBlanc to leave him in 2006. Devall and Hardin started dating and talked about getting pregnant and consulted a physician from Obstetrical and Gynecological Associates LLC, Texas Andrology’s parent company, in March 2008.

When Mack turned 2, Devall’s new husband adopted him and Hardin’s parental rights were terminated.
Hardin said in his October 2011 lawsuit, in which LeBlanc is a co-plaintiff, that he never consented to letting Texas Andrology inseminate Devall with his sperm. Devall and Hardin ended their relationship early 2009.

For her part, LeBlanc, who lives in the same town as Hardin and Devall, expressed concerns in court hearings that the son she had with Hardin would be forever linked to Mack, and said nosey people asked her about the situation with Mack at work and the grocery store.

LeBlanc also testified in an August 2015 jury trial that she feared Mack’s birth would impact her law enforcement job, stating, “And [in] my line of work, I just can’t go around saying that I’m involved in what people have called a Jerry Springer episode.” (Brackets in original.)

The jury sided with Hardin and LeBlanc, ordering Devall to pay them $375,000 and OGA to pay them $501,900 for mental anguish damages on claims of breach of contract, conversion and intentional infliction of emotional distress.

But an appellate ruling handed down shortly after the jury verdict in Hardin’s case, led Hardin’s trial judge to toss all but all but LeBlanc’ $1,950 award for her conversion claims against OGA over the removal of two vials of Hardin’s sperm from the clinic.

In Pressil v. Gibson, the Texas 14th Court of Appeals, also in Houston, held that a plaintiff cannot recover mental-anguish damages over the birth of a healthy child.

In dismissing the bulk of claims in Hardin and LeBlanc’s appeal, the Texas 1st Court of Appeals framed the essence of the case as its sister court did in Pressil, as a “wrongful pregnancy” claim, and found Texas law precludes the recovery of mental-anguish damages in such cases in light of the “public policy” concerns it could establish a legal injury for parents of healthy children.

“To permit Hardin, as Mack’s biological father, to pursue a tort claim for mental anguish arising from Mack’s existence is to permit him to send a message to his son that the son’s life injured his life. Such a message would demean Mack’s dignity and value, could diminish his family’s resources to provide for him, and could discourage parents such as Hardin from developing relationships with their children,” Judge Harvey Brown wrote on June 6 for a three-judge panel of the 1st Texas Court of Appeals in Houston.

The panel did give Hardin a small opening, finding he may have a mental-anguish claim over Devall’s efforts to turn his neighbors against him.

Devall and her sister reportedly showed townspeople a screenshot of Hardin’s signature on a form that falsely showed he authorized her to use his sperm.

“We remand this portion of Hardin’s suit in which he asserts a tort action based on Devall’s treatment of him in the community for a new trial or other proceedings consistent with this opinion,” Brown wrote in the 44-page order.

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