Copyright (c) 2002 New Mexico Law Review
New Mexico Law Review
NOTE: TORT LAW: Tort Liability when Fraudulent Misrepresentation Regarding Birth Control Results in the Birth of a Healthy Child-Wallis v. Smith
32 N.M.L. Rev. 549
BRENDA SAIZ *
In Wallis v. Smith, 1 the New Mexico Court of Appeals upheld the trial court's determination that claims based on intentional misrepresentation regarding the use of birth control in personal relationships do not give rise to legally- enforceable rights. The court held that all children, whether or not their conception "violated a promise between the parents," should benefit from child support. 2 Additionally, the court stated that an individual's "sphere of privacy" included one's choice whether to use or not to use contraceptives, and the courts should not interfere in this area. 3 This Note describes the policy concerns that led to barring such claims and explores the potential impact this holding has for future claims regarding the right to privacy, as well as child support laws, including the Uniform Parentage Act 4 (UPA).
II. STATEMENT OF THE CASE
Plaintiff Peter Wallis sued the defendant, Kellie Rae Smith, after Smith allegedly misrepresented that she was practicing birth control, and Wallis, relying on that representation, unintentionally fathered her daughter. 5 Wallis and Smith became involved in an intimate sexual relationship. 6 The parties agreed to continue their relationship as long as Smith remained on some type of birth control, because Wallis was adamant about not wanting to father a child. Wallis, however, took no precautions himself. He merely relied on Smith's word that she was taking birth control pills. 7 Smith ceased taking the pills, without informing Wallis, but continued the intimate relationship with ...
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