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Brown v. Wyatt2/9/2005
Hugh Brown appeals from summary judgment entered in Pulaski County Circuit Court in favor of appellees Dr. Richard Wyatt and the Arkansas Women's Center. He argues that the trial court erroneously granted appellees' motion for summary judgment and dismissed his tort action for negligence and outrage because Ark. Code Ann. § 9-10-202 (Repl. 2002) creates a statutory duty upon doctors to obtain the written consent of the husband before using artificial insemination to impregnate his wife. Appellant also argues that the doctrine of collateral estoppel does not bar him from pursuing actions for negligence and outrage against appellees for artificially inseminating his now ex-wife, Kathy Brown, knowing that appellant was not in favor of the procedure. We hold that collateral estoppel did not preclude appellant from litigating this case. However, we hold that appellant's suit is, in effect, for wrongful birth, which is not actionable in the State of Arkansas. Thus, we affirm.
Appellant and Kathy Brown were married in 1991. Appellant had a vasectomy prior to the marriage; however, the vasectomy was reversed to relieve his epidymitis. Tests in February 2000 revealed that his sperm were dead. At that time, appellant had no intention of getting his wife pregnant even though they had discussed having children in the past. Ms. Brown contacted California Cryobank and wanted to discuss the possibility of artificial insemination. She did not tell appellant that she was actually inseminated until after the fact, and he learned that she was pregnant in early April 2000. Appellant was displeased because he considered artificial insemination a violation of his Christian principles and because he did not like the thought of Ms. Brown being pregnant by another man. Ms. Brown gave birth to healthy twin girls in October 2000. Appellant was aware that the girls were given his last name and that he was listed as the father on the birth certificates. Appellant also accompanied Ms. Brown to the doctor twice, was concerned about the health of the girls, and supported Ms. Brown.
Ms. Brown filed for divorce on November 4, 2002. In the divorce suit, appellant contested the paternity of the children. Ms. Brown testified that appellant was willing to raise the girls while the marriage was happy, but that once she decided to divorce him, he wanted nothing to do with the girls and did not want to be financially responsible for them. Ms. Brown also testified in the divorce proceedings that she assumed appellant consented to the artificial- insemination procedure because he signed the papers, he never told her not to undergo the procedure, he never asked her to have an abortion after she became pregnant, and he supported the girls and held them out as his own. In its December 19, 2002 divorce decree, the trial court stated that the agreement that appellant and Ms. Brown signed with California Cryobank did not constitute written consent required by Ark. Code Ann. § 9-10-201(a) (Repl. 2002). However, the trial court found appellant was estopped from denying that the children were his and ordered him to pay $157 per week in child support . We affirmed the decision. See Brown v. Brown, 83 Ark. App. 217, 125 S.W.3d 840 (2003).
On February 4, 2003, appellant filed the present action against appellees for the torts of negligence and outrage based on the artificial insemination of his ex-wife without his written consent. Appellees admitted the factual allegations in the complaint but denied liability. On June 20, 2003, appellees filed for summary judgment, and in an August 4, 2003 order, the trial court granted their motion to the extent that appellant's complaint alleged an action for medical injury due to the elapsed statute
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