{ "id": 2452101, "name": "Joseph Dennis Zepeda, a Minor, by Irma M. Flores, His Next Friend, Plaintiff-Appellant, v. Louis Raul Zepeda, Defendant-Appellee", "name_abbreviation": "Zepeda v. Zepeda", "decision_date": "1963-04-03", "docket_number": "Gen. No. 48,291", "first_page": "240", "last_page": "263", "citations": [ { "type": "official", "cite": "41 Ill. App. 2d 240" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "14 Ark L Rev 55", "category": "journals:journal", "reporter": "Ark. L. Rev.", "year": 1960, "opinion_index": 0 }, { "cite": "81 Ill 379", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2675969 ], "opinion_index": 0, "case_paths": [ "/ill/81/0379-01" ] }, { "cite": "47 Ill BJ 824", "category": "journals:journal", "reporter": "Ill. B.J.", "year": 1959, "opinion_index": 0 }, { "cite": "15 Fordham L Rev 282", "category": "journals:journal", "reporter": "Fordham L. Rev.", "year": 1946, "opinion_index": 0 }, { "cite": "126 NE 189", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "291 Ill 334", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2421455 ], "opinion_index": 0, "case_paths": [ "/ill/291/0334-01" ] }, { "cite": "39 Ill App 390", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5017737 ], "opinion_index": 0, "case_paths": [ "/ill-app/39/0390-01" ] }, { "cite": "73 ALR 932", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "41 F2d 464", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1790453 ], "opinion_index": 0, "case_paths": [ "/f2d/41/0464-01" ] }, { "cite": "61 NE 631", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "191 Ill 424", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3246084 ], "opinion_index": 0, "case_paths": [ "/ill/191/0424-01" ] }, { "cite": "95 NE2d 428", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "407 Ill 373", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2640620 ], "opinion_index": 0, "case_paths": [ "/ill/407/0373-01" ] }, { "cite": "71 NE2d 810", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "330 Ill App 598", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3409925 ], "opinion_index": 0, "case_paths": [ "/ill-app/330/0598-01" ] }, { "cite": "174 NE2d 157", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "22 Ill2d 73", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2791226 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-2d/22/0073-01" ] }, { "cite": "106 NE2d 742", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "347 Ill App 293", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5091472 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/ill-app/347/0293-01" ] }, { "cite": "13 NE 626", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1887, "opinion_index": 0 }, { "cite": "107 NY 73", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2211864 ], "year": 1887, "opinion_index": 0, "case_paths": [ "/ny/107/0073-01" ] }, { "cite": "79 A2d 550", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1951, "opinion_index": 0 }, { "cite": "197 Md 417", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 2226726 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/md/197/0417-01" ] }, { "cite": "125 NYS2d 696", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1953, "opinion_index": 0 }, { "cite": "282 App Div 542", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 5407512 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/ad/282/0542-01" ] }, { "cite": "93 SE2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "212 Ga 504", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 263155 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/ga/212/0504-01" ] }, { "cite": "147 A2d 108", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1958, "opinion_index": 0 }, { "cite": "101 NH 483", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4454100 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/nh/101/0483-01" ] }, { "cite": "164 A2d 93", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1960, "opinion_index": 0 }, { "cite": "401 Pa 267", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1294508 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/pa/401/0267-01" ] }, { "cite": "157 A2d 497", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1960, "opinion_index": 0 }, { "cite": "31 NJ 353", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 565180 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nj/31/0353-01" ] }, { "cite": "178 NE2d 691", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "33 Ill App2d 218", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5234887 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-app-2d/33/0218-01" ] }, { "cite": "114 NE2d 412", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "415 Ill 422", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2683218 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/ill/415/0422-01" ] }, { "cite": "4 Pa D & C 227", "category": "reporters:state", "reporter": "Pa. D. & C.", "case_ids": [ 1474697 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/pa-d-c/4/0227-01" ] }, { "cite": "65 F Supp 138", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 625484 ], "opinion_index": 0, "case_paths": [ "/f-supp/65/0138-01" ] }, { "cite": "56 NE 638", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1900, "opinion_index": 0 }, { "cite": "184 Ill 359", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3222120 ], "year": 1900, "opinion_index": 0, "case_paths": [ "/ill/184/0359-01" ] }, { "cite": "138 Mass 14", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 762418 ], "year": 1884, "opinion_index": 0, "case_paths": [ "/mass/138/0014-01" ] }, { "cite": "114 NE 518", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "276 Ill 346", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4854876 ], "opinion_index": 0, "case_paths": [ "/ill/276/0346-01" ] }, { "cite": "170 NE2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill App2d 456", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5786320 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/27/0456-01" ] } ], "analysis": { "cardinality": 1591, "char_count": 33312, "ocr_confidence": 0.559, "pagerank": { "raw": 6.336140483735972e-07, "percentile": 0.9586562768717404 }, "sha256": "a6b8f0d7810c31ea3703f52ed6d8b06664eac4b0425d2018edf106bcb602869f", "simhash": "1:37b596b88ec976a6", "word_count": 5684 }, "last_updated": "2023-07-14T21:08:34.759357+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SCHWARTZ and MoCORMICK, JJ., concur." ], "parties": [ "Joseph Dennis Zepeda, a Minor, by Irma M. Flores, His Next Friend, Plaintiff-Appellant, v. Louis Raul Zepeda, Defendant-Appellee." ], "opinions": [ { "text": "MR. PRESIDING JUSTICE DEMPSEY\ndelivered the opinion of the court.\nThe plaintiff is the infant son of the defendant. He seeks damages from his father because he is an illegitimate child. He appeals from an order dismissing his suit and striking his complaint for its failure to state a cause of action.\nAlthough the defendant moved to dismiss the complaint in the trial court, he did not contest this appeal. During the oral argument in this court Mr. Hugh M. Matchett, the plaintiff\u2019s attorney, said he thought the defendant\u2019s viewpoint should be represented. He suggested that Professor Max Rheinstein, an internationally recognized authority in family law, be asked to participate as amicus curiae. Dr. Rheinstein accepted our appointment. We are indebted to Mr. Matchett for his generous suggestion and to Dr. Rheinstein for his gracious acceptance.\nThe factual averments of the complaint, which were admitted by the motion to strike, are: the defendant is the plaintiff\u2019s father; the defendant induced the plaintiff\u2019s mother to have sexual relations by promising to marry her; this promise was not kept and could not be kept because, unbeknown to the mother, the defendant was already married. The corn-plaint charges that the promise was fraudulent, that the acts of the defendant were willful and that the defendant injured the plaintiff in his person, property and reputation by causing him to be born an adul-terine bastard. The plaintiff seeks damages for the deprivation of his right to be a legitimate child, to have a normal home, to have a legal father, to inherit from his father, t\u00f3 inherit from his paternal ancestors and for being stigmatized as a bastard.\nIn describing this complaint, Dr. Bheinstein stated:\n\u201cSuch a claim is novel. There is no statutory or judicial recognition of such a claim in Illinois or elsewhere in the United States. There is no adverse decision either. In fact, no such claim seems ever to have been raised in any court in Illinois, of any other Common Law jurisdiction, or in aiiy Civil Law country either.\u201d\nThe plaintiff raises constitutional questions and presents two theories of recovery, one in tort and the other in contract. The constitutional questions are framed under the due process and equal protection clauses of the Constitution of the United States (XIV Amendment, section 1), the due process clause of the Constitution of Illinois (Article II, section 2) and under Article II, section 19 of the State Constitution (\u201cEvery person ought to find a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property or reputation\u201d). These constitutional questions cannot be considered. The plaintiff appealed directly to the Supreme Court which refused to take the case and transferred. it to this court. If a case in whieh constitutional issues are advanced is transferred to the Appellate Court, it must be concluded that the Supreme Court has determined no such issues are involved or that they are not material to the disposition of the appeal. City of Chicago v. Campbell, 27 Ill App2d 456, 170 NE2d 19.\nThe contract theory is that the plaintiff should be regarded as a third-party beneficiary of the agreement made by his father and mother to marry each other. This contention, even if it were tenable, is not available to the plaintiff because his complaint sounds in tort. Therefore, the only theory of recovery to be considered on this appeal is whether the complaint states a cause of action in tort.\nThe first of the many interesting questions prompted by the unique averments of the complaint is this: was the act of the defendant a legal wrong, a tortious act? From the admitted facts we can draw the conclusion that the defendant\u2019s act was willful and, perhaps, criminal. It was willful in that the defendant was completely indifferent to the foreseeable consequences of his act. He pursued a course of conduct which showed a conscious disregard for the rights of others. He knew he could not marry the woman and he knew that if a child were born as a result of his act he could not legitimatize that child. The act may have been criminal in that the defendant, a married man, and the mother, an unmarried woman, were living together in the mother\u2019s apartment. If this cohabitation as husband and wife was openly done, it was a criminal offense: adultery on the part of the defendant, fornication on the part of the mother. Ill Rev Stats (1957), c 38, \u00a7 46; People v. Greene, 276 Ill 346, 114 NE 518. The criminal aspect of the act accentuates its gravity. It was not only a moral wrong but was, under the aggravated circumstances of this case, tortious in its nature.\nWe need not be concerned whether a tort was committed upon the mother by the defendant\u2019s false promise of marriage which induced her to have intercourse with him. Our problem is whether a tort was corn-mitted upon the child. Thus, the second question to confront us is, can a tort be inflicted upon a being simultaneously with its conception?\nThe law of torts has been hesitant in recognizing what medical science has long known, that life begins at the moment of conception, and what theology has longer taught, that from the moment of conception every human being has the rights of a human person. Blackstone wrote that in the contemplation of the common law a child\u2019s life began when it \u201cis able to stir in the mother\u2019s womb.\u201d Cooley, Blackstone\u2019s Commentaries, c 1, p 130 (1899). Although other branches of the law, such as property and inheritance, recognized the legal existence of a child from the moment of conception, in tort a child was not regarded as a being separate from its mother until it was born. In the last few years a change has taken place in the law pertaining to prenatal physical injuries. From 1884 to 1946 it was universally held that under the common law there could be no recovery for such injuries. Dietrich v. Inhabitants of Northhampton, 138 Mass 14 (1884); Allaire v. St. Luke\u2019s Hospital, 184 Ill 359, 56 NE 638 (1900). There were occasional dissenting opinions; judges were troubled by the unfairness of holding that a child en ventre sa mere was a human being for inheritance and property rights and not one if it suffered tortious physical injury. It was not until 1946 that a major breakthrough was made under the common law (Bonbrest v. Kotz, 65 F Supp 138) although one that received less atten-' tion had occurred in 1924 (Kine v. Zuckerman, 4 Pa D & C 227). Gradually thereafter various jurisdictions permitted actions for prenatal injuries if a child was viable at the time of injury and if it survived birth. Amann v. Faidy, 415 Ill 422, 114 NE2d 412 (1953). A few states adhered to the Dietrich precedent, but generally the viability of the child at the time of injury became tbe criterion upon which recovery rested. However, the exact time when viability occurs is uncertain. No medical authority can say with accuracy just at what moment a child can live when separated from its mother. Babies have survived in incubators ever further removed from the time of normal birth. The law has slowly come to realize these uncertainties and the viability test is being abandoned. Now complaints are being sustained where the pleaded facts show that the child was not, or might not have been, viable when the injury occurred. Daley v. Meier, 33 Ill App2d 218, 178 NE2d 691 (1961), mother approximately one month pregnant; Smith v. Brennan, 31 NJ 353, 157 A2d 497 (1960); Sinkler v. Kneale, 401 Pa 267, 164 A2d 93 (1960), first month of pregnancy; Bennett v. Hymers, 101 NH 483, 147 A2d 108 (1958); Hornbuckle v. Plantation Pipe Line Co., 212 Ga 504, 93 SE2d 727 (1956), six weeks after conception; Kelly v. Gregory, 282 App Div 542, 125 NYS2d 696 (1953), third month of pregnancy; Damasiewicz v. Gorsuch, 197 Md 417, 79 A2d 550 (1951).\nThe case at bar seems to be the natural result of the present course of the law permitting actions for physical injury ever closer to the moment of conception. In point of time it goes just a little further. The significance of this course to us is this: if recovery is to be permitted an infant injured one month after conception, why not if injured one week after, one minute after, or at the moment of conception? It is inevitable that the date will be further retrogressed. How can the law distinguish the day to day development of life? If there is human life, proved by subsequent birth, then that human life has the same rights at the time of conception as it has at any time thereafter. There cannot be absolutes in the minute to minute progress of life from sperm and ovum to cell, to embryo to foetus, to child.\nBut what if the wrongful conduct takes place before conception? Can the defendant be held accountable if his act was completed before the plaintiff was conceived? Yes, for it is possible to incur, as Justice Holmes phrased it in the Dietrich case, \u201ca conditional prospective liability in tort to one not yet in being.\u201d It makes no difference how much time elapses between a wrongful act and a resulting injury if there is a causal relation between them. Let us take the hypothetical case of an infant injured after birth by a defective household device. Suppose, before the child was conceived, a maufacturer negligently made a space heater and sold it to a retailer who retained it in his store. After the infant\u2019s birth his mother purchased the heater and used it in the room of her child who was burned because of its faulty preparation. Would there not be a right of action against the manufacturer despite the fact the negligence took place before the child was conceived? In the hypothetical case the child was injured after birth. Lest this fact be given undue importance, let us proceed a step further. Suppose a manufacturer prepared and sold a drug for human consumption which had not been adequately tested; that, while it was beneficial for the purpose intended, it proved to be harmful if taken by women in the very early stage of pregnancy in that it arrested the development of infants\u2019 bodies, causing them to be born with abnormal arms or legs. Would not a child so born have a right of action in tort? In the second case the child was injured soon after conception. So let us go still further and take a third suppositive case, where the wrongful act also takes place before conception but the injury attaches at the moment of conception. Physicists and geneticists declare that thermonuclear radiation can so af-feet the reproductive cells of future parents that their offspring may he horn with physical and mental defects. Schubert and Lapp, Radiation \u2014 What It Is And How It Affects You, p 181 (1957); Crow, The Genetic Effects Of Radiation, p 20, Bulletin Of Atomic Scientists (January 1958); Grobman, Our Atomic Heritage, pp 68, 135 (1951); Weaver, Radiations And The Genetic Threat, p 733, Treasury of Science (1958). If a child is horn malformed or an imbecile because of the genetic effect on his father and mother of a negligently or intentionally caused atomic explosion, will he be denied recovery because he was not in being at the time of the explosion?\nIn the above three hypothetical cases the injuries suffered were physical. However, the injury resulting from a wrong committed before conception need not he physical. In Piper v. Hoard, 107 NY 73, 13 NE 626 (1887), a girl over twenty years of age was permitted to maintain an action for financial damage suffered by her as a result of a fraud perpetrated on her mother before the mother\u2019s marriage and her own conception. Two brothers, Frederick and James Piper, inherited a farm from their father. The father\u2019s will provided that if Frederick should die without lawful issue his portion of the estate should go to James and James\u2019 heirs. Frederick conveyed his interest to the defendant, John Hoard. In order to prevent James from obtaining this part- of the farm, Hoard, concealing his ownership, induced Catherine Hagel to marry Frederick by representing to her that the property was Frederick\u2019s and that if she married him and had an heir, the farm would go to the heir. Catherine married Frederick and they had one child. That child, the plaintiff, sued Hoard for the part of the farm he had obtained from Frederick and which he then occupied. Her father had died 15 years after her birth and the suit was commenced several years thereafter. She asked that Hoard\u2019s deed he set aside and that she he declared the owner because her mother was induced by his false and fraudulent representations to marry Frederick.\nThe defendant\u2019s demurrer to the complaint was overruled. He stood upon his demurrer and judgment was entered against him. The Court of Appeals of New York affirmed the judgment. The court stated that by his demurrer the defendant admitted that,\n\u201c. . . he procured the fee of the farm (through this marriage) owned by the plaintiff\u2019s father by means of his own fraudulent representations, yet claims . . . that plaintiff was not induced to any action by reason of his fraud, and sustained no legal damage therefrom, and cannot, therefore, recover any from him. . . .\n\u201cIt is true, the plaintiff was not born when the fraudulent representations were made. Still they were made by the defendant to the plaintiff\u2019s mother for the purpose of inducing a marriage between her parents, and if they had been true, the plaintiff would have been the owner of this particular property. In this way she is the very person injured by the fraud, and although not individually in the mind of the defendant when he perpetrated that fraud, yet, as filling the position of heir to her father, she belongs to the class which defendant had in contemplation when he represented to the mother that the heir of Frederick would have the farm. In this way it may be claimed that defendant had in view the plaintiff, and the rights he alleged she would have. Why should not the plaintiff be permitted to hold the defendant to his representations?\u201d\nReturning to the present case, we have seen that it is not too important whether the plaintiff\u2019s life began during or subsequent to the act of procreation. There, is no certainty as to the exact moment conception takes place. It occurs when the male semen contacts and fertilizes the female ovum and this may happen at the time of coition or within a few hours thereafter. Goodrich, Natural Childbirth, p 52 (1950); Ma-loy, Legal Anatomy and Surgery, 2nd ed, p 668 (1955); A. S. Parks, Marshall\u2019s Physiology of Kepro-duction, 3rd ed, vol 1, p 315 (1960); Parker, The Seven Ages of Woman, p 198 (1960). If the plaintiff was conceived before the completion of the act he became a living, human organism concurrently with the wrongful act. If his conception took place after the act, he was a potential being with essential reality at the time of the act. The seed was planted, the life process was started, life ensued and birth followed. The defendant\u2019s wrongful act simultaneously procreated the being whom it injured.\nIn neither event was the plaintiff a \u201cperson\u201d as that word has been historically understood in the law of torts. We do not think this is too material for we are not concerned with some abstract ontological proposition as to the instant a human entity becomes a person. The plaintiff is a person now and he was a potential person will full capacity for independent existence at the time of the original wrong. As he developed biologically from potentiality to reality the wrong developed too. It progressed as did he, from essence to existence. When he became a person the nature of the wrong became fixed. Prom a moral wrong and a criminal act against the public, it became a legal wrong and a tortious act against the individual.\nThis brings us to the next question to be considered, the character of the plaintiff\u2019s injury. Injuries other than physical or to property are compensable in law and the plaintiff in the case at bar endeavors to come within the coverage of two of them: mental suffering and defamation. This court, in the first case in Illinois involving the right of privacy, considered the interrelationship between right of privacy and mental suffering and concluded that actions were permissible for intentionally caused mental suffering. Eick v. Perk Dog Food Co., 347 Ill App 293, 106 NE2d 742 (1952). In Knierim v. Izzo, 22 Ill2d 73, 174 NE2d 157 (1961), a complaint was upheld where the cause of action was based upon the mental anguish of the plaintiff occasioned by the threat of the defendant to kill her husband and the carrying out of this threat. The court held that peace of mind was an interest of sufficient importance to receive protection from the law against intentional invasion. The present complaint, however, does not charge mental distress. The nearest approach to this is the allegation that \u201cHis father has wilfully injured and wronged him ... in stigmatizing him as an adulterine bastard.\u201d To some persons the shame of being an adulterine bastard might cause as genuine and severe emotional distress as that resulting from other serious provocation. However, in the absence of proper and adequate averments, we must hold that the complaint states no cause of action for this tort. If it did outline such an action, it would be an interesting speculation whether a charge of mental distress and emotional suffering could be made and sustained in behalf of an infant.\nLikewise, the complaint does not state a cause of action for defamation. The averment that the plaintiff has been damaged in reputation is akin to this tort because defamation is the invasion of reputation and good name; but to be actionable the derogatory appellation or statement must have been communicated by the defendant to third persons, and there is no allegation of publication. Also ignored is the fact that the truth, if published under certain conditions (with good motives and for justifiable ends), can be a complete defense to the charge. Constitution of Illinois, Art II, sec 4. The complaint, which is based on the truth, does not negative the conditions.\nThe plaintiff further complains of being deprived of the normal home that might have been his and of equality with the legitimate child he might have been. A legitimate child has the natural right to be wanted, loved and eared for. He also has an interest in preserving his family life and he may protect this interest against outside disturbance. Johnson v. Luhman, 330 Ill App 598, 71 NE2d 810. However, a legitimate child cannot maintain an action against his own parents for lack of affeetion, for failure to provide a pleasant home, for disrupting the family life or for being responsible for a divorce which has broken up the home. An illegitimate child cannot be given rights superior to those of a legitimate child, and the plaintiff has no cause of action on this account.\nBut it would be pure fiction to say that the plaintiff suffers no injury. The lot of a child born out of\" wedlock, who is not adopted or legitimatized, is a hard one. The community itself has come to understand this hardship. After centuries of stagnation, an evolution has been taking place and illegitimate children are now being treated with more consideration. The contrast between the common law and present day statutes is striking.\nUnder the common law an illegitimate child was called \u201cfilius nullius\u201d son of no one, or \u201cfilius populi\u201d son of the people. People v. Moczek, 407 Ill 373, 95 NE2d 428; Cooley, 1 Blackstone\u2019s Commentaries, 455-459, 4th ed. His position in the community was one of ignominy and he had no rights in law. Since he was the child of no one he was without a name; Ms parents had no right to his custody and no subsequent act of theirs could make him legitimate, only a special act of Parliament could do so. Robinson v. Ruprecht, 191 Ill 424, 61 NE 631; Pfeiffer v. Wright, 41 F2d 464; 73 ALR 932; Schouler, Domestic Relations, secs 698-701, 6th ed, 1920. He could not compel his parents to support him, he could not inherit and he could have no heirs except Ms widow and the issue of his own body. Vetten v. Wallace, 39 Ill App 390; Murrell v. Industrial Commission, 291 Ill 334, 126 NE 189.\nIn most American jurisdictions illegitimate children were also treated harshly, but in recent years a more compassionate sense of social justice has brought about the enactment of beneficent legislation which has alleviated some of the oppression long visited upon these unfortunates. The whole climate has changed nationally, with variations in degree from state to state. 26 Brooklyn L Rev 45 (1959); 38 Boston UL Rev 299 (1958); 15 Fordham L Rev 282 (1946). More euphonious terms are also being used in the statutes. \u201cBastard\u201d is giving way to \u201cillegitimate child,\u201d to \u201ca child born out of wedlock,\u201d and to \u201ca natural child\u201d; \u201cBastardy Acts\u201d have yielded to \u201cFamily Acts\u201d and \u201cPaternity Acts.\u201d\nThis liberalization is reflected in the statutes of Hlinois: an illegitimate child has the right to his father\u2019s surname; either or both of his parents may be compelled to support and educate him until he becomes 18 years of age; his parents have custodial rights; he may be legitimatized by the marriage of his parents; if a birth certificate has been issued a new one is issued in the same form as for a legitimate child and the old certificate is impounded; if he is born following an attempted marriage, where some form of a lawful marriage ceremony has been performed, he is considered legitimate; if he is born of an adulterous relation lie may be legitimatized if Ms parents intermarry and Ms father acknowledges him to be his child; in order to facilitate his legitimation, the certificate of negative finding as to venereal disease in his parents, a prerequisite to marriage, is waived; he is not considered as illegitimate if, after his conception or birth, the marriage of his parents is declared void; the consent of his father is not necessary for his adoption; the word \u201cillegitimate\u201d and the phrase \u201cborn out of wedlock\u201d cannot be used in his adoption petition or decree; he may inherit from his mother and his maternal ancestors; if his mother has died he may inherit from those from whom she might have inherited; his issue may take what he would have taken if he were living; not only his wife and descendants inherit from him, but his mother and her descendants can also.\nThe developing concern in Illinois for illegitimate children is also illustrated by the support provisions of the 1957 Paternity Act. (Ill Rev Stats 1957, c 106%.) Since 1827 putative fathers have been obliged to contribute to the support of their children, but from 1827 to 1919 the maximum obligation imposed by law was $550; from 1919 until 1957 the statutory maximum was $1,100. This single amount was \u201cheld applicable whether the mother gave birth to one child, twins, triplets or quadruplets.\u201d Feirich, \u201cThe Paternity Act of 1957,\u201d 47 Ill BJ 824 (1959); Connelly v. People ex rel. Lewis, 81 Ill 379. Under the 1957 Act there is no limitation; the purpose of the Act is to see that the same care is provided for illegitimate as for legitimate children.\nAll these measures spring from the conscience of man disturbed by the severity of the common law and the patent injustices long suffered by innocent children, damned by the sins of their parents. By these benign statutes an illegitimate child\u2019s material inequality has been lessened, his legitimation made easier and his succession rights improved. Praiseworthy as they are, they do not, and no law can, make these children whole. Children born illegitimate have suffered an injury. If legitimation does not take place, the injury is continuous. If legitimation cannot take place, the injury is irreparable.\nThe injury is not as tangible as a physical defect but it is as real. This is acknowledged by the State itself. The statutory provisions that a child\u2019s illegitimacy must be suppressed, in certain public records, is an admission of the hardship that can be caused by its disclosure. How often during his life does an illegitimate try to conceal his parentage and how often does he wince in shame when it is revealed? Public opinion may bring about more laws ameliorating further his legal status, but laws cannot temper the cruelty of those who hurl the epithet \u201cbastard\u201d nor ease the bitterness in him who hears it, knowing it to be true. This, however, is but one phase, one manifestation of the basic injury, which is in being born and remaining an illegitimate. An illegitimate\u2019s very birth places him under a disability.\nIt is of this that the plaintiff complains. His adul-,/terine birth has placed him under a permanent disability. He protests not only the act which caused him to be born but birth itself. Love of life being what it is, one may conjecture whether, if he were older, \u25a0 he would feel the same way. As he grows from infancy to maturity the natural instinct to preserve life may cause him to cherish his existence as much as, through his next friend, he now deplores it. Be that as it may, the quintessence of his complaint is that he was born and that he is. Herein lies the intrinsic difficulty of this case, a difficulty which gives rise to this question: are there overriding legal, social, judicial or other considerations which should preclude recognition of a cause of action?\nBearing in mind that an action for damages is implicit in any wrong that is called a tort (Prosser, Law of Torts, 2d ed, \u00a7 1, pp 2-4) it may he inconsistent to say, as we do, that the plaintiff has been injured by a tortious act and then to question, as we do, his right to maintain an action to recover for this act. This is done deliberately, however, because on the one hand, we believe that the elements of a willful tort are presented by the allegations of the complaint and, on the other hand, we approach with restraint the creation, by judicial sanction, of the new action required by the complaint.\nRecognition of the plaintiff\u2019s claim means creation of a new tort: a cause of action for wrongful life. The legal implications of such a tort are vast, the social impact could be staggering. If the new litigation were confined just to illegitimates it would be formidable. In 1960 there were 224,330 illegitimate births in the United States, 14,262 in Illinois and 10,-182 in Chicago. Vital Statistics of the United States 1960, Vol 1, \u00a7\u00a7 1, 2 (1962). Not only are there more such births year after year (in Illinois and in. Chicago the number in 1960 was twice that of 1950) but the ratio between illegitimate and legitimate births is increasing. This increase is attested by a report of the Illinois Department of Public Health, released in July, 1962. This report revealed that in Chicago in 1961, of the 87,989 live births 11,021 were illegitimate, a ratio of eight to one. In 1951 out of 81,801 births, 5,212 were illegitimate, a ratio of fifteen to one. The present Chicago ratio is twice that of the State and more than three times that of the Nation. The number of children who remain illegitimate is also of importance in estimating possible litigation. Accurate figures are not available, but a report made in October 1962 by the Hlinois Public Aid Commission disclosed that in Cook County as of December 1961 there were 54,984 illegitimate children participating in the Aid to Dependent Children program. How many of these were \"born under, circumstances making legitimation impossible, the report does not reveal.\nThat the doors of litigation would be opened wider might make us proceed cautiously in approving a new action, but it would not deter us. The plaintiff\u2019s claim cannot be rejected because there may be others of equal merit. It is not the suits of illegitimates which give us concern, great in numbers as these may be. What does disturb us is the nature of the new action and the related suits which would be encouraged. Encouragement would extend to all others born into the world under conditions they might regard as adverse. One might seek damages for. being born of a certain color, another because of race; one for being born with a hereditary disease, another for inheriting unfortunate family characteristics; one for being born into a large and destitute family, another because a parent has an unsavory reputation.\nThe present case could be just a forerunner of those which may confront the courts in the future. Without stimulating them, we may have suits for wrongful life just as we now have for wrongful death. Cases are appearing in the domestic relations field concerning ^children born as a result of artificial insemination. Walker, Legitimacy and Paternity, 14 Ark L Rev 55 (1960). How long will it be before a child so produced sues in tort those responsible for its being?\nWill there be public sperm banks such as the blood banks we now have? Presently, a private sperm bank is said to exist. The author of an article in the American Bar Association Journal wrote:\n\u201c. . . to protect the issue of the astronauts from mutations resulting from ionizing radiation in space, a technique has been developed for them to deposit their sperm in a sperm bank and to preserve it indefinitely through a refrigeration process. (See New York Times, July 16, 1961, p 57; August 29, 1961, p 26. \u2018Survival\u2019 \u2014 The American Institute of Biological Sciences Bulletin, October, 1961, p 15.)\u201d Leach, Perpetuities in the Atomic Age: The Sperm Bank and the Fertile Decedent, ABAJ, vol 48, No 10 (1962).\nIf there are public sperm banks in future years and if there are sperm injections like present day blood transfusions, with donors and donees unknown to each other, will there not be a basis for an action for-wrongful life?\nAs man\u2019s knowledge increases he will wield ever greater control over the functions of nature. Where this may lead and what its consequences may be are unpredictable. As one biologist observed, \u201cSome would-be architects of our future look toward a time when it will be possible to alter the human germ plasma by design.\u201d Carson, Silent Spring, p 8 (1962). In the event it becomes possible to produce departures from normally-to-be-expected, inheritable qualities, would an action lie for wrongful life by a victim of intentional gene mutation who was dissatisfied with the result?\nWe shall include another example, farfetched to be sure, but illustrative of the point being discussed. Dr. George Wells Beadle, president of the University of Chicago and an eminent biologist, is quoted as saying, \u201cNo one has yet synthesized life, but biologists say it should be possible.\u201d Manly, University of Chicago, Chicago Daily Tribune, April 28,1961. Under the title \u201cModern Creation\u201d the medical editor of the same newspaper wrote this:\n\u201cWhat is the nature of life? To answer this question scientists first must create life in a test tube and research along this line is being done in many laboratories thruout the world. They are down to the basic chemical ingredients and the code conld be broken at any time by the right manipulation and recombining of different molecules.\u201d Yan Dellen, Modern Creation, Chicago Tribune, January 20,1963.\nIf such awesome experiments are successfully pursued and their ultimate goal, the abiogenesis of human life achieved, would a being so created have a cause of action for wrongful life against those whose knowledge and skill were so employed?\nIf we are to have a legal action for such a radical concept as wrongful life, it should come after thorough study of the consequences. This would be so even if the new action were to be restricted to illegitimates or even adulterine illegitimates. A study, of the depth and scope warranted by the gravity of this action, can best be made by the General Assembly which, as we Jiave seen, has been steadily whittling away at the legal handicaps shackling bastards and has given them rights almost equivalent to those born legitimate. Changing economic, social or political conditions, or scientific advancements, produce new problems which are constantly thrust upon the courts. These problems often require the remolding of the law, the extension of old remedies or the creation of new and instant remedies \u2014 but no recent development is presented by this case which demands an immediate remedy to keep abreast of progress. Although the legal questions unfolded are new, the problem is not; the social conditions producing the problem have existed since the advent of man.\nWe have decided to affirm the dismissal of the complaint. We do this, despite our designation of the wrong committed herein as a tort, because of our belief that lawmaking, while inherent in the judicial process, should not be indulged in where the result could be as sweeping as here. The interest of society is so involved, the action needed to redress the tort conld be so far-reaching, that the policy of the State should be declared by the representatives of the people.\nAffirmed.\nSCHWARTZ and MoCORMICK, JJ., concur.", "type": "majority", "author": "MR. PRESIDING JUSTICE DEMPSEY" } ], "attorneys": [ "Hugh. M. Matchett, of Chicago, for appellant.", "Max Rheinstein, of Chicago, amicus curiae, for ap-pellee." ], "corrections": "", "head_matter": "Joseph Dennis Zepeda, a Minor, by Irma M. Flores, His Next Friend, Plaintiff-Appellant, v. Louis Raul Zepeda, Defendant-Appellee.\nGen. No. 48,291.\nFirst District, Third Division.\nApril 3, 1963.\nRehearing denied June 11, 1963.\nHugh. M. Matchett, of Chicago, for appellant.\nMax Rheinstein, of Chicago, amicus curiae, for ap-pellee." }, "file_name": "0240-01", "first_page_order": 250, "last_page_order": 273 }