## Facts

- Lee Perry and Richard C. Atkinson began an intimate relationship in 1976 while Atkinson was married and developed a relationship of trust and confidence.
- In August 1977, Perry became pregnant with Atkinson’s child.
- Atkinson urged Perry to have an abortion and represented that he wanted to postpone having a child with her for a year.
- Atkinson promised that, even if they were not together in a year, he would conceive a child with her by artificial insemination.
- Perry alleged she relied on that promise and terminated the pregnancy by abortion, suffering physical and mental pain.
- Perry alleged that after the abortion she learned Atkinson never intended to perform the promise, and she suffered depression, psychiatric treatment, medical expenses, and lost earnings.
- Perry sued for fraud and deceit and intentional infliction of emotional distress (IIED), claiming the promise was made without intent to perform to induce the abortion.

## Issues

1. Whether California law recognizes a tort claim for fraud and deceit based on a false promise to conceive a child in the future, used to induce a woman to obtain an abortion.
2. Whether public policy and privacy concerns bar judicial adjudication of alleged misrepresentations tied to intimate procreative decision-making.

## Decision

- The trial court granted summary adjudication against Perry on the fraud and deceit claim and sustained Atkinson’s demurrer to that claim without leave to amend, based on public policy and privacy concerns.
- The Court of Appeal treated the appeal as taken from the order sustaining the demurrer without leave to amend and affirmed.
- The court held that a promise to conceive a child is not enforceable and that public policy precludes a fraud claim premised on such a promise, even assuming falsity, intent to deceive, reliance, and resulting harm.
- The ruling addressed only the fraud and deceit theory; it did not decide the merits of Perry’s IIED claim.

## Legal Principles

- Courts look to the substance of the pleaded theory; labeling a claim as fraud does not avoid limits on adjudicating claims that effectively seek enforcement or valuation of private procreative promises.
- A false promise to conceive a child in the future is not a cognizable basis for fraud and deceit where recognizing the claim would require judicial involvement in intensely private reproductive choices.
- Public policy and constitutional privacy concerns can bar tort liability when adjudication would entail governmental intrusion into intimate sexual and reproductive decisions.
- On demurrer, allegations are assumed true, but dismissal is proper when the pleaded facts cannot state a legally recognized cause of action as a matter of law.

## Conclusion

The court affirmed dismissal of the fraud and deceit cause of action, holding that California public policy and privacy protections bar a tort claim premised on a false promise to conceive a future child made within an intimate relationship, even when the promise allegedly induced an abortion and caused significant harm.


Perry v. Atkinson, 195 Cal. App. 3d 14 (Ct. App. 1987)