1. Introduction
2. The Right to Procreate
  2.1 Skinner v. Okla.
  2.2 Wiscon. v. Oakley
  2.3 Involuntary Sterilization
  2.4 Kin Selection
  2.5 Marriage
  2.5.1 Anonymous
  2.5.2 Tompkins v. Tompkins
  2.5.3 Williams v. Williams
  2.6 Transgender Marriage
  2.7 Polygamy
  2.8 Prostitution
  In Brief
3. Who Is My Family?
3.1 Family Identity and the Right to Associate with Kin
  3.2 Marriage and the Paternity Presumption
  3.2.1 Jones v. Trojak
  3.2.2 Michael H. v. Gerald D.
  3.2.3 William "TT" v. Siobhan "HH"
3.3 Paternity Estoppel
3.4 Equitable Parenthood
3.5 Duty to Support
  3.6 The Paramour Statute
  3.7 Maternal Transmission of Citizenship
  In Brief
4. Whose Child Is This?
  4.1 The Surrogate Cases
  4.1.1 Johnson v. Calvert
  4.1.2 Belsito v. Clark
  4.2 Shotgun Weddings
  4.2.1 Fairchild v. Fairchild
  4.2.2 Gard v. Gard
  4.2.3 B. v. S.
  In Brief
5. Shopping For Eggs & Sperm
  5.1 Bad Sperm
  5.2 Cryogenic Orphans & Waifs
  5.2.1 Gifts of Sperm
  5.2.2 Who Is My Father?
  In Brief
6. Sexual Orientation
  6.1 The Right to Practice One’s Sexual Orientation
  6.2 Discriminating on the Basis of Sexual Orientation
6.3 Same-sex Adoption
6.4 Same-sex Marriages
  In Brief

4.2.2. Gard v. Gard


204 Mich. 255; 169 N.W. 908; 1918 Mich. LEXIS 670; 11 A.L.R. 923

December 27, 1918, Decided

OPINION:  FELLOWS, J. Plaintiff, a young farmer about 29 years old, lives in Berrien county. Defendant, a woman 31 years old, resided in Chicago prior to her marriage to plaintiff. Plaintiff files this bill to annul the marriage between the parties on the ground of fraud in its procurement.  …  Without detailing the testimony it will suffice to state that from a careful perusal of this record we are convinced that the following facts are established beyond peradventure: (1) That the parties were married February 17, 1916; (2) That they had sustained illicit relations prior to marriage; (3) That the day before the marriage defendant came from Chicago to St. Joseph in this State, there met plaintiff by appointment and there falsely represented that she was pregnant by defendant, which representation was believed by plaintiff who married her to so far as possible repair his wrong; (4) That defendant was delivered of a full-term child March 6, 1916; (5) That said child was not begotten by plaintiff but was the child of another man who was in the Philippines at the time defendant charged plaintiff with its paternity, and that defendant well knew this to be true; (6) That upon learning that the child was a full-term child and could not be his, plaintiff repudiated defendant and the spurious offspring and has not since lived or cohabited with her.

We therefore have before us for solution the question of whether a bill will lie to annul a marriage procured by the false representation of the wife before marriage that she is pregnant by the man she marries, which misrepresentation is known by her to be untrue, but is believed by the husband and the marriage relation is contracted in such belief, the parties theretofore having sustained illicit relations, when it is established beyond question as a matter of fact that the child was begotten by a stranger.

That this plaintiff has been defrauded, deceived and tricked into this marriage we entertain no doubt. It is intolerable to believe that he should be compelled to continue through life as the husband of defendant, caring for, as his own, this bastard child of another, with its constant reminder of his wife's perfidy before marriage, because in attempting to right a supposed wrong he entered into the contract of marriage. That a man may have a true parental affection for the child that sprang from his own loins even though conceived before marriage is natural; but, that he should have such affection for one that sprang from the loins of another man and was foisted upon him by a designing woman is unbelievable. It has been said in many of the cases cited that one of the great purposes of marriage is procreation. It is evident that a wife pregnant by another cannot carry out that purpose and hence that purpose of marriage must fail. All true, but there are other purposes of marriage beyond the perpetuation of the species. One of the purposes is the maintenance of the sacred institution called home. It has been said that there are three parties to the contract of marriage, the two contracting parties and the public. Can it be that a wise public policy requires in the name of home the maintenance by the husband of an establishment presided over by one who has deceived him as to the paternity of the little one who daily sits at his board, who bears his name, who will in the absence of testamentary disposition inherit his property, the offspring of another, a stranger to his blood? Most assuredly not. We do not palliate plaintiff's infraction of the moral code. Society will visit its penalties upon him. We are not the keepers of his conscience or the censors of his morals. We can only administer the law, imposing penalties only that are imposed by the law, granting relief only as the law affords relief. Under the law this plaintiff is entitled to be relieved from this contract of marriage, procured by fraud, and a fraud well calculated to deceive under all the facts in the case, and which did deceive the plaintiff and caused him to do the only thing an honorable man could do after his transgression of the moral code with its supposed result.

We do not overlook the claim most earnestly pressed by defendant's counsel at the argument and in the brief that during the acquaintance of the parties defendant informed plaintiff that she had had intercourse with another. It is urged that this should have prompted more vigilance on the part of plaintiff. We have already called attention to the holdings of this court upon this subject, and certain facts to which we shall presently refer will demonstrate that the circumstances would readily prompt a reasonably prudent man to believe defendant's claim as to the paternity of the child. If plaintiff was seeking annulment of the marriage on the sole grounds of want of chastity of his wife he could not successfully assert he had been defrauded if he had knowledge on the subject before the marriage. Nor under the authorities could he assert her want of chastity as grounds of annulment, where he himself had been a party to her unchaste conduct. The gist of the action here, the right to relief is based upon the ground that she has falsely represented herself to be pregnant by plaintiff, when as matter of fact she was pregnant by another …

… The plaintiff might have been willing to protect the woman with whom he had been intimate and who he supposed was pregnant by him, even though she had been unchaste before he ever saw her, but at the same time no right-thinking man would be willing to take as wife a woman pregnant by another.