March 1, 2013 — -- A Louisiana man is suing a fertility clinic and an ex-girlfriend after the sperm bank handed over two vials of his sperm in a "paper lunch sack" to the woman who then conceived a child without his permission, his lawyer said.
Lawyer Cade Bernsen accuses Toby Devall of having "bluffed her way into getting the sperm" and created a baby without ex-boyfriend Layne Hardin's consent "purposefully out of vindictiveness and to punish him for breaking up with her."
Hardin also alleges that the sperm bank and an affiliated fertility clinic had an "utter lack of safeguards and protections," according to his lawyer.
Now Hardin could be asked to pay child support for the 2-year-old boy, despite never authorizing the use of his sperm or having met the child.
In 2002 Layne Hardin, 44, and then girlfriend, Katherine LeBlanc, 40, agreed to freeze Hardin's sperm after having a son, who is now 12, and Hardin decided to undergo a vasectomy, according to court papers.
Bernsen, who represented both Hardin and LeBlanc, said the couple signed a contract with a sperm bank giving any future access to the sperm solely to LeBlanc if she decided to conceive another child. They paid annually to keep the sperm cryogenically frozen.
The couple subsequently broke up, and Hardin began dating Toby Devall. Hardin and Devall had a "volatile, on-and-off again relationship" that ended two years ago, Bernsen said.
Hardin and LeBlanc allege that Devall in 2011 walked into the Texas Andrology Services sperm bank, asked for and was given Hardin's sperm, no questions asked, Bernsen said. She then went next door to the affiliated Obstetrical and Gynecological Associated fertility clinic and was inseminated, the lawyer said.
"They had a written contract that specified only two people that could access this sperm, yet the sperm bank let someone walk in off the street and take two vials of sperm in a paper lunch sack… They never checked. That's what's frightening," Bernsen said.
A representative for the sperm bank said "no comment," when reached by ABC News.com.
Devall had a son, now 2, with the sperm. But Hardin has never met the boy, his lawyer said.
Both parties live in a small town and neighbors tell the man the boy looks like him, adding to his personal anguish, according to his lawyer.
Hardin's lawyer said the man may ultimately be forced to pay child support.
Devall is represented by John Lee Hoffoss.
"This case involves the life of one innocent child. Soon, 12 men and women will see all of the evidence and make a decision based upon the true facts of the case," Hoffoss said in a statement issued to ABCNews.com.
"It is not fair to the family, nor the justice system to try this case in the media. The truth will come out at trial and will be reflected in the jury's verdict. We ask that you report the facts based on the evidence and allow our system to work as intended," Hoffoss said.
The case will likely be tried in a Houston court in April. That is where the sperm bank contract was initially signed.