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You met a woman at some event you went to. You spent some time with her and has sex.
Your relationship didn’t last long and you both didn’t define it as a serious relationship.
Moreover, during the few times you had sex the woman told you that she is on the pill, or
maybe told you that she has a fertility problem preventing her from falling pregnant. In
time, long after your relationship ended, you are amazed to find in your mailbox a claim
for child support from that woman, who now claims that she fell pregnant as a result of
having sex with you and she is now claiming for monthly alimony. What does the law state
in such a case? What do you do in such a situation? To find our – read on.
The situation describes above does happen from time to time and the case is based on true
stories. This situation is call Sperm Theft, where a man has sex with a woman and she falls
pregnant after supposedly misleading the man regarding her ability to fall pregnant or that
she is on the pill. In the following article, I will explain what sperm theft is, what the law
in such cases is, and what the position of the case law is. In addition, I’d like to clarify at
this point that it is necessary to distinguish between theft of sperm that is done through
deception and theft of sperm derived from seduction or free sexual intercourse without the
man taking precautions. The latter case does not establish a cause of action for the theft of
sperm (grounds of action, will be discussed in the article). But in the first case, if deception
is proved, then a man may have a cause of action against the woman. The words of the
Supreme Court are as follows: “A man who has sexual relations with a woman, whether or
not by seduction, is responsible for the natural consequences of his act,” President Shamgar
wrote, “temptation is not deceit, and anyone who cannot resist any kind of temptations is
not exempt from responsibility for his actions, be it theft due to uncontrollable
circumstances or be it a woman seducing him to have sex with her. All the more so, there
is no basis for the Appellant’s claim, when he knowingly had a sexual relationship and a
reasonable person should be aware of the meaning of the act and its possible consequences”
file NO. 5464/93 Pier V Pier. I will discuss this as well as fatherhood claims and the duty
to take fatherhood test later in the article.
Note Before We Begin – The following article is general and does not serve as a substitute
for specific legal advice. To do this you can contact our office and coordinate a consultation
meeting. In addition, I’d would like to clarify that sperm theft is relatively marginal
phenomena and the article is in no way intended to insult both men and women.
The common cases of sperm theft are expressed in situations where sexual intercourse is
performed while presenting a false situation by the woman. Often these misrepresentations
are expressed in the woman’s commitment that she is on the pill. Sometimes – and there
were cases in Israel and in the United States – the woman took the sperm of the man and
then performed artificial fertilization. In fact, sperm theft is a situation in which a woman
becomes pregnant as a result of sex, while deliberately deceiving the man in order to
become pregnant. This of course, is not a criminal offense, but in some cases, the victim is
the child to be born, who will usually grow up without a father who does not want to have
a relationship with him, and the father, who was negligent in not taking birth control, will
now have to pay child support.
When talking about the term “sperm theft,” it is necessary to show that the theft of the
sperm was made, as stated, consciously and misleadingly. It is necessary to distinguish
between a situation in which two adults have sexual relations and the woman becomes
pregnant unintentionally, and a situation where, in advance, the goal of the sexual
intercourse is for the woman, to get pregnant without the consent of the man. The scholar
Schiffman describes the nature of the deception and misrepresentation required in cases of
sperm theft: ” A misrepresentation of a fact that the presenter knew was incorrect or that
he was indifferent to the possibility that it was incorrect and that was deliberately presented
so that the misled person would act upon it, would give grounds for fraudulent acts if the
presentation intended to mislead the plaintiff, did mislead him and the plaintiff acted on it
and suffered financial damage. These principles apply when a person declares that he or
she is using contraception or is sterile, knowing that this statement is incorrect and that the
other side will act on it and have sex with her. If the other party has sex on the basis of a
false statement, he may claim compensation if he has suffered pecuniary damage as a
result”. Prof. Pinchas Shifman’s article, A Parent Against His Will – A Misrepresentation
of the Use of Contraceptives, Mishpatim, 18 (1988), the quoted part, is quoted from
judgment in case 23789-02-11.
Let me summarize this point: sperm theft is a situation in which a man and a woman have
sexual relations and the woman is misleading the man by telling him that she is taking
contraceptives or, alternatively, when the woman uses the man’s sperm without his
knowledge and consent to fall pregnancy. Distinguish between the situation of sperm theft
and the situation in which two people have sex, do not take contraception and as a result
the woman becomes pregnant. It is clear that the last case cannot be seen as stealing sperm,
but at most, irresponsibility on both sides.
If sperm was stolen from me – could the woman be
forced to have an abortion?
There is no need to talk at length about a woman’s right to her body, including her right to
conceive and raise a family. There is certainly no reason to talk at length about how
abortions might cause physical harm to women who have them and even prevent them from
conceiving in the future. Abortion is a medical act that kills a fetus that has not yet been
born. An abortion in the State of Israel requires the approval of a special committee.
Moreover, an abortion, naturally, is an act that only a woman can do. Therefore, the answer
to the question in the title is altogether no. The right of the woman to her body, her physical
right to conceive, her right to autonomy and dignity, and her right to preserve her body far
outweigh the man’s right not to be a father and certainly the man’s right not to bear child
support in certain cases. Therefore, in no way can a woman be required to have an abortion,
even in the case of sperm theft. The meanings of sperm theft are expressed in other places,
as I will explain below.
One must also distinguish between types of alimony: there is alimony that is obligatory,
and there is alimony that is derived from the law of charity. Compulsory child allowances
refer to the current and basic expenses required for raising a child. Therefore, until the age
of 6, the father owes all his children’s alimony by the compulsory law. Compulsory
alimony is absolute – with all that this implies. On the other hand, there is also alimony by
the charity law, which include expenses for raising the child, but not basic expenses. From
the age of 6 to the age of 15, the father must be obligated to provide obligatory alimony,
but when it comes to non-basic expenses, the father must pay by charity laws, when this
alimony is derived from the father’s salary and also take into account the mother’s income.
As for the judicial tribunal in matters of alimony derived from the religious law, both the
Rabbinic Court and the Family Court have the power to deal with claims for alimony. In
other words, there is parallel authority of the courts to deal with alimony.
Note that in the law of torts there is a term, called Contributory Negligence. In other words,
when tort claims were received by fathers for theft of sperm, these fathers were assigned
the same contributory guilty, that is, it was determined that they also contributed to the
theft of sperm by their behavior. For example, when a man does not use contraception,
despite the woman’s assurance that she is taking birth control pills, the man is still negligent
because he does not take all reasonable steps to avoid getting pregnant.
For example, the court ruled that in a case where the woman stole the sperm of her partner
and later performed artificial fertilization, she would be liable in torts to the man. It was
determined that the man did not agree to artificial insemination and was not told by the
woman that she intended to carry out this fertilization. Finally, the court ruled that although
the father would be charged with the child’s alimony, the woman was obliged to
compensate him for the alimony he would pay. In addition, it was determined that the
woman would be liable to NIS 150,000 in damages for stealing the sperm. This was in a
family court case in Jerusalem. In another case in Tel Aviv a man claimed that the woman
stole his sperm after she told him that she was barren. She later managed to conceive (the
couple mentioned had a relationship in their youth). Accordingly, the man claimed that in
light of the woman’s declaration, he did not use contraception. The court ruled that sperm
theft was indeed carried out, but also charged the man with contributory negligence, as
explained above, in light of the man’s shared responsibility. However, the woman was
required to compensate the man with 75,000 NIS.
In conclusion
Sperm theft is a situation in which two people have sex, when the woman allegedly
deceived the man about her ability to conceive, or, misleads him about contraceptives that
she takes to avoid getting pregnant.
This teaches us that sperm theft – as it is – is stealing a man’s sperm for the purpose of
falling pregnant without his consent and will. Today, tort liability can be established against
a woman in cases where sperm theft is indeed proven. But it is often the man’s fault, too,
because it is the man’s responsibility (too) to take birth control and to avoid unwanted
pregnancy. However, even in a case of sperm theft, the father will be charged with child
support, when there is a ruling that determines that the amount of alimony should be
reduced – as long as it is proven that the sperm was stolen. Furthermore, in such cases and
in general, it is advisable to use a family lawyer.