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Israeli Law on “Forced Fatherhood”

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Many have written about the importance of parental love for a child’s emotional development. But what happens when a father resents fatherhood? As I am not a psychologist, I will not address the mental health implications of such sad circumstances for the child or for the father. Rejection of paternity, however, raises a serious legal as well as moral dilemma. “Is forced fatherhood fair?”  Should a man who engages in sex with a woman always consider the likelihood of her impregnation by the act? Should she consider such a possibility? Who should bear responsibility? Should the answer to these questions depend on the circumstances? I recently read an Israeli court decision that dealt with a father who alleged to have been forced into fatherhood. I would therefore like to address some of the legal implications of unintended parentage as pointed out by the court.

Circumstances of the 2018 Case

The case involved a suit by a plaintiff who claimed he had been harmed by the defendant, who conceived and gave birth to twins that resulted from their sexual encounter. According to the plaintiff, the defendant had deliberately seduced him to engage in sexual intercourse with her on her ovulation day, telling him that she was using an intrauterine device (IUD) and was not interested in an additional pregnancy as she already had three children. (FamC (TA) 33934-08-17, Anonymous v. Anonymous (Sept. 4, 2018) (decision by Judge Shifra Glick), Takdin Legal Database  (by subscription).)

The decision’s introductory notes state that the decision

… [D]eals with a determination in a lawsuit filed by the plaintiff against the defendant that was essentially defined as [being based on] tort, fraud, robbery, sperm theft, contractual negligence, monetary and non-monetary damage.

“Robbery” and “sperm theft,” really?

Avot baʻal korḥam / Shemuʼel Baniʼel, Mosheh Ronen (Rainish),
Avot baʻal korḥam / Shemuʼel Baniʼel, Mosheh Ronen (Rainish),

Based on the evidence submitted in the trial, Judge Glick determined that the defendant had been dishonest with the plaintiff, and that she indeed “transformed the plaintiff into a parent against his will.” (FamC (TA) 33934-08-17 ¶30).

Legal Determinations

Judge Glick rejected all the claims against the defendant, with the exception of the one for compensation for non-monetary damages. She determined that compensating the plaintiff at an amount equal to child support for which he is liable for would violate the principle of the “best interests of the child.” (Id. ¶¶33-42). She further found that courts in the United States and in Israel had recognized suits for “sperm theft” only in selected cases where the pregnancy did not result from having sexual relations, but from the use of a man’s sperm without his knowledge and consent. (Id. ¶40).

According to Judge Glick, the parties’ relationship was merely “random and casual contact” and therefore did not constitute a contract. (Id. ¶45.2.) In her opinion, this conclusion was also supported by the defendant’s initial willingness to undergo an abortion, subject to payment of a large amount of money. (Id. ¶45.3.) The judge determined that this type of relationship could also not substantiate a claim of negligence, even if one accepts extending torts liability to negligent misrepresentations. (Id. ¶54, referencing Pinchas Shifman, A Parent against His Will- Misrepresentation Regarding Use of Contraceptives, 18 Mishpatim 459, at 479.)

Judge Glick rejected the other allegations of robbery and fraud, concluding based on moral considerations, that the court cannot award financial compensation for the birth of a healthy child. (Id. ¶¶59-60.)

Finding that the plaintiff had been aware of the need to use contraceptives, Judge Glick held that he had nevertheless been willing to have sexual contact with the defendant “not in the context of a spousal relationship and purely for pleasure.” Therefore, in her opinion, it was unreasonable to let the defendant avoid any responsibility for having intentionally lied to the plaintiff. (Id. ¶ 71.) She consequently ordered the defendant to pay the plaintiff a limited amount of compensation for emotional non-monetary damages he incurred because of the defendant’s behavior (40,000 new Israeli shekels, about US$11,160). (Id. ¶¶ 68–72.)

Moral and Legal Dilemma

Complaining about injustice and a lack of equality between fathers and mothers in cases of “sperm theft,” the authors of “Fathers against Their Will”, published in Israel in 1992, refer to the evolution in the status of fathers over the ages. According to the authors, in the old ages, as described in biblical stories as well as under Roman law, fathers were the heads of their family, and had exclusive authority over their children. Today, however,

The significance of fatherhood is only obligations towards [the father’s] children. The children hardly owe him anything- but are entitled to get from him food, lodging, education, and finally also inheritance… No wonder, then, that many view fatherhood today not only as a great right, but also as a difficult duty and a heavy load. Among them are, of course, also fathers against their will. (Id. pp. 9-10).

The book discusses various legal aspects associated with “sperm theft.”

Responsibility of “Sperm Theft” Victims

In 2013, the Tel Aviv court has reportedly ruled that a woman tricked a man into thinking she was infertile and ordered her to compensate the plaintiff. The court took into account, however, that “[e]ven though the chances of conception seemed “slim,” he should have considered the possible outcome of having sex with her without using contraception.”

One of the main consequences of recognition of paternity is the payment of child support. Women held responsible for “sperm theft”, though, are generally not obliged to return child-support as such a requirement is viewed as violating the principle of “the best interests of the child.”

A 2013 decision by the Jerusalem Family Court cited by Judge Glick in her 2018 decision, however, did impose on a female defendant a penalty of return of child support. The case involved a plaintiff, a Haredi (an ultra-Orthodox) Jew, who fathered a child after having donated his sperm for the purpose of in vitro fertilization (IVF), under false pretense, not knowing that the defendant had received an egg donation for the purpose of IVF outside of Israel. The Court determined that the woman’s behavior constituted fraud, negligence, violation of the duty of good faith, as well as violation of a contract by deviating from the man’s authorization for use of the sperm in IVF.

Having found that the woman lacked financial assets and that the man was wealthy, the court ordered that the enforcement of the woman’s financial obligations be delayed until the minor reached the age of majority or until she finishes her high school studies. (FamC (Jer) 22317-08-11 M.V. v. Z.S.V. (Apr. 21, 2013) (decision by Judge Nimrod Flex), Nevo Legal Database (in Hebrew) (by subscription).)

Resources on Legal Aspects of Human Reproduction

The Law Library of Congress website has a number of research products on issues related to bioethics and reproductive rights. These include the following legal reports:

A search of In Custodia Legis may also identify related posts, including Laney’s A Legal Battle Over Frozen Embryos in China.

We also have relevant articles on our Global Legal Monitor website, where you can search by topics such as “Family Planning and Birth Control”; “Families”; “Marriage and Family Status”; etc.

In addition to “Fathers against Their Will”, referred to above, the Library of Congress’ collections include a number of titles on issues of proof of paternity in Israel and in other countries, and parental responsibilities. We invite you to review the catalog and search our vast collections, or submit questions through the “Ask a Librarian” feature.

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