Sperm Theft

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.

What is sperm theft?

Sperm theft is a situation where a woman deceives a man during sex, in order to become
pregnant, as a result of sexual relations. Typically, cases of sperm theft occur when the
acquaintance between a man and a woman is not a deep acquaintance, although there have
been cases of longer relationships. In fact, the situation in cases of sperm theft is that the
couple have sex, later they end the relationship between them and only after a period of
time, the man receives a claim for fatherhood and a claim for child support.

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.

Child Custody Law – in practice

Before we discuss in depth the obligation of a man to bear child support in cases where a
claim was made regarding sperm theft, let me briefly explain the law regarding child
support under the Israeli law. Child support laws are derived from the religious-personal
law applicable to the couple. In other words, the father owes his children’s alimony in
accordance with the religious law, be it Jewish, Muslim or Christian. I will focus on the
Jewish law. As stated, the father’s duty to his children’s alimony is an absolute obligation
that is not dependent on his income. This is how the Supreme Court rightly described the
father’s duty to feed his children: “a man’s ‘child’ is his natural biological child. There is
no ‘legal’ child and an ‘illegitimate’ child. A person must pay alimony for his biological
children… A father’s duty is to feed his children: This is a big rule in the law of alimony
…… including the rules that create the image of a person, society, nation and state.
3077/90.

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.

Obligation to pay child support – in a case of sperm

theft
Even in cases where the father claims to sperm theft, he can still be obliged to pay child
support by power of the personal-religious law or, in cases where the personal-religious
law is not relevant, by power of Family Law Amendment (Alimony), 5719-1959 (I will
not elaborate on this issue). As stated, the father’s obligation to bear his children’s support
is an absolute obligation. The duty is also a moral obligation, which stems from the desire
to allow the children an adequate economic existence, even if the father does not live with
them under the same roof. This is also the case when the father refuses to have contact with
his children. Even in such a case, the father will be charged with his children’s expenses.
However, there have been cases where the courts reduced the amount of child support, in
cases where it is proven that there was theft of sperm, that is – the child receiving the
alimony, was born as a result of misleading by the mother, regarding her desire to become
pregnant. Thus, for example, the Family Court ruled in a case where sperm theft was
proven. The latter determined that although the father should pay the obligatory child
alimony, but the charity alimony should be imposed on the mother, in this way the court
actually reduced the obligation of the father’s child support: “In light of the above and
taking into account the circumstances, including the circumstances of the minor’s birth and
the economic potential of the parties, I state that the defendant must pay all the necessary
expenses of the minor, but it is appropriate to reduce the defendant’s share in the minor’s
expenses by charity. It will be the plaintiff who will bear the greater sum of the expenses
that are by the laws of charity. “The quote was taken from family law file (Tel Aviv) 35431-
06-11. Please note that it is not easy to prove sperm theft and even if proven, the father
probably might have to pay child support. The claim has to be proven with facts and not
just by a general statement. The fact that a couple has un-safe sex is not proof that the
sperm was stolen, as shown above in the quotation of the court ruling.

Agreement between the parents – is it compelling?

It is often asked whether an agreement between a mother and a father in a case of sperm
theft, in which the mother claims that she is not interested in anything from the father,
including alimony, is a binding agreement. The answer is simple and brief: no. A claim for
child support is an independent claim. The children can themselves claim for the alimony
and are entitled to submit it through a third party, that is, an adult, including their mother.
Therefore, the consent that exists between the mother and the father has no legal validity
in such cases.
Claim of fatherhood:
Fathers are often prosecuted for alimony, in cases of sperm theft and in general. On the
other hand, fathers often argue that they are not the parents of that child. In such cases, the
Rabbinic Court or the Family Court may order the father to perform a paternity test.
Paternity testing is a tissue test. This is a simple test designed to examine genetic
compatibility between the father and the minor child. Through the examination it is
possible to discover whether the father is indeed the father of the minor. There are also
cases in which the father refuses to do a paternity test and then he risks a sanction from the
Family Court or the Rabbinic Court. The legal rule is that if a father refuses to perform a
paternity test, then he is regarded as the real father of the child. Note that there are cases in
which a judicial court does not order a paternity test. For example, in cases where a child
is born as a result of having sex between a married woman and another man, who is not
her husband, then the children that will be born to her will be illegitimate (bastards and not
allowed to marry, according to the Jewish law) and also in cases where the child was born
as a result of rape or incest.

A cause of action due to sperm theft

After reviewing all the relevant terms with regard to the term “sperm theft”, let us discuss
the question: does sperm theft, provided it is proven, constitute a cause of action against a
woman who committed this act? The answer is yes. In the past, these claims were totally
rejected, since the assumption was that sexual relations between consenting adults imposes
on them, including on men, the obligation to use contraception. On the other hand, in recent
years there has been a shift in this assumption and a number of rulings have already been
passed, in which the woman is obligated to compensate the man, under the tort law, in
cases where sperm theft has indeed been proven. In fact, in a case of sperm theft, the man
has the option of filing a direct suit against the woman regardless of his obligation to pay
child support. Among other things, a man can file a claim by virtue of the cause of
deception in accordance with the Civil Wrongs Ordinance [New Version] (hereinafter: “the
Torts Ordinance”). The grounds for deception under the Torts Ordinance include a tort of
fraud, that is, the presentation of a fact knowing it is wrong. For example, a man who has
sexual relations with a woman, when the latter assures him she is taking birth control pills,
can theoretically establish a cause of action by virtue of the deception. Another cause of
action in such cases may also be expressed in the tort of negligence. In other words, a
woman who misleads and deviates from the standard of caution expected of her – in this
case, there is also a causal link to the harm caused to the man and the obligation he has to
pay child support.

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.