Acquiring your sperm without your approval or knowledge

Do you suspect your sperm has been stolen? Were you told you’re about to become a father—despite your explicit objection to that? Has your partner assured you that she uses contraceptives, yet despite that gotten pregnant?! There is something to do about it!

Don’t hesitate to contact the firm of attorney and N.P. Avivit Moskovich, which specializes in legal representation and accompaniment in cases that require sophisticated solutions and resourcefulness.

There is no legal definition of ‘sperm theft’. Sperm theft is not defined clearly and unequivocally in terms of the law. However we can attribute it to the subjective feelings of a man whose sperm has impregnated a woman, against his will and knowledge.

Sperm theft in criminal law

Criminal law does not recognize this type of theft; moreover, there are no related restrictions or offenses in civil law. The Israel law books contain no legal definition for the terms ‘sperm theft’, or ‘seizing of sperm’ through negligence, mistakenly, or without a party’s knowledge.

Who has the right to decide on continuing a pregnancy in the event of sperm theft?

The right of choosing whether to continue or terminate a pregnancy is reserved solely to the mother.

So what’s left for the father to do? What about sperm theft in terms of damages and contractual considerations?

An allegation of deception, or the seizing of a man’s sperm without his knowledge, can be submitted only as a suit for damages. From a legal aspect, this means that one can file (1) a claim for compensatory damages, or (2) a suit for breach of an unwritten contract.

Claim for compensatory damages: The civil law ordinance stipulates that one may not make a false representation to another person. In instances of sperm theft where the woman falsely claims she uses contraception, thus leading the man to believe that sexual relations between them are safe, she is making a false representation for which the man has the right to file suit.

On the contractual level: In contrast with the above, contract law talks about fair negotiations. In these cases, sperm theft is considered trickery on the part of the woman. She has made a representation in bad faith and has tried to deceive the man in order for him to have sex with her, fully aware of the possible result.

The outcome of refusing a tissue analysis

• A man who is obliged to undergo a tissue analysis and refuses to do so can be prosecuted for contempt of a court decision. This is a proceeding that allows a judge to impose a fine on the refusing party, or instruct that he be imprisoned.
• The refusal of a man to undergo this analysis, which is extremely reliable, can be used as substantial evidence against him. After all, if he was convinced he was not the father he would hurry to undergo the analysis in order to remove all obligations vis-à-vis the child.
  Therefore, refusal to undergo tissue analysis combined with simple evidence from the mother allows the court to determine paternity—even without conducting a paternity test.
• We ought to call attention to an aspect unknown by many: If a married woman sues a man who is not her husband and claims he is the father, the court will not approve a tissue analysis. The reason: The child is liable to be considered illegitimate if it turns out that the husband is not the father.

An agreement signed between the sides in which the woman absolves the man of financial commitment to the child.

Is such an agreement valid?

A legal agreement that absolves the man of his commitment to his child goes counter to all social positions and values that society stands for.

Therefore, the court has determined that agreements signed between parents that absolve commitment to the minor overlook the welfare of the child. In such a case the child is entitled to file a claim to the court (through his/her mother or a close relative/friend) to rule in favor of child support payments—irrespective of any agreement signed between the parents.

The evidentiary difficulty in claims of this type

Since relations between a man and a woman take place privately and behind closed doors, it is difficult for the man—who bears the burden of evidence—to prove that the woman has made a false representation as regards protection against pregnancy. It should be pointed out that more than once, claimants have relied on recordings or other resources from private investigators.

At the end of the day, how does the court address such claims?

The courts have rejected damage claims against the mother due to sperm theft on the grounds that if the mother is required to return alimony monies to the father, she would be doing so at the expense of the child and thus negatively impact his/her welfare.

Sperm theft does not exempt the man from his obligation concerning alimony payments

There is a widespread myth that a woman who becomes pregnant, against a man’s will and without informing him that she does not use contraceptives, is not entitled to demand alimony for the child that is born. This myth has been refuted in a series of legal judgments.

In fact, the court reiterates: Sexual contact out of wedlock, legally speaking, is not an act defined as illegal or immoral. It is not a matter of violating or imperiling public rule; it cannot deny or thwart one’s right to sue for or demand support as granted by the law. Such being the case, from a legal viewpoint, a man who engages in sexual relations with a woman is required to take responsibility for any outcome and any development that results from such relations. Taking responsibility implies that in the event of conception, the child’s father will be required to pay alimony for the minor child—totally irrespective of the circumstances under which the child was conceived, whether through deception or willingly.

In other words: Even if a man’s claim concerning sperm theft is proven true, it does not affect his obligation as the father towards his child—whether through alimony or the recognition of his paternity.

As for the issue of paternity, can the father be obliged to take a paternity test?

Up until a few years ago, it was not possible to oblige a biological/alleged father to take a tissue-based paternity test. However the law has been amended and now he can be obliged to take such a test.

Claim of sperm theft

There are situations in which a woman intentionally begins having sexual relations with a man and shortly thereafter becomes pregnant without his knowledge—due to an intense desire to become a mother at any price. The man is then in a helpless situation: he is forced to be the father of an unplanned baby that he didn’t want, and is certainly not interested in providing for him/her. This is a known phenomenon known as sperm theft. In such a situation, the man has the option to sue the woman for sperm theft. This raises numerous questions including: Who decides on the continuation of the pregnancy? Is it the man’s decision, the woman’s or the court’s? Is the woman or the man obliged to undergo a tissue analysis? Are there signed agreements that absolve the father of all commitments to the child? What are the man’s rights in cases of sperm theft?

When a man claims that a woman with whom he has had a short-term, noncommittal sexual relationship has intentionally become pregnant, the courts determine that since the man decided, of his own free will, to be a partner in sexual activity, he must take responsibility for his deeds. Therefore, the woman can decide alone on whether she wants to continue the pregnancy or, perhaps, have an abortion. When a suit of sperm theft is filed with the court, it takes into account the welfare of the child regardless of the existing relationship, or its nature, between the parents. In such a case the father will be obliged to pay alimony to the woman, just as in a standard divorce case, and provide for the child’s needs. In the event the man refuses to fulfill his commitments as the father, the woman can file a suit with family court in order to rule on his paternity. The father can demand a tissue analysis, a standard and legitimate test that the courts typically approve. In the event the situation is the opposite and the man refuses to undergo the test, he cannot be forced to take it; however his refusal can be used as evidence by the court in determining that he is indeed the father. In such a case the man has the right to file a claim of sperm theft and demand monetary compensation, on the grounds that he was deceived by the woman who told him she was using contraceptives. Most suits of sperm theft are not accepted by the courts since the man has a hard time proving decisively that the woman deceived him because she intentionally wanted to become pregnant.

Amended genetic information law

In 2008, the latest amendment to the genetic information law came into effect. Prior to the amendment, the courts struggled with the question of whose interest to prefer: preserving the legitimacy of the minor, or the minor’s right to know the identity of his/her biological father as well as the biological father’s right for recognition of his fatherhood. Currently, according to the amendment (section 28F), lawmakers have delimited the courts’ discretion and positioned the minor’s legitimacy as the central consideration.