Stealth Pregnancy

Generally, when the court system uses the term “stealing sperm” it has to do with claims filed by men who had relations with women who told them that they could not become pregnant. When these women had children and then sued these fathers for child support, the fathers often claimed that the women used them in order to have a child, and in doing so committed  a form of fraud and “stolen their sperm”, so that they were not liable for child support.

Israeli courts systematically threw these cases out of court; the premise has been, that if you have sex with someone, you’re responsible for the consequences no matter what anyone tells you; the other part of this picture is that the child may not suffer because of anyone’s irresponsibility or duplicity, and child support must be paid.

So, I was fairly surprised to see a headline reporting that the Jerusalem Family Court had recently accepted a suit which was based on the claim that the woman had stolen the father’s sperm and brought a child into the world.

Upon reading the entire decision by Judge Nimrod Flax, turns out the facts of the case are somewhat bizarre, to say the least. The Hebrew decision can be found right here.

Despite a variety of fertility treatments, a couple was unable to have children. For the purposes of this judgement it is critical to note that there was written correspondence between the two which made it clear that while married they never tried IVF, and more, that the father objected to IVF.  The couple were  in divorce proceedings, and the divorce agreement ultimately provided for rather generous financial arrangements for the wife.  A short while before the date for the actual delivery of the  get (Jewish bill of divorce), the wife told the husband that she would accept the get on the condition that he would have sex with her one last time. (At some point in his testimony before the court the husband did say that had the woman become pregnant, he would have remarried her.) The husband accepted the condition, the parties divorced, both went their separate ways, and thus, or so the husband at least thought, that was that.

Except “that” was not “that”.

As things transpired, it turns out that the woman didn’t become pregnant from that final conjugal union, but did in fact, steal her husband’s sperm. After doing so, she took the said sperm to a fertility clinic with which the couple had worked in the past, obtained a foreign egg donation which was fertilized with the sperm. The fertilization – which took place abroad – occurred a number of days following the actual divorce which was in violation of the directives of the fertility clinic. Turns out the mother neglected to inform the clinic that they were now divorced, and even forged her ex-husband’s signature on a critical document. The embryo was implanted in her uterus and, unbeknownst to the ex-husband, she brought the child to term.

All’s well that end’s well, until two things happened: Israel is basically one rather large small town, and it doesn’t take too long to find someone who knows you; the other thing that happened was that the mother (and others) didn’t know how to keep her mouth shut. While she was having her baby the husband had remarried and had a child, and these two children (yes, this is true, not a fairy tale) ended up in the same day-care centre. Somehow the mother realized this and had the lack of wisdom to share this bit of information with the caretaker, who then saw fit to inform the ex-husband that he in fact had not one, but two children in the centre. The father responded that the child was not his, but the product of both sperm and egg donors, which may have been what the mother told him in encounters subsequent to the divorce.

The mother then saw fit to write a strong letter to the father calling him a liar, saying that the child was from his sperm and her egg. About a year later – whether a function of whatever legal advice she got, or her own decision – she filed a paternity suit against the father so that he should be the legal registered father of the child. A DNA test showed that he was indeed the father and he was listed as such in the population registry.

Subsequently, she filed a suit for child support against the father. Basically, in Israel, if there is a child in this world, the parents are not absolved of responsibility for support, so he was ordered to pay.

In the court, the father sued for damages based on both tort and contract law, claiming that the mother had stolen his sperm, and caused him financial and emotional damage. The two questions the court needed to answer were: one, did he know that his sperm would be used in this way, and two, did he consent to his sperm being used in this way?

The court found that the husband neither knew nor consented that his sperm would be used either for IVF or would fertilize donors eggs. Just like  you, the court found the husband’s behaviour somewhat strange, but accepted his testimony that while he knew that she had collected his sperm following their last conjugal encounter, he sincerely believed she would use it in an attempt to impregnate herself, and not use IVF. Further, the wife had insisted on this last encounter as her condition for accepting the get, and he was sure the attempt would fail as had all of their attempts during the marriage.  If, against all odds, she managed to impregnate herself with the sperm, he testified that his intention was to remarry her.

The judge found further evidence to support the father’s version of the story in the fact that until the happy or unhappy coincidence at the day-care centre – depending on your perspective – the mother didn’t inform the father when child was born, only asked for child support when her secret unravelled, and never updated him regarding the child’s life and development.

Consistent with decades of Israeli law and the principle that children should not suffer for the mistakes of their parents, the judge ordered the father had to pay child support. The “rights” of the parents are irrelevant in the face of a living breathing child who needs to eat. Further, the judge noted that in this case, the father would have been happy to have another child, had the mother become pregnant.

Regarding the mother’s actions, the judge said that while he could understand her desire for a child, her behaviour was unacceptable. Balanced against her right to attempt to bring a child into the world is the right – or at least, the protected interest –  of the father to choose the manner in which he wishes to bring a child into the world. This right or interest is a function of the right to privacy, autonomy and free will.

I won’t go into all the legal nuances of the ruling, which were based both on tort law and contract law. Regarding the latter, the judge acknowledged that in addition to good faith obligations,  the parties agreed that the mother would use the sperm to impregnate herself, and she violated the terms of this agreement. This in addition to good faith obligations

The judge accepted the claim that the father suffered both financial loss as a result of the child support payments and damage to his emotional well-being and should be compensated for both. For his emotional pain and suffering the judge ordered the woman pay 100,000 shekels. Regarding the child support payments, the judge based himself on earlier precedents, for a variety of reasons, rarely necessary today. The father, who by all accounts is financially very comfortable, continues to pay child support until the child finishes high school; the mother is obligated to repay him once the mother “becomes wealthier” as the Hebrew has it, or the child finishes school. The courts do this when they need to balance the need of the child to receive ongoing child support – a right which belongs to the child and not the custodial parent – and the right of the parent making the child support payments to compensation.

In his closing remarks, Judge Flax correctly appeals to the father to attempt to create a relationship with this child, a child who would benefit from an involved father in her life.

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4 Responses to Stealth Pregnancy

  1. Rachel Hershberg says:

    I don’t even know where to start. The other day I was wondering – halachically, let’s say a gay male Jewish couple decides to hire a surrogate mother. Let’s say the egg is or isn’t from a Jewish mom, let’s say the woman carrying the baby is or isn’t Jewish. Is the baby Jewish? The mind boggles.

    • shaananlaw says:

      Although I believe there is a minority opinion, to the best of my knowledge Jewish Law is that if the woman who gave birth to the child is Jewish, then the child is Jewish regardless of where the raw materials came from. So, in the case you mentioned, if the surrogate mother is Jewish, the baby is Jewish, if she’s not, the baby is not.
      Here’s a crazier hypothetical case that I’m sure we’ll see in the not too distant future; a transgender Jewish person who is now male, kept ovaries and uterus intact. is that child Jewish?

      • Rachel Hershberg says:

        Wouldn’t the above principle apply? You mean the person has a penis and still carried a pregnancy, and the baby was delivered C-section?

  2. shaananlaw says:

    Hard to know, I assume that the above principle would apply. The question is when do issues of gender become so confused that we can’t say that the “mother” gave birth? This is just part of those changes that we have made, without necessarily thinking of all of the consequences, and certainly Jewish Law is going to be asked to grapple with them in the years ahead.

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