This is one of those off-beat little stories suitable for a holiday weekend. But it’s also a springboard for some interesting thoughts.
A 21-year-old Israeli man has filed a lawsuit complaining that a woman stole his sperm. I think it is agreed that on an evening that involved the consumption of alcohol they two engaged in consensual sex. As a consequence, the woman became pregnant. What makes it theft, according to the man, is that 1) the woman deliberately seduced him and 2)the woman lead him to believe she was using birth control, when in fact she was not. Most extraordinary is the relief he seeks: He wants to force her to have an abortion.
Where to begin? From a law professors point of view, there is perhaps an embarrassment of riches here. Although I’m a bit wary because criminal law is not my area of specialty, I’ll start with the theft charge.
The first thing you might say is that the sperm was freely given, assuming that the sex was consensual, which apparently it was. Would it make more sense to think of the sperm as a gift?
Now you might say that she used the sperm for a purpose other than the one he intended. But if the sperm is a gift, I’m not sure that matters. If I give you a lovely picture and instead of hanging it on your wall, you use it as a place mat, I might be unhappy about that, but I don’t think that invalidates my gift to you.
Beyond that, I have to wonder about whether he gave the sperm to her for any particular purpose at all. The point of the interaction was not, from his point of view, to give her sperm. At the same time, he knew in that as a part of the process of having sex, he’d be jettisoning some sperm. Likely his intent (to the extent he had one) was simply to discard it. Perhaps that’s abandonment? And can she then say “finders keepers?” This hardly seems right.
What about starting over this way: Suppose that if she had told him she was not using birth control then he wouldn’t have had sex with her or perhaps he would have used birth control. (First off–note that you’d have to decide that you believed that this were indeed the facts of the case.) In that case, let’s say she deliberately mislead him in order to obtain his sperm. That might be a form of fraud (and the case would now be somewhat more recognizable. This type of allegation does get made with some frequency.)
That might bring us to consider remedy–what do we do about it all. The thing is, he cannot have his sperm back. Neither can meaningful restitution be made. Though we may treat sperm as property for some purp0ses (buying and selling it), it’s got some unusual characteristics.
The remedy he seeks–to force her to have an abortion is unusual to say the least. It’s also impossible for me to imagine he will have any chance of getting it. What about a declaration, though, that he is not the father of the resulting child? Or a ruling that he doesn’t have to support the child. (This last is what is typically sought in the false inducement to have sex cases.)
I do recognize that from his point of view these solutions might be inadequate. He may feel he is morally the father of the child and hence, obliged.
Its notable that you can start with property based analyses (like theft or fraud) and end with considerations of parentage. I think that is because we tend to think of sperm as property on the one hand, but a basis for parentage on another. If sperm didn’t make you a father, this problem would just go away, wouldn’t it?