Stealing Sperm

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?


8 responses to “Stealing Sperm

  1. You say: “If sperm didn’t make you a father, this problem would just go away, wouldn’t it?”

    It would be safer to say that sperm didn’t make you a dad, but even this statement is not as obvious as it would seem, because under different circumstances it could have done so. The concept of father and mother are constructs of our minds, based not only on what has actually happened, but also on what we imagine could have happened. In psychology it is a well known fact that we all have a virtual mother and father in our minds, even if we have never known them (this is the “hole” that donor children talk about).

    If a married father dies before the child is born, he would be recognized as a father, even if the conception was unintended, because we imagine that he would have become a dad if he had lived.

    How insignificant does the social relationship between him and the mother have to be, before we would equate him with a sperm donor? The technical method of conception is irrelevant. In the old days the parish clerk some times helped infertile women (for farmers it could be a matter of survival). Contrary to common belief, sperm donation is not a new invention. There even exists an old expression in the language for this, but I can’t remember it now.

  2. It’s quite true that there are many variables–we’d probably think about the deceased husband as a father and perhaps we do have virtual mother’s and fathers.

    What interests me is how the law embraces (or does not embrace) all these fine distinctions. Law tends to work with broad categories and often favors simple tests. Things like: If you have sex, you are not a sperm donor. Sperm donors are not fathers. Law often has a hard time taking account of complicated reality. And, of course, it varies enormously state to state and country to country.

  3. If she induced him to drink with the intention of seducing him to have sex, might that not be considered rape?

    However, abortion is not a penalty for rape. Bodily integrity is beyond the reach of criminal penalty. In the same way as we would not legislate rape as a penalty for a rapist, we may not legislate an abortion either.

    Jail time, on the other hand, is, that is if it could be proven which I don’t think it can. It’s a he said, she said kind of thing.

  4. she could also be held liable for civil damages

  5. but saying that sperm doesn’t make one a father, just because some irresponsible kids don’t want to be one yet, well they should know that there are no guarantees. tough luck.

  6. … and I don’t see that THEY are the ones we should be catering too….

  7. sorry so many posts! but it just occurred to me that it would really be counterproductive for him to press charges for rape…. if she really did end up doing jail time Guess Who would be left as primary parent???

  8. and yet another:
    Since, notwithstanding the revolution in fertility technology,
    most humans are still conceived by sex,
    –and a fair number of these are born to the unmarried, and to the unintending,
    ——likely many more than the number conceived by sperm donation,

    saying that sperm does not make one a father leaves huge numbers of people fatherless. I can’t see that as a solution to anything.

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