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The question is a bit awkwardly phrased maybe, but what I'm wondering is this: if a woman gets pregnant without the consent of the man whose sperm it is (say by stealing it, or an accidental "used the same bathwater" kind of deal), is that enough to make the man legally responsible as a parent? If a DNA test establishes that a man is the biological father of a child, is there anything he could argue that would result in him not being legally responsible for the child?

I'm interested in the law of any European or North American countries, and evidentiary questions don't really matter to me; if you know about those too and would like to include them they may be of interest to someone else of course.

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In the case In re Paternity of JLH, 441 NW 2d 273 - Wis: Court of Appeals 1989, the court explicitly refused to say one way or the other:

we do not decide whether the defense of nonconsent is available to a putative father in a paternity proceeding.

This was because they found that, although he was only 15 and the criminal statutes indicated a presumption that a 15 year old cannot consent, this presumption does not apply in a civil case and his actions showed that he consented.

This case was cited in the Wisconsin Annotated Statutes, so it would seem that no later case has decided the matter. Presumably, then, you would have to go to court to find out - at least in Wisconsin.

Although the court did not decide that key question, I get the feeling they would have decided it against him:

We reject appellant's argument that his paying child support to L.H. would permit her to benefit from her crime. Even assuming that L.H. criminally assaulted appellant, child support is paid to benefit the child, not the custodial parent.

They also said:

Whether he is the father is a biological fact. Whether the fact does or does not exist cannot shock the conscience and has nothing to do with fairness. This is true no matter how conception occurred.

Also, in the case In re Paternity of Derek S.H., 642 N.W.2d 645 - Wis: Court of Appeals 2002, the court decided that a man must pay child support even though a jury found that he did not consent. That case, however, is officially "unpublished" and is not binding precedent, and involved finding that the jury's verdict on consent was merely advisory (since the law says they're only supposed to determine paternity) and the trial court was free to reject it.

  • An interesting answer, but it doesn't seem to quite address the issue raised in the question. Perhaps no court has addressed that case. Suppose a man was kidnapped, and forced at gunpoint to have intercourse with a woman. If a child resulted, would the man be legally liable for child support? The JLH case doesn't decide that issue. – David Siegel Feb 10 at 2:33
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    Fatherhood by Conscription by Michael J. Higdon (2011)papers.ssrn.com/sol3/papers.cfm?abstract_id=1761333 (the full paper, which one must click to download or open as a PDF) cites a case where "stolen" sperm was used to conceive a child, and child support was ordered, despite the man never having had intercourse with the mother (oral sex only).and various other relevant cases.. See also trauma.blog.yorku.ca/2018/05/… – David Siegel Feb 10 at 2:53
  • @DavidSiegel "The JLH case doesn't decide that issue." - Yes, that's the point. The court in this case said the issue was undecided, and the reference in the annotated statutes presumably means it has remained undecided. That may be an unsatisfying answer, but it's the one we're left with, at least in Wisconsin. – D M Feb 10 at 6:04
  • @DavidSiegel The case in that paper is certainly relevant even if it's not precedental, so I'll edit my answer to include it. – D M Feb 10 at 6:13
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    @DavidSiegel Would you like to post those links in a short answer? – G. Bach Feb 10 at 21:24
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In the US at least, the opinion of the court seems to be that, at least in the case of "statutory" rape where the victim ostensibly consents, they are still liable to pay for child support. I found this paper which has a lot more detail, but looking at some of the state Supreme Court cases it cites, the general opinion seems to be that even though the victim was a minor at the time and thus the sex was not legally consensual, because they felt personally that they were consenting they are still responsible for the consequences of the sex. For example, from County of San Luis Obispo v. Nathaniel J.

“Victims have rights. Here, the victim also has responsibilities.”

And

The law should not except Nathaniel J. from this responsibility [child support] because he is not an innocent victim of Jones's criminal acts. After discussing the matter, he and Jones decided to have sexual relations. They had sexual intercourse approximately five times over a two-week period.

Additionally, State of Kansas, ex rel. v. Shane Seyer similarly found Shane Seyer could be held liable for child support due to his consent to the sex, despite the fact that he was a minor at the time and the consent was not otherwise legally cognizable.

Unfortunately I am having trouble finding information on cases where the man did not consent in any way, but I'd imagine that in those cases the state still wants its pound of flesh, since ultimately these cases come up due to the mother requesting public assistance.

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