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This question is inspired by and closely related to that one, but is different.

Alice deperately wants to conceive and give birth to a child from Bob, but Bob is adamant. He is very careful to avoid becoming a father for a number of reasons, one of them not willing to pay child support. Alice and Bob are not a couple. They're both single, just see each other from time to time. They have agreed to only have protected sex, specifically Bob always uses condoms (although he wishes he did not have to). He accepts that no contraception is 100% reliable, but is fine to take the risk so long as it is reasonably mitigated and Alice is honest in her willingness to use contraception.

One day Alice tells Bob that he does not have to use condoms anymore: she's now got her own contraception (e.g. pills, implant in her arm, IUD, whatever). Bob is hesitant — not because he doubts Alice is saying true, but because he prefers being safe than sorry. But Alice convinces him that her contraception is in place and reliable, and they have consensual sex without a condom. In fact, the is no contraception at all because Alice has blatantly lied — in order to become pregnant from Bob. So she does, and Bob starts paying child support.

(Alternative facts: Alice picks up Bob's used condom from the rubbish bin as soon as he leaves, and impregnates herself with the sperm in it).

So, while paying child support diligently, Bob finds out that he was fooled. He obtains strong evidence of the Alice's deceit.

Can Bob possibly have a case against Alice directly (not against having to pay the child support)? Bob accepts that, as the child now exists, he has to pay their support anyway. However, does that preclude claims against the mother for causing the expenses Bob explicitly was aiming to avoid?

Can such a case possibly be quantified based on the child support he now has to pay?

Understandably, such a case against Alice would adversely affect the child (if Alice is the one to raise them). However, any payouts to Bob could be delayed until the child becomes adult, or remain stand-by in case Alice inherits large sums of money, wins a lottery etc.

(Any jurisdiction that you can answer about).

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    That needs a country and state tag. But in most places would be on the hook. I believe that child support is the right of the child, not the mother, so the mother cannot waive it and whatever the mother does (or has done) cannot affect a right of the child. Here is an illustrative example: edition.cnn.com/2014/01/23/justice/kansas-sperm-donation/…
    – Hilmar
    Apr 27 at 7:38
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    At least in some European countries, Bob may have a case, but any approach will depend greatly on details in the relevant jurisdiction. In Germany, the recognized legal father (with obligations) and the biological father is not necessarily the same person. In Sweden, claiming to use contraception but not doing so is itself an offense (one of the accusations against Julian Assange). In Austria, there is an older ruling from the supreme court in a similar case, where the father was held responsible for child support as fathering a child is an inevitable and accepted risk when having intercourse.
    – jarnbjo
    Apr 27 at 13:04
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    This question would be a lot more interesting formulated where the biological parents had never had any romantic or sexual relationship. For instance, if Alice were Bob's girlfriend's housemate or even a random person who broke into Bob's house. Where it's not deceipt but outright theft of genetic material. Apr 28 at 0:08
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    It appears a few answers here talk about criminal aspects, but I think the question is really asking if Bob can sue Alice for damages due to the tort of deceit. Alice lied with malice to induce Bob to act in a manner that has caused him injury. You could probably throw in fraud in there if you could prove a benefit for Alice. Apr 28 at 9:10
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    A relevant case from Kansas is Hermesmann v. Seyer. The plaintiff was a woman who conceived a child by statutory rape of a minor; the court decided that the minor did have to pay child support.
    – kaya3
    Apr 28 at 16:32

3 Answers 3

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In Canada it all depends on whether it is Bob or Alice who is female. If it is the male who lies about the use of contraception it results in sexual assault (R. v. Hutchinson), and in the case of sexual assault it is possible to sue for damages in civil court. In contrast if it is the female who lies about the use of contraception it does not result in sexual assault (🤦), and thus suing for damages is not possible (PP v. DD, 2019 (this is literally the case you describe)).

To understand this legal difference one has to go back to the 1998 case R v. Cuerrier, which was about which lies cause consent to sex be withdrawn. Does lying about your identity count (impersonating your twin)? Does lying about your wealth count? Does lying about your religious believes count? Specifically in that case someone had not disclosed that they had HIV. The court ruled in that case that sexual assault laws should only concern themselves with lies that create a risk of physical harm, and thus 'causing someone else to get you pregant' does not count, whilst 'causing someone else to become pregant' does count.

Anyway, an amazing article about this can be found on thewalrus.ca, which discusses exactly these cases. It's definitely worth a read, but here is their description of PP v. DD:

THE CONSEQUENCES OF Hutchinson played out earlier this year in PP v. DD, a decision released recently by the Ontario Court of Appeal. In PP, the plaintiff and the defendant were in a brief sexual relationship that resulted in a child. The plaintiff alleged that the defendant had lied to him about being on birth control, and that this lie had both robbed him of the ability to choose the timing and circumstances of the birth of his first child, and exposed him to the significant expense of childcare. In PP, the plaintiff chose to seek a remedy in civil court—meaning, essentially, that he wanted damages, not the imposition of criminal liability—arguing that the defendant had defrauded him.

The plaintiff’s case in PP failed, mostly for policy reasons. Canadian law, like many other jurisdictions, is extremely reluctant to recognize any cause of action that might allow people to circumvent child-support obligations. But the Court of Appeal also commented on whether the plaintiff could advance a claim for sexual battery—the non-criminal counterpart of sexual assault. Relying on Hutchinson, the Court of Appeal concluded that the plaintiff’s consent to the sex he had with the defendant had not been cancelled out by her alleged fraud, because a woman who lies about being on birth control does not expose her male partner to any risk of significant bodily harm.

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    Bottom line: Alice is legally allowed to do what she's done and won't be penalised.
    – Greendrake
    Apr 27 at 23:20
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    @Greendrake 'legally allowed to' and 'no legal consequences' are technically different things though, as PP v. DD didn't (as far as I am aware) rule out that it was fraud. But yeah, as someone who considers themselves both a feminist and a MRA (why isn't that more common?) this entire thing really pisses me off. I totally appreciate that the seriousness of the consequences are different, but females getting off scot-free in this case is just wrong. Apr 28 at 3:16
  • Does the criminality of actions actually have an impact on you ability to file a civil suit in Canada? Apr 28 at 8:30
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    @DavidMulder I'm not sure what the legal situation is in Canada, but surely Bob can sue Alice for damages given that Alice's deceitful actions caused injury? Had Alice not made false representations with malice, Bob would not have to pay child support. Apr 28 at 9:05
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    @DavidMulder likely because of the reputation the label "MRA" has gotten in more recent years, with many now seeing it as an "anti-feminist" ideology. As such, many feminists who are all for men's rights activism would shy away from applying the MRA label to themselves (and I know plenty of IRL feminists who DO support or help raise awareness of charities that support men with mental health, unfair treatment by the justice system or workplace stigmas. It's not as uncommon as a lot of people seem to imagine). Gotta love the courts though, places that still seem socially backward in many ways.
    – user35621
    Apr 28 at 14:45
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Bob may have a case against Alice, but not related to the expenses.

Depending on the jurisdiction, he may have exclusive rights on his genetic material.

This is an important point in in-vitro fertilization related cases. A lot of men become sperm donors on a condition - e.g. the race, the religion, the sexual orientation or the marital status of the mother. This was recently tested in court in the US and even appeared in the news.

It will probably take a good lawyer in order to picture using a sperm from a discarded condom as an artificial fertilization, but technically, it is.

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    @Greendrake, the direct cause is unprotected sex. We all know how babies are made.
    – Tiger Guy
    Apr 27 at 12:39
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    Giving birth to a child cannot be considered damage at any rate in regard to anyone - at least, not in 2022, not in more or less civilized parts of the world.
    – fraxinus
    Apr 27 at 12:48
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    @fraxinus I'd accept that as an answer if it was decided by a judge. Cite a case and I'll put the green tick.
    – Greendrake
    Apr 27 at 12:50
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    You still cannot claim that your own child is a damage for you. Any attempt in this direction will probably get you banned from seeing your child. This is no different from getting married, having a child or maybe more than one and then deciding to divorce because your wife deceived you to marry her with cosmetics and false promises. Well, it is different in regard to owing support to your ex-wife as well.
    – fraxinus
    Apr 27 at 14:10
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    @fraxinus Well, Bob claims precisely that: the child is a damage to him because he has to pay their support. He is not a good father (which is another reason why he didn't want to become one in the first place) and does not want to see the child, so not worried about being banned from it.
    – Greendrake
    Apr 28 at 1:43
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In the United Kingdom Bob would likely not have a case, as lying about fertility is not a cause for consent to be vitiated (negated). The leading case in this is from 2020 where Jason Lawrance lied about having had a vasectomy, and on appeal it was ruled that his lie was not a reason to consider the act rape.

There is some additional technicality here, where a lie about the physical act itself would vitiate the consent. Specifically lying about using a condom does vitiate a female's consent, so if Alice cuts holes in the condom it might qualify as sexual assault.

Of course this does not specifically consider the option for financial consequences, but if it is not sexual assault/rape, it is unlikely to succeed, as it's already difficult to get damages from rapists/sexual assaultists (only males can be rapist in the UK) in general.

Once again, here is an older article (Sex, lies and legal consent: Can deceit turn sex into rape?) discussing the general topic (at this point in time Jason Lawrance had not yet succesfully appealed), and here is a specific article (Jason Lawrance appeal: Lying about fertility is not rape, say judges ) about the appeal. The first article also contains some (scary) statistics about how common these types of lies are, which I would recommend reading.

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    If the case you mention concerned rape, that is a different question from that which the OP poses which concerns civil rather than criminal liability.
    – abligh
    Apr 28 at 5:04
  • @abligh The court case was indeed about 'is it rape/sexual assault?' when someone lies about fertility. The argument I am presenting is simply that 1) at least criminally speaking this is considered consenting sex, despite the lies involved 2) that even when it is without consent it's hard to get any financial compensation. The Canada answer shows how criminal standards can intertwine with civil consequences. Apr 28 at 6:01
  • The reason why I wrote this answer in addition to the Canada one, was because in Canada when the male lies it is sexual assault, whilst in the UK it's not even that. Apr 28 at 6:04

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