Does Bob have a case if he ends up paying child support due to Alice's deceit?

Question

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).

Answer 1

canada

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.

Answer 2

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.

Answer 3

united-kingdom

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.