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May 2nd, 2012 by Robert Franklin, Esq.
Two German doctors have been ordered to pay child support to a woman whom they artificially inseminated with her husband’s sperm.  Twins were born as a result of the procedure, but it was all done without the husband’s knowledge.  Read about it here (BioNews, 4/30/12).

In 2004, at age 40, the man agreed to have his semen stored at a clinic operated by the two gynecologists with the condition that it be destroyed after a year.  Two years later, he and his wife were estranged and he had no desire for children, at least not with her.  Still, the two doctors used the man’s semen to impregnate the woman, who gave birth to twins, a boy and a girl.

The article isn’t clear on the subject, but from here it looks like a case of paternity fraud with a curious twist – it wasn’t the husband whom the wife ended up defrauding, but the doctors.  Consider the testimony by the husband and the doctors.

‘It was agreed that the sample would be destroyed after a year’, Judge Gisela Kothe-Pawel outlined in the case notes. ‘We are convinced that the man had no idea that it was going to be used at this point for an artificial insemination procedure’.

He could not explain in court as to why his former partner had gone ahead with the procedure, and added that he had only seen his two children, who are now five years old, once since they were born.

The doctors explained in court that as they had only ever had patients who were fulfilling an often long unfulfilled dream to have children, they had never thought such a problem could arise. If they want to appeal the regional court ruling, they will have to take the case to the national Federal Court.

So the man and the woman had a relationship, but had grown apart.  The clinic still had his semen and she decided she wanted to use it to become pregnant.  She went to the clinic and announced her desire and the doctors complied.  They assumed that, like their other patients, the man and the woman were fulfilling a long-standing dream of having children.  I wouldn’t be surprised to learn that the woman told them, or suggested, as much.  They performed the procedure thinking nothing was amiss because she didn’t let on that there was.

Of course, the clinic should have destroyed the man’s sample after a year, but the rest of the story sounds like paternity fraud to me.  After all, only one person knew the man didn’t want her children and could have refrained from using his semen – the woman.  But she went ahead and used it anyway.  My guess is that she figured either the husband or the doctors would wind up on the hook, and it didn’t much matter who it was.  And she was right.  Once again, wrongdoing by a mother not only goes unpunished, but is in fact rewarded.

And consider this:  in this country we’re familiar with the cases in which a woman extracts a man’s semen from a condom and uses it to secretly impregnate herself.  In those cases, courts have ruled that the man owes child support irrespective of the fact that it was his clear desire to not father a child.  Again, the woman’s fraudulent behavior was rewarded.

But in the German case, a very similar thing happened, and the husband was not required to pay.  Why?  That’s a good question.  Of course the jurisdictions aren’t the same, but I’ve got another theory.  I think the husband won in the German case because there were two other sources of money, i.e. the doctors.  Had they not been there to pay, my guess is that the husband would have faced 18 years of paying for children he’s met only once, never wanted and never consented to fathering.

The final question is whether the court will grant the doctors visitation rights.  After all, they have the obligations of parents, and traditionally rights and duties go together.

Paternity fraud is a fine example of something easy that the courts make hard.  The jurisprudence on paternity fraud is about as crazy and disjointed as it gets, for the simple reason that courts are at pains to not tax the defrauding mothers with any kind of punishment or even consequences for their wrongdoing.  When it honors wrongdoing, the law becomes distorted; just ask Dred Scott.  If the law took the same approach to paternity fraud as it does to other kinds of fraud, things would make a lot more sense.

First, courts should recognize that defrauding a man (actually two men) is wrong and should be punished.  Men should be able to sue those women for damages for the deprivation of parental rights on one hand, and for the theft of money for support on the other. 

More importantly, until a man knows who his child is and who it’s not, he should neither lose rights nor gain duties towards it.  So, if a man fathers a child, but the woman either conceals the fact from him or leads him to believe it’s another man’s, e.g. her husband’s, he should not lose his opportunity to be its father until he learns the truth, whenever that may be.

And if she convinces a man, again e.g. her husband, that he’s the father of her child when he’s not, his ignorance should not be held against him.  So if he wants to opt out of the relationship once he learns the truth, he should legally have that right.

I know many people will throw up their hands and shout “but allowing a man who’s played the role of father to walk away will damage the child.”  That may well be true, but the argument ignores the fact that we do exactly that every day with nary the bat of an eyelash.  It’s called divorce.  Every day, hundreds of times a day, parents get divorced and the child is given to one parent to raise.  As a practical matter, that often means the loss of the non-custodial parent (usually the dad) to the child.  Is it traumatic for the child?  It is, but we never hesitate to do it. 

So, since it’s so common, why not allow the same thing to happen in cases of paternity fraud?  Failure to do so places fathers’ rights and duties squarely in the hands of mothers and is not a bit kinder to the children, so what is gained by the deprivation of fathers’ rights?  Nothing I can see except the empowerment of mothers to commit the deeply immoral act of lying about paternity.

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