By Gianna Huesch
There’s an interesting Canadian case in the news which should irk men’s rights groups, raising issues of men’s reproductive rights afresh. A man who alleges he unwillingly became a father after a woman lied about being on the pill has had his attempt to sue the woman for emotional harm to the tune of $4 million fail. The man had tried to sue the woman on the basis of “fraudulent misrepresentation”, but Ontario’s Court of Appeal has again ruled he has no grounds to sue her, upholding an earlier ruling, and as a result the man is unable to recover damages for the unwanted baby.
The Canadian courts are clearly unwilling to set a precedent to fault one partner over another in family law proceedings. Under Canada’s family law regime, as under ours, equal obligations are imposed on both parents “without regard to fault or intention in the best interests of the child”.
The Superior Court had struck out the claim without a hearing on its merits last year, deciding the man had no legal grounds to sue the woman. The man appealed, arguing he should have been allowed to take his unusual claim to trial. He also argued he should have been allowed to claim that the existence of the unwanted child would harm him financially. Indeed, the Superior Court had essentially ruled fraudulent misrepresentation could only give rise to a claim for financial damages, not for emotional distress, which it was found did not amount to a personal injury. On appeal it was determined that a fraud that causes no loss can’t give rise to a lawsuit for damages, and that emotional distress does not equate to a loss. The Appeal Court noted he suffered no physical injury or “pathological” emotional harm.
“The damages consist of the appellant’s emotional upset, broken dreams, possible disruption to his lifestyle and career, and a potential reduction in future earnings, all of which are said to flow from the birth of a child he did not want,” the Appeal Court said.
The Canadian court looked to Britain and the US to find similar cases. Our review of the case law in Australia does not reveal any comparable cases here. We can find only one case in which a father in passing “raised questions about the mother’s assertion that conception occurred through a failure of her birth control measures”, though in that case the apparent suspicions did not materially impact the outcome of the family law matter.
Under Australian law, there are actions for ‘wrongful birth’ available where children are born in unwanted circumstances—but these pertain exclusively to circumstances where a child is born as a consequence of the negligence of another person, who is usually a medical professional (such as where a child is born after a negligently-performed sterilisation procedure). In those cases, the parents are then able to claim the costs associated with raising the unwanted child.
However, the concept that women trick men into unwanted parenthood is nothing new. Bettina Arndt has written on the topic before, and claims anecdotally, it is a major issue. Under the title “Whose sperm is it anyway?” Arndt writes of “men deceived into fatherhood (who) are struggling to rescue their reproductive rights from the whim of women”. The men’s rights advocate describes an Australian case where “sadly, the Family Court chose to believe the mother’s story, namely that she had intercourse with (the man) and pregnancy resulted from a failure of contraception”, whereas Arndt herself inexplicably prefers the man’s version, wherein the woman had performed oral sex on the man, using a condom, and then had “dashed off to the bathroom carrying his used condom and conceived a child using the contents”.
In her 2001 article Arndt notes the possibility a man might sue the mother for damages for allegedly fraudulently impregnating herself, but recognises the unlikelihood of an Australian court accepting the case, quoting a professor of law as saying it would not happen because “it would mean there is a court judgment saying the child was born as a result of deception. The court would want to protect the child from that”. Arndt refers to another case where a magistrate ostensibly told a man, “I can’t let you win in this case because it would set a precedent that would change Federal law”.
Suing a woman for an unplanned pregnancy remains morally dubious in any case. Even when contraception is used, there is a small risk of pregnancy occurring regardless (which fact also contributed to the Canadian man’s case failing, as he’d been prepared to take that risk).
Further, women are not always in a position to negotiate the use of birth control, whether due to coercion or lack of power or a whole range of other reasons. And a woman’s decision to become a parent is also embedded in social and cultural constructs to the extent that “her” decision may not always be hers alone.
An unplanned pregnancy can raise a number of legal issues, even if being sued for “emotional harm” is clearly not a realistic concern. Therefore, if you are pregnant and need legal advice, please do not hesitate to reach out to us here at Alliance Family Law for an initial free consultation. Sometimes women are simply unaware of what their legal rights are. For example, it is not widely known that under the Family Law Act, pregnant women are entitled to claim a financial contribution from the child’s father towards their living costs and medical expenses leading up to the birth of the baby, as well as after the baby’s birth. Other legal issues may also need to be considered. It may be that you in fact decide to commit to a relationship based on the impending birth of the baby. In this case, you may wish to receive advice on entering a Binding Financial Agreement to spell out financial and other considerations.
Or, you may need assistance obtaining DNA paternity testing, or advice on the legal ramifications of naming the father on the birth certificate. While sometimes both parents will be able to communicate well on parenting issues, such as where the child will live or the child’s surname or other issues. If agreement is reached, you may choose to formalise this agreement by a Consent Orderw lodged at court.
No matter what your family law query is in relation to an unplanned pregnancy, please contact Cristina Huesch or one of our other experienced solicitors on (02) 6223 2400 for compassionate and empathic advice.
(Please note: Our blogs are not legal advice. For details about how to obtain correct legal advice please arrange a free conference with Alliance Family Law.)