Law offers no protection: when unplanned pregnancy leads to litigation

A man sues his partner after she falls pregnant and gives birth, alleging she lied about her contraception.

The birth of a child is usually a joyous occasion for both parents. But what if the father did not plan for the partner to become pregnant and relied on her assurances regarding birth control, which turned out to be wrong or misleading? What legal recourse does he have?

In a recent decision of the Court of Appeal in Canada, a male plaintiff (Dr P), a medical practitioner, brought a civil action for fraud, deceit, fraudulent misrepresentation and battery against a female defendant (D).

He claimed damages that the deception deprived him of the benefit of choosing when and with whom he would assume the responsibility of fatherhood.

Dr P, it was stated, “wanted to meet a woman, fall in love, get married, enjoy his life as a husband with his wife and then, when he and his wife thought the time was ‘right’, to have a baby”.

He pleaded that he consented to intimate relations with D on the understanding that she was using effective contraception. In his view, this was an express or implied misrepresentation and his consent was vitiated, having been obtained through deception and dishonesty.

The facts at trial were that the couple began dating on 14 May 2014. Three days later, on a second date, they retired to D’s apartment where they engaged in intimate relations, during which Dr P asked D whether she had any condoms. When she replied that she did not, he asked if she was ‘on the pill’, to which she said yes. After accepting this assurance Dr P consented to further intimacy. They went on four more dates in the following three weeks. On each occasion, they engaged in consensual intimacy. On each occasion, D did not say or do anything to suggest she was not, or was no longer, on the pill.

On 10 June 2014, prior to another intimate encounter, they discussed their practice of not using a condom. Dr P advised D that he would happily wear one and that he did not want her to feel uncomfortable. D stated that she preferred relations without a condom. Again, D did not say or do anything to suggest that her prior representations were not, or were no longer, true.

Two more dates in June resulted in the same pattern of intimacy. By July, the pair decided to end their intimate relationship but agreed to remain friends. During the following weeks, they contacted one another several times by text message with respect to inconsequential matters, but D did disclose that she was pregnant and that Dr P was the father.

Dr P sued and asserted that, on the basis of D’s knowingly false representations with respect to her lack of birth control and her implied intention not to conceive or deliver a child, he engaged in intimacy that resulted in the birth of a child.

He alleged that his consent was vitiated, having been induced by D’s misrepresentations that led him to believe she was taking the birth control pill as prescribed and directed.

As the child’s father, Dr P asserted that he had suffered damages. He claimed he had been deprived of the benefit of choice with respect to when, and with whom, he would conceive a child and raise a family.

The court summarised Dr P’s case “as a tort claim for involuntary parenthood made by one parent against the other”.

“It is clear that the alleged damages do not relate to a physical or recognised psychiatric illness. In essence, the damages consist of [Dr P’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. Although the claim is not for the direct costs associated with raising the child, all of the damages claimed by the appellant are the result of consequences flowing from the unwanted birth of a child, albeit unwanted only by the father.”

Dr P’s $4 million law suit was dismissed on appeal. The appeal was refused on several grounds, including:

“It would be contrary to the spirit, purpose and policy reflected in [the] no-fault child support regime to view parents as equally responsible for maintaining a child but, at the same time, to allow recovery by the appellant against the mother for the loss purportedly suffered by him as a result of that responsibility, which loss would presumably increase as he devotes more of his time and resources to the child’s upbringing.”

Battery against D was also alleged. That is, Dr P tried to prove on the balance of probabilities that D intentionally touched him in a sexual manner and that interference with his body was ‘harmful’ or ‘offensive’. The law was that this element is implied (assuming a lack of consent) in the context of a sexual battery.

The court dismissed this argument. The court noted that Dr P was not exposed to any serious transmissible disease or other significant risk of serious bodily harm flowing from the intimate encounters. The court went on to state:

“The alleged deception in this case was not with respect to the nature of the act, but only as to the likely consequences flowing therefrom. The sexual contact in this case was consented to and there were no physically injurious consequences. There was therefore no violation of [Dr P’s] right to physical or sexual autonomy that would give rise to a claim in battery.”

With surely the development of male birth control measures in the future, the court made an interesting comment in relation to the difference between the physical effects of pregnancy between a male and a female, in the context of damages suffered from acts of deceit leading to a pregnancy:

“[Dr P’s] alleged damage is principally emotional harm or, in other words, hurt feelings and lost aspirations and/or career opportunities flowing from the birth of his child. His situation, as a man, is quite different from that of the woman. Clearly, there are profound physical and psychological effects on a mother undergoing a pregnancy that do not apply to the father of the child.”

Should a future case arise where the facts are reversed, one could say it is an area of litigation worthy of the saying, ‘Watch this space!’

Scott Trueman is a lecturer in the School of Nursing, Midwifery and Nutrition at James Cook University.

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