When the father is misled

When the father is misled

"I was very interested in your article last week on medical liability in the event of an unwanted pregnancy. What happens when the mother of the child misleads the father by claiming that she cannot become pregnant, which proves to be incorrect? Is it possible to claim compensation from her for the maintenance contribution that the father must pay to his child?

St. Denis, Vaud

There is no specific legal provision to punish consensual sexual acts where the result, i.e. pregnancy, was only desired by the woman. Article 151 of the Criminal Code, which punishes the cunning violation of another person's pecuniary interests without the intention of enriching oneself, could possibly come into play under strict conditions. However, a complaint would be required within three months of the birth of the child becoming known. It should be pointed out that the absence of any intention to enrich is due to the fact that the maintenance obligation is owed to the child and not to the mother.

Could the woman also be held liable for an unlawful act within the meaning of Article 41 of the Swiss Code of Obligations, which obliges anyone who causes damage to another to compensate for it? As we saw last Monday in these columns, case law has accepted that the birth of an unwanted child is likely to cause economic damage. An unlawful act is defined as behaviour that is objectively contrary to orders or prohibitions under written or unwritten federal or cantonal law. However, there is no specific rule against giving birth without the consent of the parent when the sexual act was consensual.

However, case law and doctrine have given rise to a new head of liability based on trust in cases where there is a special relationship between the protagonists and the expectations created are disappointed. Liability based on trust derives from the rules of good faith, which impose a legal duty on a person who enters into a special relationship with another person to avoid arousing that person's unfounded trust in a material fact. This being the case, anyone who is the victim of their own carelessness, credulity or the realisation of general risks inherent in a commercial transaction is not worthy of protection, but only anyone who has suffered a breach of their legitimate trust. You should also bear in mind that if the woman mistakenly believed that she was sterile, it will be difficult to accuse her of fault in order to invoke her liability, and that the time limit for doing so is one year from knowledge of the damage.