SHE and HE had a sexual affair, while they were each married to someone else. SHE was living apart from HER husband, and HE went home every night to HIS wife. SHE wanted to have a baby and HE wanted.. his love child, too, but it wasn’t happening. THEY tried everything-forget the contraceptives, numerous acts of sexual intercourse, artificial insemination, and some more sexual intercourse. It would be THEIR secret, except that the OTHER SHE found out and HE pulled out. Meanwhile, SHE was pregnant.
SHE hires a lawyer, files HER Complaint for Parentage,
and LITTLE SHE is born. SHE and HE enter into an Agreed Order of
Parentage and all is quiet for awhile, actually for five
years, during which he pays child support. Then, HE files his
Motion to Terminate the Parent/Child Relationship based on his
having donated HIS sperm to HER.
ANALYSIS OF THE LAW
HE relies on 750 ILCS 40/3(b) in support of HIS argument that a known donor under the Illinois Parentage Act (IPA) does not have any rights or duties to a child born as a result of artificial insemination from his semen.
750 ILCS 40/1-3, does not have significant legislative
history. Nonetheless, this case can be analyzed and disposed of
without resort to legislative history analysis. The legislative
intent is apparent for the purposes of our case. Simply, HE is
barred from its protections.
750 ILCS 40/1-3 in toto provides that:
- This Act may be cited as the Illinois Parentage Act. i. Historical and Statutory Notes. Title of Act:
An Act to define the legal relationships of a child born to a wife and husband requesting and consenting to heterologous artificial insemination. P.A. 83-1026, certified and eff. Jan 5, 1984.
- Any child or children born as the result of heterologous artificial insemination shall be considered at law in all respects the same as a naturally conceived legitimate child of the husband and wife so requesting and consenting to the use of such technique.
3(a) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artifi cially with semen donated by a man not her husband, the husband shall be treated in law as if he were the natural father of a child thereby conceived. The husband’s consent must be in writ ing executed and acknowledged by both the husband and wife. The physician who is to perform the technique shall certify their signatures and the date of the insemination, and file the husband’s consent in the medical record where it shall be kept
confidential and kept by the patient’s physician. However, the physician’s failure to do so shall not affect the legal relationship between father and child.
3(b). The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife shall be treated in law as if he were not the natural father of a child thereby conceived.
The fundamental rule of statutory construction is to ascertain and give effect to the legislature’s intent. People v. Blair, 215 Ill.2d 427, 442 (2005). The best indication of the legislature’s intent is the language of the statute, given its plain and ordinary meanng. Id. At 442-43. The construction of a statute, too, is a legal question that is also appropriate for de novo review. State Building Venture v. O’Donnell, 239 Ill.2d 151, 160 (2010).
The Author’s notes to 40/2 and 40/3 provide that the primary purpose of the IPA is to provide a legal mechanism for a husband and wife to obtain donor sperm for use in artificial insemination and to ensure that a child is considered the legitimate child of the husband and wife requesting and consenting to the artificial technique. In re Parentage of M.J., 203 Ill.2d 526, 534, 787 N.E.2d 144, 149 (2003). But, the written consent requirement is mandatory. See In Re Marriage of Adams, 174 Ill.App.3d 595, 528 N.E.2d 1075 (2nd Dist., 1988), judgment reversed on other grounds, 133 Ill.2d 437, 551 N.E.2d 635 (1990); In re Marriage of Witbeck-Wildhagen, 281 Ill.App.3d 502, N.E.2d 122 (4th Dist., 1996).
The Illinois Supreme Court in M.J. pointed out that the scant provisions of the Illinois Parentage Act, enacted more than twenty years ago, ‘fail to address the full spectrum of legal problems born as a result of artificial insemination and other modern methods of assisted reproduction,’ due in part to the rapid evolution of assisted reproduction technology. Id.
The facts of M.J. include that those parties were involved in a ten-year intimate relationship but were never married. They attempted to conceive a child, but they failed. They together they went through the process of artificial insemination; with the respondent ‘father’ paying for the procedure, accompanying the mother to the doctor, injecting her with fertility medication, and even selecting the race of the sperm donor to reflect the parties’ biracial relationship. After the twin boys were born, he acknowledged the children as his own and he paid for their support. Only after this, the mother discovered that he had misrepresented that he was divorced, when in fact he was married and he had given the mother a false name. When the mother terminated their relationship, he stopped paying support for the two children, and he filed a motion to dismiss the mother’s support and paternity petition because he was not a ‘husband’ under Section 3(a). The First District released the man from any obligation to the children and held that the Act only applied to married persons, not as in the instant case, where the ‘parents’ had not married.
The Illinois Supreme Court agreed that the appellate court had correctly dismissed the M.J. mother’s petition under the Act, but the Supreme Court held that the mother had a common law action for child support because the IPA did not prohibit common law actions to establish parental responsibility, and the public policy of protecting children supported such actions. The court noted: “…if an unmarried man who biologically causes conception through sexual relations without premeditated intent of birth is legally obligated to support a child, then the equivalent resulting birth of a child caused by deliberate conduct of artificial insemination should receive the same treatment in the eyes of the law. Regardless of the method of conception, a child is born in need of support…
[T]o hold otherwise would deprive children of financial support.” Id. At 152.
Artificial insemination pursuant to 750 ILCS 40/1-3 is excluded as a basis for a finding of paternity and parental responsibility for either the donor or the husband under the limited purview of the Act. If a child is conceived by other than artificial insemination, or is not conceived under the allowed set of cirumstances as described in 750 ILCS 40/1-3, then the court must follow the determination of paternity as laid out in the Illinois Paternity Act of 1984, 750 ILCS 45/1 et seq.
Our court need only refer to the IPA of 1984 for basic policy underlying the parent-chid relationship:
45/1.1 states that Illinois recognizes the right of every child to the physical, mental, emotional and monetary support of his or her parents under ’parent and child relationship’ means the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.
45/3 states that ‘The parent and child relationship, including support obligations, extends equally to every child and to every parent, regardless of the marital status of the parents.
HE has the burden of proof for a number of basic issues: 1) That LITTLE SHE was born as the result of the artificial insemination of the mother, SHE; 2) that OTHER HE consented to the artificial insemination of his then-estranged wife, SHE with HIS sperm; 3)that the adulterous/sexual relationship between HER and HIM does not take HIM out of the protections of the statutes that HE seeks protection from so that the IPA of 1984 does not find him to be the father of LITTLE SHE, and 4) that HE is not otherwise estopped from even seeking to disestablish his paternity based on his failure to file a Motion to Vacate, Motion to Dismiss, or other protective measure from the Agreed Order of Paternity, in which HE admits to being the father of LITTLE SHE.
HE believes that, where there is a putative father (OTHER HE), it is first necessary for OTHER HE to disestablish his own presumed father’s parentage before a parentage action can be pursued by SHE against HIM. However, nothing in either the plain language of the Illinois statutes, or case law in or out of the State of Illinois, support this.
HE simply cannot prove that LITTLE SHE was born as the result of the artificial insemination of SHE. Even if we assume momentarily that HE could prove that LITTLE SHE had been conceived by artificial insemination and we ignore the fact that HE and SHE had intercourse multiple times over a year, we then do not have a donor who wanted any responsibilities with the child. Therefore, we return to the original policy of our courts that “It is in a child’s best interests to have two parents whenever possible.” If OTHER HE did not give his consent to the artificial insemination, and if HE believes that HE is protected by the donor statute, then we do not have a father for LITTLE SHE. By operation of HIS interpretation of the donor statute, LITTLE SHE is a bastard. Obviously, the legislature did not intend this result.
The language in the IPA was largely adopted from the Uniform Parentage Act (UPA) Section 5 (1973). The functions of the Act were to legitimize a child conceived through the AID procedure as long as the husband consented; it relieved the third-party donor of any parental responsiblity; and it permitted discovery of records upon “good cause shown.” (Vote, The Legal Incubation of Artificial Insemination: A Proposal to Amend the Illinois Parentage Act. 18 J. Marshall L.Rev. 797 (1985). The article goes on to point out that the then-current Act failed to define the rights and obligations of the parties where the husband did not consent to the procedure. One view is to regard such a child as illegitimate where no consent has been obtained since the child was born against the will of the husband, and therefore, the law should not force the husband to support the child. Another view is expressed as follows:
“Some commentators, however, have espoused an alternative theory which avoids the stigma of labeling an AID child as illegitimate. If an AID child is conceived without the husband’s consent, but nevertheless is subsequently supported by the husband, then the child should be regarded as the legitimate and natural child of the married couple. Thus, if the couple is later divorced, the husband would be estopped from avoiding child support payments.”
In the case of R.S. v. R.S. (1983), 9 Kan.App.2d 39, 670 P.2d 923, the Kansas court had occasion to construe a statute quite similar to the IPA in a similar factual setting as the Adams case above. The doctor failed to get the husband’s written consent in the first AID to which the husband orally consented. That AID procedure failed to impregnate the wife, after which the wife resumed AID treatment. Wife was impregnated and husband was found to be the father, based on his consent to the first treatment (although husband had not given actual consent to the second treatment). In K.S. v. G.S., 182 N.J.Super 102, 440 A.2d 64 (1981), the court held that once given, the consent of the husband was effective at the time the pregnancy occurs, unless the husband establishes by clear and convincing evidence that the consent has been revoked or rescinded.
But, consider that a husband who consents for his wife to conceive a child through heterologous artificial insemination need not consent in writing in order for that consent to be effective. Rather, the husband’s consent to the wife’s impregnation by artificial insemination may be implied from conduct which evidences knowledge of the procedure and a failure to object. The husband’s knowledge of and assistance in his wife’s efforts to conceive through artificial insemination constituted his ‘consent to the procedure’, in the case of In Re Baby Doe, 353 S.E.2d 877, 291 S.C. 389 (S.C. 1986); M.J., supra.
OTHER HE cannot be held to have given his consent under any scenario, as he also had no knowledge. There are no facts to support HIS proposition that OTHER HE consented, either expressly or impliedly, to HER artifical insemination, with HIS sperm. There are no facts to support a finding of consent to the AID in our case by OTHER HE. We do not, therefore, reach the issue of whether that consent was express or implied.
The voluntary, unconditional acceptance of the role of parent is as legally binding on the man as a judicial determination based on evidence. In re Parentage of G.E.M., 382 Ill.App.3d 1102, 1109, 890 N.E.2d 944, 954 (2008). The Agreed Order that SHE and HE signed should be treated as an acknowledgment of paternity and as an adjudication of paternity. An acknowledgement of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenging party. He would have to meet the standards of section 2-1401 of the Code of Civil Procedure. G.E.M., 382 Ill.App.3d at 1109, 890 N.E.2d at 954 (citing Smith, 212 Ill.2d at 399, 405, 818 N.E.2d 1204; Illinois Department of Public Aid ex re. Howard v. Graham, 328 Ill.
App.3d 433, 435-36, 766 N.E.2d 272 (2002); 735 ILCS 5/2-1401 (2008). See also 410 ILCS 535/12(7) (2008). Under the Act, “fatherhood is not always created by pure genetics.” (G.E.M. supra). Under this framework, HE is the father as he has no 2-1401 defense, and he did not make it in a timely manner regardless.
The Illinois legislature provided for instances in which a man would wish to seek a declaration that he is not a child’s father. Section 7(b) of the Act provides, “An action to declare the non-existence of the parent and child relationship may be brought subsequent to an adjudication of paternity in any judgment by the man adjudicated to be the father pursuant to the presumptions in Section 5 of this Act if, as a result of DNA tests, it is discovered that the man adjudicated to be the father is not the natural father of the child. Botello v. Roman, 09 D 79068, Sixth Div., June 30, 2011; In Re Marriage of Kates, 198 Ill.2d 156, 165, 761 N.E.2d 153, 158 (2001). HE cannot now request DNA testing, five years later, in an effort to even try to avoid being named as LITTLE SHE’s father.
Based on the Illinois Parentage Act, the Illinois Parentage Act of 1984, and voluminous Illinois and other-state caselaw on the issues discussed herein, HE is the natural and legal father of LITTLE SHE. Public policy and the best interest of LITTLE SHE would allow no other result.
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