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Intent or Biology Artificial insemination complicates parentage case

Is the nonbiological parent in a same-sex marriage legally the parent of the child conceived through artificial insemination?

Recently, the case of In re Marriage of Dee J and Ashlie J, 2018 Ill.App.(2d) 170532, provided a good analysis of this issue. Ultimately, the appellate court affirmed the trial court, finding that the nonbiological parent in a same-sex marriage was legally the parent of a child conceived through artificial insemination.

The parties Dee J. and Ashlie J. were a same-sex couple married in Iowa and living in Illinois in

2014 when Dee gave birth to a baby girl, A.M.J., who was conceived through artificial insemination (Illinois had not yet recognized the validity of same-sex marriage).

Seven months after A.M.J. was born, the parties separated and Dee ultimately filed an amended petition for dissolution of marriage alleging that A.M.J. was not the child of the marriage and filed an action to declare the nonexistence of the parent-child relationship under the Illinois Parentage Act of 2015.

Ashlie countersued for a declaration of her parent-child relationship with A.M.J. as well as to allocate decision-making responsibilities and parenting time. Ashlie’s pleadings for parental and visitation rights were based on common-law theories of marital contract and promissory estoppel and not the Illinois Parentage Act of 2015.

The trial court declared that there was a parent-child relationship, dissolved the parties’ marriage and entered a severed judgment splitting parenting responsibilities. Dee appealed.

On appeal, Dee argued that the Illinois Parentage Act of 2015 did not recognize parental rights where a child was conceived by an unmarried couple through artificial insemination. Ashlie countered by pointing out that the Illinois Supreme Court accepted common-law claims cases such as In re Parentage of M.J., 203 Ill. 2d 527 (2003).

This holding was extended nine years later by the 5th District Appellate District in situations in which an unmarried same-sex couple had conceived a child through artificial insemination. In In re T.P.S. 2012 Ill.App.5th 120176, the court further stated that to find otherwise “would deny a child his or her right to the physical, mental and emotional support of two parents merely because his or her parentage falls outside the terms of the Illinois Parentage Act.”

In the current case, the appellate court reviewed the evidence as to whether a parent-child relationship existed between Ashlie and A.M.J. Specifically, Ashlie and Dee lived as spouses, purchased a home together and agreed to conceive a child through artificial insemination. The parties agreed that Dee would carry the first child and if there was a second child, it would be carried by Ashlie.

Both parties as a couple enrolled into an artificial insemination program and both selected the sperm donor through the clinic’s program who had similar physical characteristics to Ashlie. The parties jointly paid for the medical infertility treatment. They selected the baby’s name together and decided her middle name would be Ashlie. They held a joint baby shower. Ashlie was present for A.M.J.’s birth and they jointly completed the paperwork for A.M.J.’s birth certificate and they are both identified as co-parents on A.M.J.’s birth certificate.

The appellate court affirmed the trial court’s conclusion that while the parties were together there was considerable evidence that Ashlie was actively co-parenting A.M.J. Therefore, the appellate court affirmed and held that the evidence in the case was not close as to whether Ashlie had a parent-child relationship under the law.

On appeal, Dee had three arguments, all of which were dismissed by the trial court and affirmed by the appellate court. First, Dee argued that there was negligible evidence of the parent-child bond. Second, the trial court’s judgment was reversible because it failed to make the specific findings that a parent-child relationship with Ashlie was in A.M.J.’s best interests.

As the appellate court pointed out, the best interest findings are not a prerequisite to declaring the existence of parental rights, only a prerequisite to exercise of parental rights. Finally, Dee argued that Ashlie’s parentage depended on whether there was “written consent” between the parties to conceive a child through artificial insemination. And because there was not a “gestational surrogacy contract” in evidence, the trial court erred.

The appellate court found this argument as misguided and misapplied since in the traditional surrogacy, a woman uses her own egg and is artificially inseminated with the intended father’s or donor ’s sperm and the surrogate mother carries and delivers the child which are then given to the intended biological parents to raise. Because there is a biological connection between Dee and A.M.J., she was not the gestational surrogate for A.M.J. and, therefore, the contractual requirements that govern gestational surrogacy arrangements were inapplicable.

Dan Stefani is a principal at Katz & Stefani. The firm’s practice is limited to family law matters. His work on behalf of mainly high net-worth clients, as well as spouses of high net-worth individuals, involves valuations of closely held corporations, partnerships and other entities, detailed analysis of complex financial transactions, child custody and support issues as well as paternity and domestic violence.

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