IICLE Family Law Flash Points - March 2023

Assisted Reproduction Statute, Not Parent-Child Relationship Statute, Governs Issue of Paternity When Pregnancy Results from Artificial Insemination

In In re J.M., 2023 IL App (4th) 220537, a factually complex case, a same-sex female couple used the sperm of a male friend to conceive a child. No written legal agreement between the couple and the sperm donor was executed regarding the sperm donor’s intentions for paternal rights, although the evidence presented confirmed that the sperm donor had no desires or intentions to have any parental rights with respect to the child. During corollary proceedings to adjudicate the minor child as neglected, the guardian ad litem filed a petition to declare the nonexistence of a parent-child relationship (disestablishment petition) under §204(a)(1) of the Illinois Parentage Act of 2015, 750 ILCS 46/101, et seq. The GAL sought to rebut the presumption that the biological mother’s wife was the child’s “parent” when a DNA test confirmed who the biological father of the child was. The trial court denied the petition, and the appellate court affirmed. The issue before the court was whether the parent-child relationship statute (Article 2 of the Parentage Act) or the assisted reproduction statute (Article 7 of the Act) governed the paternity of the child. Section 201(a)(1) of the Parentage Act presumes that the spouse of the biological mother is the other parent if the parties are married at the time the child is born, but such a presumption can be rebutted with DNA evidence. However, the mother’s wife argued correctly that the parent-child relationship in this case was governed by the assisted reproduction statute under §103(d) of the Act, 750 ILCS 46/103(d), because “assisted reproduction” means artificial insemination and does not include any pregnancy achieved through sexual intercourse. Under §703(a) of the Act, 750 ILCS 46/703(a), any individual who is an “intended parent” is the “legal parent” of any child resulting from assisted reproduction. Further, if the donor and the intended parents do not have a written agreement in which the donor relinquishes all rights to the resulting child, the court shall determine parentage based on the evidence of the parties’ intent at the time of the donation. Therefore, the GAL failed to overcome the presumption that the biological mother’s wife was the child’s parent when she was his intended parent under the assisted reproduction statute.

Trial Court’s Ruling That Sperm Donor Did Not Intend To Be “Parent” Affirmed Despite No Written Agreement Between Donor and Intended Parents

At hearing on the GAL’s disestablishment of paternity petition, the GAL argued (1) that the trial court had no evidence of the sperm donor’s intentions at the time the insemination occurred since there was no written agreement with the intended parents and (2) that the donor’s participation in the court proceedings never showed an intention to not be a father. J.M., supra. The trial court disagreed, and the appellate court affirmed. The biological mother’s wife made a proffer, which both parties accepted at the hearing, that there was no intention between the three parties that the donor was to be a parent and that the legally married couple’s intention was to have a child of their own. Further, nothing with respect to the donor’s behavior contradicted the evidence as he submitted to DNA testing only in response to a court order for him to do so and only after he was held in contempt of court for not complying. After he was found to be the biological father of the child as a result of the DNA test, he surrendered his parental rights in open court. The trial court correctly determined parentage of the child in question under the assisted reproduction statute that the donor did not intend to be a parent and the legal parents of the child were the married couple who intended to be parents of the child.