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.
So, SHE hires a lawyer, files HER Complaint for Parentage, and a 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 filed 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 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, formerly Illinois Revised Statutes, Chapter 40, Sections 1451-1453, does not have any 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:
1. This Act may be cited as the Illinois Parent- age 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.
2. 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 artificially 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 writing 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 held 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.
Statutes must be read to give effect to both the letter and spirit of the Act. Clark v. Fellin, 126 Colo. 519, 524, 251 P.2d 940, 943 (1952), cited by the case of In re Interest of R. C., 775 P.2d 27 (Colo. 1989). This court need only refer to the Illinois Parentage Act of 1984, 750 ILCS 45/1 et seq., for basic policy underlying the parent-child relation- ship. 45/1.1 states that:
Illinois recognized the right of every child to the physical, mental, emotional and monetary support of his or her parents under this Act.
750 ILCS 45/2 states:
As used in this Act, “parent and child relation- ship” 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.
750 ILCS 45/3 states:
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.
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 circumstances as described in 750 ILCS 45/1-3, then the court must follow the determination of paternity as laid out in the Illinois Parentage Act of 1984. A child conceived in the manner described will be regarded under Illinois law as the legitimate offspring of the husband and wife. See I.R.S. 1987, ch. 40, par. 1452. In re Marriage of Adams, 133 111.2d 437 at 451, 551 N.E.2-d 635. The corollary is that a child conceived in a different manner will not be regarded under Illinois law as the legitimate offspring of the husband and wife.
There are no cases on point from Illinois, or any other state, regarding the issues raised in our case. There are cases that illuminate some of the issues, but I believe that our questions are most easily answered by the facts of our case and application to the language of the Illinois Parentage Act.
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 the adulterous/sexual relationship between HER and HIM does not take HIM out of the protections of the statutes he seeks protection from; 3) that the OTHER HE consented to the artificial insemination of his then-estranged wife, SHE with HIS sperm, and 4) that HE is not otherwise estopped from even bringing his petition at all based on his failure to file a Motion to Vacate, Motion for Reconsideration, Appeal, or other protective measure, from the Agreed Order of Paternity, in which HE admits to being the father of LITTLE SHE.
HE believes that this is a case of first impression in both the State of Illinois and the entirety of the United States. HE therefore provides the Court with the “cases close to the specific issue presently before this court deal[ing] with unmarried women who were heterologously inseminated with the semen of known, unmarried donors, with the said donors wanting to have a ‘natural father’ relation- ship with the conceived child, against the wishes of the mother.” HE argues that each of the cases HE cites supports the proposition that HE has no legal or other relationship to the minor child herein. He argues that the intent of the parties is dispositive of all other issues. On the contrary, we do not even reach the issue of intent. These out-of-state cases, the one Illinois case, In re Marriage of Adams (which does involve a married woman and consent from her husband), and any others which can be, or are cited here, support the proposition that HE is both the natural and legal
father of LITTLE SHE.
Of course, HE must know that HE is responsible for LITTLE SHE if LITTLE SHE were conceived through sexual intercourse that HE had with HER. The court in, CM. v. C.C., 152 N.J. Super. 160,377 A.2d 821 (1977), found that “if the conception took place by intercourse, there would be no question that the ‘donor’ would be the father. The issue becomes whether a man is any less a father because he provides the semen by a method different from that normally used.” Id. at 824. CM. v. CC, relies on the cases of DiBiano v. DiBiano, 105 N.J. Super. 415, 419, 252 A.2d 735 (App.Div. 1969), and Sheehan v. Sheehan, 51 N.J. Super. 276, 143 A.2d 874 (App.Div. 1958) for the proposition that “It is in a child’s best interests to have two parents whenever possible.”
In CM. the donor was a man who had had a two year, non-sexual relationship with the mother of the child, and had intended to marry the mother of the child. The court found that he wanted to take upon himself the responsibilities of being a father for a child he is responsible for helping to conceive.
In our case, even if we assume momentarily that HE could prove that the minor child had been conceived by the artificial insemination process (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 have 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 the minor child. By operation of HIS interpretation of the “donor” statute, LITTLE SHE is a bastard. Obviously, the legislature did not intend this result.
HE seeks protection under the donor statute. He must, therefore, be excluded from the group who can be considered the natural or legal father of the child. The court in People v. Sorenson, 68 Ca. 2d 280, 437 P.2d 495 (1968) reasoned that that consenting husband was the natural father of the child because a child produced through artificial insemination does not have a “natural father”, as that term is generally understood. The determining factor is whether a legal relationship of father and child existed, the court said. Since there is no natural father, the court could only look for a lawful father. That court maintained that the intent of the legislature obviously was to include every child and to enforce the obligation of support against the person who could be determined to be the lawful parent. Id.
Our case is distinguished from CM. in that we have an Agreed Order of Paternity dated May 8, 1989, no Motions to Vacate, Motion for Reconsideration, or Appeal of that order, a married mother, no consent from the father or the mother, a sexual relationship by the parties both before and after the act of artificial insemination.
Jhordan C. v. Mary K, 179 Cal.App.3d 386, 224 Ca.Rptr. 530 (Cal.App. I Dist. 1986) finds that the California legislature has afforded unmarried as well as married women a statutory vehicle for obtaining semen for artificial insemination without fear that the donor may claim paternity, and has likewise provided men with a statutory vehicle for donating semen to married and unmarried women alike without fear of liability for child support. Subdivision (b) states only one limitation on its application: the semen must be “provided to a licensed physician.” Otherwise, whether impregnation occurs through artificial insemination or sexual intercourse, there can be a determination of paternity with the rights, duties and obligations such a determination entails. Id. at 5 34. (9A West’s U. Laws Ann. (I 9 79) U. Par. Act, Sec. 5, subd. (b), p. 593.
The Jhordan court found that “nothing inherent in artificial insemination requires the involvement of a physician.” Jhordan 224 Cal.Rptr. at 535. Nonetheless, that court held that the unmarried woman was required to have the semen provided to her physician before the artificial insemination could be protectable under the statute. Id. at 535. HE pleads that he gave his sperm to a licensed physician. In and of itself, this fact alone does not raise Respondent from outside the protection of the donor statute, to within its protection.
McIntyre v. Crouch, 98 Or.App. 462, 780 P.2d 239 (Or.App. 1989) involved summary judgment for the unmarried woman in the trial court against the donor based on the donor statute. Unlike HIM, that donor filed his timely Motion for Reconsideration and Appeal of this verdict. The Appellate Court reversed and held that the statute violated a donor’s federal constitutional due process rights if the donor could prove he and the mother had an agreement for the donor to participate in the child’s life, and he donated his semen in reliance on that agreement. This case is distinguished from the case at bar because it has an unmarried mother so that there is no issue of consent from a husband, no sexual intercourse between the parties, an agreement between the parties regarding raising the child, and a timely notice of appeal. To qualify under the filiation statute as an initiating party and be declared a father, that donor had to show that the statute did not bar him. Id. at 241. That
statute’s classifications had a rational foundation in light of the statutory objective of promoting the use of the artificial insemination process. But that statute’s provisions, like 750 ILCS 40/1-3, were not intended to assist an individual who is barred from its protections as HE is.
In Interest of R. C., 775 P.2d 27 (Colo. 1989) the Court held that the donor’s allegation of an agreement with the mother and the mother’s actions with the donor in relation to the child are relevant to overcome the statute’s bar to the donor’s rights with the minor child, so as to show the parties’ intent. The facts of this case include an unmarried woman, and an unmarried man who wanted a relationship with the child, based on his agreement with the mother. The court in R. C relied on the commentary to section 5 of the model Uniform Parentage Act to demonstrate the statute’s (Colorado Revised Statute 19-4-106(2), 8B (1988 Supp.) lack of guidance outside of the married recipient context. We are not faced with an unmarried context.
We do not even reach the issue that R.C. involves a single parent who does not want the involvement of the donor. Our case involves numerous issues that bar HIM from the statute’s protections, and our case involves a mother, unlike the R. C. mother, who wants HIM to have rights and responsibilities with the minor child. HE cannot identify himself with the statute’s protections for an unmarried woman. We do not reach the issue of the intent of the parties in relation to raising the minor child in our case, due to HIM being barred before we reach that issue. We would literally have to ignore the entire donor statute, the intent of the legislature, the Parentage Act of 1984, and the Constitution of the United States in order to give any protection to HIM.>
Welborn v. Done, 394 S.E.2d 732 (1990) involved a married couple, and a husband who consented to his wife’s artificial insemination by a donor. The relevant New Jersey donor statute, N.J.Stat.Ann., Sec. 9:17-44(b) (1983), unlike the UPA, allowed rights to the donor, so that the husband had to adopt the child in order to cut off the donor’s rights. Welborn is distinguishable from our case in that, again, we have no consent from our husband, a sexual relationship between the woman and donor both before, and after the artificial insemination, and an agreed order of paternity which established that the donor was to be treated as the father of the child. The Welborn case occurred before the Uniform Parentage Act went into effect, such that the donor had rights in relation to the child. Therefore, the Welborn court held that, “Until such time as the Code is amended to terminate possible parental rights of a sperm donor, only through adoption may the rights of the sperm donor be di
vested and only through adoption may the rights of [the husband] and the twins born to his wife be as secure as their rights would be in a natural father-child relation- ship.” 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. 1987).
The court in S. v S., 182 N.J. Super. 102, 440 A.2d 64 (1981), stated that it was clear that in the absence of a husband’s consent to artificial insemination, a support obligation may not be imposed on him. Further noting that the legislature addressing the problem of parental duties credited by artificial insemination has uniformly conditioned the imposition of all such obligations in a marital contest upon a husband’s valid consent to use of the procedure. Id.
In our case, there are no facts to support the proposition that HER then-husband, OTHER HE consented, either expressly or impliedly, to HER artificial 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.
In each such out-of-Illinois case supplied by HIM, the woman was unmarried, so that there was no issue of consent or lack thereof from the woman’s husband. However, each of the cases cited within the cases supplied by HIM does deal with the threshold issue of consent or lack thereof from the husband of the woman, as these cases involved married women. In each of these cases, the husband did consent to the heterologous artificial insemination of his wife and none of the donors had had sexual intercourse with the woman prior to or after the artificial insemination of the woman.
AGREED ORDER
An agreed order is a recordation of an agreement between the parties and becomes a judgment of the court. Harbeek v. Lyon, 70 N.E.2d 208, 329 III.App.642 (1947). See 750 ILCS 45/12.1 regarding settlement orders in paternity cases.
An order, judgment, or decree entered by the court upon the consent of the litigating parties, being in the nature of a contract to which the court has given its formal approval, cannot subsequently be opened, changed, or set aside without the assent of the parties, in the absence of fraud, mutual mistake, or actual absence of consent, and then only by an appropriate legal proceeding. Bergman v. Rhodes, 334 111. 137, 164 N.E. 598 (1929). HE alleges no fraud, mutual mistake, absence of con- sent, or assent to vacate the order of paternity dated May 8, 1989. HE is estopped from doing so in any case due to a time bar. IRS Ch. I IO, Sec. 2-140 1, 750 ILCS 45/8.
In re Marriage of Emerson, II 5 III.App. 3d 712, 450 N.E.2d 987 (1983), the father of the child married the mother, allowed his name to be placed (as father) on the child’s birth certificate, knew of circumstances surrounding the possible paternity of the child, and paid support obligations for more than two years after the entry of a support order. He then sought to vacate the support order because the mother unequivocally stated that he was not the father. Nonetheless, the court held that he was estopped to deny paternity of the child as found in the judgment, and that determination was res judicata for purposes of his post-decree petition. The father, in Emerson, had to show that the grounds asserted for relief were fraudulently concealed from him, since he filed his relief petition more than two years after the entry of the judgment. Although a fraudulently obtained judgment may be attacked at any time ( Pennington v. Pennington 27 III.App.3d 344, 349, 326 N.E.2d 431, 43
4) it is not sufficient for a party to come into court and simply assert that the judgment was premised upon false facts and that a good defense exists. Filosa v. Pecora, 18 III.App.3d 123, 128, 309 N.E.2d 356, 360 (1974). Rather, the party must show that such facts could not reasonably have been disclosed at or prior to the entry of judgment and also requires a showing of due diligence by the petitioner in both presenting a defense in that action, and in bringing the appropriate 2-1401 petition. The court found that it was specious at such a later date that the mother’s prior failure to unequivocally state the man was not the child’s father constituted fraudulent concealment from him. Emerson, 450 N.E.2d at 99 1.
In English v. English, 72 III.App.3d 736, 393 N.E.2d 18 (1979), the parties were divorced in 1969 by default, and an order entered that the wife would own the marital home. In 1970, the parties entered an agreed order that the husband would own the home with the three minor children. More than 30 days later, the wife filed her Motion to Vacate, alleging that the trial court had had no jurisdiction to enter the agreed order more than thirty days after the divorce had ended (and the court had lost jurisdiction).
The appeals court found that it had at least two reasons for holding that the trial court had subject matter jurisdiction over the husband’s 1970 petition: 1) the fact of the father living with the children raises an issue touching the support and welfare of the children (I.R.S. 1969, ch. 40, par. 19 expressly authorizes the trial court to make orders touching the support of the children); and 2) the agreed order was simply implemented by the trial court as an agreement of the parties. As such the order was a consent order as distinguished from a judicial determination of the parties’ rights.
In Fohr v. Fohr, 75 III.App.3d 575, 394 N.E.2d 87, the father filed his post-decree Petition for Change of Custody from the mother. The father prevailed, and the mother filed her Motion to Vacate, alleging that the “father” was not really the father of the children because he had always been impotent, and she could name the three fathers of the three children. The court denied her motion, and held that her claim could not be raised and considered. The question of parentage had already been determined and incorporated into a decree which was a result of her sworn testimony. Further, she had not filed either a motion within 30 days, 2 years, and no appeal had been taken. Accordingly, the prior decree was res judicata as to the issue of parentage.
In Burchett v. Goncher, 235 III.App.3d 1091, 603 N.E.2d I (ist Dist. 1991), the father filed his motion to vacate the agreed order for divorce, alleging that he had agreed to the order because he mistakenly believed the order complied with the guidelines set forth in the Illinois statute relating to child support, and the order was unconscionable due to the support level being excessive and in excess of the guidelines. The father alleged coercion was present as a result of a combination of mistake of fact and stress. The court found that the mistake was solely the father’s mistake. “To entitle one to equitable relief for one’s unilateral mistake of law, the mistaken party must show, in addition to his mistake as to his or her legal rights or responsibilities prior to entering a transaction, some wrongful conduct by the nonmistaken party that induced the mistaken party to act in favor of the nonmistaken party.” The court saw no evidence of such a circumstance with the entry o
f an agreed order, with the parties being represented by counsel.
In Ptaszek v. Michalik, 238 III.App.3d 72, 606 N.E.2d 115, app.den., 149 11.2d 660, 612 N.E.2d 523 (1992), the parties entered into an agreed order of paternity. More than two years later, the father filed his Motion to Vacate based on fraudulent concealment from him by the mother of his not being the natural father. The court denied his motion, stating that the father’s “burden of proof on his petition to vacate the three-year old paternity judgment was not to simply show that he is not the father after all. Rather, his burden was to establish by clear and convincing evidence that the mother knew that he was not the father and intentionally misled him about that fact, upon which he relied to his detriment.” Id. And, “It is, of course, the court’s duty to ensure, in an action involving the minor’s interests, that the rights of the child are adequately protected. In re Marriage of Adams, 133 111.2d 437, at 451, 551 N.E.2d 635 (111. 1990).
CONCLUSION
Based on the Illinois Parentage Act, Adultery Statute, and voluminous caselaw on the issues discussed herein, HE is the natural and legal father of LITTLE SHE. Public policy, and the best interest of the child would allow no other result.
Copyright “Illinois Family Law Report” April, 1995.