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June 20, 1996


Appeal from Circuit Court of Champaign County. No. 94C105. Honorable Harry E. Clem, Judge Presiding.

Released for Publication July 24, 1996. As Corrected August 29, 1996.

Honorable James A. Knecht, J., Honorable Robert W. Cook, P.j., Honorable Frederick S. Green, J., Concurring. Justice Knecht delivered the opinion of the court:

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

Petitioner, Marcia Witbeck-Wildhagen, filed a petition for dissolution of marriage on January 26, 1994. One issue raised during the dissolution action was whether respondent, Eric Wildhagen, was the legal father of a child conceived by artificial insemination and born during the marriage. The trial court determined respondent is not the legal father of the child because he did not consent to the artificial insemination of petitioner, as required by section 3 of the Illinois Parentage Act (Act) (750 ILCS 40/3 (West 1994)). Petitioner appeals and we affirm.

Petitioner and respondent were married in November 1990. In April 1992, petitioner and respondent consulted with a nurse clinician at Christie Clinic regarding the procedure of artificial insemination. At the consultation, respondent made it clear to petitioner and the nurse he did not want to participate in, nor did he consent to, petitioner's attempts to become pregnant. Petitioner acknowledges at the consultation respondent expressed his desire not to participate in her attempt to have a baby, but alleges respondent said it would be all right if she pursued the pregnancy alone. Whenever respondent had sexual relations with petitioner, he used a condom to prevent pregnancy. Following the initial consultation at Christie Clinic, petitioner underwent seven artificial insemination procedures. Respondent was not informed of this by Christie Clinic or by petitioner.

In approximately October 1993, petitioner became pregnant. In January 1994, she filed a petition for dissolution of marriage. The petition stated no children were born during the marriage but petitioner was pregnant. The complaint alleged petitioner did not have sufficient property and income to provide for her reasonable needs or those of her unborn child. Petitioner sought custody of the unborn child and asked the court to order respondent to pay reasonable sums for her maintenance, support of the unborn child, and prenatal and delivery expenses.

On July 2, 1994, petitioner gave birth to a son, M.W. In September 1994, respondent filed a motion for blood testing, which was allowed. Petitioner's attorney then notified respondent, in a letter dated September 14, 1994, of the seven artificial insemination procedures, the last of which, the letter stated, may have resulted in the conception of M.W. The parties and M.W. underwent blood testing in November 1994. Respondent was conclusively excluded as M.W.'s biological father.

In February 1995, petitioner filed a motion for summary determination of a major issue (motion for summary determination) under section 2-1005(d) of the Illinois Code of Civil Procedure (735 ILCS 5/2-1005(d) (West 1994)). In the motion, petitioner acknowledged respondent was not M.W.'s biological father and had not given his written consent to her artificial insemination. Nonetheless, petitioner asked the court to find respondent to be the legal father of M.W. within the meaning of the Act (750 ILCS 40/3 (West 1994)). The court heard arguments on the motion for summary determination and determined, under its interpretation of section 3 of the Act, respondent is not the legal father of M.W.

Following this ruling, the parties executed a marital settlement agreement which reflected the court's earlier decision and in which they set forth their agreements on the remaining issues. On August 4, 1995, the trial court entered a judgment of dissolution of marriage which incorporated the marital settlement agreement, and entered a final order stating respondent is not the legal father of M.W. Petitioner filed a timely notice of appeal and asks this court to reverse the trial court's determination respondent is not the legal father of M.W.

The issue presented is whether, under section 3 of the Act, the lack of written consent by respondent to petitioner's artificial insemination precludes the establishment of a father-child relationship and the imposition of a support obligation.

Section 3(a) of the Act provides:

"(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. All papers and records pertaining to the insemination, whether part of the permanent medical record held by the physician or not, are subject to inspection only upon an order of the court for good cause shown." (Emphasis added.) 750 ILCS 40/3(a) (West 1994).

Only one Illinois case has analyzed this provision of the Act. In In re Marriage of Adams, 174 Ill. App. 3d 595, 610-11, 528 N.E.2d 1075, 1084, 124 Ill. Dec. 184 (1988), rev'd on other grounds, 133 Ill. 2d 437, 551 N.E.2d 635, 141 Ill. Dec. 448 (1990), the Second District Appellate Court decided the failure to obtain the husband's written consent does not bar further inquiry into the circumstances surrounding the decision to use the artificial insemination procedure. The court examined the surrounding circumstances in the case and, although the husband had not executed a written consent to his wife's artificial insemination, agreed with the trial court's finding he had manifested his consent by his conduct before, during, and after the pregnancy. Adams, 174 Ill. App. 3d at 615, 528 N.E.2d at 1087. The court concluded nothing in section 3 bars the imposition of a support obligation on an estoppel or waiver theory where written consent is not obtained. Thus, the court imposed a support obligation on the ...

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