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In re Parentage of M.J.

February 06, 2003

IN RE PARENTAGE OF M.J. ET AL., MINORS
(ALEXIS MITCHELL, INDIV. AND AS GUARDIAN AND NEXT FRIEND ON BEHALF OF MINORS M.J. AND N.J., APPELLANT,
v.
RAYMOND BANARY, APPELLEE).



The opinion of the court was delivered by: Justice Kilbride

Docket No. 92947-Agenda 10-November 2002.

Appellant, Alexis Mitchell, brought this action against appellee, Raymond Banary, her former paramour, seeking to establish paternity and to impose support obligations for twin boys conceived through artificial insemination by an anonymous donor. The circuit court of Cook County dismissed Alexis' suit. The appellate court affirmed. 325 Ill. App. 3d 826. We allowed Alexis' petition for leave to appeal. 177 Ill. 2d R. 315. We also granted the Lambda Legal Defense and Education Fund, Inc., leave to submit an amicus curiae brief in support of Alexis. See 155 Ill. 2d R. 345. We now affirm in part, reverse in part, and hold that the Illinois Parentage Act does not bar common law claims for child support.

I. BACKGROUND

We initially note that Raymond brought his motion to dismiss Alexis' complaint under section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 1998)). A motion to dismiss "admits all well-pled allegations in the complaint and reasonable inferences to be drawn from the facts." In re Chicago Flood Litigation, 176 Ill. 2d 179, 184 (1997). With that presumption in mind, we review the factual background of this case.

Alexis is a single woman who was 40 years old at the time of the filing of her complaint, and Raymond is a male who was 57 years old at the time of the filing of the complaint. Alexis and Raymond first met in 1986 and began an intimate relationship lasting 10 years. When they met, Raymond introduced himself to Alexis as "Jim Richardson" and told her that he was divorced.

During their 10-year relationship, the parties discussed marriage. Alexis and Raymond are of different races and, according to Alexis, Raymond told her that he would have to wait until retirement to marry because his community would not accept a mixed-race marriage. Raymond promised Alexis that upon his retirement, they would move to another community and be married.

The parties also discussed Alexis' desire to have children with Raymond. Despite their attempts to conceive, Alexis did not become pregnant, and it became apparent that Raymond could not father children. In 1991, Raymond suggested to Alexis that she become artificially inseminated by an anonymous donor as a means to have their child. Artificial insemination by a donor is also known as heterologous artificial insemination. Alexis claims that Raymond promised her that he would provide financial support for any child born by means of artificial insemination. However, Raymond's written consent to the procedure was never obtained. Alexis contends that Raymond orally consented to the procedure and that but for Raymond's promise to support the children, Alexis would not have completed the procedure.

According to Alexis, with Raymond's continuing consent and active encouragement, she attempted to become pregnant through artificial insemination. Raymond provided financial assistance for the insemination procedure; accompanied Alexis to the doctor's office for examinations; injected Alexis with medication designed to enhance her fertility; and participated in selecting the donor so that the offspring would appear to be a product of their relationship.

On the fifth attempt, Alexis became pregnant and gave birth to twin boys in 1993. Raymond participated in selecting names for the children. After the births, Raymond acknowledged the children as his own. He also provided support for them in the form of monthly payments of cash and the purchase of food, clothing, furniture, toys, and play equipment. In her complaint, Alexis further describes many family vacations with Raymond to 10 different states and Mexico, and alleges that Raymond also paid for the children's medical, travel, and entertainment expenses.

In 1996, Alexis discovered that Raymond was not named Jim Richardson and that he was married. Upon discovering Raymond's true name and marital status, Alexis ended their relationship. Since 1996, Raymond has provided no financial support for the children.

Alexis filed a three-count complaint against Raymond seeking to establish paternity and impose a support obligation for the benefit of the twin boys. In the first two counts, Alexis sought to impose child support obligations by invoking common law theories of breach of an oral agreement and promissory estoppel. In the remaining count of her complaint, Alexis sought a declaration of paternity and establishment of child support pursuant to the Illinois Parentage Act (750 ILCS 40/1 et seq. (West 1998)).

Raymond filed a motion to dismiss, arguing that Alexis' common law claims, contained in counts I and II, were unenforceable under the provisions of the Frauds Act (740 ILCS 80/0.01 et seq. (West 1998)) and contravened Illinois public policy. Raymond also argued that all three counts should be dismissed pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 1998)) because Alexis failed to set forth a legally recognized basis for the imposition of a father-child relationship or for child support under the Illinois Parentage Act (750 ILCS 40/1 et seq. (West 1998)).

The circuit court granted Raymond's motion and dismissed Alexis' complaint. The circuit court interpreted the Illinois Parentage Act as requiring that a husband consent in writing before he is treated in law as the natural father of a child conceived to his wife by means of artificial insemination. The circuit court commented that it would not be rational that unmarried couples would have fewer safeguards in such a matter. The circuit court therefore held that Alexis' common law theories were not actionable because the Illinois Parentage Act expressly requires written consent. The circuit court did not refer to the Frauds Act in its dismissal of the complaint.

Alexis appealed the circuit court's decision, and the appellate court majority determined that Alexis' common law theories for child support fail because the Illinois Parentage Act governs artificial insemination and requires that the "husband's consent must be in writing." The appellate court held that written consent is required before an unmarried man becomes legally obligated to support a child born as a result of ...


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