In re MARRIAGE OF DEE J., Petitioner-Appellant, and ASHLIE J., Respondent-Appellee.
from the Circuit Court of Winnebago County. No. 14-D-1115
Honorable Joseph J. Bruce, Judge, Presiding.
HUTCHINSON JUSTICE delivered the judgment of the court, with
opinion. Presiding Justice Hudson and Justice Zenoff
concurred in the judgment and opinion.
1 This case presents a challenge to the trial court's
determination that the nonbiological parent in a same-sex
marriage was legally the parent of a child conceived through
artificial insemination. We affirm the judgment of the trial
2 The parties, Dee J. and Ashlie J., are a same-sex couple
who were married in Iowa in 2009. They were living in
Illinois in 2014 when Dee gave birth to a baby girl, A.M.J.,
who was conceived through artificial insemination. Seven
months after A.M.J. was born, the parties separated, and Dee
petitioned to dissolve her marriage to Ashlie. Dee's
initial dissolution petition stated that A.M.J. was born of
the marriage; however, Dee ultimately filed an amended
petition, alleging that A.M.J. was not a child of the
marriage, and filed a petition seeking a declaration of the
nonexistence of a parent-child relationship between A.M.J.
and Ashlie. See generally 750 ILCS 46/205 (West Supp. 2015).
Conversely, Ashlie sought a declaration of her parent-child
relationship with A.M.J., as well as a judgment allocating
decision-making responsibilities and parenting time between
the parties. Specifically, Ashlie asserted that her parental
and visitation rights were based on the common-law theories
of marital contract and promissory estoppel.
3 The trial court held a hearing on the issue of A.M.J.'s
parentage. After the hearing, the court declared that there
was a parent-child relationship between Ashlie and A.M.J. and
issued a four-page, single-spaced memorandum opinion setting
forth its findings. Dee attempted to directly appeal the
trial court's parentage order; however, we dismissed her
appeal, as a parentage determination is not a final and
appealable order in its own right. Department of Public
Aid ex rel. K.W. v. Lekberg, 295 Ill.App.3d 1067, 1071
(1998); Baldassone v. Gorzelanczyk, 282 Ill.App.3d
330, 334 (1996). Afterward, the parties returned to the trial
court, and the court entered a judgment dissolving the
parties' marriage and a separate judgment allocating
parental responsibilities between the parties. Dee has timely
appealed from the allocation judgment, which is a final and
appealable order. See Lekberg, 295 Ill.App.3d at
1071; Baldassone, 282 Ill.App.3d at 334; see also
Ill. S.Ct. R. 304(b)(5) (eff. Mar. 8, 2016). We therefore
turn to the merits.
4 On appeal, Dee challenges the trial court's
determination that Ashlie, too, is A.M.J.'s parent. Prior
to a number of legislative changes (about which, more below),
Illinois's statutory authority did not recognize parental
rights where a child was conceived by an unmarried couple
through artificial insemination. Illinois courts, however,
have accepted common-law claims in such cases, particularly
because one's participation in artificial insemination is
not some whimsical or trivial act. For example, in In re
Parentage of M.J., 203 Ill.2d 526 (2003), our supreme
court held that parental responsibility may be imposed on an
unmarried adult whose "conduct evince[d] actual consent
to the artificial insemination [procedure]."
Id. at 540. As the court explained, "if an
unmarried man who biologically causes conception through
sexual relations without the premeditated intent of birth is
legally obligated to support a child, then the equivalent
resulting birth of a child caused by the deliberate conduct
of artificial insemination should receive the same
treatment." Id. at 541. This holding was later
extended to situations in which an unmarried same-sex couple
had conceived a child through artificial insemination. In
In re T.P.S., 2012 IL App (5th) 120176, the court
explained that parental responsibility may be imposed or
parental rights may be asserted "based on conduct
evincing actual consent to the artificial insemination
procedure by an unmarried [same-sex] couple along with active
participation by the nonbiological partner as a
coparent." Id. ¶ 41. "To hold
otherwise, " the court stated, "[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."
Id. We review a trial court's parentage finding
under the manifest-weight standard. See Milligan v.
Cange, 200 Ill.App.3d 284, 294 (1990).
5 As the trial court determined, under the standards set
forth in In re Parentage of M.J. and In re
T.P.S., the evidence in this case was not close. Indeed,
the facts were largely undisputed. Both Dee and Ashlie are
Illinois residents and work for a local nonprofit
organization in the Rockford area. Dee and Ashlie were, as
noted, wed in Iowa in October 2009 (Illinois did not
recognize the validity of same-sex marriages until June 1,
2014). After the parties were married, Dee took Ashlie's
last name, and the two lived as spouses. They also purchased
a home together and agreed to conceive a child through
assisted reproduction, or artificial insemination.
6 The parties agreed that Dee would carry their first child
and that, if there were a second child, it would be carried
by Ashlie. In March 2012, Dee and Ashlie, as a couple,
enrolled in an artificial-insemination program, and Dee began
receiving fertility treatments at a clinic. (Throughout the
treatment, Ashlie also administered hormone shots to Dee at
home.) Together, Dee and Ashlie selected a sperm donor
through the clinic's program. They specifically chose a
donor whose physical characteristics-e.g., height,
mannerisms, and ethnicity-were similar to Ashlie's. In
addition, the parties jointly paid for Dee's medical and
7 In the fall of 2013, the parties learned that Dee was
carrying a little girl. The parties together selected the
baby's first name and decided that her middle name would
be the same as Ashlie's middle name. Both Dee and Ashlie
held a joint baby shower.
8 A.M.J. was born in a Rockford-area hospital in February
2014. Ashlie was present for A.M.J.'s birth; Dee and
Ashlie jointly completed the paperwork for A.M.J.'s birth
certificate, and both are identified as
"Co-Parent[s]" on A.M.J.'s birth certificate.
After A.M.J. was born, Dee and Ashlie sent out a joint birth
announcement in their employer's newsletter.
9 Seven months after A.M.J. was born, the parties separated.
However, while the parties were together, there was
considerable evidence that Ashlie was actively coparenting
A.M.J. After A.M.J. was born, Ashlie took time off work to
spend time with the baby and fed, bathed, changed, and bonded
with her. After Dee's maternity leave ended, the parties
began working alternating shifts and thus took care of A.M.J.
in alternating shifts. During this time, Ashlie was
A.M.J.'s primary caregiver most nights and weekends.
Ashlie also put A.M.J. on her health insurance. Ashlie
testified that A.M.J. (nearly three at the time of the
hearing) refers to both Dee and Ashlie as "Mom."
10 Dee testified that she and Ashlie never agreed to conceive
a child through artificial insemination; that after A.M.J.
was born, Dee and Ashlie never discussed "how happy
[they] were to both have this new baby"; and that,
because she had been under the influence of medication, Dee
did not recall jointly filling out A.M.J.'s birth
certificate, which listed Ashlie as a coparent. The trial
court found Dee not credible on each point.
11 On appeal, Dee argues that there was
"negligible" evidence of a parent-child bond-or
evidence of only a "negligible" parent-child
bond-between Ashlie and A.M.J. As the trial court noted,
however, even if Dee were correct, in view of A.M.J.'s
young age when the parties separated and at the time of the
hearing, that point was hardly ...