                             2018 IL App (2d) 170532 

                                  No. 2-17-0532

                            Opinion filed April 27, 2018 

______________________________________________________________________________

                                             IN THE


                              APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

In re MARRIAGE OF                      ) Appeal from the Circuit Court
DEE J.,                                ) of Winnebago County.
                                       )
      Petitioner-Appellant,            )
                                       )
and                                    ) No. 14-D-1115
                                       )
ASHLIE J.,                             ) Honorable
                                       ) Joseph J. Bruce,
      Respondent-Appellee.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
       Presiding Justice Hudson and Justice Zenoff concurred in the judgment and opinion.

                                            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 court.

¶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
2018 IL App (2d) 170532


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



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2018 IL App (2d) 170532


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.




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2018 IL App (2d) 170532


¶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 fertility treatment.

¶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.”




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2018 IL App (2d) 170532


¶ 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 dispositive. More importantly, as

the trial court stated in its memorandum order:

       “A nonbiological parent still retains both her parental responsibilities and rights. A child

       still retains the right to the physical, mental, emotional and financial support [from] both

       of her parents. [A.M.J.] was brought into this world because of the decision of both Dee

       and Ashlie to conceive a child through artificial insemination. She was nurtured for the

       first seven months of her life by both Dee and Ashlie. These are months when

       attachments and bonds are formed between an infant and both parents. The evidence

       shows that both parents were actively involved with [A.M.J] during these months. This

       was sufficient time for Ashlie to demonstrate the kind of co-parent connection with

       [A.M.J.] to satisfy the requirements set forth in [In re Parentage of M.J. and In re T.P.S.]

       Ashlie did not merely consent to an insemination procedure and then abandon the child

       who was conceived through that process. She remained involved with [A.M.J.] like a

       loving parent until marital discord led to the separation of the parties seven months [after

       A.M.J. was born].”



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After carefully examining the record, we agree with the trial court’s foregoing statements in all

respects. Accordingly, the trial court’s determination that a parent-child relationship existed

between Ashlie and A.M.J. was not against the manifest weight of the evidence.

¶ 12   Dee’s remaining arguments assail the judgment for failing to meet two “require[ments]”

but, in fact, neither requirement was applicable. First, Dee contends that the trial court erred by

not making “specific findings of best interests”—i.e., findings that a parent-child relationship

with Ashlie was specifically in A.M.J.’s best interests. We reject the premise, as such findings

were not required. Although cited by neither party, our supreme court has twice explained that

best-interests findings are a prerequisite to the exercise of parental rights, not a prerequisite to

declaring the existence of parental rights. See J.S.A. v. M.H., 224 Ill. 2d 182, 212 (2007); In re

Parentage of John M., 212 Ill. 2d 253, 269-73 (2004). In other words, the exercise of parental

rights “ ‘such as the right to have custody of, or visitation with, the child, shall not be granted

unless it is in the child’s best interest’ ” (J.S.A., 224 Ill. 2d at 212 (quoting In re Parentage of

John M., 212 Ill. 2d at 265)); parentage, however, may be established merely by commencing a

legal action to determine that fact.

¶ 13   Dee’s remaining point is that, pursuant to the Gestational Surrogacy Act (750 ILCS 47/1

et seq. (West 2014)), Ashlie’s parentage depended on whether there was “written consent”

between the parties to conceive a child through artificial insemination. Because such a

document—also known as a “gestational surrogacy contract”—was not in evidence, Dee asserts

that the trial court “misapplied the law” and overlooked the “plain language” of the Gestational

Surrogacy Act. This argument, too, is misguided. In a traditional surrogacy, a woman uses her

own egg (her female gamete) and is artificially inseminated with the intended father’s or a

donor’s sperm (a male gamete). The surrogate mother carries and delivers the child(ren), which



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2018 IL App (2d) 170532


is (or are) then given to the intended parent(s) to raise. Thus, a traditional surrogate is genetically

linked to the child because it is her egg that created the child. As the statute explains, in a

gestational surrogacy, “a woman attempts to carry and give birth to a child created through

in vitro fertilization using the gamete or gametes of at least one of the intended parents and to

which the gestational surrogate has made no genetic contribution.” (Emphasis added.) 750 ILCS

47/10 (West 2014). Because there is a biological connection between Dee and A.M.J., Dee was

not a gestational surrogate for A.M.J. In fact, Dee was not any kind of surrogate for A.M.J. at all,

as A.M.J. was conceived for Dee and Ashlie to be A.M.J.’s parents. Consequently, the

contractual requirements that govern gestational-surrogacy arrangements have absolutely no

bearing here.

¶ 14   One final point remains. In her appellee’s brief, Ashlie argues that we should affirm on

an alternative basis. According to Ashlie, in light of the United States Supreme Court’s decision

that the fundamental right to marry is guaranteed to same-sex couples (see Obergefell v. Hodges,

576 U.S. ___, 135 S. Ct. 2071 (2015)), we must “interpret the 1984 Parentage Act in a gender

neutral fashion” and apply to her a spousal presumption of parentage for a child conceived

during a marriage. See generally Michael H. v. Gerald D., 491 U.S. 110 (1989); see also Pavan

v. Smith, 582 U.S. ___, 137 S. Ct. 2075 (2017). We need not consider Ashlie’s argument,

because in 2014 the legislature repealed the Illinois Parentage Act of 1984 and replaced it with

the Illinois Parentage Act of 2015 (see Pub. Act 99-85 (eff. Jan. 1, 2016) (repealing 750 ILCS

45/1 et seq. and adding 750 ILCS 46/101 et seq.)), and more recently the legislature made a

number of technical corrections to the 2015 enactment. See Pub. Act 99-769, § 5 (eff. Jan. 1,

2017) (amending 750 ILCS 46/101 et seq.). These legislative alterations obviate the need for us

to consider Ashlie’s argument, as we cannot grant her any effective relief from a statute that is no



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longer in effect. See Bartlow v. Costigan, 2014 IL 115152, ¶ 35; see also Massachusetts v.


Oakes, 491 U.S. 576, 584 (1989).


¶ 15   In sum, we affirm the judgment of the circuit court of Winnebago County declaring a


parent-child relationship between Ashlie and A.M.J.


¶ 16   Affirmed.





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