In re T.P.S.

ILLINOIS OFFICIAL REPORTS

Appellate Court

In re T.P.S., 2012 IL App (5th) 120176

Appellate Court In re T.P.S. and K.M.S., Minor Children (Catherine D.W., Petitioner-

Caption Appellant, v. Deanna C.S., Respondent-Appellee).

District & No. Fifth District

Docket No. 5-12-0176

Filed October 9, 2012

Held Petitioner’s action seeking custody and other parental rights with respect

(Note: This syllabus to the children born to her former partner by artificial insemination based

constitutes no part of on contract, promissory estoppel and implied contract was improperly

the opinion of the court dismissed, since the best interests of children and society are served by

but has been prepared recognizing that parental rights may be asserted based on conduct

by the Reporter of evincing actual consent to artificial insemination by an unmarried couple

Decisions for the along with active participation by a nonbiological partner as a coparent.

convenience of the

reader.)

Decision Under Appeal from the Circuit Court of Williamson County, No. 12-F-2; the

Review Hon. Brian D. Lewis, Judge, presiding.

Judgment Affirmed in part and reversed in part; cause remanded.

Counsel on John Knight and Harvey Grossman, both of Roger Baldwin Foundation

Appeal of ACLU, Inc., and David B. Goroff, of Foley & Lardner LLP, both of

Chicago, for appellant.

Teresa Machicao-Hopkins, of Machicao & Associates, and Julie A.

Thompson, both of Marion, for appellee.

Michael L. Brody and Tyler G. Johannes, both of Winston & Strawn,

LLP, of Chicago, for amicus curiae.

Panel JUSTICE STEWART delivered the judgment of the court, with opinion.

Justices Spomer and Wexstten concurred in the judgment and opinion.

OPINION

¶1 The petitioner, Catherine D.W. (Cathy), and the respondent, Deanna C.S. (Dee), were

involved in a long-term romantic relationship. During their relationship, the parties agreed

that Dee would conceive two children by artificial insemination and that they would raise the

children together as equal coparents. Two children were conceived by artificial insemination

as a result of this agreement, T.P.S. and K.M.S. T.P.S. was born in January 2006, and K.M.S.

was born in October 2008. In September 2009, Cathy and Dee’s relationship ended, and Dee

has prevented Cathy from visiting or communicating with the children since October 2010.

Cathy filed a petition to establish parentage, custody, visitation, and child support with

respect to the children. Dee moved to dismiss Cathy’s petition, arguing that Cathy lacked

standing to seek custody or visitation with the minor children because she is not a biological

or adoptive parent. The trial court granted Dee’s motion and entered a judgment dismissing

Cathy’s petition with prejudice. Cathy now appeals the circuit court’s judgment. For the

following reasons, we affirm in part, reverse in part, and remand for further proceedings on

Cathy’s petition.

¶2 BACKGROUND

¶3 Initially, we note that the issue of Cathy’s standing to seek custody and visitation is

presented to us by way of the circuit court’s dismissal of her petition pursuant to Dee’s

motion that was labeled as a motion brought under section 2-615 of the Illinois Code of Civil

Procedure (the Code) (735 ILCS 5/2-615 (West 2010)). Cathy argues that a lack of standing

is an affirmative matter that is properly raised only by filing a motion under section 2-

619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2010)). Under section 2-615, a

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complaint may be dismissed for a failure to state a cause of action because of factual or legal

insufficiency. In re Parentage of Scarlett Z.-D., 2012 IL App (2d) 120266, ¶ 19, 975 N.E.2d

755. A motion to dismiss pursuant to section 2-619(a)(9) of the Code admits the legal

sufficiency of the complaint but asserts other affirmative matters that avoid or defeat the

allegations contained in the complaint. Id.

¶4 In evaluating a circuit court’s dismissal, we look at the substance of the motion to

dismiss, not its label. See Winters v. Wangler, 386 Ill. App. 3d 788, 793, 898 N.E.2d 776,

780 (2008). In addition, in the present case, Cathy herself responded to Dee’s motion by

filing her own “affirmative matter” by way of affidavits and exhibits in support of her

standing argument. Accordingly, Cathy was able to address the substance of the standing

issue in response to Dee’s motion and was not prejudiced by Dee’s labeling of her motion.

Therefore, we will review the substance of Dee’s motion as one raising affirmative matter

pursuant to section 2-619(a)(9) of the Code. Accordingly, our factual background is based

on all well-pleaded facts contained in the pleadings, affidavits, and depositions found in the

record, interpreted in the light most favorable to Cathy. Doe A. v. Diocese of Dallas, 234 Ill.

2d 393, 396, 917 N.E.2d 475, 477 (2009).

¶5 Cathy and Dee began their committed, romantic relationship in 2000. During their

relationship, Cathy and Dee shared their income and family expenses, had a joint bank

account, and jointly owned their home and other tangible property. Dee listed Cathy as her

domestic partner when her employer offered domestic partner benefits. Dee also listed Cathy

as the beneficiary for death benefits. They lived together and socialized with friends and

family as a couple.

¶6 In 2004, they decided to expand their family by having children together through artificial

insemination. They agreed that Dee would give birth to their children because she was the

younger of the two and had health insurance through her employer. They also agreed that

Cathy would be a full and equal coparent of any child born through artificial insemination.

In addition, they agreed that Cathy would be the children’s primary caregiver.

¶7 Once the parties agreed to expand their family through artificial insemination, Cathy was

actively involved in each step of the planning for the children’s births, including helping to

arrange and pay for the artificial inseminations. Cathy attended prenatal appointments and

maternity classes with Dee. Dee gave birth to two children as a result of artificial

insemination: T.P.S., who was born in January 2006, and K.M.S., who was born in October

2008. Cathy was present and participated in the delivery of each child. After T.P.S.’s birth,

the hospital gave Cathy an unofficial, honorary birth certificate that listed Cathy as Dee’s

“partner” and as one of T.P.S.’s parents. Many of Cathy’s family members were present for

T.P.S.’s birth, and Cathy and Dee jointly sent out birth announcements to family and friends.

¶8 At all times when Cathy and Dee were together, both prior to and after the children’s

births, Dee agreed that Cathy was to have legal parental rights to the children that were equal

to hers. In addition, the parties agreed that Cathy would be the children’s primary caregiver

and would stay at home with the children. Prior to T.P.S.’s birth, Dee executed a will that

directed Cathy to have sole responsibility for T.P.S. in the event of her death. Cathy and Dee

also consulted with an attorney to discuss pursuing a second-parent adoption for Cathy. Their

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attorney advised them that the circuit court in Williamson County would not grant a second-

parent adoption to a same-sex, nonbiological parent. Instead, their attorney recommended the

creation of a coguardianship as the quickest and surest means of securing Cathy’s legal rights

that were as close as possible to parental rights. Therefore, after the birth of each child, Cathy

and Dee jointly petitioned the circuit court to make them equal coguardians.

¶9 The parties filed the joint petition for the coguardianship of T.P.S. approximately two

months after his birth. They alleged that they both shared in his daily care and provided for

his financial needs. The parties filed the joint petition for the coguardianship of K.M.S.

approximately five months after her birth. They alleged that Cathy shared in the daily needs

of the child and that K.M.S. had a close bond with Cathy. In both cases, the circuit court

appointed a guardian ad litem (GAL), who supported the coguardianship as being in the

children’s best interests.

¶ 10 In the case concerning the coguardianship for T.P.S., the GAL reported that Cathy and

Dee had been in a “lengthy relationship,” that they had lived together for five years, and that

they both cared for and loved the child. The GAL for K.M.S. reported that the two parties

had been in a relationship for eight years and shared in the care of K.M.S. The GAL further

noted that Cathy was “the primary care giver of K.M.S. during the week and the parties want

to ensure that she will be able to access medical care for K.M.S. and that Cathy would have

legal rights to continue caring for K.M.S. if something were to happen to Dee.”

¶ 11 The circuit court granted the coguardianship in both cases, finding that it was in the best

interests of the children.

¶ 12 After the birth of each child, Cathy fulfilled the role of primary caregiver to the children

pursuant to the parties’ agreement and provided love and emotional, psychological, financial,

and educational support for each child. During the weekdays, Cathy stopped working at a

video store that she owned in order to care for the children. Cathy was actively involved in

every decision involving the children’s care, including taking the primary responsibility for

obtaining their medical care, overseeing T.P.S.’s attendance at preschool, attending parent-

teacher conferences on his behalf, and arranging for the children’s feeding, clothing, learning,

and play. The children called Cathy “mom.” Dee sent birthday cards and a Mother’s Day card

to Cathy from her and the children describing Cathy as “mom.” Cathy’s extended family was

also the children’s extended family, and they referred to Cathy’s mother as their “Grandma

Pat.”

¶ 13 In September 2009, Dee ended her relationship with Cathy and moved out of their home.

After Dee moved out, the children continued to stay with Cathy during the day, and they

stayed with Cathy two or three nights per week. Cathy continued to buy the children food,

clothing, medical supplies, toys, and other items. In July 2010, however, Dee petitioned the

court in each guardianship case to end Cathy’s coguardianship, and since October 2010, Dee

has kept Cathy from seeing the children or having any communication with the children,

including birthday or Christmas gifts for the children, and has prevented the children from

having Cathy’s physical, mental, emotional, and financial support.

¶ 14 Cathy objected to Dee’s petitions to terminate the coguardianships, arguing that

terminating the guardianships would not be in the children’s best interests. In the

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guardianship proceeding, the children’s primary care physician, Dr. Sean McCain, attested

in an affidavit to the bond that has formed between Cathy and the children. Dr. McCain

stated in his affidavit that he believed that Cathy had always served as a mother to the

children and that the children are attached to Cathy as their mother. Likewise, a nurse

practitioner for the children, Stacy Gardner, stated in her affidavit that Cathy brought the

children in for treatment of acute matters such as colds and sinus infections. She believed

that Cathy was very nurturing and attentive toward the children and that the children

considered Cathy to be their mother. In affidavits filed in the guardianship proceedings,

several family friends also attested to Cathy’s close relationship to the children as their

mother.

¶ 15 The circuit court initially granted Dee’s petitions to end Cathy’s coguardianships without

conducting an evidentiary hearing on Cathy’s objections or considering the children’s best

interests, holding that Cathy lacked standing to challenge Dee’s petition because she was not

a biological or adoptive parent of the children. This court, however, reversed the circuit

court’s dismissal, holding that Cathy does have standing as a coguardian to oppose Dee’s

petitions. This court remanded the guardianship cases to the circuit court for a hearing on

Dee’s petitions and Cathy’s objections. In re T.P.S., 2011 IL App (5th) 100617, ¶ 19, 954

N.E.2d 673.

¶ 16 The issues raised in the guardianship proceedings are not before us in the present appeal.

Instead, the issues in the present case concern a separate petition that Cathy filed on January

5, 2012, to establish her parentage, custody, visitation, and child support with respect to the

two children. Cathy’s standing to bring this petition is the central issue before us in the

present appeal.

¶ 17 Cathy’s petition alleged six different theories to establish her right to custody and

visitation with the children. Count I alleged a right to custody and visitation under the

common law, count II alleged a breach of an oral contract for custody and other parental

rights, count III alleged a promissory estoppel theory, count IV alleged an implied contract,

count V alleged a due process right of a parent under the United States Constitution, and

count VI alleged a due process right of a parent under the Illinois Constitution.

¶ 18 Dee moved to dismiss Cathy’s petition for parentage, custody, visitation, and child

support, arguing that because Cathy was not an adoptive or natural parent of the children, she

had no standing to seek custody or visitation under the Illinois Marriage and Dissolution of

Marriage Act (Dissolution Act) (750 ILCS 5/601(b)(2) (West 2010)). The circuit court

agreed and entered an order dismissing Cathy’s petition. Cathy filed a timely notice of

appeal.

¶ 19 DISCUSSION

¶ 20 The central issue before us in this appeal concerns whether Illinois recognizes a common

law action for child custody and visitation where an unmarried couple agrees to conceive a

child by artificial insemination, and the couple subsequently begins raising the child as

coequal parents. We hold that, with respect to children born of artificial insemination, under

the facts of this case, the Illinois legislature has not barred common law contract and

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promissory estoppel causes of action for custody and visitation brought by the nonbiological

parent. Therefore, we reverse the circuit court’s dismissal of counts II, III, and IV of Cathy’s

petition and remand for an evidentiary hearing concerning the best interests of T.P.S. and

K.M.S. with respect to Cathy’s request for custody and visitation.

¶ 21 In dismissing Cathy’s common law claims, the circuit court ruled that there are only three

ways in which a nonparent may seek custody of a child: section 601 of the Dissolution Act

(750 ILCS 5/601 (West 2010)), the Juvenile Court Act of 1987 (705 ILCS 405/1-1 to 7-1

(West 2010)), or the Adoption Act (750 ILCS 50/0.01 to 24 (West 2010)). The circuit court

focused on the standing requirements for a nonparent to seek custody under section 601 of

the Dissolution Act, which provides as follows:

“(b) A child custody proceeding is commenced in the court:

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(2) by a person other than a parent, by filing a petition for custody of the child in

the county in which he is permanently resident or found, but only if he is not in the

physical custody of one of his parents[.]” 750 ILCS 5/601(b)(2) (West 2010).

¶ 22 The circuit court ruled that because Cathy was a nonparent and did not meet the standing

requirements under 601(b)(2) of the Dissolution Act, she did not have standing to seek

custody or visitation of the minor children. We disagree with the circuit court’s analysis.

¶ 23 Cathy does not argue that she has standing to seek custody or visitation under any of the

provisions of the Dissolution Act or any other statutory provision. Accordingly, our analysis

in the present case does not focus on the different scenarios under which various nonparents

can establish standing to seek custody or visitation under the Dissolution Act or any other

Illinois statutory provisions. Instead, our task is limited to determining the legislature’s intent

with respect to common law claims for parental rights in cases involving children born from

artificial insemination and whether Cathy has adequately pleaded her common law claims.

We believe that the supreme court’s decision in In re Parentage of M.J., 203 Ill. 2d 526, 787

N.E.2d 144 (2003), sets out the proper framework for our analysis of this issue.

¶ 24 In M.J., the court addressed the issue of whether common law actions are allowed in

Illinois for parental responsibility for the benefit of children born to unmarried couples

through assisted reproduction. The court held that a man who participated in the decision and

process to bring children into this world through artificial insemination can be required to

financially support the children, under the common law, when he has no biological

connection with the children and there is no statutory provision requiring him to do so.

¶ 25 In M.J., the mother alleged that she and the respondent were together as an unmarried

couple, that the respondent orally consented to her being artificially inseminated by semen

from another man, and that he agreed to financially support any children that were born as

a result of the artificial insemination. The mother had twins as a result of artificial

insemination, but when she discovered that the respondent was married, she ended her

relationship with him and filed a motion to establish his paternity and to impose a child

support obligation. The mother alleged two counts under common law theories (oral contract

and promissory estoppel) and one count under the Illinois Parentage Act (750 ILCS 40/1 to

3 (West 2010)). The circuit court dismissed all three counts of the mother’s petition.

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¶ 26 With respect to the claim of M.J.’s mother under the Illinois Parentage Act, section 2 of

the statute states as follows: “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.” 750 ILCS 40/2 (West 2010). Section 3 of the Illinois Parentage Act states

that when the husband consents in writing to the artificial insemination of his wife with

semen donated by another man, “the husband shall be treated in law as if he were the natural

father of a child thereby conceived.” 750 ILCS 40/3(a) (West 2010).

¶ 27 In M.J., the respondent did not sign a written consent to the artificial insemination of the

mother. Therefore, the supreme court held that the Illinois Parentage Act could not be used

to establish the respondent’s parental obligation to pay child support. M.J., 203 Ill. 2d at 535-

36, 787 N.E.2d at 149. Accordingly, the court affirmed the circuit court’s dismissal of the

mother’s claim under the Illinois Parentage Act.1 Id. at 536, 787 N.E.2d at 149. The supreme

court, however, reversed the circuit court’s dismissal of the mother’s common law claims

against the respondent seeking to establish his parental responsibility. Id. at 541, 787 N.E.2d

at 152.

¶ 28 In analyzing the circuit court’s dismissal of the mother’s common law claims, the M.J.

court had to “determine whether the Illinois Parentage Act precludes common law claims for

child support.” Id. at 537, 787 N.E.2d at 150. The court concluded that it did not. In reaching

this conclusion, the supreme court (1) considered the state’s public policy with respect to

minor children and (2) examined the three sections of the Illinois Parentage Act to determine

whether the legislature intended to bar common law actions for support with respect to

children born of artificial insemination. Id. at 540, 787 N.E.2d at 151-52.

¶ 29 In discussing Illinois’s public policy with respect to minor children, the M.J. court first

noted the duty of Illinois courts, “in an action where the interests of a minor are at stake, to

ensure that the rights of the child are adequately protected.” Id. at 539, 787 N.E.2d at 151.

The court stated that the public policy in Illinois recognizes “the right of every child to the

physical, mental, emotional, and monetary support of his or her parents” and that Illinois has

a “strong interest in protecting and promoting the welfare of its children.” Id. Consistent with

this public policy, the supreme court specifically directed that cases involving “assisted

reproduction” are to be decided based on the particular circumstances presented. Id.

¶ 30 The court then turned to the Illinois Parentage Act and noted that it contained only three

sections. Id. The court concluded, “Our examination of these three sections of the Illinois

Parentage Act finds nothing to prohibit common law actions to establish parental

responsibility, and the state’s public policy considerations support a finding in favor of

allowing common law actions.” Id. at 540, 787 N.E.2d at 151. The court emphasized its duty

to ensure that the rights of children are adequately protected and believed that “if the

legislature had intended to bar common law actions for child support, it would have clearly

1

Because the respondent did not sign a written consent, the M.J. court did not need to

address, and did not address, the issue of whether the Illinois Parentage Act would apply to

nonmarried couples. Id. at 537, 787 N.E.2d at 150.

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stated its intent.” Id., 787 N.E.2d at 152. “[T]he best interests of children and society are

served by recognizing that parental responsibility may be imposed based on conduct evincing

actual consent to the artificial insemination procedure.” Id.

¶ 31 As further justification for its holding, the supreme court also noted that the respondent

engaged in a “course of conduct with the precise goal of causing the birth of these children.”

Id. at 541, 787 N.E.2d at 152. The court reasoned that if an unmarried person “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

in the eyes of the law.” Id. The court, therefore, concluded that the Illinois Parentage Act

does not preclude the mother’s claims for parental responsibility based on common law

theories of oral contract or promissory estoppel. Id.

¶ 32 The present case is similar to M.J. in that our task is to determine whether the legislature

intended to bar a type of common law claim that is brought for the best interests of children

born by assisted reproduction, but whose parentage falls outside the Illinois Parentage Act.

We must determine whether the legislature intended that children conceived by artificial

insemination, who fall outside the purview of the Illinois Parentage Act, are to be denied the

physical, mental, and emotional support of the nonbiological parent who actively assisted in

the decision and process of bringing them into this world. Under the analysis set forth in

M.J., we do not believe that the legislature intended this result. The legislature has not

expressly stated that this is its intent in passing the Illinois Parentage Act, and we will not

infer that this was the intent of the legislature on an issue that concerns the best interests of

minor children.

¶ 33 Our analysis of this issue closely follows the analysis the Illinois Supreme Court set out

in M.J. because the supreme court directed us to decide cases involving “assisted

reproduction” based on the particular circumstances presented. Accordingly, we will first

consider the state’s public policy with respect to minor children, and we will next examine

the three sections of the Illinois Parentage Act to determine whether the legislature intended

to bar common law actions for custody and visitation with respect to children born of

artificial insemination. Id. at 540, 787 N.E.2d at 151-52.

¶ 34 First, with respect to Illinois public policy, we note that the present case does not involve

a dispute between two biological parents. However, M.J. concerned the respondent’s parental

responsibility when the respondent was not a biological parent. Nonetheless, the M.J. court

directed us, in cases involving assisted reproduction, to be cognizant of Illinois’s public

policy recognizing “the right of every child to the physical, mental, emotional, and monetary

support of his or her parents.” (Emphasis added.) Id. at 539, 787 N.E.2d at 151. In addition,

in assessing Illinois public policy with respect to children born from assisted reproduction,

the M.J. court reminded us of our “duty, in an action where the interests of a minor are at

stake, to ensure that the rights of the child are adequately protected” and that Illinois has a

“strong interest in protecting and promoting the welfare of its children.” Id.

¶ 35 Accordingly, by emphasizing the right of every child in Illinois to be supported by his or

her “parents,” the M.J. court indicated that this public policy applies to children born to a

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couple by assisted reproduction even when only one of the couple is biologically related to

the children. The court noted a child’s right to be monetarily supported by his or her

“parents” as part of its basis for allowing a common law cause of action for parental

responsibility against the nonbiological partner of a couple having children by assisted

reproduction technology.

¶ 36 Likewise, in the present case, this same public policy applies to T.P.S. and K.M.S.

Similar to the twins in M.J., T.P.S. and K.M.S. are also entitled to the physical, mental,

emotional, and monetary support of both of their “parents,” and this right to support is not

limited to just monetary support, but also includes physical, mental, and emotional support.

Id. Because Cathy participated in the decision and process of bringing T.P.S. and K.M.S. into

this world through artificial insemination, M.J. establishes Cathy’s common law obligation

to financially support the children. Under the strong public policy language set forth in M.J.,

we believe that Illinois’s public policy recognizes the children’s right not only to Cathy’s

monetary support but also to her physical, mental, and emotional support. Any other result

would be a failure in our “duty” to ensure that T.P.S.’s and K.M.S.’s rights to “the physical,

mental, emotional, and monetary support of [their] parents” are adequately protected. Id.

¶ 37 Second, as the supreme court did in M.J., we next turn to the three sections of the Illinois

Parentage Act to determine whether the Illinois Parentage Act precludes Cathy’s common

law claims. Id. at 537, 787 N.E.2d at 150. In this prong of the analysis, the M.J. court focused

on the legislature’s intent in passing the Illinois Parentage Act with respect to the financial

support of children born by artificial insemination. We will also turn to the language of the

Illinois Parentage Act to determine the legislature’s intent with respect to the right of children

conceived by artificial insemination to the physical, mental, and emotional support from the

nonbiological person who participated in the decision and process of bringing them into this

world.

¶ 38 The Illinois Parentage Act became effective on January 5, 1984, and as the supreme court

noted in M.J., it has only three sections. By its express terms, it applies to children born to

a husband and wife by artificial insemination from donated semen when the husband signs

a written consent to the artificial insemination. 750 ILCS 40/1 to 3 (West 2010). Under such

circumstances, “the husband shall be treated in law as if he were the natural father of a child

thereby conceived.” 750 ILCS 40/3(a) (West 2010). After considering the three sections of

the statute, the M.J. court found that it contained “nothing to prohibit common law actions

to establish parental responsibility, and the state’s public policy considerations support a

finding in favor of allowing common law actions.” M.J., 203 Ill. 2d at 540, 787 N.E.2d at

151. The court stated, “We believe that if the legislature had intended to bar common law

actions for child support, it would have clearly stated its intent, and we will not imply a

legislative intent where none is expressed.” Id. at 540, 787 N.E.2d at 152. “We therefore

determine that the best interests of children and society are served by recognizing that

parental responsibility may be imposed based on conduct evincing actual consent to the

artificial insemination procedure.” Id.

¶ 39 Likewise, in the present case, our review of the Illinois Parentage Act finds nothing in

it that expressly prohibits common law actions, not only to establish the nonbiological

parent’s parental responsibility but also to establish the nonbiological parent’s parental rights

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with respect to children born by artificial insemination. Like the supreme court concluded

in M.J., we believe that had the legislature intended for children such as T.P.S. and K.M.S.

to be denied their nonbiological parent’s physical, mental, and emotional support, it would

have done so expressly. Like the supreme court in M.J., we are not going to infer such a

legislative intent where none is expressed. Without an express legislative intent, we will not

assume that the legislature intended for the children born to unmarried couples through the

use of reproductive technology to have less security and protection than that given to children

born to married couples whose parentage falls within the purview of the Illinois Parentage

Act. While the current statutory framework does not expressly accommodate T.P.S.’s and

K.M.S.’s parentage, we cannot believe that the legislature intended for these children to be

denied the protections afforded by common law claims that are founded on their best

interests.

¶ 40 Furthermore, in analyzing the legislature’s intent with respect to barring common law

claims, the supreme court has recently emphasized that common law “rights and remedies

remain in full force in this state unless expressly repealed by the legislature or modified by

court decision.” (Emphasis added.) Rush University Medical Center v. Sessions, 2012 IL

112906, ¶ 16, ___ N.E.2d ___. “The implied repeal of the common law is not and has never

been favored.” Id. ¶ 17, ___ N.E.2d ___. “Thus, a statute that does not expressly abrogate the

common law will be deemed to have done so only if that is what is ‘necessarily implied from

what is expressed.’ ” Id., ___ N.E.2d ___ (quoting Acme Fireworks Corp. v. Bibb, 6 Ill. 2d

112, 119, 126 N.E.2d 688, 691 (1955)).

¶ 41 We therefore conclude, as the supreme court did in M.J., that the best interests of children

and society are served by recognizing that not only may parental responsibility be imposed

but also parental rights may be asserted based on conduct evincing actual consent to the

artificial insemination procedure by an unmarried couple along with active participation by

the nonbiological partner as a coparent. To hold otherwise and to deny common law claims

under such circumstances is to 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. Because such a result is diametrically opposed to Illinois’s

public policy with respect to minor children, we will not assume that this was the

legislature’s intent in passing the Illinois Parentage Act.

¶ 42 Dee cites a number of cases from other appellate districts in Illinois that have held that

the legislature has, by implication, preempted common law standing to seek parental rights,

including In re Visitation With C.B.L., 309 Ill. App. 3d 888, 723 N.E.2d 316 (1999), and In

re Marriage of Simmons, 355 Ill. App. 3d 942, 825 N.E.2d 303 (2005). We do not believe

that C.B.L. or Simmons reflects the proper analysis that is set forth by the supreme court in

M.J.

¶ 43 In C.B.L., the petitioner and the respondent lived together in a long-term relationship.

During the relationship, the respondent was artificially inseminated and gave birth to a child.

The petitioner was involved in all of the preparations prior to the birth and was equally

involved in the child’s care. When the parties ended their relationship, the biological mother

refused the petitioner all contact with the child. The petitioner claimed standing to request

visitation as a common law de facto parent or as an individual in loco parentis. The circuit

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court, however, dismissed the petitioner’s claims. C.B.L., 309 Ill. App. 3d at 890, 723 N.E.2d

at 318.

¶ 44 On appeal, the C.B.L. court held that the legislature intended to bar all common law

actions for visitation when it enacted the visitation provisions contained in section 607 of the

Dissolution Act (750 ILCS 5/607 (West 1998)).2 The court stated, “Not only does it

categorize those persons who may petition for visitation, but section 607 also qualifies each

with numerous requirements and circumstances which must be met before such a petition

will even merit consideration.” C.B.L., 309 Ill. App. 3d at 893-94, 723 N.E.2d at 320. The

court concluded, therefore, that the visitation provision in the Dissolution Act “must now be

understood and construed as a statutory provision intended by our General Assembly to

supersede and supplant the common law of visitation in Illinois.” Id. at 894, 723 N.E.2d at

320. The court affirmed the circuit court’s dismissal of the petitioner’s common law claims

because she did not fit within the standing requirements of the Dissolution Act. Id. at 894-95,

723 N.E.2d at 320-21.

¶ 45 C.B.L. was decided prior to the Illinois Supreme Court’s decision in M.J., and we do not

believe it reflects the proper analysis for cases involving “assisted reproduction,” which must

be decided based on the particular circumstances presented. M.J., 203 Ill. 2d at 539, 787

N.E.2d at 151. In fact, the appellate court in M.J. cited C.B.L. for the proposition that “[t]he

Illinois legislature, in establishing policy through statutory enactments, including the [Illinois

Parentage] Act, has limited the circumstances under which a person can be determined to

have parental rights and responsibilities.” (Emphasis added.) In re Parentage of M.J., 325

Ill. App. 3d 826, 834, 759 N.E.2d 121, 128 (2001). The supreme court in M.J., however,

disagreed with the appellate court’s holding with respect to parental responsibilities and held

that the legislature has not limited the circumstances under which a person can be determined

to have parental responsibilities in cases involving artificial insemination. As noted above,

we believe the M.J. court’s analysis applies equally with respect to parental rights in cases

involving artificial insemination, not just parental responsibility. Therefore, we do not find

C.B.L. to be persuasive.

¶ 46 In Simmons, the petitioner and the respondent agreed to have a child by artificial

insemination, and the respondent then gave birth to a child. At some point, the parties’

relationship began to deteriorate, and the petitioner filed for divorce. At this point, the child

was six years old. The circuit court denied the petitioner’s request to dissolve their marriage

but instead declared that the parties’ marriage was void ab initio3 and ruled that, because the

petitioner was not a biological or adoptive parent, he did not have standing to seek custody

2

Section 607 of the Dissolution Act provides for visitation for parents not granted custody

as well as for grandparents, great-grandparents, and siblings. 750 ILCS 5/607 (West 2010).

Subsection (a-5) of section 607 sets forth the conditions that must exist before a grandparent, great-

grandparent, or sibling may file a petition for visitation. 750 ILCS 5/607(a-5) (West 2010).

3

Because more surgeries were necessary to complete the petitioner’s gender reassignment,

the court held that the parties’ marriage was a void same-sex marriage. Simmons, 355 Ill. App. 3d

at 948, 825 N.E.2d at 308-09.

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of the child. Simmons, 355 Ill. App. 3d at 946, 825 N.E.2d at 307.

¶ 47 On appeal, the court affirmed the circuit court’s ruling that the parties’ marriage was void

ab initio. Nonetheless, the petitioner argued that, even if the marriage is invalid, he has

standing to seek custody because he can still be considered a legal parent under the common

law. Id. at 952, 825 N.E.2d at 312. The petitioner cited M.J. in support of his argument. The

court, however, held that “[w]hile M.J. does stand for the proposition that an action can be

brought under common law theories for financial support, it does not stand for the

proposition that questions of paternity or custody may be brought under common law

theories of breach of contract and promissory estoppel.” Id. at 952-53, 825 N.E.2d at 312.

The court cited C.B.L. in support of its conclusion that the petitioner’s standing to seek

custody “must be found solely within the Marriage Act, the Parentage Act, or the Parentage

Act of 1984.” Id. at 954, 825 N.E.2d at 313; see also In re Adoption of A.W., 343 Ill. App.

3d 396, 404, 796 N.E.2d 729, 736 (2003) (“We agree with the holding in C.B.L. that, if

standing for visitation is to be found, it is within the provisions of section 607 of the

[Dissolution] Act.”).

¶ 48 Simmons and A.W. are not persuasive. The courts in those cases improperly looked to the

custody or visitation provisions of the Dissolution Act as a basis for declaring that the

legislature has, by implication, barred common law actions for custody and visitation. In

cases involving artificial insemination, M.J. establishes that such an analysis is improper.

¶ 49 For example, the M.J. court addressed the legislature’s intent with respect to common

law claims for support. We note that the legislature has passed extensive statutory provisions

concerning the requirements that must be met before a person can be held responsible for

monetary support of minor children. The legislature’s enactments include detailed provisions

in the Dissolution Act (750 ILCS 5/505 to 505.2 (West 2010)), in the Illinois Parentage Act

of 19844 (750 ILCS 45/13.1, 14 (West 2010)), in the Non-Support Punishment Act (750

ILCS 16/20 (West 2010)), in the Uniform Interstate Family Support Act (750 ILCS 22/401

(West 2010)), and in the Illinois Public Aid Code (305 ILCS 5/10-1 to 10-28 (West 2010)).

However, in analyzing whether the legislature has barred a common law cause of action for

child support in cases involving artificial insemination, the M.J. court did not look at any of

these provisions that specifically concern child support to determine the legislature’s intent.

Instead, the supreme court looked only at the provisions of the Illinois Parentage Act to

determine the legislature’s intent with respect to a very limited and specific category of

children, i.e., children conceived by artificial insemination.

¶ 50 Likewise, in the present case, we are concerned with whether the legislature has barred

a common law cause of action relevant to parental rights with respect to this same category

of children. Therefore, in determining whether the legislature intended to bar a common law

cause of action, as the court did in M.J., we will not turn to the language of the Dissolution

4

The Illinois Parentage Act of 1984 (750 ILCS 45/1 to 28 (West 2010)) is not to be confused

with the Illinois Parentage Act (750 ILCS 40/1 to 3 (West 2010)). The latter statute, three sections

in length, is the only statutory provision that addresses the parentage of children born from artificial

insemination.

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Act, the Adoption Act, or the Juvenile Court Act of 1987. Instead, we turn only to the

language of the Illinois Parentage Act because this is the only Illinois statute that concerns

the parentage of children conceived by artificial insemination.

¶ 51 We believe that the Simmons, A.W., and C.B.L. courts’ focus on the provisions of the

Dissolution Act and other statutory provisions other than the Illinois Parentage Act is

misdirected and is directly contrary to the analysis set out by the supreme court in M.J. for

cases dealing with assisted reproduction. M.J., 203 Ill. 2d at 537, 787 N.E.2d at 150 (“We

must now determine whether the Illinois Parentage Act precludes common law claims for

child support.”). In its analysis, the M.J. court looked only to the Illinois Parentage Act to

determine whether the legislature had expressly barred common law actions for support in

cases involving children born of artificial insemination.

¶ 52 Other cases cited by Dee in her attempt to distinguish the M.J. court’s analysis are not

cases concerning children born from assisted reproduction technology. Accordingly, they

have little relevance to our analysis in the present case. For example, in In re Marriage of

Mancine, 2012 IL App (1st) 111138, 965 N.E.2d 592, a husband sought custody of a minor

child who had been adopted by the wife prior to the marriage. The court addressed the issue

of “whether a nonbiological father has standing to seek custody of a child he intended to

adopt but never formally adopted.” Id. ¶ 11. The nonbiological father raised several theories

to support his standing, including an equitable parent theory, equitable estoppel, equitable

adoption, and the court’s parens patriae power. However, unlike the present case, the

Mancine court did not address the “particular circumstances” that cases involving “assisted

reproduction” present. M.J., 203 Ill. 2d at 539, 787 N.E.2d at 151. In fact, the Mancine court

does not even cite M.J. in its analysis and does not attempt to distinguish it from cases

involving adopted children, as opposed to children conceived through artificial insemination.

¶ 53 Likewise, In re Parentage of Scarlett Z.-D., 2012 IL App (2d) 120266, is also

distinguishable. Like Mancine, the petitioner in that case was the former boyfriend of the

child’s mother, and he sought to establish his parentage of the child who was adopted by his

girlfriend during their relationship. The petitioner cited M.J. and argued that his common law

standing to seek parental rights has not been supplanted by the standing requirements in the

Dissolution Act. Id. ¶ 27. The Scarlett Z.-D. court distinguished M.J. by noting that the M.J.

court limited its holding to only the “ ‘unique circumstances’ presented there, including the

purported father’s financial support of twins born to his paramour as a result of artificial

insemination to which he allegedly consented.” Id. ¶ 30 (citing M.J., 203 Ill. 2d at 530-31,

787 N.E.2d at 146). The Scarlett Z.-D. court further stated that M.J. addressed common law

claims only for child support, not a common law claim for custody. Id. ¶ 30. The court

believed that there was a vast difference between the Illinois Parentage Act, pertaining only

to children born as a result of artificial insemination, and the wide scope of the Dissolution

Act, addressing custody and visitation of both parents and nonparents. Id.

¶ 54 We offer no opinion on whether Scarlett Z.-D. was correctly decided with respect to a

common law action for custody or visitation of adopted children. The facts of the present

case do not involve adopted children similar to Scarlett Z.-D. Accordingly, with respect to

standing to bring a common law action concerning children conceived by artificial

insemination, we believe our analysis should follow the framework established by the

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supreme court in M.J., not by the appellate court in Scarlett Z.-D.

¶ 55 The Scarlett Z.-D. court further held that, even if the legislature did not intend to supplant

the common law, there are no Illinois cases that would give the former boyfriend common

law standing to pursue his claim for custody of the adopted child. In the present case, we

believe that Cathy has alleged sufficient facts to seek custody and visitation under common

law contract and promissory estoppel theories.

¶ 56 For example, in In re M.M.D., 213 Ill. 2d 105, 820 N.E.2d 392 (2004), the maternal

grandparents of a child and the child’s father entered into a consent decree that granted the

grandparents visitation with the child. The court stated that the consent decree was in the

nature of a contract that was binding unless it was contrary to public policy. Id. at 114, 820

N.E.2d at 399. In evaluating whether the parties’ agreement should be held void as being

contrary to public policy, the M.M.D. court emphasized that Illinois courts “are reluctant to

restrict the freedom of citizens to make their own agreements.” Id. Therefore, Illinois courts

sparingly use the power to declare agreements void as being contrary to public policy; the

power is used only when an agreement is clearly against public policy (as established by the

constitution, statutes, or decisions of the court) or manifestly injurious to the public welfare.

Id.

¶ 57 In M.M.D., the court held that the agreement to allow the grandparents visitation was not

“injurious to the public welfare” because there was nothing in the record to suggest that the

agreement “was anything but beneficial for everyone concerned at the time it was adopted.”

Id. at 115, 820 N.E.2d at 399. The grandparents “had cared for and nurtured the child for

many years and had an obvious desire to maintain their relationship with her.” Id. In addition,

the court held that the agreement was not contrary to Illinois public policy as provided in the

constitution, statutes, or decisions of Illinois courts. Id. Although the constitution prohibits

the state from forcing fit parents to yield visitation rights to a child’s grandparents when the

parents do not wish to do so, “[t]here is no corresponding constitutional prohibition against

a fit parent’s decision to voluntarily bestow visitation privileges on his child’s grandparents.”

(Emphasis in original.) Id.

¶ 58 Likewise, in In re Marriage of Purcell, 355 Ill. App. 3d 851, 825 N.E.2d 724 (2005), the

husband was granted visitation privileges in a joint-parenting agreement incorporated into

the terms of a consent decree. The husband was later determined not to be the father of one

of the children. The court, nonetheless, held that the visitation agreement provided in the

consent decree “should be enforced as a contract unless [the mother] can show a contractual

reason for voiding or rescinding it.” (Emphasis in original.) Id. at 856, 825 N.E.2d at 728.

The court noted that a consent decree is based on an agreement between the parties, is

contractual in nature, and records the parties’ private agreement, but is not an adjudication

of their rights. Id. at 855, 825 N.E.2d at 728.

¶ 59 In the present case, Cathy has pleaded facts sufficient to allege an agreement between her

and Dee to conceive two children by artificial insemination and to raise the children with

Cathy and Dee having coequal rights as parents. The lives of these children are derived

directly from the express agreement between Cathy and Dee, as a couple, to expand their

family by having children together through artificial insemination. Cathy alleged that Dee

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was selected to give birth to the children only because she was the younger of the two and

had health insurance through her employer. Cathy was engaged in the deliberate process of

bringing two children into the world pursuant to an express agreement with Dee that each

would have equal parental rights to the children.

¶ 60 Cathy agreed to serve as the children’s primary caregiver, and at all times, Dee agreed

that Cathy was to have legal parental rights that were equal to hers. Pursuant to this

agreement, the children know both Cathy and Dee as their parents. Cathy assisted in

arranging for and financially contributed to the artificial insemination and participated in the

entire process, by agreement, as a coequal parent of the children. In M.J., the court stated that

if an unmarried person “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 in the eyes of the law.” M.J., 203 Ill. 2d at 541, 787 N.E.2d at

152. The same is true with respect to parental rights. If an unmarried person causes the birth

of a child by the deliberate, premeditated conduct of artificial insemination under the express

agreement with the mother to serve as a coequal parent, that person should receive the same

treatment in the eyes of the law as a person who biologically causes conception.

¶ 61 Enforcing this agreement between the parties under common law contract or promissory

estoppel theories does not offend Illinois’s public policy. There is nothing in the record to

suggest that Cathy’s physical, mental, and emotional support for the children would be

anything but beneficial for the children. In addition, we do not believe that Cathy and Dee’s

agreement with respect to the birth, care, and parental rights of these children is contrary to

any Illinois public policy as provided in the constitution, statutes, or decisions of Illinois

courts. Although Dee is the only biological parent, there is no constitutional provision that

prohibited Dee from voluntarily entering into a coparenting agreement with her partner for

the specific purpose of creating a family through assisted reproduction technology and

agreeing to coparent any children produced as a result of the agreement. Dee’s voluntary

agreement with Cathy concerning Cathy’s rights as a coparent does not offend any

constitutional provision. In re M.M.D., 213 Ill. 2d at 114, 820 N.E.2d at 399.

¶ 62 As noted above, the supreme court has directed us, in assisted reproduction cases, to

consider the particular circumstance each case presents. The particular circumstances that

this case presents include allegations that the nonbiological parent (Cathy) actively planned

for and participated in the very creation of the children at issue and cared for them as their

parent for years after their birth. Under such circumstances, factors other than each party’s

DNA contribution to each child’s creation have a greater significance. The intent and

agreement of the parties in arranging and planning for the birth of the children, as well as

Cathy’s role, pursuant to the agreement, as the children’s coparent and primary caretaker,

have greater importance. In M.J., the basis of the respondent’s parental responsibility was not

biology or genetics and was not based on any specific statutory provision. Instead, the

respondent’s parental responsibility was based on the respondent’s role in the planning and

arrangement of conceiving children through assisted reproduction. Likewise, in the present

case, although Cathy is not biologically related to the children, she nonetheless was

intimately involved in the planning and arrangement for the procreation of these children and

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cared for them as a parent pursuant to an express agreement with the biological mother.

Therefore, enforcing the parties’ agreement under common law theories is not contrary to

public policy.

¶ 63 Cathy has alleged sufficient common law contract and promissory estoppel claims to

assert a right to custody and visitation with the children. The circuit court’s order dismissing

counts II, III, and IV of Cathy’s claim is reversed. We remand for an evidentiary hearing on

Cathy’s common law contract and promissory estoppel claims and to determine the best

interests of the minor children with respect to Cathy’s custody and visitation.

¶ 64 In counts V and VI, Cathy alleged a due process right of a parent under the United States

Constitution and a due process right of a parent under the Illinois Constitution. Cathy cites

a number of cases involving the due process rights of parents and constitutional protection

of the parent-child relationship. The foundation of Cathy’s constitutional arguments is that

her relationship with the children should be constitutionally protected under an equitable

parent theory. Although we hold that Cathy has standing to bring common law contract and

promissory estoppel claims under the analysis set forth in M.J., we do not believe that Cathy

has due process claims as an “equitable parent.” There are no Illinois cases or statutes that

adopt the equitable parent doctrine. Mancine, 2012 IL App (1st) 111138, ¶ 15. Accordingly,

we must affirm the circuit court’s dismissal of counts V and VI of her petition because her

constitutional claims are couched in terms of equitable parentage.

¶ 65 Under this same reasoning, we affirm the circuit court’s dismissal of count I of Cathy’s

petition alleging standing as a de facto parent and under a theory of in loco parentis to the

children. Like the equitable parentage doctrine, we do not believe that Illinois common law

recognizes these theories as a basis for custody or visitation. Cathy has not cited any Illinois

cases that have granted custody or visitation based on any of these theories. Cathy cited In

re Ashley K., 212 Ill. App. 3d 849, 571 N.E.2d 905 (1991), in support of her de facto parent

theory. In that case, however, the court was not called upon to address the issue of a

nonparent’s standing. Scarlett Z.-D., 2012 IL App (2d) 120266, ¶ 36 (distinguishing Ashley

K.).

¶ 66 CONCLUSION

¶ 67 For the foregoing reasons, we affirm the portion of the circuit court’s judgment that

dismisses counts I, V, and VI of Cathy’s petition. We reverse the portion of the circuit

court’s judgment that dismisses counts II, III, and IV of Cathy’s petition, and we remand this

cause for further proceedings on those counts.

¶ 68 Affirmed in part and reversed in part; cause remanded.

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