concurring in part and dissenting in part:
In the face of increasing use of the AID procedure, the Illinois legislature enacted the Illinois Parentage Act (the Act) (Ill. Rev. Stat. 1985, ch. 40, par. 1451 et seq.), with the admirable intention of clarifying the legal relationships of the parties involved in the procedure. However, as noted by Representative Brummer during legislative debates on the Act, “it leaves totally ambiguous a situation of what happens when a married woman is artificially inseminated without the consent of [her] husband.” (83d Ill. Gen. Assem., House Proceedings, November 2, 1983, at 82.) For that reason, Representative Brummer recommended that passage of the Act be put off until a more comprehensive statute could be formulated. Nevertheless, the legislature passed the Act in its present form, leaving to the courts the difficult task of defining the legal status of the parties where a child is born of the AID procedure without the written consent of the mother’s husband.
Although the Act currently provides that the consent of the husband of a woman who is to be impregnated by the AID procedure must be in writing (Ill. Rev. Stat. 1985, ch. 40, par. 1453), I agree that the lack of written consent should not conclusively bar the imposition of a support obligation on that husband. If a husband expressly consents to the performance of the AID procedure on his wife, but for some reason his written consent is not obtained, that husband should not be allowed to later disclaim his parental responsibilities for the child or children born as a result of the procedure. Likewise, I believe that if a wife undergoes AID because of her reasonable reliance on unequivocal conduct by her husband indicating his consent to the procedure, the husband may be estopped from denying legal responsibility. To hold otherwise might lead to unconscionable results never intended by the legislature.
Although I concur that the Act does not bar the imposition of a support obligation on an estoppel or waiver theory, I believe the trial court employed an improper standard of proof here in determining that John is J.D.’s legal father. While the trial court determined that the facts established circumstances of actual consent such that John should be estopped from denying the legal paternity of J.D., in so finding it employed a rebuttable presumption that John had consented to RitaraV’s insemination. Moreover, the trial court indicated that, because John was denying consent, his testimony would be subject to careful scrutiny. In effect, the trial court required John to prove by clear and convincing evidence that he had not consented to the procedure. This standard of proof was not appropriate.
Had the legislature intended that the burden of proving nonconsent would be on the husband, the requirement of written consent would not have been necessary. If such a result were intended, the legislature could have dispensed with the written consent requirement and replaced it with a presumption of consent as is provided in other States. (See K.S. v. G.S. (1981), 182 N.J. Super. 102, 109 n.2, 440 A.2d 64, 68 n.2.) Instead, however, the Illinois legislature provided for written consent, in apparent recognition of the possible problems of proof where only oral consent is alleged. Since Ritaray was seeking the benefits of the Act even though she had not complied with the specific requirement that John’s written consent be obtained, she should bear the burden of showing that the estoppel or waiver exception is applicable.
As noted by the majority, estoppel must be proved by clear, unequivocal evidence (Gary-Wheaton Bank v. Meyer (1984), 130 Ill. App. 3d 87, 96), yet the trial court found estoppel by improperly shifting the burden of proof to John rather than requiring Ritaray to produce clear, unequivocal evidence of estoppel. To compound this error, the trial court also subjected John’s testimony to careful scrutiny. While careful scrutiny may be appropriate in the case of a natural birth where the husband denies paternity (see In re Ozment (1978), 61 Ill. App. 3d 1044), such scrutiny is not warranted where the Act’s requirement of written consent has not been fulfilled. As Representative Brummer stated during legislative debate on the Act, the Act anticipates in its requirement of written consent that the normal presumption of legal paternity does not apply in the case of artificial insemination. (83d Ill. Gen. Assem., House Proceedings, November 2, 1983, at 82.) Contrary to the procedure employed here, it is the party claiming estoppel whose conduct may be scrutinized. (Gary-Wheaton Bank, 130 Ill. App. 3d at 96.) Scrutiny of Ritaray’s testimony and conduct would appear especially appropriate considering her determination to start a family despite her husband’s reluctance and the family’s impending bankruptcy.
Because the trial court applied an improper standard of proof in this matter, I would reverse and remand this case for further consideration. Therefore, I express no opinion as to whether, applying the proper standard of proof, John should be estopped by either oral consent or actions to deny legal paternity of J.D. I think it necessary, however, to comment briefly on certain factors deemed significant by the majority. I find little significance in the fact that John paid for Ritaray’s medical bills considering that those payments were actually part of John’s Navy benefits. Of greater significance may be that John did not pay for the donor semen. I also find many of the actions John took after Ritaray became pregnant, such as discussion of child care, breast feeding, and other health matters, to be ambiguous at best. John had medical training, and it seems only reasonable that he would give advice to his pregnant wife even if he had not consented to her insemination. Even if John did accompany Ritaray to Lamaze classes without Ritaray having to first ask John’s Navy superiors to do so, John may simply have been trying to make the best of a sitúation which he had not caused to happen.
I also find insignificant John’s failure to voice his lack of consent to third parties. Reliance on that factor turns on its head the Act’s requirement that consent, not lack thereof, be memorialized. Finally, I place the least weight on the fact that J.D. was listed as a dependent on John and Ritaray’s joint income tax return. A taxpayer need not be the legal parent of a child to claim that child as a dependent. Moreover, since the return was joint, thereby combining the couple’s incomes, they were entitled to list J.D. as a dependent, just as they listed John’s other three children by his former wife as dependents. I would hesitate to force legal paternity on John simply because both he and Ritaray took advantage of Federal income tax laws.
In summary, although I agree with that part of the majority opinion which decides that a husband’s written consent to the AID procedure is not absolutely necessary for imposition of a support obligation, I cannot join in that part of the opinion upholding the trial court’s finding of actual consent because I believe the trial court utilized an improper standard to so find. I respectfully dissent.