{ "id": 570428, "name": "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., Plaintiff-Appellant, v. Raymond Banary, Defendant-Appellee)", "name_abbreviation": "Mitchell v. Banary", "decision_date": "2001-10-29", "docket_number": "No. 1\u201400\u20140590", "first_page": "826", "last_page": "835", "citations": [ { "type": "official", "cite": "325 Ill. App. 3d 826" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "297 Ill. App. 3d 156", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 910250 ], "year": 1998, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/297/0156-01" ] }, { "cite": "481 N.E.2d 939", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "a trial judge in the domestic relations division of the circuit court constitutionally has jurisdiction to hear all justiciable matters" } ], "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 248", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599570 ], "year": 1985, "pin_cites": [ { "page": "251", "parenthetical": "a trial judge in the domestic relations division of the circuit court constitutionally has jurisdiction to hear all justiciable matters" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0248-01" ] }, { "cite": "37 Brandeis L.J. 809", "category": "journals:journal", "reporter": "Brandeis L.J.", "year": 1999, "pin_cites": [ { "page": "823-24" } ], "opinion_index": 0 }, { "cite": "461 N.E.2d 1365", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "when the legislature has declared the public policy of the state by enacting a statute, the judicial branch must defer to that pronouncement, and a modification of such policy must be made by the legislature, and not the judiciary" } ], "opinion_index": 0 }, { "cite": "101 Ill. 2d 315", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160744 ], "year": 1984, "pin_cites": [ { "page": "327", "parenthetical": "when the legislature has declared the public policy of the state by enacting a statute, the judicial branch must defer to that pronouncement, and a modification of such policy must be made by the legislature, and not the judiciary" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0315-01" ] }, { "cite": "667 N.E.2d 122", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "281 Ill. App. 3d 502", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150236 ], "weight": 6, "year": 1996, "pin_cites": [ { "page": "503" }, { "page": "503" }, { "page": "504" }, { "page": "506" }, { "page": "506-07" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0502-01" ] }, { "cite": "551 N.E.2d 635", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "133 Ill. 2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260389 ], "weight": 5, "year": 1990, "pin_cites": [ { "page": "444" }, { "page": "445" }, { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0437-01" ] }, { "cite": "528 N.E.2d 1075", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "174 Ill. App. 3d 595", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3515196 ], "weight": 7, "year": 1988, "pin_cites": [ { "page": "599" }, { "page": "601-03" }, { "page": "603-04" }, { "page": "604-05" }, { "page": "610-11" }, { "page": "614" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0595-01" ] }, { "cite": "371 N.E.2d 634", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "69 Ill. 2d 320", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5455758 ], "year": 1977, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/69/0320-01" ] }, { "cite": "639 N.E.2d 1282", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "159 Ill. 2d 469", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781334 ], "year": 1994, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0469-01" ] }, { "cite": "565 N.E.2d 654", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "139 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573900 ], "year": 1990, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0501-01" ] }, { "cite": "700 N.E.2d 202", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "298 Ill. App. 3d 1040", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073634 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "1047" }, { "page": "1046" }, { "page": "1047" }, { "page": "1047" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/1040-01" ] }, { "cite": "28 N.E.2d 308", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "306 Ill. App. 145", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5570298 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/ill-app/306/0145-01" ] }, { "cite": "723 N.E.2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "former same-sex partner of woman who gave birth to child by artificial insemination lacked standing to petition for visitation under Illinois statute" } ], "opinion_index": 0 }, { "cite": "309 Ill. App. 3d 888", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349566 ], "year": 1999, "pin_cites": [ { "page": "894-95", "parenthetical": "former same-sex partner of woman who gave birth to child by artificial insemination lacked standing to petition for visitation under Illinois statute" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0888-01" ] }, { "cite": "701 N.E.2d 1131", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 } ], "analysis": { "cardinality": 869, "char_count": 21764, "ocr_confidence": 0.792, "pagerank": { "raw": 1.1178804098690061e-07, "percentile": 0.5726928481158554 }, "sha256": "cd9fe95e0e043a0298fb9a2c20f488be05e9dd0e6e421b96f945e1c2e9be5bf0", "simhash": "1:ab2e5c2e1e574de1", "word_count": 3487 }, "last_updated": "2023-07-14T19:13:10.268443+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "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., Plaintiff-Appellant, v. Raymond Banary, Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE COUSINS\ndelivered the opinion of the court:\nPlaintiff, Alexis Mitchell, individually and on behalf of her minor children, M.J. and N.J., filed a complaint against defendant, Raymond Banary. In her complaint, plaintiff sought to establish paternity and to impose support obligations for the benefit of twin boys that she conceived through artificial insemination. Defendant was not the semen donor. The complaint sought recovery on the basis of breach of an oral contract and promissory estoppel. The complaint further alleged that defendant had support obligations pursuant to the Illinois Parentage Act (Act) (750 ILCS 40/1 et seq. (West 1998)).\nDefendant filed a motion to dismiss, alleging that plaintiff failed to set forth a legally recognized basis for relief under the Act. The motion to dismiss further alleged that the purported oral agreement was unenforceable under the Frauds Act (740 ILCS 80/1 (West 1998)) and contravened Illinois public policy. The trial court granted defendant\u2019s motion and plaintiffs complaint was dismissed in its entirety.\nOn appeal, plaintiff argues that: (1) the trial court erred in finding that plaintiff did not properly plead a cause of action for promissory estoppel or breach of an oral agreement; (2) the trial court erred in finding that it lacked subject matter jurisdiction; and (3) the Act unconstitutionally discriminates between children born through artificial insemination to married persons and children born through artificial insemination to unmarried persons.\nBACKGROUND\nAccording to plaintiffs complaint, plaintiff is a single, 40-year-old African-American woman. Defendant is a Caucasian male who was 57 years old at the time of the filing of the complaint. Plaintiff and defendant first met in 1986 and began an intimate relationship that lasted until 1996. When they met, defendant introduced himself as \u201cJim Richardson\u201d and indicated that he was divorced. However, in 1996 plaintiff discovered that defendant was not named Jim Richardson and that he was married.\nDuring their relationship, the parties discussed marriage. Defendant told plaintiff that he would have to wait until retirement for marriage because the community where he resided would not accept a black woman. Upon retirement, defendant promised plaintiff that they could move to another community and be married.\nThe parties also discussed plaintiffs desire to have children with defendant. Despite sexual relations, plaintiff did not become pregnant and it became apparent that defendant was not capable of fathering children. In 1991, defendant allegedly suggested to plaintiff that she become artificially inseminated. Defendant provided financial assistance for the insemination procedure; accompanied plaintiff to the doctor\u2019s office for examinations; assisted plaintiff by injecting her with medication designed to enhance her fertility; and decided with plaintiff that the sperm be from a Caucasian donor so that the offspring would appear to be a product of their relationship. Plaintiff further alleges that defendant orally promised to support the child when it was born; however, no writing memorializes this representation.\nPlaintiff became pregnant and gave birth to twin boys in 1993. After the birth, defendant allegedly 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, plaintiff further describes vacations with defendant and that defendant also paid for the children\u2019s medical and travel expenses.\nAfter plaintiff discovered defendant\u2019s marital status, she and defendant terminated their relationship. Since 1996, defendant has stopped providing financial support for the children.\nPlaintiff filed her three-count complaint on May 11, 1999. The first two counts sought to establish an obligation of support on the basis of breach of oral contract and promissory estoppel. The third count requested a declaration of paternity and obligation of support pursuant to the Act.\nDefendant filed a motion to dismiss under section 2 \u2014 619.1 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619.1 (West 1998)). Defendant argued that count III should be dismissed pursuant to section 2 \u2014 615 (735 ILCS 5/2 \u2014 615 (West 1998)), where plaintiff failed to set forth a legally recognized basis for the imposition of a father-child relationship or for child support under the Act. Defendant farther argued that counts I and II should be dismissed under section 2 \u2014 619 (735 ILCS 5/2 \u2014 619 (West 1998)) because plaintiffs common law claims were unenforceable under the provisions of the Frauds Act and contravened Illinois public policy.\nOn December 21, 1999, the trial court held a hearing on this matter. On January 14, 2000, the trial court issued a written order granting the defendant\u2019s motion and dismissed the case in its entirety.\nPlaintiff appeals. We affirm.\nANALYSIS\nI. CONTRACT CLAIMS\nAs an initial matter, we note that defendant brought his motion to dismiss under section 2 \u2014 619.1 of the Code of Civil Procedure (the Code) (735 ILCS 5/2 \u2014 619.1 (West 1998)). Section 2 \u2014 619.1 allows a litigant to combine a section 2 \u2014 615 motion to dismiss (735 ILCS 5/2 \u2014 615 (West 1998)) and a section 2 \u2014 619 motion for involuntary dismissal (735 ILCS 5/2 \u2014 619 (West 1998)) into one pleading. Storm & Associates, Ltd. v. Cuculich, 298 Ill. App. 3d 1040, 1047, 700 N.E.2d 202 (1998).\nA section 2 \u2014 615 motion poses the question of whether the complaint states a cause of action upon which relief can be granted. Storm, 298 Ill. App. 3d at 1046, citing Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 505, 565 N.E.2d 654 (1990). A section 2 \u2014 619 motion, on the other hand, raises certain defects or defenses and questions whether defendant is entitled to judgment as a matter of law. Storm, 298 Ill. App. 3d at 1047, citing Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 494, 639 N.E.2d 1282 (1994). Since the resolution of either motion only involves a question of law, the standard of review is de novo. Storm, 298 Ill. App. 3d at 1047. On a motion to dismiss, this court must accept all well-pleaded facts as true. Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 329, 371 N.E.2d 634 (1977).\nIn the instant case, defendant sought dismissal of count III based upon section 2 \u2014 615. In support of his motion to dismiss counts I and II, defendant relied upon section 2 \u2014 619 and also incorporated some of his section 2 \u2014 615 arguments from count III.\nPlaintiff argues that the trial court erred in finding that she did not properly plead a cause of action for breach of an oral agreement or promissory estoppel. In response, defendant contends that plaintiffs common law theories for child support fail in light of the Illinois Parentage Act (750 ILCS 40/1 et seq. (West 1998)).\nThe Act governs the treatment of a child born as a result of heterologous artificial insemination. Specifically, section 3(a) sets forth the conditions under which the husband of a wife artificially inseminated would be treated as the natural father. Section 3 states in pertinent part:\n\u201c\u00a7 3. (a) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband shall be treated in law as if he were the natural father of a child thereby conceived. The husband\u2019s consent must be in writing executed and acknowledged by both the husband and wife. ***\n(b) The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor\u2019s wife shall be treated in law as if he were not the natural father of a child thereby conceived.\u201d (Emphasis added.) 750 ILCS 40/3 (West 1998).\nThe parties dispute whether written consent is mandated by section 3(a) before a person can be deemed a natural father and therefore be obligated to support the child. Only two Illinois cases have interpreted section 3(a) of the Act: In re Marriage of Adams, 174 Ill. App. 3d 595, 528 N.E.2d 1075 (1988), rev\u2019d on other grounds, 133 Ill. 2d 437, 551 N.E.2d 635 (1990), and In re Marriage of Witbeck-Wildhagen, 281 Ill. App. 3d 502, 667 N.E.2d 122 (1996).\nIn Adams, the respondent had a vasectomy before marrying the petitioner. Adams, 174 Ill. App. 3d at 599. The petitioner, however, still wished to have a child and went through heterologous artificial insemination in Florida. Adams, 174 Ill. App. 3d at 601-03. A child was born during the marriage and petitioner moved to Illinois with the baby a few months later. Respondent remained in Florida. Petitioner later filed for a divorce in Illinois and sought support from respondent. Adams, 174 Ill. App. 3d at 603-04. Respondent denied that he consented to the artificial insemination and moved for summary judgment because he did not give written consent, as required by Illinois statute. Adams, 174 Ill. App. 3d at 604-05.\nThe appellate court held that the husband\u2019s failure to execute a written consent did not bar further inquiry into the circumstances surrounding the decision to utilize artificial insemination. Adams, 174 Ill. App. 3d at 610-11. The appellate court affirmed the trial court\u2019s finding that there was \u201cactual consent\u201d by respondent to the insemination procedure for two main reasons: (1) respondent had listed the child as a dependent on his income tax return; and (2) respondent had accepted joint responsibility for the child in the marriage dissolution agreement that he had prepared. Adams, 174 Ill. App. 3d at 614.\nThe Illinois Supreme Court reversed and remanded the case, holding that Florida law governed because the parties had resided there for the procedure. Since Florida law was controlling, the court did not conclusively interpret section 3(a) of the Act. In re Marriage of Adams, 133 Ill. 2d 437, 551 N.E.2d 635 (1990). However, in dicta the court stated the requirement that the \u201chusband\u2019s consent *** \u2018must be in writing\u2019 could be considered a mandatory requirement for establishing a parent-child relationship pursuant to the statute.\u201d Adams, 133 Ill. 2d at 444. The court further commented:\n\u201c[I]t is not clear whether under either statute the failure to provide written consent will preclude both the establishment of a parent-child relationship and the imposition of a support obligation. It may be the case that a support obligation will be found even in the absence of a parent-child relationship.\u201d Adams, 133 Ill. 2d at 445.\nThe comments by the Illinois Supreme Court in Adams and the court\u2019s statement that the requirement that the \u201chusband\u2019s consent *** \u2018must be in writing\u2019 could be considered a mandatory requirement for establishing a parent-child relationship pursuant to the statute\u201d are noteworthy. Adams, 133 Ill. 2d at 444. In our view, the \u201cmust be in writing\u201d is a mandatory requirement for establishing a parent-child relationship pursuant to the statute. Where a husband and wife relationship exists and a child is born as a result of heterologous artificial insemination, it may be that a support obligation can be found even in the absence of a parent-child relationship. However, in our view, it is clear that the legislature intended the Act to only provide for conditions under which the husband of a wife artificially inseminated heterologously would be treated as the natural parent. By requesting that the Act be applied to unmarried persons, plaintiff seeks an extension of the Act. However, if the Act is to be so extended, the legislature and not the courts must do so. See Roanoke Agency, Inc. v. Edgar, 101 Ill. 2d 315, 327, 461 N.E.2d 1365 (1984) (when the legislature has declared the public policy of the state by enacting a statute, the judicial branch must defer to that pronouncement, and a modification of such policy must be made by the legislature, and not the judiciary). Moreover, plaintiff cites no cases involving unmarried persons where a support obligation has been imposed on a person who is not the natural father of a child born as a result of heterologous artificial insemination.\nWitbeck is an instructive case. In Witbeck, the second case decided under section 3(a) of the Act, a husband and wife consulted a nurse clinician regarding the artificial insemination procedure. During the consultation, the husband made it clear that he did not consent to the procedure and his wife\u2019s attempt to become pregnant. Witbeck, 281 Ill. App. 3d at 503. Without her husband\u2019s knowledge, the wife underwent the artificial insemination procedure and became pregnant. Three months later, the wife filed for divorce and further petitioned for child support. Witbeck, 281 Ill. App. 3d at 503. Although the wife acknowledged that the husband did not give written consent to her artificial insemination, she nonetheless petitioned to have the husband declared the legal father of her child. Witbeck, 281 Ill. App. 3d at 504.\nThe trial court found that the husband did not consent to the insemination procedure. The appellate court affirmed and further decided that written consent was mandatory under the Act as follows:\n\u201cWe conclude that the legislature intended a husband\u2019s written consent to be a prerequisite to the establishment of the legal father-child relationship and the imposition of a support obligation. The several provisions of section 3 of the Act which address the consent requirement would be superfluous if the failure to obtain the husband\u2019s written consent would not affect the legal status of the individuals involved.\u201d Witbeck, 281 Ill. App. 3d at 506.\nSince there was no evidence of the husband\u2019s consent, written or otherwise, Witbeck further stated that it was not deciding whether the failure to obtain written consent would be an absolute bar to the establishment of the father-child relationship where the conduct of the father otherwise demonstrated his consent. Witbeck, 281 Ill. App. 3d at 506-07.\nPlaintiff attempts to distinguish Witbeck by arguing that while there was no evidence of consent whatsoever in Witbeck, the complaint in the instant case alleges that defendant fully participated in and supported defendant\u2019s insemination procedure. In our view, however, Illinois courts have decided the issue of consent narrowly. See K. De Haan, Note, Whose Child am I? A Look at How Consent Affects a Husband\u2019s Obligation to Support a Child Conceived Through Heterologous Artificial Insemination, 37 Brand\u00e9is L.J. 809, 823-24 (1999).\nAll of the cases cited by plaintiff have arisen in the marital context whereas the parties here are not married. In the instant case, the trial court\u2019s comments indicated that it considered the Act requirement of the husband\u2019s written consent to be a safeguard. In granting defendant\u2019s motion to dismiss, the trial court stated:\n\u201cThe law of this state would require a husband to consent, to agree in writing to be responsible for the birth to his wife of a child by artificial insemination. The court does not find it to be rational that unmarried couples would have less safeguards in such a matter.\nThis court holds that parentage of a child is far too important to hinge on the credibility of a witness alleging an oral promise to support a child born of artificial insemination, however intense the romance may have been between the parties.\u201d\nIn our view, this reasoning of the trial court is well founded. We hold that, as a minimum, section 3(a) requires written consent before an unmarried man becomes legally obligated to support a child born as a result of heterologous artificial insemination.\nII. SUBJECT MATTER JURISDICTION\nWe agree with plaintiffs assertion that the trial court erred when it stated in its order that it lacked subject matter jurisdiction. After holding that Illinois law requires, as a minimum, the defendant\u2019s written consent to support a child conceived through heterologous artificial insemination, the court concluded:\n\u201cWe have no written contract, no DNA verification of parentage, no wedding and, therefore, no subject matter jurisdiction in this court.\u201d\nCircuits courts are courts of general jurisdiction and the trial court had jurisdiction to hear the case. In re Marriage of Wojcicki, 135 Ill. App. 3d 248, 251, 481 N.E.2d 939 (1985) (a trial judge in the domestic relations division of the circuit court constitutionally has jurisdiction to hear all justiciable matters). Notwithstanding the trial court\u2019s comments, we note that the court dismissed the case on its merits. Accordingly, the court\u2019s misstatement that it lacked jurisdiction did not affect the outcome of the case and was harmless error.\nIII. ILLINOIS PARENTAGE ACT\nNo dispute exists that the Act does not discriminate between married and unmarried women. However, plaintiff argues that section 3 of the Act unconstitutionally discriminates between children born as a result of artificial insemination to married couples versus unmarried couples. We disagree.\nAs previously discussed, the Act governs the treatment of a child born as a result of heterologous artificial insemination. The Act expressly contemplates a \u201chusband\u201d and \u201cwife\u201d marital arrangement as a prerequisite to the establishment of a father-child relationship and provides:\n\u201c[W]ith the consent of her husband, a wife is inseminated [heterologously] ***, the husband shall be treated in law as if he were the natural father of a child thereby conceived. The husband\u2019s consent must be in writing ***.\u201d (Emphasis added.) 750 ILCS 40/ 3(a) (West 1998).\nIt is the public policy of the State of Illinois that every child has the rights of physical, mental, emotional and monetary support from his parents. See 750 ILCS 45/1.1 (West 1998). However, the court does not have the authority to establish a parent-child relationship where none legally exists. In re Marriage of Adams, 297 Ill. App. 3d 156, 161, 701 N.E.2d 1131 (1998). In the instant case, no parent-child relationship exists. See In re Visitation with C.B.L., 309 Ill. App. 3d 888, 894-95, 723 N.E.2d 316 (1999) (former same-sex partner of woman who gave birth to child by artificial insemination lacked standing to petition for visitation under Illinois statute). The Illinois legislature, in establishing policy through statutory enactments, including the Act, has limited the circumstances under which a person can be determined to have parental rights and responsibilities. We hold that the Act does not discriminate either against unmarried women or children born to unmarried women.\nIV FRAUDS ACT\nDefendant\u2019s motion to dismiss also alleged that the purported agreement was unenforceable under the Frauds Act. Although the trial court did not refer to the Frauds Act in its dismissal of the complaint, our review of the trial court\u2019s dismissal under sections 2 \u2014 615 and 2 \u2014 619 is de novo. 735 ILCS 5/2 \u2014 615, 2 \u2014 619 (West 1998). In support of the motion to dismiss, the defendant cites Opdahl v. Johnson, 306 Ill. App. 145, 28 N.E.2d 308 (1940). However, because we have held that the trial court did not err in dismissing the complaint on other grounds, we deem it unnecessary to reach this issue.\nFor the foregoing reasons, the decision of the trial court is affirmed.\nAffirmed.\nCOHEN, P.J., concurs.", "type": "majority", "author": "JUSTICE COUSINS" }, { "text": "JUSTICE TULLY,\ndissenting:\nThe use of the terms \u201chusband\u201d and \u201cwife\u201d in section 3(a) of the Illinois Farentage Act (750 ILCS 40/3 (West 1999)) make clear that this provision applies only to married persons seeking to conceive children through heterologous artificial insemination. As plaintiff and defendant in this case were not married at the time of the procedure, the Act simply does not apply. The majority concludes, nevertheless, that because written consent is \u201cmandatory\u201d under the Act for a husband to become legally obligated for a child produced by artificial insemination, written consent is likewise mandated for an unmarried man to become legally obligated. In my opinion, however, this narrow construction of the Act, and the majority\u2019s holding that \u201cwritten consent\u201d is an indispensable condition precedent to the imposition of a parental obligation, is historically moribund and contrary to basic fairness. Here, plaintiff, an unmarried African-American woman, was allegedly induced to undergo in vitro fertilization based on the promises and representations of defendant, plaintiffs partner of 10 years, that he would support any children resulting from the procedure. As inducement, defendant agreed to pay for the process of artificial insemination, accompanied plaintiff to doctors\u2019 examinations, and injected plaintiff with the medications necessary to enhance her fertility. Defendant further participated in determining the ethnicity of the donor and selected a Caucasian donor so that the children would reflect his ethnicity and would appear to be his and plaintiffs natural offspring. When twin boys were born in 1993, defendant acknowledged them as his own, held himself out as their father, and provided financial support for the children for the next three years. Put plainly, on these facts, it seems an absurd result that \u201cpublic policy\u201d is invoked to bar plaintiff any means of recovery and to allow defendant a means to escape all parental accountability.", "type": "dissent", "author": "JUSTICE TULLY," } ], "attorneys": [ "Enrico J. Mirabelli, of Nadler, Pritikin & Mirabelli, of Chicago, for appellant.", "Cahill, Christian & Kunkle, Ltd., of Chicago (Louis B. Garippo and Frederic T. Knape, of counsel), for appellee." ], "corrections": "", "head_matter": "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., Plaintiff-Appellant, v. Raymond Banary, Defendant-Appellee).\nFirst District (1st Division)\nNo. 1\u201400\u20140590\nOpinion filed October 29, 2001.\nRehearing denied November 29, 2001.\nTULLY, J., dissenting.\nEnrico J. Mirabelli, of Nadler, Pritikin & Mirabelli, of Chicago, for appellant.\nCahill, Christian & Kunkle, Ltd., of Chicago (Louis B. Garippo and Frederic T. Knape, of counsel), for appellee." }, "file_name": "0826-01", "first_page_order": 844, "last_page_order": 853 }