The Appellate Court in In Re T.P.S. and K.M.S., Minor Children, 978 N.E.2d 1070, recently reversed the decision of the trial judge, and ruled that a same-sex co-parent can proceed on common law theories of custody and support for a child conceived by her partner’s artificial insemination. In that case, a lesbian couple had agreed that one of them would be the parent to give birth to their children because she was the younger of the two and had health insurance through her employer, and that the other parent not being artificially inseminated would be the primary caretaker of the minor children. Although they could not get legally married at the time, they were in a domestic partnership and listed each other as such for health and death benefits.
When the parties’ relationship ended, the parent having given birth to the children prevented the other from having any visitation or communication with the children for two years. When that parent filed for paternity, the trial judge dismissed her case stating that she had no standing as she was not the biological parent of the child. The Illinois Appellate Court held that, with respect to children born of artificial insemination, and where the parties have held each other out to be co-parents of the minor children, the Illinois legislature did not bar common law contract and promissory estoppel causes of action for custody and visitation brought by the non-biological parent. In a similar case, in In re Parentage of M.J., 203 Ill. 2d 526, the Court there relied on public policy by stating that Illinois must recognize “the right of every child to the physical, mental, emotional and monetary support of his or her parents.”