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No Good Deed Goes Unpunished: The Surrogate Father and Child Support Under Illinois Law

Aug 17, 2007
Imagine the following: a woman you have known for many years, perhaps since childhood, considers you a dear friend, a man of character and intelligence. She is approaching her late thirties and wishes to have a baby, but no longer wishes to be burdened by a marriage in order to have the child.

She comes to you and asks to donate your sperm so that she might be able to have a baby. Needless to say, this request is done out of great respect for you and in consideration of her complete trust and knowledge of who you are as a person.

After a thorough discussion, both of you agree to your friend's proposition. Rather than pay a lawyer, your friend goes on the internet and get one of those "forms" regarding sperm donation and surrogate fatherhood.

In the form, it is stipulated that you are donating your sperm without any rights as a parent. Your friend is financially independent enough to support the child herself, and stipulates in the agreement that she waives all claims of child support on behalf of the child, and college expenses thereafter. Your friend also agrees to provide health insurance for the child and all other necessaries for the child's upbringing.

The whole matter seems simple enough: you will not be in any way responsible financially for the child. You then go through the necessary procedures to make your friend's dream come true.

Seven years later, your friend calls you on the phone and says that she has had a financial setback. She asks if you will help her pay for child support. You, of course, refuse because of the promises she made in the agreement both of you signed. Shortly thereafter, you are slapped with a petition to determine the amount you must contribute to support the child.

After hiring an attorney, you learn that your supposed "agreement" is invalid under Illinois Law. As a result, you are now obligated to pay child support until the child is eighteen years old in an amount equaling 20% of your income.

Clearly, this is a nightmare scenario for the innocent donor. Yet, this is exactly what would happen under Illinois law: public policy demands that children be supported by their "parents." Whether the child was born out of wedlock or born through artificial means is of no concern. The state is far more concerned that the child does not become a public ward than how a child is conceived. Thus, parents cannot agree among themselves for one parent to "waive" child support.

For this reason, the Illinois courts have the power to invalidate any agreement or any portion thereof that is contrary to the state's public policy. Accordingly, the donor's attempt to rely upon his agreement with the mother will not be enforced, and the court will invalidate that portion of the agreement that allowed the donor to waive support for the child.

Is there a way around this problem for the donor? No. Not one that someone could confidently say poses no risks to the donor. However, there might be ways that the above risks could at least be may be reduced.

One way might be to have the donor pay child support at 20% of his net income in child support. However, the parties could then enter into a separate agreement wherein the parties agree that the donor is to be paid for his donation to the putative mother until the child reaches 18 years of age. The second agreement would provide that the putative mother is to pay the donor an amount equal to 20% of his net income until the child reaches majority.

Women are paid for surrogate motherhood. There is no reason a husband can't be paid for the donation of his sperm to the bringing forth of the child. At least superficially, there would appear to be no public policy offended if the mother paid the donor for his providing an essential element to childbirth.

Of course, the donor could still be vulnerable to a change in the mother's financial circumstances. She might not be able to pay the donor in the future-- but the donor would still be obligated to pay child support. Further, the court could invalidate both agreements as violating public policy if it were to determine that the separate agreement was merely a sham to avoid the donor from really paying child support.

In the end, there are no easy solutions to this issue. Until the legislature immunizes a donor from claims for child support, his generosity and consideration could be the largest financial mistake of his life. Thus, it would be folly for a man who is considering being a direct donor to not consult with a lawyer first, at the woman's expense, of course.

Disclaimer: Any statements contained herein are not legal advice. Rather, the statements contained in this article are merely the opinions of an Illinois practitioner who currently concentrates his practice in the area of family law.
About the Author
Jeffrey M. Brown is an attorney from Chicago Illinois. With 20 years of experience, he concentrates his law practice on divorce and custody matters.His practice recognizes the emotional component to divorce and provides the client with supportive resources.
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