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No Good Deed Goes Unpunished: The Surrogate Father
and Child Support Under Illinois Law by Jeffrey
Brown
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.
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. Website: www.YourDivorceWithDignity.com/
Article Source: http://www.articlestoreprint.com
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