Posted December 8, 2016 2:52 PM
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Sperm donor or dad? Thai ruling stands

By Lauraann Wood
Law Bulletin staff writer

A man who fathered triplets through assisted conception methods in Thailand must financially support them from the U.S. after a Cook County judge properly recognized the foreign court’s parentage judgment, a state appeals panel ruled.

The father — identified as Harlow H. in the panel’s unpublished order — argued the absence of a legal marriage between him and the children’s mother — identified as Wipaporn T. — makes him nothing more than a sperm donor who is entitled to protection from such judgments through the state’s Parentage Act.

But the 1st District Appellate Court affirmed Cook County Circuit Judge Jeanne R. Cleveland Bernstein’s order to enroll the foreign judgment, finding it is not contrary to Illinois public policy and he had a full opportunity to defend his case in Thailand.

Paul L. Feinstein, owner of Paul L. Feinstein Ltd. who represented the mother on appeal, said he is pleased with the court’s decision because it will provide essential support for children who had no choice in the way they were conceived.

“The bottom line is, in Illinois we try and protect kids,” he said. “These kids were created in an interesting fashion and they had no say in it, and they are entitled to support from their father, and I think that’s the bottom line. He had the opportunity to make all the claims that he did, and they’ve been decided.”

But Enrico J. Mirabelli, a partner at Beermann Pritikin Mirabelli Swerdlove LLP who represents Harlow, said the issue is not about support — it’s specifically about whether his client can be named the children’s legal father.

“A parent-child relationship could not have been established under Illinois law. Therefore, because Thailand established that relationship, we believe it was error for the Illinois court to accept that finding,” he said. “Whether or not the Illinois court could grant support in absence of the establishment of a parent-child relationship is still an open issue, pursuant to the holding in (In re Parentage of M.J.).”

Harlow — a U.S. citizen who was married to an American woman — worked in Thailand as an economic analyst from 2001 to 2009. He and Wipaporn began a personal relationship in 2001, and the two participated in a traditional Thai wedding ceremony in 2004. The two never legally registered their marriage.

After encountering conception issues, Harlow and Wipaporn agreed to try conception through gamete intrafallopian transfer using his sperm. Harlow consented to the procedure in writing and signed a consent form on the line marked “husband.”

The successful procedure led to the birth of three sons in November 2008. Harlow supported the mother and children financially until September 2009.

Wipaporn subsequently filed a lawsuit against Harlow in Thailand seeking to establish parentage and obtain both child and educational support from him. Though Harlow never appeared in that court personally, he was represented by counsel who filed an appearance, exhibits and a memorandum contending Illinois law prevents such judgments from being imposed on him.

He also argued before the Thai trial court that he and his wife had been married and living together for 19 years, he did not father the three boys, did not have sexual intercourse with Wipaporn during her fertile period, was deceived into thinking he fathered the children and never underwent fertility treatment with their mother.

Wipaporn, though, presented photo evidence to the court of their 2004 wedding and reception along with the consent form Harlow signed to undergo the procedure and DNA test results that showed him as the boys’ biological father.

The Thai court entered an order in December 2010 finding Harlow was the children’s legal father and awarded Wipaporn child and educational support.

Thailand’s appellate court affirmed the judgment in June 2013, as did the country’s supreme court in both July 2015 and in January — when the court amended its decision to order Harlow support the boys only until they turn 20, the age of majority in that country. The Thai case was finalized in February.

But Wipaporn filed a petition in Cook County Circuit Court against Harlow in June 2011 seeking, among other things, recognition and enforcement of the foreign judgment.

Harlow moved to dismiss the petition in August 2012, arguing the Thai court’s judgment was not entitled to comity since he was never married to Wipaporn and Illinois law prevents sperm donors from being treated as natural fathers when they donate sperm to women other than their wife.

Bernstein denied Harlow’s motion in regard to extending comity to the Thai judgment. She did not rule on the other counts in Wipaporn’s petition.

Harlow answered Wipaporn’s petition in July 2013, contending the foreign judgment could not be enforced because she obtained it through fraud. He contended Wipaporn made false representations to convince him to participate in the fertility treatment and intended to use his money to support her children and a partner she was living with but concealed from him.

Bernstein struck and dismissed Harlow’s answer with prejudice and extended comity to the Thai judgment by enrolling it as an Illinois judgment in August 2013.

In affirming Bernstein’s decision, the 1st District panel noted the Illinois Parentage Act works to define the legal relationship of a child who is born to a husband and wife who request and consent to artificial insemination. Any child born to a husband and wife through such procedures shall be legally considered the same as one who was conceived naturally, it found.

Noting that Harlow bases his appeal on Section 3(b) of the act, the panel ruled he reads the section “in isolation from the language of the entire act and thus relies on a strained interpretation” of the statute to support his argument.

“When we examine the language of the entire Parentage Act to and consider each section in connection with every other section or subsection, the clear and unambiguous language establishes that the statute’s purpose ‘is to provide a legal mechanism for a husband and wife to obtain donor sperm for use in artificial insemination and to ensure that a child is considered the legitimate child of the husband and wife requesting and consenting to the artificial technique,’” Justice Bertina E. Lampkin wrote in her 14-page order, citing the M.J. case.

Motions to dismiss admit well-pleaded allegations in a complaint as well as any reasonable inferences that can be taken from them, the panel noted. In that context — and in the face of such evidence as their relationship and wedding — Harlow cannot claim he was merely Wipaporn’s sperm donor, the panel ruled.

“Furthermore, he consented in writing to the use of his sperm in the GIFT procedure with Wipaporn and signed the consent form under the designation of ‘husband,’” Lampkin wrote, noting Harlow also acknowledged his fatherhood in e-mails that discussed various plans to financially support the triplets. “In addition, he wrote about his plans to claim the three boys as dependents, take tax deductions for his support payments to them and enable them to access their rights of U.S. citizenship, which they had only because he was their father.”

Feinstein said although the order remains unpublished, he has filed a motion for the appellate court to publish it as an opinion because of the relative infrequency with which such issues arise in parentage cases.

“I thought the appellate court gave a very good explanation of the law, and it’s not something that you see every week,” he said. “I just think it provides guidance to future litigants.”

Mirabelli said “while we respect the appellate court’s order, we shall continue to represent our client’s position until we have exhausted all legal remedies available to him.”

Beermann partner John M. D’Arco and associate Matthew D. Elster also represent Harlow.

Justices Robert E. Gordon and Jesse G. Reyes concurred in the order, In re parentage of A.H. et al, 2016 IL App (1st) 133703.

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