71
Argued and submitted October 1, 2019, reversed and remanded for entry of
judgment declaring the rights of the parties June 3, 2021
In the Matter of the Parentage of
Samuel Director Schnitzer, a Minor Child.
Cory Noel SAUSE,
Petitioner-Respondent,
and
Jordan Director SCHNITZER,
Respondent-Appellant.
Multnomah County
16DR18690
In the Matter of the Parentage of
Samuel Director Schnitzer, a Minor Child.
Jordan Director SCHNITZER,
Petitioner-Appellant,
and
Cassandra Lynn GIBEAUT
and Charles Burett Gibeaut,
Petitioners below,
and
Cory Noel SAUSE,
Respondent-Respondent,
and
Dale C. SAUSE
and Heidi N. Sause,
Respondents below.
Multnomah County
16DR19349;
A167020
493 P3d 1071
This action involves a dispute over the legal rights, status, and relationship
of respondent Sause to a child, who, after being conceived by in vitro fertilization
using appellant Schnitzer’s sperm and an unfertilized egg that Sause had provided, was then carried and birthed by a gestational carrier. In legal proceedings
that were initiated after the child was born, the parties sought determinations
of their respective rights and interests as to the child. Sause asserted that she is
the child’s mother with all of the legal rights afforded that status, and Schnitzer
72 Sause and Schnitzer
asserted that Sause had no parental rights to the child. The trial court entered
a general judgment declaring Sause to be the child’s legal mother and dismissed
Schnitzer’s petition, which sought a declaration that Sause was not the child’s
legal mother and an affirmance that he was the child’s sole legal parent. On
appeal, Schnitzer contends that the trial court erred in denying his motion to
dismiss Sause’s claim and in determining that Sause is the child’s legal mother
by virtue of being the child’s undisputed female genetic parent and having taken
every legal step available to her to protect and assert her constitutionally protected parental right. Held: The trial court erred in concluding, based largely
on Sause’s genetic connection to the child, that Sause is the child’s legal mother.
Because Sause did not establish a right to parent the child, the trial court erred in
denying Schnitzer’s motion to dismiss Sause’s petition and in denying Schnitzer’s
request for a declaration that he is the child’s sole parent.
Reversed and remanded for entry of judgment declaring the rights of the
parties.
Amy Holmes Hehn, Judge.
James N. Westwood argued the cause for appellant. Also
on the briefs were Stoel Rives LLP, Davis Wright Tremaine
LLP, Stahancyk Kent & Hook PC, and Laurel Parrish Hook.
Jay W. Beattie argued the cause for respondent. Also on
the brief were Lindsay Hart LLP, Thomas E. McDermott,
Erin Gould, and Charles D. Gazzola.
Robin E. Pope filed the brief amicus curiae for Academy
of Adoption and Assisted Reproduction Attorneys.
Before DeHoog, Presiding Judge, and Mooney, Judge,
and Kamins, Judge.*
DeHOOG, P. J.
Reversed and remanded for entry of judgment declaring
the rights of the parties.
Mooney, J., specially concurring.
Kamins, J., dissenting.
______________
* Kamins, J., vice Hadlock, J. pro tempore.
Cite as 312 Or App 71 (2021) 73
DeHOOG, P. J.
This appeal involves a dispute over the legal rights,
status, and relationship of respondent Sause to a male child,
S, who, after being conceived by in vitro fertilization using
appellant Schnitzer’s sperm and an unfertilized egg that
Sause had provided, was then carried and birthed by a gestational carrier (also known as a surrogate mother). After
the child’s birth, the parties initiated separate legal proceedings seeking a determination of their respective rights
and interests as to S, and the trial court subsequently consolidated those actions.1 Schnitzer asserted that Sause had
no parental rights to S and that, even if she might otherwise
have had such rights, she had knowingly waived them in
a written contract with Schnitzer. Sause asserted that she
is S’s mother with all of the legal rights afforded that status, subject only to any express waiver of rights in the parties’ contract. In that regard, Sause acknowledged that she
had agreed to relinquish legal custody of any male embryos
conceived with Schnitzer as part of the assisted reproductive technology (ART) process that she and Schnitzer had
engaged in, and that she had further agreed that Schnitzer
would have sole legal custody of any resulting male offspring; however, Sause denied that she had ever waived—or
intended to waive—all legal rights to S or a parental role
in his life. Following a multiday bench trial, the trial court
entered a general judgment declaring Sause to be S’s legal
mother.2 Schnitzer, who had sought a declaration establishing himself as S’s sole parent, now appeals that judgment
and raises five assignments of error.
In his first and second assignments of error,
Schnitzer asserts that the trial court erred in concluding
that Sause is S’s “mother by virtue of being his undisputed
female genetic parent” and having taken “every legal step
available to her to protect and assert her parental rights and
role in [S’s] life.” Put somewhat differently, Schnitzer asserts
1
In the consolidated cases, appellant Schnitzer was the petitioner in one and
the respondent in the other. We therefore refer to the parties by their last names
rather than by their party designations below.
2
The trial court dismissed with prejudice a filiation claim that Sause had
asserted as an alternative basis of parentage. The dismissal of that claim is not
at issue on appeal.
74 Sause and Schnitzer
that the trial court erred in treating Sause’s biological parentage as giving rise to a presumption of legal parentage
and in ultimately concluding that Sause has a constitutionally protected parental right. In Schnitzer’s third and fifth
assignments of error, he contends that the trial court erred
in failing to recognize that Sause had entered into a contract
with him confirming that she had no parental rights as to
S and by failing to enforce all of the terms of that contract.
Finally, in Schnitzer’s fourth assignment of error, he contends that, in light of his other arguments, the court erred
in denying his claim for a declaration of sole parentage. For
the reasons that follow, we agree with Schnitzer that the
trial court erred in concluding, based largely on Sause’s
genetic connection to S, that Sause is his legal mother. That
conclusion renders it unnecessary to reach Schnitzer’s third
and fifth assignments of error regarding the parties’ contract; it also leads us to further conclude that, as asserted
in the fourth assignment of error, Schnitzer is entitled to
a declaration that he is S’s sole legal parent.3 We therefore
reverse and remand for entry of a declaration to that effect.
I. BACKGROUND
A. Standard of Review
As an initial matter, we note that Schnitzer assigns
error to the denial of his ORCP 54 B(2) motion to dismiss
Sause’s claim for a declaration of parentage, which he made
at the conclusion of Sause’s presentation of her case. However, Schnitzer also includes argument regarding the court’s
ultimate conclusions on the merits of the case pertaining
to that same legal issue, which he raised midtrial.4 Based
on the substance of the parties’ arguments, we understand
3
Sause does not assert that the parties’ contract created parental rights for
her; rather, she argues that it “does not waive [her] parental rights in [S]. To the
contrary, the agreement assumes [she] will have at least some opportunity to
participate in [S’s] life.” (Emphasis omitted.)
4
ORCP 54 B(2) provides, in part:
“After the plaintiff in an action tried by the court without a jury has completed the presentation of plaintiff’s evidence, the defendant, without waiving
the right to offer evidence in the event the motion is not granted, may move
for a judgment of dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief. The court as trier of the facts may then
determine them and render judgment of dismissal against the plaintiff or
may decline to render any judgment until the close of all the evidence.”
Cite as 312 Or App 71 (2021) 75
Schnitzer to challenge both the trial court’s denial of his
ORCP 54 B(2) motion and its de facto denial of Schnitzer’s
renewed argument made during closing argument, which
raise the same legal issue, albeit at different points in time.
See Larisa’s Home Care, LLC v. Nichols-Shields,
277 Or App
811, 812-13,
372 P3d 595 (2016), rev’d on other grounds,
362
Or 115,
404 P3d 912 (2017) (considering argument made
during closing argument to be the functional equivalent of a
motion to dismiss under ORCP 54 B(2) and concluding that,
as presented in that case, the argument made on appeal was
adequately preserved).
“On appeal of a denial of an ORCP 54 B(2) motion
to dismiss a claim, we review the entire record to determine whether sufficient evidence was presented to establish a prima facie case on the applicable claim, viewing the
evidence and all reasonable inferences that may be drawn
from it in the light most favorable to” the party opposing the
motion. Marlow v. City of Sisters, 281 Or App 462, 468,
383
P3d 908 (2016) (internal quotation marks omitted). In addition, “we review the trial court’s legal conclusions for errors
of law.”
Id.
B. Factual and Procedural History
We begin by describing the pertinent facts in accordance with that standard, most of which are taken from the
trial court’s extensive written findings and conclusions of
law. Schnitzer is a divorced father of two daughters, who
wanted to add a son to his family. In early 2013, he began
the process of becoming a parent through ART and worked
with a program at Oregon Health & Science University
(OHSU) Fertility Consultants. Because he had previously
experienced contentious divorce and custody proceedings,
he considered it important to have sole legal custody of any
child produced through ART so that he could avoid any possibility of difficult custody litigation in the future. In 2013,
he attempted to achieve a pregnancy via ART with an anonymous egg donor and a gestational carrier; however, that
attempt did not result in a successful pregnancy.
In 2014, Schnitzer continued to work with OHSU
and a gestational carrier in an effort to produce a son using
embryos created with eggs from an anonymous donor.
76 Sause and Schnitzer
Schnitzer met Sause early that year and the two developed
an intimate relationship not long thereafter. In February,
Schnitzer told Sause of his plans to have a son, which
he continued to pursue. In April, pursuant to that plan,
OHSU transferred an embryo that had been created using
Schnitzer’s sperm and an egg from the anonymous donor
to the gestational carrier; however, Schnitzer learned on
May 19 that, like the 2013 attempt, the April 2014 embryo
transfer had not resulted in a successful pregnancy.
In the meantime—while her relationship with
Schnitzer was ongoing—Sause decided to have her own eggs
retrieved for independent purposes, unrelated to Schnitzer’s
plans to have a male child through ART. To that end,
Sause met with her physician, Dr. Wu, at OHSU Fertility
Consultants in early March 2014 to begin the process of having her eggs retrieved for fertility preservation purposes.
In April, as Schnitzer proceeded in his efforts with
the anonymous egg donor and gestational carrier, he and
Sause discussed the possibility of Sause gifting him her
eggs to support that effort. Sause testified about her conversations with Schnitzer and acknowledged that he had made
it clear that he wanted to have sole physical custody and
wanted to raise the child. Sause explained, however, that,
although it was clear that the child would not live with her,
it had never occurred to her that she would not be known as
the child’s mother. Rather, she understood that she would be
actively involved and that Schnitzer welcomed the thought
of her as a part of the child’s life. She told him that she
would not seek financial payments from him and that she
would give him custody. She thought that they were fully
in agreement, and it did not occur to her to ask about the
child’s birth certificate.
In response to Sause’s offer, Schnitzer told her that
he would consider accepting the gift of her eggs only if she
would sign the same documents as any anonymous donor
would. Sause agreed to sign any documents necessary to
transfer her eggs to Schnitzer.
On April 23, 2014, Sause shared the idea of donating
her eggs to Schnitzer with her doctor. Wu wrote in a chart
note that Sause “may wish to create embryos together with
Cite as 312 Or App 71 (2021) 77
her significant other” and that “she understands that contracts will need to be signed.” Sause had her eggs retrieved
on May 21, 2014.
Wu testified at trial that she had spoken with Sause
by phone on May 29, 2014, and that they had discussed her
plan to donate eggs to help Schnitzer have a son. Wu could
not confirm having taken notes at the time of the phone call,
but she said that her usual practice is to do so. On June 10,
Wu entered a chart note about the May 29 call. That
chart note indicated that Sause planned to donate any
male embryos to Schnitzer and keep custody of all female
embryos; it also stated that Sause “reports that their discussion and agreements have been that she will not have any
future custodial or parenting rights to the male embryo(s)
she donates to [Schnitzer], and likewise, [Schnitzer] will not
have any future custodial/parenting rights to any future
female offsprings [sic] that will result from her embryos.”
Wu testified that, to her, “embryo” and “offspring” are synonymous and that “it’s a continuum and not so discrete. An
embryo that results in a successful pregnancy and delivery
is someone’s offspring subsequently.” The trial court’s corresponding finding was that “it is likely that in this phone call
Sause did indeed speak of a plan with Schnitzer to relinquish all of her rights to male embryos, and that Dr. Wu
interpreted these statements through her professional ‘lens’
to mean more than Ms. Sause intended.”
At Schnitzer’s request, his business attorney,
Nudelman, drafted a written agreement to reflect what he
understood to be Sause and Schnitzer’s agreement regarding in vitro fertilization and embryo transfer. Sause received
a copy of that agreement on May 30, 2014, and requested
a change, which Nudelman incorporated. Sause signed
the revised agreement (the Agreement) on June 2, 2014.
On June 6, Sause signed a standard OHSU “Informed
Consent for Egg (Oocyte) Donation” form, which became
an attached exhibit to the Agreement, referred to within
the Agreement as the “Donation.” Schnitzer signed a form
on June 9, 2014, entitled “Directed Sperm Donor Consent
Form,” which was likewise attached as an exhibit to the
Agreement and referred to within it as the “Form”; he also
signed the Agreement itself. During the litigation leading
78 Sause and Schnitzer
to this appeal, Sause executed a declaration in which she
characterized the Agreement, stating, among other things,
that it “reflected accurately that … Schnitzer did not want
anything to do with any girls resulting from our embryos,
financial or otherwise. It also accurately reflected my oftstated intent to maintain my parental rights to any resulting male offspring.”
The recitals of the Agreement state, in part, that
“Schnitzer and Sause intend for this Agreement to supplement the Form and Donation in connection with the in vitro
fertilization and embryo transfer (IVF-ET) anticipated by
those documents.” The Agreement itself, which is just over
two pages in length, provides, in part:
“1. Designation of Embryos. Notwithstanding anything to the contrary in the Form or Donation, Schnitzer
hereby relinquishes any claim to or jurisdiction over any
female embryos from Sause and any resulting female offspring that might result from the use of Sause’s eggs. Sause
confirms and acknowledges that Schnitzer has full jurisdiction [and] custodial rights over the future disposition of
male embryos created from her eggs and she renounces any
rights and responsibilities of custody of any male embryo.[5]
Schnitzer and Sause shall take any [and] all necessary and
appropriate steps to effectuate the desired outcome of this
Agreement including but not limited to the execution of any
forms, releases or statements of any kind to Oregon Health
& Science University or any other third-party that relate or
pertain to the ownership or disposition of the embryos as
set forth in this paragraph.
“2. Notice of birth/Post-birth contact and communication with child. In the event of a birth of a male child from
5
At trial, Schnitzer contended that this particular reference to “embryo”
was intended instead to reference “offspring,” so as to parallel the references
to female embryos and female offspring in the first sentence of this section of
the agreement. Sause argued otherwise. The concurrence contends that, under
the parol evidence rule, evidence of the parties’ precontract discussions may be
inadmissible to vary the terms of the parties’ ultimate integrated agreement.
312 Or App at 110-11 (Mooney, J., specially concurring) (discussing ORS 41.740).
While, in the abstract, that is true—and our disposition here does not rely on the
meaning of the disputed terms of the Agreement—it is worth noting that, to the
extent Sause would rely on the circumstances surrounding the formation of the
Agreement to establish that the agreement is ambiguous, that evidence would
likely be admissible. See Batzer Construction, Inc. v. Boyer, 204 Or App 309, 314,
129 P3d 773, rev den,
341 Or 366 (2006).
Cite as
312 Or App 71 (2021) 79
one of Sause’s eggs that has been fertilized by Schnitzer’s
sperm, Schnitzer shall give Sause notice within five (5)
days of the date of the birth. In the event of a birth of a
female child from one of Sause’s eggs that was fertilized
with Schnitzer’s sperm, Sause shall give Schnitzer notice
within five (5) days of the date of the birth. The parties
agree that upon mutual written agreement of the parties,
and upon receipt of advice, counsel and approval of third-party independent medical and psychological consultants,
any offspring produced from an embryo may be introduced
to Schnitzer or Sause, as the case may be. Thereafter, the
parties agree that if it is determined to be in the best interests of the child, Schnitzer and/or Sause (and their respective families), as the case may be, may have [an] active role
in the life of the child.
“3. Release. Sause confirms she has executed this
Agreement and the Donation voluntarily with no expectation of remuneration of any kind from Schnitzer now or in
the future. Sause further confirms Schnitzer has no liability to pay any of her debts or other obligations that relate or
pertain to the embryos or a resulting child. Sause releases
and waives Schnitzer from any and all claims, suits, or
causes of action for compensation, support, or remuneration of any kind of nature that relate to the embryos and
any resulting child. Schnitzer releases and waives Sause
from any and all claims, suits, or causes of action for compensation, support, or remuneration of any kind of nature
that relate to the embryos and any resulting child.
“…
“5. Entire Agreement/Assignment. Together with the
Form and the Donation, this Agreement constitutes the
entire agreement and understanding of the parties, and
supersedes all prior and contemporaneous agreements,
understandings, negotiations, and purposes, whether written or unwritten. This Agreement may not be amended or
modified except in writing signed by each of the parties
hereto. In the event of any conflict or inconsistency between
the terms and conditions of the Form or Donation and the
terms and conditions of this Agreement, the terms and conditions of this Agreement shall prevail.”
It is undisputed that the donation form that Sause
signed was not entirely accurate in that it reflected that she
was agreeing to donate her eggs to “an unknown infertile
80 Sause and Schnitzer
recipient” and that her “identity will be kept confidential
from the recipients and that the recipient identities will be
kept confidential from” her. The donation form also includes
a paragraph that states:
“I understand that I do forever hereafter relinquish any
claim to or jurisdiction over the embryos and offspring
that might result from the use of my eggs for In Vitro
Fertilization. I acknowledge that the recipients have full
custodial rights over the future disposition of embryos
created from my eggs and that these rights include their
use for reproductive purposes of the recipient, donation of
unused embryos for research (which might include stem
cell research), disposal of unused embryos, or donation of
unused embryos to another infertile couple.”
The form signed by Schnitzer stated that he agreed “to be
a donor of sperm which will be used for therapeutic insemination of [Sause] only and will never be used for therapeutic insemination of any other recipient” and that Sause
“requested and agreed to be therapeutically inseminated
with” his sperm. Schnitzer also acknowledged in the form
that determination of parental rights and responsibilities
“should be properly determined by the directed sperm donor
and recipient under the counsel of legal advisors.”
In June 2014, OHSU used Sause’s donated eggs
and Schnitzer’s sperm to create embryos. Genetic testing
revealed that there were three viable male embryos and
no viable female embryos. On July 9, Sause signed a consent form to relinquish control of the three male embryos to
Schnitzer so that he could “attempt to establish a pregnancy
in a gestational carrier.” That consent form also stated that
“any claim to or jurisdiction over offspring that might result
from this embryo transfer(s) is covered by separate contract
between” Sause and Schnitzer. In late July, Schnitzer had
one of the three embryos transferred into the gestational
carrier with whom he had previously worked, but that first
embryo transfer did not result in a successful pregnancy.
In February 2015, Schnitzer entered into a written
surrogacy contract with a new gestational carrier and her
husband, which included a clear and explicit waiver of their
rights to the child and an explanation that the child was
Cite as 312 Or App 71 (2021) 81
being conceived for the intended father, Schnitzer. Sause did
not take part in the selection of the new gestational carrier,
and Schnitzer did not invite Sause to be a party or signatory
to the surrogacy contract. In April of that year, the second
of the three male embryos in Schnitzer’s custody was transferred to the surrogate, who had a successful pregnancy
and, ultimately, gave birth to S. Sause learned of the pregnancy on May 7. At around that same time, Schnitzer and
Sause’s relationship began to cool. Sause did not believe that
she and Schnitzer were meant to be in a long-term romantic relationship. Schnitzer, on the other hand, continued to
hope that they would marry and raise the child together.
Schnitzer maintained contact with Sause or her
parents throughout the surrogate pregnancy. As S’s birth
approached, Schnitzer sent the Sause family updates via
text messages. S was born on December 22, 2015. Schnitzer
was at the hospital and sent multiple photos to the Sause
family. Sause and her parents went to the hospital and each
was permitted to hold S. Shortly after S’s birth, Schnitzer
and Sause had a disagreement because, for various reasons
not pertinent to this appeal, Schnitzer had decided that S
would go home from the hospital with the surrogate and stay
with her for a while. Sause was upset by that decision, and
she sent a series of hostile text messages to Schnitzer. The
trial court expressly found that “it was at this moment, and
not before, that Schnitzer made the decision to cut Sause
and her family out of [S’s] life.”
The day after S’s birth, Schnitzer filed a petition
for a general declaratory judgment of parentage, naming
the surrogate and her husband as respondents. Schnitzer
did not name Sause as a party to that action. Schnitzer, the
surrogate, and the surrogate’s husband all signed a stipulated judgment stating that Schnitzer was S’s sole parent.
The trial court signed that judgment on December 28, 2015.
On March 3, 2016, Sause filed a motion to intervene in that
action. After a multiday contested hearing, the trial court
denied the motion to intervene, and, on September 2, 2016,
signed an order reflecting that denial.
Shortly thereafter, Sause initiated a new action in
Coos County, where she lived, petitioning for filiation and
82 Sause and Schnitzer
declaratory judgment as to S’s parentage. Schnitzer, in
turn, filed an action of his own in Multnomah County,
where he lived, petitioning in that case for declaratory judgment regarding egg donor status and parentage.6 Those
actions, which collectively are the subject of this appeal,
were consolidated for trial in Multnomah County. The trial
court described the issue to be decided as “whether Sause
intended to relinquish legal control of just male embryos
to Mr. Schnitzer or also all rights whatsoever to male offspring.” (Emphases in original.)
At the conclusion of Sause’s presentation of evidence
at trial, Schnitzer moved under ORCP 54 B(2) to dismiss
Sause’s claim for a declaration of parentage. He argued,
in part, that Sause had “not adduced sufficient evidence to
establish a parental right ab initio.”7 The trial court orally
denied Schnitzer’s motion to dismiss. The court stated:
“So, bottom line is that … I have a whole ‘nother side
of the case to hear, and I have further and final legal argument to hear. I’m simply finding that, as of today, I choose
to—I choose not to disregard and disbelieve Ms. Sause’s
testimony, and I do find that she’s established a prima facie
case in support of her claim that she has a parental right,
which The Court must honor and respect.”
Schnitzer raised the same legal issue again during closing
argument, arguing that Sause did not have a legal right,
constitutional or otherwise, to S. In December 2017, approximately two years after S was born, the trial court issued
written findings of fact, conclusions of law, and rulings,
which state, in part:
“Sause is [S’s] mother by virtue of being his undisputed female genetic parent. It is true, as both sides to this
dispute have acknowledged, that genetics alone do not a
parent make. A person linked to a child only by genetics
6
At the time Schnitzer filed his petition, the surrogate and her husband
were listed as copetitioners in the lawsuit and Sause’s parents were named as
respondents along with her. Those four parties were dismissed during the litigation and are not parties to this appeal.
7
Schnitzer also sought to dismiss Sause’s filiation claim under ORS 109.125.
Although the trial court denied that part of Schnitzer’s motion at that time, the
court ultimately dismissed the filiation claim at the end of the bench trial. The
dismissal of that claim is not at issue on appeal.
Cite as 312 Or App 71 (2021) 83
must take ‘an affirmative step to accept the responsibilities associated with parenthood.’ … Up until the time [S]
was born, both Schnitzer and Sause understood that while
Schnitzer would have full legal and physical custody of [S],
Sause would play a ‘maternal’ role in his life. … It was
only when the dispute arose over [S’s] time with the [surrogate] post-birth that Schnitzer changed his mind about
Sause’s role and then took all available legal steps to eliminate her and her family from [S’s] world. Sause saw and
held [S] on the day of his birth but has never been allowed
to see him since. As soon as Schnitzer’s change of heart
became evident, Sause took legal action to assert her right
to a role in [S’s] life, which she has consistently, diligently
and unwaveringly pursued to this day.
“Schnitzer cites cases that stand for the proposition
that a parent’s ‘frustration’ of the other parent’s efforts to
involve him or herself in the life of a child are not enough
to grant parental rights. The Court finds the facts of those
cases to be very different from the case before the Court,
where Schnitzer began his frustration of Sause’s efforts to
claim her role as [S’s] mother essentially on the day [S] was
born. Sause thereafter took every legal step available to
her to protect and assert her parental rights and role in
[S’s] life, a role which the Court finds Schnitzer agreed with
and actively encouraged up to and including the day of [S’s]
birth.”
(Emphasis in original.) The trial court’s general judgment
incorporated its written findings, conclusions, and rulings:
“In accordance with ORS 28.101, the court issues a Declaratory Judgment that Cory Sause is the legal mother of
the child, [S], subject to the terms of the Findings of Fact,
Conclusions of Law and Rulings attached hereto and incorporated herein.”
In the same judgment, the trial court dismissed Schnitzer’s
petition for declaratory judgment in which he sought a declaration of sole parentage.
C. The Issues on Appeal
Schnitzer appeals that general judgment. Schnitzer’s
first two assignments of error are related, so we consider
them together. In his first assignment, Schnitzer contends
that Sause did not have any parental right based solely on a
84 Sause and Schnitzer
donation of her genetic material. According to Schnitzer, the
trial court erred in ruling sua sponte that a female gamete
donor is the undisputed “genetic parent” of a resulting child,
positioned by that fact alone to attain full parental rights.
In his second assignment of error, Schnitzer contends that,
even if Sause qualified as a “genetic parent” from the start,
she provided no evidence that her actions met the applicable
constitutional tests for legal parenthood.
Schnitzer argues that the trial court presumed that
Sause’s gamete donation made her a “genetic parent,” one
who would acquire the rights of a full legal parent if she also
took a constitutionally sufficient “affirmative step to accept
the responsibilities” of parenthood. According to Schnitzer,
however, the law is to the contrary, and a donor’s biology
creates no “presumption of parenthood.” In Schnitzer’s view,
a gamete donor of either sex has no parental right based
on that fact alone. In response, Sause takes the opposite
view, contending that, under applicable Oregon statutory
and common law, her status as one of S’s two biological parents carries with it at least some rights in, and responsibilities for, S. According to Sause, a biological mother is a
legal mother; thus, there was no need for her to establish
that she had a constitutionally protected liberty interest in
parenting S simply to appear on his birth certificate or to
have, at a minimum, the legal right to seek parenting time,
which are what she sought through her petition for declaratory relief.8 Sause does not point to any specific statute or
other source of law to support her contention that genetic
parentage carries with it some degree of parental rights, but
she advances a general argument that “the term ‘parent’ or
‘parentage’ used in ORS Chapter 109 refers to biology, viz,
the ‘genetic relationship between parent and child.’ ” Sause
further argues that, to the extent that she was required
to show more than a mere genetic connection to establish
8
A female gamete donor who participates in ART but does not give birth to
the resulting child is not automatically listed on the child’s birth certificate as
is a woman who does give birth to a child. See ORS 432.088(8) (For purposes of
reporting a live birth and live birth registration under Oregon’s vital statistics
statutes, “the woman who gives live birth is the birth mother. If a court of competent jurisdiction determines that a woman other than the birth mother is the
biological or genetic mother, the court may order the state registrar to amend the
record of live birth.”).
Cite as 312 Or App 71 (2021) 85
parental rights, she has done so, as the trial court correctly,
in her view, concluded.
II. ANALYSIS
As set out above, the trial court’s ruling could be
understood to echo Sause’s reasoning that she need not
prove more than a genetic connection to establish legal parentage, in that the court stated that “Sause is [S’s] mother
by virtue of being his undisputed female genetic parent.”
However, as both sides to this dispute acknowledged at trial,
genetics alone do not a parent make. And, as the trial court
expressly noted, a “person linked to a child only by genetics must take ‘an affirmative step to accept the responsibilities associated with parenthood.’ ” Thus, we understand the
court’s ruling not to be that Sause’s genetic connection to S
made her a “mother” in the sense of having parental rights
arising solely from that status, but, rather, that Sause’s
biological relationship to S provided a link that, under certain circumstances, could form a basis for acquiring a legal,
parental relationship. As we explain, we agree with the
trial court that, although genetics provide a connection to
the child that a biological stranger does not have, Sause’s
genetic connection alone did not confer parental rights. We
disagree, however, that Sause made the requisite additional
showing to acquire those rights.
To provide further context for our analysis, we
begin by making several observations. This case arises
under arguably unique factual circumstances. First, before
meeting Sause, Schnitzer had decided that he wanted a son
and was independently pursuing that objective via ART.
Sause and Schnitzer were, for at least some time, romantically involved, but they were not married and had no joint
intention to raise a family together. And, as the trial court
found, Sause and Schnitzer had discussed the idea of “Sause
offering Schnitzer her eggs as a gift to assist him in his
efforts to have another child,” and “Schnitzer informed her
that he would only consider accepting the gift of her eggs if
Sause signed the same documents as any other anonymous
donor.”
Second, before S was born, the parties had relatively defined, if somewhat divergent, expectations as to the
86 Sause and Schnitzer
role that they each would play—or be entitled to play—in
S’s life. Sause anticipated playing a maternal role in S’s
life, although Schnitzer would have full legal custody and
accept all of the financial responsibility for raising the child.
Schnitzer, on the other hand, hoped that Sause would marry
him and that the two of them would therefore raise the child
together, but, even though the court found that Schnitzer,
like Sause, had anticipated that she would play a maternal
role in S’s life, nothing in the record or the court’s findings
reflects a promise by Schnitzer to give Sause some role in S’s
life even if the parties’ romantic relationship ended.
Third, although the parties entered into a written agreement that arguably addressed their respective
rights regarding a male child such as S, the positions that
the parties take on appeal and our conclusions regarding
Schnitzer’s first two assignments of error ultimately render
that agreement immaterial. That is, Sause does not assert
that her claimed parental rights arise from the agreement
she entered into with Schnitzer or any of the forms that she
or Schnitzer executed; rather, taking a position somewhat
different from the one that she took at trial, Sause now contends that she is entitled to be named as S’s mother on his
birth certificate and to have parenting time with him based
solely on the fact that she is biologically related to him. As
noted, Sause further contends that, to the extent that she
was required to show more than that biological connection
to establish constitutionally protected parenting rights as to
S, she has done so here.
We begin our analysis with a discussion of the legal
setting in which the parties litigated their claims. At the
time of trial, Oregon did not have a statute that directly
addressed female gamete (i.e., egg) donation.9 There was,
9
In 2017, the legislature passed Senate Bill (SB) 512, which modified a number of laws regarding the establishment of the parentage of a child, including
laws pertaining to the rights and responsibilities of male and female gamete
donors and children conceived through ART. Or Laws 2017, ch 651, § 4. The trial
court issued its written post-trial rulings on December 5, 2017, but it did not
enter a judgment incorporating those rulings until January 18, 2018, by which
time SB 512 had gone into effect. Or Laws 2017, ch 651, § 4. At the time it made
its post-trial rulings, the trial court acknowledged that the new law would soon
go into effect and that it was designed to prevent the type of litigation before it.
The court reasoned, however, that it was “not the law now” and that, although it
Cite as 312 Or App 71 (2021) 87
however, a statute in effect, ORS 109.239 (1977), amended
by Or Laws 2017, ch 651, § 4, that addressed the rights and
obligations of sperm donors and the rights and obligations of
children resulting from artificial insemination as follows:
“If the donor of semen used in artificial insemination is not
the mother’s husband:
“(1) Such donor shall have no right, obligation or interest with respect to a child born as a result of the artificial
insemination; and
“(2) A child born as a result of the artificial insemination shall have no right, obligation or interest with respect
to such donor.”
Thus, had Schnitzer donated his sperm so as to
allow Sause or a surrogate to become pregnant, he would
presumptively have had no rights as to any resulting child.
Schnitzer urges us to reach the same result here as to
Sause’s rights to S. Schnitzer points out that, at the time
that ORS 109.239 was enacted, ART was new science, no in
vitro baby had ever been born, and female gamete donation
did not exist;10 as a result, the legislature that enacted ORS
109.239 (1977) had no reason to make the statute applicable
to anyone other than male gamete donors. Schnitzer posits,
however, that the statute embodies a principle broader than
the one that it explicitly encompasses. In Schnitzer’s view,
ORS 109.239 (1977) confirmed, rather than established, law
when it provided that nonspouse male gamete donors did
not have parental rights. And, because the statute could be
viewed as merely embodying an established common-law
principle in Oregon rather than enacting new law, that
common-law principle was—and, Schnitzer would contend,
remains—applicable independent of ORS 109.239. Schnitzer
was “interesting and it does provide some context and some history and where
the future is headed in this field,” it was not essential to the court’s ruling. It is
evident from those comments in the court’s December 2017 ruling and the parties’ arguments at trial, which was held before the effective date of SB 512, that
it was understood that the new law would not apply to the trial court’s decision
in this case. The belated briefing on appeal in support of applying SB 512 has not
persuaded us otherwise.
10
The amicus curiae brief filed by the Academy of Adoption and Assisted
Reproduction Attorneys states that we now have “technology that potentially
allows multiple women to claim rights as a mother (the intended mother, an egg
donor, an embryo donor, and a gestational surrogate).”
88 Sause and Schnitzer
further reasons that, if the common-law rule ostensibly at
the root of the statute—that unmarried gamete donors have
no parental rights—were applied to Sause, a female gamete
donor, she would have no right, obligation, or interest with
respect to S.
In response, Sause emphasizes the plain text of
ORS 109.239 (1977) and, advancing a more literal reading of
its terms than Schnitzer does, argues that it applies only to
sperm donors, not to egg donors, and therefore cannot apply
to her. We agree that ORS 109.239 (1977) does not on its face
apply here; however, it is nonetheless somewhat instructive,
because it provides at least some insight into Oregon law
regarding gamete donors in that it recognizes a distinction
between a male gamete donor whose semen is used for ART
by a person he is not married to from men who father children in other ways.11
Turning to the case law, both parties rely for different purposes on our plurality decision in McIntyre v. Crouch,
98 Or App 462,
780 P2d 239, rev den,
308 Or 593 (1989), cert
den,
495 US 905 (1990). In McIntyre, the petitioner sought
a declaration that he was the father of a child that the
respondent, an unmarried woman, had conceived by artificial insemination using the petitioner’s semen. Id. at 464.
The petitioner claimed that, in donating his semen for that
purpose, he had relied on an agreement with the respondent
“that he ‘would remain active’ in the child’s life and ‘participate in all important decisions concerning the child’ and that
he would have visitation rights.” Id. The respondent denied
11
The amicus brief states that “the 2014 passage of Ballot Measure 89,
Oregon’s Equal Rights Amendment, amended Article I, Section 20 of the Oregon
state constitution to guarantee that ‘equality of rights under the law shall not be
denied or abridged by the state of Oregon or by any political subdivision in this
state on account of sex,’ support[s] the legal argument that all gamete donors
[are] covered by Oregon’s sperm donor statute.” The concurrence agrees. 312 Or
App at 108 (Mooney, J., specially concurring). However, Sause did not address
that assertion, and, although Schnitzer adopts it in his reply brief, he does not
develop any argument in support of it. Moreover, even if various biological and
other differences between producing male gametes and retrieving female gametes were insufficient to justify treating their respective donors differently under
the Oregon Constitution, that would not obviate the need to address Sause’s federal due process rights. In light of the need to address those rights, as well as
our disposition of Schnitzer’s appeal on other grounds, we do not address the
potential implications of Ballot Measure 89 here.
Cite as 312 Or App 71 (2021) 89
that claim.
Id. The petitioner argued that ORS 109.239
(1977) did not apply under the circumstances and that, if
it were to apply, it would violate his constitutional due process rights as a parent.
98 Or App at 466-67. Acknowledging
the statute’s unequivocal language, we concluded that it
“bar[red] petitioner from the rights and responsibilities of
fatherhood, even if respondent had agreed with him before
he gave her his semen that he would have these rights and
responsibilities and he gave his semen in reliance on that
agreement.”
Id. at 468. We explained that the legislation
regarding artificial insemination, of which ORS 109.239
(1977) had been only a part, served several purposes, among
them “to resolve potential disputes about parental rights
and responsibilities,” by, among other things, ensuring that
“an unmarried mother is freed of any claims by the [semen]
donor of parental rights.”
Id. at 467-68. Ultimately, however,
we determined that the statutory bar of ORS 109.239 (1977)
might prove unconstitutional as applied to the petitioner if
he could establish, as he had asserted in a declaration, that
he had donated his sperm in reliance on an agreement that
he would have the rights and responsibilities of fatherhood,
a factual matter that we left for the trial court to determine
on remand.
Id. at 472.
Schnitzer asserts that McIntyre stands for the following three principles: (1) no protected parental interest
arises from a donor’s biological link to a child; (2) without
evidence to support a claim that a child’s parent has contractually promised parental status to a donor, who would not
otherwise have made the donation, the donor cannot establish a prima facie case of entitlement to parental rights; and
(3) even if such a claim is advanced, the donor still must satisfy the criteria of parenthood established by United States
Supreme Court case law. Schnitzer also suggests that we
should adopt the dissenting opinion in McIntyre, which
would simply have held that ORS 109.239 (1977) barred the
petitioner from obtaining parental rights and that applying
the statute to the petitioner raised no constitutional concerns. 98 Or App at 474 (Richardson, P. J., dissenting).
Schnitzer further emphasizes that, to the extent
that McIntyre might be viewed as recognizing a gamete
donor’s parental rights notwithstanding ORS 109.239 (1977),
90 Sause and Schnitzer
that case is factually distinguishable. Specifically, to the
extent that the parties in that case had entered into an
agreement that might have entitled the petitioner to parental rights, that was not the case here. As Schnitzer notes,
the alleged agreement in McIntyre gave the petitioner a
specific visitation schedule and provided that he would be
allowed to participate in all significant decisions as to the
child; furthermore, the petitioner had declared his readiness to share financial responsibility for the child’s support.
98 Or App at 464. Here, in considerable contrast, Sause
asserted only that the parties had intended that she would
be S’s mother and that he would know her as such. Unlike
the petitioner in McIntyre, Sause acknowledged in this case
that she always understood that Schnitzer would have full
legal custody and decision-making authority, that there was
no agreed-upon visitation schedule, and that she would bear
no financial responsibility for S whatsoever.12
For her part, Sause relies on the concurring opinion
in McIntyre for its discussion of the legislative history of ORS
109.239 (1977), particularly its observation that the act was
in part designed to “relieve the sperm donor and the child of
any rights or obligations toward one another when neither
the donor nor the mother intended that the donor be the legal
father.” Id. at 473 (Deits, J., specially concurring) (emphases
added). According to Sause, that statement from McIntyre
reflects the legislature’s understanding that, in the absence
of a statute providing otherwise, a sperm donor would presumptively have had rights and obligations regarding the
resulting offspring. Sause reasons that, if, at the time the
legislature enacted ORS 109.239 (1977), the existing statutory or common law did not already extend parental rights
to sperm donors, there would have been no need for a provision terminating those rights.
Notwithstanding a certain logical appeal to Sause’s
argument, we find no support for it in our statutory or decisional law. Rather, we are persuaded that McIntyre supports
the trial court’s understanding (and Schnitzer’s contention)
12
In fact, as noted above, rather than having any guaranteed time with S,
Sause signed an agreement that specified that offspring “may be introduced to”
her and left open the possibility for her to have an active role only if it was determined to be in the best interests of the child.
Cite as 312 Or App 71 (2021) 91
that, under the law governing the trial court’s decision, the
mere genetic connection that a gamete donor has to a resulting child does not, in its own right, confer parental status.13
We reach that conclusion in part due to our reliance, in
McIntyre, on the United States Supreme Court’s decision in
Lehr v. Robertson,
463 US 248,
103 S Ct 2985,
77 L Ed 2d
614 (1983). McIntyre,
98 Or App at 470-71. As we explained
in McIntyre, the issue in Lehr was whether, to provide due
process, an “unmarried father, whose child was conceived
by sexual intercourse, had to have notice and an opportunity to be heard before the child could be adopted by others.”
McIntyre,
98 Or App at 470. In deciding that question, the
Supreme Court “discussed the significance to the man’s
rights and responsibilities of fatherhood of the biological
connection between the man and the child.”
Id. The Court
explained:
“When an unwed father demonstrates a full commitment
to the responsibilities of parenthood by coming forward to
participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection
under the due process clause. … But the mere existence
of a biological link does not merit equivalent constitutional
protection. …
“The significance of the biological connection is that it
offers the natural father an opportunity that no other male
possesses to develop a relationship with his offspring. If
he grasps that opportunity and accepts some measure of
responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely
valuable contributions to the child’s development. If he fails
to do so, the Federal Constitution will not automatically
compel a state to listen to his opinion of where the child’s
best interests lie.”
13
As noted, 312 Or App at 86 n 9, the trial court did not apply SB 512 (2017)
to its determination of the parties’ respective rights. Citing Stull v. Hoke, 326 Or
72, 77,
948 P2d 722 (1997), the concurrence suggests an obligation to construe
and apply SB 512 notwithstanding the parties’ failure to rely on—or advance
an interpretation of—that provision at trial. See 312 Or App at 107 (Mooney, J.,
specially concurring). However, this is not a case in which the parties have simply
failed to articulate a particular interpretation of a statute that necessarily controls their controversy. Rather, by declining to rely on that provision, they have
not put its meaning or application at issue in this case, and Stull does not require
that we apply it to the parties’ dispute sua sponte.
92 Sause and Schnitzer
Lehr,
463 US at 261-62 (internal brackets, quotation marks,
and citations omitted). We discuss Lehr at greater length
below, 312 Or App at 95-96. For now, however, we simply
note that we understand Lehr, and our reliance on that
decision in McIntyre, to stand for the proposition that a biological connection presents an opportunity for a would-be
parent, but that connection does not, in and of itself, create
parental rights.
Our decision in State v. Wooden, 184 Or App 537,
57
P3d 583 (2002), further supports the conclusion that Sause’s
biological link to S alone is not sufficient to establish parental rights. Wooden involved a custody dispute between the
maternal grandparents of a child and the child’s father.
184
Or App at 540. There, the child’s parents had never been
married to each other, but the child’s paternity was not in
dispute.
Id. The child’s mother had left the father and married another man when the child was three or four.
Id. That
man had subsequently murdered the mother, and the child’s
grandparents had then filed for and received custody.
Id. at
540-43. The father disputed the custody award on appeal.
Id. at 543. He had maintained at least sporadic contact with
the child both before and after the mother married, and he
had stopped all visitation only after her “violence-prone husband” had insisted that he stay away.
Id. at 550. The father
had also paid approximately two-thirds of his support obligation for the child, who by then was six years old.
Id. In
defending the trial court’s custody award, the grandparents
argued that the father had in essence waived his parental
rights by failing to participate directly and significantly in
the first six years of the child’s life.
Id. at 546.
We held in Wooden that the father did have a parental right to his child, but not one arising from his biological connection alone. Id. at 550. We explained that the
“[f]ather’s parental right, if he has it, derives from the Due
Process Clause of the Fourteenth Amendment.”
Id. at 546.
And, after a recitation and brief discussion of several United
States Supreme Court cases, we gleaned the following:
“In sum, all of the cases containing language that
might be taken to imply that parental rights derive from
a mere biological connection actually imply nothing of the
Cite as 312 Or App 71 (2021) 93
sort. They do not stand for the proposition that the state
must grant the opportunity to exercise care, custody, and
control to those who have not participated directly and significantly in the upbringing of their children. Rather, they
establish that parents who have, or once had, care, custody,
and control of their children may not be deprived of those
benefits by the state without due process of law.
“In fact, when the cases deal with nonparticipating or
minimally participating biological parents, they expressly
announce that parental rights are not biologically based.”
Id. at 548 (emphasis in original).
Thus, although we concluded in Wooden that the
father had a protected parental right to his child, we reached
that conclusion only after considering the father’s efforts to
maintain contact and provide support for the child after the
mother had left him, the barriers that existed to maintaining better contact, and the father’s considerable efforts following the mother’s death, which included his insistence on
paying full support and his “near-perfect record of regular
visitation.” 184 Or App at 550 (discussing whether, in the
words of Lehr,
463 US at 262, the father had sufficiently
grasped the opportunity to develop a relationship with his
child and “accept[ed] some measure of responsibility for the
child’s future” (internal quotation marks omitted)).
That case law persuades us that, contrary to
Sause’s position on appeal, her mere biological connection
to S does not confer parental rights on her. We therefore
turn to whether, in this case, Sause had established a protected parental interest in S through something other than
that biological connection. Schnitzer contends in his second assignment of error that she has not established such
an interest. Schnitzer argues that, even if Sause’s biological relationship to S provided her with a “presumption” of
parental rights, she has failed to establish a constitutionally
protected parental right as necessary for her to be declared
S’s legal mother. Sause responds that, if she must prove that
she has a constitutionally protected “liberty interest” in
parenting S to be considered his legal mother, she has done
so here. That is, she argues that, at the earliest possible
chance, she grasped the opportunity to participate in the
94 Sause and Schnitzer
rearing of S in a manner sufficient to establish her parental
rights.14
As recited above, the trial court ruled that a combination of (1) Sause’s actions to assert her right to a role
in S’s life and (2) Schnitzer’s actions that prevented Sause
from claiming that role satisfied the constitutional standard for establishing a parental right. Specifically, the
court found that there had been an understanding between
Schnitzer and Sause that Sause would have a “maternal”
role, with Schnitzer having full legal and physical custody;
that Schnitzer had unilaterally changed his mind about
that intention; and that Sause had held S on the day that
he was born and had taken “every legal step available to
her to protect and assert her parental rights and role” in S’s
life after Schnitzer cut off her access to S. As the trial court
explained:
“Up until the time [S] was born, both Schnitzer and Sause
understood that while Schnitzer would have full legal and
physical custody of [S], Sause would play a ‘maternal’ role
in his life. This intention is expressed in the Nudelman
Agreement. It was only when the dispute arose over [S’s]
time with the [surrogate] post-birth that Schnitzer changed
his mind about Sause’s role and then took all available
legal steps to eliminate her and her family from [S’s] world.
Sause saw and held [S] on the day of his birth but has
never been allowed to see him since. As soon as Schnitzer’s
change of heart became evident, Sause took legal action to
assert her right to a role in [S’s] life, which she has consistently, diligently and unwaveringly pursued to this day.
“… Schnitzer began his frustration of Sause’s efforts
to claim her role as [S’s] mother essentially on the day [S]
was born. Sause thereafter took every legal step available
to her to protect and assert her parental rights and role in
[S’s] life, a role which the Court finds Schnitzer agreed with
and actively encouraged up to and including the day of [S’s]
birth.”
(Emphasis in original.)
Schnitzer argues that the trial court misapplied the
applicable case law in concluding that Sause had established
14
We note that Sause has not cross-assigned error to the trial court’s ruling
that such a showing was required in this case.
Cite as 312 Or App 71 (2021) 95
a protected parental right. He further contends that, to the
extent that the decisions of the United States Supreme Court
might otherwise be viewed as supporting the trial court’s
decision, they cannot provide that support here, because
there is a significant distinction between those cases and
the present case. That is, in each of the cases that the trial
court considered the claimant’s biological link was natural parenthood; none of the cases address a gamete donor’s
parental rights. We proceed to consider those cases.
In Lehr, the Court considered whether a biological
father of a child born out of wedlock had an absolute right
to receive notice prior to the child’s adoption by the mother’s husband. 463 US at 250. The State of New York had a
putative-father registry in which a man could file his intent
to claim paternity of a child born out of wedlock, which
would then entitle him to receive notice of any proposed
adoption.
Id. at 250-51. The biological father did not register
and therefore did not receive notice.
Id. In holding that the
father had not established a right to such notice, the Court
explained that
“[w]hen an unwed father demonstrates a full commitment
to the responsibilities of parenthood by coming forward to
participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection
under the Due Process Clause. At that point it may be said
that he acts as a father toward his children. But the mere
existence of a biological link does not merit equivalent constitutional protection. … The importance of the familial
relationship, to the individuals involved and to the society,
stems from the emotional attachments that derive from the
intimacy of daily association, and from the role it plays in
promoting a way of life through the instruction of children.
. . as well as from the fact of blood relationship.”
Id. at 261 (internal brackets, quotation marks, and citations
omitted).
The dissent in Lehr highlighted facts that the
majority opinion had not acknowledged, including, notably,
that the father had visited the mother and child in the hospital following the child’s birth, but that, upon leaving the
hospital, the mother had concealed her whereabouts from
him. Id. at 269 (White, J., dissenting). The father attempted,
96 Sause and Schnitzer
with sporadic success, to find the mother and child, and he
would visit with the child to the extent the mother would
allow.
Id. When, after having been unable to find them for at
least a year, the father again tracked them down, he discovered that the mother had since married and would no longer
permit him to see the child.
Id. The father offered financial
assistance and threatened the mother with legal action.
Id.
The mother and her husband then began adoption proceedings without providing the father with notice.
Id. Notwithstanding the facts that the dissent in Lehr had
emphasized, the majority in that case held that, under the
circumstances, notice was not constitutionally required, as
any constitutionally protected interest that the father had
in the matter was adequately protected by the state’s registry for putative fathers
Id. at 265. Notably, in observing
that the father “has never had any significant custodial,
personal, or financial relationship with [the child], and he
did not seek to establish a legal tie until after she was two
years old,”
id. at 262, the majority evidently did not deem
the facts that the dissent found particularly noteworthy—
facts arguably depicting one parent’s purposeful thwarting
of the other parent’s efforts to develop a relationship with a
child—to be legally significant.
In Quilloin v. Walcott, 434 US 246,
98 S Ct 549,
54 L
Ed 2d 511 (1978), the court considered the constitutionality
of Georgia’s adoption laws, which operated to deny an unwed
father the ability to prevent the adoption of his biological
child by the mother’s husband. In that case, the parents had
not been married when the child was born, the mother had
married a different man when the child was about three
years old, and, when the child was 11, the mother’s husband had filed a petition to adopt the child.
434 US at 247.
In response to the adoption petition, the biological father
attempted to block the adoption and to secure visitation
rights, but he did not seek custody.
Id. The Court held that
there had been no due process violation and that the case
gave rise to no equal protection concerns, observing that the
biological father “has never exercised actual or legal custody over his child, and thus has never shouldered any significant responsibility with respect to the daily supervision,
education, protection, or care of the child.”
Id. at 255-56.
Cite as
312 Or App 71 (2021) 97
Finally, the trial court considered Stanley v. Illinois,
405 US 645,
92 S Ct 1208,
31 L Ed 2d 551 (1972). In that case,
the State of Illinois had a statutory scheme under which
children of unwed mothers became wards of the state if their
mother died. In that case, the biological parents of three
children had lived together intermittently for 18 years but
were not married.
Id. at 646. The mother died, and the children became wards of the state and were placed with courtappointed guardians.
Id. The biological father appealed that
decision and claimed that, because he had not been shown
to be an unfit parent, he had been denied equal protection
of the laws.
Id. That was so, he contended, because, under
Illinois law, married fathers and unwed mothers could not
be deprived of their children without a similar showing.
Id.
The Court held that the father was entitled to a hearing on
his fitness before the children could be removed from his
care.
Id. at 658.
Schnitzer argues that the foregoing Supreme Court
decisions do not support the trial court’s conclusion that
Sause has a constitutionally protected parental right. As
he characterizes the circumstances here, a “gamete donor’s
inchoate plan for a future ‘maternal role,’ even if the future
father has shown support for it, cannot establish legal parenthood. Sause’s expectations, however sincere and strongly
held, are not sufficient.” Schnitzer asserts that Stanley is
particularly unhelpful because the existence of a parental
right was not at issue in that case. And, to the extent that
Lehr and Quilloin, both of which involved natural parents,
are applicable to this case involving gamete donation and
in vitro fertilization, Schnitzer contends that those cases
support reversal. In his view, each of those cases conditioned its recognition of a protected parental right on a
far more substantial showing than Sause has made here.
Lehr, Schnitzer observes, would require a custodial, personal, or financial relationship of some duration, whereas
Quilloin would require daily contribution to the child’s
education, protection, and care. Schnitzer contends that
the showing that Sause has made as to S in this case falls
far short of the showings that the Supreme Court deemed
sufficient to establish a protected parental right in its own
decisions.
98 Sause and Schnitzer
Sause responds that, to the extent that we reject
her argument that she was not required to show more than
a biological connection to be entitled to parental rights, she
has made a sufficient showing here. As we will explain, we
agree with Schnitzer that Lehr and Quilloin provide substantial guidance as to what kinds of evidence can give rise
to protected parental rights premised on a biological connection, and that Sause has not made the requisite showing
here.
Before we apply those decisions of the United States
Supreme Court, we note that Schnitzer also contends that
the trial court misapplied our decision in Wooden in concluding that Sause had made a sufficient showing to establish
parental rights as to S. We agree. In Wooden, we recognized
that the father had developed “a substantial father-son relationship” and concluded that he had parental rights that
had to be given significant weight in determining whether
he should have custody. 184 Or App at 551. We described
that relationship as follows:
“[W]e do not underestimate the importance of the fact that,
before mother’s death, father visited only sporadically and
fell behind in his child support payments. But we also note,
in mitigation, that father did not desert mother and child,
she chose to leave him; that he did maintain some contact
and paid two-thirds of his support obligation; that, for part
of child’s life, he and child were separated by geography,
with child in Seattle (father does not drive); that father’s
pastor advised him that his mental health would be best
served by limiting or eliminating contact with mother and
child; and that, for the year immediately before mother’s
death, father stopped all visitation because mother and her
violence-prone husband told him to stay away.
“Most significantly, we note father’s conduct after mother’s murder. He came forward to discuss child’s future
within 48 hours of learning that mother and her husband
were dead. Since that time, he has paid all support obligations, even after learning from grandparents that they
did not want or need payment. He has also maintained a
near-perfect record of regular visitation, despite the fact
that he had to take public transportation from Vancouver,
Washington, to grandparents’ home in Washington County.
Cite as 312 Or App 71 (2021) 99
… [H]e has taken every possible step to make himself an
important presence in child’s life.”
184 Or App at 550.
Sause emphasizes dicta in Wooden to suggest that
our opinion in that case supports her position. Specifically,
on our way to concluding that the father had a protected
parental right that he could assert in custody proceedings,
we stated that the father’s biological connection to the child
was not itself a sufficient basis for the father to “avail himself of the ‘supervening right’ to a privileged position in the
decision whether to grant custody” of the child to the grandparents. Id. at 549. We went on to state that
“[t]hat conclusion, however, does not end our inquiry; as
we noted in McIntyre, Lehr teaches that, while a biological
father does not have parental right automatically and for
that reason only, even a relatively uninvolved parent may,
by virtue of his conduct, avoid losing them. Lehr speaks of
the father’s opportunity to ‘develop a relationship with his
offspring’ …. We must now determine whether father has
done so.
“We conclude that he has. There is some force to the argument that he has done so merely by virtue of acknowledging
paternity; that act alone distinguishes him from the putative
parents in Lehr, Quilloin, McIntyre, and other cases demonstrating the insufficiency of a merely biological connection.
We need not decide that question here, however, because
father has done much more.”
Id. at 549-50 (citation omitted; emphasis added). Sause
emphasizes our statement that the act of acknowledging
paternity might be enough to establish parental rights.
However, as we expressly recognized in Wooden, we had no
occasion in that case to decide whether that act would be
sufficient to confer a parental right, because the father had
“done much more.”
Id. Moreover, other than purporting to
distinguish certain precedents, we provided no reasoning
for our observation that there was “some force to the argument that he has done so merely by virtue of acknowledging
paternity,”
id. at 550, and it is not otherwise evident why
we said it. That is, in each of the cases that we purported
to distinguish, the putative fathers were actively seeking to
100 Sause and Schnitzer
establish rights and obligations as fathers; it is not evident
how the fact that the father had formally acknowledged
paternity in Wooden might somehow be viewed as having
taken a more substantial step towards accepting responsibility for a child than did the putative fathers in those other
cases. As a result, we do not view that statement in Wooden
as having any bearing here. Moreover, as we explain below,
Sause’s showing in this case falls far below that of the father
in Wooden; thus, to the extent Wooden applies here at all, it
supports Schnitzer’s position, not Sause’s, as the trial court
understood.
Returning to the federal case law, we now consider
whether Sause made an adequate showing that she had
“grasp[ed] the opportunity” presented to her by her biological connection to S. See Lehr, 463 US at 261-62 (explaining that a biological connection to a child creates an opportunity to develop a relationship with a child and holding
that a father acquires a right to a parental relationship
“[i]f he grasps that opportunity and accepts some measure of responsibility for the child’s future”). In applying
that case law here, we assume without needing to decide
that Sause’s claim to a parental relationship under that
case law is no less than that of a person who conceives a
child through sexual intercourse; that is, for purposes of
discussion, we reject Schnitzer’s argument to the contrary.
Further, we conclude, based upon that case law, that the
appropriate time reference for examining Sause’s efforts
to grasp the opportunities of parenthood is the time before
she pursued court action, as any legal or equitable claim
that she might have had would necessarily have been premised on rights that she had at the time of her filing. See
id. at 262 (considering biological father’s relationship with
and efforts in regard to child before seeking to establish
legal ties); Quilloin,
434 US at 255-56 (considering biological father’s efforts before contesting adoption and observing that he “has never exercised actual or legal custody
over his child, and thus has never shouldered any significant responsibility with respect to the daily supervision,
education, protection, or care of the child”); cf. McIntyre,
98 Or App at 472 (conditioning biological father’s claim on
substantiation of assertion that he had donated sperm in
Cite as
312 Or App 71 (2021) 101
reliance on mother’s agreement that he would enjoy parental
rights).
Sause asserts that there is no bright-line test for
determining whether the biological parent of a newborn
child has adequately “grasped the opportunity” to develop a
relationship with that child. In support of the conclusion that
she has done so here, she contends that she has shown more
than the mere filing of a legal claim after S was born. She
asserts that she was not just a “gamete donor,” as Schnitzer
would characterize her; rather, she emphasizes, she and
Schnitzer were in a romantic relationship and, as Sause now
recounts, the two “agreed to have a child together” using
IVF and a gestational carrier.15 She acknowledges that she
understood that Schnitzer was to be the custodial parent
and would make all significant parental decisions in S’s life,
but she asserts a further understanding that she would be
identified as S’s mother on his birth certificate and would
“always play some role in the child’s life.” Sause also points
to the fact that she exchanged numerous emails and texts
with Schnitzer during the pregnancy in which the two of
them discussed “her role in the life of her son” and that she
ultimately entered into the Agreement, which she understood to guarantee her right to participate in S’s life.
Additionally, Sause describes her efforts in having
her eggs retrieved under anesthesia, her involvement with
the creation of embryos, and her emotional attachment with
the first gestational carrier, who did not have a successful
pregnancy. Finally, Sause notes that she received regular
updates as the ultimately successful pregnancy progressed,
and she was at the hospital and held S shortly after his
birth.
We agree with Sause that there is no bright-line
test for when a biological parent has made the showing
necessary to acquire a constitutionally protected parental
right. However, we conclude that, to the extent that the
efforts and understandings that Sause relies on are relevant
and supported by the record, they nevertheless fall short of
15
The trial court’s findings refer to Sause as donating eggs and male embryos
and gifting eggs; the trial court did not make a finding that Sause and Schnitzer
“agreed to have a child together.”
102 Sause and Schnitzer
showing that she “grasp[ed] [the] opportunity [to develop a
parent-child relationship] and accept[ed] some measure of
responsibility for the child’s future.” Lehr, 463 US at 262. We
recognize that Sause sought to assert her parental rights
in court fairly shortly after S was born and that, given
Schnitzer’s decision to prevent Sause from having further
contact with S, there probably was not much more that she
could have done at that point to further establish a relationship. Nonetheless, by that time there had been sufficient
opportunity for Sause to demonstrate a “full commitment to
the responsibilities of parenthood.”
Id. at 261. She did not do
so.
First, although the record reflects that Sause and
Schnitzer were in a romantic relationship for a time, it does
not reflect—and the trial court did not find—that the decision to have S grew out of that relationship or that Sause
and Schnitzer made a joint decision to have a child. Rather,
as the court found, Schnitzer came into the relationship
already engaged in efforts to add a son to his family. True,
Schnitzer hoped that Sause and he would marry and that
they would form a family including S; that, however, does
not reflect in any way on Sause’s own commitment to parent
S.
Similarly, even assuming that Sause and Schnitzer
had at some point discussed having Sause’s name on S’s
birth certificate,16 she does not contend that, in seeking to
be identified as S’s mother in that way, Sause was somehow seeking to accept responsibility for the nurturing and
upkeep of S as her child. Indeed, although Sause now points
to the parties’ written contract as reflecting her intent to
play a parental role in S’s life, that document expressly
disavowed any financial or other responsibility for S. 312
Or App at 79 (quoting release language in the Agreement).
Furthermore, Sause does not rely on the Agreement as creating parental rights for her; her argument on appeal has
been that it did not serve to terminate any parental rights
16
It is not clear whether the trial court made any finding on this issue. It
described Sause’s testimony that she would never have thought to ask about the
birth certificate, but it also quoted a text message from Sause to her sister, in
which Sause says that she told Schnitzer she would sign “open adoption type
documents as long as my names [sic] on birth cert.”
Cite as 312 Or App 71 (2021) 103
that she otherwise had in S. Thus, whatever unilateral significance the Agreement may have had for Sause, it cannot
support her contention that, before filing a claim asserting
parental rights, she had demonstrated any “commitment to
the responsibilities of parenthood,” much less a “full commitment.” See Lehr,
463 US at 261.
That leaves, in support of Sause’s argument that she
has established a right to parent S, her argument that she
underwent a serious procedure to have her eggs retrieved
and that she and Schnitzer had repeatedly discussed that
she would play a maternal role in S’s life. Given the trial
court’s finding that Sause chose to have her eggs retrieved
for her own, fertility-preservation purposes—in other words,
not for the purpose of sharing eggs with Schnitzer or having a child with him—we can attach no legal significance
to any physical, financial, or emotional challenges that that
process may have caused her. That is, nothing about Sause’s
submission to that procedure demonstrates a commitment
to be responsible for any resulting children. Moreover, it
cannot serve as a basis to show that Schnitzer promised her
a parental role in S’s life in exchange. See McIntyre, 98 Or
App at 470 (recognizing that commitment by other parent in
exchange for sperm donation might be basis for asserting a
claim to parental rights).
Likewise, the parties’ discussion of a “maternal role”
for S is insufficient to establish a constitutionally protected
parental right. We acknowledge that, in some instances,
representations by the other parent that a biological donor
will have parenting rights may give rise to such rights. See
id. Here, however, the parties’ seemingly vague discussions
about a “maternal role” for Sause neither reflected a commitment on her part to the responsibilities, see Lehr,
463
US 261, nor, given their timing, appear to have served as
an incentive for Sause to donate her eggs in the first place.
Accordingly, they, too, fail to demonstrate Sause’s right to
parent S.17
17
The dissent points to additional facts that, in the dissent’s view, further evidence Sause’s plans to parent S and her reliance on Schnitzer’s similar
understanding to that effect. See 312 Or App at 113 (Kamins, J., dissenting)
(discussing evidence “sufficient to show that Schnitzer and Sause—two people in
a romantic relationship—intended that Sause would play a maternal role in S’s
104 Sause and Schnitzer
Because we conclude that Sause has not established a right to parent S, the trial court erred in denying
Schnitzer’s motion to dismiss Sause’s petition and Schnitzer’s
request for a declaration that he is S’s sole parent. Moreover,
because Sause has not established that she ever had a right
to parent S, we need not consider whether she waived that
right through the parties’ written agreement, as Schnitzer
contends in his third and fifth assignments of error. We
therefore reverse the trial court’s decision and remand for
entry of a judgment declaring that Schnitzer is the sole parent of S and declaring that Sause is not the legal mother
of S. See Beldt v. Leise, 185 Or App 572, 576,
60 P3d 1119
(2003) (party is “entitled to a declaration of its rights, even
if that declaration is directly contrary to what it believes its
rights to be”).
Reversed and remanded for entry of judgment
declaring the rights of the parties.
MOONEY, J., specially concurring.
S had two legal parents when he was born: Cassandra
Gibeaut because she gave birth to S, ORS 432.088(8),1 and
Charles Gibeaut because he was Cassandra’s husband when
S was born, ORS 109.070(1)(a), and because he consented
life”). Although some of that evidence clearly reflected Schnitzer’s desire to marry
Sause and raise S together, nothing about those circumstances reflects a promise
that Sause would be assured a maternal role even if the relationship failed or
Sause’s reliance on such expectations in donating her eggs to Schnitzer.
1
ORS 432.088(8) provides:
“For purposes of making a report of live birth and live birth registration,
the woman who gives live birth is the birth mother. If a court of competent
jurisdiction determines that a woman other than the birth mother is the biological or genetic mother, the court may order the state registrar to amend
the record of live birth. The record of live birth shall then be placed under
seal.”
That is consistent with the longstanding presumption that the woman giving
birth to the child “has a right to the custody and control of [the child] as against
the putative father, and is bound to maintain [the child] as [the child’s] natural guardian.” James Kent, 2 Commentaries on American Law 215 (8th ed 1854)
(emphasis added). Oregon has long recognized the common-law rule. See Nine v.
Starr, 8 Or 49, 50 (1879) (common-law-putative father of illegitimate child has no
support responsibility; birth mother is legally responsible for child’s support and
upbringing). The language in ORS 109.065(2) was added by the legislature in
2017, Or Laws 2017, ch 651, § 2, and it codifies the common law:
“A person is the mother of a child to whom the person gives birth.”
Cite as 312 Or App 71 (2021) 105
to the performance of the assisted reproduction technology (ART) procedure that resulted in his wife giving
birth to S, ORS 109.243. The Gibeauts then stipulated to
entry of a “General Declaratory Judgment of Parentage”
in Multnomah County Circuit Case No. 15DR19365 that
“ordered, declared and adjudged” Jordan Schnitzer to be the
“legal parent of [S].” Sause does not dispute the authority of
the court to enter that judgment under Oregon’s Declaratory
Judgment Act, ORS 28.010 to 28.160, nor does she dispute—
or challenge—that Schnitzer is S’s legal parent. Because
the majority remands these consolidated cases for entry of
judgments declaring Jordan Schnitzer to be S’s legal parent,
consistent with the judgment of parentage in Multnomah
County Circuit Court Case No. 15DR19365, I concur. I write
separately because I would use a different, shorter, path to
get there.
The Gibeauts did not conceive S through sexual intercourse. In fact, they did not conceive him at all.
Conception—fertilization of a female reproductive cell, also
known as a “gamete” (Cory Sause’s ovum or egg) with a
male reproductive cell, also known as a “gamete” (Jordan
Schnitzer’s sperm or spermatozoon)—occurred in a laboratory and resulted in an embryo with a fully fused set of chromosomes (23 pairs, totaling 46) that was later introduced
into Cassandra Gibeaut’s uterus with the hope of implantation. Implantation was successful and Cassandra Gibeaut
delivered S some months later.
When the trial court entered its judgment establishing Sause’s parentage by declaring her to be S’s “legal
mother,” the judgment of parentage in Multnomah County
Circuit Court Case No. 15DR19365 had been entered and,
importantly, Senate Bill (SB) 512 (2017) had become the law
in Oregon. Of particular relevance here, SB 512 amended
ORS 109.065 to add subsection (2), which provides that “[a]
person is the mother of a child to whom the person gives
birth.” ORS 109.065(2). SB 512 also amended ORS 109.239,
which provides:
“(1) As used in ORS 109.239 to 109.247, ‘assisted
reproduction’ means a method of causing pregnancy other
106 Sause and Schnitzer
than sexual intercourse. ‘Assisted reproduction’ includes,
but is not limited to:
“(a) Artificial insemination as defined in ORS 677.355;
“(b) Donation of eggs;
“(c) Donation of embryos;
“(d) In vitro fertilization and transfer of embryos; or
“(e) Intracytoplasmic sperm injection.
“(2) If the donor of gametes used in assisted reproduction is not the mother’s spouse:
“(a) The donor shall have no right, obligation or interest with respect to any child conceived as a result of the
assisted reproduction; and
“(b) Any child conceived as a result of the assisted
reproduction shall have no right, obligation or interest with
respect to the donor.”
By its express terms, the legislature directed that SB 512
apply “to establishments … of parentage … made … on
or after the effective date of this 2017 Act.” Or Laws 2017,
ch 651, § 54. The effective date of the Act was January 1,
2018. See ORS 171.022 (unless otherwise provided, a statute takes effect on January 1 of the year following its passage). The judgment establishing parentage in Case No.
16DR18690 was entered on January 18, 2018, and the judgment establishing parentage in Case No. 16DR19349 was
entered on January 24, 2018. At the time each judgment
was entered, Sause had no parental rights with respect to
S under SB 512 section 4 (codified at ORS 109.239(2)(a)),
because S was a child conceived as a result of an ART procedure using eggs Sause had donated2 for that purpose. The
judgment establishing parentage in each case was, therefore, unlawful.
It is clear that the trial court was aware that SB
512 would soon take effect because it commented that it
thought the new law was “interesting” and that SB 512
2
The trial court found, among other things, that Sause had “donated” her
eggs and signed paperwork “to transfer” those eggs to Schnitzer. The evidence in
the record supports those findings.
Cite as 312 Or App 71 (2021) 107
reflected “where the future is headed.” It nevertheless issued
a ruling that is inconsistent with SB 512. To be sure, the
court signed its written findings and conclusions of law on
December 6, 2017, 26 days before SB 512 took effect. But, as
it happened, the judgments, which incorporated the court’s
rulings, were not entered into the court’s register until after
SB 512 became effective. Surely it was not surprising to the
lawyers or to the court that the date of signing and the date
of entry occurred on different dates. Had it been surprising,
or even unintended, there would surely have been a judgment entered nunc pro tunc to December 6, 2017. But that
did not happen.
Sause argues that we should turn a blind eye to the
date that the judgment was entered because the court issued
its written findings in December 2017, and its ruling should
be reviewed according to the law as it existed at that time.
Schnitzer correctly argues that, until entered, the judgments establishing parentage were not final, appealable, or
enforceable. ORS 18.082(1). The majority largely ignores SB
512, reasoning that the parties “understood” that the new
law would not apply. 312 Or App at 86 n 9. And the dissent ignores SB 512 altogether. But Schnitzer provided the
trial court with a copy of SB 512, and he advised the court
of the approaching effective date. The issue was raised and
discussed.
And, even if Schnitzer had not raised or adequately
preserved the issue below, we cannot ignore it on appeal
because we cannot conduct proper legal review without
determining what law applies to the judgments. Whether
the trial court correctly concluded that Sause is S’s “legal
mother” requires us to determine whether the amendments
to Oregon’s paternity and artificial insemination statutes made by SB 512 were in effect and, thus, applicable
to the judgments from which this appeal was taken. And
that presents a question of statutory interpretation. See
Stull v. Hoke, 326 Or 72, 77,
948 P2d 722 (1997) (where the
Supreme Court held in an analogous situation that, “[i]n
order to decide whether the Court of Appeals erred in concluding that all plaintiff’s claims were time barred, this
court must determine, as one part of that inquiry, at what
point the action is deemed to have been commenced. ORS
108 Sause and Schnitzer
12.020 governs the commencement of an action for purposes
of statutes of limitations. Therefore, the question is one of
statutory interpretation. In construing a statute, this court
is responsible for identifying the correct interpretation,
whether or not asserted by the parties.”). See also Miller v.
Water Wonderland Improvement District,
326 Or 306, 309
n 3 (1998) (observing that “the parties may not prevent a
court from noticing and invoking an applicable statute by
relying only on other sources of law”). The timing of entry
of judgment is not a mere technicality—it determines when
the judgment is final and enforceable. ORS 18.082(1);3 see
also Patrick v. Otteman,
158 Or App 175, 183,
974 P2d 217,
rev den,
328 Or 594 (1999) (a judgment is ineffective until it
is entered in the court register). SB 512 is clear with respect
to its effective date. And, here, the judgments establishing
parentage were entered after that effective date. SB 512
applies.
SB 512 was not a surprise. The bill itself modernized Oregon’s outdated paternity and artificial insemination statutes, making them inclusive and gender neutral.
There was no testimony in opposition to the bill. It easily
passed, and its effective date was known. SB 512 is clearly
written. It treats male and female gamete donors the same
with respect to children born using donated reproductive
cells. Moreover, SB 512 accomplishes by its express terms
what Oregon’s Equal Rights Amendment, Or Const, Art I,
§ 46, already required—equal treatment of male and female
gamete donors under the law. In other words, SB 512 made
clear what the Oregon Constitution already required in the
context of ART—that ORS 109.239 be applied to afford the
3
ORS 18.082(1) provides:
“Upon entry of a judgment, the judgment:
“(a) Becomes the exclusive statement of the court’s decision in the case
and governs the rights and obligations of the parties that are subject to the
judgment;
“(b) May be enforced in the manner provided by law;
“(c) May be appealed in the manner provided by law;
“(d) Acts as official notice of the court’s decision; and
“(e) May be set aside or modified only by the court rendering the judgment or by another court or tribunal with the same or greater authority than
the court rendering the judgment.”
Cite as 312 Or App 71 (2021) 109
same rights to a man who is a child’s legal parent against
parental claims of a female gamete donor as it affords to a
woman who is a child’s legal parent against parental claims
of a male gamete donor.
I agree with the trial court, the majority, and the
dissent when they conclude that genetics alone do not confer
parental rights. I do not agree that a man or woman who
donates reproductive cells for use in ART procedures has the
same right to develop a parental relationship with any child
born using one of those cells as a man or woman who provides reproductive cells through sexual intercourse would
have. And, more importantly, the legislature has expressed
its intent through Oregon’s parentage and ART laws that
those two situations are different as a matter of law.
The relationships that the law defines for those who
procreate through sexual intercourse—the vast majority of
people using the “old-fashioned” method of family planning—
has developed over the centuries through case law and statutory law generally tracking societal values and norms.
Those using ART procedures to create children—a clear
minority of the population using the “clinical” method of
family planning—generally do so because they are otherwise unable to procreate through sexual intercourse for reasons ranging from infertility in an opposite sex partnership
or marriage to biologic impossibility in a same-sex partnership or marriage to a person desiring to parent without a partner or spouse. Thoughtful planning is key and the
laws governing ART protect those who create their families
using ART from claims of third parties who are otherwise
strangers to the family. It does so for much the same reason
the law presumes that a child born to a married woman is
also the child of her spouse—to preserve intact families. I
respectfully suggest that the reason existing law provides
a rebuttable presumption when a child is conceived through
sexual intercourse is that the intent of the parties is not
always clear because sexual intercourse serves purposes in
addition to procreation. The intent of the parties using ART
procedures is much clearer. ORS 109.239, as amended by SB
512 in 2017, does not “elevate the rights of healthy cisgender
heterosexuals over marginalized groups” as suggested by
the dissent. 312 Or App at 115 (Kamins, J., dissenting). The
110 Sause and Schnitzer
statute protects the ability to thoughtfully engage in family planning for those most likely to use ART procedures—
members of the LGBTQ+4 communities and those otherwise
struggling with fertility challenges.
Most of the cases on which my colleagues rely for the
“right to grasp” for parental rights do not concern ART. They
concern children conceived through sexual intercourse, and
they are distinguishable for that reason. And, unlike the
sperm donor in McIntyre v. Crouch, 98 Or App 462,
780 P2d
239, rev den,
308 Or 593 (1989), cert den,
495 US 905 (1990),
Sause does not expressly claim that she donated her eggs
in consideration of Schnitzer’s promise to allow her to have
parental rights with respect to any offspring born using her
eggs. Moreover, in my view, the plurality in McIntyre was
incorrect when it concluded that the prior version of ORS
109.239 was not a bar to the sperm donor’s claim for parentage. The dissenting judge in McIntyre would correctly have
applied ORS 109.239 as an absolute bar to the sperm donor’s
claim of parentage without violating any constitutional due
process rights. In that dissenting opinion, Presiding Judge
Richardson explained that the prior version of ORS 109.239
at issue in McIntyre was a “substantive regulation in which
the governmental interest is great. Its effect is not limited
to parental rights and obligations. … The statutes contemplate that the ultimate relationship, or absence of one, must
be defined before the child is conceived in order to facilitate informed decisions about whether to donate and to conceive.”
98 Or App at 477 (Richardson, P. J., dissenting). That
is most certainly as true today of ORS 109.239, which now
includes ART procedures in addition to artificial insemination, as it was in 1989 when ORS 109.239 included only
artificial insemination. I would adopt the approach of the
dissenting opinion in McIntyre to conclude that Sause has no
parental rights as a gamete donor.
It is worth noting that Sause signed a contract
relinquishing any claim she might arguably have in “the
embryos and offspring that might result from the use of
4
The acronym stands for Lesbian, Gay, Bisexual, Transgender, Queer, and
other gender identities and sexual orientations not specifically covered by the
first five initials.
Cite as 312 Or App 71 (2021) 111
[her] eggs” for in vitro fertilization. That she and Schnitzer
had conversations that were inconsistent with that agreement has no bearing on the outcome of this case, in part,
because the parol evidence rule, ORS 41.740, would prevent consideration of some of those conversations, Lyons v.
Beeman,
311 Or App 560, 569-70,
494 P3d 358 (2021), and,
more importantly, because ORS 109.239 bars Sause’s claim
of parentage ab initio. If a “genetic link” somehow trumps
Sause’s contractual agreement and provides her with a constitutional “right to grasp” for a chance to be designated the
child’s legal parent, it is difficult to imagine why anyone
thoughtfully planning a family would do so using donated
reproductive cells. Of course, SB 512 is now clearly in place,
and it is more than just interesting. It is the law and it does
not permit such an unwieldy result.
This case is not nearly as complex as the factual
context presented by the parties would suggest. Schnitzer
and Sause were romantically involved, and they engaged in
a sexually intimate relationship. They also entered into a
contract by which Sause gave up any parental rights she
might arguably have with respect to any male child born
using embryos created through the clinical fusion of her
reproductive cells with those of Schnitzer. Setting aside
the curiosity of why one would condition their intent to
assert parental rights based solely on the gender assigned
to a child at birth, or why one might wish to be known as
a mother but have no corresponding legal obligation to the
child, and ignoring the sexual relationship that the parties
apparently had but that did not result in the conception of
a child, Schnitzer and Sause were simply gamete donors. In
fact, there is nothing terribly complex about that. Neither
had any parental rights when S was born. Schnitzer’s status as S’s legal parent came from his agreement with the
Gibeauts, not from his genetic link to S. He is a man who is
also S’s legal parent. ORS 109.239 bars any claim by Sause
as a gamete donor for parental rights.
I agree that the case should be remanded for entry
of a judgment declaring that Schnitzer is S’s legal parent
and that Sause is not S’s legal parent. Accordingly, I concur in the result reached by the majority, but not in its
reasoning.
112 Sause and Schnitzer
KAMINS, J., dissenting.
The constitutional interest of parents in the care
of their children “is perhaps the oldest of the fundamental
liberty interests.” Troxel v. Granville, 530 US 57, 65,
120
S Ct 2054,
147 L Ed 2d 49 (2000). I respectfully dissent
from the majority opinion because, in my view, Sause made
a sufficient showing that she possesses a fundamental liberty interest in the parenting of S, the child created with
her and her then-romantic partner’s genetic material. Sause
was assured a role in S’s life, and as soon as that role was
put in jeopardy, Sause took swift action to protect her rights.
As a preliminary matter, I agree with the majority
that, under the Due Process Clause of the federal constitution, Sause’s “mere biological connection to S does not confer parental rights,” 312 Or App at 93, but rather “Sause’s
biological relationship to S provided a link that, under certain circumstances could form a basis for acquiring a legal,
parental relationship,” id. at 85. That link, as described by
the Supreme Court, offers the genetic parent “an opportunity
that no other [person] possesses to develop a relationship
with his offspring.” Lehr v. Robertson, 463 US 248, 262,
103
S Ct 2985,
77 L Ed 2d 614 (1983). If a genetic parent “grasps
that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the
parent-child relationship and make uniquely valuable contributions to the child’s development.”
Id.
I part ways with the majority in the conclusion that
Sause did not grasp those rights. The majority asserts that,
because Sause neither demonstrated a “full commitment” to
parenting S nor established that her donation of eggs was
motivated by reliance on an agreement that she would be
S’s legal mother, she did not establish a constitutionally protected parental right. 312 Or App at 102-03 (citing Lehr, 463
US at 261). I disagree with both points.
First, the interactions between Sause and Schnitzer
are critical to determining the amount of grasping that
would have been required to secure parental rights. Had
the two agreed that Sause would be S’s mother, but also
agreed that Sause would be stationed on a nine-month-long
research mission in Antarctica during the surrogacy, one
Cite as 312 Or App 71 (2021) 113
would not anticipate Sause would do much grasping during
that time. And here, the conversations that the majority
characterizes as “seemingly vague discussions,” id. at 103,
were, as the trial court noted (after a nine-day bench trial),
sufficient to show that Schnitzer and Sause—two people in
a romantic relationship—intended that Sause would play
a maternal role in S’s life. Sause “mad[e] plans for a nursery in her home in anticipation of playing a visiting parent
role” and texted Schnitzer that she had told the painter that
her “hearts [sic] set on boys” when the painter commented
on her choice of blue walls for the nursery. Schnitzer asked
Sause if she was “going to be ready for a baby” when she
was babysitting a friend’s child, and he told her “yo[u] are
always in denial about your maternal instincts…this is our
baby” when Sause expressed surprise that she “[could]n’t
stop thinking about cribs.”
In addition to communicating his hope and plan to
Sause that she would play a maternal role with S, Schnitzer
communicated that plan to Sause’s parents as well, texting
them a picture of an ultrasound image of S and calling S
“Your grandson!” He further shared that he had told the
surrogate about “the role [Schnitzer] hoped that [Sause’s
parents] will play” in S’s life. Schnitzer gave Sause’s parents
the “blow-by-blow” of the pregnancy, invited Sause and her
parents to an ultrasound appointment, and, on the day of
S’s birth, Schnitzer “sent multiple photos from the hospital”
to Sause and her parents. They all were admitted to the
birthing room and held S on the day of his birth. Up until
Schnitzer’s unilateral refusal to allow Sause to see S, Sause,
like the mother stationed in Antarctica, had no reason to
think that she needed to take any action to acquire parental
rights.
Second, I disagree with the majority’s conclusion
that Sause did not rely on that shared intent when she
donated her eggs. We have recognized that it would violate
the Due Process Clause to deny parental rights to a person donating gametes who has done so in reliance on an
understanding that he or she would have the rights and
responsibilities of parenthood. McIntyre v. Crouch, 98 Or
App 462, 472,
780 P2d 239, rev den,
308 Or 593 (1989), cert
den,
495 US 905 (1990). Like the petitioner in McIntyre,
114 Sause and Schnitzer
Sause trusted the conversations that she had with the other
genetic parent as part of the decision to donate her eggs.1
Here, she trusted Schnitzer’s repeated assertions that she
would play a maternal role in S’s life. Moreover, S was being
carried by a surrogate, limiting any practical role for Sause
in the pregnancy. Nevertheless, Sause did execute an agreement with Schnitzer that (albeit far from a model of clarity)
clearly deviated from an anonymous donor agreement in a
critical respect: it contemplated a role for Sause in S’s life.
In light of the nature of the pregnancy and the understanding between the couple that Sause’s role would be limited,
it is difficult to imagine what additional steps Sause should
have or even could have taken prior to S’s birth. And when
the couple’s mutual understanding changed—immediately
following the birth—Sause acted promptly by attempting to
grasp at the opportunity for parental rights through retaining counsel and initiating legal action.
The majority concludes that Sause’s action in filing
the suit does not evince her efforts to grasp at parental rights
because our review is limited to actions that occurred before
she filed suit. 312 Or App at 100. I disagree on that point as
well: in contrast to the case law that the majority relies on
for that assertion, here, filing suit to establish her parental
rights was one of the first actions available to Sause. Less
than three months after S’s birth, Sause moved to intervene in the declaratory judgment of parentage action that
Schnitzer filed immediately after S’s birth, and, soon after
that intervention failed, she filed the suit that is the subject
of this appeal. Cf. Lehr, 463 US 248 (biological father filed
suit to block adoption of child by mother’s husband when
child was over two years old); Quilloin v. Walcott,
434 US
246,
98 S Ct 549,
54 L Ed 2d 511 (1978) (biological father
filed suit to block adoption of child by mother’s husband
when child was 11 years old).
What seems to animate a contrary result in this
case is that Sause did not seek a “full commitment” to the
1
Although, as the majority correctly points out, the trial court found
that Sause did not have her eggs harvested for purposes of providing them to
Schnitzer, 312 Or App at 103, the trial court also credited her testimony that
she donated her eggs to Schnitzer based on their shared understanding that she
would be “actively involved” in S’s life.
Cite as 312 Or App 71 (2021) 115
role of parent because she sought a more limited role in S’s
life. 312 Or App at 101-03. We have not had cause to determine whether a person must grasp for the full rights and
responsibilities of parenthood in order to be able to secure
those rights. I question, however, whether it is our role to
determine who has a constitutional right to parent based on
a judicial evaluation of the type of parent they want to be.
As the Lehr Court recognized, “[t]he intangible fibers that
connect parent and child have infinite variety.”
463 US at
256. That variety has only multiplied as parents have woven
those fibers in ever-increasing family arrangements in the
forty years since Lehr was decided. Whether the way someone chooses to make a family creates a constitutional right
cannot be as simple as whether someone intends to be a fulltime parent or not a parent at all.
The inquiry instead hinges on whether an individual
who provided genetic material by whatever means waived
their constitutional rights, not whether those rights existed
in the first place. Genetic parents of all types have constitutionally protected rights, and there is no constitutional language or case law that supports the concurrence’s assertion
that the constitution provides different levels of protection
for people using ART and people using sexual reproduction.
312 Or App at 109-10 (Mooney, J., specially concurring). See
e.g., McIntyre, 98 Or App at 472 (“The Due Process Clause can
afford no different protection to petitioner as the biological
father because the child was conceived by artificial insemination rather than by sexual intercourse [if he provided his
genetic material for the purpose of creating offspring together
with the other parent].”). Affording sexual intercourse—
often engaged in not for the purpose of reproduction—
greater constitutional protection than the use of ART would
inevitably elevate the rights of healthy cisgender heterosexuals over marginalized groups and people struggling to
conceive.
As we have previously stated, a well drafted donor
agreement protects the intended parents of a child because
it “expressly and effectively waive[s] any entitlement to
assert parental rights” on the part of the donor. Leckie and
Voorhies, 128 Or App 289, 293,
875 P2d 521 (1994). And that
waiver, not the method by which a person’s gametes are
116 Sause and Schnitzer
used in the creation of a child, is the mechanism that ORS
109.239 enforces. If, as the concurrence appears to propose,
the statute categorically removes protection for the parental relationship of individuals who conceive through ART by
excluding them from the Lehr line of cases, it would not pass
constitutional muster.2
Because the evidence reflects that Sause grasped at
the opportunity to be S’s mother, I respectfully dissent.
2
Because I conclude that Sause established a constitutionally protected
parental right, I would reach the issue of whether Sause waived that right by
signing the Nudelman Agreement. As to that issue, I would affirm the trial
court because that agreement does not reflect an unambiguous waiver of Sause’s
parental rights.
