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.
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 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.
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.
"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 P.3d 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. 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 her significant other" and that "she understands that contracts will need to be signed." Sause had her eggs retrieved on May 21, 2014.
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 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 oft-stated 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:
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 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:
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
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 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 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 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.
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."
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:
(Emphasis in original.) The trial court's general judgment incorporated its written findings, conclusions, and rulings:
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 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
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 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
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.
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;
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
Turning to the case law, both parties rely for different purposes on our plurality decision in McIntyre v. Crouch, 98 Or.App. 462, 780 P.2d 239, rev. den., 308 Or. 593, 784 P.2d 1100 (1989), cert. den., 495 U.S. 905, 110 S.Ct. 1924, 109 L.Ed.2d 288 (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, 780 P.2d 239. 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 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, 780 P.2d 239. 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, 780 P.2d 239. 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, 780 P.2d 239. 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, 780 P.2d 239.
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, 780 P.2d 239 (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), 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
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, 780 P.2d 239 (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) 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.
Lehr, 463 U.S. at 261-62, 103 S.Ct. 2985 (internal brackets, quotation marks, and citations omitted). We discuss Lehr at greater length below, 312 Or. App. at 95-96, 493 P.3d at 1084-85. 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 P.3d 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, 57 P.3d 583. 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, 57 P.3d 583. The father disputed the custody award on appeal. Id. at 543, 57 P.3d 583. 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, 57 P.3d 583. 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, 57 P.3d 583.
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, 57 P.3d 583. 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, 57 P.3d 583. And, after a recitation and brief discussion of several United States Supreme Court cases, we gleaned the following:
Id. at 548, 57 P.3d 583 (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, 57 P.3d 583 (discussing whether, in the words of Lehr, 463 U.S. at 262, 103 S.Ct. 2985, 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
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:
(Emphasis in original.)
Schnitzer argues that the trial court misapplied the applicable case law in concluding that Sause had established 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 U.S. at 250, 103 S.Ct. 2985. 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, 103 S.Ct. 2985. 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
Id. at 261, 103 S.Ct. 2985 (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, 103 S.Ct. 2985 (White, J., dissenting). The father attempted, 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, 103 S.Ct. 2985. 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, 103 S.Ct. 2985, 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 U.S. 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 U.S. at 247, 98 S.Ct. 549. 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, 98 S.Ct. 549.
Finally, the trial court considered Stanley v. Illinois, 405 U.S. 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, 92 S.Ct. 1208. The mother died, and the children became wards of the state and were placed with court-appointed 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, 92 S.Ct. 1208.
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."
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, 57 P.3d 583. We described that relationship as follows:
184 Or. App. at 550, 57 P.3d 583.
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, 57 P.3d 583. We went on to state that
Id. at 549-50, 57 P.3d 583 (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, 57 P.3d 583, 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 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 U.S. at 261-62, 103 S.Ct. 2985 (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, 103 S.Ct. 2985 (considering biological father's relationship with and efforts in regard to child before seeking to establish legal ties); Quilloin, 434 U.S. at 255-56, 98 S.Ct. 549 (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, 780 P.2d 239 (conditioning biological father's claim on substantiation of assertion that he had donated sperm in 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.
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 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 U.S. at 262, 103 S.Ct. 2985. 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, 103 S.Ct. 2985. 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,
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
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 U.S. at 261, 103 S.Ct. 2985, 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.
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 P.3d 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.
Kamins, J., dissenting.
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),
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:
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 donated
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 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
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, 493 P.3d at 1080. 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 P.2d 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 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, 951 P.2d 720 (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);
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 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
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, 493 P.3d at 1095 (Kamins, J., dissenting). The statute protects the ability to thoughtfully engage in family planning for those most likely to use ART procedures—members of the LGBTQ+
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 P.2d 239, rev. den., 308 Or. 593, 784 P.2d 1100 (1989), cert. den., 495 U.S. 905, 110 S.Ct. 1924, 109 L.Ed.2d 288 (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, 780 P.2d 239 (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 [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,
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.
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 U.S. 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, 493 P.3d at 1083, 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, 493 P.3d at 1079. 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 U.S. 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, 493 P.3d at 1088-89 (citing Lehr, 463 U.S. at 261, 103 S.Ct. 2985). 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 would not anticipate Sause would do much
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 P.2d 239, rev. den., 308 Or. 593, 784 P.2d 1100 (1989), cert. den., 495 U.S. 905, 110 S.Ct. 1924, 109 L.Ed.2d 288 (1990). Like the petitioner in McIntyre, Sause trusted the conversations that she had with the other genetic parent as part of the decision to donate her eggs.
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, 493 P.3d at 1087. 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 U.S. 248, 103 S.Ct. 2985 (biological father filed suit to block adoption of child by mother's husband when child was over two years old); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L. Ed. 2d 511 (1978) (biological father filed suit
What seems to animate a contrary result in this case is that Sause did not seek a "full commitment" to the role of parent because she sought a more limited role in S's life. 312 Or. App. at 101-03, 493 P.3d at 1087-89. 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 U.S. at 256, 103 S.Ct. 2985. 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 full-time 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, 493 P.3d at 1091-92 (Mooney, J., specially concurring). See e.g., McIntyre, 98 Or. App. at 472, 780 P.2d 239 ("The Due Process Clause can afford no different protection to petitioner as the biological father because the child was conceived by artificial insemination rather 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 P.2d 521 (1994). And that waiver, not the method by which a person's gametes are 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.
Because the evidence reflects that Sause grasped at the opportunity to be S's mother, I respectfully dissent.
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: