Sause and Schnitzer ( 2023 )

No. 33 November 28, 2023 573
33
371 Orand Schnitzer
Sause
2023 November 28, 2023
IN THE SUPREME COURT OF THE
STATE OF OREGON
In the Matter of the Parentage of S.D.S.,
a Minor Child.
Cory Noel SAUSE,
Petitioner on Review,
and
Jordan Director SCHNITZER,
Respondent on Review.
In the Matter of the Parentage of S.D.S.,
a Minor Child.
Jordan Director SCHNITZER,
Respondent on Review,
and
Cassondra Lynn GIBEAUT
and Charles Burett Gibeaut,
Petitioners below,
and
Cory Noel SAUSE,
Petitioner on Review,
and
Dale C. SAUSE
and Heidi N. Sause
Respondents below.
(CC 16DR18690; 16DR19349) (CA A167020) (SC S068780)
On review from the Court of Appeals.*
Argued and submitted May 3, 2022.
C. Robert Steringer, Harrang Long Gary Rudnick P.C.,
Portland, argued the cause and filed the briefs for petitioner
on review. Also on the briefs were James E. Mountain and
Erica R. Tatoian, Harrang Long Gary Rudnick, and Thomas
McDermott and Jay Beattie, Lindsay Hart, LLP, Portland.
______________
** On appeal from the Multnomah County Circuit Court, Amy Holmes Hehn,
Judge. 312 Or App 71, 493 P3d 1071 (2021).
574 Sause and Schnitzer
James N. Westwood, Stoel Rives LLP, Portland, argued
the cause and filed the brief for respondent on review. Also
on the brief was Crystal S. Chase, Stoel Rives LLP.
Robin E. Pope, Portland, filed the brief for amici curiae
Academy of Adoption and Assisted Reproduction Attorneys,
RESOLVE: The National Infertility Association, and The
American Society for Reproductive Medicine.
Before Flynn, Chief Justice, and Duncan, Garrett, Bushong,
and James, Justices, and Linder and Balmer, Senior Judges,
Justices pro tempore.**
BALMER, S.J.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for
further proceedings.
Bushong, J., dissented and filed an opinion, in which
Flynn, C.J., and Linder, S.J., joined. Linder, S.J., dissented
and filed an opinion, in which Bushong, J., joined.
______________
** Walters, J., retired December 31, 2022, and did not participate in the deci-
sion of this case. Nelson, J., resigned February 25, 2023, and did not participate
in the decision of this case. DeHoog and Masih, JJ., did not participate in the
consideration or decision of this case.
Cite as 371 Or 573 (2023) 575
576 Sause and Schnitzer
BALMER, S.J.
This case concerns the parentage of a child con-
ceived through assisted reproductive technology (ART).
Schnitzer, one party in this case, wanted to have a son.
Because he was single, he planned to use his own sperm,
an egg donor, and a gestational carrier. Sause, the other
party, contributed her eggs to Schnitzer’s effort. Through
the ART process, their gametes were combined, and a
gestational carrier gave birth to a boy, S. Afterward, the
gestational carrier, her spouse, and Schnitzer agreed that
Schnitzer—and not the gestational carrier or her spouse—
was S’s intended parent, and a declaratory judgment was
entered to that effect. Schnitzer and Sause, however, dis-
agreed about whether Sause was also S’s parent and about
whether Schnitzer could prevent Sause from having a
relationship with S. This case presents the questions of
whether Sause is S’s legal parent as well as what rights she
may have with respect to S, parental or otherwise. The trial
court concluded that Sause was S’s legal parent based on
her undisputed genetic connection to S; a divided Court of
Appeals reversed. Sause and Schnitzer, 312 Or App 71, 104,
493 P3d 1071 (2021).
For the reasons explained below, we disagree with
the trial court and conclude that, in the circumstances of
this case, Sause’s genetic connection to S does not establish
her legal parentage of S. We also conclude, however, that
Sause may have contracted with Schnitzer for certain non-
parental rights with respect to S. The extent of those rights
is an issue that the trial court did not reach due to its con-
clusion that Sause was a parent. We therefore reverse the
judgment of the trial court and remand for further proceed-
ings in that court to declare the legal parentage of S and
to determine the extent of Sause’s nonparental rights with
respect to S.
I. BACKGROUND
The trial court’s express findings of fact are undis-
puted on appeal. We present those facts, supplemented by
the record and procedural history of this case.
Cite as 371 Or 573 (2023) 577
A. Historical Facts
Schnitzer, a divorced father of two daughters, wanted
a son, and he turned to ART to achieve that goal. ART com-
prises a wide range of fertility treatments, including gamete
donation, in vitro fertilization, and gestational surrogacy.
See ORS 109.239(1). ART treatments are relatively common:
In Oregon in 2020, 804 infants (1.9 percent of those born that
year) had been conceived using ART. Sunderam et al, State-
Specific Assisted Reproductive Technology Surveillance,
United States: 2020 Data Brief 9, 13 (Centers for Disease
Control and Prevention, U.S. Dept. of Health and Human
Services, ed., 2022). ART is often used by families expe-
riencing infertility, people with inheritable genetic dis-
eases, single parents, and members of the LGBTQ com-
munity, among others. See Myrisha S. Lewis, Normalizing
Reproductive Genetic Innovation, 74 Admin L Rev 481, 488-
94 (2022); Anne-Kristin Kuhnt & Jasmin Passet-Wittig,
Families Formed Through Assisted Reproductive Technology:
Causes, Experiences, and Consequences in an International
Context, 14 Reprod BioMed & Soc’y Online 289, 289 (2022).
Reproduction through ART often involves many parties,
potentially including sperm or egg donors, a gestational/
traditional surrogate and their spouse, the child or children,
and the “commissioning” or “intended” parent or parents,
along with various institutions and medical professionals.
See Ayesha Rasheed, Confronting Problematic Legal Fictions
in Gestational Surrogacy, 24 J Health Care L & Pol’y 179,
183-84 (2021).
Schnitzer first tried to use ART in 2013 and 2014,
using an anonymous egg donor, his own sperm, and a ges-
tational carrier, but those efforts were unsuccessful. In
January 2014, Schnitzer met Sause, and they developed an
intimate relationship. Schnitzer continued trying to have a
son through ART, again using an anonymous egg donor and
his own sperm. During the same period, Sause decided to
have her own eggs retrieved and stored for fertility preser-
vation purposes unrelated to Schnitzer’s goals. Sause began
working with Oregon Health & Science University’s (OHSU)
fertility clinic—the same clinic that Schnitzer was using—
to have her eggs preserved for her own future use.
578 Sause and Schnitzer
In February 2014, Schnitzer told Sause about his
attempts to produce a son. In April 2014, after another
unsuccessful ART attempt by Schnitzer using an anony-
mous egg donor, Schnitzer and Sause discussed the possi-
bility of Schnitzer using Sause’s eggs rather than those of
an anonymous donor. Schnitzer said that he would only con-
sider accepting Sause’s eggs if she signed the same forms
that were routinely used for anonymous gamete donors by
OHSU, despite Sause clearly not being an anonymous donor.
Nevertheless, Sause signed the forms. Schnitzer had gone
through a prior dissolution proceeding that had been “high
conflict” and “unpleasant” for him, and given the difficulties
that he had had in that case, it was important to Schnitzer
to have sole legal custody of any child produced through
ART. Schnitzer only wanted a son, so they agreed that, if
they combined their gametes, Schnitzer would be entitled
to any male embryos, while Sause would keep any female
embryos.
Sause testified that, at the time of those discus-
sions, she “couldn’t wrap [her] head around” why Schnitzer
should be “forced to pick an anonymous donor, when a child
could know a mother.” “I’ve got eggs. Why not?” she thought.
Sause testified that their conversations contemplated that
Schnitzer would have sole custody and control over the son,
but that Sause would “be known as a mother” and “could be
actively involved” in his life:
“[We] sort of discussed in concept, and I was OK with, the
notion of, he made it very clear, he wanted to be raising the
child, he wanted sole physical custody, the boy would live
with him, and he would pick religions, or have an influ-
ence over playing the saxophone or whatever, but I would
always be known, it was sort of in our minds a win-win,
because I was able to be known as a mother. I could be
actively involved.”
In Sause’s understanding, she would be a parent, but the
panoply of her parental rights would be limited. Consistent
with those expectations, Sause texted her sister around that
time that she “[t]old [Schnitzer] I would sign open adoption
type documents as long as my name[’]s on [the] birth cert[if-
icate] and my identity isn’t kept from the child * * * and
Cite as 371 Or 573 (2023) 579
I’m/my family has access to the kid.”1 Sause began making
plans for a nursery in her home, the trial court found, “in
anticipation of playing a visiting parent role.”
Sause had her eggs retrieved in May 2014. She
spoke with her OHSU physician about her plan to have
her eggs joined with Schnitzer’s sperm to conceive a child.
As part of that plan, the trial court found, Sause intended
Schnitzer to “have legal custody of any male embryos and
offspring produced from the ART process they engaged in
together.” The court further found, however, that Sause did
not intend “to waive all legal rights to male offspring [or] to
grant Schnitzer the power to completely exclude her and her
family from any role in the child’s life.”
Before the parties’ gametes were combined, Schnitzer
asked his business attorney, Nudelman, to draft an agree-
ment reflecting the understanding between Schnitzer and
Sause (the “Nudelman agreement”). The Nudelman agree-
ment was discussed, altered at the request of Sause, and
signed. The Nudelman agreement reads, in part:
“1. Designation of Embryos. Notwithstanding any-
thing to the contrary in the [Directed Sperm Donor Consent
Form signed by Schnitzer] or [the Informed Consent for
Egg (Oocyte) Donation signed by Sause], 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 con-
firms and acknowledges that Schnitzer has full jurisdiction
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. * * *
“2. Notice of birth/Post-birth contact and communica-
tion with child. In the event of a birth of a male child from
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. * * * The parties agree that upon
mutual written agreement of the parties, and upon receipt
1
It is unclear what type of documents Sause anticipated signing, as adop-
tions in Oregon require amending and replacing the birth certificate to reflect
the adoptive family, and the original birth certificate is sealed. ORS 432.223;
ORS 432.245. In other words, Sause could not be listed on the birth certificate if
S was adopted by someone else.
580 Sause and Schnitzer
of advice, counsel and approval of third-party independent
medical and psychological consultants, any offspring pro-
duced 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 fami-
lies), as the case may be, may have in [sic] active role in the
life of the child.”
In other words, Sause agreed to relinquish any rights over
any male embryos and future disposition of those embryos
created from her eggs with Schnitzer. Notably, although the
text of the agreement provides that Schnitzer released any
“claim” to female offspring, Sause’s relinquishment regard-
ing male embryos does not use the term “claim”—merely
referring to “custodial rights” over the embryos—and does
not refer to offspring at all. The parties have disputed the
significance of that difference: Sause claims that that omis-
sion was an intentional reflection of their agreement that she
could play a mothering role as to male offspring; Schnitzer
claims that the omission was accidental. In either case, as
Schnitzer emphasizes, Sause agreed that her ability to be
introduced to any male offspring (and Schnitzer’s ability to
be introduced to any female offspring) was conditioned on
the “mutual written agreement of the parties” and advice
from third-party “medical and psychological consultants.”
In addition to the Nudelman agreement, Sause also
executed a standard “Informed Consent for Egg (Oocyte)
Donation” form used by OHSU, which reads, in part:
“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.”
That form became an attached exhibit to the Nudelman
agreement.
Cite as 371 Or 573 (2023) 581
After Sause signed the Nudelman agreement and
informed consent form, Sause met with a social worker to
discuss the process of being an egg donor for Schnitzer.
Sause testified about that discussion, and the trial court
found that Sause “was very willing to gift her eggs and any
male embryos into Schnitzer’s sole legal control, and that
she was completely agreeable to Schnitzer having full legal
custody of male offspring,” but that “she never assumed that
she would have no role whatsoever in the male offspring’s
life, [or] that she would not be known as the boy’s mother[.]”
In June 2014, three viable male embryos were cre-
ated from Schnitzer’s sperm and Sause’s eggs. No female
embryos were created. In February 2015, Schnitzer entered
into an agreement with a gestational carrier and her hus-
band. The gestational carrier and her husband agreed to
relinquish custody over and parental rights to any child
created from Schnitzer’s embryos. Sause was not invited to
become a party to that agreement, nor is it entirely clear
whether Sause knew of the agreement at the time that it
was executed. One of the embryos was transferred to the
gestational carrier, who became pregnant.
During the pregnancy, Schnitzer and Sause’s
relationship began to cool, at least on Sause’s side. Sause
became more certain that “they were not destined to con-
tinue in a long-term romantic relationship.” Schnitzer, how-
ever, remained enamored with Sause and hoped they would
marry and raise the expected child together. They continued
to communicate about Sause’s role in the expected child’s
life. Schnitzer referred to the fetus as “our baby” in text
messages to Sause. He sent text messages to Sause’s mother
such as an ultrasound image of the fetus with the words,
“Your grandson!” Sause’s mother testified that Schnitzer
also attempted to enlist Sause’s parents’ help in convincing
Sause to marry him and coparent the child.
The gestational carrier gave birth to S on December 22,
2015. Sause and her parents visited the birthing room, and
each of them held S. Schnitzer decided to leave S in the ges-
tational carrier’s care for a short time after S’s birth. Among
the reasons for that decision was that Schnitzer had not yet
582 Sause and Schnitzer
told his daughters that he was having another child through
ART.
When Sause learned that Schnitzer planned to leave
S with the gestational carrier for a time, Sause mistakenly
interpreted that conduct as Schnitzer stepping away from or
abandoning S. Sause sent a series of hostile text messages
to Schnitzer that he found highly offensive, including, “You
can’t have a baby then pawn him off on the surrogate b/c
you don’t want to take care of him,” and, “This is a child
not a car or a dog that you can take back or hide someplace
till you decide you want him. I signed up to give you a child
not a random surrogate.” She also wrote, “Who has a baby
then decides they don’t want it? Wtf? He needs his father not
some random oven who’s not biologically related to him.”
The trial court found that, at that point, and after
receiving those messages, Schnitzer decided to cut Sause
and her family out of S’s life. In a call with Sause’s parents,
Schnitzer stated, “He’s not your grandson.” Schnitzer stated
that he “would decide what their role in [S’s] life would be”
and that “he might one day introduce them to S as godpar-
ents.” Schnitzer later stopped communicating with Sause’s
parents.
B. Procedural History
The day after S was born, Schnitzer petitioned for
a general declaratory judgment of parentage in Multnomah
County Circuit Court. Schnitzer v. Gibeaut, Case No.
15DR19365. The gestational carrier and her husband were
named as respondents; Sause was not named in the action.
The petition alleged that Schnitzer and the respondents had
entered a surrogacy contract, “with Petitioner becoming the
sole and exclusive legal parent of the child with all parental
rights and responsibility.” The petition also alleged that the
embryo used to create S was “created with * * * Schnitzer’s
sperm and donor eggs, which were the exclusive property of
Petitioner.” That statement was supported by a declaration
from an OHSU fertility physician, who stated that “[e]ggs
were retrieved from a donor,” and the embryos were created
“from donor eggs and sperm belonging to * * * Schnitzer.” The
petition further alleged that Schnitzer and the respondents
Cite as 371 Or 573 (2023) 583
all desired Schnitzer “to be named as the sole and exclusive
legal parent of [S] from the time of the child’s birth so the
child’s birth records will accurately state the child’s genetic
and intended parentage.” Schnitzer requested a declaration
that he was “the sole and exclusive legal parent of this child.”
A stipulated judgment was signed by the parties
and the judge on December 28, 2015, granting the relief
requested by Schnitzer. The judgment stated that all par-
ties “believe it is in the best interests of [S] that the child’s
birth certificate accurately reflects the child’s genetic and
intended parentage.” The judgment named Schnitzer “the
sole and exclusive legal parent of [S].” The judgment also
named Schnitzer “the sole genetic parent of [S].” The court
ordered the state registrar to issue a new or amended birth
certificate naming Schnitzer as S’s sole and exclusive par-
ent. See ORS 432.245.
That case was closed, but, two months later, on
March 3, 2016, Sause retained counsel and moved to inter-
vene in the case. Sause alleged that she was the “biologi-
cal mother” of S and, therefore, an indispensable party to
the proceeding. Sause’s motion described her expectations
pursuant to her agreement with Schnitzer. Specifically,
Sause cited the first paragraph of the Nudelman agreement,
regarding the division of the embryos. Sause asserted that,
in that paragraph, she had waived her rights to any male
embryos, but not any male offspring. Sause did not cite the
second paragraph, which conditioned her ability to meet
that offspring on Schnitzer’s consent and third-party advice.
Sause alleged that Schnitzer misled the court into conclud-
ing that S’s mother was anonymous and had no parental
interest in the child.
The court denied Sause’s motion to intervene by a
brief letter opinion on August 5, 2016, specifying that “[t]his
ruling is applicable to the requested intervention in [Case
No.] 15DR19365 only and is neither determinative nor
predictive of other litigation between Mr. Schnitzer and
Ms. Sause, if any.”
Sause filed this action on September 13, 2016, peti-
tioning the court for a filiation determination or, alternatively,
584 Sause and Schnitzer
a declaratory judgment establishing that she is S’s parent
alongside Schnitzer, and that she has parental rights with
respect to S. Sause v. Schnitzer, Case No. 16DR18690. Sause
alleged that she “is the mother” of S, and “has and continues
to agree to assume all rights and obligations with respect
to the child.” Along with a determination that she is S’s
mother, Sause requested an order to amend or replace S’s
birth certificate, and an order providing her with parenting
time.
Schnitzer answered that petition and simultane-
ously filed a petition (together with the gestational surro-
gate and her husband) for another declaratory judgment
establishing Schnitzer as S’s sole legal parent. Schnitzer v.
Sause, Case No. 16DR19349. That petition did not dispute
that, as a factual matter, Sause was genetically related to S,
because he was conceived using her egg. As a legal matter,
however, Schnitzer asserted that, “[u]nder Oregon law, [the
gestational surrogate] was presumed to be the child’s legal
mother at birth, and [her husband] was presumed to be the
legal father, absent a contractual agreement to the con-
trary.” Schnitzer’s petition contended that Sause had never
had parental rights as to S and, alternatively, that even if
Sause did have parental rights at one time, she had know-
ingly waived them. The petition sought a declaration that
Sause was an egg donor with no parental rights or respon-
sibilities, that she was not entitled to parenting time, and
that her parents also had no legal relationship to S. Sause’s
case and the case brought by Schnitzer, the surrogate, and
her husband were consolidated.
The consolidated case proceeded for the next year,
leading to a nine-day bench trial in September and October
2017. As it was litigated in the trial court, the case was one
of dueling declaratory judgments, with each party taking
on the burden of proof and persuasion at differing points.
As a result, several theories were advanced by the parties in
support of their respective petitions, and those theories, the
responses, and the counterarguments, blurred at times. At
different points, the basic dispute over Sause’s legal rights
with respect to S was grounded in statutes; the contractual
arrangements between Sause, Schnitzer, OHSU, and the
Cite as 371 Or 573 (2023) 585
surrogate and her husband; Oregon common law; and the
federal constitution. Ultimately, the trial court was asked to
resolve the question of legal parentage and was given mul-
tiple options as to the appropriate source of law on which to
ground that decision.
During her opening statement in the trial court,
Sause argued, “Initially, as the record will reflect, the
mother was determined to be * * * a [gestational] surrogate.
Because [the gestational surrogate] was married, * * * her
husband * * * was deemed to be the father. And that’s what
the original birth certificate showed.” After that, Sause con-
tended, Schnitzer became S’s “sole parent” in the stipulated
proceeding with the surrogate by misrepresenting to the
court that the egg used to conceive S belonged exclusively to
him.
Sause contended that, because Schnitzer was a
single parent, there was an “empty space on [S’s] birth cer-
tificate” and that space should be filled because “[t]his is a
motherless child officially as of today.” Sause argued that
she should be the one to fill that space as S’s mother because
“her genetic consanguinity is not in dispute” and she “has
always been an intended party [sic] of this child.” Sause
did not argue that “biology alone” gave rise to her parental
rights, stating that that “has never been Ms. Sause’s legal
position.” Instead, Sause relied on a “biology-plus” frame-
work (drawn from Lehr v. Robertson, 463 US 248, 261-62, 103
S Ct 2985, 77 L Ed 2d 614 (1983), discussed further below)
to assert that she was a parent based on her biological con-
nection plus the fact that she had “grasped her opportunity
to parent her child in an effort to develop a relationship.”
Schnitzer agreed with part of Sause’s opening
statement, namely, that the birthing person presumptively
had parental rights under Oregon law and that a genetic
connection alone did not create such rights, stating, “I think
the parties agree that biological connection alone does not
give rise to parental rights, unless of course you’re the birth
mother. If you’re the birth mother, you are presumed to
have * * * these types of rights. But in this case, Ms. Sause
is not the person who gave birth.” Schnitzer did not dispute
586 Sause and Schnitzer
Sause’s “biological connection” to S, but he argued that that
connection did not “establish[ ] parental rights ab initio.”
Schnitzer contended that one way to establish those
parental rights was through contract, as his rights had been
established through his agreement with the surrogate:
“[T]hat is why [the gestational surrogate’s] contract to be a
gestational carrier is signed by the * * * intended parents.
Intended parents who go through an [in vitro fertilization]
[(IVF)] [sic] and the gestational carrier process all make
clear in the cont[r]act with the person giving birth, who
is presumed under Oregon law to be the mother, unless
there’s a cont[r]act that says otherwise, they all say, we
are the intended parents, and they do other things to, that
establish * * * these rights.”
Schnitzer argued that Sause had not established parental
rights for herself through contract, nor had she adequately
“grasp[ed] the opportunity” to establish a parent-child rela-
tionship such that she had rights protected under the Due
Process Clause of the Fourteenth Amendment to the United
States Constitution.
In response, Sause clarified that she was not argu-
ing that her parental rights arose only from contract or
agreement with Schnitzer, specifying that the Nudelman
agreement “is not the well spring or source of Ms. Sause’s
parental rights.” Instead, her theory of the case was that
“her rights arise under the due process laws of the United
States Constitution, not under the Nudelman agreement.”
In Sause’s view, under United States Supreme Court prec-
edent, “parental rights arise from a showing of a biologi-
cal connection, plus something else,” namely, “grasping an
opportunity to develop a relationship with his or her off-
spring, and accepting ‘some measure of responsibility for
the child’s future.’ ” Sause argued that she had grasped “100
percent of the available opportunity to develop a relation-
ship” with S.
Schnitzer moved, under ORCP 54 B(2), to dismiss
Sause’s petition on the ground that she had shown no legal
right to relief. The court narrowed the legal question to
whether—given that Sause’s genetic connection to S was
undisputed—Sause had “made a prima facie case that she
Cite as 371 Or 573 (2023) 587
did, in fact, assert her maternity[.] Did she, in fact, attempt
to grasp the opportunity to participate in the rearing of
the child financially?” Because S was then so young, the
trial court focused on the parties’ conduct before his birth,
namely, whether Sause had demonstrated that she was an
“intended parent.” The court rejected the legal meaning of
that term as a “specific term of art” in “the world of assisted
reproductive technology and the legal world,” and instead
explained that, to Sause, that term meant “that she would
have a motherly role of some sort.” Sause intended to be a
parent in that she expected to be on the birth certificate, to
be known as S’s mother, and to be involved in his life. In the
court’s view, Sause’s conduct met the constitutional standard
of “grasping” that the court was applying. The court there-
fore concluded that Sause had produced sufficient evidence,
and it denied Schnitzer’s motion to dismiss. Schnitzer then
presented the remainder of his case.
The trial court ruled in favor of Sause, relying on
Lehr for the proposition that a “person linked to a child
only by genetics must take an affirmative step to accept the
responsibilities associated with parenthood” to be deemed
a parent. (Internal quotation marks omitted.) The court
first determined that Sause was S’s legal mother “by virtue
of being his undisputed female genetic parent.” The court
then found that both parties had agreed up until S’s birth
that, although Schnitzer would have full legal and physical
custody of S, Sause would play an unspecified “maternal”
role in S’s life. The trial court noted that Schnitzer had not
decided to “cut Sause and her family out of S’s life” until
Sause sent the hostile text messages on the day of S’s birth,
and that, as soon as Schnitzer had his “change of heart”
following S’s birth, Sause diligently pursued legal action
to assert her right to a role in S’s life. The court also con-
cluded that the Nudelman agreement did not waive Sause’s
parental rights because, in the court’s view, the agreement
was not sufficiently “clear, unambiguous, knowing, volun-
tary and intelligent.” The trial court granted Sause’s peti-
tion for declaratory judgment and declared her to be a par-
ent of S, dismissed Sause’s filiation petition, and dismissed
Schnitzer’s declaratory judgment petition.
588 Sause and Schnitzer
Schnitzer appealed, assigning error to the judgment
and to the trial court’s denial of his ORCP 54 B(2) motion.
Schnitzer essentially argued that the trial court had legally
erred in (1) treating Sause’s genetic parentage as giving
rise to a presumption of legal parentage; (2) concluding that
Sause had a constitutionally protected parental right; and
(3) interpreting and applying the Nudelman agreement in
the manner that it did.
The Court of Appeals reversed, in a split decision
with three separate opinions. Sause, 312 Or App at 104. The
lead opinion concluded that Sause’s “mere biological connec-
tion to S does not confer parental rights on her.” Id. at 93. It
explained that Sause’s genetic connection to S presented her
an opportunity to develop parental rights, if she “ ‘grasp[ed]
that opportunity and accept[ed] some measure of responsi-
bility for the child’s future.’ ” Id. at 100 (quoting Lehr, 463
US at 261-62 (describing the “biology-plus” standard for
creating constitutionally protected parental interests)). The
opinion concluded, however, that Sause had not adequately
grasped that opportunity because, among other things, she
expressly had disavowed any financial or other responsibil-
ity for S in the Nudelman agreement, and her decision to
retrieve her eggs was motivated by her own medical goals.
Id. at 102-03.
Judge Mooney concurred. She agreed with the
majority (and the dissent) that “genetics alone do not confer
parental rights,” but, in her view, the case was governed by
Senate Bill (SB) 512 (2017), Or Laws 2017, ch 651, §§ 1-4,
which had amended and added to Oregon’s statutes involv-
ing ART, and become effective during the trial court pro-
ceedings; under those new and amended statutes, accord-
ing to Judge Mooney, Sause had no parental rights as to S.
Sause, 312 Or App at 109-10 (Mooney, J., specially concur-
ring). SB 512 became effective on January 1, 2018, which was
after the trial court signed its judgment on December 21,
2017, but before that judgment was entered in the dockets
for the two consolidated cases on January 18 and 24, 2018.
The concurrence observed that judgments become effective
on their date of entry, see ORS 18.082(1), and reasoned that
SB 512 governed this case. (The lead opinion disagreed that
Cite as 371 Or 573 (2023) 589
SB 512 applied, briefly observing that “it was understood
that the new law would not apply to the trial court’s decision
in this case.” Sause, 312 Or App at 86 n 9.) Under SB 512,
Judge Mooney concluded, Sause had “ ‘no right, obligation
or interest with respect to’ ” S. Id. at 106 (Mooney, J., con-
curring) (quoting SB 512, as codified at ORS 109.239(2)(a)).
With respect to the federal constitutional issue, the con-
curring opinion took the position that the Lehr biology-plus
standard applied to only children conceived through sexual
intercourse and did not apply to children conceived through
ART.
The dissent agreed with the other two opinions
that, for purposes of the federal constitution, “Sause’s mere
biological connection to S does not confer parental rights.”
Id. at 112 (Kamins, J., dissenting) (internal quotation
marks omitted). In the dissent’s view, however, the Lehr
biology-plus standard was determinative in this case, and
Sause had adequately grasped the opportunity to develop a
relationship with S to meet that standard. Id.
Sause sought review, which we allowed.
II. ANALYSIS
The primary questions on review are whether Sause
is S’s legal parent due to her genetic connection with S and,
if she is not, whether another source of law may provide
her a basis to assert legal rights and responsibilities with
respect to S. We begin by determining the applicable law.
We then consider whether Sause has parental rights under
Oregon law or a federal constitutional right with respect
to S under Lehr and the Due Process Clause. Finally, we
assess the significance of the Nudelman agreement between
Schnitzer and Sause, and what contractual rights and
responsibilities Sause may have with respect to S pursuant
to that agreement.
A. Whether SB 512 (2017) Applies
We first consider whether SB 512 applies to this dis-
pute and, for the reasons explained below, conclude that it
does not. SB 512 applies to “establishments and disestab-
lishments of parentage and parentage proceedings made
590 Sause and Schnitzer
or commenced on or after” January 1, 2018. Or Laws 2017,
ch 651, § 54. At trial, the parties agreed that, as of the date
that the judgment was signed by the trial court, SB 512
had not yet gone into effect and would not apply to this dis-
pute. As noted, the judgment at issue here was signed on
December 21, 2017, but it was not entered in the registers for
the two consolidated cases until January 18 and 24, 2018.
Schnitzer now contends that the trial court erred
by not applying SB 512 when the judgments were entered in
2018, after SB 512 went into effect. Schnitzer concedes that
he never asked the trial court to apply SB 512. He argues,
however, that preservation of such an error is “automatic”
under McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 95
n 6, 957 P2d 1200, adh’d to on recons, 327 Or 185 (1998).
Schnitzer alternatively argues that plain error review is
appropriate. We reject both arguments.
First, McCarthy is inapposite. In McCarthy, the
plaintiff raised an unpreserved argument that a Court of
Appeals attorney fee order was flawed because it did not
include special findings as required by Oregon statute. Id.
at 95. This court held that the plaintiff was not required to
preserve that issue because the issue “arose when the Court
of Appeals issued its order,” id. at 95 n 6, so the plaintiff
had no opportunity to address it earlier. Here, by contrast,
the issue arose—and was addressed—before the trial court
entered its judgment. Schnitzer addressed the issue during
the trial in 2017, and he could have argued then that SB 512
would apply if the judgment was entered after January 1,
2018. Schnitzer also could have raised the issue in January
2018 before the judgment was entered. As a result, any error
assigned to the trial court’s decision not to apply SB 512 is
unpreserved.
We also reject Schnitzer’s request for plain error
review. “When a party has failed to preserve an assignment
of error, we consider that error only if it is plain.” State v.
Ulery, 366 Or 500, 503, 464 P3d 1123 (2020) (citing ORAP
5.45(1)). When an error qualifies as plain, “the decision
whether to review [it] rests with the discretion of the appel-
late court.” Id. “That discretion entails making a prudential
Cite as 371 Or 573 (2023) 591
call that takes into account an array of considerations,” State
v. Vanornum, 354 Or 614, 630, 317 P3d 889 (2013), including:
“the competing interests of the parties; the nature of the
case; the gravity of the error; the ends of justice in the par-
ticular case; how the error came to the court’s attention;
and whether the policies behind the general rule requir-
ing preservation of error have been served in the case in
another way, i.e., whether the trial court was, in some man-
ner, presented with both sides of the issue and given an
opportunity to correct any error.”
Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823
P2d 956 (1991). The policies underlying the preservation
requirement include fairness to the opposing party, giving
the trial court a chance to correct the error and obviate the
need for an appeal, and fostering full development of the
record. Peeples v. Lampert, 345 Or 209, 219-20, 191 P3d 637
(2008).
Assuming without deciding that there was plain
error, the above considerations counsel against reaching
that error. As to fairness, the application of pre-SB 512 law
was mutually agreed upon by both parties and the trial
court; the trial court’s decision to take that approach was
not unfair to either party. The trial court applied the law
that both parties expected it to apply. As to obviating the
need for appeal, neither party moved for the court to recon-
sider its judgment after SB 512 went into effect. The trial
court was never asked by the parties to correct the alleged
error and avoid an appeal on that ground. Overall, the poli-
cies underlying preservation and considerations relevant to
reaching plain error guide us not to reach the alleged error
here, and we decline to do so. As a result, SB 512 does not
apply, and this case is governed by the statutes in effect in
2017.
B. Parentage Under Oregon Law
The next question is whether Sause is a legal parent
of S because of their undisputed genetic connection. For the
reasons explained below, we conclude that Sause’s genetic
connection to S, by itself, does not make her a legal parent
of S.
592 Sause and Schnitzer
We begin with a brief history of parentage law in
Oregon to provide context for our conclusion. Early parent-
age law was rooted in the English common law. See Michael
S. DePrince, Note, Same-Sex Marriage and Disestablishing
Parentage: Reconceptualizing Legal Parenthood Through
Surrogacy, 100 Minn L Rev 797, 802-04 (2015). At common
law, legal parentage depended primarily on a combination of
birth and marriage: A child born to a married woman was
“legitimate” and had two legal parents (the birth mother and
her husband), while a child born to an unmarried woman was
“illegitimate” and had no legal parents. See Thom v. Bailey,
257 Or 572, 580, 481 P2d 355 (1971); Richter v. Richter, 117
Or 621, 630, 245 P 321 (1926); State v. McDonald, 59 Or 520,
526, 117 P 281 (1911).
Over time, the law’s emphasis on marriage shifted.
The law imposed upon unmarried mothers the rights and
responsibilities with respect to their children, see Nine v.
Starr, 8 Or 49, 50 (1879) (“[T]he mother is the natural guard-
ian of such a child, and is bound to maintain [the child.]”);
adoption became a legal possibility, see General Laws of
Oregon, Civ Code, ch XII, title IV, § 66, p 693 (Deady 1845-
1864); and, in 1957, the legislature abolished illegitimacy as
a legal status; see ORS 109.060 (the legal status and relation-
ships, and the rights and obligations between a person and
their descendants or parents are the same for all persons,
whether or not the parents have been married); Thom, 257
Or at 583-84 (explaining statute’s effect as to illegitimacy).
At the same time, the marital presumption per-
sisted. See Thom, 257 Or at 580-84 (tracing parentage stat-
utes from common law to 1957). In 1957, the legislature
enacted ORS 109.070, which created a conclusive presump-
tion that the “child of a wife cohabiting with her husband
who is not impotent” was the legal child of the husband and
wife. Or Laws 1957, ch 411, § 2(1). A disputable presump-
tion of parentage existed for other children born to a woman
who was married at the time she gave birth. Id. § 2(2). ORS
109.070 has since been amended numerous times, and it now
provides that parentage is “rebuttably presumed” for a per-
son married to the birthing person at the time of the child’s
birth, ORS 109.070(1)(a), and it also prevents third parties
Cite as 371 Or 573 (2023) 593
from challenging that presumption “as long as the spouses
are married and are cohabiting, unless both spouses con-
sent to the challenge,” ORS 109.070(2).
As the marital presumption has shifted, the reli-
ance on birth as a basis for parentage—at least as a default
presumption—has remained the same. ORS 109.065(2), as
enacted by SB 512, provides, “A person is the mother of a
child to whom the person gives birth.” Numerous other stat-
utes reflect an implicit assumption that, absent an adoption,
additional proceeding, or other operation of law, the per-
son who gave birth to a child is a legal parent of that child.
See, e.g., ORS 109.070(1)(a) (2015), amended by Or Laws
2017, ch 651, § 3; ORS 109.041(1); former ORS 109.315(1)(g)
(2015), renumbered as ORS 109.285(1)(g) (2021); ORS
109.092 (2015), amended by Or Laws 2017, ch 651, § 18 (all
so demonstrating).2
The law also has been changed to account for chil-
dren born to unmarried parents. Broadly speaking, there
were two types of scenarios that the law had to address. The
first was where an alleged father sought to confirm his bio-
logical paternity as a basis for legal parentage. The second
was where another party (for example, the mother or the
state) sought to confirm an alleged father’s biological pater-
nity, often as a basis for seeking child support. In response to
those issues, statutes began incorporating blood typing and
DNA as tools to determine whether a father was biologically
related to a child. (At that time, there was no significant
possibility of a birth mother not being genetically related to
the child.) As relevant here, in 1953, the legislature autho-
rized courts to use blood types to determine “the possibil-
ity of the alleged father’s paternity.” Or Laws 1953, ch 628,
§ 4. In 1975, ORS 109.070 was amended to allow unmarried
fathers to establish paternity by swearing, together with the
birth mother, that they were the “natural” father and that
there was no other legal father. Or Laws 1975, ch 640, § 3(5).
In 1995, the blood-type statute was amended to include
DNA testing as a method of determining paternity. Or Laws
1995, ch 608, § 5. Those tools helped the state to ensure
2
We refer to the 2015 versions of the listed statutes, because those versions
reflect the state of the law during the year that S was born.
594 Sause and Schnitzer
that children born to unmarried mothers through sexual
intercourse could have the benefit of child support from
their biological father. Now, ORS 109.258, discussed further
below, provides that, in a paternity adjudication, “[a] disput-
able presumption of paternity is created if one or more blood
tests [including DNA tests] result in a cumulative paternity
index of 99 or greater.”
The law adapted differently to address the parent-
age of children born through artificial insemination (AI) and,
later, ART. As AI entered wider use between the 1950s and
1970s, there were essentially two types of AI recognized at
the time: artificial insemination by husband (AIH) and arti-
ficial insemination by donor (AID). See George P. Smith, II,
Through a Test Tube Darkly: Artificial Insemination and the
Law, 67 Mich L Rev 127, 128 (1968). At that time, the stan-
dard practice in AID was for the donor to remain anony-
mous, and clinics took pains to preserve that anonymity. See
Naomi Cahn, The New Kinship, 100 Geo LJ 367, 374, 391-92
(2012).
The Oregon legislature expressly recognized AI
in 1977, restricted its performance to licensed physicians,
and clarified the rights and obligations of participants in
both AIH and AID. Or Laws 1977, ch 686, §§ 1-7. That leg-
islation established that children conceived through AI and
born to a married person had the same “relationship, rights
and obligation” to the mother’s husband as they would if
they had been conceived through sexual intercourse. ORS
109.243 (1977), amended by Or Laws 2017, ch 651, § 5. It also
provided that any nonhusband donor would “have no right,
obligation or interest with respect to a child born as a result
of the artificial insemination,” and vice versa. ORS 109.239
(1977), amended by Or Laws 2017, ch 651, § 4.
The AI statutes were amended by SB 512 in 2017
to address ART, which was defined, in part, as “a method
of causing pregnancy other than sexual intercourse.” ORS
109.239(1). In similar wording to the prior AI statute, ORS
109.239(2) also provides, “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
Cite as 371 Or 573 (2023) 595
reproduction; and [the child shall have no such right against
the donor].” In other words, in cases involving AI and ART,
under both the 1977 and 2017 statutes, a nonspouse gamete
donor, whether of sperm or eggs, does not have any “right,
obligation or interest” with respect to their genetic offspring
by virtue of their donation.3
With that context, we can now evaluate Sause’s
claim to legal parentage of S. As explained above, we apply
the statutes in effect before SB 512 was enacted. Sause’s
central claim is that the single fact that she is genetically
related to S (that is, “biology alone”) means that she is enti-
tled to at least a presumption of parentage, and that she
never waived her parental rights.
Sause has not identified any statute or case law
that, on its face, provides that a female genetic parent who
did not give birth to the child is entitled to a presumption of
parentage. Instead, Sause relies on two other statutes: ORS
109.258, quoted above, which creates a disputable presump-
tion of paternity based on blood tests; and ORS 107.101(1),
which establishes Oregon’s policy to “[a]ssure minor chil-
dren of frequent and continuing contact with parents who
have shown the ability to act in the best interests of the
child.”
Starting with ORS 107.101(1), Sause argues that
this court should conclude that she is S’s parent in order
to ensure that she has “frequent and continuing contact”
3
Justice Bushong’s dissent also reviews the development of the common law
and early statutes in discussing Oregon’s history, much of which demonstrates
the law’s historical misogyny and discrimination against women. 371 Or at 616
(Bushong, J., dissenting). It then focuses on what it calls the “equality principle”
reflected in ORS 109.030 (2015), amended by Or Laws 2017, ch 651, § 50, which
provides that the “rights and responsibilities of the parents, in the absence of
misconduct, are equal, and the mother is as fully entitled to the custody and con-
trol of the children and their earnings as the father.” 371 Or at 620. That discus-
sion is not wrong, but it also is not relevant. As explained more extensively below,
Schnitzer’s legal argument prevails here not because of the “gender-hierarchical
order” of the common law or because of his gender, but because creating a male
child through ART, of whom he is now an undisputed parent, was his idea, and
he took the contractual and legal steps necessary to accomplish that, while Sause
did not. And, contrary to Justice Bushong’s position, ORS 109.030 (2015) plays
no role here because, by its terms, it applies to “the rights and responsibilities
of the parents,” which necessarily means “legal” parents, and thus assumes the
proposition which the dissent seeks to establish by citing the statute. (Emphasis
added.)
596 Sause and Schnitzer
with S. But that argument fails because that statute applies
only to those who are legal “parents” and thus assumes the
conclusion that Sause seeks to reach. If Sause were a legal
parent of S, then ORS 107.101(1) might guide a court to
ensure contact between her and S. But ORS 107.101(1) does
not provide an independent basis for determining parentage.
Likewise, Sause’s point that no one else claims to
be S’s mother is immaterial. Oregon law does not require
that a child have a single mother as opposed to none or two.
Although it might be relevant in another case, the lack of
another person claiming to be S’s mother has no bearing on
Sause’s claim here.
Sause’s argument based on ORS 109.258 has more
traction, however. ORS 109.258 provides, in full:
“A disputable presumption of paternity is created if one
or more blood tests result in a cumulative paternity index
of 99 or greater. If the court or administrator finds that
the conclusions of all the experts, as disclosed by the evi-
dence based upon the tests, are that the alleged father is
not the father of the child, the question of paternity shall be
resolved accordingly. If the experts disagree in their find-
ings or conclusions, the question shall be submitted upon
all the evidence.”
Sause argues that that statute should apply equally to
maternity as it does to paternity. See Or Const, Art I, § 20.4
Sause contends that, under ORS 109.258, her undisputed
genetic link to S creates “a disputable presumption of”
maternity. She argues that that presumption should lead to
a determination of her legal parentage because “[n]o other
person seeks to be deemed [S’s] mother,” and she “is the only
candidate for maternal parenthood of [S].”
Schnitzer makes two independent legal arguments
in response to Sause’s reliance on ORS 109.258. For rea-
sons that we will explain, we agree with both of those argu-
ments. First, Schnitzer contends that ORS 109.258 “applies
where evidence points to a particular man as the parent
and means of support of a child, but the genetics of it are in
4
Article I, section 20, provides, “No law shall be passed granting to any cit-
izen or class of citizens privileges, or immunities, which, upon the same terms,
shall not equally belong to all citizens.”
Cite as 371 Or 573 (2023) 597
question,” and does not apply to ART. See Johnson v. Calvert,
5 Cal 4th 84, 89-91, 851 P2d 776, 779-81, cert den, 510 US
874 (1993) (holding that, under California’s corresponding
statute, blood tests create evidentiary presumptions that
do not apply when the factual basis for parentage is undis-
puted, in part because the statute was “not motivated by
the need to resolve surrogacy disputes”; instead, surrogacy
disputes must be resolved through a “purely legal determi-
nation as between the two claimants”). There is no dispute
over the genetic link between Sause and S, so, Schnitzer
reasons, ORS 109.258 does not apply. Schnitzer also argues
that ORS 109.258 appropriately applies only to men because
that statute “serves the important governmental objective of
finding absent fathers” and therefore survives the interme-
diate scrutiny required for a constitutional distinction based
on sex. Sause does not respond to Schnitzer’s arguments.
Assuming without deciding that ORS 109.258 applies
equally to women as it does to men, we are not persuaded
that ORS 109.258 requires a presumption of legal parentage
in cases involving ART where genetic paternity or maternity
is undisputed. Instead, ORS 109.258 was enacted to help
resolve evidentiary disputes over the efficacy of blood tests
in identifying putative fathers. See Or Laws 1999, ch 80, § 27
(adding the 99 percent threshold as part of an act “[r]elat-
ing to child support program changes mandated by welfare
reform”). ORS 109.258 allows blood tests to create an eviden-
tiary presumption that may or may not lead to a determina-
tion of legal parentage. In cases involving children conceived
without ART where parentage is disputed, genetic testing
may rebuttably demonstrate who participated in that con-
ception and who, as a result, may be a legal parent under
other provisions of Oregon and federal law (such as the Lehr
standard, discussed below). But that evidentiary presump-
tion is unnecessary where genetic parentage is undisputed,
as the California Supreme Court held in Johnson. There is no
indication that the evidentiary presumption in ORS 109.258
was enacted to address ART or the establishment of legal
parentage in surrogacy or other ART disputes.
Schnitzer’s second argument regarding ORS 109.258
is that that statute does not apply in these circumstances
598 Sause and Schnitzer
because of the “donor” statute, ORS 109.239 (1977), under
which both Sause and Schnitzer are donors of the gam-
etes from which S was conceived. Again, assuming without
deciding that ORS 109.258 applies equally to women as it
does to men, the disputable presumption of paternity cre-
ated by that statute does not yield an establishment of legal
parentage in every case, nor does it do so automatically. For
a blood test to lead to legal parentage, as ORS 109.258 con-
templates, there must be an adjudication or other proceed-
ing. See ORS 109.258 (putting the question to “the court or
administrator”); see also ORS 109.065 (stating that parent-
age may be established by “an adjudication of the person’s
maternity or paternity” (emphasis added)). In that adjudi-
cation, the court can determine whether the putative par-
ent’s maternity or paternity is a valid basis for parentage.5
In some cases, blood tests demonstrating genetic maternity
or paternity may be dispositive evidence that a putative par-
ent engaged in the sexual intercourse that created a child.
In some circumstances, that evidence could be the basis for
a determination that a putative parent is a legal parent.
In other cases, a putative parent’s claim may be barred by
the marital presumption, ORS 109.070(2). Or, as is relevant
here, the putative parent’s claim of parentage may be fore-
closed by the donor statute, ORS 109.239 (1977).
The parties dispute whether ORS 109.239 (1977)
applies to Sause and bars her claim of parentage, again
assuming that ORS 109.258 grants Sause a presumption
of maternity that could be a basis for parentage. That is a
question of statutory interpretation, which we analyze using
the methodology set out in State v. Gaines, 346 Or 160, 171-
72, 206 P3d 1042 (2009). In doing so, our aim is to discern
the intention of the legislature, which we do by giving “pri-
mary weight to the text and context of the disputed statu-
tory terms,” because “there is no more persuasive evidence
5
Justice Bushong’s dissent contends that Schnitzer’s argument based on
ORS 109.258 fails because “the trial court determined the validity of Sause’s
parentage claim in this case.” 371 Or at 623-24 (Bushong, J., dissenting) (empha-
sis in original). Under our interpretation of that statute as not applying when
genetic parentage is undisputed, however, the trial court’s reliance on it to con-
clude that Sause is S’s parent was legal error. Additionally, as we next discuss in
the text, Sause’s claim to legal parentage also is foreclosed by the donor statute,
ORS 109.239.
Cite as 371 Or 573 (2023) 599
of the intent of the legislature than the words by which
the legislature undertook to give expression to its wishes.”
Kinzua Resources v. DEQ, 366 Or 674, 680, 468 P3d 410
(2020) (internal quotation marks omitted). “We also consider
legislative history for what it may be worth in a particular
case.” City of Portland v. Bartlett, 369 Or 606, 610, 509 P3d
99 (2022).
We begin with the text of ORS 109.239 (1977),
quoted in part above, which provides, in full:
“If the donor of semen used in artificial insemination is
not the mother’s husband:
“(1) Such donor shall have no right, obligation or inter-
est with respect to a child born as a result of the artificial
insemination; and
“(2) A child born as a result of the artificial insemina-
tion shall have no right, obligation or interest with respect
to such donor.”
Assuming that ORS 109.239 (1977) applies equally to egg
donors as it does sperm donors,6 the question is whether
Sause is a “donor” within the meaning of that statute, which
the parties and amici dispute. There is no statutory defini-
tion of “donor,” but “donor” generally means “one used as a
source of biological material,” for example, “a donor of a tis-
sue for transplantation.” Webster’s Third New Int’l Dictionary
673 (unabridged ed 2002) (emphasis added). The technical
meaning of “donor” in the medical profession is largely the
same: “An individual from whom blood, tissue, or an organ
is taken for transplantation.” Stedman’s Medical Dictionary
536 (27th ed 2000). (The version in use in 1977 was limited
to blood donations: “A person from whom the blood is drawn
in the performance of blood transfusion.” Stedman’s Medical
Dictionary 419 (4th unabridged lawyers’ ed 1976).) The text
6
The legislature defined “artificial insemination” to mean “introduction of
semen into a woman’s vagina, cervical canal or uterus through the use of instru-
ments or other artificial means.” ORS 677.355. That definition facially excludes
egg donation and other forms of ART. Amici argue that that definition should be
construed to include egg donors based on Oregon’s Equal Rights Amendment, Or
Const Art I, § 46, which provides, in part, “Equality of rights under the law shall
not be denied or abridged by the State of Oregon * * * on account of sex.” As with
ORS 109.258, we assume for purposes of this analysis that ORS 109.239 (1977)
applies to egg donors, but we do not decide that issue in this case.
600 Sause and Schnitzer
of ORS 109.239 (1977) offers an additional clue to the mean-
ing of “donor.” The text does not specify that donors can be
only either “anonymous” or “known.” Instead, the first por-
tion of the text distinguishes between two types of donors:
donors who are “not the mother’s husband” and donors who
are. By limiting the statute’s applicability to situations
where the donor of semen is not the husband, that sentence
implies that, in some situations, the donor of semen will be
the mother’s husband. That wording, consistent with the
above definitions, suggests that the term “donor” encom-
passes those who contribute sperm to be used in artificial
insemination, including both those who intend to be parents
of the child (e.g., in cases where the donor is the husband)
and those who do not, as well as both those whose identity is
known to the recipient and those who are anonymous.
The statutory context offers additional support for a
definition of “donor” that includes both Schnitzer and Sause.
ORS 109.247 (1977), amended by Or Laws 2017, ch 651, § 6,
states that the AI statutes, including ORS 109.239 (1977),
“apply to all persons conceived as a result of artificial insemi-
nation.” That wording suggests that the legislature intended
those statutes to govern all cases of AI and that no cases
would be excluded. There is no additional statute that deals
expressly with “known donation”—or anonymous dona-
tion, for that matter—so we may infer that the legislature
intended the AI statutes to apply broadly to all cases of AI.
Thus, the statutory text and context indicate that
ORS 109.239 was intended to apply to all those who con-
tributed semen for use in AI if they were “not the mother’s
husband.” The available legislative history confirms that
understanding.
The purpose of the 1977 legislation was “to estab-
lish the legitimacy and legal rights of children resulting
from artificial insemination.” Exhibit A, House Committee
on Judiciary, HB 3193, May 3, 1977, 1 (testimony of
Dr. Miles Novy). The chief drafters and proponents of the
bill explained that there are “basically two types of artifi-
cial insemination—AIH (Artificial Insemination, Husband)
using semen from the woman’s husband, and AID (Artificial
Insemination, Donor) using semen from a donor who usually
Cite as 371 Or 573 (2023) 601
remains anonymous.” Exhibit D, House Committee on
Judiciary, HB 3193, May 3, 1977, 1 (written testimony of Jay
Folberg and Betty Bechtel) (emphasis added). They further
explained that, when a family turns to AID, “[t]he donor, who
is the biological father, is normally anonymous and would be
an inappropriate person to hold responsible for the support
and care of the child.” Id. at 2 (emphasis added). That intro-
ductory testimony indicates that, in general, the legislature
likely understood from the drafters that the most common
practice would be for donors to remain anonymous, but that
there might be exceptions.
One legislator put a finer point on it. In a committee
hearing on May 3, 1977, Representative David Frohnmayer
stated that he did not “see any provisions with respect
to whether or not the donor would be anonymous.” Tape
Recording, House Committee on Judiciary, HB 3193, May 3,
1977, Tape 44, Side 1 (statement of Rep David Frohnmayer).
“Perhaps,” proposed Folberg, one of the chief drafters and a
family law professor from the University of Oregon, “there
could be a clarification * * * so the status of the donor as
anonymous is protected.” Id. The subcommittee rejected
that proposal, and Frohnmayer gave an additional example
about “a couple who were not clear whether or not they’d be
able to have a child * * * and there was some discussion as
to whether or not [the husband’s] brother ought to be the
sperm donor, and it was agreed upon [by the couple] that
that would be ideal.” Id. Frohnmayer wondered, “How do
you deal with that question?” Id. Dr. Miles Novy, a physi-
cian and OHSU professor, responded that, in practice at
that time, most doctors sought to preserve the anonymity
of donors, and another doctor noted that, in the current pro-
gram which they were a part of, none of the donors were
known donors. Even though most donations proceeded
anonymously, Novy suggested that requiring anonymity in
the legislation “would be a mistake” because “in time there
might be particular * * * exceptions” to the expectation that
donors would be anonymous. Id.
That discussion indicates that anonymous, nondi-
rected donation was the most common and conventional type
of donation in practice at that time. But the discussion also
602 Sause and Schnitzer
indicates that the legislature was considering the possibility
of more complicated scenarios involving known donors, such
as the “brother” in Frohnmayer’s example. Despite having
that possibility in mind, the legislature did not narrow the
bill to cover only anonymous, nondirected donation. Folberg
expressly proposed limiting the statute to apply to anony-
mous donors and protect their anonymity, but that proposal
was rejected. Thus, the discussion quoted above indicates
that the legislators expected ORS 109.239 to cover all sit-
uations involving artificial insemination except where the
semen was coming from the mother’s husband. There is no
indication in the text, context, or legislative history that the
legislature meant to silently exclude a whole class of chil-
dren born through AI merely because their parents knew
the identity of their sperm donor.
We therefore understand the term “donor” in ORS
109.239 (1977) to carry its plain meaning, that is, an indi-
vidual who is a source of biological material, or an individual
from whom blood, tissue, or an organ is taken for transplan-
tation. “Donor” encompasses those who are known to the
recipient, such as the birthing person’s spouse or a known
donor, as well as anonymous donors.
In this case, Schnitzer and Sause are positioned
equally with respect to ORS 109.239 (1977). Both Schnitzer
and Sause signed standard donation forms from OHSU that
acknowledged relinquishment of any claim to or jurisdiction
over future embryos and offspring, and contributed gametes
to the ART process, and neither of them gave birth to S or
were the spouse of the person who gave birth. Therefore,
neither Schnitzer nor Sause have any “rights, obligations or
interest” with respect to S simply based on their genetic con-
nection to S.
Instead, Schnitzer’s parentage of S arises from his
surrogacy agreement with the gestational carrier and her
husband. At the time of S’s birth, Oregon law presumed
that the birthing person and her husband were S’s legal
parents. See ORS 109.070(1) (2015). That changed when the
trial court entered the stipulated judgment—based on the
agreement between the gestational carrier, her husband,
and Schnitzer—declaring that the carrier and her husband
Cite as 371 Or 573 (2023) 603
were not the intended parents, and that Schnitzer, and
only Schnitzer, was the intended parent. As Sause correctly
stated in her brief, “ORS 109.065(2) creates a presumption
that the woman who births a child is the child’s mother, but
that presumption was overcome in this case by the gesta-
tional surrogate’s contractual agreement that she would not
be [S’s] mother.”
This court has never addressed an ART contract,
but the Court of Appeals has and has held that surrogacy
contracts and other ART contracts are generally enforceable
under Oregon law. See, e.g., McIntyre v. Crouch, 98 Or App
462, 472, 780 P2d 239, rev den, 308 Or 593 (1989), cert den,
495 US 905 (1990) (holding that Oregon statute either did
not or constitutionally could not prevent an unmarried
sperm contributor in AI from establishing parental rights
through contract with the birthing parent); Leckie and
Voorhies, 128 Or App 289, 293, 875 P2d 521 (1994) (enforcing
AI contract barring donor from asserting parental rights);
In re Adoption of Baby A and Baby B, 128 Or App 450, 453,
877 P2d 107 (1994) (payment of money to a birth mother pur-
suant to a surrogacy contract did not invalidate her consent
to the adoption of her birth child by the adoptive parents);
Weaver v. Guinn, 176 Or App 383, 388, 31 P3d 1119 (2001)
(deciding not to enforce the parties’ written artificial insem-
ination agreement because the child was conceived through
sexual intercourse and not AI); Dahl and Angle, 222 Or App
572, 194 P3d 834 (2008), rev den, 346 Or 65 (2009) (uphold-
ing agreement regarding the disposition of embryos created
through IVF, as established “at the time that they under-
went the IVF process”).
Oregon statutes do not expressly address the
enforceability of ART contracts, but several of them rein-
force the approach taken by the Court of Appeals in the
cases cited above. ORS 109.230 provides, for example, “Any
contract between the mother and father of a child born out of
wedlock is a legal contract, and the admission by the father
of his fatherhood of the child is sufficient consideration to
support the contract.” Likewise, ORS 163.537(2)(d) expressly
permits payment of “fees for services in an adoption pursu-
ant to a surrogacy agreement.” Both of those statutes support
604 Sause and Schnitzer
the proposition that families can determine their structure
through contract, within the general bounds of public pol-
icy regarding children and parents. More fundamentally,
the ability to determine family structures through contract
is consistent with the institution of marriage, which is, in
part, a form of contract that has served for millennia to cre-
ate stable and predictable family structures involving both
parents and children. See ORS 109.070 (creating a rebutta-
ble presumption that a child is the legal child of their birth
mother’s spouse); William Blackstone, 1 Commentaries on
the Laws of England 443 (1765) (“The main end and design
of marriage therefore [is] to ascertain and fix upon some
certain person, to whom the care, the protection, the main-
tenance, and the education of the children should belong[.]”).
Here, the gestational carrier and her husband,
together with Schnitzer, stipulated that Schnitzer—and not
the carrier or her husband—was S’s intended parent, as they
had effectively agreed upon beforehand. Had Sause been a
party to that agreement, her parentage might have been
established as well. But, as noted above, she was not asked
to be a party to that agreement, although she expected and
knew that Schnitzer was working with a gestational carrier
to have a son.
In sum, we conclude that Sause’s genetic connection
to S does not afford her a presumption of legal parentage of
S, under Oregon statutes or common law.7
C. Parentage Under Federal and Other State Law
Sause also argues that this court should look to
California and federal cases as providing a basis for her
claim of parentage as to S. We briefly explain why those
authorities do not support Sause’s position here.
7
Justice Bushong’s contrary conclusion has the potential effect of increasing
litigation and uncertainty for families who use ART where, for example, a gam-
ete donor who was known to the intended parents at the time of donation later
attempts to establish parentage based on their genetic connection to the child. As
amici note,
“[T]he only question [when determining whether a gamete contributor is a
donor] is whether a person donated a gamete for use in assisted reproduction
without an agreement between the parties that they would both be parents.
If the answer is yes, the donation cuts off all parental rights and responsibil-
ities. Nothing else matters.”
Cite as 371 Or 573 (2023) 605
Sause relies on a case from the California Supreme
Court, K.M. v. E.G., 37 Cal 4th 130, 117 P3d 673 (2005),
where K.M. provided eggs that were used to impregnate her
female partner, E.G., who gave birth to twins. The couple
later broke off their relationship, and they disputed whether
K.M. was a legal parent of the twins. Applying a similar
statutory scheme to pre-SB 512 Oregon law, the California
Supreme Court held that K.M. was a parent based on her
genetic connection to the twins. Id. at 138, 117 P3d at 678.
In Sause’s view, K.M. supports her argument that
her genetic connection to S alone is sufficient to establish
parentage. We disagree. K.M. involved different facts, poli-
cies, and law, and we are unpersuaded by K.M.’s reasoning
as applied to this case. The issue in K.M. was “the parental
rights and obligations, if any, of a woman with regard to a
child born to her partner in a lesbian relationship.” Id. at
134, 117 P3d at 675. The court evidently was focused on how
to apply statutes written with straight couples in mind to
lesbian couples; the court did not consider the broad implica-
tions of ART for parentage law (the California Family Code
was later amended to address that issue), even though the
court relied on the genetic connection between K.M. and the
twins. The core conclusion of K.M. was that
“[California] Family Code section 7613, subdivision (b)
[(1992)], which provides that a man is not a father if he pro-
vides semen to a physician to inseminate a woman who is
not his wife, does not apply when a woman provides her ova
to impregnate her partner in a lesbian relationship in order
to produce children who will be raised in their joint home.”
Id., 117 P3d at 675. As that quote indicates, at the time that
K.M. provided her eggs, she was in a committed relation-
ship with E.G., and they planned to raise the children in
their joint home. See id. at 139, 117 P3d at 679 (noting that,
although the parties’ shared intent at the time of concep-
tion was disputed, it was undisputed that “the couple lived
together and that they both intended to bring the child into
their joint home”). K.M. testified that “she only agreed to
provide her ova because she and E.G. had agreed to raise
a child together,” and that she would not have done so “had
she known E.G. intended to be the sole parent.” Id. at 135,
606 Sause and Schnitzer
117 P3d at 676. K.M. had no other reason to retrieve her
eggs.
By contrast, at the time that Sause gave her eggs
to Schnitzer, the two were not in a committed relationship,
nor did they plan to raise resulting children in a joint home.
Sause had already decided to have her eggs retrieved “for
her own purposes, independent of Schnitzer’s plans to have
a male child through ART,” as the trial court found. Unlike
K.M., Sause “always intended Schnitzer to have complete
legal control over any male embryos,” along with “sole legal
custody of any male offspring,” but hoped to have only a “par-
enting role” with those offspring. In other words, whereas
K.M. intended to be a full legal parent, and both parties
in K.M. intended to raise the resulting children together,
Sause hoped to achieve an undefined quasi-parenthood by
being “known as the mother,” but not retaining any author-
ity or responsibility over S. In this instance, those factual
differences, as well as the fact that K.M. did not directly
address the legal issues presented here, lead us to reject
K.M. as persuasive authority in this case.
Having concluded that Sause is not S’s parent under
state law, we turn to whether Sause has any protected lib-
erty interest in being a parent of S under federal law. Sause
contends that she has a federal due process right in relation
to S under the standard articulated in Lehr, 463 US at 262.
In Lehr, the child of an unmarried biological father was in
the process of being adopted, and the father argued that he
had the right to notice and the opportunity to be heard in
the adoption proceeding under the Due Process Clause. Id.
at 250. The Supreme Court rejected that argument and held
that he did not have those rights because he had failed to
grasp the opportunity “to develop a relationship with his
offspring” or accept “some measure of responsibility for the
child’s future.” Id. at 262. The Court explained that, “[w]hen
an unwed father demonstrates a full commitment to the
responsibilities of parenthood by coming forward to partici-
pate in the rearing of his child, his interest in personal con-
tact with his child acquires substantial protection under the
Due Process Clause.” Id. at 261 (internal quotation marks,
citation, and brackets omitted).
Cite as 371 Or 573 (2023) 607
Lehr does not apply here because, for the reasons
discussed above, Sause is not S’s legal parent as a matter
of state law. Unlike the father in Lehr, whose claim to legal
parentage based on being the natural father was assumed,
Sause does not have a viable state law basis for legal parent-
age. As Sause’s brief puts it, “[t]he Lehr standard was estab-
lished by the U.S. Supreme Court for application in circum-
stances when the state strips a person of parental rights,
not for the purpose of determining whether a person is a
parent in the first place.” See Lehr, 463 US at 258 (noting
that the state’s termination of a parent-child relationship
“must be accomplished by procedures meeting the requisites
of the Due Process Clause” (internal quotation marks omit-
ted)). But the state is not stripping Sause of parental rights
because, as we have explained, Sause was never “a parent
in the first place” under state law. As the Court observed in
Lehr itself, “[i]n the vast majority of cases, state law deter-
mines the final outcome.” Id. at 256. This case is in that vast
majority.8
8
In her dissent, Justice Linder argues that Sause does have a protected
parental interest under state law and the Due Process Clause based on Lehr. 371
Or at 641, 649 (Linder, S.J., dissenting). Given our conclusion that Sause does not
have a protected interest under state law, we do not reach the federal issue.
Moreover, the context of Lehr differs from that of this case, because the child
in Lehr was conceived through intercourse and not through ART or AI. As Judge
Mooney’s concurrence below explained, “Most of the cases on which [the lead
opinion and dissent] rely for the ‘right to grasp’ for parental rights do not con-
cern ART. They concern children conceived through sexual intercourse, and they
are distinguishable for that reason.” Sause, 312 Or App at 110 (Mooney, J., spe-
cially concurring). The concurrence suggested that the law provides a rebutta-
ble presumption of parentage for children conceived through sexual intercourse
“because sexual intercourse serves purposes in addition to procreation. The
intent of the parties using ART,” by contrast, “is much clearer,” id. at 109, and
the legal rules applicable to conception and parentage resulting from ART are not
necessarily the same as those applicable to conception and parentage resulting
from sexual intercourse.
Here, although the genetic link between Sause and S is biologically the same
as the link between the father and child in Lehr, what that link legally signifies
is different. When a child is conceived through sexual intercourse, a genetic link
between a person and the child demonstrates only that that person participated
in that intercourse. When a child is conceived through ART, the genetic link gen-
erally demonstrates that that person contributed their gamete through medical
procedures for the express purpose of creating a child and pursuant to whatever
agreements existed between the gamete contributor and intended parent. In
sum, Lehr does not apply here, and Sause does not have a liberty interest regard-
ing S that is protected by the Due Process Clause.
608 Sause and Schnitzer
D. Sause’s Potential Contractual Rights and the Nudelman
Agreement
Although we have concluded that Sause is not S’s
legal parent by virtue of her genetic link to S as a matter
of state or federal law, that does not end our inquiry. As we
have described above, Schnitzer’s parentage and parental
rights with respect to S were determined through his agree-
ment with the gestational carrier and her husband, and the
stipulated judgment based on that agreement. Schnitzer and
Sause had their own, separate agreement—the Nudelman
agreement—regarding their gametes, their embryos, and
S. And, as also noted above, their relationship and mutual
understanding was different from an anonymous donation
process where the parties expect the donor to have no rela-
tionship or contact with their genetic offspring. Instead, as
the trial court found, both parties agreed that Sause would
play some type of “mothering role” with respect to S, and
they did not expect her identity to be kept from S, among
other shared intentions.
The parties have generally not framed their argu-
ments in contractual terms in this court. Both the trial
court and Court of Appeals started with the proposition that
Sause’s genetic connection to S made her a presumptive par-
ent under Oregon law, and then considered whether Sause
had met the Lehr requirement of grasping the “opportunity”
and accepting the “responsibility” of parenthood for that
connection to result in legal parenthood. Presumably for
that reason, the parties’ briefs on review develop those argu-
ments, but do not discuss any contractual claims that Sause
may have regarding a relationship with S. Nevertheless, the
role of the Nudelman agreement and its effect on the rela-
tionships among Sause, Schnitzer, and S was at issue in the
trial court and in the background throughout these proceed-
ings, and we turn to that agreement now.
Neither party argues that the Nudelman agree-
ment affirmatively establishes Sause’s claim of legal parent-
age of S.9 Indeed, although Schnitzer’s agreement with the
9
In the trial court, Sause expressly disclaimed the position that the
Nudelman agreement granted her parentage of S, stating, “Sause does not assert
the Nudelman Agreement as the source of her parental rights. Rather, her rights
Cite as 371 Or 573 (2023) 609
gestational carrier unambiguously established his intended
parentage of S, the Nudelman agreement unambiguously
does not establish Sause’s intended parentage.10 There is
no affirmative statement of intended parentage, nor would
section 2 of the agreement, quoted above—which limited
Sause’s contact with and responsibility for S—be consistent
with an agreement establishing intended parentage.
But both parties maintain that the Nudelman agree-
ment and other documents executed by the parties play some
role in discerning their shared intentions. For example,
Sause argues in this court that “the Nudelman Agreement
expressly preserved a role for [Sause] as [S’s] maternal
parent.” And the parties placed the significance of the
Nudelman agreement squarely before both the trial court
and the Court of Appeals. In the trial court, Sause argued
that the Nudelman agreement “memorializ[ed] her intent to
be a parent of any resulting offspring” and that she signed
it “with the reasonable understanding that its core terms
would govern and control the impact of any additional docu-
ments signed” in the process. Schnitzer argued in the trial
court that the Nudelman agreement should be enforced and
stated, “the review of the contract that was executed by
both parties grants Ms. Sause no rights. It limits whatever
rights she may have.” In other words, although Schnitzer
argued that Sause had no rights with respect to S, parental
or otherwise, he recognized that the Nudelman agreement
was relevant to determining those rights.
In the Court of Appeals, Schnitzer shifted his posi-
tion slightly and expressly recognized that Sause may have
a future role in S’s life and that the Nudelman agreement
would at least partially define that role, within the bounds
of public policy:
“Nothing in Section 2 [of the Nudelman agreement] would
preclude [Sause] in the future from playing a role in the
result from the undisputed fact that she is the biological and genetic mother of
the child, together with the fact that she has never knowingly and intentionally
waived her parental rights.”
10
The trial court held that the Nudelman agreement did not effectively waive
any parental rights that Sause may have had, a conclusion that we do not ques-
tion here. But that is a different question from whether the agreement created
any contractual, nonparental rights regarding Sause’s relationship with S.
610 Sause and Schnitzer
child’s life, either through agreement with Schnitzer (his
testimony shows no intent to shut Sause permanently out
of the child’s life) or if necessary through a binding third
party determination of the child’s best interests, and an
order to that effect.”
Additionally, both parties sought attorney fees on the basis
that they were enforcing the Nudelman agreement, indi-
cating that the significance of the agreement was squarely
before the trial court.
Thus, the legal effect of the Nudelman agreement
has been contested at all stages of this case. Because the
trial court determined that Sause was a legal parent of S
and proceeded on federal constitutional grounds, however,
the parties have not had a meaningful opportunity to liti-
gate the extent to which the Nudelman agreement, or any
other agreement between the parties, affirmatively estab-
lishes any nonparental rights that Sause may have with
respect to S.
Whether a gamete donor like Sause can seek lim-
ited rights to visitation or contact with S based on her
agreements with Schnitzer is not a question that Oregon
courts have considered. As the use of ART has increased,
however, so too has the need for the enforcement of contracts
between intended parents, gestational surrogates, and gam-
ete donors for the sake of determining parentage or nonpa-
rental, contractual rights, as this case has illuminated. See
Maria E. Garcia, In with New Families, Out with Bad Law:
Determining the Rights of Known Sperm Donors Through
Intent-Based Written Agreements, 21 Duke J Gender L &
Pol’y 197, 219 (2013) (discussing the importance of recog-
nizing and enforcing written agreements between known
donors and intended parents).
Similarly to the way that a “birth relative” and an
adoptive parent may enter into a written agreement to per-
mit continuing contact between the birth relative and the
child under ORS 109.268(2), for example, an intended par-
ent and a known gamete donor in an ART context presum-
ably may enter into a written agreement for potential con-
tact between the donor and the resulting child. As discussed
above, that and other statutes support the proposition that
Cite as 371 Or 573 (2023) 611
families can determine their structure through contracts
and agreements, within other statutory and constitutional
limitations.
As Schnitzer recognized in his brief, “[a]ny court
has authority to refuse enforcement to provisions of a con-
tract, but the standard for doing it is strict. Public policy is
‘a very unruly horse,’ and a court will not override contract-
ing parties’ will on that basis without an ‘overpowering’
reason.” (Quoting Harrell v. Travelers Indemnity Company,
279 Or 199, 206, 213, 567 P2d 1013 (1977).) Public policy
factors, including the best interests of the child and the
parent’s ability to make the “best decisions concerning the
rearing of that parent’s child[ ],” Troxel v. Granville, 530 US
57, 68-69, 120 S Ct 2054, 147 L Ed 2d 49 (2000), will be
important factors in a court’s decision to enforce a written
agreement for visitation or contact. Whether those factors
“overpower” the parties’ written agreement will be issues
for a trial court to decide based on the facts, the specific
statutes that may apply to the relationships at issue, and
the parties’ arguments.
We therefore conclude that, although the Nudelman
agreement does not establish that Sause is a legal parent of
S, Sause may have bargained for certain nonparental rights
with respect to S. As we have noted above, surrogacy and
other ART contracts are generally enforceable within the
bounds of public policy. Because the trial court concluded
that Sause was a legal parent of S, with all the rights and
responsibilities of that legal status—a determination that
we have concluded was legal error—the court did not deter-
mine the extent of legally enforceable contractual rights
that Sause may have based on her written and unwritten
agreements with Schnitzer. On remand, the parties will
have the opportunity, if they wish, to litigate the extent
of Sause’s nonparental rights with respect to S, and the
court may determine the extent to which those rights are
enforceable. The trial court will be tasked with evaluating
any agreements between Sause and Schnitzer, including
the Nudelman agreement, pursuant to the framework set
out in Yogman v. Parrott, 325 Or 358, 937 P2d 1019 (1997),
which may require consideration of extrinsic evidence of the
612 Sause and Schnitzer
parties’ intent in the time leading up to the formation of the
agreement.
Finally, we note that Justice Bushong’s dissent
asserts that we are holding that “Oregon law allows a per-
son to ‘contract into’ parental rights without going through
adoption procedures,” which it contends is legal error. 371
Or at 639, 640-41 (Bushong, J., dissenting). It then states
that, if Schnitzer can become a parent through a contract—
and not based on his genetic connection to S—then Sause
can as well. 371 Or at 640 (Bushong, J., dissenting). We
disagree. First, Schnitzer’s parentage is not at issue in
this case. No one disputes that he is a legal parent of S,
based on his surrogacy agreement and the stipulated judg-
ment in the declaratory judgment proceeding, and no party
questions his status as S’s legal parent or argues that he
must go through adoption procedures to become a legal par-
ent. Second, we are not remanding for a determination of
whether Sause can establish “parentage” through contract.
We have already held that she is not S’s legal parent. Rather,
we remand because she and Schnitzer had at least one writ-
ten agreement related to S, and Sause may have enforce-
able, nonparental, contractual rights under that agreement.
Although a right to be known to a child, to visit, or to have
an ongoing relationship may certainly overlap with some
“parental” rights, when their source is an agreement with
the intended parent—as may be the case here—those rights
do not establish one’s legal parentage.11
11
As noted, Justice Bushong’s dissent contends that, if Schnitzer can “con-
tract into” legally cognizable parental rights, then Sause can, too, under the
“equality principle.” 371 Or at 638 (Bushong, J., dissenting). That is incorrect.
Among other factual and legal differences in their circumstances, discussed
above, Schnitzer had a surrogacy contract with S’s legal parents at birth (the
gestational carrier and her husband) consenting to Schnitzer’s intended parent-
age, while Sause did not. Thus, Schnitzer was able to challenge the legal parents’
parentage under ORS 109.070(2)—which provides that the parentage of a birth
mother and her spouse “may not be challenged by a person other than a spouse as
long as the spouses are married and are cohabitating, unless both spouses consent
to the challenge” (emphasis added)—and obtain a declaratory judgment estab-
lishing his parentage. But Sause did not have the consent of the legal parents, so
an effort by her to challenge their parentage would be barred by that statute.
Justice Bushong’s dissent also makes a number of potentially broad state-
ments about Oregon parentage law, including that there can be no contractual
basis for parentage except through adoption and that “[c]ontracts in this context
can terminate parental rights arising from other presumptions of parentage, but
they cannot create parental rights on their own.” 371 Or at 638 (Bushong, J.,
Cite as 371 Or 573 (2023) 613
E. Attorney Fees
We briefly turn to the question of attorney fees.
Schnitzer was awarded attorney fees on appeal, and Sause
now challenges that award. Sause did not, however, raise
that issue in her petition for review, nor did she amend her
petition for review to include that issue after the Court
of Appeals had awarded Schnitzer attorney fees, so it is
not before this court. See ORAP 9.20(2) (“[T]he questions
before the Supreme Court include all questions properly
before the Court of Appeals that the petition or the response
claims were erroneously decided by that court.” (Emphasis
added.)); see also ORAP 9.17(2)(b)(i) (“[T]he brief [on the
merits on review] may not raise additional questions or
change the substance of the questions already presented
[in the petition for review].”); Parrott v. Carr Chevrolet, Inc.,
331 Or 537, 541 n 3, 17 P3d 473 (2001) (relying on ORAP
9.17(2)(b)(i) and ORAP 9.20(2) to decline consideration of
the defendant’s request to reverse an award of attorney fees
that the defendant had made in its brief on the merits, but
not in its petition for review). And, “[a]lthough this court
has discretion to consider ‘other issues that were before the
Court of Appeals,’ ” we decline to do so here. Miller v. City of
Portland, 356 Or 402, 410 n 4, 338 P3d 685 (2014) (quoting
ORAP 9.20(2)).
III. CONCLUSION
Schnitzer wanted to have a son through ART, and
Sause gave Schnitzer her eggs to support that process. As
explained above, in these circumstances, Sause’s genetic
link to S does not make her his legal parent. At the same
time, both she and Schnitzer hoped that she would play
some role in S’s life, and agreements between them provide
a basis for Sause to seek to prove those contractual rights.
We therefore reverse the judgment of the trial court and
remand for further proceedings in that court to declare the
legal parentage of S and to determine the extent of Sause’s
contractual, nonparental rights, if any, with respect to S.
dissenting) (emphases in original). Those statements are offered without citation
to case law or statute, and may well be at odds with the understanding of many
of those involved in the ART process.
614 Sause and Schnitzer
The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
is reversed, and the case is remanded to the circuit court for
further proceedings.
BUSHONG, J., dissenting.
Petitioner Sause contributed eggs that were fertil-
ized through in vitro fertilization (IVF) with sperm sup-
plied by her then-boyfriend—respondent Schnitzer—and
implanted in a gestational surrogate, resulting in the birth
of a child, S. The majority opinion concludes that neither bio-
logical parent has any legally cognizable parental interest
in S based on their genetic connection. Instead, the majority
opinion concludes that Schnitzer is S’s legal parent based
on his contract with the gestational surrogate and her hus-
band, and that Sause might have some contractual—but
not parental—interest in S, to be determined on remand.
Because I disagree with the majority opinion’s conclusions
and the legal analysis it utilizes to reach those conclusions,
I respectfully dissent.
In my view, Sause’s undisputed genetic link to S
does not automatically make her a legal parent, but it does
give her a parental interest that has legal significance—just
as Schnitzer’s genetic link gave him a parental interest that
has legal significance—under Oregon parentage law and the
Due Process Clause of the Fourteenth Amendment to the
United States Constitution. The majority opinion’s conclu-
sion that neither genetic parent has any legally significant
parental interest is, in my view, based on a misreading of
the law. Further, I agree with the trial court that nothing in
Oregon parentage law or the written agreements and con-
sent forms that Sause signed as part of the assisted repro-
ductive technology (ART) process precluded the trial court
from determining that Sause was S’s legal parent. And the
majority opinion’s conclusion that Schnitzer has “contracted
into” a parental interest, is, in my view, both unprecedented
and contrary to established Oregon law. Accordingly, I
dissent.
Cite as 371 Or 573 (2023) 615
I. DISCUSSION
A. Sause has a legally protected parental interest under
Oregon law.
I agree with the majority opinion that Sause’s
genetic link with S does not by itself make Sause a legal par-
ent. But, in my view, that link does give rise to a parental
interest that has legal significance under Oregon parent-
age law. The majority opinion misinterprets Oregon law in
reaching a contrary conclusion. To understand the role that
genetics plays in Oregon parentage law, it is helpful to place
that law in the context of its common-law roots and its his-
torical evolution, as the majority opinion has done. However,
the majority opinion’s historical overview is incomplete.
What is missing from the majority opinion’s over-
view is a discussion of the legislature’s enactment of an
“equality principle” in response to legal presumptions that
subordinated women to men under the common law and how
that principle applies to help resolve disputed parentage
claims today. Originally, Oregon law adhered to the marital
presumption, which conclusively established that the man
married to a child’s mother is the child’s legal father. That
presumption and related concepts in the common law and
early statutes reflected the law’s misogynistic approach to
parentage. By overlooking the legislative response to the
law’s historical mistreatment of women, the majority opin-
ion misinterprets the role that genetics has always played in
Oregon parentage law. I begin with the omitted portion of
that overview.
The conclusive marital presumption was consistent
with criminal laws, social norms, and religious doctrines for-
bidding women to have sex outside of marriage. See Joanna
L. Grossman, Thoroughly Modern Motherhood, 74 SMU L Rev
277, 280-81 (2021) (“The marital presumption * * * repre-
sented not only the state’s best guess as to the father of a
married woman’s child but also the state’s normative prefer-
ence. Sex with anyone else was taboo, even illegal perhaps
* * *.”). Courts prohibited anyone from disputing the marital
presumption through evidence that the husband could not
have fathered the child because he was infertile or lacked
616 Sause and Schnitzer
sexual access to his wife. See Westfall v. Westfall, 100 Or
224, 239, 197 P 271 (1921) (“It is well settled on grounds of
public policy, affecting the children born during the mar-
riage, * * * that the presumption of legitimacy as to children
born in lawful wedlock cannot be rebutted by the testimony
of the husband or the wife[.]”); Douglas NeJaime, The Nature
of Parenthood, 126 Yale LJ 2260, 2272 (2017) (noting that,
if a child was conceived outside of marriage, the presump-
tion “allowed the husband to pretend he was the biological
and thus legal father * * * [and] the couple themselves could
not penetrate the presumption with inconsistent biological
facts”).
That conclusive marital presumption, along with
the harsh treatment of “illegitimate” children at common
law, “reflected and enforced a gender-hierarchical order”
whereby “marriage subordinated women to men in both the
spousal and parenting relationship.” NeJaime, 126 Yale LJ
at 2273. The subordination of married women to their hus-
bands was further reflected in the common-law rule that
fathers were entitled to the custody of their minor children
as against the children’s mothers and all other persons.
Bryant v. Dukehart, 106 Or 359, 370, 210 P 454 (1922). That
rule was based on the principle that “the husband and wife
were a legal unit, and that the rights of the husband and
wife were exercised by the husband alone.” Id.In 1880, the legislature responded to that inequal-
ity by enacting an “Act to Establish and Protect the Rights
of Married Women” (the 1880 Act).1 The Codes and General
Laws of Oregon, ch XVIII, title I, § 2878 (Hill 1887). The
1880 Act provided:
“Henceforth the rights and responsibilities of the par-
ents, in the absence of misconduct, shall be equal, and the
mother shall be as fully entitled to the custody and con-
trol of the children, and their earnings, as the father, and
in case of the father’s death the mother shall come into as
full and complete control of the children and their estate as
the father does in case of the mother’s death. All laws and
1
Although the title of the 1880 Act stated that it established and protected
the rights of “married women,” its text refers to the rights and responsibilities
of “the mother” without limiting those rights and responsibilities based on the
mother’s marital status.
Cite as 371 Or 573 (2023) 617
portions of law inconsistent with the foregoing are hereby
repealed.”
That provision abrogated the common-law rule that had
vested superior custodial rights to the father over the mother.
It did so based on a recognition of “the nurturing of children
that mothering brought” and thus provided more protections
for women to retain custody over their children upon the
father’s absence. Philip F. Schuster II, Constitutional and
Family Law Implications of the Sleeper and Troxel Cases: A
Denouement for Oregon’s Psychological Parent Statute?, 36
Willamette L Rev 549, 564-65 (2000).
The enactment of the 1880 Act placed women
on more equal footing by giving both biological parents—
including mothers—the right to custody of their children
unless they were unfit or unable to care for their child. See
Barnes v. Long, 54 Or 548, 550, 104 P 296 (1909) (noting
that, in a divorce decree, “the custody of the child was given
to the wife, and properly so”). In Ingalls v. Campbell, 18 Or
461, 469, 24 P 904 (1889), this court noted that, although the
1880 Act did not give mothers the right to appoint a testa-
mentary guardian, the statute did give mothers “equality of
rights as to the custody of the children.” The “equality prin-
ciple” adopted in the 1880 Act has been retained in Oregon’s
parentage statutes and is now codified in slightly reworded
form as ORS 109.030.
In more recent decades, Oregon parentage laws
have evolved to eliminate illegitimacy and recognize pater-
nity based on a man’s actual and acknowledged genetic con-
nection with a child. In 1953, Oregon enacted the “Uniform
Act on Blood Tests to Determine Paternity” (the 1953 Act).
Or Laws 1953, ch 628. The 1953 Act authorized courts to
use blood types to determine “the possibility of the alleged
father’s paternity[.]” Id. § 4.2 That provision, which is codified
2
The 1953 Act provided, in part:
“Section 1. In a civil action under title 28, chapter 9, O.C.L.A., in which
paternity is a relevant fact, the court, upon its own initiative or upon sugges-
tion made by or on behalf of any person whose blood is involved may, or upon
motion of any party to the action made at a time so as not to delay the pro-
ceedings unduly, shall order the mother, child and alleged father to submit to
blood tests. If any party refuses to submit to such tests, the court may resolve
618 Sause and Schnitzer
as ORS 109.258, establishes a “disputable presumption
of paternity” if blood or DNA testing shows a genetic link
between the man and the child. See Or Laws 1995, ch 608,
§ 5 (amending the definition of “blood tests” in ORS 109.251
to include DNA testing as an approved method of determin-
ing paternity).3
In 1975, the legislature amended ORS 109.070 to
allow the filing of a “joint declaration of paternity” sup-
ported by sworn statements “of the natural father and the
mother that the natural father is the father of the child and
that there is no legal father.” Or Laws 1975, ch 640, § 3. That
law was subsequently amended in 1995 to allow a putative
father to file a “voluntary acknowledgment of paternity.” Or
Laws 1995, ch 514, § 7. Such a filing “establishes paternity
as a rebuttable presumption for all purposes.” Id.
Although this court had noted in 1959 that “the
modern trend [was] away from the rule of conclusiveness,”
Burke v. Burke, 216 Or 691, 697, 340 P2d 948 (1959), the
Oregon legislature did not abolish the conclusive marital
presumption until 2007, when it made the presumption
rebuttable in all circumstances. See Or Laws 2007, ch 454,
§ 1 (amending ORS 109.070).4
As a result of those legislative actions, modern
Oregon parentage law explicitly relies on either marriage
or a genetic connection—established through blood or
the question of paternity against such party or enforce its order if the rights
of others and the interests of justice so require.
“* * * * *
“Section 4. If the court finds that the conclusions of all the experts, as dis-
closed by the evidence based upon the tests, are that the alleged father is not
the father of the child, the question of paternity shall be resolved accordingly.
If the experts disagree in their findings or conclusions, the question shall be
submitted upon all the evidence. If the experts conclude that the blood tests
show the possibility of the alleged father’s paternity, admission of this evi-
dence is within the discretion of the court, depending upon the infrequency
of the blood type.”
Or Laws 1953, ch 628, §§ 1, 4.
3
By the mid-1990s, DNA testing had “progressed to the point where the reli-
ability and validity of properly collected and analyzed DNA data should not be in
doubt.” State v. Lyons, 324 Or 256, 267, 924 P2d 802 (1996); see also Jill Adams,
Paternity Testing: Blood Types and DNA, 1 Nat Educ 146 (2008).
4
Under ORS 109.070(2), the statutory rebuttable presumption may be chal-
lenged by either spouse or by a third party with the consent of both spouses.
Cite as 371 Or 573 (2023) 619
DNA tests, or through filing a written acknowledgment—
between a man and his offspring to establish a presump-
tion of paternity. Historically, maternity was not a disputed
issue; the woman giving birth had an undeniable biological
and genetic link to the child and was thus legally the child’s
mother. But advances in reproductive technology—initially,
artificial insemination (AI),5 and later, in vitro fertilization
(IVF)6 —have changed the landscape, and the law has slowly
(and incompletely) responded.
Until it was abolished in 2007, the conclusive mar-
ital presumption—which treated the husband of the birth
mother as the child’s legal father—continued to be applied,
though it applied only to a husband “who was not impotent
or sterile at the time of the conception of the child.” ORS
109.070(1)(a) (2005). AI made it possible for men who did not
want to become “fathers” to donate semen to help infertile
couples conceive a child, resulting in a genetic connection
between the donor and the child without the corresponding
parental rights and responsibilities. AI also made it possi-
ble to inseminate a surrogate mother who would give birth
to a child for the intended parents, without ever intending
to become a parent herself. Although the surrogate would
have a biological and genetic connection with the child, like
a semen donor, surrogates generally did not want to have
any parental rights or responsibilities.7 Later, IVF made it
5
Artificial insemination (AI) was first reported in the late 1700s and entered
wider use between the 1950s and 1970s. See W. Ombelet & J. Van Robays,
Artificial Insemination History: Hurdles and Milestones, 7 Facts Views Vis Obgyn
137, 138, 140 (2015). Through AI, conception could occur, for the first time in
history, without sexual intercourse. There were essentially two types of recog-
nized AI: artificial insemination by husband (AIH) and artificial insemination
by donor (AID). See George P. Smith, II, Through a Test Tube Darkly: Artificial
Insemination and the Law, 67 Mich L Rev 127, 128 (1968).
6
In vitro fertilization (IVF), which was first used successfully in 1978,
involves combining eggs and sperm in a laboratory setting and implanting the
resulting zygote into a uterus. IVF made egg donation and gestational surrogacy
possible, meaning that, for the first time, a gestational parent might not be a
genetic parent. Grossman, 74 SMU L Rev at 292.
7
The parties’ intent was usually memorialized in a surrogacy agreement
whereby the surrogate agreed to the procedure and agreed to waive her parental
claim to the child in favor of the intended parents. Although this court has never
addressed surrogacy agreements, the Court of Appeals has addressed them. See
In re Adoption of Baby A and Baby B, 128 Or App 450, 877 P2d 107 (1994) (hold-
ing that the adoption statutes did not prohibit the adoption of a child conceived
through artificial insemination of a surrogate mother with the adoptive father’s
620 Sause and Schnitzer
possible, for the first time, for a fertilized egg to be implanted
in a surrogate, who would then give birth to a child without
having any genetic connection to the child. Conversely, IVF
also made it possible for a woman contributing eggs to have
a genetic connection to a child without giving birth to that
child.
As explained more fully below, the development of AI
and IVF led to some changes in Oregon parentage laws—in
particular, the enactment of the donor statute, ORS 109.239
(1977)—but none of those changes eliminated, in this con-
text, a genetic parent’s legally cognizable interest in the
child. Thus, under current Oregon parentage law, Sause’s
genetic link gives rise not to conclusive legal parentage, but
to a parental interest that has some legal significance.
As noted, one of the foundations of Oregon parent-
age law is the 1880 Act’s equality principle, which is cur-
rently codified as ORS 109.030. Before that statute was
amended in 2017,8 ORS 109.030 (2015) provided:
“The rights and responsibilities of the parents, in the
absence of misconduct, are equal, and the mother is as fully
entitled to the custody and control of the children and their
earnings as the father. In case of the father’s death, the
mother shall come into as full and complete control of the
children and their estate as the father does in case of the
mother’s death.”
Under the equality principle, parentage establishes
equal rights and responsibilities to children for both moth-
ers and fathers. Consistent with that principle, any source
of parentage must also reflect an equally cognizable interest
for both putative parents. For men, a genetic link between
father and child has always mattered under Oregon
sperm); see also Weaver v. Guinn, 176 Or App 383, 31 P3d 1119 (2001) (holding
that an “Artificial Insemination Surrogate Contract” that required the surrogate
mother to relinquish custody of the child to the father was not enforceable where
the child was ultimately conceived not through AI but through sexual intercourse
between father and the intended surrogate mother).
8
Oregon parentage law was modified by Senate Bill (SB) 512 (2017). Or Laws
2017, ch 651. SB 512 amended ORS 109.030, replacing the terms “mother” and
“father” with “parent,” consistent with the bill’s recognition of parental rights
in same-sex marriages. Or Law 2017, ch 651, § 50. The majority opinion con-
cludes that SB 512 does not apply to this case. 371 Or at 589-91. I agree with that
conclusion.
Cite as 371 Or 573 (2023) 621
parentage law, though it has not always been conclusive.
Before the conclusive marital presumption was abolished in
2007, it precluded a man from using blood or DNA testing
to establish paternity over a child born to a woman married
to a different man at the time of conception. But blood or
DNA testing could always establish a man’s paternity over
a child born to an unmarried woman. After the conclusive
marital presumption was abolished in 2007, being married
to the birth mother at the time of conception gave rise to a
rebuttable presumption of paternity; in some circumstances,
that presumption could be rebutted by blood or DNA testing
showing that someone else was the child’s biological father.
See ORS 109.070(2).9 Similarly, filing a voluntary acknowl-
edgment of paternity gives rise to a rebuttable presumption
of paternity. Blood or DNA testing can be used to support or
rebut that presumption. Thus, to establish a man’s pater-
nity, genetics has always mattered.
For women, establishing maternity was simple
until IVF was developed. Aside from adoption, the only way
a woman could establish maternity was by giving birth to
the child, resulting in an undeniable biological and genetic
link between them. The widespread use of AI did not change
things for women; the birth mother—even a gestational
surrogate—would still have a biological and genetic connec-
tion with the child.10 But when it became possible to fer-
tilize a woman’s eggs through IVF and implant the result-
ing embryo in a gestational surrogate, the possibility arose
for the first time that the birth mother would not have any
genetic connection to the child.
Under Oregon law, a woman can establish a pre-
sumption of parentage by giving birth to a child. ORS
109.065(1)(a). There is no express statutory mechanism
allowing a woman to establish her parental interest by fil-
ing a voluntary acknowledgment of maternity or through
9
Under ORS 109.070(2), the presumption of paternity arising from marriage
or the filing of a voluntary acknowledgment of paternity “may be challenged in
an action or proceeding by either spouse,” and it may be challenged by any other
person if both spouses consent to the challenge.
10
As discussed above, a gestational surrogate impregnated using AI could
sign a “Surrogacy Agreement” that committed her to surrender the child at birth
to the intended parents, who would adopt the child, as in In re Adoption of Baby
A and Baby B, 128 Or App at 453.
622 Sause and Schnitzer
blood or DNA testing showing her genetic link to the child.
However, Oregon law does recognize that a woman other
than the birth mother can be declared a child’s legal par-
ent. See ORS 109.065(1)(c), (h). In Thom v. Bailey, 257 Or
572, 588, 481 P2d 355 (1971), we held that the statute stat-
ing that parentage could be “established or declared by
another provision of law” (ORS 109.065(1)(h)) authorized a
person claiming a right to inherit from a deceased “parent”
to file a declaratory judgment action to establish paternity.
Consistent with our decision in Thom, a woman can seek to
establish parentage by filing a declaratory judgment action,
as Sause did in this case. And, under a statute enacted in
2013, ORS 432.088(8),11 a person claiming to be a child’s
parent can seek a court order requiring that person to be
listed as a parent on the child’s birth certificate, which
Sause requested in this case.
However, the current statutes do not explain how
a court should resolve a woman’s parentage claim in this
context, nor do they expressly state that a woman with a
genetic link to a child conceived through IVF can estab-
lish parentage in the same way as a man. But, consistent
with the equality principle under ORS 109.030, it is highly
unlikely that the legislature intended to place genetics at the
forefront of a man’s parentage claim while making genetics
irrelevant to a woman’s parentage claim. Rather, the best
reading of these statutes is that the legislature intended to
treat men and women equally with respect to their parent-
age claims, consistent with the equality principle that has
existed in various forms since 1880.12
11
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.”
12
The majority opinion suggests that the “equality principle” and the source
of Schnitzer’s parentage are irrelevant, contending that Schnitzer is “an undis-
puted parent” because creating a male child through ART “was his idea, and he
took the contractual and legal steps to accomplish that, while Sause did not.” 371
Or at 595 n 3. But legal parentage has never depended upon “whose idea” it was to
have a child. The only clear contractual step that Schnitzer took was his contract
with the surrogate and her husband, which is legally insufficient to “contract
into” parental rights, as explained below. And the only legal step that Schnitzer
took was filing a declaratory judgment action the day after S’s birth—which did
Cite as 371 Or 573 (2023) 623
Applying that principle to the novel circumstances
presented here leads to the conclusion that, under Oregon
law, Sause has a legally significant parental interest in S by
virtue of her undisputed genetic link to S, just as Schnitzer
has a legally significant parental interest based on his
genetic link to S.
The majority opinion offers two reasons why a
genetic link does not matter in this context. First, the major-
ity opinion concludes that a genetic link established through
blood or DNA testing, as authorized by ORS 109.258, cre-
ates an “evidentiary presumption” that does not apply
“where genetic parentage is undisputed.” 371 Or at 597. But
the majority opinion offers no reason why genetics should
matter—and, in many cases, would be determinative of
parentage—only for purposes of child support when genetic
paternity is disputed but would be irrelevant when genetic
parentage is undisputed. Moreover, the majority opinion’s
reasoning overlooks the fact that a biological and genetic
connection has always been a basis, at least presumptively,
for parentage, even before DNA and blood testing were
available.
Second, the majority opinion concludes that a
genetic link is irrelevant in this context because Sause’s
parentage claim is “foreclosed by the donor statute, ORS
109.239 (1977),” 371 Or at 597-98, which the majority
opinion assumes applies equally to egg donors and sperm
donors, 371 Or at 599, 599 n 6. In reaching that conclusion,
the majority opinion observes that a parentage claim based
on genetics under Oregon parentage law requires “an adju-
dication or other proceeding” in which a court “can deter-
mine whether the putative parent’s maternity or paternity
is a valid basis for parentage.” 371 Or at 597-98 (citing ORS
not name Sause as a party, and which was supported by an inaccurate declara-
tion from Dr. Patton, an OHSU physician who knew Schnitzer personally. Patton
stated in his declaration that “[e]ggs were retrieved from a donor and fertilized
with sperm collected from [Schnitzer],” which resulted in embryos created from
“donor eggs” and Schnitzer’s sperm. Patton later acknowledged under oath that
he did not oversee the creation of the Sause-Schnitzer embryos, and that he was
not involved in the documentation for the needed consents and directives. Patton
further acknowledged that he was not “technically correct” in stating that the
embryo transferred to the gestational carrier had resulted from “donor eggs.”
624 Sause and Schnitzer
109.258 and ORS 109.065). However, the majority opinion’s
rejection of a genetic link as the basis for a legally protected
interest in parentage cannot be based on the absence of “an
adjudication or other proceeding,” because the trial court
determined the validity of Sause’s parentage claim in this
case. Rather, the majority opinion’s conclusion hinges on its
interpretation of the donor statute, ORS 109.239 (1977).
In my view, the majority opinion has misinterpreted
the intended scope of that statute. I turn to that issue next.
B. The majority opinion misinterprets ORS 109.239 (1977),
Oregon’s donor statute.
The majority opinion concludes from the text and
context of ORS 109.239 (1977) that the statute “was intended
to apply to all those who contributed semen for use in AI”
if they were not the mother’s husband and that the “[t]he
available legislative history confirms that understanding.”
371 Or at 600. I disagree. In my view, the text and context
of the statute show that the legislation was not intended
to apply when semen is contributed by a man selected by
the intended parents—typically a friend, intimate part-
ner, or relative, commonly referred to as a “known” or
“directed” donor—and the legislative history confirms that
understanding.
That difference is significant, because the majority
opinion concludes, based on its misreading of the intended
scope of the statute, that “neither Schnitzer nor Sause have
any ‘rights, obligations or interest’ with respect to S simply
based on their genetic connection to S.” 371 Or at 602. In my
view, that conclusion is inconsistent with Oregon parentage
law, as explained above, and is based on a misreading of the
intended scope of the donor statute, as explained below. I
begin with the text and context of that statute.
1. Text and context
ORS 109.239 (1977) provided:
“If the donor of semen used in artificial insemination is
not the mother’s husband:
Cite as 371 Or 573 (2023) 625
“(1) Such donor shall have no right, obligation or inter-
est with respect to a child born as a result of the artificial
insemination; and
“(2) A child born as a result of the artificial insemina-
tion shall have no right, obligation or interest with respect
to such donor.”
That statute plainly does not apply to Sause because she con-
tributed her eggs; she is not a “donor of semen.” The majority
opinion reasons, however, that, if a “donor of semen” does not
have a legally protected parental interest, then a similarly
situated “donor of eggs” also should not have a legally pro-
tected interest.
I have no quarrel with that application of the equal-
ity principle. The problem, however, is that the donor statute
was intended to apply only to husbands who donated semen
to inseminate their wives and anonymous semen donors who
did not intend to become parents or have any connection
with the child conceived using their donations. The law was
never intended to apply to known or directed semen donors
who intended to be parents, so it would not apply to known
or directed egg donors who intended to be parents either.
The limited intended scope of the donor statute is revealed
by analyzing the statutory text, in context, and is confirmed
by its legislative history.
ORS 109.239 (1977) presumed that a semen donor
could be the mother’s husband or a donor who was not the
mother’s husband. Or Laws 1977, ch 686, § 5. On its face, that
wording could be read to include known or directed donors
selected by the intended parents. However, that broad read-
ing is refuted by another provision enacted as part of the
same act, ORS 677.360, which provided—and continues to
provide—that only licensed physicians and those under their
supervision could perform AI, and that physicians and those
under their supervision were the only ones who could “select
artificial insemination donors.” Or Laws 1977, ch 686, § 2.
Because ORS 677.360 did not give the intended parents a
role in selecting the semen donor, the 1977 donor statute was
not meant to apply to donors who were specifically selected
by the intended parents. Neither was it meant to apply to a
man not married to the birth mother who contributed his
626 Sause and Schnitzer
semen to create a child he intended to parent, as Schnitzer
did in this case.
Considering the words of the statute in the context
of how AI terminology was used at the time confirms that
the 1977 donor statute was intended to address only AI
using semen donated by the birth mother’s husband or by
an anonymous donor whose intent was to give up his semen
to help people he did not know conceive a child. ORS 109.239
(1977) was not intended to address the rights of men who
contributed semen to a friend, intimate partner, or relative
with the intent to become the child’s parent.13
The context of the statute—which includes the
meaning of terms used in the medical field and, more partic-
ularly, the field of reproductive technology—confirms that
limited scope of the legislation. See Comcast v. Dept. of Rev.,
356 Or 282, 296-97, 337 P3d 768 (2006) (for statutory terms
drawn from a specialized trade or field, court considers their
meaning and usage in the discipline from which the legis-
lature borrowed them). Within the medical field generally,
a donor is a person “from whom blood, tissue, or an organ
is taken for transplantation.” Stedman’s Medical Dictionary
536 (27th ed 2000). Blood, tissue, organs, and similar body
parts or substances are donated with the intent of benefit-
ting another already-existing human being. Donations of
that type are not made for purposes of reproduction; that
is, to bring a new human into the world with the genetic
imprint of the donor.
13
The Court of Appeals interpreted ORS 109.239 (1977) in McIntyre v.
Crouch, 98 Or App 462, 780 P2d 239, rev den, 308 Or 593 (1989), cert den, 495 US
905 (1990). That case generated three opinions, but no majority. The ultimate
disposition of the case, which had been resolved on summary judgment, was a
remand for trial. Two judges agreed that the putative father in the case was a
“donor” for purposes of ORS 109.239. Id. at 467-68 (Newman, J., lead opinion);
id. at 474 (Richardson, J., dissenting). And two judges agreed that, if the facts
were as the putative father had alleged, the statute as applied violated federal
due process principles. Id. at 470 (Newman, J., lead opinion); id. at 472 (Deits, J.,
specially concurring). One judge would have also held that the putative father,
who was known to the semen recipient and allegedly had an agreement with her
to have a parental role in the child she gave birth to, was not a donor under the
statute. Id. at 473-74 (Deits, J., specially concurring). Of significance, McIntyre
was decided when legislature history could be considered only if a statute’s terms
were “ambiguous.” See Gaines, 346 Or at 171-72 (announcing change to statutory
interpretation methodology).
Cite as 371 Or 573 (2023) 627
Within the specialized medical field of assisted
reproductive technology, a donor—when not qualified by
adjectives like “known” or “directed”—is anonymous by
default; that is, someone who provides semen with the recip-
ient never knowing the donor’s identity and vice versa.14 A
donor in that sense has no expectation of a parental role of
any kind and wants none. To the contrary, the donor looks
for assurance that the donor’s name will never be disclosed,
so that the recipient of the semen cannot look to the donor
for any form of parental support or other obligation.15
That understanding fits with the origins of artifi-
cial insemination as a fertility service. Sperm banks were
not a reliable source of semen until the mid-1950s, when
successful procedures for freezing and thawing sperm
became available. Banks first existed on an informal basis
at some universities, where they were privately maintained
14
See, e.g., Elizabeth Watkins, Who’s Your Daddy? In Vitro-Fertilization and
the Parental Rights of the Sperm Donor, 30 U Fla J L & Pub Pol’y 131, 135-37
(2019) (discussing anonymous donors and known or directed donors); Amy B.
Leiser, Parentage Disputes in the Age of Mitochondrial Replacement Therapy,
104 Geo L J 413, 428 (2016) (“true” donor in the context of gamete donation is
“someone who contributes his or her gametes to someone else with no intention
of parenting the resulting child”); Paula J. Manning, Baby Needs a New Set of
Rules: Using Adoption Doctrine to Regulate Embryo Donation, 5 Geo J Gender &
L 677, 685-86 (2004) (sperm may come from a donor known to the woman or may
be donated anonymously; persons who elect to use anonymous sperm generally
purchase sperm from sperm banks that keep donor information confidential).
15
No contemporaneous source in the medical or legal fields discussed the
possibility of using “known or directed” donors in the practice of AI as it existed
in 1977. See Donald W. Brodie, The New Biology and the Prenatal Child, 9 J Fam
L 391, 395 (1970) (artificial insemination is classified as AIH when the husband’s
semen is used; AID where the semen of an anonymous donor is used; and com-
bined artificial insemination (CAI) where a combination of the husband’s and
an anonymous donor’s semen is used); see also Robert E. Lee, The Changing
American Law Relating to Illegitimate Children, 11 Wake Forest L Rev 415, 419
(1975) (for AID, the identity of the third party donor is “kept an absolute secret
by the doctor from even the husband and wife” while the “donor, of course, does
not know the identity of the couple”); Joseph E. Carr IV, Artificial Insemination:
Problems, Policies, and Proposals, 26 Ala L Rev 120, 121-22 (1973) (existing prac-
tice of artificial insemination is one in which semen is obtained from either the
husband of the recipient or “an anonymous third party donor”). A 2002 law review
article examined “anonymity” practices in the assisted reproduction field gen-
erally, beginning with AID in the 1940s and continuing up to the time the arti-
cle was written, with the author arguing that the then-still-prevalent practices
requiring anonymity could no longer be justified and that children are entitled
to know their biological origins. See Mary Lyndon Shanley, Collaboration and
Commodification in Assisted Procreation: Reflections on an Open Market and
Anonymous Donation in Human Sperm and Eggs, 36 Law & Soc’y Rev 257 (2002).
628 Sause and Schnitzer
by physicians for their own patients. In the early 1970s,
commercial banks began to open their doors. Nationally,
by 1973, there were three commercial sperm banks in exis-
tence, along with nine private banks at university medical
centers and other banks maintained by physicians in pri-
vate practice. Jody Lyneé Madeira, Understanding Illicit
Insemination and Fertility Fraud, from Patient Experience to
Legal Reform, 39 Colum J Gender & L 110, 131 (2019).
Semen donors during that period were university
students, medical students, and hospital residents, whose
semen was given anonymously and banked for future arti-
ficial insemination use by physicians. Naomi Cahn, The
New Kinship, 100 Geo LJ 367, 374 (2012); Dominick Vetri,
Reproductive Technologies and United States Law, 37 Int’l
& Comp L Q 505, 518-19 (1988). Physicians selected the
donors. Screening in those early years was casual, in part,
because medical students were thought to be of “above-
average intelligence and health” and likely to be more
aware of the health implications of their own family his-
tories. See Kathryn Venturatos Lorio, Alternative Means of
Reproduction: Virgin Territory for Legislation, 44 La L Rev
1641, 1651 (1984) (discussing physicians’ role in screening
donors and selecting which donor’s sperm would be used for
which recipient).
In its early years, artificial insemination was often
a clandestine and “fairly secret” practice. Cahn, 100 Geo LJ
at 374, 391-92. The anonymity of the donors and the selec-
tion of semen donors by physicians was a paramount fea-
ture; recipients were given no other choice.
Thus, the text and context of ORS 109.239 (1977)
indicate that the statute was intended to address only AI
using semen donated by the mother’s husband or by an
anonymous donor selected by the physician. I turn to the
legislative history.
2. Legislative history
The legislative history of ORS 109.239 (1977) con-
firms that the statute was intended to address semen
donations by husbands and anonymous donors only, con-
sistent with the accepted medical practice of AI when the
Cite as 371 Or 573 (2023) 629
statute was enacted. The chief drafters and proponents of
the 1977 bill were Jay Folberg, a family law professor at
Lewis & Clark Law School; Betty Bechtel, a law student;
and Dr. Nancy Alexander and Dr. Miles Novy, medical pro-
fessionals involved with the sperm bank at Oregon Health
& Science University (OHSU) and the University of Oregon
medical school. In their written testimony, Folberg and
Bechtel explained that artificial insemination had become
a medically accepted procedure used to facilitate reproduc-
tion to assist with fertility issues; that donors of semen were
either the husband or a third-party who usually “remain[ed]
anonymous”; and that the bill was needed to avoid legal
problems for all participants.16 Exhibit 1, Senate Committee
on Judiciary, HB 3193, July 2, 1977, 1 (written testimony
of Professor Jay Folberg and Betty Bechtel). For the recipi-
ent, the bill was designed to ensure that a married woman
could not be deemed an “adulteress” and have her marriage
annulled or invalidated. Id. at 2. For the husband, it solved
the problem that the statutory marital presumption did not
apply if the husband was impotent or sterile, which was the
usual case for couples using artificial insemination. Id. In
the usual case, therefore, the husband could not establish
paternity under existing law, leaving the child with no right
of support and care from the husband. Id.17 As for the typical
anonymous donor, Folberg and Bechtel explained, he would
be “an inappropriate person to hold responsible for the sup-
port and care of the child,” but under existing paternity laws
16
That testimony focused on husbands and wives, consistent with the fact
that, in the early years, use of artificial insemination by unmarried women was
rare. In addition to the social stigma of being an unmarried mother at that time,
most states laws did not permit the procedure to be performed for anyone other
than married couples; regardless of what state law permitted, physicians often
refused to perform the procedure for unmarried women. See Vetri, 37 Int’l & Comp
L Q at 512-19 (describing early statutes and physician unwillingness to perform
artificial insemination for unmarried women); see also Barbara Kritchevsky,
The Unmarried Woman’s Right to Artificial Insemination: A Call for an Expanded
Definition of Family, 4 Harv Women’s LJ 1,2-3 (1981) (similarly describing that
practice).
17
The protection of the relationship between the child and husband was
accomplished through ORS 109.243 (1977), which was another provision in the
bill that enacted ORS 109.239 (1977). Or Laws 1977, ch 686, § 6. ORS 109.243
(1977) provided that, if the husband had given consent to his wife’s artificial
insemination, the relationship, rights, and obligations between a child born as
a result of artificial insemination and the mother’s husband were the same as if
child were “naturally and legitimately conceived” by the mother and her husband.
630 Sause and Schnitzer
he could be held responsible if his identity were to become
known. Id.18
Thus, donor anonymity was a way to protect the
intended parents’ rights, protect the donor from paternity
actions, and protect the child from paternity actions by the
donor. See Tape Recording, Senate Committee on Judiciary,
HB 3193, June 27, 1977, Tape 50, Side 1 (testimony of
Professor Jay Folberg).19 Donor anonymity was also valued
because it ensured that no one other than a wife, her hus-
band, and their doctor knew that the child the woman was
bearing was not her husband’s biological child. Typically,
married couples used a donor’s semen because of the hus-
band’s infertility. The couples generally did not want the
child, or anyone else, for that matter, to know that the hus-
band was not the child’s biological father or to later attempt
to learn the biological father’s identity. Tape Recording,
House Committee on Judiciary, HB 3193, May 3, 1977, Tape
44, Side 1 (testimony of Professor Jay Folberg and Dr. Miles
Novy); Tape Recording, Senate Committee on Judiciary, HB
3193, June 27, 1977, Tape 50, Side 1 (testimony of Professor
Jay Folberg and Dr. Nancy Alexander).20
The written and oral testimony from the May 3,
1977, committee hearing in the House confirms that the
18
During testimony on the bill, in response to questions about the health of
donors, Alexander explained that the donors are mostly medical students, who
are very interested in their health and know their backgrounds quite well. Tape
Recording, Senate Committee on Judiciary, HB 3193, June 27, 1977, Tape 50, Side 1
(testimony of Dr. Nancy Alexander). In written testimony, she also explained that
the donor screening process was selective, accepting only about 40 percent of
the donor applicants, and that matching donor sperm to a specific patient was a
medical decision made by OHSU using “phenotypic match of physical character-
istics with a suitable donor.” Exhibit E, House Committee on Judiciary, HB 3193,
May 3, 1977, 1 (testimony of Dr. Nancy Alexander).
19
Folberg was active in national efforts to encourage states to pass AI legis-
lation. To his knowledge, the only cases that had arisen in the country involved
denials of paternity by husbands arguing, in divorce proceedings, that they
should not be required to pay support for AI children to whom their wives had
given birth. Tape Recording, Senate Committee on Judiciary, HB 3193, June 27,
1977, Tape 50, Side 1 (testimony of Professor Jay Folberg).
20
The legislators considering this bill were attuned to that concern because
of the growing public pressure to open Oregon’s adoption records so that adoptees
could determine the identity of their genetic parents (which passed by initiative
a few years later). See generally Tape Recording, House Committee on Judiciary,
HB 3193, May 3, 1977, Tape 44, Side 1; Tape Recording, Senate Committee on
Judiciary, HB 3193, June 27, 1977, Tape 50, Side 1.
Cite as 371 Or 573 (2023) 631
legislature understood that the legislation addressed the
then-existing AI practice of using semen from husbands or
anonymous donors only. Tape Recording, House Committee
on Judiciary, HB 3193, May 3, 1977, Tape 44, Side 1
(exchange between Rep David Frohnmayer and proponents).
Novy’s written testimony explained that (1) “inseminations
with semen from an anonymous third party” had become
prevalent and “the demand for this procedure” was increas-
ing; and (2) the bill’s purpose was to establish the legitimacy
and legal status of children resulting from AI. Exhibit A,
House Committee on Judiciary, HB 3193, May 3, 1977, 1
(testimony of Dr. Miles Novy) (emphasis added).21
Folberg and Bechtel’s written testimony also empha-
sized that the bill proposed “minimal regulations concern-
ing the practice of artificial insemination.” Exhibit D, House
Committee on Judiciary, HB 3193, May 3, 1977, 3 (testimony
of Professor Jay Folberg and Betty Bechtel). Novy further
explained that the AID program that he and Alexander
ran at OHSU served “infertile couples,” that the number
of “inseminations with semen from an anonymous third-
party donor * * * in Oregon are not precisely known,” and
that demand for “the procedure” was increasing as the num-
ber of children available for adoption was declining. Tape
Recording, House Committee on Judiciary, HB 3193, May 3,
1977, Tape 44, Side 1 (testimony of Dr. Miles Novy).22
The legislative history contains only one discussion
about the possibility of a donor who would not be anony-
mous. Tape Recording, House Committee on Judiciary, HB
3193, May 3, 1977, Tape 44, Side 1 (exchange between Rep
Frohnmayer and proponents). That discussion began with
Representative Frohnmayer saying that he was “curious”
why there was no provision in the bill, “pro or con,” about
21
Novy’s description of AID (artificial insemination by donor) is consistent
with descriptions of the practice in contemporaneous legal and medical sources.
22
At other points during the hearing, the bill’s proponents described the fact
that donors never know if their semen resulted in a pregnancy, that children
produced through AID were produced anonymously, that donors were usually
medical and graduate students who did not remain in the program for long, that
donors were screened and selected by the clinics who provided the semen, and
that records of donors’ identities remained confidential. Tape Recording, House
Committee on Judiciary, HB 3193, May 3, 1977, Tape 44, Side 1 (statements of
Professor Jay Folberg, Dr. Miles Novy, and Dr. Nancy Alexander).
632 Sause and Schnitzer
whether the donor “would be anonymous.” Id. He won-
dered, for example, how a clinic or physician would handle a
request by a couple who wanted a brother to be a donor. Id.Novy explained that “the overwhelming opinion on the part
of the physicians and among the consumers is to preserve
the anonymity of the donor.” Id. He urged that it “would be a
mistake * * * to put that into the legislation because in time
there might be particular exceptions” that should be settled
“on an individual basis.” Id.Frohnmayer then asked, “[U]nder the circumstances
in which you now administer the program, how many donors
or recipients know the identity of the other?” Id. Alexander
answered with an unqualified “[n]one.” Id. Novy then urged
that, if the public sentiment changed so that donors would
not be anonymous, legislation could be introduced to change
the practice and that, until that time, it would be better
“to go with the practice as it currently exists.” Id. Folberg
then explained that, unlike adoptees, AID-children rarely
even know that they were conceived through AID; the child
comes home with the mother from the hospital, so “the ques-
tion” of who is the father does not arise with family, friends,
and others. Id. Folberg emphasized, as Novy had explained,
that the existing practice was that physicians retained
donor records; those records could be opened if the prac-
tice of keeping them confidential were ever “reconsider[ed].”
Id. With that, Frohnmayer had no further questions about
donor anonymity, and his inquiry shifted to how physicians
screened donors for genetics and health.
That exchange can be reduced to this: Representative
Frohnmayer expressed concern that anonymity of donors
could be a problem if someone wanted a relative to be a
donor. The answer was, in effect, “that’s not the current AI
practice and not what this legislation addresses.” See Tape
Recording, House Committee on Judiciary, HB 3193, May 3,
1977, Tape 44, Side 1 (exchange between Rep Frohnmayer
and proponents). The AID practice in place was to use third-
party donors and to keep their identity confidential, which
everyone involved “overwhelmingly” preferred. Id. The leg-
islation was intended to address only the AID practice as
it was being administered in the clinics at the time; those
Cite as 371 Or 573 (2023) 633
were the only “donors” that the legislature and the bill’s
terms contemplated. In the future, the clinics would have
the latitude to handle requests to use family members or
other known donors as “exceptions” and deal with them on
an individual case-by-case basis if the practice changed. Id.There was no motion to amend the bill or other proposed
change that was voted on and rejected by the legislature.
Nor was there any proposal to narrow the term “donor”
that the legislature rejected. The sponsors and legislators
engaged in a normal exchange about the nature of what the
bill addressed and determined that the bill, as drafted, was
appropriate.
In sum, the committee hearings on the 1977 leg-
islation confirm that the bill was intended to address arti-
ficial insemination as it was then practiced by the medical
profession—a practice limited to the use of semen provided
by husbands and anonymous third-party donors. Thus, the
text, context, and legislative history of the donor statute,
ORS 109.239 (1977), all confirm that it was not intended to
address known or directed donors selected by the intended
parents, at all.
The majority opinion concludes that the legislative
history demonstrates that the law was always intended
to cover known or directed donors as well as anonymous
ones. It notes that the written testimony submitted by the
bill’s proponents indicated that donors “usually”—but not
always—remained anonymous; observes that Representative
Frohnmayer asked about known donors during the May 3,
1977, legislative hearing; and explains that the statute as
enacted was worded broadly enough to cover both anony-
mous and known semen donors.
It is true that one exhibit submitted by the bill’s
sponsors stated that donors other than the husband “usu-
ally” remained anonymous, but the bulk of the legislative
record reveals that the legislation was intended to cover AI
as it was practiced in 1977, using only husbands or anony-
mous donors. Similarly, although ORS 109.239 (1977) used
broad wording that could be interpreted to cover known as
well as anonymous donors, as the majority opinion notes,
such an interpretation is contrary to the provision in ORS
634 Sause and Schnitzer
677.360, which requires the AI doctor to select the donor. The
majority opinion’s overbroad interpretation is also contrary
to the context of how AI was understood and practiced at the
time. And, as noted, a close examination of the discussion
regarding Frohnmayer’s inquiry about known donors does
not support the conclusion that the legislature intended for
the law to cover known or directed donors selected by the
intended parents.
Aside from that single discussion about the possi-
bility of a known or directed donor, overall, the legislative
history confirms that the legislature intended ORS 109.239
(1977) to address the then-existing AI practice of using
semen from anonymous donors. The proponents explained
that donors never knew if their semen had resulted in a preg-
nancy, that children produced through AID were produced
“anonymously,” that donors were usually medical and grad-
uate students who did not remain in the program for long,
that donors were screened and selected by the clinics who
provided the semen, and that records of a donor’s identity
remained confidential. See generally Tape Recording, House
Committee on Judiciary, HB 3193, May 3, 1977, Tape 44,
Side 1 (statements of proponents).
In short, the overwhelming gist of the legislative
history establishes that ORS 109.239 (1977) addressed arti-
ficial insemination as it was then practiced by the medical
profession—limited to the use of semen provided by hus-
bands and anonymous third-party donors. It was never
intended to address known or directed donors. And it cer-
tainly was never intended to answer the novel question pre-
sented in this case: When two people in a romantic rela-
tionship jointly agree to contribute their eggs and sperm to
create a child that, at the time, they intended to parent as
their own—albeit, with different parental roles, depending
on whether the child was a boy or a girl—does each genetic
parent have a legally cognizable parental interest in that
child?
The majority opinion’s conclusion that “neither
Schnitzer nor Sause have any ‘rights, obligations or inter-
est’ with respect to S simply based on their genetic connec-
tion to S,” 371 Or at 602, relies entirely on the application of
Cite as 371 Or 573 (2023) 635
ORS 109.239 (1977) to known or directed donors selected by
the intended parents.23 Because that understanding of the
donor statute is mistaken, the majority opinion’s conclusion
is incorrect.24
C. Sause has a legally protected parental interest under the
Due Process Clause.
Compounding the majority opinion’s misreading
of Oregon parentage law is its failure to recognize that a
genetic parent’s unique opportunity to establish a parental
relationship is also protected by the Due Process Clause. In
Lehr v. Robertson, 463 US 248, 103 S Ct 2985, 77 L Ed 2d
614 (1983), a child’s biological father—the appellant in the
United States Supreme Court—contended that, under the
Due Process Clause, he was entitled to receive notice before
the child could be adopted by the man who married the
child’s mother after the child’s birth. The Supreme Court
disagreed.
In concluding that the appellant did not have a con-
stitutional right to notice before the child was adopted, the
Court discussed the legal significance of the appellant’s bio-
logical connection to the child as follows:
“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 bless-
ings 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
23
As noted above, at the time that Sause contributed her eggs to this ART
process, the law in Oregon—as understood by the Court of Appeals in McIntyre,
98 Or App 462, in 1989—was that applying the donor statute to deny parentage
to a known sperm donor who donated his sperm in reliance on having a parental
role violated the sperm donor’s rights under the Due Process Clause.
24
The majority opinion suggests that my reading of Oregon parentage law
raises the potential for increasing litigation and uncertainty for known gamete
donors. 371 Or at 604 n 7. But whether there is uncertainty leading to litiga-
tion is entirely within the control of the parties—the intended parents and the
known donor—at the time of the donation. If their mutual intent is that the donor
would not have any parental interest, the donor can waive any claim to a parental
interest. Further legislation addressing developments in ART would reduce any
uncertainty that could arise if the intended parents and known donor decline to
make their intentions clear at the time of the donation.
636 Sause and Schnitzer
compel a State to listen to his opinion of where the child’s
best interests lie.”
463 US at 262. The Court then explained that, under New
York law, a putative father could marry the mother—thereby
giving rise to the marital presumption of paternity—or the
putative father could enter his parentage claim in a state
registry—an option that the appellant in Lehr had not used.
Either action would have given the appellant a statutory right
to notice. Because of those statutes, the Court concluded,
state law “adequately protected [the] appellant’s inchoate
interest in establishing a relationship” with his daughter. Id.
at 265. Thus, the Court found “no merit in the claim that [the
appellant’s] constitutional rights were offended” when the
court approved the adoption without giving him notice. Id.What is this unique “opportunity” or “inchoate
interest” that a biological father possesses “that no other
male possesses[?]” It can only be his genetic connection to
the child. That connection gives a genetic parent a unique
opportunity to establish a parental relationship with their
children. Lehr thus recognizes that the opportunity to estab-
lish a parental relationship that arises from a genetic link
is protected by the Due Process Clause. If it were not pro-
tected, there would have been no reason for the Lehr court to
analyze whether the New York statutes gave sufficient due
process to the genetic father’s opportunity. In other words,
Lehr recognized that a man’s genetic connection to a child
alone did not make him a legal parent in this context,25 but
it did give rise to a legally cognizable interest that is pro-
tected by the Due Process Clause, an interest that could be
lost if the man failed to “grasp the opportunity” that that
connection presented.
The majority opinion concludes that Lehr does not
apply here because, unlike the biological father in that
case, “Sause does not have a viable state law basis for legal
parentage,” 371 Or at 606-07, and the Due Process Clause
itself does not provide any constitutional limit on a state’s
25
In other contexts—the obligation to pay child support, for example—a
man’s biological connection to a child is sufficient to impose that parental obliga-
tion regardless of whether the man had “grasped the opportunity” to be a parent.
Cite as 371 Or 573 (2023) 637
determination of parentage.26 In my view, that conclusion is
in error because, as demonstrated above, Sause does have
a parental interest that is legally significant under Oregon
parentage law. Even if she did not, the Due Process Clause
limits the extent to which state law can foreclose a genetic
parent’s claim to legal parentage.
The majority opinion may be correct in concluding
that state law ultimately determines the outcome in “the
vast majority of cases,” 371 Or at 607 (quoting Lehr, 463 US at
256). However, the Due Process Clause independently limits
the extent to which state law can foreclose Sause’s parental
interest.27 Thus, even if Sause has no state law claim to par-
entage, the federal constitution precludes the result reached
by the majority’s opinion. I agree with the trial court and
the dissenting opinion in the Court of Appeals that Sause
has done nothing to lose the legal protection afforded that
interest. Sause and Schnitzer, 312 Or App 71, 112, 493 P3d
1071 (2021) (Kamins, J., dissenting).
D. The majority opinion’s contractual analysis is flawed.
The majority opinion aims for consistency with the
equality principle set out in ORS 109.030 by concluding
that neither genetic parent has a legally cognizable paren-
tal interest in S. But the majority opinion goes on to con-
clude that Schnitzer’s parentage “arises from his surrogacy
agreement with the gestational carrier and her husband,”
371 Or at 602, and that Sause might have some contrac-
tual rights—but not a parental interest—regarding S, to be
determined on remand. The majority opinion’s analysis is
flawed in two respects.
26
The majority opinion also suggests that this case differs from Lehr
“because the child in Lehr was conceived through intercourse and not through
ART or AI.” 371 Or at 607 n 8. The majority opinion does not explain why the Due
Process Clause would give greater parental recognition to persons who might
casually (or accidentally) create a child through sexual intercourse than to per-
sons who collaborate deliberately to create a child through ART or AI.
27
Commentators agree that there are federal constitutional limits on
state law determinations of parentage. See Michael J. Higdon, Constitutional
Parenthood, 103 Iowa L Rev 1483, 1489 (2018) (noting that, “[a]lthough the Court
has not said much on the issue of parental identity, what it has said reveals that
there are indeed constitutional limits on who can be excluded from the definition
of parent”); Jeffrey A. Parness, Federal Constitutional Childcare Parents, 90 St
John’s L Rev 965, 972-76 (2016) (summarizing case law).
638 Sause and Schnitzer
First, under Oregon parentage law, no person can
“contract into” legally cognizable parental rights without
going through adoption procedures. Contracts in this con-
text can terminate parental rights arising from other pre-
sumptions of parentage, but they cannot create parental
rights on their own. Second, if Oregon law does allow a per-
son to “contract into” legally cognizable parental rights—a
proposition that, in my view, is incorrect—then the equality
principle means that Sause should be allowed to establish
on remand that she “contracted into” those rights, just as
Schnitzer did.
The majority opinion cites five Court of Appeals’
decisions in support of its conclusion that Oregon law
allowed Schnitzer to “contract into” a legally cognizable
parental right without going through the statutory adoption
procedures. See 371 Or at 603 (citing McIntyre v. Crouch, 98
Or App 462, 780 P2d 239 (1989); Leckie and Voorhies, 128
Or App 289, 875 P2d 521 (1994); In re Adoption of Baby A
and Baby B, 128 Or App 450, 877 P2d 107 (1994); Weaver
v. Guinn, 176 Or App 383, 31 P3d 1119 (2001); Dahl and
Angle, 222 Or App 572, 194 P3d 834 (2008), rev den, 346 Or
65 (2009)). None of those cases held that Oregon law allows
a person to “contract into” parental rights without going
through adoption proceedings.
The parental rights at issue in In re Adoption of Baby
A and Baby B were established through adoption; the court
held that a surrogacy contract did not preclude the adoption.
128 Or App at 452. In Weaver, 176 Or App 383, the court held
that custody of the child was properly awarded to the birth
mother and refused to enforce an AI agreement that would
have given custody to the biological father because he had
impregnated the mother through sexual intercourse, not AI.
In Leckie, 128 Or App 289, the court held that a sperm donor
waived his parental rights by contract. In Dahl, 222 Or App
at 585, the court held that an agreement giving a woman
custody and control of embryos gave her the right to destroy
the embryos despite her husband’s objection; parentage was
not at issue.
Finally, as noted above, McIntyre was decided by a
divided court, with no majority opinion. Two of the judges
Cite as 371 Or 573 (2023) 639
thought that, if ORS 109.239 (1977) precluded a known
sperm donor from having any parental interest, it would
violate the donor’s rights under the Due Process Clause.
McIntyre, 98 Or App at 470 (Newman, J., lead opinion); id.
at 472 (Deits, J., specially concurring). The lead opinion
concluded, “We hold that ORS 109.239, as applied to [the
sperm donor] petitioner, will violate the Due Process Clause
of the Fourteenth Amendment if he can establish that he
and respondent agreed that he should have the rights and
responsibilities of fatherhood and in reliance thereon he
donated his semen.” Id. at 470 (Newman, J., lead opinion)
(emphasis in original).
Thus, no Oregon court—before today’s majority
opinion—has ever held that Oregon law allows a person to
“contract into” parental rights without going through adop-
tion procedures. Neither does any Oregon statute authorize
“contracting into” legal parentage.28 At most, Oregon stat-
utes provide that a court will consider any contracts the par-
ents have executed when determining parental rights, such
as the right to custody of, or parenting time with, a child.
But even there, the ultimate decision is made by the court
based on its determination of what is in the child’s best
interests—not the terms of a contract or what the parties
to a contract may have intended. See ORS 109.175(1) (court
“shall give primary consideration to the best interests and
welfare of the child” in determining custody after parentage
is established); ORS 107.102(5)(b) (in developing a parenting
plan, “the court may consider only the best interests of the
child and the safety of the parties”). The majority opinion
28
The majority opinion criticizes my statement that, under Oregon parent-
age law, a contract can terminate parental rights but cannot create parental
rights, as being offered “without citation to case law or statute.” 371 Or at 612
n 11. But as noted above, in In re Adoption of Baby A and Baby B, the Court of
Appeals held that the birth mother gave up her parental rights by contract—a
consent to the child’s adoption by the intended parents. 128 Or App at 452. And
the party claiming a legal right to “contract into” parental rights—Schnitzer
in this case—has the burden of establishing that the law supports his claim.
Schnitzer cites no statute or case holding that he had a legal right to “contract
into” sole parentage. Other than those five inapplicable Court of Appeals’ deci-
sions, the majority opinion cites no authority for its conclusion, noting instead
that “Schnitzer’s parentage is not at issue in this case.” 371 Or at 612. But
Schnitzer’s parentage is relevant here because, at least genetically, he is in the
same position as Sause, making the equality principle in Oregon parentage law
germane to Sause’s parentage claim.
640 Sause and Schnitzer
offers no reason why a contract should control the predicate
question of parental status, when it merely informs a court’s
determination of parental rights and responsibilities. As an
independent source of parentage, contract law is an awk-
ward fit.
If Schnitzer’s genetic link to S did not give rise to
any legally cognizable parental interest, but he could just
“contract into” parental rights by executing a contract with
the gestational surrogate and her husband (without going
through adoption), then Schnitzer could also “contract into”
parental rights by executing a contract with any pregnant
woman and her spouse. That is not, and has never been, the
law in Oregon, and the majority opinion offers no persuasive
reason why it should be the law. Nor does it provide any lim-
iting principle that would allow Schnitzer to “contract into”
parental rights under the circumstances presented here but
would prevent him or any other person from “contracting
into” parental rights under different circumstances. The
novel facts of this extraordinary case do not merit such an
upheaval of Oregon’s approach to parentage.
Finally, even if the majority opinion is correct that
Schnitzer has a legally cognizable parental interest in S
based solely on his contract with the gestational surrogate
and her husband, not on his genetic link to the child, then
Sause should have that same opportunity. By denying her
the same opportunity that Schnitzer had, the majority opin-
ion violates the equality principle set out in ORS 109.030.
II. CONCLUSION
The genetic link between Sause and S gave her a
legally significant parental interest, just as the genetic link
between Schnitzer and S gave him a legally significant
parental interest. That interest is protected under Oregon
parentage law and by the Due Process Clause of the United
States Constitution. The trial court determined, correctly
in my view, that Sause’s interest was not overcome by any
contrary provision of law, the parties’ agreement, or other
evidence in this case.
The majority opinion errs by (1) failing to recog-
nize that both Sause and Schnitzer have legally significant
Cite as 371 Or 573 (2023) 641
parental interests in S arising from their undisputed
genetic link to the child; (2) determining, for the first time in
Oregon, that a person can “contract into” a legally cognizable
parental interest without going through adoption; (3) deter-
mining in this case that Schnitzer has “contracted into”
parentage and remanding the case to determine whether
Sause has contractual—but not parental—rights regarding
S, thereby denying Sause the opportunity to “contract into”
parental rights as Schnitzer did; and (4) interpreting the
donor statute, ORS 109.239 (1977), to preclude both Sause
and Schnitzer from having any legally cognizable parental
interest based on their genetic connection to S.
For those reasons, I respectfully dissent.
Flynn, C.J., and Linder, S.J., join in this dissenting
opinion.
LINDER, S.J., dissenting.
I join Justice Bushong’s dissent. I agree with his
analysis that, under state law, Sause is entitled to a judi-
cial declaration that she is S’s parent, along with Schnitzer.
This case should end with that state law answer. But the
majority resolves that issue differently, holding that state
law provides no basis for Sause to be recognized as S’s legal
parent. The majority therefore reaches and resolves the
federal law question of whether S has a parental interest
protected under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution, concluding
that she does not. Justice Bushong addresses why the major-
ity’s federal law analysis is wrong, and I agree with him. I
write separately, however, to further explain why, under the
federal constitution, Sause should prevail.
My central premise is this: When two people bring
a child into the world by combining their genetic material
using assisted reproduction technology (ART), and they do
so with the intent that both will have parental roles in the
child’s life, each has a protected parental interest under the
Due Process Clause. That conclusion follows regardless of
how they agree between themselves to divide and structure
their parental roles. For purposes of due process, what mat-
ters is whether, as the child’s genetic and intended parents,
642 Sause and Schnitzer
each has demonstrated the commitment, consistent with
the opportunities available to them, to have a parent-child
relationship with their genetic offspring.
The United States Supreme Court’s jurisprudence
on due process protection for personal liberties involving
reproduction and family relationships, including parent-
child relationships, is vast. Canvassing that jurisprudence,
however, is not necessary for this case. The issue here is
narrower: It is not what rights Sause has as a parent; it
is whether, for constitutional purposes, Sause is entitled to
legal parental status at all. Few Supreme Court precedents
guide that inquiry. What few there are culminated in the
Court’s 1983 decision in Lehr v. Robertson, 463 US 248, 256,
103 S Ct 2985, 77 L Ed 2d 614 (1983). The Court has not pro-
vided authoritative guidance on the issue since. Lehr thus
is the Supreme Court’s principal holding on whether and
when a state violates a genetic parent’s constitutionally pro-
tected interests by declining to recognize that individual as
a child’s legal parent.1
As to what guidance Lehr provides, Justice Bushong
observes that Lehr recognizes an “opportunity” or “inchoate
interest” that is itself subject to due process protection; if a
genetic parent adequately “grasps” that opportunity by tak-
ing “some measure of responsibility for the child,” then a
constitutionally protected parent-child relationship arises.
371 Or at 635-37 (Bushong, J., dissenting) (quoting and dis-
cussing Lehr’s holding). That understanding of Lehr accords
with the views of countless courts and legal commentators.
One commentator, for example, explains:
“As an initial point, the Court [in Lehr] made clear that
biological parentage is not dispositive, ruling that ‘the mere
existence of a biological link does not merit equivalent con-
stitutional protection.’ Instead, the Court put forth what is
commonly referred to today as the ‘biology plus’ doctrine.
According to the Court, ‘when an unwed father demon-
strates a full commitment to the responsibilities of parent-
hood by “coming forward to participate in the rearing of
1
See generally Anthony Miller, The Case for the Genetic Parent: Stanley,
Quillion, Caban, Lehr, and Michael H. Revisited, 53 Loy L Rev 395 (2007) (trac-
ing the evolution of the Supreme Court’s jurisprudence on due process protection
for the interests and rights of genetic parents; discussing Lehr’s significance as
the last decision providing authoritative guidance for the analysis).
Cite as 371 Or 573 (2023) 643
his child,” his interest in personal contact with his child
acquires substantial protection under the Due Process
Clause.’ In other words, biological parenthood provides a
nonmarital father with an incipient right, one that will
not fully develop until he takes sufficient steps to foster a
parental relationship with the child. Accordingly, the Court
upheld the New York law given that it ‘had adequately pro-
tected his opportunity to form such a relationship.’ In the
Court’s view, the fact that Lehr never seized that opportu-
nity was nobody’s fault but his own.”
Michael J. Higdon, Constitutional Parenthood, 103 Iowa L Rev
1483, 1499 (2018) (footnotes and brackets omitted).2
Lehr thus frames the questions: What opportunity
did the state provide Sause to foster a parent-child relation-
ship with S? And did she sufficiently grasp it?
Under the majority’s analysis of Oregon’s statutes,
state law provided Sause with no opportunity to develop a
parent-child relationship with S. Sause was not the birth
mother, so she had no presumptive parental status. Schnitzer
broke off communications with Sause and prevented her from
having any contact with S after the day he was born. Shortly
after, Schnitzer filed for and swiftly obtained a declaratory
judgment designating him S’s “sole genetic” and “legal par-
ent.” Sause was not named in Schnitzer’s petition for that
judgment; she was not given notice of the petition; and the
petition did not identify her participation in S’s conception.
When Sause later learned of the judgment and moved to
intervene to assert her parental interest, her motion was
denied. Sause therefore pursued the only state procedural
2
Courts and other scholars taking the same view are too numerous for
citation. But representative cases spanning the decades since Lehr was decided
include: Matter of Doe, 170 Idaho 901, 911, 517 P3d 830, 840 (2022) (protected
parental rights arise under Lehr based on established relationship between
genetic parent and child, while protected “inchoate” interest arises in opportu-
nity to develop that relationship); Thurnwald v. A.E., 2007 UT 38, 163 P3d 623,
635 (Utah 2007) (under federal due process, state adoption procedures must give
unwed genetic father opportunity to establish a relationship with child); In re
M.N.M., 605 A2d 921, 927 (DC 1992), cert den, 506 US 1014 (1992) (Lehr recog-
nizes opportunity interest in genetic parent to develop a relationship with his
offspring, one that requires state procedural protection); In Re Steve B.D., 112
Idaho 22, 25, 730 P2d 942, 945 (1986) (under Lehr, state owes due process and
equal protection to the parental rights of unwed fathers who have established
relationships with their children, and also owes them the opportunity to estab-
lish such relations).
644 Sause and Schnitzer
avenue available to her to obtain legal parent status: She
filed this declaratory judgment action. But under the major-
ity’s holding in this case, that avenue is a dead end—noth-
ing in Oregon law gives Sause, as S’s undisputed genetic
parent, any opportunity to foster and form a relationship
with S. For Sause, the state procedural door of opportunity
closed and locked without ever opening.
That result violates Sause’s protected due process
interests under Lehr. What Lehr requires in terms of a suffi-
cient “grasping” of the opportunity to develop a parent-child
relationship must be viewed through the lens of the factual
circumstances of each case. Unlike the putative father in
Lehr, see 463 US at 250-54 (describing facts), Sause had no
post-birth opportunity for a parental relationship with S,
because Schnitzer would not allow her to have any contact
with S. As one legal commentator observes, the protected
opportunity interest that Lehr identified is violated when—
either practically or legally—it is cut off before it can arise:
“[Under Lehr, the] genetic parent who has established a
relationship with his or her child should be considered a
parent for constitutional purposes. [And], the genetic par-
ent should be treated as a parent, even when this parent
has not had the opportunity to develop a relationship with
the child, in two distinct situations: first, where the parent
has been prevented through no fault of his or her own from
establishing a relationship; and second, where new parents
utilize cutting edge reproductive technology and the state
has moved to sever the parent-child relationship before the
opportunity to develop such a relationship has arisen.”
Anthony Miller, The Case for the Genetic Parent: Stanley,
Quilloin, Caban, Lehr, and Michael H. Revisited, 53 Loy L
Rev 395, 450 (2007). Here, it is not the state qua state “mov-
ing” to sever Sause’s opportunity. The majority achieves that
severance via its judgment in this case. But that is state
action just the same.3
3
This is a dispute between private parties whose arguments reflect their
self-interests. The state is not a party in an amicus capacity or otherwise; the
Oregon Attorney General is not before this court urging that a state interest is
served by foreclosing Sause from legal parental status under the circumstances
of this case.
Cite as 371 Or 573 (2023) 645
As the quote above suggests, Lehr frames a second
question as well: Despite the lack of state legal protection for
Sause’s “opportunity interest” in developing a parent-child
relationship with S, did Sause nevertheless achieve that
relationship in fact? If she did, she is entitled to parental
status under the federal constitution.
Answering that question requires context. In this
case, the important context is the parties’ collaborative ART
conception. Before a child’s birth, a parent cannot develop a
relationship with the child in the sense that Lehr expected
of the unwed father in that case, whose child was about two
years old when the parties’ dispute arose. See 463 US at
250-54 (describing facts). But before a child’s birth, a parent
can demonstrate a commitment to that parent-child rela-
tionship. For a collaborative ART conception, which in this
case entailed a deliberative process by which one genetic
parent combined gametes with another to bring a child into
the world through gestational surrogacy, the parents’ pre-
birth commitment should carry constitutional weight.
Sause’s commitment to a parent-child relationship
with her offspring arose well before S was conceived.
Specifically, her commitment began with her decision to
have her eggs retrieved and preserved for her own repro-
ductive use, not that of an anonymous recipient whom she
would never know and who would never know her. From the
outset, Sause made the decision to use ART to have her eggs
medically retrieved to preserve her future ability to have
genetic offspring and be a mother.
Her motivation shifted—but only partly—when
she and Schnitzer, with whom she had begun an intimate
relationship, began to discuss conceiving children together.
Sause urged that it was in a child’s interest to know the
child’s genetic mother, something that would not happen if
Schnitzer had a child using anonymously donated eggs. If
Sause and Schnitzer instead were to combine her eggs and
his sperm, the child could know Sause as his mother and
have contact with her. Schnitzer, however, wanted only a boy,
and he wanted sole legal custody of him. Sause understood
Schnitzer’s reasons for those limitations, and she could
accept and support Schnitzer in them. It was important to
646 Sause and Schnitzer
her, however, that if her eggs were used, the boy would know
her as his mother and she would be active in the boy’s life.
Schnitzer and Sause struck a mutually beneficial
agreement: Schnitzer would have custody of any viable male
embryos, which he would attempt to bring to term through
a gestational surrogacy that he would arrange. Sause would
have custody of any viable female embryos, which she would
have frozen for her future reproductive use. If the gesta-
tional surrogacy succeeded, Schnitzer would have full legal
custody of the boy. Sause would be the boy’s acknowledged
mother and have contact with him. She would have, in effect,
the kind of noncustodial role that parents may privately
agree to without forfeiting their legal parental status and
that Oregon courts routinely order for divorcing or unwed
parents who either do not want or cannot agree to joint cus-
tody. See ORS 107.169(3) (court may not order joint custody
unless both parents agree to terms and conditions of order).
With their mutual intent and understanding in place,
Sause followed through with having her eggs retrieved.4 She
then consented to having them fertilized with Schnitzer’s
donated semen. For the three viable embryos that resulted,
Sause agreed to have them tested to determine their sex.
The embryos remained in her full and unilateral custody
4
The lead opinion in the Court of Appeals described the trial court as having
found, factually, that Sause chose to have her eggs retrieved for her own pur-
poses, not for purposes of sharing them with Schnitzer. Sause and Schnitzer, 312
Or App 71, 103, 493 P3d 1071 (2021). That description failed to appreciate that
the trial court’s finding related only to Sause’s initial decision, not her state of
mind later when she underwent the medical procedure for retrieval of her eggs.
In particular, the trial court found that early in Sause and Schnitzer’s intimate
relationship, Sause decided to have her eggs retrieved for her own reproductive
purposes. The trial court further found, however, that Sause and Schnitzer soon
began discussing the possibility of combining their reproductive efforts. The trial
court specifically credited Sause’s testimony about those discussions, including
that both Sause and Schnitzer considered it a “win-win” to combine her eggs
and Schnitzer’s sperm, and then to divide any viable embryos between them
based on sex. They further agreed that, although Schnitzer would have sole legal
custody of any male child, the child would know Sause as his mother and she
would be involved in his life. Sause did not undergo the procedure to have her
eggs retrieved until much later. By that time, Sause and Schnitzer had engaged
in those discussions, had decided to combine their gametes, had worked with
the Oregon Health and Science University (OHSU) fertility clinic on that basis,
and—as the trial court found—had formed the mutual intent that Sause have a
parental role in the life of any son that their collaboration might bring into the
world.
Cite as 371 Or 573 (2023) 647
throughout that time. Once the testing revealed that all
three viable embryos were male, Sause transferred custody
of them to Schnitzer.5 She did not do so with the understand-
ing that she would have no parental relationship with any
child the gestational surrogate might carry to term. Just
the opposite: Sause and Schnitzer’s mutual intent remained
that Sause would be the child’s acknowledged mother and
she would have a maternal (albeit a noncustodial) role in his
life. Months later, one of the viable embryos was successfully
implanted in the gestational surrogate. Sause remained
committed to having a maternal relationship with the yet-
to-be-born boy; Schnitzer remained committed to that too.
Even after Sause’s interest in possibly marrying Schnitzer
changed and their intimacy cooled, they remained on good
terms, and their mutual intent for Sause to have a parent-
child relationship with S did not waver. When the two of
them had their irreparable falling out on the day that S was
born, Schnitzer’s intent changed, but Sause’s did not. As
the trial court pointedly found, “at that moment, and not
before,” Schnitzer decided to cut Sause out of S’s life.
In her dissent in the Court of Appeals, Judge Kamins
recounted in detail the interactions between Schnitzer and
Sause (and Sause’s family) throughout the 16 months of
their intimate relationship and beyond, up to the day of S’s
birth. Sause and Schnitzer, 312 Or App 71, 112-14, 493 P3d
1071 (2021) (Kamins, J., dissenting). Those details further
demonstrate not just the fact of Sause’s commitment to a
parent-child relationship with S, but also the depth of her
commitment. That commitment, along with Sause’s col-
laboration in S’s conception and the parties’ mutual intent
that Sause have a parental role, is sufficient to satisfy Lehr
5
Contrary to the majority’s suggestion, 371 Or at 578, OHSU did not have
Sause sign a “standard” egg donor form. Nudelman, Schnitzer’s business lawyer,
obtained that form and had Sause sign it before she began working with OHSU
for her egg retrieval. Until this litigation, OHSU was not aware that Sause had
signed that form. Dr. Battaglia, the physician who oversaw the collaborative ART
process for Schnitzer and Sause, explained that the standard form did not fit
what they wanted to accomplish. Instead, OHSU had both parties sign other
consents and directives, ones by which custody and control of the retrieved eggs
remained with Sause until it was time, well after her eggs were retrieved, for her
to give Schnitzer custody of the viable male embryos if she remained willing to
do so. As Battaglia’s undisputed testimony established, Sause was never an egg
donor.
648 Sause and Schnitzer
where, as here, Sause had neither a practical nor a legal
opportunity to foster a parent-child relationship with S after
S’s birth.6
What animates the majority’s analysis may be the
same concern that Judge Kamins identified as possibly ani-
mating the Court of Appeals majority: that Sause was not
committed to a full-enough role as a parent to be entitled
to constitutional protection. Sause, 312 Or App at 114-15.
That is suggested by, among other statements in the major-
ity opinion, that Sause intended Schnitzer to have sole legal
custody while retaining for herself only the “hope” of contact
with the child and of some “undefined quasi-parenthood”
role. 371 Or at 606. To borrow from Judge Kamins’s apt
observation:
“As the Lehr Court recognized, ‘the 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 full-time parent or not a parent at all.”
6
The majority all but summarily rejects Sause’s federal claim. The majority
reasons that, under the donor statute (ORS 109.239 (1977)), Oregon does not rec-
ognize Sause as S’s legal parent; therefore, federal law gives her no protection.
371 Or at 598 n 5, 607. I agree with Justice Bushong that the majority has not
interpreted the statute consistently with the legislature’s intent. 371 Or at 624-
35 (Bushong, J., dissenting). But even if the donor statute applies, that conclusion
frames the federal issue rather than resolves it. As other courts have recognized,
the federal issue then is whether the donor statute is unconstitutional as applied.
Although lower courts have come to differing results on the facts before them,
none reason that the federal issue evaporates with a conclusion that state law
categorically renders gamete donors legal strangers to their own genetic chil-
dren. See, e.g., C.O. v. W.S., 64 Ohio Misc 2d 9, 10-12, 639 NE 2d 523, 524-25 (Ohio
Ct CP 1994) (assuming arguendo that state donor statute extinguished semen
donor’s parental interests, statute was unconstitutional as applied where donor
was known to recipient, recipient solicited donor to provide semen, and recipient
agreed donor could have contact with the child and be a “male role model” for the
child); In re Interest of R.C., 775 P2d 27, 35 (Colo 1989) (avoiding constitutional
issue by construing donor statute not to apply when semen donor is known to
unmarried recipient and the two expressly agree at time of conception that donor
will be treated as child’s father); see also In re K.M.H., 285 Kan 53, 169 P3d 1025,
1040-42 (2007), cert den, 555 US 937 (2008) (donor statute did not unconstitution-
ally deny parental status to semen donor who orally agreed with recipient that he
would have parental role in resulting twins’ lives where statute gave donor the
option to enter written agreement to preserve parental status and donor failed to
exercise that option).
Cite as 371 Or 573 (2023) 649
Sause, 312 Or App at 115 (Kamins, J., dissenting) (brackets
omitted).
To that observation, I add this: Sause’s choice to
agree that Schnitzer would be S’s sole legal custodial parent
did not amount to her shirking parental responsibility or
disregarding S’s best interests. Schnitzer was insistent that
he have sole legal custody, for reasons that Sause understood
and, apparently, was sympathetic to. Sause knew Schnitzer
to be a mature, experienced, loving father of his two daugh-
ters. Sause likewise knew that Schnitzer, due to his wealth,
was easily able to support S financially and meet his every
need. In persuading Schnitzer that she should have a paren-
tal, even if noncustodial, role in S’s life, Sause did so not
just to ensure that she would have a parent-child relation-
ship with her own offspring; she also believed it was in S’s
best interest to know and have contact with his genetic (and
only) mother. Finally, with her expectation and desire to be
on S’s birth certificate, Sause intended to be legally recog-
nized as S’s mother. Her desire for that legal parental status
necessarily amounted to a full commitment to S’s care and
support, because no matter how a child’s legal parents may
privately allocate their parental rights and responsibilities
between themselves, it remains within an Oregon court’s
jurisdiction and authority to depart from their agreement if
doing so will be in the child’s best interests.
In sum, in the context of this collaborative ART
conception case, Sause’s genetic parental link to S, together
with her consistent pre-birth commitment to a parental
relationship with S, gives rise to parental status under the
federal constitution. Nothing in Sause’s conduct in this case
or the terms on which she and Schnitzer agreed to bring S
into the world should divest her, as S’s genetic and intended
parent, of the fundamental parent-child relationship that
the Due Process Clause so jealously protects.
Respectfully, I dissent.
Bushong, J., joins in this dissenting opinion.