Sause and Schnitzer

71

Argued and submitted October 1, 2019, reversed and remanded for entry of

judgment declaring the rights of the parties June 3, 2021

In the Matter of the Parentage of

Samuel Director Schnitzer, a Minor Child.

Cory Noel SAUSE,

Petitioner-Respondent,

and

Jordan Director SCHNITZER,

Respondent-Appellant.

Multnomah County

16DR18690

In the Matter of the Parentage of

Samuel Director Schnitzer, a Minor Child.

Jordan Director SCHNITZER,

Petitioner-Appellant,

and

Cassandra Lynn GIBEAUT

and Charles Burett Gibeaut,

Petitioners below,

and

Cory Noel SAUSE,

Respondent-Respondent,

and

Dale C. SAUSE

and Heidi N. Sause,

Respondents below.

Multnomah County

16DR19349;

A167020

493 P3d 1071

This action involves a dispute over the legal rights, status, and relationship

of respondent Sause to a child, who, after being conceived by in vitro fertilization

using appellant Schnitzer’s sperm and an unfertilized egg that Sause had pro-

vided, was then carried and birthed by a gestational carrier. In legal proceedings

that were initiated after the child was born, the parties sought determinations

of their respective rights and interests as to the child. Sause asserted that she is

the child’s mother with all of the legal rights afforded that status, and Schnitzer

72 Sause and Schnitzer

asserted that Sause had no parental rights to the child. The trial court entered

a general judgment declaring Sause to be the child’s legal mother and dismissed

Schnitzer’s petition, which sought a declaration that Sause was not the child’s

legal mother and an affirmance that he was the child’s sole legal parent. On

appeal, Schnitzer contends that the trial court erred in denying his motion to

dismiss Sause’s claim and in determining that Sause is the child’s legal mother

by virtue of being the child’s undisputed female genetic parent and having taken

every legal step available to her to protect and assert her constitutionally pro-

tected parental right. Held: The trial court erred in concluding, based largely

on Sause’s genetic connection to the child, that Sause is the child’s legal mother.

Because Sause did not establish a right to parent the child, the trial court erred in

denying Schnitzer’s motion to dismiss Sause’s petition and in denying Schnitzer’s

request for a declaration that he is the child’s sole parent.

Reversed and remanded for entry of judgment declaring the rights of the

parties.

Amy Holmes Hehn, Judge.

James N. Westwood argued the cause for appellant. Also

on the briefs were Stoel Rives LLP, Davis Wright Tremaine

LLP, Stahancyk Kent & Hook PC, and Laurel Parrish Hook.

Jay W. Beattie argued the cause for respondent. Also on

the brief were Lindsay Hart LLP, Thomas E. McDermott,

Erin Gould, and Charles D. Gazzola.

Robin E. Pope filed the brief amicus curiae for Academy

of Adoption and Assisted Reproduction Attorneys.

Before DeHoog, Presiding Judge, and Mooney, Judge,

and Kamins, Judge.*

DeHOOG, P. J.

Reversed and remanded for entry of judgment declaring

the rights of the parties.

Mooney, J., specially concurring.

Kamins, J., dissenting.

______________

* Kamins, J., vice Hadlock, J. pro tempore.

Cite as 312 Or App 71 (2021) 73

DeHOOG, P. J.

This appeal involves a dispute over the legal rights,

status, and relationship of respondent Sause to a male child,

S, who, after being conceived by in vitro fertilization using

appellant Schnitzer’s sperm and an unfertilized egg that

Sause had provided, was then carried and birthed by a ges-

tational carrier (also known as a surrogate mother). After

the child’s birth, the parties initiated separate legal pro-

ceedings seeking a determination of their respective rights

and interests as to S, and the trial court subsequently con-

solidated those actions.1 Schnitzer asserted that Sause had

no parental rights to S and that, even if she might otherwise

have had such rights, she had knowingly waived them in

a written contract with Schnitzer. Sause asserted that she

is S’s mother with all of the legal rights afforded that sta-

tus, subject only to any express waiver of rights in the par-

ties’ contract. In that regard, Sause acknowledged that she

had agreed to relinquish legal custody of any male embryos

conceived with Schnitzer as part of the assisted reproduc-

tive technology (ART) process that she and Schnitzer had

engaged in, and that she had further agreed that Schnitzer

would have sole legal custody of any resulting male off-

spring; however, Sause denied that she had ever waived—or

intended to waive—all legal rights to S or a parental role

in his life. Following a multiday bench trial, the trial court

entered a general judgment declaring Sause to be S’s legal

mother.2 Schnitzer, who had sought a declaration establish-

ing himself as S’s sole parent, now appeals that judgment

and raises five assignments of error.

In his first and second assignments of error,

Schnitzer asserts that the trial court erred in concluding

that Sause is S’s “mother by virtue of being his undisputed

female genetic parent” and having taken “every legal step

available to her to protect and assert her parental rights and

role in [S’s] life.” Put somewhat differently, Schnitzer asserts

1

In the consolidated cases, appellant Schnitzer was the petitioner in one and

the respondent in the other. We therefore refer to the parties by their last names

rather than by their party designations below.

2

The trial court dismissed with prejudice a filiation claim that Sause had

asserted as an alternative basis of parentage. The dismissal of that claim is not

at issue on appeal.

74 Sause and Schnitzer

that the trial court erred in treating Sause’s biological par-

entage as giving rise to a presumption of legal parentage

and in ultimately concluding that Sause has a constitution-

ally protected parental right. In Schnitzer’s third and fifth

assignments of error, he contends that the trial court erred

in failing to recognize that Sause had entered into a contract

with him confirming that she had no parental rights as to

S and by failing to enforce all of the terms of that contract.

Finally, in Schnitzer’s fourth assignment of error, he con-

tends that, in light of his other arguments, the court erred

in denying his claim for a declaration of sole parentage. For

the reasons that follow, we agree with Schnitzer that the

trial court erred in concluding, based largely on Sause’s

genetic connection to S, that Sause is his legal mother. That

conclusion renders it unnecessary to reach Schnitzer’s third

and fifth assignments of error regarding the parties’ con-

tract; it also leads us to further conclude that, as asserted

in the fourth assignment of error, Schnitzer is entitled to

a declaration that he is S’s sole legal parent.3 We therefore

reverse and remand for entry of a declaration to that effect.

I. BACKGROUND

A. Standard of Review

As an initial matter, we note that Schnitzer assigns

error to the denial of his ORCP 54 B(2) motion to dismiss

Sause’s claim for a declaration of parentage, which he made

at the conclusion of Sause’s presentation of her case. How-

ever, Schnitzer also includes argument regarding the court’s

ultimate conclusions on the merits of the case pertaining

to that same legal issue, which he raised midtrial.4 Based

on the substance of the parties’ arguments, we understand

3

Sause does not assert that the parties’ contract created parental rights for

her; rather, she argues that it “does not waive [her] parental rights in [S]. To the

contrary, the agreement assumes [she] will have at least some opportunity to

participate in [S’s] life.” (Emphasis omitted.)

4

ORCP 54 B(2) provides, in part:

“After the plaintiff in an action tried by the court without a jury has com-

pleted the presentation of plaintiff’s evidence, the defendant, without waiving

the right to offer evidence in the event the motion is not granted, may move

for a judgment of dismissal on the ground that upon the facts and the law the

plaintiff has shown no right to relief. The court as trier of the facts may then

determine them and render judgment of dismissal against the plaintiff or

may decline to render any judgment until the close of all the evidence.”

Cite as 312 Or App 71 (2021) 75

Schnitzer to challenge both the trial court’s denial of his

ORCP 54 B(2) motion and its de facto denial of Schnitzer’s

renewed argument made during closing argument, which

raise the same legal issue, albeit at different points in time.

See Larisa’s Home Care, LLC v. Nichols-Shields, 277 Or App

811, 812-13, 372 P3d 595 (2016), rev’d on other grounds, 362

Or 115, 404 P3d 912 (2017) (considering argument made

during closing argument to be the functional equivalent of a

motion to dismiss under ORCP 54 B(2) and concluding that,

as presented in that case, the argument made on appeal was

adequately preserved).

“On appeal of a denial of an ORCP 54 B(2) motion

to dismiss a claim, we review the entire record to deter-

mine whether sufficient evidence was presented to estab-

lish a prima facie case on the applicable claim, viewing the

evidence and all reasonable inferences that may be drawn

from it in the light most favorable to” the party opposing the

motion. Marlow v. City of Sisters, 281 Or App 462, 468, 383

P3d 908 (2016) (internal quotation marks omitted). In addi-

tion, “we review the trial court’s legal conclusions for errors

of law.” Id.

B. Factual and Procedural History

We begin by describing the pertinent facts in accor-

dance with that standard, most of which are taken from the

trial court’s extensive written findings and conclusions of

law. Schnitzer is a divorced father of two daughters, who

wanted to add a son to his family. In early 2013, he began

the process of becoming a parent through ART and worked

with a program at Oregon Health & Science University

(OHSU) Fertility Consultants. Because he had previously

experienced contentious divorce and custody proceedings,

he considered it important to have sole legal custody of any

child produced through ART so that he could avoid any pos-

sibility of difficult custody litigation in the future. In 2013,

he attempted to achieve a pregnancy via ART with an anon-

ymous egg donor and a gestational carrier; however, that

attempt did not result in a successful pregnancy.

In 2014, Schnitzer continued to work with OHSU

and a gestational carrier in an effort to produce a son using

embryos created with eggs from an anonymous donor.

76 Sause and Schnitzer

Schnitzer met Sause early that year and the two developed

an intimate relationship not long thereafter. In February,

Schnitzer told Sause of his plans to have a son, which

he continued to pursue. In April, pursuant to that plan,

OHSU transferred an embryo that had been created using

Schnitzer’s sperm and an egg from the anonymous donor

to the gestational carrier; however, Schnitzer learned on

May 19 that, like the 2013 attempt, the April 2014 embryo

transfer had not resulted in a successful pregnancy.

In the meantime—while her relationship with

Schnitzer was ongoing—Sause decided to have her own eggs

retrieved for independent purposes, unrelated to Schnitzer’s

plans to have a male child through ART. To that end,

Sause met with her physician, Dr. Wu, at OHSU Fertility

Consultants in early March 2014 to begin the process of hav-

ing her eggs retrieved for fertility preservation purposes.

In April, as Schnitzer proceeded in his efforts with

the anonymous egg donor and gestational carrier, he and

Sause discussed the possibility of Sause gifting him her

eggs to support that effort. Sause testified about her conver-

sations with Schnitzer and acknowledged that he had made

it clear that he wanted to have sole physical custody and

wanted to raise the child. Sause explained, however, that,

although it was clear that the child would not live with her,

it had never occurred to her that she would not be known as

the child’s mother. Rather, she understood that she would be

actively involved and that Schnitzer welcomed the thought

of her as a part of the child’s life. She told him that she

would not seek financial payments from him and that she

would give him custody. She thought that they were fully

in agreement, and it did not occur to her to ask about the

child’s birth certificate.

In response to Sause’s offer, Schnitzer told her that

he would consider accepting the gift of her eggs only if she

would sign the same documents as any anonymous donor

would. Sause agreed to sign any documents necessary to

transfer her eggs to Schnitzer.

On April 23, 2014, Sause shared the idea of donating

her eggs to Schnitzer with her doctor. Wu wrote in a chart

note that Sause “may wish to create embryos together with

Cite as 312 Or App 71 (2021) 77

her significant other” and that “she understands that con-

tracts will need to be signed.” Sause had her eggs retrieved

on May 21, 2014.

Wu testified at trial that she had spoken with Sause

by phone on May 29, 2014, and that they had discussed her

plan to donate eggs to help Schnitzer have a son. Wu could

not confirm having taken notes at the time of the phone call,

but she said that her usual practice is to do so. On June 10,

Wu entered a chart note about the May 29 call. That

chart note indicated that Sause planned to donate any

male embryos to Schnitzer and keep custody of all female

embryos; it also stated that Sause “reports that their discus-

sion and agreements have been that she will not have any

future custodial or parenting rights to the male embryo(s)

she donates to [Schnitzer], and likewise, [Schnitzer] will not

have any future custodial/parenting rights to any future

female offsprings [sic] that will result from her embryos.”

Wu testified that, to her, “embryo” and “offspring” are syn-

onymous and that “it’s a continuum and not so discrete. An

embryo that results in a successful pregnancy and delivery

is someone’s offspring subsequently.” The trial court’s corre-

sponding finding was that “it is likely that in this phone call

Sause did indeed speak of a plan with Schnitzer to relin-

quish all of her rights to male embryos, and that Dr. Wu

interpreted these statements through her professional ‘lens’

to mean more than Ms. Sause intended.”

At Schnitzer’s request, his business attorney,

Nudelman, drafted a written agreement to reflect what he

understood to be Sause and Schnitzer’s agreement regard-

ing in vitro fertilization and embryo transfer. Sause received

a copy of that agreement on May 30, 2014, and requested

a change, which Nudelman incorporated. Sause signed

the revised agreement (the Agreement) on June 2, 2014.

On June 6, Sause signed a standard OHSU “Informed

Consent for Egg (Oocyte) Donation” form, which became

an attached exhibit to the Agreement, referred to within

the Agreement as the “Donation.” Schnitzer signed a form

on June 9, 2014, entitled “Directed Sperm Donor Consent

Form,” which was likewise attached as an exhibit to the

Agreement and referred to within it as the “Form”; he also

signed the Agreement itself. During the litigation leading

78 Sause and Schnitzer

to this appeal, Sause executed a declaration in which she

characterized the Agreement, stating, among other things,

that it “reflected accurately that * * * Schnitzer did not want

anything to do with any girls resulting from our embryos,

financial or otherwise. It also accurately reflected my oft-

stated intent to maintain my parental rights to any result-

ing male offspring.”

The recitals of the Agreement state, in part, that

“Schnitzer and Sause intend for this Agreement to supple-

ment the Form and Donation in connection with the in vitro

fertilization and embryo transfer (IVF-ET) anticipated by

those documents.” The Agreement itself, which is just over

two pages in length, provides, in part:

“1. Designation of Embryos. Notwithstanding any-

thing to the contrary in the Form or Donation, Schnitzer

hereby relinquishes any claim to or jurisdiction over any

female embryos from Sause and any resulting female off-

spring that might result from the use of Sause’s eggs. Sause

confirms and acknowledges that Schnitzer has full juris-

diction [and] custodial rights over the future disposition of

male embryos created from her eggs and she renounces any

rights and responsibilities of custody of any male embryo.[5]

Schnitzer and Sause shall take any [and] all necessary and

appropriate steps to effectuate the desired outcome of this

Agreement including but not limited to the execution of any

forms, releases or statements of any kind to Oregon Health

& Science University or any other third-party that relate or

pertain to the ownership or disposition of the embryos as

set forth in this paragraph.

“2. Notice of birth/Post-birth contact and communica-

tion with child. In the event of a birth of a male child from

5

At trial, Schnitzer contended that this particular reference to “embryo”

was intended instead to reference “offspring,” so as to parallel the references

to female embryos and female offspring in the first sentence of this section of

the agreement. Sause argued otherwise. The concurrence contends that, under

the parol evidence rule, evidence of the parties’ precontract discussions may be

inadmissible to vary the terms of the parties’ ultimate integrated agreement.

312 Or App at 110-11 (Mooney, J., specially concurring) (discussing ORS 41.740).

While, in the abstract, that is true—and our disposition here does not rely on the

meaning of the disputed terms of the Agreement—it is worth noting that, to the

extent Sause would rely on the circumstances surrounding the formation of the

Agreement to establish that the agreement is ambiguous, that evidence would

likely be admissible. See Batzer Construction, Inc. v. Boyer, 204 Or App 309, 314,

129 P3d 773, rev den, 341 Or 366 (2006).

Cite as 312 Or App 71 (2021) 79

one of Sause’s eggs that has been fertilized by Schnitzer’s

sperm, Schnitzer shall give Sause notice within five (5)

days of the date of the birth. In the event of a birth of a

female child from one of Sause’s eggs that was fertilized

with Schnitzer’s sperm, Sause shall give Schnitzer notice

within five (5) days of the date of the birth. The parties

agree that upon mutual written agreement of the parties,

and upon receipt of advice, counsel and approval of third-

party independent medical and psychological consultants,

any offspring produced from an embryo may be introduced

to Schnitzer or Sause, as the case may be. Thereafter, the

parties agree that if it is determined to be in the best inter-

ests of the child, Schnitzer and/or Sause (and their respec-

tive families), as the case may be, may have [an] active role

in the life of the child.

“3. Release. Sause confirms she has executed this

Agreement and the Donation voluntarily with no expecta-

tion of remuneration of any kind from Schnitzer now or in

the future. Sause further confirms Schnitzer has no liabil-

ity to pay any of her debts or other obligations that relate or

pertain to the embryos or a resulting child. Sause releases

and waives Schnitzer from any and all claims, suits, or

causes of action for compensation, support, or remunera-

tion of any kind of nature that relate to the embryos and

any resulting child. Schnitzer releases and waives Sause

from any and all claims, suits, or causes of action for com-

pensation, support, or remuneration of any kind of nature

that relate to the embryos and any resulting child.

“* * * * *

“5. Entire Agreement/Assignment. Together with the

Form and the Donation, this Agreement constitutes the

entire agreement and understanding of the parties, and

supersedes all prior and contemporaneous agreements,

understandings, negotiations, and purposes, whether writ-

ten or unwritten. This Agreement may not be amended or

modified except in writing signed by each of the parties

hereto. In the event of any conflict or inconsistency between

the terms and conditions of the Form or Donation and the

terms and conditions of this Agreement, the terms and con-

ditions of this Agreement shall prevail.”

It is undisputed that the donation form that Sause

signed was not entirely accurate in that it reflected that she

was agreeing to donate her eggs to “an unknown infertile

80 Sause and Schnitzer

recipient” and that her “identity will be kept confidential

from the recipients and that the recipient identities will be

kept confidential from” her. The donation form also includes

a paragraph that states:

“I understand that I do forever hereafter relinquish any

claim to or jurisdiction over the embryos and offspring

that might result from the use of my eggs for In Vitro

Fertilization. I acknowledge that the recipients have full

custodial rights over the future disposition of embryos

created from my eggs and that these rights include their

use for reproductive purposes of the recipient, donation of

unused embryos for research (which might include stem

cell research), disposal of unused embryos, or donation of

unused embryos to another infertile couple.”

The form signed by Schnitzer stated that he agreed “to be

a donor of sperm which will be used for therapeutic insem-

ination of [Sause] only and will never be used for thera-

peutic insemination of any other recipient” and that Sause

“requested and agreed to be therapeutically inseminated

with” his sperm. Schnitzer also acknowledged in the form

that determination of parental rights and responsibilities

“should be properly determined by the directed sperm donor

and recipient under the counsel of legal advisors.”

In June 2014, OHSU used Sause’s donated eggs

and Schnitzer’s sperm to create embryos. Genetic testing

revealed that there were three viable male embryos and

no viable female embryos. On July 9, Sause signed a con-

sent form to relinquish control of the three male embryos to

Schnitzer so that he could “attempt to establish a pregnancy

in a gestational carrier.” That consent form also stated that

“any claim to or jurisdiction over offspring that might result

from this embryo transfer(s) is covered by separate contract

between” Sause and Schnitzer. In late July, Schnitzer had

one of the three embryos transferred into the gestational

carrier with whom he had previously worked, but that first

embryo transfer did not result in a successful pregnancy.

In February 2015, Schnitzer entered into a written

surrogacy contract with a new gestational carrier and her

husband, which included a clear and explicit waiver of their

rights to the child and an explanation that the child was

Cite as 312 Or App 71 (2021) 81

being conceived for the intended father, Schnitzer. Sause did

not take part in the selection of the new gestational carrier,

and Schnitzer did not invite Sause to be a party or signatory

to the surrogacy contract. In April of that year, the second

of the three male embryos in Schnitzer’s custody was trans-

ferred to the surrogate, who had a successful pregnancy

and, ultimately, gave birth to S. Sause learned of the preg-

nancy on May 7. At around that same time, Schnitzer and

Sause’s relationship began to cool. Sause did not believe that

she and Schnitzer were meant to be in a long-term roman-

tic relationship. Schnitzer, on the other hand, continued to

hope that they would marry and raise the child together.

Schnitzer maintained contact with Sause or her

parents throughout the surrogate pregnancy. As S’s birth

approached, Schnitzer sent the Sause family updates via

text messages. S was born on December 22, 2015. Schnitzer

was at the hospital and sent multiple photos to the Sause

family. Sause and her parents went to the hospital and each

was permitted to hold S. Shortly after S’s birth, Schnitzer

and Sause had a disagreement because, for various reasons

not pertinent to this appeal, Schnitzer had decided that S

would go home from the hospital with the surrogate and stay

with her for a while. Sause was upset by that decision, and

she sent a series of hostile text messages to Schnitzer. The

trial court expressly found that “it was at this moment, and

not before, that Schnitzer made the decision to cut Sause

and her family out of [S’s] life.”

The day after S’s birth, Schnitzer filed a petition

for a general declaratory judgment of parentage, naming

the surrogate and her husband as respondents. Schnitzer

did not name Sause as a party to that action. Schnitzer, the

surrogate, and the surrogate’s husband all signed a stipu-

lated judgment stating that Schnitzer was S’s sole parent.

The trial court signed that judgment on December 28, 2015.

On March 3, 2016, Sause filed a motion to intervene in that

action. After a multiday contested hearing, the trial court

denied the motion to intervene, and, on September 2, 2016,

signed an order reflecting that denial.

Shortly thereafter, Sause initiated a new action in

Coos County, where she lived, petitioning for filiation and

82 Sause and Schnitzer

declaratory judgment as to S’s parentage. Schnitzer, in

turn, filed an action of his own in Multnomah County,

where he lived, petitioning in that case for declaratory judg-

ment regarding egg donor status and parentage.6 Those

actions, which collectively are the subject of this appeal,

were consolidated for trial in Multnomah County. The trial

court described the issue to be decided as “whether Sause

intended to relinquish legal control of just male embryos

to Mr. Schnitzer or also all rights whatsoever to male off-

spring.” (Emphases in original.)

At the conclusion of Sause’s presentation of evidence

at trial, Schnitzer moved under ORCP 54 B(2) to dismiss

Sause’s claim for a declaration of parentage. He argued,

in part, that Sause had “not adduced sufficient evidence to

establish a parental right ab initio.”7 The trial court orally

denied Schnitzer’s motion to dismiss. The court stated:

“So, bottom line is that * * * I have a whole ‘nother side

of the case to hear, and I have further and final legal argu-

ment to hear. I’m simply finding that, as of today, I choose

to—I choose not to disregard and disbelieve Ms. Sause’s

testimony, and I do find that she’s established a prima facie

case in support of her claim that she has a parental right,

which The Court must honor and respect.”

Schnitzer raised the same legal issue again during closing

argument, arguing that Sause did not have a legal right,

constitutional or otherwise, to S. In December 2017, approx-

imately two years after S was born, the trial court issued

written findings of fact, conclusions of law, and rulings,

which state, in part:

“Sause is [S’s] mother by virtue of being his undis-

puted female genetic parent. It is true, as both sides to this

dispute have acknowledged, that genetics alone do not a

parent make. A person linked to a child only by genetics

6

At the time Schnitzer filed his petition, the surrogate and her husband

were listed as copetitioners in the lawsuit and Sause’s parents were named as

respondents along with her. Those four parties were dismissed during the litiga-

tion and are not parties to this appeal.

7

Schnitzer also sought to dismiss Sause’s filiation claim under ORS 109.125.

Although the trial court denied that part of Schnitzer’s motion at that time, the

court ultimately dismissed the filiation claim at the end of the bench trial. The

dismissal of that claim is not at issue on appeal.

Cite as 312 Or App 71 (2021) 83

must take ‘an affirmative step to accept the responsibili-

ties associated with parenthood.’ * * * Up until the time [S]

was born, both Schnitzer and Sause understood that while

Schnitzer would have full legal and physical custody of [S],

Sause would play a ‘maternal’ role in his life. * * * It was

only when the dispute arose over [S’s] time with the [sur-

rogate] post-birth that Schnitzer changed his mind about

Sause’s role and then took all available legal steps to elim-

inate her and her family from [S’s] world. Sause saw and

held [S] on the day of his birth but has never been allowed

to see him since. As soon as Schnitzer’s change of heart

became evident, Sause took legal action to assert her right

to a role in [S’s] life, which she has consistently, diligently

and unwaveringly pursued to this day.

“Schnitzer cites cases that stand for the proposition

that a parent’s ‘frustration’ of the other parent’s efforts to

involve him or herself in the life of a child are not enough

to grant parental rights. The Court finds the facts of those

cases to be very different from the case before the Court,

where Schnitzer began his frustration of Sause’s efforts to

claim her role as [S’s] mother essentially on the day [S] was

born. Sause thereafter took every legal step available to

her to protect and assert her parental rights and role in

[S’s] life, a role which the Court finds Schnitzer agreed with

and actively encouraged up to and including the day of [S’s]

birth.”

(Emphasis in original.) The trial court’s general judgment

incorporated its written findings, conclusions, and rulings:

“In accordance with ORS 28.101, the court issues a Declar-

atory Judgment that Cory Sause is the legal mother of

the child, [S], subject to the terms of the Findings of Fact,

Conclusions of Law and Rulings attached hereto and incor-

porated herein.”

In the same judgment, the trial court dismissed Schnitzer’s

petition for declaratory judgment in which he sought a dec-

laration of sole parentage.

C. The Issues on Appeal

Schnitzer appeals that general judgment. Schnitzer’s

first two assignments of error are related, so we consider

them together. In his first assignment, Schnitzer contends

that Sause did not have any parental right based solely on a

84 Sause and Schnitzer

donation of her genetic material. According to Schnitzer, the

trial court erred in ruling sua sponte that a female gamete

donor is the undisputed “genetic parent” of a resulting child,

positioned by that fact alone to attain full parental rights.

In his second assignment of error, Schnitzer contends that,

even if Sause qualified as a “genetic parent” from the start,

she provided no evidence that her actions met the applicable

constitutional tests for legal parenthood.

Schnitzer argues that the trial court presumed that

Sause’s gamete donation made her a “genetic parent,” one

who would acquire the rights of a full legal parent if she also

took a constitutionally sufficient “affirmative step to accept

the responsibilities” of parenthood. According to Schnitzer,

however, the law is to the contrary, and a donor’s biology

creates no “presumption of parenthood.” In Schnitzer’s view,

a gamete donor of either sex has no parental right based

on that fact alone. In response, Sause takes the opposite

view, contending that, under applicable Oregon statutory

and common law, her status as one of S’s two biological par-

ents carries with it at least some rights in, and responsi-

bilities for, S. According to Sause, a biological mother is a

legal mother; thus, there was no need for her to establish

that she had a constitutionally protected liberty interest in

parenting S simply to appear on his birth certificate or to

have, at a minimum, the legal right to seek parenting time,

which are what she sought through her petition for declar-

atory relief.8 Sause does not point to any specific statute or

other source of law to support her contention that genetic

parentage carries with it some degree of parental rights, but

she advances a general argument that “the term ‘parent’ or

‘parentage’ used in ORS Chapter 109 refers to biology, viz,

the ‘genetic relationship between parent and child.’ ” Sause

further argues that, to the extent that she was required

to show more than a mere genetic connection to establish

8

A female gamete donor who participates in ART but does not give birth to

the resulting child is not automatically listed on the child’s birth certificate as

is a woman who does give birth to a child. See ORS 432.088(8) (For purposes of

reporting a live birth and live birth registration under Oregon’s vital statistics

statutes, “the woman who gives live birth is the birth mother. If a court of com-

petent jurisdiction determines that a woman other than the birth mother is the

biological or genetic mother, the court may order the state registrar to amend the

record of live birth.”).

Cite as 312 Or App 71 (2021) 85

parental rights, she has done so, as the trial court correctly,

in her view, concluded.

II. ANALYSIS

As set out above, the trial court’s ruling could be

understood to echo Sause’s reasoning that she need not

prove more than a genetic connection to establish legal par-

entage, in that the court stated that “Sause is [S’s] mother

by virtue of being his undisputed female genetic parent.”

However, as both sides to this dispute acknowledged at trial,

genetics alone do not a parent make. And, as the trial court

expressly noted, a “person linked to a child only by genet-

ics must take ‘an affirmative step to accept the responsibil-

ities associated with parenthood.’ ” Thus, we understand the

court’s ruling not to be that Sause’s genetic connection to S

made her a “mother” in the sense of having parental rights

arising solely from that status, but, rather, that Sause’s

biological relationship to S provided a link that, under cer-

tain circumstances, could form a basis for acquiring a legal,

parental relationship. As we explain, we agree with the

trial court that, although genetics provide a connection to

the child that a biological stranger does not have, Sause’s

genetic connection alone did not confer parental rights. We

disagree, however, that Sause made the requisite additional

showing to acquire those rights.

To provide further context for our analysis, we

begin by making several observations. This case arises

under arguably unique factual circumstances. First, before

meeting Sause, Schnitzer had decided that he wanted a son

and was independently pursuing that objective via ART.

Sause and Schnitzer were, for at least some time, romanti-

cally involved, but they were not married and had no joint

intention to raise a family together. And, as the trial court

found, Sause and Schnitzer had discussed the idea of “Sause

offering Schnitzer her eggs as a gift to assist him in his

efforts to have another child,” and “Schnitzer informed her

that he would only consider accepting the gift of her eggs if

Sause signed the same documents as any other anonymous

donor.”

Second, before S was born, the parties had rela-

tively defined, if somewhat divergent, expectations as to the

86 Sause and Schnitzer

role that they each would play—or be entitled to play—in

S’s life. Sause anticipated playing a maternal role in S’s

life, although Schnitzer would have full legal custody and

accept all of the financial responsibility for raising the child.

Schnitzer, on the other hand, hoped that Sause would marry

him and that the two of them would therefore raise the child

together, but, even though the court found that Schnitzer,

like Sause, had anticipated that she would play a maternal

role in S’s life, nothing in the record or the court’s findings

reflects a promise by Schnitzer to give Sause some role in S’s

life even if the parties’ romantic relationship ended.

Third, although the parties entered into a writ-

ten agreement that arguably addressed their respective

rights regarding a male child such as S, the positions that

the parties take on appeal and our conclusions regarding

Schnitzer’s first two assignments of error ultimately render

that agreement immaterial. That is, Sause does not assert

that her claimed parental rights arise from the agreement

she entered into with Schnitzer or any of the forms that she

or Schnitzer executed; rather, taking a position somewhat

different from the one that she took at trial, Sause now con-

tends that she is entitled to be named as S’s mother on his

birth certificate and to have parenting time with him based

solely on the fact that she is biologically related to him. As

noted, Sause further contends that, to the extent that she

was required to show more than that biological connection

to establish constitutionally protected parenting rights as to

S, she has done so here.

We begin our analysis with a discussion of the legal

setting in which the parties litigated their claims. At the

time of trial, Oregon did not have a statute that directly

addressed female gamete (i.e., egg) donation.9 There was,

9

In 2017, the legislature passed Senate Bill (SB) 512, which modified a num-

ber of laws regarding the establishment of the parentage of a child, including

laws pertaining to the rights and responsibilities of male and female gamete

donors and children conceived through ART. Or Laws 2017, ch 651, § 4. The trial

court issued its written post-trial rulings on December 5, 2017, but it did not

enter a judgment incorporating those rulings until January 18, 2018, by which

time SB 512 had gone into effect. Or Laws 2017, ch 651, § 4. At the time it made

its post-trial rulings, the trial court acknowledged that the new law would soon

go into effect and that it was designed to prevent the type of litigation before it.

The court reasoned, however, that it was “not the law now” and that, although it

Cite as 312 Or App 71 (2021) 87

however, a statute in effect, ORS 109.239 (1977), amended

by Or Laws 2017, ch 651, § 4, that addressed the rights and

obligations of sperm donors and the rights and obligations of

children resulting from artificial insemination as follows:

“If the donor of semen used in artificial insemination is not

the mother’s husband:

“(1) Such donor shall have no right, obligation or 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.”

Thus, had Schnitzer donated his sperm so as to

allow Sause or a surrogate to become pregnant, he would

presumptively have had no rights as to any resulting child.

Schnitzer urges us to reach the same result here as to

Sause’s rights to S. Schnitzer points out that, at the time

that ORS 109.239 was enacted, ART was new science, no in

vitro baby had ever been born, and female gamete donation

did not exist;10 as a result, the legislature that enacted ORS

109.239 (1977) had no reason to make the statute applicable

to anyone other than male gamete donors. Schnitzer posits,

however, that the statute embodies a principle broader than

the one that it explicitly encompasses. In Schnitzer’s view,

ORS 109.239 (1977) confirmed, rather than established, law

when it provided that nonspouse male gamete donors did

not have parental rights. And, because the statute could be

viewed as merely embodying an established common-law

principle in Oregon rather than enacting new law, that

common-law principle was—and, Schnitzer would contend,

remains—applicable independent of ORS 109.239. Schnitzer

was “interesting and it does provide some context and some history and where

the future is headed in this field,” it was not essential to the court’s ruling. It is

evident from those comments in the court’s December 2017 ruling and the par-

ties’ arguments at trial, which was held before the effective date of SB 512, that

it was understood that the new law would not apply to the trial court’s decision

in this case. The belated briefing on appeal in support of applying SB 512 has not

persuaded us otherwise.

10

The amicus curiae brief filed by the Academy of Adoption and Assisted

Reproduction Attorneys states that we now have “technology that potentially

allows multiple women to claim rights as a mother (the intended mother, an egg

donor, an embryo donor, and a gestational surrogate).”

88 Sause and Schnitzer

further reasons that, if the common-law rule ostensibly at

the root of the statute—that unmarried gamete donors have

no parental rights—were applied to Sause, a female gamete

donor, she would have no right, obligation, or interest with

respect to S.

In response, Sause emphasizes the plain text of

ORS 109.239 (1977) and, advancing a more literal reading of

its terms than Schnitzer does, argues that it applies only to

sperm donors, not to egg donors, and therefore cannot apply

to her. We agree that ORS 109.239 (1977) does not on its face

apply here; however, it is nonetheless somewhat instructive,

because it provides at least some insight into Oregon law

regarding gamete donors in that it recognizes a distinction

between a male gamete donor whose semen is used for ART

by a person he is not married to from men who father chil-

dren in other ways.11

Turning to the case law, both parties rely for differ-

ent purposes on our plurality decision in McIntyre v. Crouch,

98 Or App 462, 780 P2d 239, rev den, 308 Or 593 (1989), cert

den, 495 US 905 (1990). In McIntyre, the petitioner sought

a declaration that he was the father of a child that the

respondent, an unmarried woman, had conceived by arti-

ficial insemination using the petitioner’s semen. Id. at 464.

The petitioner claimed that, in donating his semen for that

purpose, he had relied on an agreement with the respondent

“that he ‘would remain active’ in the child’s life and ‘partici-

pate in all important decisions concerning the child’ and that

he would have visitation rights.” Id. The respondent denied

11

The amicus brief states that “the 2014 passage of Ballot Measure 89,

Oregon’s Equal Rights Amendment, amended Article I, Section 20 of the Oregon

state constitution to guarantee that ‘equality of rights under the law shall not be

denied or abridged by the state of Oregon or by any political subdivision in this

state on account of sex,’ support[s] the legal argument that all gamete donors

[are] covered by Oregon’s sperm donor statute.” The concurrence agrees. 312 Or

App at 108 (Mooney, J., specially concurring). However, Sause did not address

that assertion, and, although Schnitzer adopts it in his reply brief, he does not

develop any argument in support of it. Moreover, even if various biological and

other differences between producing male gametes and retrieving female gam-

etes were insufficient to justify treating their respective donors differently under

the Oregon Constitution, that would not obviate the need to address Sause’s fed-

eral due process rights. In light of the need to address those rights, as well as

our disposition of Schnitzer’s appeal on other grounds, we do not address the

potential implications of Ballot Measure 89 here.

Cite as 312 Or App 71 (2021) 89

that claim. Id. The petitioner argued that ORS 109.239

(1977) did not apply under the circumstances and that, if

it were to apply, it would violate his constitutional due pro-

cess rights as a parent. 98 Or App at 466-67. Acknowledging

the statute’s unequivocal language, we concluded that it

“bar[red] petitioner from the rights and responsibilities of

fatherhood, even if respondent had agreed with him before

he gave her his semen that he would have these rights and

responsibilities and he gave his semen in reliance on that

agreement.” Id. at 468. We explained that the legislation

regarding artificial insemination, of which ORS 109.239

(1977) had been only a part, served several purposes, among

them “to resolve potential disputes about parental rights

and responsibilities,” by, among other things, ensuring that

“an unmarried mother is freed of any claims by the [semen]

donor of parental rights.” Id. at 467-68. Ultimately, however,

we determined that the statutory bar of ORS 109.239 (1977)

might prove unconstitutional as applied to the petitioner if

he could establish, as he had asserted in a declaration, that

he had donated his sperm in reliance on an agreement that

he would have the rights and responsibilities of fatherhood,

a factual matter that we left for the trial court to determine

on remand. Id. at 472.

Schnitzer asserts that McIntyre stands for the fol-

lowing three principles: (1) no protected parental interest

arises from a donor’s biological link to a child; (2) without

evidence to support a claim that a child’s parent has contrac-

tually promised parental status to a donor, who would not

otherwise have made the donation, the donor cannot estab-

lish a prima facie case of entitlement to parental rights; and

(3) even if such a claim is advanced, the donor still must sat-

isfy the criteria of parenthood established by United States

Supreme Court case law. Schnitzer also suggests that we

should adopt the dissenting opinion in McIntyre, which

would simply have held that ORS 109.239 (1977) barred the

petitioner from obtaining parental rights and that applying

the statute to the petitioner raised no constitutional con-

cerns. 98 Or App at 474 (Richardson, P. J., dissenting).

Schnitzer further emphasizes that, to the extent

that McIntyre might be viewed as recognizing a gamete

donor’s parental rights notwithstanding ORS 109.239 (1977),

90 Sause and Schnitzer

that case is factually distinguishable. Specifically, to the

extent that the parties in that case had entered into an

agreement that might have entitled the petitioner to paren-

tal rights, that was not the case here. As Schnitzer notes,

the alleged agreement in McIntyre gave the petitioner a

specific visitation schedule and provided that he would be

allowed to participate in all significant decisions as to the

child; furthermore, the petitioner had declared his readi-

ness to share financial responsibility for the child’s support.

98 Or App at 464. Here, in considerable contrast, Sause

asserted only that the parties had intended that she would

be S’s mother and that he would know her as such. Unlike

the petitioner in McIntyre, Sause acknowledged in this case

that she always understood that Schnitzer would have full

legal custody and decision-making authority, that there was

no agreed-upon visitation schedule, and that she would bear

no financial responsibility for S whatsoever.12

For her part, Sause relies on the concurring opinion

in McIntyre for its discussion of the legislative history of ORS

109.239 (1977), particularly its observation that the act was

in part designed to “relieve the sperm donor and the child of

any rights or obligations toward one another when neither

the donor nor the mother intended that the donor be the legal

father.” Id. at 473 (Deits, J., specially concurring) (emphases

added). According to Sause, that statement from McIntyre

reflects the legislature’s understanding that, in the absence

of a statute providing otherwise, a sperm donor would pre-

sumptively have had rights and obligations regarding the

resulting offspring. Sause reasons that, if, at the time the

legislature enacted ORS 109.239 (1977), the existing statu-

tory or common law did not already extend parental rights

to sperm donors, there would have been no need for a provi-

sion terminating those rights.

Notwithstanding a certain logical appeal to Sause’s

argument, we find no support for it in our statutory or deci-

sional law. Rather, we are persuaded that McIntyre supports

the trial court’s understanding (and Schnitzer’s contention)

12

In fact, as noted above, rather than having any guaranteed time with S,

Sause signed an agreement that specified that offspring “may be introduced to”

her and left open the possibility for her to have an active role only if it was deter-

mined to be in the best interests of the child.

Cite as 312 Or App 71 (2021) 91

that, under the law governing the trial court’s decision, the

mere genetic connection that a gamete donor has to a result-

ing child does not, in its own right, confer parental status.13

We reach that conclusion in part due to our reliance, in

McIntyre, on the United States Supreme Court’s decision in

Lehr v. Robertson, 463 US 248, 103 S Ct 2985, 77 L Ed 2d

614 (1983). McIntyre, 98 Or App at 470-71. As we explained

in McIntyre, the issue in Lehr was whether, to provide due

process, an “unmarried father, whose child was conceived

by sexual intercourse, had to have notice and an opportu-

nity to be heard before the child could be adopted by others.”

McIntyre, 98 Or App at 470. In deciding that question, the

Supreme Court “discussed the significance to the man’s

rights and responsibilities of fatherhood of the biological

connection between the man and the child.” Id. The Court

explained:

“When an unwed father demonstrates a full commitment

to the responsibilities of parenthood by coming forward to

participate in the rearing of his child, his interest in per-

sonal contact with his child acquires substantial protection

under the due process clause. * * * But the mere existence

of a biological link does not merit equivalent constitutional

protection. * * *

“The significance of the biological connection is that it

offers the natural father an opportunity that no other male

possesses to develop a relationship with his offspring. If

he grasps that opportunity and accepts some measure of

responsibility for the child’s future, he may enjoy the 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

compel a state to listen to his opinion of where the child’s

best interests lie.”

13

As noted, 312 Or App at 86 n 9, the trial court did not apply SB 512 (2017)

to its determination of the parties’ respective rights. Citing Stull v. Hoke, 326 Or

72, 77, 948 P2d 722 (1997), the concurrence suggests an obligation to construe

and apply SB 512 notwithstanding the parties’ failure to rely on—or advance

an interpretation of—that provision at trial. See 312 Or App at 107 (Mooney, J.,

specially concurring). However, this is not a case in which the parties have simply

failed to articulate a particular interpretation of a statute that necessarily con-

trols their controversy. Rather, by declining to rely on that provision, they have

not put its meaning or application at issue in this case, and Stull does not require

that we apply it to the parties’ dispute sua sponte.

92 Sause and Schnitzer

Lehr, 463 US at 261-62 (internal brackets, quotation marks,

and citations omitted). We discuss Lehr at greater length

below, 312 Or App at 95-96. For now, however, we simply

note that we understand Lehr, and our reliance on that

decision in McIntyre, to stand for the proposition that a bio-

logical connection presents an opportunity for a would-be

parent, but that connection does not, in and of itself, create

parental rights.

Our decision in State v. Wooden, 184 Or App 537, 57

P3d 583 (2002), further supports the conclusion that Sause’s

biological link to S alone is not sufficient to establish paren-

tal rights. Wooden involved a custody dispute between the

maternal grandparents of a child and the child’s father. 184

Or App at 540. There, the child’s parents had never been

married to each other, but the child’s paternity was not in

dispute. Id. The child’s mother had left the father and mar-

ried another man when the child was three or four. Id. That

man had subsequently murdered the mother, and the child’s

grandparents had then filed for and received custody. Id. at

540-43. The father disputed the custody award on appeal.

Id. at 543. He had maintained at least sporadic contact with

the child both before and after the mother married, and he

had stopped all visitation only after her “violence-prone hus-

band” had insisted that he stay away. Id. at 550. The father

had also paid approximately two-thirds of his support obli-

gation for the child, who by then was six years old. Id. In

defending the trial court’s custody award, the grandparents

argued that the father had in essence waived his parental

rights by failing to participate directly and significantly in

the first six years of the child’s life. Id. at 546.

We held in Wooden that the father did have a paren-

tal right to his child, but not one arising from his biolog-

ical connection alone. Id. at 550. We explained that the

“[f]ather’s parental right, if he has it, derives from the Due

Process Clause of the Fourteenth Amendment.” Id. at 546.

And, after a recitation and brief discussion of several United

States Supreme Court cases, we gleaned the following:

“In sum, all of the cases containing language that

might be taken to imply that parental rights derive from

a mere biological connection actually imply nothing of the

Cite as 312 Or App 71 (2021) 93

sort. They do not stand for the proposition that the state

must grant the opportunity to exercise care, custody, and

control to those who have not participated directly and sig-

nificantly in the upbringing of their children. Rather, they

establish that parents who have, or once had, care, custody,

and control of their children may not be deprived of those

benefits by the state without due process of law.

“In fact, when the cases deal with nonparticipating or

minimally participating biological parents, they expressly

announce that parental rights are not biologically based.”

Id. at 548 (emphasis in original).

Thus, although we concluded in Wooden that the

father had a protected parental right to his child, we reached

that conclusion only after considering the father’s efforts to

maintain contact and provide support for the child after the

mother had left him, the barriers that existed to maintain-

ing better contact, and the father’s considerable efforts fol-

lowing the mother’s death, which included his insistence on

paying full support and his “near-perfect record of regular

visitation.” 184 Or App at 550 (discussing whether, in the

words of Lehr, 463 US at 262, the father had sufficiently

grasped the opportunity to develop a relationship with his

child and “accept[ed] some measure of responsibility for the

child’s future” (internal quotation marks omitted)).

That case law persuades us that, contrary to

Sause’s position on appeal, her mere biological connection

to S does not confer parental rights on her. We therefore

turn to whether, in this case, Sause had established a pro-

tected parental interest in S through something other than

that biological connection. Schnitzer contends in his sec-

ond assignment of error that she has not established such

an interest. Schnitzer argues that, even if Sause’s biologi-

cal relationship to S provided her with a “presumption” of

parental rights, she has failed to establish a constitutionally

protected parental right as necessary for her to be declared

S’s legal mother. Sause responds that, if she must prove that

she has a constitutionally protected “liberty interest” in

parenting S to be considered his legal mother, she has done

so here. That is, she argues that, at the earliest possible

chance, she grasped the opportunity to participate in the

94 Sause and Schnitzer

rearing of S in a manner sufficient to establish her parental

rights.14

As recited above, the trial court ruled that a com-

bination of (1) Sause’s actions to assert her right to a role

in S’s life and (2) Schnitzer’s actions that prevented Sause

from claiming that role satisfied the constitutional stan-

dard for establishing a parental right. Specifically, the

court found that there had been an understanding between

Schnitzer and Sause that Sause would have a “maternal”

role, with Schnitzer having full legal and physical custody;

that Schnitzer had unilaterally changed his mind about

that intention; and that Sause had held S on the day that

he was born and had taken “every legal step available to

her to protect and assert her parental rights and role” in S’s

life after Schnitzer cut off her access to S. As the trial court

explained:

“Up until the time [S] was born, both Schnitzer and Sause

understood that while Schnitzer would have full legal and

physical custody of [S], Sause would play a ‘maternal’ role

in his life. This intention is expressed in the Nudelman

Agreement. It was only when the dispute arose over [S’s]

time with the [surrogate] post-birth that Schnitzer changed

his mind about Sause’s role and then took all available

legal steps to eliminate her and her family from [S’s] world.

Sause saw and held [S] on the day of his birth but has

never been allowed to see him since. As soon as Schnitzer’s

change of heart became evident, Sause took legal action to

assert her right to a role in [S’s] life, which she has consis-

tently, diligently and unwaveringly pursued to this day.

“* * * Schnitzer began his frustration of Sause’s efforts

to claim her role as [S’s] mother essentially on the day [S]

was born. Sause thereafter took every legal step available

to her to protect and assert her parental rights and role in

[S’s] life, a role which the Court finds Schnitzer agreed with

and actively encouraged up to and including the day of [S’s]

birth.”

(Emphasis in original.)

Schnitzer argues that the trial court misapplied the

applicable case law in concluding that Sause had established

14

We note that Sause has not cross-assigned error to the trial court’s ruling

that such a showing was required in this case.

Cite as 312 Or App 71 (2021) 95

a protected parental right. He further contends that, to the

extent that the decisions of the United States Supreme Court

might otherwise be viewed as supporting the trial court’s

decision, they cannot provide that support here, because

there is a significant distinction between those cases and

the present case. That is, in each of the cases that the trial

court considered the claimant’s biological link was natu-

ral parenthood; none of the cases address a gamete donor’s

parental rights. We proceed to consider those cases.

In Lehr, the Court considered whether a biological

father of a child born out of wedlock had an absolute right

to receive notice prior to the child’s adoption by the moth-

er’s husband. 463 US at 250. The State of New York had a

putative-father registry in which a man could file his intent

to claim paternity of a child born out of wedlock, which

would then entitle him to receive notice of any proposed

adoption. Id. at 250-51. The biological father did not register

and therefore did not receive notice. Id. In holding that the

father had not established a right to such notice, the Court

explained that

“[w]hen an unwed father demonstrates a full commitment

to the responsibilities of parenthood by coming forward to

participate in the rearing of his child, his interest in per-

sonal contact with his child acquires substantial protection

under the Due Process Clause. At that point it may be said

that he acts as a father toward his children. But the mere

existence of a biological link does not merit equivalent con-

stitutional protection. * * * The importance of the familial

relationship, to the individuals involved and to the society,

stems from the emotional attachments that derive from the

intimacy of daily association, and from the role it plays in

promoting a way of life through the instruction of children.

. . as well as from the fact of blood relationship.”

Id. at 261 (internal brackets, quotation marks, and citations

omitted).

The dissent in Lehr highlighted facts that the

majority opinion had not acknowledged, including, notably,

that the father had visited the mother and child in the hos-

pital following the child’s birth, but that, upon leaving the

hospital, the mother had concealed her whereabouts from

him. Id. at 269 (White, J., dissenting). The father attempted,

96 Sause and Schnitzer

with sporadic success, to find the mother and child, and he

would visit with the child to the extent the mother would

allow. Id. When, after having been unable to find them for at

least a year, the father again tracked them down, he discov-

ered that the mother had since married and would no longer

permit him to see the child. Id. The father offered financial

assistance and threatened the mother with legal action. Id.

The mother and her husband then began adop-

tion proceedings without providing the father with notice.

Id. Notwithstanding the facts that the dissent in Lehr had

emphasized, the majority in that case held that, under the

circumstances, notice was not constitutionally required, as

any constitutionally protected interest that the father had

in the matter was adequately protected by the state’s reg-

istry for putative fathers Id. at 265. Notably, in observing

that the father “has never had any significant custodial,

personal, or financial relationship with [the child], and he

did not seek to establish a legal tie until after she was two

years old,” id. at 262, the majority evidently did not deem

the facts that the dissent found particularly noteworthy—

facts arguably depicting one parent’s purposeful thwarting

of the other parent’s efforts to develop a relationship with a

child—to be legally significant.

In Quilloin v. Walcott, 434 US 246, 98 S Ct 549, 54 L

Ed 2d 511 (1978), the court considered the constitutionality

of Georgia’s adoption laws, which operated to deny an unwed

father the ability to prevent the adoption of his biological

child by the mother’s husband. In that case, the parents had

not been married when the child was born, the mother had

married a different man when the child was about three

years old, and, when the child was 11, the mother’s hus-

band had filed a petition to adopt the child. 434 US at 247.

In response to the adoption petition, the biological father

attempted to block the adoption and to secure visitation

rights, but he did not seek custody. Id. The Court held that

there had been no due process violation and that the case

gave rise to no equal protection concerns, observing that the

biological father “has never exercised actual or legal cus-

tody over his child, and thus has never shouldered any sig-

nificant responsibility with respect to the daily supervision,

education, protection, or care of the child.” Id. at 255-56.

Cite as 312 Or App 71 (2021) 97

Finally, the trial court considered Stanley v. Illinois,

405 US 645, 92 S Ct 1208, 31 L Ed 2d 551 (1972). In that case,

the State of Illinois had a statutory scheme under which

children of unwed mothers became wards of the state if their

mother died. In that case, the biological parents of three

children had lived together intermittently for 18 years but

were not married. Id. at 646. The mother died, and the chil-

dren became wards of the state and were placed with court-

appointed guardians. Id. The biological father appealed that

decision and claimed that, because he had not been shown

to be an unfit parent, he had been denied equal protection

of the laws. Id. That was so, he contended, because, under

Illinois law, married fathers and unwed mothers could not

be deprived of their children without a similar showing. Id.

The Court held that the father was entitled to a hearing on

his fitness before the children could be removed from his

care. Id. at 658.

Schnitzer argues that the foregoing Supreme Court

decisions do not support the trial court’s conclusion that

Sause has a constitutionally protected parental right. As

he characterizes the circumstances here, a “gamete donor’s

inchoate plan for a future ‘maternal role,’ even if the future

father has shown support for it, cannot establish legal par-

enthood. Sause’s expectations, however sincere and strongly

held, are not sufficient.” Schnitzer asserts that Stanley is

particularly unhelpful because the existence of a parental

right was not at issue in that case. And, to the extent that

Lehr and Quilloin, both of which involved natural parents,

are applicable to this case involving gamete donation and

in vitro fertilization, Schnitzer contends that those cases

support reversal. In his view, each of those cases condi-

tioned its recognition of a protected parental right on a

far more substantial showing than Sause has made here.

Lehr, Schnitzer observes, would require a custodial, per-

sonal, or financial relationship of some duration, whereas

Quilloin would require daily contribution to the child’s

education, protection, and care. Schnitzer contends that

the showing that Sause has made as to S in this case falls

far short of the showings that the Supreme Court deemed

sufficient to establish a protected parental right in its own

decisions.

98 Sause and Schnitzer

Sause responds that, to the extent that we reject

her argument that she was not required to show more than

a biological connection to be entitled to parental rights, she

has made a sufficient showing here. As we will explain, we

agree with Schnitzer that Lehr and Quilloin provide sub-

stantial guidance as to what kinds of evidence can give rise

to protected parental rights premised on a biological con-

nection, and that Sause has not made the requisite showing

here.

Before we apply those decisions of the United States

Supreme Court, we note that Schnitzer also contends that

the trial court misapplied our decision in Wooden in conclud-

ing that Sause had made a sufficient showing to establish

parental rights as to S. We agree. In Wooden, we recognized

that the father had developed “a substantial father-son rela-

tionship” and concluded that he had parental rights that

had to be given significant weight in determining whether

he should have custody. 184 Or App at 551. We described

that relationship as follows:

“[W]e do not underestimate the importance of the fact that,

before mother’s death, father visited only sporadically and

fell behind in his child support payments. But we also note,

in mitigation, that father did not desert mother and child,

she chose to leave him; that he did maintain some contact

and paid two-thirds of his support obligation; that, for part

of child’s life, he and child were separated by geography,

with child in Seattle (father does not drive); that father’s

pastor advised him that his mental health would be best

served by limiting or eliminating contact with mother and

child; and that, for the year immediately before mother’s

death, father stopped all visitation because mother and her

violence-prone husband told him to stay away.

“Most significantly, we note father’s conduct after moth-

er’s murder. He came forward to discuss child’s future

within 48 hours of learning that mother and her husband

were dead. Since that time, he has paid all support obli-

gations, even after learning from grandparents that they

did not want or need payment. He has also maintained a

near-perfect record of regular visitation, despite the fact

that he had to take public transportation from Vancouver,

Washington, to grandparents’ home in Washington County.

Cite as 312 Or App 71 (2021) 99

* * * [H]e has taken every possible step to make himself an

important presence in child’s life.”

184 Or App at 550.

Sause emphasizes dicta in Wooden to suggest that

our opinion in that case supports her position. Specifically,

on our way to concluding that the father had a protected

parental right that he could assert in custody proceedings,

we stated that the father’s biological connection to the child

was not itself a sufficient basis for the father to “avail him-

self of the ‘supervening right’ to a privileged position in the

decision whether to grant custody” of the child to the grand-

parents. Id. at 549. We went on to state that

“[t]hat conclusion, however, does not end our inquiry; as

we noted in McIntyre, Lehr teaches that, while a biological

father does not have parental right automatically and for

that reason only, even a relatively uninvolved parent may,

by virtue of his conduct, avoid losing them. Lehr speaks of

the father’s opportunity to ‘develop a relationship with his

offspring’ * * *. We must now determine whether father has

done so.

“We conclude that he has. There is some force to the argu-

ment that he has done so merely by virtue of acknowledging

paternity; that act alone distinguishes him from the putative

parents in Lehr, Quilloin, McIntyre, and other cases demon-

strating the insufficiency of a merely biological connection.

We need not decide that question here, however, because

father has done much more.”

Id. at 549-50 (citation omitted; emphasis added). Sause

emphasizes our statement that the act of acknowledging

paternity might be enough to establish parental rights.

However, as we expressly recognized in Wooden, we had no

occasion in that case to decide whether that act would be

sufficient to confer a parental right, because the father had

“done much more.” Id. Moreover, other than purporting to

distinguish certain precedents, we provided no reasoning

for our observation that there was “some force to the argu-

ment that he has done so merely by virtue of acknowledging

paternity,” id. at 550, and it is not otherwise evident why

we said it. That is, in each of the cases that we purported

to distinguish, the putative fathers were actively seeking to

100 Sause and Schnitzer

establish rights and obligations as fathers; it is not evident

how the fact that the father had formally acknowledged

paternity in Wooden might somehow be viewed as having

taken a more substantial step towards accepting responsi-

bility for a child than did the putative fathers in those other

cases. As a result, we do not view that statement in Wooden

as having any bearing here. Moreover, as we explain below,

Sause’s showing in this case falls far below that of the father

in Wooden; thus, to the extent Wooden applies here at all, it

supports Schnitzer’s position, not Sause’s, as the trial court

understood.

Returning to the federal case law, we now consider

whether Sause made an adequate showing that she had

“grasp[ed] the opportunity” presented to her by her biolog-

ical connection to S. See Lehr, 463 US at 261-62 (explain-

ing that a biological connection to a child creates an oppor-

tunity to develop a relationship with a child and holding

that a father acquires a right to a parental relationship

“[i]f he grasps that opportunity and accepts some mea-

sure of responsibility for the child’s future”). In applying

that case law here, we assume without needing to decide

that Sause’s claim to a parental relationship under that

case law is no less than that of a person who conceives a

child through sexual intercourse; that is, for purposes of

discussion, we reject Schnitzer’s argument to the contrary.

Further, we conclude, based upon that case law, that the

appropriate time reference for examining Sause’s efforts

to grasp the opportunities of parenthood is the time before

she pursued court action, as any legal or equitable claim

that she might have had would necessarily have been pre-

mised on rights that she had at the time of her filing. See

id. at 262 (considering biological father’s relationship with

and efforts in regard to child before seeking to establish

legal ties); Quilloin, 434 US at 255-56 (considering biolog-

ical father’s efforts before contesting adoption and observ-

ing that he “has never exercised actual or legal custody

over his child, and thus has never shouldered any signif-

icant responsibility with respect to the daily supervision,

education, protection, or care of the child”); cf. McIntyre,

98 Or App at 472 (conditioning biological father’s claim on

substantiation of assertion that he had donated sperm in

Cite as 312 Or App 71 (2021) 101

reliance on mother’s agreement that he would enjoy parental

rights).

Sause asserts that there is no bright-line test for

determining whether the biological parent of a newborn

child has adequately “grasped the opportunity” to develop a

relationship with that child. In support of the conclusion that

she has done so here, she contends that she has shown more

than the mere filing of a legal claim after S was born. She

asserts that she was not just a “gamete donor,” as Schnitzer

would characterize her; rather, she emphasizes, she and

Schnitzer were in a romantic relationship and, as Sause now

recounts, the two “agreed to have a child together” using

IVF and a gestational carrier.15 She acknowledges that she

understood that Schnitzer was to be the custodial parent

and would make all significant parental decisions in S’s life,

but she asserts a further understanding that she would be

identified as S’s mother on his birth certificate and would

“always play some role in the child’s life.” Sause also points

to the fact that she exchanged numerous emails and texts

with Schnitzer during the pregnancy in which the two of

them discussed “her role in the life of her son” and that she

ultimately entered into the Agreement, which she under-

stood to guarantee her right to participate in S’s life.

Additionally, Sause describes her efforts in having

her eggs retrieved under anesthesia, her involvement with

the creation of embryos, and her emotional attachment with

the first gestational carrier, who did not have a successful

pregnancy. Finally, Sause notes that she received regular

updates as the ultimately successful pregnancy progressed,

and she was at the hospital and held S shortly after his

birth.

We agree with Sause that there is no bright-line

test for when a biological parent has made the showing

necessary to acquire a constitutionally protected parental

right. However, we conclude that, to the extent that the

efforts and understandings that Sause relies on are relevant

and supported by the record, they nevertheless fall short of

15

The trial court’s findings refer to Sause as donating eggs and male embryos

and gifting eggs; the trial court did not make a finding that Sause and Schnitzer

“agreed to have a child together.”

102 Sause and Schnitzer

showing that she “grasp[ed] [the] opportunity [to develop a

parent-child relationship] and accept[ed] some measure of

responsibility for the child’s future.” Lehr, 463 US at 262. We

recognize that Sause sought to assert her parental rights

in court fairly shortly after S was born and that, given

Schnitzer’s decision to prevent Sause from having further

contact with S, there probably was not much more that she

could have done at that point to further establish a rela-

tionship. Nonetheless, by that time there had been sufficient

opportunity for Sause to demonstrate a “full commitment to

the responsibilities of parenthood.” Id. at 261. She did not do

so.

First, although the record reflects that Sause and

Schnitzer were in a romantic relationship for a time, it does

not reflect—and the trial court did not find—that the deci-

sion to have S grew out of that relationship or that Sause

and Schnitzer made a joint decision to have a child. Rather,

as the court found, Schnitzer came into the relationship

already engaged in efforts to add a son to his family. True,

Schnitzer hoped that Sause and he would marry and that

they would form a family including S; that, however, does

not reflect in any way on Sause’s own commitment to parent

S.

Similarly, even assuming that Sause and Schnitzer

had at some point discussed having Sause’s name on S’s

birth certificate,16 she does not contend that, in seeking to

be identified as S’s mother in that way, Sause was some-

how seeking to accept responsibility for the nurturing and

upkeep of S as her child. Indeed, although Sause now points

to the parties’ written contract as reflecting her intent to

play a parental role in S’s life, that document expressly

disavowed any financial or other responsibility for S. 312

Or App at 79 (quoting release language in the Agreement).

Furthermore, Sause does not rely on the Agreement as cre-

ating parental rights for her; her argument on appeal has

been that it did not serve to terminate any parental rights

16

It is not clear whether the trial court made any finding on this issue. It

described Sause’s testimony that she would never have thought to ask about the

birth certificate, but it also quoted a text message from Sause to her sister, in

which Sause says that she told Schnitzer she would sign “open adoption type

documents as long as my names [sic] on birth cert.”

Cite as 312 Or App 71 (2021) 103

that she otherwise had in S. Thus, whatever unilateral sig-

nificance the Agreement may have had for Sause, it cannot

support her contention that, before filing a claim asserting

parental rights, she had demonstrated any “commitment to

the responsibilities of parenthood,” much less a “full com-

mitment.” See Lehr, 463 US at 261.

That leaves, in support of Sause’s argument that she

has established a right to parent S, her argument that she

underwent a serious procedure to have her eggs retrieved

and that she and Schnitzer had repeatedly discussed that

she would play a maternal role in S’s life. Given the trial

court’s finding that Sause chose to have her eggs retrieved

for her own, fertility-preservation purposes—in other words,

not for the purpose of sharing eggs with Schnitzer or hav-

ing a child with him—we can attach no legal significance

to any physical, financial, or emotional challenges that that

process may have caused her. That is, nothing about Sause’s

submission to that procedure demonstrates a commitment

to be responsible for any resulting children. Moreover, it

cannot serve as a basis to show that Schnitzer promised her

a parental role in S’s life in exchange. See McIntyre, 98 Or

App at 470 (recognizing that commitment by other parent in

exchange for sperm donation might be basis for asserting a

claim to parental rights).

Likewise, the parties’ discussion of a “maternal role”

for S is insufficient to establish a constitutionally protected

parental right. We acknowledge that, in some instances,

representations by the other parent that a biological donor

will have parenting rights may give rise to such rights. See

id. Here, however, the parties’ seemingly vague discussions

about a “maternal role” for Sause neither reflected a com-

mitment on her part to the responsibilities, see Lehr, 463

US 261, nor, given their timing, appear to have served as

an incentive for Sause to donate her eggs in the first place.

Accordingly, they, too, fail to demonstrate Sause’s right to

parent S.17

17

The dissent points to additional facts that, in the dissent’s view, fur-

ther evidence Sause’s plans to parent S and her reliance on Schnitzer’s similar

understanding to that effect. See 312 Or App at 113 (Kamins, J., dissenting)

(discussing evidence “sufficient to show that Schnitzer and Sause—two people in

a romantic relationship—intended that Sause would play a maternal role in S’s

104 Sause and Schnitzer

Because we conclude that Sause has not estab-

lished a right to parent S, the trial court erred in denying

Schnitzer’s motion to dismiss Sause’s petition and Schnitzer’s

request for a declaration that he is S’s sole parent. Moreover,

because Sause has not established that she ever had a right

to parent S, we need not consider whether she waived that

right through the parties’ written agreement, as Schnitzer

contends in his third and fifth assignments of error. We

therefore reverse the trial court’s decision and remand for

entry of a judgment declaring that Schnitzer is the sole par-

ent of S and declaring that Sause is not the legal mother

of S. See Beldt v. Leise, 185 Or App 572, 576, 60 P3d 1119

(2003) (party is “entitled to a declaration of its rights, even

if that declaration is directly contrary to what it believes its

rights to be”).

Reversed and remanded for entry of judgment

declaring the rights of the parties.

MOONEY, J., specially concurring.

S had two legal parents when he was born: Cassandra

Gibeaut because she gave birth to S, ORS 432.088(8),1 and

Charles Gibeaut because he was Cassandra’s husband when

S was born, ORS 109.070(1)(a), and because he consented

life”). Although some of that evidence clearly reflected Schnitzer’s desire to marry

Sause and raise S together, nothing about those circumstances reflects a promise

that Sause would be assured a maternal role even if the relationship failed or

Sause’s reliance on such expectations in donating her eggs to Schnitzer.

1

ORS 432.088(8) provides:

“For purposes of making a report of live birth and live birth registration,

the woman who gives live birth is the birth mother. If a court of competent

jurisdiction determines that a woman other than the birth mother is the bio-

logical or genetic mother, the court may order the state registrar to amend

the record of live birth. The record of live birth shall then be placed under

seal.”

That is consistent with the longstanding presumption that the woman giving

birth to the child “has a right to the custody and control of [the child] as against

the putative father, and is bound to maintain [the child] as [the child’s] natu-

ral guardian.” James Kent, 2 Commentaries on American Law 215 (8th ed 1854)

(emphasis added). Oregon has long recognized the common-law rule. See Nine v.

Starr, 8 Or 49, 50 (1879) (common-law-putative father of illegitimate child has no

support responsibility; birth mother is legally responsible for child’s support and

upbringing). The language in ORS 109.065(2) was added by the legislature in

2017, Or Laws 2017, ch 651, § 2, and it codifies the common law:

“A person is the mother of a child to whom the person gives birth.”

Cite as 312 Or App 71 (2021) 105

to the performance of the assisted reproduction tech-

nology (ART) procedure that resulted in his wife giving

birth to S, ORS 109.243. The Gibeauts then stipulated to

entry of a “General Declaratory Judgment of Parentage”

in Multnomah County Circuit Case No. 15DR19365 that

“ordered, declared and adjudged” Jordan Schnitzer to be the

“legal parent of [S].” Sause does not dispute the authority of

the court to enter that judgment under Oregon’s Declaratory

Judgment Act, ORS 28.010 to 28.160, nor does she dispute—

or challenge—that Schnitzer is S’s legal parent. Because

the majority remands these consolidated cases for entry of

judgments declaring Jordan Schnitzer to be S’s legal parent,

consistent with the judgment of parentage in Multnomah

County Circuit Court Case No. 15DR19365, I concur. I write

separately because I would use a different, shorter, path to

get there.

The Gibeauts did not conceive S through sex-

ual intercourse. In fact, they did not conceive him at all.

Conception—fertilization of a female reproductive cell, also

known as a “gamete” (Cory Sause’s ovum or egg) with a

male reproductive cell, also known as a “gamete” (Jordan

Schnitzer’s sperm or spermatozoon)—occurred in a labora-

tory and resulted in an embryo with a fully fused set of chro-

mosomes (23 pairs, totaling 46) that was later introduced

into Cassandra Gibeaut’s uterus with the hope of implanta-

tion. Implantation was successful and Cassandra Gibeaut

delivered S some months later.

When the trial court entered its judgment estab-

lishing Sause’s parentage by declaring her to be S’s “legal

mother,” the judgment of parentage in Multnomah County

Circuit Court Case No. 15DR19365 had been entered and,

importantly, Senate Bill (SB) 512 (2017) had become the law

in Oregon. Of particular relevance here, SB 512 amended

ORS 109.065 to add subsection (2), which provides that “[a]

person is the mother of a child to whom the person gives

birth.” ORS 109.065(2). SB 512 also amended ORS 109.239,

which provides:

“(1) As used in ORS 109.239 to 109.247, ‘assisted

reproduction’ means a method of causing pregnancy other

106 Sause and Schnitzer

than sexual intercourse. ‘Assisted reproduction’ includes,

but is not limited to:

“(a) Artificial insemination as defined in ORS 677.355;

“(b) Donation of eggs;

“(c) Donation of embryos;

“(d) In vitro fertilization and transfer of embryos; or

“(e) Intracytoplasmic sperm injection.

“(2) If the donor of gametes used in assisted reproduc-

tion is not the mother’s spouse:

“(a) The donor shall have no right, obligation or inter-

est with respect to any child conceived as a result of the

assisted reproduction; and

“(b) Any child conceived as a result of the assisted

reproduction shall have no right, obligation or interest with

respect to the donor.”

By its express terms, the legislature directed that SB 512

apply “to establishments * * * of parentage * * * made * * * on

or after the effective date of this 2017 Act.” Or Laws 2017,

ch 651, § 54. The effective date of the Act was January 1,

2018. See ORS 171.022 (unless otherwise provided, a stat-

ute takes effect on January 1 of the year following its pas-

sage). The judgment establishing parentage in Case No.

16DR18690 was entered on January 18, 2018, and the judg-

ment establishing parentage in Case No. 16DR19349 was

entered on January 24, 2018. At the time each judgment

was entered, Sause had no parental rights with respect to

S under SB 512 section 4 (codified at ORS 109.239(2)(a)),

because S was a child conceived as a result of an ART pro-

cedure using eggs Sause had donated2 for that purpose. The

judgment establishing parentage in each case was, there-

fore, unlawful.

It is clear that the trial court was aware that SB

512 would soon take effect because it commented that it

thought the new law was “interesting” and that SB 512

2

The trial court found, among other things, that Sause had “donated” her

eggs and signed paperwork “to transfer” those eggs to Schnitzer. The evidence in

the record supports those findings.

Cite as 312 Or App 71 (2021) 107

reflected “where the future is headed.” It nevertheless issued

a ruling that is inconsistent with SB 512. To be sure, the

court signed its written findings and conclusions of law on

December 6, 2017, 26 days before SB 512 took effect. But, as

it happened, the judgments, which incorporated the court’s

rulings, were not entered into the court’s register until after

SB 512 became effective. Surely it was not surprising to the

lawyers or to the court that the date of signing and the date

of entry occurred on different dates. Had it been surprising,

or even unintended, there would surely have been a judg-

ment entered nunc pro tunc to December 6, 2017. But that

did not happen.

Sause argues that we should turn a blind eye to the

date that the judgment was entered because the court issued

its written findings in December 2017, and its ruling should

be reviewed according to the law as it existed at that time.

Schnitzer correctly argues that, until entered, the judg-

ments establishing parentage were not final, appealable, or

enforceable. ORS 18.082(1). The majority largely ignores SB

512, reasoning that the parties “understood” that the new

law would not apply. 312 Or App at 86 n 9. And the dis-

sent ignores SB 512 altogether. But Schnitzer provided the

trial court with a copy of SB 512, and he advised the court

of the approaching effective date. The issue was raised and

discussed.

And, even if Schnitzer had not raised or adequately

preserved the issue below, we cannot ignore it on appeal

because we cannot conduct proper legal review without

determining what law applies to the judgments. Whether

the trial court correctly concluded that Sause is S’s “legal

mother” requires us to determine whether the amendments

to Oregon’s paternity and artificial insemination stat-

utes made by SB 512 were in effect and, thus, applicable

to the judgments from which this appeal was taken. And

that presents a question of statutory interpretation. See

Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997) (where the

Supreme Court held in an analogous situation that, “[i]n

order to decide whether the Court of Appeals erred in con-

cluding that all plaintiff’s claims were time barred, this

court must determine, as one part of that inquiry, at what

point the action is deemed to have been commenced. ORS

108 Sause and Schnitzer

12.020 governs the commencement of an action for purposes

of statutes of limitations. Therefore, the question is one of

statutory interpretation. In construing a statute, this court

is responsible for identifying the correct interpretation,

whether or not asserted by the parties.”). See also Miller v.

Water Wonderland Improvement District, 326 Or 306, 309

n 3 (1998) (observing that “the parties may not prevent a

court from noticing and invoking an applicable statute by

relying only on other sources of law”). The timing of entry

of judgment is not a mere technicality—it determines when

the judgment is final and enforceable. ORS 18.082(1);3 see

also Patrick v. Otteman, 158 Or App 175, 183, 974 P2d 217,

rev den, 328 Or 594 (1999) (a judgment is ineffective until it

is entered in the court register). SB 512 is clear with respect

to its effective date. And, here, the judgments establishing

parentage were entered after that effective date. SB 512

applies.

SB 512 was not a surprise. The bill itself modern-

ized Oregon’s outdated paternity and artificial insemina-

tion statutes, making them inclusive and gender neutral.

There was no testimony in opposition to the bill. It easily

passed, and its effective date was known. SB 512 is clearly

written. It treats male and female gamete donors the same

with respect to children born using donated reproductive

cells. Moreover, SB 512 accomplishes by its express terms

what Oregon’s Equal Rights Amendment, Or Const, Art I,

§ 46, already required—equal treatment of male and female

gamete donors under the law. In other words, SB 512 made

clear what the Oregon Constitution already required in the

context of ART—that ORS 109.239 be applied to afford the

3

ORS 18.082(1) provides:

“Upon entry of a judgment, the judgment:

“(a) Becomes the exclusive statement of the court’s decision in the case

and governs the rights and obligations of the parties that are subject to the

judgment;

“(b) May be enforced in the manner provided by law;

“(c) May be appealed in the manner provided by law;

“(d) Acts as official notice of the court’s decision; and

“(e) May be set aside or modified only by the court rendering the judg-

ment or by another court or tribunal with the same or greater authority than

the court rendering the judgment.”

Cite as 312 Or App 71 (2021) 109

same rights to a man who is a child’s legal parent against

parental claims of a female gamete donor as it affords to a

woman who is a child’s legal parent against parental claims

of a male gamete donor.

I agree with the trial court, the majority, and the

dissent when they conclude that genetics alone do not confer

parental rights. I do not agree that a man or woman who

donates reproductive cells for use in ART procedures has the

same right to develop a parental relationship with any child

born using one of those cells as a man or woman who pro-

vides reproductive cells through sexual intercourse would

have. And, more importantly, the legislature has expressed

its intent through Oregon’s parentage and ART laws that

those two situations are different as a matter of law.

The relationships that the law defines for those who

procreate through sexual intercourse—the vast majority of

people using the “old-fashioned” method of family planning—

has developed over the centuries through case law and stat-

utory law generally tracking societal values and norms.

Those using ART procedures to create children—a clear

minority of the population using the “clinical” method of

family planning—generally do so because they are other-

wise unable to procreate through sexual intercourse for rea-

sons ranging from infertility in an opposite sex partnership

or marriage to biologic impossibility in a same-sex part-

nership or marriage to a person desiring to parent with-

out a partner or spouse. Thoughtful planning is key and the

laws governing ART protect those who create their families

using ART from claims of third parties who are otherwise

strangers to the family. It does so for much the same reason

the law presumes that a child born to a married woman is

also the child of her spouse—to preserve intact families. I

respectfully suggest that the reason existing law provides

a rebuttable presumption when a child is conceived through

sexual intercourse is that the intent of the parties is not

always clear because sexual intercourse serves purposes in

addition to procreation. The intent of the parties using ART

procedures is much clearer. ORS 109.239, as amended by SB

512 in 2017, does not “elevate the rights of healthy cisgender

heterosexuals over marginalized groups” as suggested by

the dissent. 312 Or App at 115 (Kamins, J., dissenting). The

110 Sause and Schnitzer

statute protects the ability to thoughtfully engage in fam-

ily planning for those most likely to use ART procedures—

members of the LGBTQ+4 communities and those otherwise

struggling with fertility challenges.

Most of the cases on which my colleagues rely for the

“right to grasp” for parental rights do not concern ART. They

concern children conceived through sexual intercourse, and

they are distinguishable for that reason. And, unlike the

sperm donor in McIntyre v. Crouch, 98 Or App 462, 780 P2d

239, rev den, 308 Or 593 (1989), cert den, 495 US 905 (1990),

Sause does not expressly claim that she donated her eggs

in consideration of Schnitzer’s promise to allow her to have

parental rights with respect to any offspring born using her

eggs. Moreover, in my view, the plurality in McIntyre was

incorrect when it concluded that the prior version of ORS

109.239 was not a bar to the sperm donor’s claim for parent-

age. The dissenting judge in McIntyre would correctly have

applied ORS 109.239 as an absolute bar to the sperm donor’s

claim of parentage without violating any constitutional due

process rights. In that dissenting opinion, Presiding Judge

Richardson explained that the prior version of ORS 109.239

at issue in McIntyre was a “substantive regulation in which

the governmental interest is great. Its effect is not limited

to parental rights and obligations. * * * The statutes contem-

plate that the ultimate relationship, or absence of one, must

be defined before the child is conceived in order to facili-

tate informed decisions about whether to donate and to con-

ceive.” 98 Or App at 477 (Richardson, P. J., dissenting). That

is most certainly as true today of ORS 109.239, which now

includes ART procedures in addition to artificial insemi-

nation, as it was in 1989 when ORS 109.239 included only

artificial insemination. I would adopt the approach of the

dissenting opinion in McIntyre to conclude that Sause has no

parental rights as a gamete donor.

It is worth noting that Sause signed a contract

relinquishing any claim she might arguably have in “the

embryos and offspring that might result from the use of

4

The acronym stands for Lesbian, Gay, Bisexual, Transgender, Queer, and

other gender identities and sexual orientations not specifically covered by the

first five initials.

Cite as 312 Or App 71 (2021) 111

[her] eggs” for in vitro fertilization. That she and Schnitzer

had conversations that were inconsistent with that agree-

ment has no bearing on the outcome of this case, in part,

because the parol evidence rule, ORS 41.740, would pre-

vent consideration of some of those conversations, Lyons v.

Beeman, 311 Or App 560, 569-70, 494 P3d 358 (2021), and,

more importantly, because ORS 109.239 bars Sause’s claim

of parentage ab initio. If a “genetic link” somehow trumps

Sause’s contractual agreement and provides her with a con-

stitutional “right to grasp” for a chance to be designated the

child’s legal parent, it is difficult to imagine why anyone

thoughtfully planning a family would do so using donated

reproductive cells. Of course, SB 512 is now clearly in place,

and it is more than just interesting. It is the law and it does

not permit such an unwieldy result.

This case is not nearly as complex as the factual

context presented by the parties would suggest. Schnitzer

and Sause were romantically involved, and they engaged in

a sexually intimate relationship. They also entered into a

contract by which Sause gave up any parental rights she

might arguably have with respect to any male child born

using embryos created through the clinical fusion of her

reproductive cells with those of Schnitzer. Setting aside

the curiosity of why one would condition their intent to

assert parental rights based solely on the gender assigned

to a child at birth, or why one might wish to be known as

a mother but have no corresponding legal obligation to the

child, and ignoring the sexual relationship that the parties

apparently had but that did not result in the conception of

a child, Schnitzer and Sause were simply gamete donors. In

fact, there is nothing terribly complex about that. Neither

had any parental rights when S was born. Schnitzer’s sta-

tus as S’s legal parent came from his agreement with the

Gibeauts, not from his genetic link to S. He is a man who is

also S’s legal parent. ORS 109.239 bars any claim by Sause

as a gamete donor for parental rights.

I agree that the case should be remanded for entry

of a judgment declaring that Schnitzer is S’s legal parent

and that Sause is not S’s legal parent. Accordingly, I con-

cur in the result reached by the majority, but not in its

reasoning.

112 Sause and Schnitzer

KAMINS, J., dissenting.

The constitutional interest of parents in the care

of their children “is perhaps the oldest of the fundamental

liberty interests.” Troxel v. Granville, 530 US 57, 65, 120

S Ct 2054, 147 L Ed 2d 49 (2000). I respectfully dissent

from the majority opinion because, in my view, Sause made

a sufficient showing that she possesses a fundamental lib-

erty interest in the parenting of S, the child created with

her and her then-romantic partner’s genetic material. Sause

was assured a role in S’s life, and as soon as that role was

put in jeopardy, Sause took swift action to protect her rights.

As a preliminary matter, I agree with the majority

that, under the Due Process Clause of the federal constitu-

tion, Sause’s “mere biological connection to S does not con-

fer parental rights,” 312 Or App at 93, but rather “Sause’s

biological relationship to S provided a link that, under cer-

tain circumstances could form a basis for acquiring a legal,

parental relationship,” id. at 85. That link, as described by

the Supreme Court, offers the genetic parent “an opportunity

that no other [person] possesses to develop a relationship

with his offspring.” Lehr v. Robertson, 463 US 248, 262, 103

S Ct 2985, 77 L Ed 2d 614 (1983). If a genetic parent “grasps

that opportunity and accepts some measure of responsibil-

ity for the child’s future, he may enjoy the blessings of the

parent-child relationship and make uniquely valuable con-

tributions to the child’s development.” Id.

I part ways with the majority in the conclusion that

Sause did not grasp those rights. The majority asserts that,

because Sause neither demonstrated a “full commitment” to

parenting S nor established that her donation of eggs was

motivated by reliance on an agreement that she would be

S’s legal mother, she did not establish a constitutionally pro-

tected parental right. 312 Or App at 102-03 (citing Lehr, 463

US at 261). I disagree with both points.

First, the interactions between Sause and Schnitzer

are critical to determining the amount of grasping that

would have been required to secure parental rights. Had

the two agreed that Sause would be S’s mother, but also

agreed that Sause would be stationed on a nine-month-long

research mission in Antarctica during the surrogacy, one

Cite as 312 Or App 71 (2021) 113

would not anticipate Sause would do much grasping during

that time. And here, the conversations that the majority

characterizes as “seemingly vague discussions,” id. at 103,

were, as the trial court noted (after a nine-day bench trial),

sufficient to show that Schnitzer and Sause—two people in

a romantic relationship—intended that Sause would play

a maternal role in S’s life. Sause “mad[e] plans for a nurs-

ery in her home in anticipation of playing a visiting parent

role” and texted Schnitzer that she had told the painter that

her “hearts [sic] set on boys” when the painter commented

on her choice of blue walls for the nursery. Schnitzer asked

Sause if she was “going to be ready for a baby” when she

was babysitting a friend’s child, and he told her “yo[u] are

always in denial about your maternal instincts…this is our

baby” when Sause expressed surprise that she “[could]n’t

stop thinking about cribs.”

In addition to communicating his hope and plan to

Sause that she would play a maternal role with S, Schnitzer

communicated that plan to Sause’s parents as well, texting

them a picture of an ultrasound image of S and calling S

“Your grandson!” He further shared that he had told the

surrogate about “the role [Schnitzer] hoped that [Sause’s

parents] will play” in S’s life. Schnitzer gave Sause’s parents

the “blow-by-blow” of the pregnancy, invited Sause and her

parents to an ultrasound appointment, and, on the day of

S’s birth, Schnitzer “sent multiple photos from the hospital”

to Sause and her parents. They all were admitted to the

birthing room and held S on the day of his birth. Up until

Schnitzer’s unilateral refusal to allow Sause to see S, Sause,

like the mother stationed in Antarctica, had no reason to

think that she needed to take any action to acquire parental

rights.

Second, I disagree with the majority’s conclusion

that Sause did not rely on that shared intent when she

donated her eggs. We have recognized that it would violate

the Due Process Clause to deny parental rights to a per-

son donating gametes who has done so in reliance on an

understanding that he or she would have the rights and

responsibilities of parenthood. McIntyre v. Crouch, 98 Or

App 462, 472, 780 P2d 239, rev den, 308 Or 593 (1989), cert

den, 495 US 905 (1990). Like the petitioner in McIntyre,

114 Sause and Schnitzer

Sause trusted the conversations that she had with the other

genetic parent as part of the decision to donate her eggs.1

Here, she trusted Schnitzer’s repeated assertions that she

would play a maternal role in S’s life. Moreover, S was being

carried by a surrogate, limiting any practical role for Sause

in the pregnancy. Nevertheless, Sause did execute an agree-

ment with Schnitzer that (albeit far from a model of clarity)

clearly deviated from an anonymous donor agreement in a

critical respect: it contemplated a role for Sause in S’s life.

In light of the nature of the pregnancy and the understand-

ing between the couple that Sause’s role would be limited,

it is difficult to imagine what additional steps Sause should

have or even could have taken prior to S’s birth. And when

the couple’s mutual understanding changed—immediately

following the birth—Sause acted promptly by attempting to

grasp at the opportunity for parental rights through retain-

ing counsel and initiating legal action.

The majority concludes that Sause’s action in filing

the suit does not evince her efforts to grasp at parental rights

because our review is limited to actions that occurred before

she filed suit. 312 Or App at 100. I disagree on that point as

well: in contrast to the case law that the majority relies on

for that assertion, here, filing suit to establish her parental

rights was one of the first actions available to Sause. Less

than three months after S’s birth, Sause moved to inter-

vene in the declaratory judgment of parentage action that

Schnitzer filed immediately after S’s birth, and, soon after

that intervention failed, she filed the suit that is the subject

of this appeal. Cf. Lehr, 463 US 248 (biological father filed

suit to block adoption of child by mother’s husband when

child was over two years old); Quilloin v. Walcott, 434 US

246, 98 S Ct 549, 54 L Ed 2d 511 (1978) (biological father

filed suit to block adoption of child by mother’s husband

when child was 11 years old).

What seems to animate a contrary result in this

case is that Sause did not seek a “full commitment” to the

1

Although, as the majority correctly points out, the trial court found

that Sause did not have her eggs harvested for purposes of providing them to

Schnitzer, 312 Or App at 103, the trial court also credited her testimony that

she donated her eggs to Schnitzer based on their shared understanding that she

would be “actively involved” in S’s life.

Cite as 312 Or App 71 (2021) 115

role of parent because she sought a more limited role in S’s

life. 312 Or App at 101-03. We have not had cause to deter-

mine whether a person must grasp for the full rights and

responsibilities of parenthood in order to be able to secure

those rights. I question, however, whether it is our role to

determine who has a constitutional right to parent based on

a judicial evaluation of the type of parent they want to be.

As the Lehr Court recognized, “[t]he intangible fibers that

connect parent and child have infinite variety.” 463 US at

256. That variety has only multiplied as parents have woven

those fibers in ever-increasing family arrangements in the

forty years since Lehr was decided. Whether the way some-

one chooses to make a family creates a constitutional right

cannot be as simple as whether someone intends to be a full-

time parent or not a parent at all.

The inquiry instead hinges on whether an individual

who provided genetic material by whatever means waived

their constitutional rights, not whether those rights existed

in the first place. Genetic parents of all types have constitu-

tionally protected rights, and there is no constitutional lan-

guage or case law that supports the concurrence’s assertion

that the constitution provides different levels of protection

for people using ART and people using sexual reproduction.

312 Or App at 109-10 (Mooney, J., specially concurring). See

e.g., McIntyre, 98 Or App at 472 (“The Due Process Clause can

afford no different protection to petitioner as the biological

father because the child was conceived by artificial insemi-

nation rather than by sexual intercourse [if he provided his

genetic material for the purpose of creating offspring together

with the other parent].”). Affording sexual intercourse—

often engaged in not for the purpose of reproduction—

greater constitutional protection than the use of ART would

inevitably elevate the rights of healthy cisgender hetero-

sexuals over marginalized groups and people struggling to

conceive.

As we have previously stated, a well drafted donor

agreement protects the intended parents of a child because

it “expressly and effectively waive[s] any entitlement to

assert parental rights” on the part of the donor. Leckie and

Voorhies, 128 Or App 289, 293, 875 P2d 521 (1994). And that

waiver, not the method by which a person’s gametes are

116 Sause and Schnitzer

used in the creation of a child, is the mechanism that ORS

109.239 enforces. If, as the concurrence appears to propose,

the statute categorically removes protection for the paren-

tal relationship of individuals who conceive through ART by

excluding them from the Lehr line of cases, it would not pass

constitutional muster.2

Because the evidence reflects that Sause grasped at

the opportunity to be S’s mother, I respectfully dissent.

2

Because I conclude that Sause established a constitutionally protected

parental right, I would reach the issue of whether Sause waived that right by

signing the Nudelman Agreement. As to that issue, I would affirm the trial

court because that agreement does not reflect an unambiguous waiver of Sause’s

parental rights.