Sause and Schnitzer

No. 33 November 28, 2023 573

IN THE SUPREME COURT OF THE

STATE OF OREGON

In the Matter of the Parentage of S.D.S.,

a Minor Child.

Cory Noel SAUSE,

Petitioner on Review,

and

Jordan Director SCHNITZER,

Respondent on Review.

In the Matter of the Parentage of S.D.S.,

a Minor Child.

Jordan Director SCHNITZER,

Respondent on Review,

and

Cassondra Lynn GIBEAUT

and Charles Burett Gibeaut,

Petitioners below,

and

Cory Noel SAUSE,

Petitioner on Review,

and

Dale C. SAUSE

and Heidi N. Sause

Respondents below.

(CC 16DR18690; 16DR19349) (CA A167020) (SC S068780)

On review from the Court of Appeals.*

Argued and submitted May 3, 2022.

C. Robert Steringer, Harrang Long Gary Rudnick P.C.,

Portland, argued the cause and filed the briefs for petitioner

on review. Also on the briefs were James E. Mountain and

Erica R. Tatoian, Harrang Long Gary Rudnick, and Thomas

McDermott and Jay Beattie, Lindsay Hart, LLP, Portland.

______________

* On appeal from the Multnomah County Circuit Court, Amy Holmes Hehn,

Judge. 312 Or App 71, 493 P3d 1071 (2021).

574 Sause and Schnitzer

James N. Westwood, Stoel Rives LLP, Portland, argued

the cause and filed the brief for respondent on review. Also

on the brief was Crystal S. Chase, Stoel Rives LLP.

Robin E. Pope, Portland, filed the brief for amici curiae

Academy of Adoption and Assisted Reproduction Attorneys,

RESOLVE: The National Infertility Association, and The

American Society for Reproductive Medicine.

Before Flynn, Chief Justice, and Duncan, Garrett,

Bushong, and James, Justices, and Linder and Balmer,

Senior Judges, Justices pro tempore.**

BALMER, S.J.

The decision of the Court of Appeals is affirmed in part

and reversed in part. The judgment of the circuit court is

reversed, and the case is remanded to the circuit court for

further proceedings.

Bushong, J., dissented and filed an opinion, in which

Flynn, C.J., and Linder, S.J., joined. Linder, S.J., dissented

and filed an opinion, in which Bushong, J., joined.

______________

** Walters, J., retired December 31, 2022, and did not participate in the deci-

sion of this case. Nelson, J., resigned February 25, 2023, and did not participate

in the decision of this case. DeHoog and Masih, JJ., did not participate in the

consideration or decision of this case.

Cite as 371 Or 573 (2023) 575

576 Sause and Schnitzer

BALMER, S.J.

This case concerns the parentage of a child con-

ceived through assisted reproductive technology (ART).

Schnitzer, one party in this case, wanted to have a son.

Because he was single, he planned to use his own sperm,

an egg donor, and a gestational carrier. Sause, the other

party, contributed her eggs to Schnitzer’s effort. Through

the ART process, their gametes were combined, and a

gestational carrier gave birth to a boy, S. Afterward, the

gestational carrier, her spouse, and Schnitzer agreed that

Schnitzer—and not the gestational carrier or her spouse—

was S’s intended parent, and a declaratory judgment was

entered to that effect. Schnitzer and Sause, however, dis-

agreed about whether Sause was also S’s parent and about

whether Schnitzer could prevent Sause from having a

relationship with S. This case presents the questions of

whether Sause is S’s legal parent as well as what rights she

may have with respect to S, parental or otherwise. The trial

court concluded that Sause was S’s legal parent based on

her undisputed genetic connection to S; a divided Court of

Appeals reversed. Sause and Schnitzer, 312 Or App 71, 104,

493 P3d 1071 (2021).

For the reasons explained below, we disagree with

the trial court and conclude that, in the circumstances of

this case, Sause’s genetic connection to S does not establish

her legal parentage of S. We also conclude, however, that

Sause may have contracted with Schnitzer for certain non-

parental rights with respect to S. The extent of those rights

is an issue that the trial court did not reach due to its con-

clusion that Sause was a parent. We therefore reverse the

judgment of the trial court and remand for further proceed-

ings in that court to declare the legal parentage of S and

to determine the extent of Sause’s nonparental rights with

respect to S.

I. BACKGROUND

The trial court’s express findings of fact are undis-

puted on appeal. We present those facts, supplemented by

the record and procedural history of this case.

Cite as 371 Or 573 (2023) 577

A. Historical Facts

Schnitzer, a divorced father of two daughters,

wanted a son, and he turned to ART to achieve that goal.

ART comprises a wide range of fertility treatments, including

gamete donation, in vitro fertilization, and gestational sur-

rogacy. See ORS 109.239(1). ART treatments are relatively

common: In Oregon in 2020, 804 infants (1.9 percent of those

born that year) had been conceived using ART. Sunderam

et al, State-Specific Assisted Reproductive Technology

Surveillance, United States: 2020 Data Brief 9, 13 (Centers

for Disease Control and Prevention, U.S. Dept. of Health

and Human Services, ed., 2022). ART is often used by fami-

lies experiencing infertility, people with inheritable genetic

diseases, single parents, and members of the LGBTQ com-

munity, among others. See Myrisha S. Lewis, Normalizing

Reproductive Genetic Innovation, 74 Admin L Rev 481, 488-

94 (2022); Anne-Kristin Kuhnt & Jasmin Passet-Wittig,

Families Formed Through Assisted Reproductive Technology:

Causes, Experiences, and Consequences in an International

Context, 14 Reprod BioMed & Soc’y Online 289, 289 (2022).

Reproduction through ART often involves many parties,

potentially including sperm or egg donors, a gestational/tra-

ditional surrogate and their spouse, the child or children,

and the “commissioning” or “intended” parent or parents,

along with various institutions and medical professionals.

See Ayesha Rasheed, Confronting Problematic Legal Fictions

in Gestational Surrogacy, 24 J Health Care L & Pol’y 179,

183-84 (2021).

Schnitzer first tried to use ART in 2013 and 2014,

using an anonymous egg donor, his own sperm, and a ges-

tational carrier, but those efforts were unsuccessful. In

January 2014, Schnitzer met Sause, and they developed an

intimate relationship. Schnitzer continued trying to have a

son through ART, again using an anonymous egg donor and

his own sperm. During the same period, Sause decided to

have her own eggs retrieved and stored for fertility preser-

vation purposes unrelated to Schnitzer’s goals. Sause began

working with Oregon Health & Science University’s (OHSU)

fertility clinic—the same clinic that Schnitzer was using—

to have her eggs preserved for her own future use.

578 Sause and Schnitzer

In February 2014, Schnitzer told Sause about his

attempts to produce a son. In April 2014, after another

unsuccessful ART attempt by Schnitzer using an anony-

mous egg donor, Schnitzer and Sause discussed the possi-

bility of Schnitzer using Sause’s eggs rather than those of

an anonymous donor. Schnitzer said that he would only con-

sider accepting Sause’s eggs if she signed the same forms

that were routinely used for anonymous gamete donors by

OHSU, despite Sause clearly not being an anonymous donor.

Nevertheless, Sause signed the forms. Schnitzer had gone

through a prior dissolution proceeding that had been “high

conflict” and “unpleasant” for him, and given the difficulties

that he had had in that case, it was important to Schnitzer

to have sole legal custody of any child produced through

ART. Schnitzer only wanted a son, so they agreed that, if

they combined their gametes, Schnitzer would be entitled

to any male embryos, while Sause would keep any female

embryos.

Sause testified that, at the time of those discus-

sions, she “couldn’t wrap [her] head around” why Schnitzer

should be “forced to pick an anonymous donor, when a child

could know a mother.” “I’ve got eggs. Why not?” she thought.

Sause testified that their conversations contemplated that

Schnitzer would have sole custody and control over the son,

but that Sause would “be known as a mother” and “could be

actively involved” in his life:

“[We] sort of discussed in concept, and I was OK with, the

notion of, he made it very clear, he wanted to be raising the

child, he wanted sole physical custody, the boy would live

with him, and he would pick religions, or have an influ-

ence over playing the saxophone or whatever, but I would

always be known, it was sort of in our minds a win-win,

because I was able to be known as a mother. I could be

actively involved.”

In Sause’s understanding, she would be a parent, but the

panoply of her parental rights would be limited. Consistent

with those expectations, Sause texted her sister around that

time that she “[t]old [Schnitzer] I would sign open adoption

type documents as long as my name[’]s on [the] birth cert[if-

icate] and my identity isn’t kept from the child * * * and

Cite as 371 Or 573 (2023) 579

I’m/my family has access to the kid.”1 Sause began making

plans for a nursery in her home, the trial court found, “in

anticipation of playing a visiting parent role.”

Sause had her eggs retrieved in May 2014. She

spoke with her OHSU physician about her plan to have

her eggs joined with Schnitzer’s sperm to conceive a child.

As part of that plan, the trial court found, Sause intended

Schnitzer to “have legal custody of any male embryos and

offspring produced from the ART process they engaged in

together.” The court further found, however, that Sause did

not intend “to waive all legal rights to male offspring [or] to

grant Schnitzer the power to completely exclude her and her

family from any role in the child’s life.”

Before the parties’ gametes were combined,

Schnitzer asked his business attorney, Nudelman, to

draft an agreement reflecting the understanding between

Schnitzer and Sause (the “Nudelman agreement”). The

Nudelman agreement was discussed, altered at the request

of Sause, and signed. The Nudelman agreement reads, in

part:

“1. Designation of Embryos. Notwithstanding any-

thing to the contrary in the [Directed Sperm Donor Consent

Form signed by Schnitzer] or [the Informed Consent for

Egg (Oocyte) Donation signed by Sause], Schnitzer hereby

relinquishes any claim to or jurisdiction over any female

embryos from Sause and any resulting female offspring

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

firms and acknowledges that Schnitzer has full jurisdiction

custodial rights over the future disposition of male embryos

created from her eggs and she renounces any rights and

responsibilities of custody of any male embryo. * * *

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

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

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

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

of the date of the birth. * * * The parties agree that upon

mutual written agreement of the parties, and upon receipt

1

It is unclear what type of documents Sause anticipated signing, as adop-

tions in Oregon require amending and replacing the birth certificate to reflect

the adoptive family, and the original birth certificate is sealed. ORS 432.223;

ORS 432.245. In other words, Sause could not be listed on the birth certificate if

S was adopted by someone else.

580 Sause and Schnitzer

of advice, counsel and approval of third-party independent

medical and psychological consultants, any offspring pro-

duced from an embryo may be introduced to Schnitzer or

Sause, as the case may be. Thereafter, the parties agree

that if it is determined to be in the best interests of the

child, Schnitzer and/or Sause (and their respective fami-

lies), as the case may be, may have in [sic] active role in the

life of the child.”

In other words, Sause agreed to relinquish any rights over

any male embryos and future disposition of those embryos

created from her eggs with Schnitzer. Notably, although the

text of the agreement provides that Schnitzer released any

“claim” to female offspring, Sause’s relinquishment regard-

ing male embryos does not use the term “claim”—merely

referring to “custodial rights” over the embryos—and does

not refer to offspring at all. The parties have disputed the

significance of that difference: Sause claims that that omis-

sion was an intentional reflection of their agreement that she

could play a mothering role as to male offspring; Schnitzer

claims that the omission was accidental. In either case, as

Schnitzer emphasizes, Sause agreed that her ability to be

introduced to any male offspring (and Schnitzer’s ability to

be introduced to any female offspring) was conditioned on

the “mutual written agreement of the parties” and advice

from third-party “medical and psychological consultants.”

In addition to the Nudelman agreement, Sause also

executed a standard “Informed Consent for Egg (Oocyte)

Donation” form used by OHSU, which reads, in part:

“I understand that I do forever hereafter relinquish

any claim to or jurisdiction over the embryos and offspring

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

Fertilization. I acknowledge that the recipients have full

custodial rights over the future disposition of embryos

created from my eggs and that these rights include their

use for reproductive purposes of the recipient, donation of

unused embryos for research (which might include stem

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

unused embryos to another infertile couple.”

That form became an attached exhibit to the Nudelman

agreement.

Cite as 371 Or 573 (2023) 581

After Sause signed the Nudelman agreement and

informed consent form, Sause met with a social worker to

discuss the process of being an egg donor for Schnitzer.

Sause testified about that discussion, and the trial court

found that Sause “was very willing to gift her eggs and any

male embryos into Schnitzer’s sole legal control, and that

she was completely agreeable to Schnitzer having full legal

custody of male offspring,” but that “she never assumed that

she would have no role whatsoever in the male offspring’s

life, [or] that she would not be known as the boy’s mother[.]”

In June 2014, three viable male embryos were cre-

ated from Schnitzer’s sperm and Sause’s eggs. No female

embryos were created. In February 2015, Schnitzer entered

into an agreement with a gestational carrier and her hus-

band. The gestational carrier and her husband agreed to

relinquish custody over and parental rights to any child

created from Schnitzer’s embryos. Sause was not invited to

become a party to that agreement, nor is it entirely clear

whether Sause knew of the agreement at the time that it

was executed. One of the embryos was transferred to the

gestational carrier, who became pregnant.

During the pregnancy, Schnitzer and Sause’s

relationship began to cool, at least on Sause’s side. Sause

became more certain that “they were not destined to con-

tinue in a long-term romantic relationship.” Schnitzer, how-

ever, remained enamored with Sause and hoped they would

marry and raise the expected child together. They continued

to communicate about Sause’s role in the expected child’s

life. Schnitzer referred to the fetus as “our baby” in text

messages to Sause. He sent text messages to Sause’s mother

such as an ultrasound image of the fetus with the words,

“Your grandson!” Sause’s mother testified that Schnitzer

also attempted to enlist Sause’s parents’ help in convincing

Sause to marry him and coparent the child.

The gestational carrier gave birth to S on December

22, 2015. Sause and her parents visited the birthing room,

and each of them held S. Schnitzer decided to leave S in

the gestational carrier’s care for a short time after S’s birth.

Among the reasons for that decision was that Schnitzer had

582 Sause and Schnitzer

not yet told his daughters that he was having another child

through ART.

When Sause learned that Schnitzer planned to leave

S with the gestational carrier for a time, Sause mistakenly

interpreted that conduct as Schnitzer stepping away from or

abandoning S. Sause sent a series of hostile text messages

to Schnitzer that he found highly offensive, including, “You

can’t have a baby then pawn him off on the surrogate b/c

you don’t want to take care of him,” and, “This is a child

not a car or a dog that you can take back or hide someplace

till you decide you want him. I signed up to give you a child

not a random surrogate.” She also wrote, “Who has a baby

then decides they don’t want it? Wtf? He needs his father not

some random oven who’s not biologically related to him.”

The trial court found that, at that point, and after

receiving those messages, Schnitzer decided to cut Sause

and her family out of S’s life. In a call with Sause’s parents,

Schnitzer stated, “He’s not your grandson.” Schnitzer stated

that he “would decide what their role in [S’s] life would be”

and that “he might one day introduce them to S as godpar-

ents.” Schnitzer later stopped communicating with Sause’s

parents.

B. Procedural History

The day after S was born, Schnitzer petitioned for

a general declaratory judgment of parentage in Multnomah

County Circuit Court. Schnitzer v. Gibeaut, Case No.

15DR19365. The gestational carrier and her husband were

named as respondents; Sause was not named in the action.

The petition alleged that Schnitzer and the respondents had

entered a surrogacy contract, “with Petitioner becoming the

sole and exclusive legal parent of the child with all parental

rights and responsibility.” The petition also alleged that the

embryo used to create S was “created with * * * Schnitzer’s

sperm and donor eggs, which were the exclusive property of

Petitioner.” That statement was supported by a declaration

from an OHSU fertility physician, who stated that “[e]ggs

were retrieved from a donor,” and the embryos were created

“from donor eggs and sperm belonging to * * * Schnitzer.” The

petition further alleged that Schnitzer and the respondents

Cite as 371 Or 573 (2023) 583

all desired Schnitzer “to be named as the sole and exclusive

legal parent of [S] from the time of the child’s birth so the

child’s birth records will accurately state the child’s genetic

and intended parentage.” Schnitzer requested a declaration

that he was “the sole and exclusive legal parent of this child.”

A stipulated judgment was signed by the parties

and the judge on December 28, 2015, granting the relief

requested by Schnitzer. The judgment stated that all par-

ties “believe it is in the best interests of [S] that the child’s

birth certificate accurately reflects the child’s genetic and

intended parentage.” The judgment named Schnitzer “the

sole and exclusive legal parent of [S].” The judgment also

named Schnitzer “the sole genetic parent of [S].” The court

ordered the state registrar to issue a new or amended birth

certificate naming Schnitzer as S’s sole and exclusive par-

ent. See ORS 432.245.

That case was closed, but, two months later, on

March 3, 2016, Sause retained counsel and moved to inter-

vene in the case. Sause alleged that she was the “biologi-

cal mother” of S and, therefore, an indispensable party to

the proceeding. Sause’s motion described her expectations

pursuant to her agreement with Schnitzer. Specifically,

Sause cited the first paragraph of the Nudelman agreement,

regarding the division of the embryos. Sause asserted that,

in that paragraph, she had waived her rights to any male

embryos, but not any male offspring. Sause did not cite the

second paragraph, which conditioned her ability to meet

that offspring on Schnitzer’s consent and third-party advice.

Sause alleged that Schnitzer misled the court into conclud-

ing that S’s mother was anonymous and had no parental

interest in the child.

The court denied Sause’s motion to intervene by a

brief letter opinion on August 5, 2016, specifying that “[t]

his ruling is applicable to the requested intervention in

[Case No.] 15DR19365 only and is neither determinative

nor predictive of other litigation between Mr. Schnitzer and

Ms. Sause, if any.”

Sause filed this action on September 13, 2016,

petitioning the court for a filiation determination or,

584 Sause and Schnitzer

alternatively, a declaratory judgment establishing that she

is S’s parent alongside Schnitzer, and that she has paren-

tal rights with respect to S. Sause v. Schnitzer, Case No.

16DR18690. Sause alleged that she “is the mother” of S, and

“has and continues to agree to assume all rights and obliga-

tions with respect to the child.” Along with a determination

that she is S’s mother, Sause requested an order to amend or

replace S’s birth certificate, and an order providing her with

parenting time.

Schnitzer answered that petition and simultane-

ously filed a petition (together with the gestational surro-

gate and her husband) for another declaratory judgment

establishing Schnitzer as S’s sole legal parent. Schnitzer v.

Sause, Case No. 16DR19349. That petition did not dispute

that, as a factual matter, Sause was genetically related to S,

because he was conceived using her egg. As a legal matter,

however, Schnitzer asserted that, “[u]nder Oregon law, [the

gestational surrogate] was presumed to be the child’s legal

mother at birth, and [her husband] was presumed to be the

legal father, absent a contractual agreement to the con-

trary.” Schnitzer’s petition contended that Sause had never

had parental rights as to S and, alternatively, that even if

Sause did have parental rights at one time, she had know-

ingly waived them. The petition sought a declaration that

Sause was an egg donor with no parental rights or respon-

sibilities, that she was not entitled to parenting time, and

that her parents also had no legal relationship to S. Sause’s

case and the case brought by Schnitzer, the surrogate, and

her husband were consolidated.

The consolidated case proceeded for the next year,

leading to a nine-day bench trial in September and October

2017. As it was litigated in the trial court, the case was one

of dueling declaratory judgments, with each party taking

on the burden of proof and persuasion at differing points.

As a result, several theories were advanced by the parties in

support of their respective petitions, and those theories, the

responses, and the counterarguments, blurred at times. At

different points, the basic dispute over Sause’s legal rights

with respect to S was grounded in statutes; the contractual

arrangements between Sause, Schnitzer, OHSU, and the

Cite as 371 Or 573 (2023) 585

surrogate and her husband; Oregon common law; and the

federal constitution. Ultimately, the trial court was asked to

resolve the question of legal parentage and was given mul-

tiple options as to the appropriate source of law on which to

ground that decision.

During her opening statement in the trial court,

Sause argued, “Initially, as the record will reflect, the

mother was determined to be * * * a [gestational] surrogate.

Because [the gestational surrogate] was married, * * * her

husband * * * was deemed to be the father. And that’s what

the original birth certificate showed.” After that, Sause con-

tended, Schnitzer became S’s “sole parent” in the stipulated

proceeding with the surrogate by misrepresenting to the

court that the egg used to conceive S belonged exclusively to

him.

Sause contended that, because Schnitzer was a

single parent, there was an “empty space on [S’s] birth cer-

tificate” and that space should be filled because “[t]his is a

motherless child officially as of today.” Sause argued that

she should be the one to fill that space as S’s mother because

“her genetic consanguinity is not in dispute” and she “has

always been an intended party [sic] of this child.” Sause

did not argue that “biology alone” gave rise to her parental

rights, stating that that “has never been Ms. Sause’s legal

position.” Instead, Sause relied on a “biology-plus” frame-

work (drawn from Lehr v. Robertson, 463 US 248, 261-62, 103

S Ct 2985, 77 L Ed 2d 614 (1983), discussed further below) to

assert that she was a parent based on her biological connec-

tion plus the fact that she had “grasped her opportunity to

parent her child in an effort to develop a relationship.”

Schnitzer agreed with part of Sause’s opening

statement, namely, that the birthing person presumptively

had parental rights under Oregon law and that a genetic

connection alone did not create such rights, stating, “I think

the parties agree that biological connection alone does not

give rise to parental rights, unless of course you’re the birth

mother. If you’re the birth mother, you are presumed to

have * * * these types of rights. But in this case, Ms. Sause

is not the person who gave birth.” Schnitzer did not dispute

586 Sause and Schnitzer

Sause’s “biological connection” to S, but he argued that that

connection did not “establish[ ] parental rights ab initio.”

Schnitzer contended that one way to establish those

parental rights was through contract, as his rights had been

established through his agreement with the surrogate:

“[T]hat is why [the gestational surrogate’s] contract to be a

gestational carrier is signed by the * * * intended parents.

Intended parents who go through an [in vitro fertilization]

[(IVF)] [sic] and the gestational carrier process all make

clear in the cont[r]act with the person giving birth, who

is presumed under Oregon law to be the mother, unless

there’s a cont[r]act that says otherwise, they all say, we

are the intended parents, and they do other things to, that

establish * * * these rights.”

Schnitzer argued that Sause had not established parental

rights for herself through contract, nor had she adequately

“grasp[ed] the opportunity” to establish a parent-child rela-

tionship such that she had rights protected under the Due

Process Clause of the Fourteenth Amendment to the United

States Constitution.

In response, Sause clarified that she was not argu-

ing that her parental rights arose only from contract or

agreement with Schnitzer, specifying that the Nudelman

agreement “is not the well spring or source of Ms. Sause’s

parental rights.” Instead, her theory of the case was that

“her rights arise under the due process laws of the United

States Constitution, not under the Nudelman agreement.”

In Sause’s view, under United States Supreme Court prec-

edent, “parental rights arise from a showing of a biologi-

cal connection, plus something else,” namely, “grasping an

opportunity to develop a relationship with his or her off-

spring, and accepting ‘some measure of responsibility for

the child’s future.’ ” Sause argued that she had grasped “100

percent of the available opportunity to develop a relation-

ship” with S.

Schnitzer’s moved, under ORCP 54 B(2), to dis-

miss Sause’s petition on the ground that she had shown no

legal right to relief. The court narrowed the legal question

to whether—given that Sause’s genetic connection to S was

undisputed—Sause had “made a prima facie case that she

Cite as 371 Or 573 (2023) 587

did, in fact, assert her maternity[.] Did she, in fact, attempt

to grasp the opportunity to participate in the rearing of

the child financially?” Because S was then so young, the

trial court focused on the parties’ conduct before his birth,

namely, whether Sause had demonstrated that she was an

“intended parent.” The court rejected the legal meaning of

that term as a “specific term of art” in “the world of assisted

reproductive technology and the legal world,” and instead

explained that, to Sause, that term meant “that she would

have a motherly role of some sort.” Sause intended to be a

parent in that she expected to be on the birth certificate, to

be known as S’s mother, and to be involved in his life. In the

court’s view, Sause’s conduct met the constitutional standard

of “grasping” that the court was applying. The court there-

fore concluded that Sause had produced sufficient evidence,

and it denied Schnitzer’s motion to dismiss. Schnitzer then

presented the remainder of his case.

The trial court ruled in favor of Sause, relying on

Lehr for the proposition that a “person linked to a child

only by genetics must take an affirmative step to accept the

responsibilities associated with parenthood” to be deemed

a parent. (Internal quotation marks omitted.) The court

first determined that Sause was S’s legal mother “by virtue

of being his undisputed female genetic parent.” The court

then found that both parties had agreed up until S’s birth

that, although Schnitzer would have full legal and physical

custody of S, Sause would play an unspecified “maternal”

role in S’s life. The trial court noted that Schnitzer had not

decided to “cut Sause and her family out of S’s life” until

Sause sent the hostile text messages on the day of S’s birth,

and that, as soon as Schnitzer had his “change of heart”

following S’s birth, Sause diligently pursued legal action

to assert her right to a role in S’s life. The court also con-

cluded that the Nudelman agreement did not waive Sause’s

parental rights because, in the court’s view, the agreement

was not sufficiently “clear, unambiguous, knowing, volun-

tary and intelligent.” The trial court granted Sause’s peti-

tion for declaratory judgment and declared her to be a par-

ent of S, dismissed Sause’s filiation petition, and dismissed

Schnitzer’s declaratory judgment petition.

588 Sause and Schnitzer

Schnitzer appealed, assigning error to the judgment

and to the trial court’s denial of his ORCP 54 B(2) motion.

Schnitzer essentially argued that the trial court had legally

erred in (1) treating Sause’s genetic parentage as giving

rise to a presumption of legal parentage; (2) concluding that

Sause had a constitutionally protected parental right; and

(3) interpreting and applying the Nudelman agreement in

the manner that it did.

The Court of Appeals reversed, in a split decision

with three separate opinions. Sause, 312 Or App at 104. The

lead opinion concluded that Sause’s “mere biological connec-

tion to S does not confer parental rights on her.” Id. at 93. It

explained that Sause’s genetic connection to S presented her

an opportunity to develop parental rights, if she “ ‘grasp[ed]

that opportunity and accept[ed] some measure of responsi-

bility for the child’s future.’ ” Id. at 100 (quoting Lehr, 463

US at 261-62 (describing the “biology-plus” standard for

creating constitutionally protected parental interests)). The

opinion concluded, however, that Sause had not adequately

grasped that opportunity because, among other things, she

expressly had disavowed any financial or other responsibil-

ity for S in the Nudelman agreement, and her decision to

retrieve her eggs was motivated by her own medical goals.

Id. at 102-03.

Judge Mooney concurred. She agreed with the

majority (and the dissent) that “genetics alone do not confer

parental rights,” but, in her view, the case was governed by

Senate Bill (SB) 512 (2017), Or Laws 2017, ch 651, §§ 1-4,

which had amended and added to Oregon’s statutes involv-

ing ART, and become effective during the trial court pro-

ceedings; under those new and amended statutes, accord-

ing to Judge Mooney, Sause had no parental rights as to S.

Sause, 312 Or App at 109-10 (Mooney, J., specially concur-

ring). SB 512 became effective on January 1, 2018, which

was after the trial court signed its judgment on December

21, 2017, but before that judgment was entered in the dockets

for the two consolidated cases on January 18 and 24, 2018.

The concurrence observed that judgments become effective

on their date of entry, see ORS 18.082(1), and reasoned that

SB 512 governed this case. (The lead opinion disagreed that

Cite as 371 Or 573 (2023) 589

SB 512 applied, briefly observing that “it was understood

that the new law would not apply to the trial court’s deci-

sion in this case.” Sause, 312 Or App at 86 n 9.) Under SB

512, Judge Mooney concluded, Sause had “ ‘no right, obliga-

tion or interest with respect to’ ” S. Id. at 106 (Mooney, J.,

concurring) (quoting SB 512, as codified at ORS 109.239(2)

(a)). With respect to the federal constitutional issue, the con-

curring opinion took the position that the Lehr biology-plus

standard applied to only children conceived through sexual

intercourse and did not apply to children conceived through

ART.

The dissent agreed with the other two opinions

that, for purposes of the federal constitution, “Sause’s mere

biological connection to S does not confer parental rights.”

Id. at 112 (Kamins, J., dissenting) (internal quotation

marks omitted). In the dissent’s view, however, the Lehr

biology-plus standard was determinative in this case, and

Sause had adequately grasped the opportunity to develop a

relationship with S to meet that standard. Id.

Sause sought review, which we allowed.

II. ANALYSIS

The primary questions on review are whether Sause

is S’s legal parent due to her genetic connection with S and,

if she is not, whether another source of law may provide

her a basis to assert legal rights and responsibilities with

respect to S. We begin by determining the applicable law.

We then consider whether Sause has parental rights under

Oregon law or a federal constitutional right with respect

to S under Lehr and the Due Process Clause. Finally, we

assess the significance of the Nudelman agreement between

Schnitzer and Sause, and what contractual rights and

responsibilities Sause may have with respect to S pursuant

to that agreement.

A. Whether SB 512 (2017) Applies

We first consider whether SB 512 applies to this dis-

pute and, for the reasons explained below, conclude that it

does not. SB 512 applies to “establishments and disestab-

lishments of parentage and parentage proceedings made

590 Sause and Schnitzer

or commenced on or after” January 1, 2018. Or Laws 2017,

ch 651, § 54. At trial, the parties agreed that, as of the date

that the judgment was signed by the trial court, SB 512

had not yet gone into effect and would not apply to this dis-

pute. As noted, the judgment at issue here was signed on

December 21, 2017, but it was not entered in the registers for

the two consolidated cases until January 18 and 24, 2018.

Schnitzer now contends that the trial court erred

by not applying SB 512 when the judgments were entered in

2018, after SB 512 went into effect. Schnitzer concedes that

he never asked the trial court to apply SB 512. He argues,

however, that preservation of such an error is “automatic”

under McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 95

n 6, 957 P2d 1200, adh’d to on recons, 327 Or 185 (1998).

Schnitzer alternatively argues that plain error review is

appropriate. We reject both arguments.

First, McCarthy is inapposite. In McCarthy, the

plaintiff raised an unpreserved argument that a Court of

Appeals attorney fee order was flawed because it did not

include special findings as required by Oregon statute. Id.

at 95. This court held that the plaintiff was not required to

preserve that issue because the issue “arose when the Court

of Appeals issued its order,” id. at 95 n 6, so the plaintiff

had no opportunity to address it earlier. Here, by contrast,

the issue arose—and was addressed—before the trial court

entered its judgment. Schnitzer addressed the issue during

the trial in 2017, and he could have argued then that SB 512

would apply if the judgment was entered after January 1,

2018. Schnitzer also could have raised the issue in January

2018 before the judgment was entered. As a result, any error

assigned to the trial court’s decision not to apply SB 512 is

unpreserved.

We also reject Schnitzer’s request for plain error

review. “When a party has failed to preserve an assignment

of error, we consider that error only if it is plain.” State v.

Ulery, 366 Or 500, 503, 464 P3d 1123 (2020) (citing ORAP

5.45(1)). When an error qualifies as plain, “the decision

whether to review [it] rests with the discretion of the appel-

late court.” Id. “That discretion entails making a prudential

Cite as 371 Or 573 (2023) 591

call that takes into account an array of considerations,” State

v. Vanornum, 354 Or 614, 630, 317 P3d 889 (2013), including:

“the competing interests of the parties; the nature of the

case; the gravity of the error; the ends of justice in the par-

ticular case; how the error came to the court’s attention;

and whether the policies behind the general rule requir-

ing preservation of error have been served in the case in

another way, i.e., whether the trial court was, in some man-

ner, presented with both sides of the issue and given an

opportunity to correct any error.”

Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823

P2d 956 (1991). The policies underlying the preservation

requirement include fairness to the opposing party, giving

the trial court a chance to correct the error and obviate the

need for an appeal, and fostering full development of the

record. Peeples v. Lampert, 345 Or 209, 219-20, 191 P3d 637

(2008).

Assuming without deciding that there was plain

error, the above considerations counsel against reaching

that error. As to fairness, the application of pre-SB 512 law

was mutually agreed upon by both parties and the trial

court; the trial court’s decision to take that approach was

not unfair to either party. The trial court applied the law

that both parties expected it to apply. As to obviating the

need for appeal, neither party moved for the court to recon-

sider its judgment after SB 512 went into effect. The trial

court was never asked by the parties to correct the alleged

error and avoid an appeal on that ground. Overall, the poli-

cies underlying preservation and considerations relevant to

reaching plain error guide us not to reach the alleged error

here, and we decline to do so. As a result, SB 512 does not

apply, and this case is governed by the statutes in effect in

2017.

B. Parentage Under Oregon Law

The next question is whether Sause is a legal parent

of S because of their undisputed genetic connection. For the

reasons explained below, we conclude that Sause’s genetic

connection to S, by itself, does not make her a legal parent

of S.

592 Sause and Schnitzer

We begin with a brief history of parentage law in

Oregon to provide context for our conclusion. Early parent-

age law was rooted in the English common law. See Michael

S. DePrince, Note, Same-Sex Marriage and Disestablishing

Parentage: Reconceptualizing Legal Parenthood Through

Surrogacy, 100 Minn L Rev 797, 802-04 (2015). At common

law, legal parentage depended primarily on a combination of

birth and marriage: A child born to a married woman was

“legitimate” and had two legal parents (the birth mother and

her husband), while a child born to an unmarried woman was

“illegitimate” and had no legal parents. See Thom v. Bailey,

257 Or 572, 580, 481 P2d 355 (1971); Richter v. Richter, 117

Or 621, 630, 245 P 321 (1926); State v. McDonald, 59 Or 520,

526, 117 P 281 (1911).

Over time, the law’s emphasis on marriage shifted.

The law imposed upon unmarried mothers the rights and

responsibilities with respect to their children, see Nine v.

Starr, 8 Or 49, 50 (1879) (“[T]he mother is the natural guard-

ian of such a child, and is bound to maintain [the child.]”);

adoption became a legal possibility, see General Laws of

Oregon, Civ Code, ch XII, title IV, § 66, p 693 (Deady 1845-

1864); and, in 1957, the legislature abolished illegitimacy as

a legal status; see ORS 109.060 (the legal status and relation-

ships, and the rights and obligations between a person and

their descendants or parents are the same for all persons,

whether or not the parents have been married); Thom, 257

Or at 583-84 (explaining statute’s effect as to illegitimacy).

At the same time, the marital presumption per-

sisted. See Thom, 257 Or at 580-84 (tracing parentage stat-

utes from common law to 1957). In 1957, the legislature

enacted ORS 109.070, which created a conclusive presump-

tion that the “child of a wife cohabiting with her husband

who is not impotent” was the legal child of the husband and

wife. Or Laws 1957, ch 411, § 2(1). A disputable presump-

tion of parentage existed for other children born to a woman

who was married at the time she gave birth. Id. § 2(2). ORS

109.070 has since been amended numerous times, and it now

provides that parentage is “rebuttably presumed” for a per-

son married to the birthing person at the time of the child’s

birth, ORS 109.070(1)(a), and it also prevents third parties

Cite as 371 Or 573 (2023) 593

from challenging that presumption “as long as the spouses

are married and are cohabiting, unless both spouses con-

sent to the challenge,” ORS 109.070(2).

As the marital presumption has shifted, the reli-

ance on birth as a basis for parentage—at least as a default

presumption—has remained the same. ORS 109.065(2), as

enacted by SB 512, provides, “A person is the mother of a

child to whom the person gives birth.” Numerous other stat-

utes reflect an implicit assumption that, absent an adoption,

additional proceeding, or other operation of law, the per-

son who gave birth to a child is a legal parent of that child.

See, e.g., ORS 109.070(1)(a) (2015), amended by Or Laws

2017, ch 651, § 3; ORS 109.041(1); former ORS 109.315(1)

(g) (2015), renumbered as ORS 109.285(1)(g) (2021); ORS

109.092 (2015), amended by Or Laws 2017, ch 651, § 18 (all

so demonstrating).2

The law also has been changed to account for chil-

dren born to unmarried parents. Broadly speaking, there

were two types of scenarios that the law had to address. The

first was where an alleged father sought to confirm his bio-

logical paternity as a basis for legal parentage. The second

was where another party (for example, the mother or the

state) sought to confirm an alleged father’s biological pater-

nity, often as a basis for seeking child support. In response to

those issues, statutes began incorporating blood typing and

DNA as tools to determine whether a father was biologically

related to a child. (At that time, there was no significant

possibility of a birth mother not being genetically related to

the child.) As relevant here, in 1953, the legislature autho-

rized courts to use blood types to determine “the possibil-

ity of the alleged father’s paternity.” Or Laws 1953, ch 628,

§ 4. In 1975, ORS 109.070 was amended to allow unmarried

fathers to establish paternity by swearing, together with the

birth mother, that they were the “natural” father and that

there was no other legal father. Or Laws 1975, ch 640, § 3(5).

In 1995, the blood-type statute was amended to include

DNA testing as a method of determining paternity. Or Laws

1995, ch 608, § 5. Those tools helped the state to ensure

2

We refer to the 2015 versions of the listed statutes, because those versions

reflect the state of the law during the year that S was born.

594 Sause and Schnitzer

that children born to unmarried mothers through sexual

intercourse could have the benefit of child support from

their biological father. Now, ORS 109.258, discussed further

below, provides that, in a paternity adjudication, “[a] disput-

able presumption of paternity is created if one or more blood

tests [including DNA tests] result in a cumulative paternity

index of 99 or greater.”

The law adapted differently to address the parent-

age of children born through artificial insemination (AI)

and, later, ART. As AI entered wider use between the 1950s

and 1970s, there were essentially two types of AI recognized

at the time: artificial insemination by husband (AIH) and

artificial insemination by donor (AID). See George P. Smith,

II, Through a Test Tube Darkly: Artificial Insemination and

the Law, 67 Mich L Rev 127, 128 (1968). At that time, the

standard practice in AID was for the donor to remain anon-

ymous, and clinics took pains to preserve that anonymity.

See Naomi Cahn, The New Kinship, 100 Geo LJ 367, 374,

391-92 (2012).

The Oregon legislature expressly recognized AI

in 1977, restricted its performance to licensed physicians,

and clarified the rights and obligations of participants in

both AIH and AID. Or Laws 1977, ch 686, §§ 1-7. That leg-

islation established that children conceived through AI and

born to a married person had the same “relationship, rights

and obligation” to the mother’s husband as they would if

they had been conceived through sexual intercourse. ORS

109.243 (1977), amended by Or Laws 2017, ch 651, § 5. It also

provided that any nonhusband donor would “have no right,

obligation or interest with respect to a child born as a result

of the artificial insemination,” and vice versa. ORS 109.239

(1977), amended by Or Laws 2017, ch 651, § 4.

The AI statutes were amended by SB 512 in 2017

to address ART, which was defined, in part, as “a method

of causing pregnancy other than sexual intercourse.” ORS

109.239(1). In similar wording to the prior AI statute, ORS

109.239(2) also provides, “If the donor of gametes used

in assisted reproduction is not the mother’s spouse: (a)

The donor shall have no right, obligation or interest with

respect to any child conceived as a result of the assisted

Cite as 371 Or 573 (2023) 595

reproduction; and [the child shall have no such right against

the donor].” In other words, in cases involving AI and ART,

under both the 1977 and 2017 statutes, a nonspouse gamete

donor, whether of sperm or eggs, does not have any “right,

obligation or interest” with respect to their genetic offspring

by virtue of their donation.3

With that context, we can now evaluate Sause’s

claim to legal parentage of S. As explained above, we apply

the statutes in effect before SB 512 was enacted. Sause’s

central claim is that the single fact that she is genetically

related to S (that is, “biology alone”) means that she is enti-

tled to at least a presumption of parentage, and that she

never waived her parental rights.

Sause has not identified any statute or case law

that, on its face, provides that a female genetic parent who

did not give birth to the child is entitled to a presumption of

parentage. Instead, Sause relies on two other statutes: ORS

109.258, quoted above, which creates a disputable presump-

tion of paternity based on blood tests; and ORS 107.101(1),

which establishes Oregon’s policy to “[a]ssure minor chil-

dren of frequent and continuing contact with parents who

have shown the ability to act in the best interests of the

child.”

Starting with ORS 107.101(1), Sause argues that

this court should conclude that she is S’s parent in order to

ensure that she has “frequent and continuing contact” with

3

Justice Bushong’s dissent also reviews the development of the common law

and early statutes in discussing Oregon’s history, much of which demonstrates

the law’s historical misogyny and discrimination against women. 371 Or at __

(Bushong, J., dissenting) (at 3:15 - 4:1). It then focuses on what it calls the “equal-

ity principle” reflected in ORS 109.030 (2015), amended by Or Laws 2017, ch 651,

§ 50, which provides that the “rights and responsibilities of the parents, in the

absence of misconduct are equal, and the mother is as fully entitled to the cus-

tody and control of the children and their earnings as the father.” 371 Or at __

(at 9:3-10). That discussion is not wrong, but it also is not relevant. As explained

more extensively below, Schnitzer’s legal argument prevails here not because of

the “gender-hierarchical order” of the common law or because of his gender, but

because creating a male child through ART, of whom he is now an undisputed

parent, was his idea, and he took the contractual and legal steps necessary to

accomplish that, while Sause did not. And, contrary to Justice Bushong’s posi-

tion, ORS 109.030 (2015) plays no role here because, by its terms, it applies to

“the rights and responsibilities of the parents,” which necessarily means “legal”

parents, and thus assumes the proposition which the dissent seeks to establish

by citing the statute. (Emphasis added.)

596 Sause and Schnitzer

S. But that argument fails because that statute applies only

to those who are legal “parents” and thus assumes the con-

clusion that Sause seeks to reach. If Sause were a legal par-

ent of S, then ORS 107.101(1) might guide a court to ensure

contact between her and S. But ORS 107.101(1) does not pro-

vide an independent basis for determining parentage.

Likewise, Sause’s point that no one else claims to

be S’s mother is immaterial. Oregon law does not require

that a child have a single mother as opposed to none or two.

Although it might be relevant in another case, the lack of

another person claiming to be S’s mother has no bearing on

Sause’s claim here.

Sause’s argument based on ORS 109.258 has more

traction, however. ORS 109.258 provides, in full:

“A disputable presumption of paternity is created if one

or more blood tests result in a cumulative paternity index

of 99 or greater. If the court or administrator finds that

the conclusions of all the experts, as disclosed by the evi-

dence based upon the tests, are that the alleged father is

not the father of the child, the question of paternity shall be

resolved accordingly. If the experts disagree in their find-

ings or conclusions, the question shall be submitted upon

all the evidence.”

Sause argues that that statute should apply equally to

maternity as it does to paternity. See Or Const, Art I, § 20.4

Sause contends that, under ORS 109.258, her undisputed

genetic link to S creates “a disputable presumption of”

maternity. She argues that that presumption should lead to

a determination of her legal parentage because “[n]o other

person seeks to be deemed [S’s] mother,” and she “is the only

candidate for maternal parenthood of [S].”

Schnitzer makes two independent legal arguments

in response to Sause’s reliance on ORS 109.258. For rea-

sons that we will explain, we agree with both of those argu-

ments. First, Schnitzer contends that ORS 109.258 “applies

where evidence points to a particular man as the parent

and means of support of a child, but the genetics of it are in

4

Article I, section 20, provides, “No law shall be passed granting to any cit-

izen or class of citizens privileges, or immunities, which, upon the same terms,

shall not equally belong to all citizens.”

Cite as 371 Or 573 (2023) 597

question,” and does not apply to ART. See Johnson v. Calvert,

5 Cal 4th 84, 89-91, 851 P2d 776, 779-81, cert den, 510 US

874 (1993) (holding that, under California’s corresponding

statute, blood tests create evidentiary presumptions that

do not apply when the factual basis for parentage is undis-

puted, in part because the statute was “not motivated by

the need to resolve surrogacy disputes”; instead, surrogacy

disputes must be resolved through a “purely legal determi-

nation as between the two claimants”). There is no dispute

over the genetic link between Sause and S, so, Schnitzer

reasons, ORS 109.258 does not apply. Schnitzer also argues

that ORS 109.258 appropriately applies only to men because

that statute “serves the important governmental objective of

finding absent fathers” and therefore survives the interme-

diate scrutiny required for a constitutional distinction based

on sex. Sause does not respond to Schnitzer’s arguments.

Assuming without deciding that ORS 109.258

applies equally to women as it does to men, we are not per-

suaded that ORS 109.258 requires a presumption of legal

parentage in cases involving ART where genetic paternity or

maternity is undisputed. Instead, ORS 109.258 was enacted

to help resolve evidentiary disputes over the efficacy of blood

tests in identifying putative fathers. See Or Laws 1999,

ch 80, § 27 (adding the 99 percent threshold as part of an act

“[r]elating to child support program changes mandated by

welfare reform”). ORS 109.258 allows blood tests to create

an evidentiary presumption that may or may not lead to a

determination of legal parentage. In cases involving children

conceived without ART where parentage is disputed, genetic

testing may rebuttably demonstrate who participated in that

conception and who, as a result, may be a legal parent under

other provisions of Oregon and federal law (such as the Lehr

standard, discussed below). But that evidentiary presump-

tion is unnecessary where genetic parentage is undisputed,

as the California Supreme Court held in Johnson. There is no

indication that the evidentiary presumption in ORS 109.258

was enacted to address ART or the establishment of legal

parentage in surrogacy or other ART disputes.

Schnitzer’s second argument regarding ORS 109.258

is that that statute does not apply in these circumstances

598 Sause and Schnitzer

because of the “donor” statute, ORS 109.239 (1977), under

which both Sause and Schnitzer are donors of the gam-

etes from which S was conceived. Again, assuming without

deciding that ORS 109.258 applies equally to women as it

does to men, the disputable presumption of paternity cre-

ated by that statute does not yield an establishment of legal

parentage in every case, nor does it do so automatically. For

a blood test to lead to legal parentage, as ORS 109.258 con-

templates, there must be an adjudication or other proceed-

ing. See ORS 109.258 (putting the question to “the court or

administrator”); see also ORS 109.065 (stating that parent-

age may be established by “an adjudication of the person’s

maternity or paternity” (emphasis added)). In that adjudi-

cation, the court can determine whether the putative par-

ent’s maternity or paternity is a valid basis for parentage.5

In some cases, blood tests demonstrating genetic maternity

or paternity may be dispositive evidence that a putative par-

ent engaged in the sexual intercourse that created a child.

In some circumstances, that evidence could be the basis for

a determination that a putative parent is a legal parent.

In other cases, a putative parent’s claim may be barred by

the marital presumption, ORS 109.070(2). Or, as is relevant

here, the putative parent’s claim of parentage may be fore-

closed by the donor statute, ORS 109.239 (1977).

The parties dispute whether ORS 109.239 (1977)

applies to Sause and bars her claim of parentage, again

assuming that ORS 109.258 grants Sause a presumption

of maternity that could be a basis for parentage. That is a

question of statutory interpretation, which we analyze using

the methodology set out in State v. Gaines, 346 Or 160, 171-

72, 206 P3d 1042 (2009). In doing so, our aim is to discern

the intention of the legislature, which we do by giving “pri-

mary weight to the text and context of the disputed statu-

tory terms,” because “there is no more persuasive evidence

5

Justice Bushong’s dissent contends that Schnitzer’s argument based on

ORS 109.258 fails because “the trial court determined the validity of Sause’s

parentage claim in this case.” 371 Or at __ (Bushong, J., dissenting) (emphasis in

original) (at 13:15-18). Under our interpretation of that statute as not applying

when genetic parentage is undisputed, however, the trial court’s reliance on it to

conclude that Sause is S’s parent was legal error. Additionally, as we next discuss

in the text, Sause’s claim to legal parentage also is foreclosed by the donor stat-

ute, ORS 109.239.

Cite as 371 Or 573 (2023) 599

of the intent of the legislature than the words by which

the legislature undertook to give expression to its wishes.”

Kinzua Resources v. DEQ, 366 Or 674, 680, 468 P3d 410

(2020) (internal quotation marks omitted). “We also consider

legislative history for what it may be worth in a particular

case.” City of Portland v. Bartlett, 369 Or 606, 610, 509 P3d

99 (2022).

We begin with the text of ORS 109.239 (1977),

quoted in part above, which provides, in full:

“If the donor of semen used in artificial insemination is

not the mother’s husband:

“(1) Such donor shall have no right, obligation or inter-

est with respect to a child born as a result of the artificial

insemination; and

“(2) A child born as a result of the artificial insemina-

tion shall have no right, obligation or interest with respect

to such donor.”

Assuming that ORS 109.239 (1977) applies equally to egg

donors as it does sperm donors,6 the question is whether

Sause is a “donor” within the meaning of that statute, which

the parties and amici dispute. There is no statutory defini-

tion of “donor,” but “donor” generally means “one used as a

source of biological material,” for example, “a donor of a tis-

sue for transplantation.” Webster’s Third New Int’l Dictionary

673 (unabridged ed 2002) (emphasis added). The technical

meaning of “donor” in the medical profession is largely the

same: “An individual from whom blood, tissue, or an organ

is taken for transplantation.” Stedman’s Medical Dictionary

536 (27th ed 2000). (The version in use in 1977 was limited

to blood donations: “A person from whom the blood is drawn

in the performance of blood transfusion.” Stedman’s Medical

Dictionary 419 (4th unabridged lawyers’ ed 1976).) The text

6

The legislature defined “artificial insemination” to mean “introduction of

semen into a woman’s vagina, cervical canal or uterus through the use of instru-

ments or other artificial means.” ORS 677.355. That definition facially excludes

egg donation and other forms of ART. Amici argue that that definition should be

construed to include egg donors based on Oregon’s Equal Rights Amendment, Or

Const Art I, § 46, which provides, in part, “Equality of rights under the law shall

not be denied or abridged by the State of Oregon * * * on account of sex.” As with

ORS 109.258, we assume for purposes of this analysis that ORS 109.239 (1977)

applies to egg donors, but we do not decide that issue in this case.

600 Sause and Schnitzer

of ORS 109.239 (1977) offers an additional clue to the mean-

ing of “donor.” The text does not specify that donors can be

only either “anonymous” or “known.” Instead, the first por-

tion of the text distinguishes between two types of donors:

donors who are “not the mother’s husband” and donors who

are. By limiting the statute’s applicability to situations

where the donor of semen is not the husband, that sentence

implies that, in some situations, the donor of semen will be

the mother’s husband. That wording, consistent with the

above definitions, suggests that the term “donor” encom-

passes those who contribute sperm to be used in artificial

insemination, including both those who intend to be parents

of the child (e.g., in cases where the donor is the husband)

and those who do not, as well as both those whose identity is

known to the recipient and those who are anonymous.

The statutory context offers additional support for a

definition of “donor” that includes both Schnitzer and Sause.

ORS 109.247 (1977), amended by Or Laws 2017, ch 651, § 6,

states that the AI statutes, including ORS 109.239 (1977),

“apply to all persons conceived as a result of artificial insemi-

nation.” That wording suggests that the legislature intended

those statutes to govern all cases of AI and that no cases

would be excluded. There is no additional statute that deals

expressly with “known donation”—or anonymous dona-

tion, for that matter—so we may infer that the legislature

intended the AI statutes to apply broadly to all cases of AI.

Thus, the statutory text and context indicate that

ORS 109.239 was intended to apply to all those who con-

tributed semen for use in AI if they were “not the mother’s

husband.” The available legislative history confirms that

understanding.

The purpose of the 1977 legislation was “to estab-

lish the legitimacy and legal rights of children resulting

from artificial insemination.” Exhibit A, House Committee

on Judiciary, HB 3193, May 3, 1977, 1 (testimony of

Dr. Miles Novy). The chief drafters and proponents of the

bill explained that there are “basically two types of artifi-

cial insemination—AIH (Artificial Insemination, Husband)

using semen from the woman’s husband, and AID (Artificial

Insemination, Donor) using semen from a donor who usually

Cite as 371 Or 573 (2023) 601

remains anonymous.” Exhibit D, House Committee on

Judiciary, HB 3193, May 3, 1977, 1 (written testimony of Jay

Folberg and Betty Bechtel) (emphasis added). They further

explained that, when a family turns to AID, “[t]he donor, who

is the biological father, is normally anonymous and would be

an inappropriate person to hold responsible for the support

and care of the child.” Id. at 2 (emphasis added). That intro-

ductory testimony indicates that, in general, the legislature

likely understood from the drafters that the most common

practice would be for donors to remain anonymous, but that

there might be exceptions.

One legislator put a finer point on it. In a committee

hearing on May 3, 1977, Representative David Frohnmayer

stated that he did not “see any provisions with respect

to whether or not the donor would be anonymous.” Tape

Recording, House Committee on Judiciary, HB 3193, May 3,

1977, Tape 44, Side 1 (statement of Rep David Frohnmayer).

“Perhaps,” proposed Folberg, one of the chief drafters and a

family law professor from the University of Oregon, “there

could be a clarification * * * so the status of the donor as

anonymous is protected.” Id. The subcommittee rejected

that proposal, and Frohnmayer gave an additional example

about “a couple who were not clear whether or not they’d be

able to have a child * * * and there was some discussion as

to whether or not [the husband’s] brother ought to be the

sperm donor, and it was agreed upon [by the couple] that

that would be ideal.” Id. Frohnmayer wondered, “How do

you deal with that question?” Id. Dr. Miles Novy, a physi-

cian and OHSU professor, responded that, in practice at

that time, most doctors sought to preserve the anonymity

of donors, and another doctor noted that, in the current pro-

gram which they were a part of, none of the donors were

known donors. Even though most donations proceeded

anonymously, Novy suggested that requiring anonymity in

the legislation “would be a mistake” because “in time there

might be particular * * * exceptions” to the expectation that

donors would be anonymous. Id.

That discussion indicates that anonymous, nondi-

rected donation was the most common and conventional type

of donation in practice at that time. But the discussion also

602 Sause and Schnitzer

indicates that the legislature was considering the possibility

of more complicated scenarios involving known donors, such

as the “brother” in Frohnmayer’s example. Despite having

that possibility in mind, the legislature did not narrow the

bill to cover only anonymous, nondirected donation. Folberg

expressly proposed limiting the statute to apply to anony-

mous donors and protect their anonymity, but that proposal

was rejected. Thus, the discussion quoted above indicates

that the legislators expected ORS 109.239 to cover all sit-

uations involving artificial insemination except where the

semen was coming from the mother’s husband. There is no

indication in the text, context, or legislative history that the

legislature meant to silently exclude a whole class of chil-

dren born through AI merely because their parents knew

the identity of their sperm donor.

We therefore understand the term “donor” in ORS

109.239 (1977) to carry its plain meaning, that is, an indi-

vidual who is a source of biological material, or an individual

from whom blood, tissue, or an organ is taken for transplan-

tation. “Donor” encompasses those who are known to the

recipient, such as the birthing person’s spouse or a known

donor, as well as anonymous donors.

In this case, Schnitzer and Sause are positioned

equally with respect to ORS 109.239 (1977). Both Schnitzer

and Sause signed standard donation forms from OHSU that

acknowledged relinquishment of any claim to or jurisdiction

over future embryos and offspring, and contributed gametes

to the ART process, and neither of them gave birth to S or

were the spouse of the person who gave birth. Therefore,

neither Schnitzer nor Sause have any “rights, obligations or

interest” with respect to S simply based on their genetic con-

nection to S.

Instead, Schnitzer’s parentage of S arises from his

surrogacy agreement with the gestational carrier and her

husband. At the time of S’s birth, Oregon law presumed

that the birthing person and her husband were S’s legal

parents. See ORS 109.070(1) (2015). That changed when the

trial court entered the stipulated judgment—based on the

agreement between the gestational carrier, her husband,

and Schnitzer—declaring that the carrier and her husband

Cite as 371 Or 573 (2023) 603

were not the intended parents, and that Schnitzer, and

only Schnitzer, was the intended parent. As Sause correctly

stated in her brief, “ORS 109.065(2) creates a presumption

that the woman who births a child is the child’s mother, but

that presumption was overcome in this case by the gesta-

tional surrogate’s contractual agreement that she would not

be [S’s] mother.”

This court has never addressed an ART contract,

but the Court of Appeals has and has held that surrogacy

contracts and other ART contracts are generally enforceable

under Oregon law. See, e.g., McIntyre v. Crouch, 98 Or App

462, 472, 780 P2d 239, rev den, 308 Or 593 (1989), cert den,

495 US 905 (1990) (holding that Oregon statute either did

not or constitutionally could not prevent an unmarried

sperm contributor in AI from establishing parental rights

through contract with the birthing parent); Leckie and

Voorhies, 128 Or App 289, 293, 875 P2d 521 (1994) (enforcing

AI contract barring donor from asserting parental rights);

In re Adoption of Baby A and Baby B, 128 Or App 450, 453,

877 P2d 107 (1994) (payment of money to a birth mother pur-

suant to a surrogacy contract did not invalidate her consent

to the adoption of her birth child by the adoptive parents);

Weaver v. Guinn, 176 Or App 383, 388, 31 P3d 1119 (2001)

(deciding not to enforce the parties’ written artificial insem-

ination agreement because the child was conceived through

sexual intercourse and not AI);; Dahl and Angle, 222 Or App

572, 194 P3d 834 (2008), rev den, 346 Or 65 (2009) (uphold-

ing agreement regarding the disposition of embryos created

through IVF, as established “at the time that they under-

went the IVF process”).

Oregon statutes do not expressly address the

enforceability of ART contracts, but several of them rein-

force the approach taken by the Court of Appeals in the

cases cited above. ORS 109.230 provides, for example, “Any

contract between the mother and father of a child born out of

wedlock is a legal contract, and the admission by the father

of his fatherhood of the child is sufficient consideration to

support the contract.” Likewise, ORS 163.537(2)(d) expressly

permits payment of “fees for services in an adoption pursu-

ant to a surrogacy agreement.” Both of those statutes support

604 Sause and Schnitzer

the proposition that families can determine their structure

through contract, within the general bounds of public pol-

icy regarding children and parents. More fundamentally,

the ability to determine family structures through contract

is consistent with the institution of marriage, which is, in

part, a form of contract that has served for millennia to cre-

ate stable and predictable family structures involving both

parents and children. See ORS 109.070 (creating a rebutta-

ble presumption that a child is the legal child of their birth

mother’s spouse); William Blackstone, 1 Commentaries on

the Laws of England 443 (1765) (“The main end and design

of marriage therefore [is] to ascertain and fix upon some

certain person, to whom the care, the protection, the main-

tenance, and the education of the children should belong[.]”).

Here, the gestational carrier and her husband,

together with Schnitzer, stipulated that Schnitzer—and not

the carrier or her husband—was S’s intended parent, as they

had effectively agreed upon beforehand. Had Sause been a

party to that agreement, her parentage might have been

established as well. But, as noted above, she was not asked

to be a party to that agreement, although she expected and

knew that Schnitzer was working with a gestational carrier

to have a son.

In sum, we conclude that Sause’s genetic connection

to S does not afford her a presumption of legal parentage of

S, under Oregon statutes or common law.7

C. Parentage Under Federal and Other State Law

Sause also argues that this court should look to

California and federal cases as providing a basis for her

claim of parentage as to S. We briefly explain why those

authorities do not support Sause’s position here.

7

Justice Bushong’s contrary conclusion has the potential effect of increasing

litigation and uncertainty for families who use ART where, for example, a gam-

ete donor who was known to the intended parents at the time of donation later

attempts to establish parentage based on their genetic connection to the child. As

amici note,

“[T]he only question [when determining whether a gamete contributor is a

donor] is whether a person donated a gamete for use in assisted reproduction

without an agreement between the parties that they would both be parents.

If the answer is yes, the donation cuts off all parental rights and responsibil-

ities. Nothing else matters.”

Cite as 371 Or 573 (2023) 605

Sause relies on a case from the California Supreme

Court, K.M. v. E.G., 37 Cal 4th 130, 117 P3d 673 (2005),

where K.M. provided eggs that were used to impregnate her

female partner, E.G., who gave birth to twins. The couple

later broke off their relationship, and they disputed whether

K.M. was a legal parent of the twins. Applying a similar

statutory scheme to pre-SB 512 Oregon law, the California

Supreme Court held that K.M. was a parent based on her

genetic connection to the twins. Id. at 138, 117 P3d at 678.

In Sause’s view, K.M. supports her argument that

her genetic connection to S alone is sufficient to establish

parentage. We disagree. K.M. involved different facts, poli-

cies, and law, and we are unpersuaded by K.M.’s reasoning

as applied to this case. The issue in K.M. was “the parental

rights and obligations, if any, of a woman with regard to a

child born to her partner in a lesbian relationship.” Id. at

134, 117 P3d at 675. The court evidently was focused on how

to apply statutes written with straight couples in mind to

lesbian couples; the court did not consider the broad implica-

tions of ART for parentage law (the California Family Code

was later amended to address that issue), even though the

court relied on the genetic connection between K.M. and the

twins. The core conclusion of K.M. was that

“[California] Family Code section 7613, subdivision (b)

[(1992)], which provides that a man is not a father if he pro-

vides semen to a physician to inseminate a woman who is

not his wife, does not apply when a woman provides her ova

to impregnate her partner in a lesbian relationship in order

to produce children who will be raised in their joint home.”

Id., 117 P3d at 675. As that quote indicates, at the time that

K.M. provided her eggs, she was in a committed relation-

ship with E.G., and they planned to raise the children in

their joint home. See id. at 139, 117 P3d at 679 (noting that,

although the parties’ shared intent at the time of concep-

tion was disputed, it was undisputed that “the couple lived

together and that they both intended to bring the child into

their joint home”). K.M. testified that “she only agreed to

provide her ova because she and E.G. had agreed to raise

a child together,” and that she would not have done so “had

she known E.G. intended to be the sole parent.” Id. at 135,

606 Sause and Schnitzer

117 P3d at 676. K.M. had no other reason to retrieve her

eggs.

By contrast, at the time that Sause gave her eggs

to Schnitzer, the two were not in a committed relationship,

nor did they plan to raise resulting children in a joint home.

Sause had already decided to have her eggs retrieved “for

her own purposes, independent of Schnitzer’s plans to have

a male child through ART,” as the trial court found. Unlike

K.M., Sause “always intended Schnitzer to have complete

legal control over any male embryos,” along with “sole legal

custody of any male offspring,” but hoped to have only a “par-

enting role” with those offspring. In other words, whereas

K.M. intended to be a full legal parent, and both parties

in K.M. intended to raise the resulting children together,

Sause hoped to achieve an undefined quasi-parenthood by

being “known as the mother,” but not retaining any author-

ity or responsibility over S. In this instance, those factual

differences, as well as the fact that K.M. did not directly

address the legal issues presented here, lead us to reject

K.M. as persuasive authority in this case.

Having concluded that Sause is not S’s parent under

state law, we turn to whether Sause has any protected lib-

erty interest in being a parent of S under federal law. Sause

contends that she has a federal due process right in relation

to S under the standard articulated in Lehr, 463 US at 262.

In Lehr, the child of an unmarried biological father was in

the process of being adopted, and the father argued that he

had the right to notice and the opportunity to be heard in

the adoption proceeding under the Due Process Clause. Id.

at 250. The Supreme Court rejected that argument and held

that he did not have those rights because he had failed to

grasp the opportunity “to develop a relationship with his

offspring” or accept “some measure of responsibility for the

child’s future.” Id. at 262. The Court explained that, “[w]

hen an unwed father demonstrates a full commitment to the

responsibilities of parenthood by coming forward to partici-

pate in the rearing of his child, his interest in personal con-

tact with his child acquires substantial protection under the

Due Process Clause.” Id. at 261 (internal quotation marks,

citation, and brackets omitted).

Cite as 371 Or 573 (2023) 607

Lehr does not apply here because, for the reasons

discussed above, Sause is not S’s legal parent as a matter

of state law. Unlike the father in Lehr, whose claim to legal

parentage based on being the natural father was assumed,

Sause does not have a viable state law basis for legal parent-

age. As Sause’s brief puts it, “[t]he Lehr standard was estab-

lished by the U.S. Supreme Court for application in circum-

stances when the state strips a person of parental rights,

not for the purpose of determining whether a person is a

parent in the first place.” See Lehr, 463 US at 258 (noting

that the state’s termination of a parent-child relationship

“must be accomplished by procedures meeting the requisites

of the Due Process Clause” (internal quotation marks omit-

ted)). But the state is not stripping Sause of parental rights

because, as we have explained, Sause was never “a parent

in the first place” under state law. As the Court observed in

Lehr itself, “[i]n the vast majority of cases, state law deter-

mines the final outcome.” Id. at 256. This case is in that vast

majority.8

8

In her dissent, Justice Linder argues that Sause does have a protected

parental interest under state law and the Due Process Clause based on Lehr.

371 Or at __ (Linder, S.J., dissenting) (so at 1:2-4, 11:8-13). Given our conclusion

that Sause does not have a protected interest under state law, we do not reach the

federal issue.

Moreover, the context of Lehr differs from that of this case, because the child

in Lehr was conceived through intercourse and not through ART or AI. As Judge

Mooney’s concurrence below explained, “Most of the cases on which [the lead

opinion and dissent] rely for the ‘right to grasp’ for parental rights do not con-

cern ART. They concern children conceived through sexual intercourse, and they

are distinguishable for that reason.” Sause, 312 Or App at 110 (Mooney, J., spe-

cially concurring). The concurrence suggested that the law provides a rebutta-

ble presumption of parentage for children conceived through sexual intercourse

“because sexual intercourse serves purposes in addition to procreation. The

intent of the parties using ART,” by contrast, “is much clearer,” id. at 109, and

the legal rules applicable to conception and parentage resulting from ART are not

necessarily the same as those applicable to conception and parentage resulting

from sexual intercourse.

Here, although the genetic link between Sause and S is biologically the same

as the link between the father and child in Lehr, what that link legally signifies

is different. When a child is conceived through sexual intercourse, a genetic link

between a person and the child demonstrates only that that person participated

in that intercourse. When a child is conceived through ART, the genetic link gen-

erally demonstrates that that person contributed their gamete through medical

procedures for the express purpose of creating a child and pursuant to whatever

agreements existed between the gamete contributor and intended parent. In

sum, Lehr does not apply here, and Sause does not have a liberty interest regard-

ing S that is protected by the Due Process Clause.

608 Sause and Schnitzer

D. Sause’s Potential Contractual Rights and the Nudelman

Agreement

Although we have concluded that Sause is not S’s

legal parent by virtue of her genetic link to S as a matter

of state or federal law, that does not end our inquiry. As we

have described above, Schnitzer’s parentage and parental

rights with respect to S were determined through his agree-

ment with the gestational carrier and her husband, and the

stipulated judgment based on that agreement. Schnitzer and

Sause had their own, separate agreement—the Nudelman

agreement—regarding their gametes, their embryos, and

S. And, as also noted above, their relationship and mutual

understanding was different from an anonymous donation

process where the parties expect the donor to have no rela-

tionship or contact with their genetic offspring. Instead, as

the trial court found, both parties agreed that Sause would

play some type of “mothering role” with respect to S, and

they did not expect her identity to be kept from S, among

other shared intentions.

The parties have generally not framed their argu-

ments in contractual terms in this court. Both the trial

court and Court of Appeals started with the proposition that

Sause’s genetic connection to S made her a presumptive par-

ent under Oregon law, and then considered whether Sause

had met the Lehr requirement of grasping the “opportunity”

and accepting the “responsibility” of parenthood for that

connection to result in legal parenthood. Presumably for

that reason, the parties’ briefs on review develop those argu-

ments, but do not discuss any contractual claims that Sause

may have regarding a relationship with S. Nevertheless, the

role of the Nudelman agreement and its effect on the rela-

tionships among Sause, Schnitzer, and S was at issue in the

trial court and in the background throughout these proceed-

ings, and we turn to that agreement now.

Neither party argues that the Nudelman agree-

ment affirmatively establishes Sause’s claim of legal parent-

age of S.9 Indeed, although Schnitzer’s agreement with the

9

In the trial court, Sause expressly disclaimed the position that the

Nudelman agreement granted her parentage of S, stating, “Sause does not assert

the Nudelman Agreement as the source of her parental rights. Rather, her rights

Cite as 371 Or 573 (2023) 609

gestational carrier unambiguously established his intended

parentage of S, the Nudelman agreement unambiguously

does not establish Sause’s intended parentage.10 There is

no affirmative statement of intended parentage, nor would

section 2 of the agreement, quoted above—which limited

Sause’s contact with and responsibility for S—be consistent

with an agreement establishing intended parentage.

But both parties maintain that the Nudelman

agreement and other documents executed by the parties

play some role in discerning their shared intentions. For

example, Sause argues in this court that “the Nudelman

Agreement expressly preserved a role for [Sause] as [S’s]

maternal parent.” And the parties placed the significance

of the Nudelman agreement squarely before both the trial

court and the Court of Appeals. In the trial court, Sause

argued that the Nudelman agreement “memorializ[ed] her

intent to be a parent of any resulting offspring” and that

she signed it “with the reasonable understanding that its

core terms would govern and control the impact of any addi-

tional documents signed” in the process. Schnitzer argued

in the trial court that the Nudelman agreement should be

enforced and stated, “the review of the contract that was

executed by both parties grants Ms. Sause no rights. It lim-

its whatever rights she may have.” In other words, although

Schnitzer argued that Sause had no rights with respect to

S, parental or otherwise, he recognized that the Nudelman

agreement was relevant to determining those rights.

In the Court of Appeals, Schnitzer shifted his posi-

tion slightly and expressly recognized that Sause may have

a future role in S’s life and that the Nudelman agreement

would at least partially define that role, within the bounds

of public policy:

“Nothing in Section 2 [of the Nudelman agreement] would

preclude [Sause] in the future from playing a role in the

result from the undisputed fact that she is the biological and genetic mother of

the child, together with the fact that she has never knowingly and intentionally

waived her parental rights.”

10

The trial court held that the Nudelman agreement did not effectively waive

any parental rights that Sause may have had, a conclusion that we do not ques-

tion here. But that is a different question from whether the agreement created

any contractual, nonparental rights regarding Sause’s relationship with S.

610 Sause and Schnitzer

child’s life, either through agreement with Schnitzer (his

testimony shows no intent to shut Sause permanently out

of the child’s life) or if necessary through a binding third

party determination of the child’s best interests, and an

order to that effect.”

Additionally, both parties sought attorney fees on the basis

that they were enforcing the Nudelman agreement, indi-

cating that the significance of the agreement was squarely

before the trial court.

Thus, the legal effect of the Nudelman agreement

has been contested at all stages of this case. Because the

trial court determined that Sause was a legal parent of S

and proceeded on federal constitutional grounds, however,

the parties have not had a meaningful opportunity to liti-

gate the extent to which the Nudelman agreement, or any

other agreement between the parties, affirmatively estab-

lishes any nonparental rights that Sause may have with

respect to S.

Whether a gamete donor like Sause can seek lim-

ited rights to visitation or contact with S based on her

agreements with Schnitzer is not a question that Oregon

courts have considered. As the use of ART has increased,

however, so too has the need for the enforcement of contracts

between intended parents, gestational surrogates, and gam-

ete donors for the sake of determining parentage or nonpa-

rental, contractual rights, as this case has illuminated. See

Maria E. Garcia, In with New Families, Out with Bad Law:

Determining the Rights of Known Sperm Donors Through

Intent-Based Written Agreements, 21 Duke J Gender L &

Pol’y 197, 219 (2013) (discussing the importance of recog-

nizing and enforcing written agreements between known

donors and intended parents).

Similarly to the way that a “birth relative” and an

adoptive parent may enter into a written agreement to per-

mit continuing contact between the birth relative and the

child under ORS 109.268(2), for example, an intended par-

ent and a known gamete donor in an ART context presum-

ably may enter into a written agreement for potential con-

tact between the donor and the resulting child. As discussed

above, that and other statutes support the proposition that

Cite as 371 Or 573 (2023) 611

families can determine their structure through contracts

and agreements, within other statutory and constitutional

limitations.

As Schnitzer recognized in his brief, “[a]ny court

has authority to refuse enforcement to provisions of a con-

tract, but the standard for doing it is strict. Public policy is

‘a very unruly horse,’ and a court will not override contract-

ing parties’ will on that basis without an ‘overpowering’

reason.” (Quoting Harrell v. Travelers Indemnity Company,

279 Or 199, 206, 213, 567 P2d 1013 (1977).) Public policy

factors, including the best interests of the child and the

parent’s ability to make the “best decisions concerning the

rearing of that parent’s child[ ],” Troxel v. Granville, 530 US

57, 68-69, 120 S Ct 2054, 147 L Ed 2d 49 (2000), will be

important factors in a court’s decision to enforce a written

agreement for visitation or contact. Whether those factors

“overpower” the parties’ written agreement will be issues

for a trial court to decide based on the facts, the specific

statutes that may apply to the relationships at issue, and

the parties’ arguments.

We therefore conclude that, although the Nudelman

agreement does not establish that Sause is a legal parent of

S, Sause may have bargained for certain nonparental rights

with respect to S. As we have noted above, surrogacy and

other ART contracts are generally enforceable within the

bounds of public policy. Because the trial court concluded

that Sause was a legal parent of S, with all the rights and

responsibilities of that legal status—a determination that

we have concluded was legal error—the court did not deter-

mine the extent of legally enforceable contractual rights

that Sause may have based on her written and unwritten

agreements with Schnitzer. On remand, the parties will

have the opportunity, if they wish, to litigate the extent

of Sause’s nonparental rights with respect to S, and the

court may determine the extent to which those rights are

enforceable. The trial court will be tasked with evaluating

any agreements between Sause and Schnitzer, including

the Nudelman agreement, pursuant to the framework set

out in Yogman v. Parrott, 325 Or 358, 937 P2d 1019 (1997),

which may require consideration of extrinsic evidence of the

612 Sause and Schnitzer

parties’ intent in the time leading up to the formation of the

agreement.

Finally, we note that Justice Bushong’s dissent

asserts that we are holding that “Oregon law allows a per-

son to ‘contract into’ parental rights without going through

adoption procedures,” which it contends is legal error. 371

Or at __, ___ (Bushong, J., dissenting) (so at 33:8-10, 35:10-

19). It then states that, if Schnitzer can become a parent

through a contract—and not based on his genetic connection

to S—then Sause can as well. 371 Or at ___ (so at 34:20

- 35:2). We disagree. First, Schnitzer’s parentage is not at

issue in this case. No one disputes that he is a legal parent

of S, based on his surrogacy agreement and the stipulated

judgment in the declaratory judgment proceeding, and no

party questions his status as S’s legal parent or argues that

he must go through adoption procedures to become a legal

parent. Second, we are not remanding for a determination of

whether Sause can establish “parentage” through contract.

We have already held that she is not S’s legal parent. Rather,

we remand because she and Schnitzer had at least one writ-

ten agreement related to S, and Sause may have enforce-

able, nonparental, contractual rights under that agreement.

Although a right to be known to a child, to visit, or to have

an ongoing relationship may certainly overlap with some

“parental” rights, when their source is an agreement with

the intended parent—as may be the case here—those rights

do not establish one’s legal parentage.11

11

As noted, Justice Bushong’s dissent contends that, if Schnitzer can “con-

tract into” legally cognizable parental rights, then Sause can, too, under the

“equality principle.” 371 Or at ___ (Bushong, J., dissenting) (so at 31:17 - 32:1).

That is incorrect. Among other factual and legal differences in their circum-

stances, discussed above, Schnitzer had a surrogacy contract with S’s legal par-

ents at birth (the gestational carrier and her husband) consenting to Schnitzer’s

intended parentage, while Sause did not. Thus, Schnitzer was able to challenge

the legal parents’ parentage under ORS 109.070(2)—which provides that the par-

entage of a birth mother and her spouse “may not be challenged by a person other

than a spouse as long as the spouses are married and are cohabitating, unless

both spouses consent to the challenge” (emphasis added)—and obtain a declara-

tory judgment establishing his parentage. But Sause did not have the consent

of the legal parents, so an effort by her to challenge their parentage would be

barred by that statute.

Justice Bushong’s dissent also makes a number of potentially broad state-

ments about Oregon parentage law, including that there can be no contractual

basis for parentage except through adoption and that “[c]ontracts in this con-

text can terminate parental rights arising from other presumptions of parentage,

Cite as 371 Or 573 (2023) 613

E. Attorney Fees

We briefly turn to the question of attorney fees.

Schnitzer was awarded attorney fees on appeal, and Sause

now challenges that award. Sause did not, however, raise

that issue in her petition for review, nor did she amend her

petition for review to include that issue after the Court

of Appeals had awarded Schnitzer attorney fees, so it is

not before this court. See ORAP 9.20(2) (“[T]he questions

before the Supreme Court include all questions properly

before the Court of Appeals that the petition or the response

claims were erroneously decided by that court.” (Emphasis

added.)); see also ORAP 9.17(2)(b)(i) (“[T]he brief [on the

merits on review] may not raise additional questions or

change the substance of the questions already presented

[in the petition for review].”); Parrott v. Carr Chevrolet, Inc.,

331 Or 537, 541 n 3, 17 P3d 473 (2001) (relying on ORAP

9.17(2)(b)(i) and ORAP 9.20(2) to decline consideration of

the defendant’s request to reverse an award of attorney fees

that the defendant had made in its brief on the merits, but

not in its petition for review). And, “[a]lthough this court

has discretion to consider ‘other issues that were before the

Court of Appeals,’ ” we decline to do so here. Miller v. City of

Portland, 356 Or 402, 410 n 4, 338 P3d 685 (2014) (quoting

ORAP 9.20(2)).

III. CONCLUSION

Schnitzer wanted to have a son through ART, and

Sause gave Schnitzer her eggs to support that process. As

explained above, in these circumstances, Sause’s genetic

link to S does not make her his legal parent. At the same

time, both she and Schnitzer hoped that she would play

some role in S’s life, and agreements between them provide

a basis for Sause to seek to prove those contractual rights.

We therefore reverse the judgment of the trial court and

remand for further proceedings in that court to declare the

legal parentage of S and to determine the extent of Sause’s

contractual, nonparental rights, if any, with respect to S.

but they cannot create parental rights on their own.” 371 Or at __ (Bushong, J.,

dissenting) (emphases in original) (so at 31:15-17). Those statements are offered

without citation to case law or statute, and may well be at odds with the under-

standing of many of those involved in the ART process.

614 Sause and Schnitzer

The decision of the Court of Appeals is affirmed in

part and reversed in part. The judgment of the circuit court

is reversed, and the case is remanded to the circuit court for

further proceedings.

BUSHONG, J., dissenting.

Petitioner Sause contributed eggs that were fertil-

ized through in vitro fertilization (IVF) with sperm sup-

plied by her then-boyfriend—respondent Schnitzer—and

implanted in a gestational surrogate, resulting in the birth

of a child, S. The majority opinion concludes that neither bio-

logical parent has any legally cognizable parental interest

in S based on their genetic connection. Instead, the majority

opinion concludes that Schnitzer is S’s legal parent based

on his contract with the gestational surrogate and her hus-

band, and that Sause might have some contractual—but

not parental—interest in S, to be determined on remand.

Because I disagree with the majority opinion’s conclusions

and the legal analysis it utilizes to reach those conclusions,

I respectfully dissent.

In my view, Sause’s undisputed genetic link to S

does not automatically make her a legal parent, but it does

give her a parental interest that has legal significance—just

as Schnitzer’s genetic link gave him a parental interest that

has legal significance—under Oregon parentage law and the

Due Process Clause of the Fourteenth Amendment to the

United States Constitution. The majority opinion’s conclu-

sion that neither genetic parent has any legally significant

parental interest is, in my view, based on a misreading of

the law. Further, I agree with the trial court that nothing in

Oregon parentage law or the written agreements and con-

sent forms that Sause signed as part of the assisted repro-

ductive technology (ART) process precluded the trial court

from determining that Sause was S’s legal parent. And the

majority opinion’s conclusion that Schnitzer has “contracted

into” a parental interest, is, in my view, both unprecedented

and contrary to established Oregon law. Accordingly, I

dissent.

Cite as 371 Or 573 (2023) 615

I. DISCUSSION

A. Sause has a legally protected parental interest under

Oregon law.

I agree with the majority opinion that Sause’s

genetic link with S does not by itself make Sause a legal par-

ent. But, in my view, that link does give rise to a parental

interest that has legal significance under Oregon parent-

age law. The majority opinion misinterprets Oregon law in

reaching a contrary conclusion. To understand the role that

genetics plays in Oregon parentage law, it is helpful to place

that law in the context of its common-law roots and its his-

torical evolution, as the majority opinion has done. However,

the majority opinion’s historical overview is incomplete.

What is missing from the majority opinion’s over-

view is a discussion of the legislature’s enactment of an

“equality principle” in response to legal presumptions that

subordinated women to men under the common law and how

that principle applies to help resolve disputed parentage

claims today. Originally, Oregon law adhered to the marital

presumption, which conclusively established that the man

married to a child’s mother is the child’s legal father. That

presumption and related concepts in the common law and

early statutes reflected the law’s misogynistic approach to

parentage. By overlooking the legislative response to the

law’s historical mistreatment of women, the majority opin-

ion misinterprets the role that genetics has always played in

Oregon parentage law. I begin with the omitted portion of

that overview.

The conclusive marital presumption was consistent

with criminal laws, social norms, and religious doctrines for-

bidding women to have sex outside of marriage. See Joanna

L. Grossman, Thoroughly Modern Motherhood, 74 SMU L

Rev 277, 280-81 (2021) (“The marital presumption * * * rep-

resented not only the state’s best guess as to the father of a

married woman’s child but also the state’s normative prefer-

ence. Sex with anyone else was taboo, even illegal perhaps

* * *.”). Courts prohibited anyone from disputing the marital

presumption through evidence that the husband could not

have fathered the child because he was infertile or lacked

616 Sause and Schnitzer

sexual access to his wife. See Westfall v. Westfall, 100 Or

224, 239, 197 P 271 (1921) (“It is well settled on grounds of

public policy, affecting the children born during the mar-

riage, * * * that the presumption of legitimacy as to children

born in lawful wedlock cannot be rebutted by the testimony

of the husband or the wife[.]”); Douglas NeJaime, The Nature

of Parenthood, 126 Yale LJ 2260, 2272 (2017) (noting that,

if a child was conceived outside of marriage, the presump-

tion “allowed the husband to pretend he was the biological

and thus legal father * * * [and] the couple themselves could

not penetrate the presumption with inconsistent biological

facts”).

That conclusive marital presumption, along with

the harsh treatment of “illegitimate” children at common

law, “reflected and enforced a gender-hierarchical order”

whereby “marriage subordinated women to men in both the

spousal and parenting relationship.” NeJaime, 126 Yale LJ

at 2273. The subordination of married women to their hus-

bands was further reflected in the common-law rule that

fathers were entitled to the custody of their minor children

as against the children’s mothers and all other persons.

Bryant v. Dukehart, 106 Or 359, 370, 210 P 454 (1922). That

rule was based on the principle that “the husband and wife

were a legal unit, and that the rights of the husband and

wife were exercised by the husband alone.” Id.

In 1880, the legislature responded to that inequal-

ity by enacting an “Act to Establish and Protect the Rights

of Married Women” (the 1880 Act).1 The Codes and General

Laws of Oregon, ch XVIII, title I, § 2878 (Hill 1887). The

1880 Act provided:

“Henceforth the rights and responsibilities of the par-

ents, in the absence of misconduct, shall be equal, and the

mother shall be as fully entitled to the custody and con-

trol of the children, and their earnings, as the father, and

in case of the father’s death the mother shall come into as

full and complete control of the children and their estate as

the father does in case of the mother’s death. All laws and

1

Although the title of the 1880 Act stated that it established and protected

the rights of “married women,” its text refers to the rights and responsibilities

of “the mother” without limiting those rights and responsibilities based on the

mother’s marital status.

Cite as 371 Or 573 (2023) 617

portions of law inconsistent with the foregoing are hereby

repealed.”

That provision abrogated the common-law rule that had

vested superior custodial rights to the father over the mother.

It did so based on a recognition of “the nurturing of children

that mothering brought” and thus provided more protections

for women to retain custody over their children upon the

father’s absence. Philip F. Schuster II, Constitutional and

Family Law Implications of the Sleeper and Troxel Cases: A

Denouement for Oregon’s Psychological Parent Statute?, 36

Willamette L Rev 549, 564-65 (2000).

The enactment of the 1880 Act placed women

on more equal footing by giving both biological parents—

including mothers—the right to custody of their children

unless they were unfit or unable to care for their child. See

Barnes v. Long, 54 Or 548, 550, 104 P 296 (1909) (noting

that, in a divorce decree, “the custody of the child was given

to the wife, and properly so”). In Ingalls v. Campbell, 18 Or

461, 469, 24 P 904 (1889), this court noted that, although the

1880 Act did not give mothers the right to appoint a testa-

mentary guardian, the statute did give mothers “equality of

rights as to the custody of the children.” The “equality prin-

ciple” adopted in the 1880 Act has been retained in Oregon’s

parentage statutes and is now codified in slightly reworded

form as ORS 109.030.

In more recent decades, Oregon parentage laws

have evolved to eliminate illegitimacy and recognize pater-

nity based on a man’s actual and acknowledged genetic con-

nection with a child. In 1953, Oregon enacted the “Uniform

Act on Blood Tests to Determine Paternity” (the 1953 Act).

Or Laws 1953, ch 628. The 1953 Act authorized courts to

use blood types to determine “the possibility of the alleged

father’s paternity[.]” Id. § 4.2 That provision, which is codi-

2

The 1953 Act provided, in part:

“Section 1. In a civil action under title 28, chapter 9, O.C.L.A., in which

paternity is a relevant fact, the court, upon its own initiative or upon sugges-

tion made by or on behalf of any person whose blood is involved may, or upon

motion of any party to the action made at a time so as not to delay the pro-

ceedings unduly, shall order the mother, child and alleged father to submit to

blood tests. If any party refuses to submit to such tests, the court may resolve

618 Sause and Schnitzer

fied as ORS 109.258, establishes a “disputable presumption

of paternity” if blood or DNA testing shows a genetic link

between the man and the child. See Or Laws 1995, ch 608,

§ 5 (amending the definition of “blood tests” in ORS 109.251

to include DNA testing as an approved method of determin-

ing paternity).3

In 1975, the legislature amended ORS 109.070 to

allow the filing of a “joint declaration of paternity” sup-

ported by sworn statements “of the natural father and the

mother that the natural father is the father of the child and

that there is no legal father.” Or Laws 1975, ch 640, § 3. That

law was subsequently amended in 1995 to allow a putative

father to file a “voluntary acknowledgment of paternity.” Or

Laws 1995, ch 514, § 7. Such a filing “establishes paternity

as a rebuttable presumption for all purposes.” Id.

Although this court had noted in 1959 that “the

modern trend [was] away from the rule of conclusiveness,”

Burke v. Burke, 216 Or 691, 697, 340 P2d 948 (1959), the

Oregon legislature did not abolish the conclusive marital

presumption until 2007, when it made the presumption

rebuttable in all circumstances. See Or Laws 2007, ch 454,

§ 1 (amending ORS 109.070).4

As a result of those legislative actions, modern

Oregon parentage law explicitly relies on either marriage

or a genetic connection—established through blood or

the question of paternity against such party or enforce its order if the rights

of others and the interests of justice so require.

“* * * * *

“Section 4. If the court finds that the conclusions of all the experts, as dis-

closed by the evidence based upon the tests, are that the alleged father is not

the father of the child, the question of paternity shall be resolved accordingly.

If the experts disagree in their findings or conclusions, the question shall be

submitted upon all the evidence. If the experts conclude that the blood tests

show the possibility of the alleged father’s paternity, admission of this evi-

dence is within the discretion of the court, depending upon the infrequency

of the blood type.”

Or Laws 1953, ch 628, §§ 1, 4.

3

By the mid-1990s, DNA testing had “progressed to the point where the reli-

ability and validity of properly collected and analyzed DNA data should not be in

doubt.” State v. Lyons, 324 Or 256, 267, 924 P2d 802 (1996); see also Jill Adams,

Paternity Testing: Blood Types and DNA, 1 Nat Educ 146 (2008).

4

Under ORS 109.070(2), the statutory rebuttable presumption may be chal-

lenged by either spouse or by a third party with the consent of both spouses.

Cite as 371 Or 573 (2023) 619

DNA tests, or through filing a written acknowledgment—

between a man and his offspring to establish a presump-

tion of paternity. Historically, maternity was not a disputed

issue; the woman giving birth had an undeniable biological

and genetic link to the child and was thus legally the child’s

mother. But advances in reproductive technology—initially,

artificial insemination (AI),5 and later, in vitro fertilization

(IVF)6 —have changed the landscape, and the law has slowly

(and incompletely) responded.

Until it was abolished in 2007, the conclusive mar-

ital presumption—which treated the husband of the birth

mother as the child’s legal father—continued to be applied,

though it applied only to a husband “who was not impotent

or sterile at the time of the conception of the child.” ORS

109.070(1)(a) (2005). AI made it possible for men who did not

want to become “fathers” to donate semen to help infertile

couples conceive a child, resulting in a genetic connection

between the donor and the child without the corresponding

parental rights and responsibilities. AI also made it possi-

ble to inseminate a surrogate mother who would give birth

to a child for the intended parents, without ever intending

to become a parent herself. Although the surrogate would

have a biological and genetic connection with the child, like

a semen donor, surrogates generally did not want to have

any parental rights or responsibilities.7 Later, IVF made it

5

Artificial insemination (AI) was first reported in the late 1700s and entered

wider use between the 1950s and 1970s. See W. Ombelet & J. Van Robays,

Artificial Insemination History: Hurdles and Milestones, 7 Facts Views Vis Obgyn

137, 138, 140 (2015). Through AI, conception could occur, for the first time in

history, without sexual intercourse. There were essentially two types of recog-

nized AI: artificial insemination by husband (AIH) and artificial insemination

by donor (AID). See George P. Smith, II, Through a Test Tube Darkly: Artificial

Insemination and the Law, 67 Mich L Rev 127, 128 (1968).

6

In vitro fertilization (IVF), which was first used successfully in 1978,

involves combining eggs and sperm in a laboratory setting and implanting the

resulting zygote into a uterus. IVF made egg donation and gestational surrogacy

possible, meaning that, for the first time, a gestational parent might not be a

genetic parent. Grossman, 74 SMU L Rev at 292.

7

The parties’ intent was usually memorialized in a surrogacy agreement

whereby the surrogate agreed to the procedure and agreed to waive her parental

claim to the child in favor of the intended parents. Although this court has never

addressed surrogacy agreements, the Court of Appeals has addressed them. See

In re Adoption of Baby A and Baby B, 128 Or App 450, 877 P2d 107 (1994) (hold-

ing that the adoption statutes did not prohibit the adoption of a child conceived

through artificial insemination of a surrogate mother with the adoptive father’s

620 Sause and Schnitzer

possible, for the first time, for a fertilized egg to be implanted

in a surrogate, who would then give birth to a child without

having any genetic connection to the child. Conversely, IVF

also made it possible for a woman contributing eggs to have

a genetic connection to a child without giving birth to that

child.

As explained more fully below, the development of AI

and IVF led to some changes in Oregon parentage laws—in

particular, the enactment of the donor statute, ORS 109.239

(1977)—but none of those changes eliminated, in this con-

text, a genetic parent’s legally cognizable interest in the

child. Thus, under current Oregon parentage law, Sause’s

genetic link gives rise not to conclusive legal parentage, but

to a parental interest that has some legal significance.

As noted, one of the foundations of Oregon parent-

age law is the 1880 Act’s equality principle, which is cur-

rently codified as ORS 109.030. Before that statute was

amended in 2017,8 ORS 109.030 (2015) provided:

“The rights and responsibilities of the parents, in the

absence of misconduct, are equal, and the mother is as fully

entitled to the custody and control of the children and their

earnings as the father. In case of the father’s death, the

mother shall come into as full and complete control of the

children and their estate as the father does in case of the

mother’s death.”

Under the equality principle, parentage establishes

equal rights and responsibilities to children for both moth-

ers and fathers. Consistent with that principle, any source

of parentage must also reflect an equally cognizable interest

for both putative parents. For men, a genetic link between

father and child has always mattered under Oregon

sperm); see also Weaver v. Guinn, 176 Or App 383, 31 P3d 1119 (2001) (holding

that an “Artificial Insemination Surrogate Contract” that required the surrogate

mother to relinquish custody of the child to the father was not enforceable where

the child was ultimately conceived not through AI but through sexual intercourse

between father and the intended surrogate mother).

8

Oregon parentage law was modified by Senate Bill (SB) 512 (2017). Or Laws

2017, ch 651. SB 512 amended ORS 109.030, replacing the terms “mother” and

“father” with “parent,” consistent with the bill’s recognition of parental rights in

same-sex marriages. Or Law 2017, ch 651, § 50. The majority opinion concludes

that SB 512 does not apply to this case. ___ Or at ___ (slip op at 17:18 - 20:4). I

agree with that conclusion.

Cite as 371 Or 573 (2023) 621

parentage law, though it has not always been conclusive.

Before the conclusive marital presumption was abolished in

2007, it precluded a man from using blood or DNA testing

to establish paternity over a child born to a woman married

to a different man at the time of conception. But blood or

DNA testing could always establish a man’s paternity over

a child born to an unmarried woman. After the conclusive

marital presumption was abolished in 2007, being married

to the birth mother at the time of conception gave rise to a

rebuttable presumption of paternity; in some circumstances,

that presumption could be rebutted by blood or DNA testing

showing that someone else was the child’s biological father.

See ORS 109.070(2).9 Similarly, filing a voluntary acknowl-

edgment of paternity gives rise to a rebuttable presumption

of paternity. Blood or DNA testing can be used to support or

rebut that presumption. Thus, to establish a man’s pater-

nity, genetics has always mattered.

For women, establishing maternity was simple

until IVF was developed. Aside from adoption, the only way

a woman could establish maternity was by giving birth to

the child, resulting in an undeniable biological and genetic

link between them. The widespread use of AI did not change

things for women; the birth mother—even a gestational

surrogate—would still have a biological and genetic connec-

tion with the child.10 But when it became possible to fer-

tilize a woman’s eggs through IVF and implant the result-

ing embryo in a gestational surrogate, the possibility arose

for the first time that the birth mother would not have any

genetic connection to the child.

Under Oregon law, a woman can establish a pre-

sumption of parentage by giving birth to a child. ORS

109.065(1)(a). There is no express statutory mechanism

allowing a woman to establish her parental interest by fil-

ing a voluntary acknowledgment of maternity or through

9

Under ORS 109.070(2), the presumption of paternity arising from marriage

or the filing of a voluntary acknowledgment of paternity “may be challenged in

an action or proceeding by either spouse,” and it may be challenged by any other

person if both spouses consent to the challenge.

10

As discussed above, a gestational surrogate impregnated using AI could

sign a “Surrogacy Agreement” that committed her to surrender the child at birth

to the intended parents, who would adopt the child, as in In re Adoption of Baby

A and Baby B, 128 Or App at 453.

622 Sause and Schnitzer

blood or DNA testing showing her genetic link to the child.

However, Oregon law does recognize that a woman other

than the birth mother can be declared a child’s legal par-

ent. See ORS 109.065(1)(c), (h). In Thom v. Bailey, 257 Or

572, 588, 481 P2d 355 (1971), we held that the statute stat-

ing that parentage could be “established or declared by

another provision of law” (ORS 109.065(1)(h)) authorized a

person claiming a right to inherit from a deceased “parent”

to file a declaratory judgment action to establish paternity.

Consistent with our decision in Thom, a woman can seek to

establish parentage by filing a declaratory judgment action,

as Sause did in this case. And, under a statute enacted in

2013, ORS 432.088(8),11 a person claiming to be a child’s

parent can seek a court order requiring that person to be

listed as a parent on the child’s birth certificate, which

Sause requested in this case.

However, the current statutes do not explain how

a court should resolve a woman’s parentage claim in this

context, nor do they expressly state that a woman with a

genetic link to a child conceived through IVF can estab-

lish parentage in the same way as a man. But, consistent

with the equality principle under ORS 109.030, it is highly

unlikely that the legislature intended to place genetics at the

forefront of a man’s parentage claim while making genetics

irrelevant to a woman’s parentage claim. Rather, the best

reading of these statutes is that the legislature intended to

treat men and women equally with respect to their parent-

age claims, consistent with the equality principle that has

existed in various forms since 1880.12

11

ORS 432.088(8) provides: “For purposes of making a report of live birth

and live birth registration, the woman who gives live birth is the birth mother. If

a court of competent jurisdiction determines that a woman other than the birth

mother is the biological or genetic mother, the court may order the state registrar

to amend the record of live birth. The record of live birth shall then be placed

under seal.”

12

The majority opinion suggests that the “equality principle” and the source

of Schnitzer’s parentage are irrelevant, contending that Schnitzer is “an undis-

puted parent” because creating a male child through ART “was his idea, and he

took the contractual and legal steps to accomplish that, while Sause did not.”

__ Or at __ n 3 (slip op at 24 n 3). But legal parentage has never depended upon

“whose idea” it was to have a child. The only clear contractual step that Schnitzer

took was his contract with the surrogate and her husband, which is legally insuf-

ficient to “contract into” parental rights, as explained below. And the only legal

step that Schnitzer took was filing a declaratory judgment action the day after

Cite as 371 Or 573 (2023) 623

Applying that principle to the novel circumstances

presented here leads to the conclusion that, under Oregon

law, Sause has a legally significant parental interest in S by

virtue of her undisputed genetic link to S, just as Schnitzer

has a legally significant parental interest based on his

genetic link to S.

The majority opinion offers two reasons why a

genetic link does not matter in this context. First, the major-

ity opinion concludes that a genetic link established through

blood or DNA testing, as authorized by ORS 109.258, cre-

ates an “evidentiary presumption” that does not apply

“where genetic parentage is undisputed.” __ Or at __ (slip

op at 27:18-19). But the majority opinion offers no reason

why genetics should matter—and, in many cases, would be

determinative of parentage—only for purposes of child sup-

port when genetic paternity is disputed but would be irrel-

evant when genetic parentage is undisputed. Moreover, the

majority opinion’s reasoning overlooks the fact that a biolog-

ical and genetic connection has always been a basis, at least

presumptively, for parentage, even before DNA and blood

testing were available.

Second, the majority opinion concludes that a

genetic link is irrelevant in this context because Sause’s

parentage claim is “foreclosed by the donor statute, ORS

109.239 (1977),” 371 Or at __ (so at 28:16-17), which the

majority opinion assumes applies equally to egg donors and

sperm donors, 371 Or at __, __ n 6 (so at 29:20-21, 29-30 n 6).

In reaching that conclusion, the majority opinion observes

that a parentage claim based on genetics under Oregon par-

entage law requires “an adjudication or other proceeding” in

which a court “can determine whether the putative parent’s

maternity or paternity is a valid basis for parentage.” 371

S’s birth—which did not name Sause as a party, and which was supported by an

inaccurate declaration from Dr. Patton, an OHSU physician who knew Schnitzer

personally. Patton stated in his declaration that “[e]ggs were retrieved from a

donor and fertilized with sperm collected from [Schnitzer],” which resulted in

embryos created from “donor eggs” and Schnitzer’s sperm. Patton later acknowl-

edged under oath that he did not oversee the creation of the Sause-Schnitzer

embryos, and that he was not involved in the documentation for the needed con-

sents and directives. Patton further acknowledged that he was not “technically

correct” in stating that the embryo transferred to the gestational carrier had

resulted from “donor eggs.”

624 Sause and Schnitzer

Or at __ (citing ORS 109.258 and ORS 109.065) (so at 28:7,

10-11). However, the majority opinion’s rejection of a genetic

link as the basis for a legally protected interest in parentage

cannot be based on the absence of “an adjudication or other

proceeding,” because the trial court determined the validity

of Sause’s parentage claim in this case. Rather, the majority

opinion’s conclusion hinges on its interpretation of the donor

statute, ORS 109.239 (1977).

In my view, the majority opinion has misinterpreted

the intended scope of that statute. I turn to that issue next.

B. The majority opinion misinterprets ORS 109.239 (1977),

Oregon’s donor statute.

The majority opinion concludes from the text and

context of ORS 109.239 (1977) that the statute “was intended

to apply to all those who contributed semen for use in AI”

if they were not the mother’s husband and that the “[t]he

available legislative history confirms that understand-

ing.” 371 Or at __ (so at 31:11-13). I disagree. In my view,

the text and context of the statute show that the legislation

was not intended to apply when semen is contributed by a

man selected by the intended parents—typically a friend,

intimate partner, or relative, commonly referred to as a

“known” or “directed” donor—and the legislative history

confirms that understanding.

That difference is significant, because the majority

opinion concludes, based on its misreading of the intended

scope of the statute, that “neither Schnitzer nor Sause have

any ‘rights, obligations or interest’ with respect to S simply

based on their genetic connection to S.” __ Or at __ (slip op

at 34:1-3). In my view, that conclusion is inconsistent with

Oregon parentage law, as explained above, and is based on

a misreading of the intended scope of the donor statute, as

explained below. I begin with the text and context of that

statute.

1. Text and context

ORS 109.239 (1977) provided:

“If the donor of semen used in artificial insemination is

not the mother’s husband:

Cite as 371 Or 573 (2023) 625

“(1) Such donor shall have no right, obligation or inter-

est with respect to a child born as a result of the artificial

insemination; and

“(2) A child born as a result of the artificial insemina-

tion shall have no right, obligation or interest with respect

to such donor.”

That statute plainly does not apply to Sause because she con-

tributed her eggs; she is not a “donor of semen.” The majority

opinion reasons, however, that, if a “donor of semen” does not

have a legally protected parental interest, then a similarly

situated “donor of eggs” also should not have a legally pro-

tected interest.

I have no quarrel with that application of the equal-

ity principle. The problem, however, is that the donor statute

was intended to apply only to husbands who donated semen

to inseminate their wives and anonymous semen donors who

did not intend to become parents or have any connection

with the child conceived using their donations. The law was

never intended to apply to known or directed semen donors

who intended to be parents, so it would not apply to known

or directed egg donors who intended to be parents either.

The limited intended scope of the donor statute is revealed

by analyzing the statutory text, in context, and is confirmed

by its legislative history.

ORS 109.239 (1977) presumed that a semen donor

could be the mother’s husband or a donor who was not the

mother’s husband. Or Laws 1977, ch 686, § 5. On its face, that

wording could be read to include known or directed donors

selected by the intended parents. However, that broad read-

ing is refuted by another provision enacted as part of the

same act, ORS 677.360, which provided—and continues to

provide—that only licensed physicians and those under their

supervision could perform AI, and that physicians and those

under their supervision were the only ones who could “select

artificial insemination donors.” Or Laws 1977, ch 686, § 2.

Because ORS 677.360 did not give the intended parents a

role in selecting the semen donor, the 1977 donor statute was

not meant to apply to donors who were specifically selected

by the intended parents. Neither was it meant to apply to a

man not married to the birth mother who contributed his

626 Sause and Schnitzer

semen to create a child he intended to parent, as Schnitzer

did in this case.

Considering the words of the statute in the context

of how AI terminology was used at the time confirms that

the 1977 donor statute was intended to address only AI

using semen donated by the birth mother’s husband or by

an anonymous donor whose intent was to give up his semen

to help people he did not know conceive a child. ORS 109.239

(1977) was not intended to address the rights of men who

contributed semen to a friend, intimate partner, or relative

with the intent to become the child’s parent.13

The context of the statute—which includes the

meaning of terms used in the medical field and, more partic-

ularly, the field of reproductive technology—confirms that

limited scope of the legislation. See Comcast v. Dept. of Rev.,

356 Or 282, 296-97, 337 P3d 768 (2006) (for statutory terms

drawn from a specialized trade or field, court considers their

meaning and usage in the discipline from which the legis-

lature borrowed them). Within the medical field generally,

a donor is a person “from whom blood, tissue, or an organ

is taken for transplantation.” Stedman’s Medical Dictionary

536 (27th ed 2000). Blood, tissue, organs, and similar body

parts or substances are donated with the intent of benefit-

ting another already-existing human being. Donations of

that type are not made for purposes of reproduction; that

is, to bring a new human into the world with the genetic

imprint of the donor.

13

The Court of Appeals interpreted ORS 109.239 (1977) in McIntyre v.

Crouch, 98 Or App 462, 780 P2d 239, rev den, 308 Or 593 (1989), cert den, 495 US

905 (1990). That case generated three opinions, but no majority. The ultimate

disposition of the case, which had been resolved on summary judgment, was a

remand for trial. Two judges agreed that the putative father in the case was a

“donor” for purposes of ORS 109.239. Id. at 467-68 (Newman, J., lead opinion);

id. at 474 (Richardson, J., dissenting). And two judges agreed that, if the facts

were as the putative father had alleged, the statute as applied violated federal

due process principles. Id. at 470 (Newman, J., lead opinion); id. at 472 (Deits, J.,

specially concurring). One judge would have also held that the putative father,

who was known to the semen recipient and allegedly had an agreement with her

to have a parental role in the child she gave birth to, was not a donor under the

statute. Id. at 473-74 (Deits, J., specially concurring). Of significance, McIntyre

was decided when legislature history could be considered only if a statute’s terms

were “ambiguous.” See Gaines, 346 Or at 171-72 (announcing change to statutory

interpretation methodology).

Cite as 371 Or 573 (2023) 627

Within the specialized medical field of assisted

reproductive technology, a donor—when not qualified by

adjectives like “known” or “directed”—is anonymous by

default; that is, someone who provides semen with the recip-

ient never knowing the donor’s identity and vice versa.14 A

donor in that sense has no expectation of a parental role of

any kind and wants none. To the contrary, the donor looks

for assurance that the donor’s name will never be disclosed,

so that the recipient of the semen cannot look to the donor

for any form of parental support or other obligation.15

That understanding fits with the origins of artifi-

cial insemination as a fertility service. Sperm banks were

not a reliable source of semen until the mid-1950s, when

successful procedures for freezing and thawing sperm

became available. Banks first existed on an informal basis

at some universities, where they were privately maintained

14

See, e.g., Elizabeth Watkins, Who’s Your Daddy? In Vitro-Fertilization and

the Parental Rights of the Sperm Donor, 30 U Fla J L & Pub Pol’y 131, 135-37

(2019) (discussing anonymous donors and known or directed donors); Amy B.

Leiser, Parentage Disputes in the Age of Mitochondrial Replacement Therapy,

104 Geo L J 413, 428 (2016) (“true” donor in the context of gamete donation is

“someone who contributes his or her gametes to someone else with no intention

of parenting the resulting child”); Paula J. Manning, Baby Needs a New Set of

Rules: Using Adoption Doctrine to Regulate Embryo Donation, 5 Geo J Gender &

L 677, 685-86 (2004) (sperm may come from a donor known to the woman or may

be donated anonymously; persons who elect to use anonymous sperm generally

purchase sperm from sperm banks that keep donor information confidential).

15

No contemporaneous source in the medical or legal fields discussed the

possibility of using “known or directed” donors in the practice of AI as it existed

in 1977. See Donald W. Brodie, The New Biology and the Prenatal Child, 9 J Fam

L 391, 395 (1970) (artificial insemination is classified as AIH when the husband’s

semen is used; AID where the semen of an anonymous donor is used; and com-

bined artificial insemination (CAI) where a combination of the husband’s and

an anonymous donor’s semen is used); see also Robert E. Lee, The Changing

American Law Relating to Illegitimate Children, 11 Wake Forest L Rev 415, 419

(1975) (for AID, the identity of the third party donor is “kept an absolute secret

by the doctor from even the husband and wife” while the “donor, of course, does

not know the identity of the couple”); Joseph E. Carr IV, Artificial Insemination:

Problems, Policies, and Proposals, 26 Ala L Rev 120, 121-22 (1973) (existing prac-

tice of artificial insemination is one in which semen is obtained from either the

husband of the recipient or “an anonymous third party donor”). A 2002 law review

article examined “anonymity” practices in the assisted reproduction field gen-

erally, beginning with AID in the 1940s and continuing up to the time the arti-

cle was written, with the author arguing that the then-still-prevalent practices

requiring anonymity could no longer be justified and that children are entitled

to know their biological origins. See Mary Lyndon Shanley, Collaboration and

Commodification in Assisted Procreation: Reflections on an Open Market and

Anonymous Donation in Human Sperm and Eggs, 36 Law & Soc’y Rev 257 (2002).

628 Sause and Schnitzer

by physicians for their own patients. In the early 1970s,

commercial banks began to open their doors. Nationally,

by 1973, there were three commercial sperm banks in exis-

tence, along with nine private banks at university medical

centers and other banks maintained by physicians in pri-

vate practice. Jody Lyneé Madeira, Understanding Illicit

Insemination and Fertility Fraud, from Patient Experience to

Legal Reform, 39 Colum J Gender & L 110, 131 (2019).

Semen donors during that period were university

students, medical students, and hospital residents, whose

semen was given anonymously and banked for future arti-

ficial insemination use by physicians. Naomi Cahn, The

New Kinship, 100 Geo LJ 367, 374 (2012); Dominick Vetri,

Reproductive Technologies and United States Law, 37 Int’l

& Comp L Q 505, 518-19 (1988). Physicians selected the

donors. Screening in those early years was casual, in part,

because medical students were thought to be of “above-av-

erage intelligence and health” and likely to be more

aware of the health implications of their own family his-

tories. See Kathryn Venturatos Lorio, Alternative Means of

Reproduction: Virgin Territory for Legislation, 44 La L Rev

1641, 1651 (1984) (discussing physicians’ role in screening

donors and selecting which donor’s sperm would be used for

which recipient).

In its early years, artificial insemination was often

a clandestine and “fairly secret” practice. Cahn, 100 Geo LJ

at 374, 391-92. The anonymity of the donors and the selec-

tion of semen donors by physicians was a paramount fea-

ture; recipients were given no other choice.

Thus, the text and context of ORS 109.239 (1977)

indicate that the statute was intended to address only AI

using semen donated by the mother’s husband or by an

anonymous donor selected by the physician. I turn to the

legislative history.

2. Legislative history

The legislative history of ORS 109.239 (1977)

confirms that the statute was intended to address semen

donations by husbands and anonymous donors only, con-

sistent with the accepted medical practice of AI when the

Cite as 371 Or 573 (2023) 629

statute was enacted. The chief drafters and proponents of

the 1977 bill were Jay Folberg, a family law professor at

Lewis & Clark Law School; Betty Bechtel, a law student;

and Dr. Nancy Alexander and Dr. Miles Novy, medical pro-

fessionals involved with the sperm bank at Oregon Health

& Science University (OHSU) and the University of Oregon

medical school. In their written testimony, Folberg and

Bechtel explained that artificial insemination had become

a medically accepted procedure used to facilitate reproduc-

tion to assist with fertility issues; that donors of semen were

either the husband or a third-party who usually “remain[ed]

anonymous”; and that the bill was needed to avoid legal

problems for all participants.16 Exhibit 1, Senate Committee

on Judiciary, HB 3193, July 2, 1977, 1 (written testimony

of Professor Jay Folberg and Betty Bechtel). For the recipi-

ent, the bill was designed to ensure that a married woman

could not be deemed an “adulteress” and have her marriage

annulled or invalidated. Id. at 2. For the husband, it solved

the problem that the statutory marital presumption did not

apply if the husband was impotent or sterile, which was the

usual case for couples using artificial insemination. Id. In

the usual case, therefore, the husband could not establish

paternity under existing law, leaving the child with no right

of support and care from the husband. Id.17 As for the typical

anonymous donor, Folberg and Bechtel explained, he would

be “an inappropriate person to hold responsible for the sup-

port and care of the child,” but under existing paternity laws

16

That testimony focused on husbands and wives, consistent with the fact

that, in the early years, use of artificial insemination by unmarried women was

rare. In addition to the social stigma of being an unmarried mother at that time,

most states laws did not permit the procedure to be performed for anyone other

than married couples; regardless of what state law permitted, physicians often

refused to perform the procedure for unmarried women. See Vetri, 37 Int’l & Comp

L Q at 512-19 (describing early statutes and physician unwillingness to perform

artificial insemination for unmarried women); see also Barbara Kritchevsky,

The Unmarried Woman’s Right to Artificial Insemination: A Call for an Expanded

Definition of Family, 4 Harv Women’s LJ 1,2-3 (1981) (similarly describing that

practice).

17

The protection of the relationship between the child and husband was

accomplished through ORS 109.243 (1977), which was another provision in the

bill that enacted ORS 109.239 (1977). Or Laws 1977, ch 686, § 6. ORS 109.243

(1977) provided that, if the husband had given consent to his wife’s artificial

insemination, the relationship, rights, and obligations between a child born as

a result of artificial insemination and the mother’s husband were the same as if

child were “naturally and legitimately conceived” by the mother and her husband.

630 Sause and Schnitzer

he could be held responsible if his identity were to become

known. Id.18

Thus, donor anonymity was a way to protect the

intended parents’ rights, protect the donor from paternity

actions, and protect the child from paternity actions by the

donor. See Tape Recording, Senate Committee on Judiciary,

HB 3193, June 27, 1977, Tape 50, Side 1 (testimony of

Professor Jay Folberg).19 Donor anonymity was also valued

because it ensured that no one other than a wife, her hus-

band, and their doctor knew that the child the woman was

bearing was not her husband’s biological child. Typically,

married couples used a donor’s semen because of the hus-

band’s infertility. The couples generally did not want the

child, or anyone else, for that matter, to know that the hus-

band was not the child’s biological father or to later attempt

to learn the biological father’s identity. Tape Recording,

House Committee on Judiciary, HB 3193, May 3, 1977, Tape

44, Side 1 (testimony of Professor Jay Folberg and Dr. Miles

Novy); Tape Recording, Senate Committee on Judiciary, HB

3193, June 27, 1977, Tape 50, Side 1 (testimony of Professor

Jay Folberg and Dr. Nancy Alexander).20

The written and oral testimony from the May 3,

1977, committee hearing in the House confirms that the

18

During testimony on the bill, in response to questions about the health of

donors, Alexander explained that the donors are mostly medical students, who

are very interested in their health and know their backgrounds quite well. Tape

Recording, Senate Committee on Judiciary, HB 3193, June 27, 1977, Tape 50, Side

1 (testimony of Dr. Nancy Alexander). In written testimony, she also explained

that the donor screening process was selective, accepting only about 40 percent of

the donor applicants, and that matching donor sperm to a specific patient was a

medical decision made by OHSU using “phenotypic match of physical character-

istics with a suitable donor.” Exhibit E, House Committee on Judiciary, HB 3193,

May 3, 1977, 1 (testimony of Dr. Nancy Alexander).

19

Folberg was active in national efforts to encourage states to pass AI legis-

lation. To his knowledge, the only cases that had arisen in the country involved

denials of paternity by husbands arguing, in divorce proceedings, that they

should not be required to pay support for AI children to whom their wives had

given birth. Tape Recording, Senate Committee on Judiciary, HB 3193, June 27,

1977, Tape 50, Side 1 (testimony of Professor Jay Folberg).

20

The legislators considering this bill were attuned to that concern because

of the growing public pressure to open Oregon’s adoption records so that adoptees

could determine the identity of their genetic parents (which passed by initiative

a few years later). See generally Tape Recording, House Committee on Judiciary,

HB 3193, May 3, 1977, Tape 44, Side 1; Tape Recording, Senate Committee on

Judiciary, HB 3193, June 27, 1977, Tape 50, Side 1.

Cite as 371 Or 573 (2023) 631

legislature understood that the legislation addressed the

then-existing AI practice of using semen from husbands or

anonymous donors only. Tape Recording, House Committee

on Judiciary, HB 3193, May 3, 1977, Tape 44, Side 1

(exchange between Rep David Frohnmayer and proponents).

Novy’s written testimony explained that (1) “inseminations

with semen from an anonymous third party” had become

prevalent and “the demand for this procedure” was increas-

ing; and (2) the bill’s purpose was to establish the legitimacy

and legal status of children resulting from AI. Exhibit A,

House Committee on Judiciary, HB 3193, May 3, 1977, 1

(testimony of Dr. Miles Novy) (emphasis added).21

Folberg and Bechtel’s written testimony also

emphasized that the bill proposed “minimal regulations

concerning the practice of artificial insemination.” Exhibit

D, House Committee on Judiciary, HB 3193, May 3, 1977,

3 (testimony of Professor Jay Folberg and Betty Bechtel).

Novy further explained that the AID program that he and

Alexander ran at OHSU served “infertile couples,” that the

number of “inseminations with semen from an anonymous

third-party donor * * * in Oregon are not precisely known,”

and that demand for “the procedure” was increasing as the

number of children available for adoption was declining.

Tape Recording, House Committee on Judiciary, HB 3193,

May 3, 1977, Tape 44, Side 1 (testimony of Dr. Miles Novy).22

The legislative history contains only one discussion

about the possibility of a donor who would not be anony-

mous. Tape Recording, House Committee on Judiciary, HB

3193, May 3, 1977, Tape 44, Side 1 (exchange between Rep

Frohnmayer and proponents). That discussion began with

Representative Frohnmayer saying that he was “curious”

why there was no provision in the bill, “pro or con,” about

21

Novy’s description of AID (artificial insemination by donor) is consistent

with descriptions of the practice in contemporaneous legal and medical sources.

22

At other points during the hearing, the bill’s proponents described the fact

that donors never know if their semen resulted in a pregnancy, that children

produced through AID were produced anonymously, that donors were usually

medical and graduate students who did not remain in the program for long, that

donors were screened and selected by the clinics who provided the semen, and

that records of donors’ identities remained confidential. Tape Recording, House

Committee on Judiciary, HB 3193, May 3, 1977, Tape 44, Side 1 (statements of

Professor Jay Folberg, Dr. Miles Novy, and Dr. Nancy Alexander).

632 Sause and Schnitzer

whether the donor “would be anonymous.” Id. He won-

dered, for example, how a clinic or physician would handle a

request by a couple who wanted a brother to be a donor. Id.

Novy explained that “the overwhelming opinion on the part

of the physicians and among the consumers is to preserve

the anonymity of the donor.” Id. He urged that it “would be a

mistake * * * to put that into the legislation because in time

there might be particular exceptions” that should be settled

“on an individual basis.” Id.

Frohnmayer then asked, “[U]nder the circum-

stances in which you now administer the program, how

many donors or recipients know the identity of the other?”

Id. Alexander answered with an unqualified “[n]one.” Id.

Novy then urged that, if the public sentiment changed so

that donors would not be anonymous, legislation could be

introduced to change the practice and that, until that time,

it would be better “to go with the practice as it currently

exists.” Id. Folberg then explained that, unlike adoptees,

AID-children rarely even know that they were conceived

through AID; the child comes home with the mother from

the hospital, so “the question” of who is the father does not

arise with family, friends, and others. Id. Folberg empha-

sized, as Novy had explained, that the existing practice was

that physicians retained donor records; those records could

be opened if the practice of keeping them confidential were

ever “reconsider[ed].” Id. With that, Frohnmayer had no

further questions about donor anonymity, and his inquiry

shifted to how physicians screened donors for genetics and

health.

That exchange can be reduced to this: Representative

Frohnmayer expressed concern that anonymity of donors

could be a problem if someone wanted a relative to be a

donor. The answer was, in effect, “that’s not the current AI

practice and not what this legislation addresses.” See Tape

Recording, House Committee on Judiciary, HB 3193, May 3,

1977, Tape 44, Side 1 (exchange between Rep Frohnmayer

and proponents). The AID practice in place was to use third-

party donors and to keep their identity confidential, which

everyone involved “overwhelmingly” preferred. Id. The leg-

islation was intended to address only the AID practice as

Cite as 371 Or 573 (2023) 633

it was being administered in the clinics at the time; those

were the only “donors” that the legislature and the bill’s

terms contemplated. In the future, the clinics would have

the latitude to handle requests to use family members or

other known donors as “exceptions” and deal with them on

an individual case-by-case basis if the practice changed. Id.

There was no motion to amend the bill or other proposed

change that was voted on and rejected by the legislature.

Nor was there any proposal to narrow the term “donor”

that the legislature rejected. The sponsors and legislators

engaged in a normal exchange about the nature of what the

bill addressed and determined that the bill, as drafted, was

appropriate.

In sum, the committee hearings on the 1977 leg-

islation confirm that the bill was intended to address arti-

ficial insemination as it was then practiced by the medical

profession—a practice limited to the use of semen provided

by husbands and anonymous third-party donors. Thus, the

text, context, and legislative history of the donor statute,

ORS 109.239 (1977), all confirm that it was not intended to

address known or directed donors selected by the intended

parents, at all.

The majority opinion concludes that the legislative

history demonstrates that the law was always intended to

cover known or directed donors as well as anonymous ones. It

notes that the written testimony submitted by the bill’s pro-

ponents indicated that donors “usually”—but not always—

remained anonymous; observes that Representative

Frohnmayer asked about known donors during the May 3,

1977, legislative hearing; and explains that the statute as

enacted was worded broadly enough to cover both anony-

mous and known semen donors.

It is true that one exhibit submitted by the bill’s

sponsors stated that donors other than the husband “usu-

ally” remained anonymous, but the bulk of the legislative

record reveals that the legislation was intended to cover AI

as it was practiced in 1977, using only husbands or anony-

mous donors. Similarly, although ORS 109.239 (1977) used

broad wording that could be interpreted to cover known as

well as anonymous donors, as the majority opinion notes,

634 Sause and Schnitzer

such an interpretation is contrary to the provision in ORS

677.360, which requires the AI doctor to select the donor. The

majority opinion’s overbroad interpretation is also contrary

to the context of how AI was understood and practiced at the

time. And, as noted, a close examination of the discussion

regarding Frohnmayer’s inquiry about known donors does

not support the conclusion that the legislature intended for

the law to cover known or directed donors selected by the

intended parents.

Aside from that single discussion about the possi-

bility of a known or directed donor, overall, the legislative

history confirms that the legislature intended ORS 109.239

(1977) to address the then-existing AI practice of using

semen from anonymous donors. The proponents explained

that donors never knew if their semen had resulted in a

pregnancy, that children produced through AID were pro-

duced “anonymously,” that donors were usually medical and

graduate students who did not remain in the program for

long, that donors were screened and selected by the clinics

who provided the semen, and that records of a donor’s iden-

tity remained confidential. See generally Tape Recording,

House Committee on Judiciary, HB 3193, May 3, 1977, Tape

44, Side 1 (statements of proponents).

In short, the overwhelming gist of the legislative

history establishes that ORS 109.239 (1977) addressed arti-

ficial insemination as it was then practiced by the medical

profession—limited to the use of semen provided by hus-

bands and anonymous third-party donors. It was never

intended to address known or directed donors. And it cer-

tainly was never intended to answer the novel question pre-

sented in this case: When two people in a romantic rela-

tionship jointly agree to contribute their eggs and sperm to

create a child that, at the time, they intended to parent as

their own—albeit, with different parental roles, depending

on whether the child was a boy or a girl—does each genetic

parent have a legally cognizable parental interest in that

child?

The majority opinion’s conclusion that “neither

Schnitzer nor Sause have any ‘rights, obligations or interest’

with respect to S simply based on their genetic connection

Cite as 371 Or 573 (2023) 635

to S,” 371 Or at __ (so at 34:1-3), relies entirely on the appli-

cation of ORS 109.239 (1977) to known or directed donors

selected by the intended parents.23 Because that under-

standing of the donor statute is mistaken, the majority opin-

ion’s conclusion is incorrect.24

C. Sause has a legally protected parental interest under the

Due Process Clause.

Compounding the majority opinion’s misreading

of Oregon parentage law is its failure to recognize that a

genetic parent’s unique opportunity to establish a parental

relationship is also protected by the Due Process Clause. In

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

614 (1983), a child’s biological father—the appellant in the

United States Supreme Court—contended that, under the

Due Process Clause, he was entitled to receive notice before

the child could be adopted by the man who married the

child’s mother after the child’s birth. The Supreme Court

disagreed.

In concluding that the appellant did not have a con-

stitutional right to notice before the child was adopted, the

Court discussed the legal significance of the appellant’s bio-

logical connection to the child as follows:

“The significance of the biological connection is that it

offers the natural father an opportunity that no other male

possesses to develop a relationship with his offspring. If

he grasps that opportunity and accepts some measure of

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

ings of the parent-child relationship and make uniquely

valuable contributions to the child’s development. If he fails

23

As noted above, at the time that Sause contributed her eggs to this ART

process, the law in Oregon—as understood by the Court of Appeals in McIntyre,

98 Or App 462, in 1989—was that applying the donor statute to deny parentage

to a known sperm donor who donated his sperm in reliance on having a parental

role violated the sperm donor’s rights under the Due Process Clause.

24

The majority opinion suggests that my reading of Oregon parentage law

raises the potential for increasing litigation and uncertainty for known gamete

donors. 371 Or at __ n 7 (so at 36 n 7) But whether there is uncertainty leading

to litigation is entirely within the control of the parties—the intended parents

and the known donor—at the time of the donation. If their mutual intent is that

the donor would not have any parental interest, the donor can waive any claim to

a parental interest. Further legislation addressing developments in ART would

reduce any uncertainty that could arise if the intended parents and known donor

decline to make their intentions clear at the time of the donation.

636 Sause and Schnitzer

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.”

463 US at 262. The Court then explained that, under New

York law, a putative father could marry the mother—thereby

giving rise to the marital presumption of paternity—or the

putative father could enter his parentage claim in a state

registry—an option that the appellant in Lehr had not used.

Either action would have given the appellant a statutory right

to notice. Because of those statutes, the Court concluded,

state law “adequately protected [the] appellant’s inchoate

interest in establishing a relationship” with his daughter. Id.

at 265. Thus, the Court found “no merit in the claim that [the

appellant’s] constitutional rights were offended” when the

court approved the adoption without giving him notice. Id.

What is this unique “opportunity” or “inchoate

interest” that a biological father possesses “that no other

male possesses[?]” It can only be his genetic connection to

the child. That connection gives a genetic parent a unique

opportunity to establish a parental relationship with their

children. Lehr thus recognizes that the opportunity to estab-

lish a parental relationship that arises from a genetic link

is protected by the Due Process Clause. If it were not pro-

tected, there would have been no reason for the Lehr court to

analyze whether the New York statutes gave sufficient due

process to the genetic father’s opportunity. In other words,

Lehr recognized that a man’s genetic connection to a child

alone did not make him a legal parent in this context,25 but

it did give rise to a legally cognizable interest that is pro-

tected by the Due Process Clause, an interest that could be

lost if the man failed to “grasp the opportunity” that that

connection presented.

The majority opinion concludes that Lehr does not

apply here because, unlike the biological father in that case,

“Sause does not have a viable state law basis for legal par-

entage,” 371 Or at __ (so at 39:13-14), and the Due Process

Clause itself does not provide any constitutional limit on a

25

In other contexts—the obligation to pay child support, for example—a

man’s biological connection to a child is sufficient to impose that parental obliga-

tion regardless of whether the man had “grasped the opportunity” to be a parent.

Cite as 371 Or 573 (2023) 637

state’s determination of parentage.26 In my view, that con-

clusion is in error because, as demonstrated above, Sause

does have a parental interest that is legally significant

under Oregon parentage law. Even if she did not, the Due

Process Clause limits the extent to which state law can fore-

close a genetic parent’s claim to legal parentage.

The majority opinion may be correct in concluding

that state law ultimately determines the outcome in “the

vast majority of cases,” 371 Or at __ (quoting Lehr, 463 US

at 256) (so at 39:22). However, the Due Process Clause inde-

pendently limits the extent to which state law can foreclose

Sause’s parental interest.27 Thus, even if Sause has no state

law claim to parentage, the federal constitution precludes

the result reached by the majority’s opinion. I agree with

the trial court and the dissenting opinion in the Court of

Appeals that Sause has done nothing to lose the legal protec-

tion afforded that interest. Sause and Schnitzer, 312 Or App

71, 112, 493 P3d 1071 (2021) (Kamins, J., dissenting).

D. The majority opinion’s contractual analysis is flawed.

The majority opinion aims for consistency with the

equality principle set out in ORS 109.030 by concluding

that neither genetic parent has a legally cognizable paren-

tal interest in S. But the majority opinion goes on to con-

clude that Schnitzer’s parentage “arises from his surrogacy

agreement with the gestational carrier and her husband,”

371 Or at __ (so at 34:4-5), and that Sause might have some

contractual rights—but not a parental interest—regard-

ing S, to be determined on remand. The majority opinion’s

analysis is flawed in two respects.

26

The majority opinion also suggests that this case differs from Lehr

“because the child in Lehr was conceived through intercourse and not through

ART or AI.” 371 Or at __ n 8 (so at 40 n 8). The majority opinion does not explain

why the Due Process Clause would give greater parental recognition to persons

who might casually (or accidentally) create a child through sexual intercourse

than to persons who collaborate deliberately to create a child through ART or AI.

27

Commentators agree that there are federal constitutional limits on

state law determinations of parentage. See Michael J. Higdon, Constitutional

Parenthood, 103 Iowa L Rev 1483, 1489 (2018) (noting that, “[a]lthough the Court

has not said much on the issue of parental identity, what it has said reveals that

there are indeed constitutional limits on who can be excluded from the definition

of parent”); Jeffrey A. Parness, Federal Constitutional Childcare Parents, 90 St

John’s L Rev 965, 972-76 (2016) (summarizing case law).

638 Sause and Schnitzer

First, under Oregon parentage law, no person can

“contract into” legally cognizable parental rights without

going through adoption procedures. Contracts in this con-

text can terminate parental rights arising from other pre-

sumptions of parentage, but they cannot create parental

rights on their own. Second, if Oregon law does allow a per-

son to “contract into” legally cognizable parental rights—a

proposition that, in my view, is incorrect—then the equality

principle means that Sause should be allowed to establish

on remand that she “contracted into” those rights, just as

Schnitzer did.

The majority opinion cites five Court of Appeals’

decisions in support of its conclusion that Oregon law allowed

Schnitzer to “contract into” a legally cognizable parental

right without going through the statutory adoption proce-

dures. See 371 Or at __ (citing McIntyre v. Crouch, 98 Or App

462, 780 P2d 239 (1989); Leckie and Voorhies, 128 Or App

289, 875 P2d 521 (1994); In re Adoption of Baby A and Baby

B, 128 Or App 450, 877 P2d 107 (1994); Weaver v. Guinn,

176 Or App 383, 31 P3d 1119 (2001); Dahl and Angle, 222

Or App 572, 194 P3d 834 (2008), rev den, 346 Or 65 (2009))

(so at 34:16 - 35:7). None of those cases held that Oregon law

allows a person to “contract into” parental rights without

going through adoption proceedings.

The parental rights at issue in In re Adoption of Baby

A and Baby B were established through adoption; the court

held that a surrogacy contract did not preclude the adoption.

128 Or App at 452. In Weaver, 176 Or App 383, the court held

that custody of the child was properly awarded to the birth

mother and refused to enforce an AI agreement that would

have given custody to the biological father because he had

impregnated the mother through sexual intercourse, not AI.

In Leckie, 128 Or App 289, the court held that a sperm donor

waived his parental rights by contract. In Dahl, 222 Or App

at 585, the court held that an agreement giving a woman

custody and control of embryos gave her the right to destroy

the embryos despite her husband’s objection; parentage was

not at issue.

Finally, as noted above, McIntyre was decided by a

divided court, with no majority opinion. Two of the judges

Cite as 371 Or 573 (2023)

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