Opposition Brief — Crouch v. McIntyre

BEST AVAILABLE COPY

TABLE F = T Mu pt

a = an oe x -

’ c » . y

WN edo . VY = , a ‘= .¥ vY =

377 A.2d 821 (1977) 17,18

Caban v Mohammed, 441 S 3%

(1979) 21,23

Cox Broadcasting v. Conn,

420 U.S. 469 (1975) . ; : ; ie ae i ee

In Interest of R.C., 7/5 P.2d 27

(Colo. 1989) . : : J . ; et rel

Jhordan c. v. Mary K., 179 Cal.App.3d

386, 224 Cal.Rptr. 530 (1986) ; - 16

Lehr v. Robertson, 463 U.S. 248

(1983) 2 ‘ . ; e ‘ ; : ; 22,26

McIntyre v. Crouch, 98 Or.App. 462,

780 P.2d 239, rev. den. 308 Or.

593 (1989) . - © e s Bp peaeeO pos ¢ 32

Meyer v. Nebraska, 262 U.S. 390

[anna s oto « sis « 86S

Michael H. v. Gerald D., 491 U.S.

(1989) . : . . . : 27 sateae

Minnick Vv. California Dept. of

Corrections, 452 U.S. 105 (1981). ; 13

Pierce v. Society of Sisters, 268

Gems. sae {i929} ae ‘ ‘ » at ye4

Prince v. Massachusetts, 32i U.S.

158 (1944) : : ‘ ‘ ‘ ; ; ; 18

Quilloin v. Walcott, 434 U.S. 246

(1978) ° ° ° e ° ° ° e ° e zu

TABLE OF AUTHORITIES - continuec

Seeborg v. General Motors Corporation,

284 Or. 695, 588 P.2d 1110 (1978). 5

Skinner Vv. Oklahoma, 316 U.S. 535

(1942) . 2 . : : ; ; “ ; rae

Stanley v. Illinois, 405 U.S. 645

(Lecel «© «6 © 4 @ “& « £9629; 20

Statutory Provisions

28 U.S.C. section 1257(3) (1982). ye ie |

Or.Rev.Stat. section 109.119 . : 33,34

Or.Rev.Stat. section 109.239 . J 3

Treatises

Andrews, Legal Aspects of Assisted

Reproduction, 54 Annals N.Y.Acad.Sci.

Cae ieee? 6) ee: “eS” oe - 06. me Vas

Andrews, Legal Aspects of New

Reproductive Technologies, 29 Clinical

Obstetrics & Gynecology 190 (1986) . 15

Note, Artificial Insemination: Donor

Rights in Situations Involving

Unmarried Recipients, 26 J.Fam.L.

Tae CAPeer «Ss OR el 8 ee we

a)

Donovan, The Uniform Parentage Act and

Nonmarital Motherhood-by-Choice, 11

N.Y.U.Rev. of Law & Soc. Change 193

C2982°G2) « «@ « 6« « «© © «© «

Kern & Ridolfi, The Fourteenth

Amendment's Protection of a Woman's

Right To Be a Single Parent through

iv

ee

TABLE OF AUTHORITIES - continued

Artificial Insemination by Donor, 7

Women's Rts.L.Rep. 251 (1982). . . 15

Note, Reproductive Technology and the

Procreation Rights of the Unmarried,

98 Harv.L.Rev. 669, fn.1 (1985) . ae

Vetri, Reproductive Technologies’ and

United States Law, 37 Int'l & Comp.L.\

2905 (1988) . . . .

>

BRIEF FOR RESPONDENT IN OPPOSITION

The Respondent Kevin McIntyre

respectfully requests that this Court

deny the Petition tor Writ of Certiorari,

seeking review of the Oregon Court oft

Appeals' opinion in this’ case. That

Opinion is reported at 98 Or.App. 462,

780 P.2da 239 (1989). Respondent accepts

as adequate for. review, petitioner's

statement of the opinions below and her

statement of the constitu.ional and

statutory provisions involved.

JURISDICTION

Although petitioner filed a timely

petition for certiorari, this court lacks

Jurisdiction because the state court's

] or

The Petitioner has requested that a

writ be directed to the Oregon Supreme

Court. That Court merely denied

discretionary review and did not consider

the merits. 308 Or. 993 (i989).

Petitioner's request should be for a writ

to the Oregon Court of Appeals.

of ae) BecaeC. section ken? (3) (1982).

This issue is discussed below as a reasor

for denying the petition for certiorari.

STATEMENT OF THE CASE

This brief will first discuss the

procedural posture of the case and then

the material facts. The brief will then

Giscuss the reasons why the petition for

a writ should be denied.

: The Procedural Posture of this Case.

This litigation arises out of a

Petition to Establish Filiation filed by

Respondent Kevin McIntyre in the _ state

triai court. Mr. McIntyre alleged that

he is the unmarried father o* the infant

child Glenellen Susan Arkin born to the

unmarried Petitioner Linden Crouch by

artificial insemination pursuant to an

agreement between them that he was to

have certain parental rights to the

child, including visitation according to

a specific schedule. Ms. Crouch tiled a

motion for summary judgment, claiming

that Mr. McIntyre had no parental rights

as a matter of Oregon law. Mr. McIntyre

cross filed for Summary judgment,

claiming that the Oregon statute,

Or.Rev.Stat. 109.239 (1 Or Laws 1977, ch

666), violated his Fourteenth Amendment

rights to due process by denying him a

hearing to establish that he is’ the

child's father, that he is a fit parent

and that the parties had agreed that he

would nave parental raights. Although

Ms. Crouch neither testified nor filec an

affidavit to deny the agreement, her

attorney orally told the trial court that

an agreement was irrelevant and that they

would dispute it.

The trial court found that there

were no disputed questions of material

fact and granted Ms. Crouch's motion for

Summary judgment, ruling that the Oregon

4

artificial insemination statute

extinguished any right Mr. McIntyre might

otherwise have to the child.

The Oregon Court of Appeals

reversed. Mcintyre wv... Crouch, $8 Of.

App. 462, 780 P.2 239 (1989). It held,

as a matter of procedural law, that there

were disputed issues of material facts

respecting the existence and nature of

the agreement that made summary judgment

for either party improper. It further

held that if Mr. McIntyre can establish

that the parties had “agreed that he

snould have the rights and

responsibilities of fatherhood and in

reliance thereon he donated his semen",

then the Oregon artificial insemination

statute, as applied to Mr. McIntyre,

would violate the Due Process Clause of

the Fourteenth Amendment. The Court of

Appeals remanded the case to the trial

5

court for a hearing to determine the

facts.

If, on remand, the trial court were

to find that there was no such agreement

Or reliance then, presumably, the trial

court would declare Mr. McIntyre to have

no parental rights.

i$ 2 Statement of Material Facts.

Because this litigation arises on

Ms. Crouch's motion for summary judgment,

the following facts, drawn from. the

affidavits filed in opposition to the

motion, are set out in the light most

favorable to Mr. McIntyre. See Seeborg

v. General Motors Corporation, 284 Or.

695, 699, 588 P.2d 1110 (1978) (under

Oregon procedure, "(t]he record on

summary judgment is viewed in the light

most favorable to the party opposing the

motion").

Kevin McIntyre is a resident of the

State of California. He has been friends

|

6

with the Linden Crouch for over thirteen

years. Mr. McIntyre had been attempting

Since 1980 to have a child through

adoption. Since 1983 he has attempted to

have a child through a surrogate mother

or to parent a child through artificial

insemination where he would have

continuing parental rights. Ms. Crouch

previously attempted to find for Mr.

McIntyre, a woman who would be willing to

serve aS_a surrogate mother to produce a

child with and for Mr. McIntyre. At one

time, in about 1983, Ms. Crouch herself

offered to serve as a surrogate mother to

have a child by Mr. McIntyre ana to give

up any maternal rights to the child. Mr.

McIntyre declined the offer out of

concern that Ms. Crouch was not then

Mature enough to make such a decision.

In November 1985, when Mr. McIntyre

was at the home of the Ms. Crouch's

parents for Thanksgiving, Ms. Crouch

est

a os

asked whether Mr. McIntyre would be

willing to father her child. Mr.

McIntyre made it clear that he had no

interest in serving as a simple donor of

sperm without continuing full parental

rights. Ms. Crouch claimed that’ she

indeed wanted him to actively’ share

parenting with her. Only after further

assurances about this from Ms. Crouch,

Gid Kevin McIntyre, im December 1965,

agree to have a child with Ms. Crouch.

Ms. Crouch stated that it was

important to her that her child have a

father who would be active in its life

and that was why she had chosen Mr.

McIntyre to father her child. Over the

next several weeks they continued to

discuss their parenting. They discussed

and agreed on issues including

amniocentesis during pregnancy, the

child's religion, baptism, schooling in

public schools, discipline. They

8

specifically discussed how important it

would be for the child to have Mr.

McIntyre's male influence in its life and

to be able to share the _ broadening

experiences of travel which Mr. McIntyre

could provide.

The parties agreed that they would

share specific events in the child's life

such as the determination of pregnancy,

recognition of fetal heartbeat, estimated

date of delivery, the delivery of the

child, participation in choosing’ the

child's name, seeing the child take its

first steps and hearing the child's first

words. They agreed that Mr. McIntyre

would have visitation with their child

one weekend each month and for. six

consecutive weeks each summer.

Arter all these things were

discussed and agreed upon, the parties

agreed to and did get together’ on

February 16, 1986, in Oregon to attempt

a o

9

conception. In reliance on his agreement

with Ms. Crouch, Kevin McIntyre placed

his semen in a jar from which Ms. Crouch

then inseminated herself. There was no

doctor, sperm bank or health professional

involved in the insemination.

In March, Ms. Crouch informed Mr.

McIntyre that she ake pregnant with his

chiid. Later, when the child's sex was

determined, she sent him a banner printed

with “It's a -9g2rii” The parties met

again in Oregon in May prior to Mr.

McIntyre leaving a a trip to Europe.

They talked of some day traveling

together with their daughter in Europe.

The parties again met in August,

1986 and attempted, without success, to

agree on a eee for their daughter. Ms.

Crouch told Mr. McIntyre that he should

obtain a bassinet, car seat, clothing and

diapers for their daughter's use when she

was with him in California. Mr.

10

McIntyre's mother gave him a changing

table and clothes for his daughter's use.

She also sent other items for her future

granddaughter to Ms. Crouch. At least

through August, 1986, Ms. Crouch told

triends that Mr. McIntyre was to have

frequent visitation with their daughter

including alternating holidays, birthdays

and vacations.

After August, Ms. Crouch's attitude

toward Mr. McIntyre's parenting soured.

Ms. Crouch gave birth to the parties'

daughter on November 24, 1986. Mr.

McIntyre learned of his daughter's birth

from Ms. Crouch's parents. Since his

daughter's birth, Mr. McIntyre has been

denied any contact with her.

Kevin McIntyre filed his filiation

petition in February 1987.

REASONS FOR DENYING CERTIORARI

i The State Court's Judgment Is Not

Final.

————

11

The Oregon Court of Appeals

reverrsed the trial court's grant of

summary judgment and remanded for trial.

As a general rule, a estate court's

judgment that contemplates further

proceedings, as this judgment does, is

not final for the purposes of 28 U.S.C.

section 1257 (3) (1982). See Cox

Broadcasting v. Cohn, 420 U.S. 469,

479-85 (1975). Nor does this case appear

to fall within any of the exceptions to

the rule idenitified in Cox Broadcasting.

This is not a case in which the

outcome of further state proceedings is

preordained. Cox Broadcastin v. Cohn,

supra, 420 U.S. at 480. The trial court

has yet to determine the factual issues

of whether there was agreement between

the parties as to Mr. McIntyre's parental

rights, whether there was reliance on

that agreement, as well as what parental

12

rights and responsibilities, if any, Mr.

McIntyre has to his daughter.

This is not a case in which the

federal due process issue will remain

regardless of the outcome of the trial on

remand. See Id. at 479. If at trial

Respondent is unable to prove’ the

agreement, he will have had his due

process and could not appeal that issue,

while Petitioner would have no cause to

appeal the due process Setaraiablada.

This is not a case where the federal

issue will necessarily be mooted on

remand. Id. at 481. If the trial court

finds that the agreement or reliance is

less than what the Respondent had

alleged, doubt may exist as to whether

the Oregon Court of Appeals' test has

been met, thus occasioning further appeal

on the due process issue.

Finally, this is not a case in which

the failure to grant review immediately

———————————————ao

13

would seriously erode federal policy.

See Id. at 482-83.

Rather, this case is more like

Minnick Vv. California Dept. of

Corrections, 452 U.S. 105 (1981). There,

this Court found that the substantial

questions of fact remaining even after an

initial trial, required that remand to

the trial court proceed before this Court

would entertain review.

II. There Is No Conflict with Other

States or Circuits. Petitioner has

cited no decision of any state or circuit

which is in conflict with the Oregon

Court of Appeals decision in this case.

Respondent is aware of only three cases

at all similar to the case at bar. th

each case, the Court ruled that the

father was entitled to a hearing to

establish his parental rights. In no

case did the court have to reach the

question of whether a state could

14

constitutionally eliminate a donor's

parental rights to his child created by

artificial insemination. In those cases

involving a statute which purported to

limit the rights of the donor, the courts

construed the statute to be inapplicable.

In the case most simiiar to the case

at bar, In Interest of R.C., 775 P.2d 27

(Colo. 1989), the Colorado Supreme Court

held that that state's artificial

insemination statute did not apply to

known semen donors and unmarried

recipients who agree that the donor will

be treated as the child's father. The

Court noted that a number of commentators

have concluded that the intent of the

known donor and the unmarried recipient

is relevant to a determination of

parental rights.¢ The court also

2sSee Andrews, Legal Aspects of New

15

reviewed the two cases cited below and

Reproductive Technologies, 29 Clinical

Obstetrics & Gynecology 190, 200 (1986)

(as artificial insemination laws evolve,

they "should take the approach of

allowing the parties' preconception

intent to govern paternity"); Kern &

Ridolfi, The Fourteenth Amendment's

Protection of a Woman's Right To Be a

Single Parent ‘through Artificial

Insemination by Donor, 7 Women's Rts. L.

Rep. 251, 256 (1982) (if custody suit

between unmarried recipient and known

donor were to arise, "the court may view

the expectations (or intent) of the

parties as relevant"); Vetri,

Reproductive Technologies and United

States Law, 37 Int'l & Comp.L.\¥. 505,514

(1988) ("We use the intent of the parties

when the woman is married in determining

parental responsibilities, and should do

so in the rare cases when the woman is

unmarried."); Note, Artificial

Insemination: Donor Rights in Situations

Involving Unmarried Recipients, 26

J.Fam.L. 793, 806 (1988) (in situations

where a known donor is involved with an

unmarried recipient, a court will

consider the familial expectations" of

the donor "with the intention of the

donor toward the resulting child at the

time ot insemination being a key

factor"); Andrews, Legal Aspects of

Assisted Reproduction, 54 Annals

N.Y.Acad.Sci. 668, 674 (1988) (in thirty

states by statute and in many other

countries, "the preconception intent of

the parties [in artificial insemination

16

concluded, "the result is inescapable

that intent of the parties was a relevant

consideration in determining whether the

known donor's parental rights were

extinguished." Id. at 34. Accordingly,

the Court held,

Where ... the unmarried recipient

and the known donor at the time of

insemination agree that the _ the

donor will be the natural father and

act accordingly based on an express

understanding that he will be

treated as the father of any child

sO conceived, we concur with the

commentators, as well as the Jhordan

C. and C.M. courts, that agreement

and subsequent conduct are relevant

to preserving the donor's parental

rights despite the existence of the

statute. Id. at 35.

Jhordan C. v. Mary K., 224 Cal.Rptr.

530, 179 Cal. App. 3rd 386 (1986), also

involved a known donor of semen to an

unmarried woman. The California court

construed that state's artificial

cases] governs who are the legal parents

atter the child is born").

17

insemination statute to not apply to

pueiidadnaen which did not involve a

physician. Hence, the court held that

the donor-father was not precluded from

pursuing a paternity action and was

entitled to visitation rights to his

child.

In C.M. v. C.C., 152 N.J. Super. 160,

377 A.2d 821 (1977), the New Jersey Court

held that a father is no less so because

his child is created by artificial

insemination of his sperm rather than by

intercourse. New Jersey had no

artificial insemination statute in effect

at the time. The parents had known each

other for some time and were

contemplating marriage. There had been

no agreement about parental rights. The

court found particularly significant the

facts that the child had "no one else who

was in a position to assume the

responsibilities of fatherhood when the

18

child was conceived" and that the donor

"fully intended to assume the

responsibilities of parenthood” at the

time of insemination. Id. at 165-67, 377

A.2d at 824.

III. The Case Was Correctly Decided and

Is Consistent with this Court's

Prior Decisions.

The Oregon Court of Appeals

correctly held that Respondent has a

liberty interest deserving of

constitutional protection under the

Fourteenth Amendment. The parent-child

relationship has been acknowledged to be

a liberty interest subject to

constitutional protection since Meyer v.

Nebraska, 262 US 390, 399, 67 L Ed 1042,

43 S Ct 625, 29 ALR 1446 (1923). Its

protection has continued over the years

in such decisions as Skinner v. Oklahoma,

316 US 535, 541, 86 L Ed 1655, 62 S Ct

1110 (1942), and Prince v. Massachusetts,

19

321 US 158, 166, 88 L Ed 645, 64 S Ct 438

(1944). An unwed father was found to

have a liberty interest in his

relationship to his children in Stanley

v. Illinois, 405 US 645, 31 L Ed 2d 551,

92 S Ct 1208 (1972), where this Court

held that to automatically remove custody

from an unwed father upon the death of

the mother, without notice and a hearing

on fitness, created an unconstitutional

presumption that all unwed fathers are

unfit parents.

While Stanley, supra., considered the

father's rights versus the rights of the

state, each of this Court's subsequent

cases dealing with an unwed father's

rights has involved the additional and

competing claim of the husband of the

child's mother. (In contrast, the

Petitioner here is unmarried and there is

no father figure available to the child

other than the Respondent).

20

In cases where the mother has married

subsequent to the child's birth, this

Court has found that the protection

afforded the unwed father's rights versus

the husband's rights to his’ stepchild

depends upon whether the natural father

has demonstrated a substantial

relationship to, or paternal interest in,

his child and has acted with reasonable

promptness in asserting his rights to the

child.

In Quilloin v. Walcott, 434 US 246,

54 L Ed 2d Sil, 98 S Ct 549 (1978), this

Court found that the state of Georgia had

provided the unwed father due process and

that step-parent adoption by the mother's

husband was in the best interests of the

child where the natural father had been

"afforded a full hearing on his

legitimation petition, at which he was

given the opportunity to offer evidence

on any matter he thought~ relevant,

z1

including his fitness as a parent." 434

US 246 at 253, 54 L Ed 2d 511 at 519.

The Court noted that the natural father

had not sought to legitimate the child

until after the step-father had

petitioned to adopt the then eleven year

Old child. This Court appeared to be

particularly impressed with the fact that

while Quilloin had- never sought either

physical or legal custody, the mother's

husband had been living with the child

and serving as its step-parent tor the

last nine plus years.

In Caban v. Mohammed, 441 US 380, 60

L Ed 2d 297, 99 S Ct 1760 (1979),

this Court held that New York's disparate

treatment of unwed mothers and unwed

fathers, requiring the mother's consent

while not requiring the natural father's

consent to his child's adoption by the

mother's husband and not allowing the

natural father to demonstrate his own

22

fitness as a parent, violated Fourteenth

Amendment equal protection. The

procedural due process issue was not

reached.

Lehr v. Robertson, 463 US 248, 77 L

Ed 2d 614, 103 S Ct 2985 (1983), involved

the competing claims of a steptather who

had been married to tne child's mother

for one and one-half years and the

natural father who, although he had lived

with the mother up until the child's

birth, had had almost no contact with the

child since then and had never sought

legal rights to the child until after the

step-parent adoption petition was filed.

This Court found that New York's statutes

providing advance notice of adoption

proceedings to persons who list their

names on ae putative father registry

satisfied due process where the natural

father had never listed himself with the

registry and never sought legal rights to

43

the child until after she was two years

Old. The Court stated that when an unwed

father demonstrates a full commitment to

the responsibilities of parenthood by

"coming forward to participate in the

rearing of his child" Caban, 441 US, at

aaa; Gs 7, ve | Ct, .et€ 2766, om. 7; hike

interest in personal contact with his

child acquires substantial protection

under the Due Process Clause. At that

point it may be said that he "acts as a

father toward his children." Id., at 389,

ne J, 99.8 Ct, at 1766, a. 7.

Essentially, this Court found that

now York had adequately protected Mr.

Lehr's opportunity to form such a

protected relationship with his child but

that Mr. Lehr had not taken advantage of

that opportunity. ;

In contrast, the Oregon Court of

Appeals in McIntyre correctly found that

Kevin Mcintyre had "grasped the

24

Opportunity” to “participate in the

rearing of his child" as indeed he has

done everything he could do to be

involved with the rearing of the child.

Even before the child's birth, Mr.

McIntyre exercised his parental rights

when he discussed and reached agreement

with Ms. Crouch on various aspects of how

the child was to be reared, including

such matters as religion, education and

discipline. This Court has found such

parental decisions themselves to _ be

liberty interests subject to

constitutional protection in Meyer vv.

Nebraska, supra. and Pierce v. Society of

Sisters, 268 US 510, 45 S Ct 571, 69 L Ed

1070 (1925). When Ms. Crouch then denied

Mr. McIntyre contact with his child after

her birth, Mr. pwicintyre promptiy filed

this paternity suit to obtain visitation.

By so doing, he has taken advantage of

the only procedure the state has to

25

enable him to develop his relationship

with his daughter.

Yet Ms. Crouch now argues” that

because Mr. McIntyre has not done more--

such as live with the child for a period

of years as had the father in Stanley,

Supra. -- Mr. McIntyre now should have no

liberty interest or other rights to his

child. Ms. Crouch ignores the fact that

it is only because she has refused Mr.

McIntyre further contact with his child

that he has not further developed his

relationship with his daughter.

In essence, Ms. Crouch's argument is

that because she has_ prevented Mr.

McIntyre from visiting his daughter, he

is not entitled to a hearing on his legal

rights to visitation. Such "might makes

right” conduct does not square with the

Due Process Clause of the Fourteenth

Amendment.

26

Petitioner argues that the Oregon

Court of Appeals has misread Lehr vv.

Robertson, 463 US 248, 77 L Ed 2d 614,

103 S Ct 2985 (1983) and implies that Mr.

Lehr had a more substantial relationship

than that involved in McIntyre and that

Lehr lost because he had not had a more

lengthy relationship with the child. In

fact, this Court's decision not to upset

the court-ordered step-parent adoption

was based on a finding that Lehr hada

failed to record his name and address

with the putative father registry, and

that it was because of his failure to do

so that he did not enjoy the due process

notice and hearing which were available

to him. It appeared important to this

Court that Lehr had waited for more than

two years after the child's birth to file

his paternity petition. In summary, Lehr

involved a competing stepfather whc had

legally adopted the child, a delay of

ee

27

over two years in the biological father's

filing of his paternity petition and a

failure to utilize the procedures

available to provide him with notice and

Opportunity to be heard. In contrast,

Kevin McIntyre is the only available

father for his child, no other court

proceedings have occurred regarding the

child, the mother has never’ married

anyone and Mr. McIntyre promptly filed

his paternity petition within sixty days

of his daughter's birth.

Petitioner also argues that this

Court's recent decision in Michael H. v.

Gerald D, 491 US _, 109 S Ct 2333, 105 L

Ed 2d 91, 51 LW 4691 (1989) would require

that Respondent be found to have no

liberty interest entitled to Fourteenth

Amendment protection. Petitioner

33t must be noted that the plurality

28

acknowledged, at footnote 1 of her

petition for review by the Oregon Supreme

Court, that the decision is "fact based".

Indeed, the peculiar and “extraordinary"

fact that the child was born to a married

woman living with her non-impotent

husband dictated the decision in that

case. The California Court of Appeals

below had held it “a matter of overriding

opinion's method of analysing a liberty

interest was the opinion of Justices

Scalia and Rhenquist only. The other

justices specifically did not agree with

the analysis employed in the plurality

Opinion. As Justice Brennan's dissenting

Opinion points out, four justices agreed

that the natural father there had a

liberty interest and a fifth justice

assumed such a liberty interest for the

purpose of the case. Further, Justice

Brennan notes, five justices of the Court

agreed "that the flaw inhering in a

conclusive presumption that terminates a

constitutionally protected interest

without any hearing whatsoever is, a

procedural one." 105 L.Ed.2d at 114.

(emphasis supplied).

ee

29

social policy” that the mother's husband

would be deemed the child's father. So

too, a plurality of this Court held

"Where, however, the child is born into

an extant marital family, the natural

father's unique opportunity conflicts

with the similarly unique opportunity of

the husband of the marriage; and it is

not unconstitutional for the State to

give categorical preference to the

latter."4 105 L Ed 24 at 109. It would

appear that the precedential value

Michael H. v. Gerald D., supra, is

limited to children conceived and born to

women while they were living with their

non-impotent husbands.

4 still, Justice Brennan notes that

"Five Members of the Court refuse to

foreclose 'the possibility that a natural

father might ever have a constitutionally

protected interest in his’ relationship

with a child whose mother was married to

and cohabiting with another man at the

30

In summary, each of this Court's

decisions relating to unwed fathers since

Stanley, supra, have involved a mother's

husband's claim of paternal rights in

competition with the natural father's

claim. With the sole exception of

Michael _ H. v_ Gerald D., supra, which

involved a chiid born into an extant

marriage, in each case where the natural

father has demonstrated a significant

paternal interest and has acted promptly

to develop and protect that interest, the

natural father has been successful in

preserving his parental rights. Where

the natural father has failed to exercise

and act quickly to protect his rights he

has lost those rights to the mother's

husband who had developed a defacto

time of the child's conception and

birth.*” 105 L.Bd.2d at 114.

31

parent-child relationship and who had

legally formalized the relationship.

None of this Court's decisions is in

conflict with the Oregon Court of Appeals

decision in McIntyre.

IV. This Case Is Unlikely to Recur.

As the above recitation of facts

should make clear, this is a fairly

unique case which is not likely to occur

again. The Court ot Appeals decision is

narrowly tailored to the facts of this

particular case and is dependent upon Mr.

McIntyre proving on remand that’ the

parties specifically agreed to- share

parenting rights and responsibilities to

the child they were about to create by

artificial insemination and that’ the

insemination was in reliance on that

agreement. The decision will affect few

other parent child relationships.

The decision will have no affect on

32

anonymous donor inseminations which

comprise the great bulk of

inseminations.° Neither will the

decision affect non-anonymous

inseminations where there was no

preinsemination agreement that the father

would have parental rights. The Oregon

Court of Appeals decision simply allows

Kevin McIntyre to establish and enforce

his agreement with Ms. Crouch. The

*while it has been estimated that

there may be as many as 20,000 women

artificially inseminated annually in the

United States (note, Reproductive

Technology and the Procreation Rights of

the Unmarriea (1985) 98 Harv.L.Rev. 669,

fn.1.), only some 1509 of these women are

unmarried. (Donovan, The Uniform

Parentage Act and Nonmarital

Motherhood-by-Choice (1982-83) 11

N.Y.U.Rev. of Law & Soc. Change 193,

195.) Presumably, the great majority of

these are anonymous inseminations

involving doctors and sperm banks. And

only some, presumably small, percentage

of these nonanonymous inseminations

involve any agreement that the donor is

to retain parental rights to the

offspring.

33

decision will not adversely affect other

parent child relationships.

V. Or.Rev.Stat. 109.119 Does Not

Provide Respondent Due Process.

Petitioner argues that due process

is afforded Respondent by Or.Rev.Stat.

109.119. This statute is designed to

provide protections to "a foster parent,

stepparent, grandparent" or other

relative who lived with the child.

Reading the full statute it is clear that

it is not’ relevant to this’ case.

Or.Rev.Stat. 109.119(4) clarifies that

the "child-parent relationship” which the

statute concerns applies only to persons

who have had physical custody of or

6

resided with the child. In addition, it

Sor. Rev.Stat. 109.119 (4) provides:

"As used in this section 'child-parent

relationship’ means a relationship that

exists or did exist, in whole or in part,

within the six months’ preceding the

34

should be noted that the Petitioner

failed to raise Or.kev.Stat. 109.119

either at trial or on appeal. It was

first raised on her Petition for keview

to the Oregon Supreme Court. MThat Court

denied its discretionary review.

As Or.Rev.Stat. 109.119 does not

apply to Respondent, it could not be

construed to provide him with Due

Process.

filing of an action under this section,

and in which relationship a person having

custody of a child or residing in the

same household as the child supplied, or

otherwise made available to the child,

food, clothing, shelter and incidental

necessaries and provided the child with

necessary care, education and discipline,

and which relationship continued on a

day-to-day basis, through interaction,

companionship, interplay and mutuality,

that fulfilled the child's psychological

needs for a parent as well as the child's

physical needs. However, a relationship

between a child and a person who is the

foster parent of the child is not a

child-parent relationship under this

section unless the relationship continued

over a period exceeding three years."

a5

CONCLUSION

The Oregon Court of Appeals

correctly decided McIntyre v. Crouch,

Supra. The decision is consistent with

the reported decisions of other states

and of this Court. The Court of Appeals

decision turns on-— and is narrowly

tailored to the particular facts involved

and will affect few other litigants.

Further, the state court decision is not

final and this Court lacks jurisdiction.

In short, there is no reason for the

Supreme Court of the United States to

review this case.

March 29, 1990 Respectfully submitted,

Pow Fs , en

Ronald Alfred Fontana

OSB 76137

Attorney for Respondent

P O Box 12253

Portland, OR 97212-0253

Tel. (503) 223-1390