# Opposition Brief — Crouch v. McIntyre

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 495 U.S. 905

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1197%3A2. Public record. Not legal advice.