No. 33 November 28, 2023 573

33371 Or Sause and Schnitzer 2023 November 28, 2023

IN THE SUPREME COURT OF THE 

STATE OF OREGON

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

a Minor Child.

Cory Noel SAUSE,

Petitioner on Review,

and

Jordan Director SCHNITZER,

Respondent on Review.

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

a Minor Child.

Jordan Director SCHNITZER,

Respondent on Review,

and

Cassondra Lynn GIBEAUT

and Charles Burett Gibeaut,

Petitioners below,

and

Cory Noel SAUSE,

Petitioner on Review,

and

Dale C. SAUSE 

and Heidi N. Sause

Respondents below.

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

On review from the Court of Appeals.*

Argued and submitted May 3, 2022.

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

Portland, argued the cause and filed the briefs for petitioner 

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

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

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

______________

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

Judge. 312 Or App 71, 493 P3d 1071 (2021).
574 Sause and Schnitzer

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

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

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

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

Academy of Adoption and Assisted Reproduction Attorneys, 

RESOLVE: The National Infertility Association, and The 

American Society for Reproductive Medicine.

Before Flynn, Chief Justice, and Duncan, Garrett, Bushong,

and James, Justices, and Linder and Balmer, Senior Judges, 

Justices pro tempore.**

BALMER, S.J.

The decision of the Court of Appeals is affirmed in part 

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

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

further proceedings.

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

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

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

______________

** Walters, J., retired December 31, 2022, and did not participate in the decision 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 conceived 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, disagreed 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 nonparental rights with respect to S. The extent of those rights 

is an issue that the trial court did not reach due to its conclusion that Sause was a parent. 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 nonparental rights with 

respect to S.

I. BACKGROUND

The trial court’s express findings of fact are undisputed 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 surrogacy. 

See ORS 109.239(1). ART treatments are relatively common: 

In Oregon in 2020, 804 infants (1.9 percent of those born that 

year) had been conceived using ART. Sunderam et al, StateSpecific Assisted Reproductive Technology Surveillance, 

United States: 2020 Data Brief 9, 13 (Centers for Disease 

Control and Prevention, U.S. Dept. of Health and Human 

Services, ed., 2022). ART is often used by families experiencing infertility, people with inheritable genetic diseases, single parents, and members of the LGBTQ community, among others. See Myrisha S. Lewis, Normalizing 

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

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

Families Formed Through Assisted Reproductive Technology: 

Causes, Experiences, and Consequences in an International 

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

Reproduction through ART often involves many parties, 

potentially including sperm or egg donors, a gestational/

traditional surrogate and their spouse, the child or children, 

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

along with various institutions and medical professionals. 

See Ayesha Rasheed, Confronting Problematic Legal Fictions 

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

183-84 (2021).

Schnitzer first tried to use ART in 2013 and 2014, 

using an anonymous egg donor, his own sperm, and a gestational 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 preservation 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 anonymous egg donor, Schnitzer and Sause discussed the possibility of Schnitzer using Sause’s eggs rather than those of 

an anonymous donor. Schnitzer said that he would only consider 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 discussions, 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 influence 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[ificate] 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 anything 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 confirms 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 communication 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 adoptions 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 produced from an embryo may be introduced to Schnitzer or 

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

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

child, Schnitzer and/or Sause (and their respective families), 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 regarding 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 omission 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 created 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 husband. 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 continue in a long-term romantic relationship.” Schnitzer, however, 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 not yet 
582 Sause and Schnitzer

told his daughters that he was having another child through 

ART.

When Sause learned that Schnitzer planned to leave 

S with the gestational carrier for a time, Sause mistakenly 

interpreted that conduct as Schnitzer stepping away from or 

abandoning S. Sause sent a series of hostile text messages 

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

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

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

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

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

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

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

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

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

receiving those messages, Schnitzer decided to cut Sause 

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

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

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

and that “he might one day introduce them to S as godparents.” 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 parties “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 parent. See ORS 432.245.

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

March 3, 2016, Sause retained counsel and moved to intervene in the case. Sause alleged that she was the “biological 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 concluding 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, alternatively, 
584 Sause and Schnitzer

a declaratory judgment establishing that she is S’s parent 

alongside Schnitzer, and that she has parental rights with 

respect to S. Sause v. Schnitzer, Case No. 16DR18690. Sause 

alleged that she “is the mother” of S, and “has and continues 

to agree to assume all rights and obligations with respect

to the child.” Along with a determination that she is S’s 

mother, Sause requested an order to amend or replace S’s 

birth certificate, and an order providing her with parenting 

time.

Schnitzer answered that petition and simultaneously filed a petition (together with the gestational surrogate 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 contrary.” 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 knowingly waived them. The petition sought a declaration that 

Sause was an egg donor with no parental rights or responsibilities, 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 multiple 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 contended, 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 certificate” 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” framework (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 connection 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 relationship 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 arguing 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 precedent, “parental rights arise from a showing of a biological connection, plus something else,” namely, “grasping an 

opportunity to develop a relationship with his or her offspring, 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 relationship” with S.

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

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

right to relief. The court narrowed the legal question to 

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

undisputed—Sause had “made a prima facie case that she 
Cite as 371 Or 573 (2023) 587

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

to grasp the opportunity to participate in the rearing of 

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

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

namely, whether Sause had demonstrated that she was an 

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

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

reproductive technology and the legal world,” and instead 

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

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

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

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

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

of “grasping” that the court was applying. The court therefore 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 concluded 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, voluntary and intelligent.” The trial court granted Sause’s petition for declaratory judgment and declared her to be a parent 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 connection 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 responsibility 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 responsibility 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 involving ART, and become effective during the trial court proceedings; under those new and amended statutes, according to Judge Mooney, Sause had no parental rights as to S. 

Sause, 312 Or App at 109-10 (Mooney, J., specially concurring). SB 512 became effective on January 1, 2018, which was 

after the trial court signed its judgment on December 21,

2017, but before that judgment was entered in the dockets 

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

The concurrence observed that judgments become effective 

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

SB 512 governed this case. (The lead opinion disagreed that 
Cite as 371 Or 573 (2023) 589

SB 512 applied, briefly observing that “it was understood 

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

in this case.” Sause, 312 Or App at 86 n 9.) Under SB 512, 

Judge Mooney concluded, Sause had “‘no right, obligation 

or interest with respect to’” S. Id. at 106 (Mooney, J., concurring) (quoting SB 512, as codified at ORS 109.239(2)(a)).

With respect to the federal constitutional issue, the concurring 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 dispute and, for the reasons explained below, conclude that it 

does not. SB 512 applies to “establishments and disestablishments 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 dispute. 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 appellate 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 particular case; how the error came to the court’s attention; 

and whether the policies behind the general rule requiring preservation of error have been served in the case in 

another way, i.e., whether the trial court was, in some manner, 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 reconsider 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 policies 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 parentage 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 guardian 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 relationships, 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 persisted. See Thom, 257 Or at 580-84 (tracing parentage statutes from common law to 1957). In 1957, the legislature 

enacted ORS 109.070, which created a conclusive presumption 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 presumption 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 person 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 consent to the challenge,” ORS 109.070(2).

As the marital presumption has shifted, the reliance 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 statutes reflect an implicit assumption that, absent an adoption, 

additional proceeding, or other operation of law, the person 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 children 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 biological 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 paternity, 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 authorized courts to use blood types to determine “the possibility 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] disputable 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 parentage 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 anonymous, 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 legislation 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 entitled 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 presumption of paternity based on blood tests; and ORS 107.101(1), 

which establishes Oregon’s policy to “[a]ssure minor children of frequent and continuing contact with parents who 

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

child.”

Starting with ORS 107.101(1), Sause argues that 

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

to ensure that she has “frequent and continuing contact”

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

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

the law’s historical misogyny and discrimination against women. 371 Or at 616 

(Bushong, J., dissenting). It then focuses on what it calls the “equality principle” 

reflected in ORS 109.030 (2015), amended by Or Laws 2017, ch 651, § 50, which 

provides that the “rights and responsibilities of the parents, in the absence of 

misconduct, are equal, and the mother is as fully entitled to the custody and control of the children and their earnings as the father.” 371 Or at 620. 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 position, ORS 109.030 (2015) plays 

no role here because, by its terms, it applies to “the rights and responsibilities 

of the parents,” which necessarily means “legal” parents, and thus assumes the 

proposition which the dissent seeks to establish by citing the statute. (Emphasis 

added.)
596 Sause and Schnitzer

with S. But that argument fails because that statute applies 

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

conclusion that Sause seeks to reach. If Sause were a legal 

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

ensure contact between her and S. But ORS 107.101(1) does 

not provide an independent basis for determining parentage.

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

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

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

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

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

Sause’s claim here.

Sause’s argument based on ORS 109.258 has more 

traction, however. ORS 109.258 provides, in full:

“A disputable presumption of paternity is created if one 

or more blood tests result in a cumulative paternity index 

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

the conclusions of all the experts, as disclosed by the 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.”

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 reasons that we will explain, we agree with both of those arguments. 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 citizen 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 undisputed, 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 determination 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 intermediate scrutiny required for a constitutional distinction based 

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

Assuming without deciding that ORS 109.258 applies

equally to women as it does to men, we are not persuaded 

that ORS 109.258 requires a presumption of legal parentage 

in cases involving ART where genetic paternity or maternity 

is undisputed. Instead, ORS 109.258 was enacted to help 

resolve evidentiary disputes over the efficacy of blood tests 

in identifying putative fathers. See Or Laws 1999, ch 80, § 27 

(adding the 99 percent threshold as part of an act “[r]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 presumption 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 gametes 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 created 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 contemplates, there must be an adjudication or other proceeding. See ORS 109.258 (putting the question to “the court or 

administrator”); see also ORS 109.065 (stating that parentage may be established by “an adjudication of the person’s 

maternity or paternity” (emphasis added)). In that adjudication, the court can determine whether the putative parent’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 parent 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 foreclosed 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 “primary weight to the text and context of the disputed statutory terms,” because “there is no more persuasive evidence 

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

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

parentage claim in this case.” 371 Or at 623-24 (Bushong, J., dissenting) (emphasis in original). Under our interpretation of that statute as not applying when 

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

ORS 109.239.
Cite as 371 Or 573 (2023) 599

of the intent of the legislature than the words by which 

the legislature undertook to give expression to its wishes.” 

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

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

legislative history for what it may be worth in a particular 

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

99 (2022).

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

quoted in part above, which provides, in full:

“If the donor of semen used in artificial insemination is 

not the mother’s husband:

“(1) Such donor shall have no right, obligation or interest with respect to a child born as a result of the artificial 

insemination; and

“(2) A child born as a result of the artificial insemination 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 definition of “donor,” but “donor” generally means “one used as a 

source of biological material,” for example, “a donor of a tissue 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 instruments 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 meaning of “donor.” The text does not specify that donors can be 

only either “anonymous” or “known.” Instead, the first portion 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” encompasses 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 insemination.” 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 donation, 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 contributed 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 establish 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 artificial 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 introductory 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 physician 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 program 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, nondirected 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 anonymous 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 situations 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 children 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 individual who is a source of biological material, or an individual 

from whom blood, tissue, or an organ is taken for transplantation. “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 connection 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 gestational 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 pursuant 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 insemination 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) (upholding agreement regarding the disposition of embryos created 

through IVF, as established “at the time that they underwent the IVF process”).

Oregon statutes do not expressly address the 

enforceability of ART contracts, but several of them reinforce 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 pursuant 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 policy 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 create stable and predictable family structures involving both 

parents and children. See ORS 109.070 (creating a rebuttable 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 maintenance, 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 gamete 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 responsibilities. 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, policies, 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 implications 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 provides 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 relationship 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 conception 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 “parenting 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 authority 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 liberty 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 participate in the rearing of his child, his interest in personal contact 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 parentage. As Sause’s brief puts it, “[t]he Lehr standard was established by the U.S. Supreme Court for application in circumstances 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 omitted)). 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 determines the final outcome.” Id. at 256. This case is in that vast 

majority.8

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

parental interest under state law and the Due Process Clause based on Lehr. 371 

Or at 641, 649 (Linder, S.J., dissenting). Given our conclusion that Sause does not 

have a protected interest under state law, we do not reach the federal issue.

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

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

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

opinion and dissent] rely for the ‘right to grasp’ for parental rights do not concern ART. They concern children conceived through sexual intercourse, and they 

are distinguishable for that reason.” Sause, 312 Or App at 110 (Mooney, J., specially concurring). The concurrence suggested that the law provides a rebuttable 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 generally 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 regarding 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 agreement 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 relationship 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 arguments 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 parent 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 arguments, 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 relationships among Sause, Schnitzer, and S was at issue in the 

trial court and in the background throughout these proceedings, and we turn to that agreement now.

Neither party argues that the Nudelman agreement affirmatively establishes Sause’s claim of legal parentage 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 additional 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 limits whatever 

rights she may have.” In other words, although Schnitzer 

argued that Sause had no rights with respect to S, parental 

or otherwise, he recognized that the Nudelman agreement 

was relevant to determining those rights.

In the Court of Appeals, Schnitzer shifted his position 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 question 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, indicating 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 litigate the extent to which the Nudelman agreement, or any 

other agreement between the parties, affirmatively establishes any nonparental rights that Sause may have with 

respect to S.

Whether a gamete donor like Sause can seek limited 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 gamete donors for the sake of determining parentage or nonparental, 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 recognizing 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 permit continuing contact between the birth relative and the 

child under ORS 109.268(2), for example, an intended parent and a known gamete donor in an ART context presumably may enter into a written agreement for potential contact 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 contract, but the standard for doing it is strict. Public policy is 

‘a very unruly horse,’ and a court will not override contracting 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 determine 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 person to ‘contract into’ parental rights without going through 

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

Or at 639, 640-41 (Bushong, J., dissenting). It then states 

that, if Schnitzer can become a parent through a contract—

and not based on his genetic connection to S—then Sause 

can as well. 371 Or at 640 (Bushong, J., dissenting). We 

disagree. First, Schnitzer’s parentage is not at issue in 

this case. No one disputes that he is a legal parent of S, 

based on his surrogacy agreement and the stipulated 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 written agreement related to S, and Sause may have enforceable, 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 “contract into” legally cognizable parental rights, then Sause can, too, under the 

“equality principle.” 371 Or at 638 (Bushong, J., dissenting). That is incorrect. 

Among other factual and legal differences in their circumstances, discussed 

above, Schnitzer had a surrogacy contract with S’s legal parents at birth (the 

gestational carrier and her husband) consenting to Schnitzer’s intended parentage, while Sause did not. Thus, Schnitzer was able to challenge the legal parents’ 

parentage under ORS 109.070(2)—which provides that the parentage of a birth 

mother and her spouse “may not be challenged by a person other than a spouse as 

long as the spouses are married and are cohabitating, unless both spouses consent 

to the challenge” (emphasis added)—and obtain a declaratory judgment 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 statements about Oregon parentage law, including that there can be no contractual 

basis for parentage except through adoption and that “[c]ontracts in this context 

can terminate parental rights arising from other presumptions of parentage, but 

they cannot create parental rights on their own.” 371 Or at 638 (Bushong, J., 
Cite as 371 Or 573 (2023) 613

E. Attorney Fees

We briefly turn to the question of attorney fees. 

Schnitzer was awarded attorney fees on appeal, and Sause 

now challenges that award. Sause did not, however, raise 

that issue in her petition for review, nor did she amend her 

petition for review to include that issue after the Court 

of Appeals had awarded Schnitzer attorney fees, so it is 

not before this court. See ORAP 9.20(2) (“[T]he questions 

before the Supreme Court include all questions properly 

before the Court of Appeals that the petition or the response 

claims were erroneously decided by that court.” (Emphasis 

added.)); see also ORAP 9.17(2)(b)(i) (“[T]he brief [on the 

merits on review] may not raise additional questions or 

change the substance of the questions already presented 

[in the petition for review].”); Parrott v. Carr Chevrolet, Inc., 

331 Or 537, 541 n 3, 17 P3d 473 (2001) (relying on ORAP 

9.17(2)(b)(i) and ORAP 9.20(2) to decline consideration of 

the defendant’s request to reverse an award of attorney fees 

that the defendant had made in its brief on the merits, but 

not in its petition for review). And, “[a]lthough this court 

has discretion to consider ‘other issues that were before the 

Court of Appeals,’” we decline to do so here. Miller v. City of 

Portland, 356 Or 402, 410 n 4, 338 P3d 685 (2014) (quoting 

ORAP 9.20(2)).

III. CONCLUSION

Schnitzer wanted to have a son through ART, and 

Sause gave Schnitzer her eggs to support that process. As 

explained above, in these circumstances, Sause’s genetic 

link to S does not make her his legal parent. At the same 

time, both she and Schnitzer hoped that she would play 

some role in S’s life, and agreements between them provide 

a basis for Sause to seek to prove those contractual rights. 

We therefore reverse the judgment of the trial court and 

remand for further proceedings in that court to declare the 

legal parentage of S and to determine the extent of Sause’s 

contractual, nonparental rights, if any, with respect to S.

dissenting) (emphases in original). Those statements are offered without citation 

to case law or statute, and may well be at odds with the understanding of many 

of those involved in the ART process.
614 Sause and Schnitzer

The decision of the Court of Appeals is affirmed in 

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

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

further proceedings.

BUSHONG, J., dissenting.

Petitioner Sause contributed eggs that were fertilized through in vitro fertilization (IVF) with sperm supplied 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 biological 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 husband, 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 conclusion 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 consent forms that Sause signed as part of the assisted reproductive 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 parent. But, in my view, that link does give rise to a parental 

interest that has legal significance under Oregon parentage 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 historical evolution, as the majority opinion has done. However, 

the majority opinion’s historical overview is incomplete.

What is missing from the majority opinion’s overview 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 opinion 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 forbidding 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 * ** represented not only the state’s best guess as to the father of a 

married woman’s child but also the state’s normative preference. 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 marriage, * ** 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 presumption “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 husbands 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 inequality 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 parents, in the absence of misconduct, shall be equal, and the 

mother shall be as fully entitled to the custody and control 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 testamentary guardian, the statute did give mothers “equality of 

rights as to the custody of the children.” The “equality principle” 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 paternity based on a man’s actual and acknowledged genetic connection with a child. In 1953, Oregon enacted the “Uniform 

Act on Blood Tests to Determine Paternity” (the 1953 Act). 

Or Laws 1953, ch 628. The 1953 Act authorized courts to 

use blood types to determine “the possibility of the alleged 

father’s paternity[.]” Id. § 4.2 That provision, which is codified 

2 The 1953 Act provided, in part:

“Section 1. In a civil action under title 28, chapter 9, O.C.L.A., in which 

paternity is a relevant fact, the court, upon its own initiative or upon suggestion 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 proceedings unduly, shall order the mother, child and alleged father to submit to 

blood tests. If any party refuses to submit to such tests, the court may resolve 
618 Sause and Schnitzer

as ORS 109.258, establishes a “disputable presumption 

of paternity” if blood or DNA testing shows a genetic link 

between the man and the child. See Or Laws 1995, ch 608, 

§ 5 (amending the definition of “blood tests” in ORS 109.251 

to include DNA testing as an approved method of determining paternity).3

In 1975, the legislature amended ORS 109.070 to 

allow the filing of a “joint declaration of paternity” supported 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 disclosed 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 evidence 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 reliability 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 challenged 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 presumption 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 marital 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 possible 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 recognized 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) (holding 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 context, 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 parentage law is the 1880 Act’s equality principle, which is currently 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 mothers 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. 371 Or at 589-91. I agree with that 

conclusion.
Cite as 371 Or 573 (2023) 621

parentage law, though it has not always been conclusive. 

Before the conclusive marital presumption was abolished in 

2007, it precluded a man from using blood or DNA testing 

to establish paternity over a child born to a woman married 

to a different man at the time of conception. But blood or 

DNA testing could always establish a man’s paternity over 

a child born to an unmarried woman. After the conclusive 

marital presumption was abolished in 2007, being married 

to the birth mother at the time of conception gave rise to a 

rebuttable presumption of paternity; in some circumstances, 

that presumption could be rebutted by blood or DNA testing 

showing that someone else was the child’s biological father. 

See ORS 109.070(2).9 Similarly, filing a voluntary acknowledgment 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 paternity, 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 connection with the child.10 But when it became possible to fertilize a woman’s eggs through IVF and implant the resulting 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 presumption 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 filing 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 parent. See ORS 109.065(1)(c), (h). In Thom v. Bailey, 257 Or 

572, 588, 481 P2d 355 (1971), we held that the statute stating 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 establish 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 parentage 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 undisputed parent” because creating a male child through ART “was his idea, and he 

took the contractual and legal steps to accomplish that, while Sause did not.” 371 

Or at 595 n 3. But legal parentage has never depended upon “whose idea” it was to 

have a child. The only clear contractual step that Schnitzer took was his contract 

with the surrogate and her husband, which is legally insufficient to “contract 

into” parental rights, as explained below. And the only legal step that Schnitzer 

took was filing a declaratory judgment action the day after S’s birth—which did 
Cite as 371 Or 573 (2023) 623

Applying that principle to the novel circumstances 

presented here leads to the conclusion that, under Oregon 

law, Sause has a legally significant parental interest in S by 

virtue of her undisputed genetic link to S, just as Schnitzer 

has a legally significant parental interest based on his 

genetic link to S.

The majority opinion offers two reasons why a 

genetic link does not matter in this context. First, the majority opinion concludes that a genetic link established through 

blood or DNA testing, as authorized by ORS 109.258, creates an “evidentiary presumption” that does not apply 

“where genetic parentage is undisputed.” 371 Or at 597. But 

the majority opinion offers no reason why genetics should 

matter—and, in many cases, would be determinative of 

parentage—only for purposes of child support when genetic 

paternity is disputed but would be irrelevant when genetic 

parentage is undisputed. Moreover, the majority opinion’s 

reasoning overlooks the fact that a biological and genetic 

connection has always been a basis, at least presumptively, 

for parentage, even before DNA and blood testing were 

available.

Second, the majority opinion concludes that a 

genetic link is irrelevant in this context because Sause’s 

parentage claim is “foreclosed by the donor statute, ORS 

109.239 (1977),” 371 Or at 597-98, which the majority 

opinion assumes applies equally to egg donors and sperm 

donors, 371 Or at 599, 599 n 6. In reaching that conclusion, 

the majority opinion observes that a parentage claim based 

on genetics under Oregon parentage law requires “an 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 Or at 597-98 (citing ORS 

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 acknowledged under oath that 

he did not oversee the creation of the Sause-Schnitzer embryos, and that he was 

not involved in the documentation for the needed consents and directives. Patton 

further acknowledged that he was not “technically correct” in stating that the 

embryo transferred to the gestational carrier had resulted from “donor eggs.”
624 Sause and Schnitzer

109.258 and ORS 109.065). However, the majority opinion’s 

rejection of a genetic link as the basis for a legally protected 

interest in parentage cannot be based on the absence of “an 

adjudication or other proceeding,” because the trial court 

determined the validity of Sause’s parentage claim in this 

case. Rather, the majority opinion’s conclusion hinges on its 

interpretation of the donor statute, ORS 109.239 (1977).

In my view, the majority opinion has misinterpreted 

the intended scope of that statute. I turn to that issue next.

B. The majority opinion misinterprets ORS 109.239 (1977), 

Oregon’s donor statute.

The majority opinion concludes from the text and 

context of ORS 109.239 (1977) that the statute “was intended 

to apply to all those who contributed semen for use in AI” 

if they were not the mother’s husband and that the “[t]he 

available legislative history confirms that understanding.” 

371 Or at 600. I disagree. In my view, the text and context 

of the statute show that the legislation was not intended 

to apply when semen is contributed by a man selected by 

the intended parents—typically a friend, intimate 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.” 371 Or at 602. In my 

view, that conclusion is inconsistent with Oregon parentage 

law, as explained above, and is based on a misreading of the 

intended scope of the donor statute, as explained below. I 

begin with the text and context of that statute.

1. Text and context

ORS 109.239 (1977) provided:

“If the donor of semen used in artificial insemination is 

not the mother’s husband:
Cite as 371 Or 573 (2023) 625

“(1) Such donor shall have no right, obligation or interest with respect to a child born as a result of the artificial 

insemination; and

“(2) A child born as a result of the artificial insemination shall have no right, obligation or interest with respect 

to such donor.”

That statute plainly does not apply to Sause because she contributed 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 protected interest.

I have no quarrel with that application of the equality 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 reading 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 particularly, 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 legislature 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 benefitting 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 recipient 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 artificial 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 combined 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 practice 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 generally, beginning with AID in the 1940s and continuing up to the time the article 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 existence, along with nine private banks at university medical 

centers and other banks maintained by physicians in private 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 artificial 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 “aboveaverage intelligence and health” and likely to be more 

aware of the health implications of their own family histories. 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 selection of semen donors by physicians was a paramount feature; 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, consistent 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 professionals 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 reproduction 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 recipient, 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 support 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 husband, 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 husband’s infertility. The couples generally did not want the 

child, or anyone else, for that matter, to know that the husband 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 characteristics 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 legislation. 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 increasing; 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 thirdparty 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 anonymous. 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 wondered, for example, how a clinic or physician would handle a 

request by a couple who wanted a brother to be a donor. Id. 

Novy explained that “the overwhelming opinion on the part 

of the physicians and among the consumers is to preserve 

the anonymity of the donor.” Id. He urged that it “would be a 

mistake * ** to put that into the legislation because in time 

there might be particular exceptions” that should be settled 

“on an individual basis.” Id.

Frohnmayer then asked, “[U]nder the circumstances

in which you now administer the program, how many donors 

or recipients know the identity of the other?” Id. Alexander 

answered with an unqualified “[n]one.” Id. Novy then urged 

that, if the public sentiment changed so that donors would 

not be anonymous, legislation could be introduced to change 

the practice and that, until that time, it would be better 

“to go with the practice as it currently exists.” Id. Folberg 

then explained that, unlike adoptees, AID-children rarely 

even know that they were conceived through AID; the child 

comes home with the mother from the hospital, so “the question” of who is the father does not arise with family, friends, 

and others. Id. Folberg emphasized, as Novy had explained, 

that the existing practice was that physicians retained 

donor records; those records could be opened if the 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 thirdparty donors and to keep their identity confidential, which 

everyone involved “overwhelmingly” preferred. Id. The legislation was intended to address only the AID practice as 

it was being administered in the clinics at the time; those 
Cite as 371 Or 573 (2023) 633

were the only “donors” that the legislature and the bill’s 

terms contemplated. In the future, the clinics would have 

the latitude to handle requests to use family members or 

other known donors as “exceptions” and deal with them on 

an individual case-by-case basis if the practice changed. Id. 

There was no motion to amend the bill or other proposed 

change that was voted on and rejected by the legislature. 

Nor was there any proposal to narrow the term “donor” 

that the legislature rejected. The sponsors and legislators 

engaged in a normal exchange about the nature of what the 

bill addressed and determined that the bill, as drafted, was 

appropriate.

In sum, the committee hearings on the 1977 legislation confirm that the bill was intended to address artificial insemination as it was then practiced by the medical 

profession—a practice limited to the use of semen provided 

by husbands and anonymous third-party donors. Thus, the 

text, context, and legislative history of the donor statute, 

ORS 109.239 (1977), all confirm that it was not intended to 

address known or directed donors selected by the intended 

parents, at all.

The majority opinion concludes that the legislative 

history demonstrates that the law was always intended 

to cover known or directed donors as well as anonymous 

ones. It notes that the written testimony submitted by the 

bill’s proponents indicated that donors “usually”—but not 

always—remained anonymous; observes that Representative 

Frohnmayer asked about known donors during the May 3, 

1977, legislative hearing; and explains that the statute as 

enacted was worded broadly enough to cover both anonymous and known semen donors.

It is true that one exhibit submitted by the bill’s 

sponsors stated that donors other than the husband “usually” 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 anonymous donors. Similarly, although ORS 109.239 (1977) used 

broad wording that could be interpreted to cover known as 

well as anonymous donors, as the majority opinion notes, 

such an interpretation is contrary to the provision in ORS 
634 Sause and Schnitzer

677.360, which requires the AI doctor to select the donor. The 

majority opinion’s overbroad interpretation is also contrary 

to the context of how AI was understood and practiced at the 

time. And, as noted, a close examination of the discussion 

regarding Frohnmayer’s inquiry about known donors does 

not support the conclusion that the legislature intended for 

the law to cover known or directed donors selected by the 

intended parents.

Aside from that single discussion about the possibility 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 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 a donor’s identity 

remained confidential. See generally Tape Recording, House 

Committee on Judiciary, HB 3193, May 3, 1977, Tape 44,

Side 1 (statements of proponents).

In short, the overwhelming gist of the legislative 

history establishes that ORS 109.239 (1977) addressed artificial insemination as it was then practiced by the medical 

profession—limited to the use of semen provided by husbands and anonymous third-party donors. It was never 

intended to address known or directed donors. And it certainly was never intended to answer the novel question presented in this case: When two people in a romantic relationship 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 to S,” 371 Or at 602, relies entirely on the application of 
Cite as 371 Or 573 (2023) 635

ORS 109.239 (1977) to known or directed donors selected by 

the intended parents.23 Because that understanding of the 

donor statute is mistaken, the majority opinion’s conclusion 

is incorrect.24

C. Sause has a legally protected parental interest under the 

Due Process Clause.

Compounding the majority opinion’s misreading 

of Oregon parentage law is its failure to recognize that a 

genetic parent’s unique opportunity to establish a parental 

relationship is also protected by the Due Process Clause. In 

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

614 (1983), a child’s biological father—the appellant in the 

United States Supreme Court—contended that, under the 

Due Process Clause, he was entitled to receive notice before 

the child could be adopted by the man who married the 

child’s mother after the child’s birth. The Supreme Court 

disagreed.

In concluding that the appellant did not have a constitutional right to notice before the child was adopted, the 

Court discussed the legal significance of the appellant’s biological 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 blessings of the parent-child relationship and make uniquely 

valuable contributions to the child’s development. If he fails 

to do so, the Federal Constitution will not automatically 

23 As noted above, at the time that Sause contributed her eggs to this ART 

process, the law in Oregon—as understood by the Court of Appeals in McIntyre, 

98 Or App 462, in 1989—was that applying the donor statute to deny parentage 

to a known sperm donor who donated his sperm in reliance on having a parental 

role violated the sperm donor’s rights under the Due Process Clause.

24 The majority opinion suggests that my reading of Oregon parentage law 

raises the potential for increasing litigation and uncertainty for known gamete 

donors. 371 Or at 604 n 7. But whether there is uncertainty leading to 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

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 establish a parental relationship that arises from a genetic link 

is protected by the Due Process Clause. If it were not protected, 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 protected by the Due Process Clause, an interest that could be 

lost if the man failed to “grasp the opportunity” that that 

connection presented.

The majority opinion concludes that Lehr does not 

apply here because, unlike the biological father in that 

case, “Sause does not have a viable state law basis for legal 

parentage,” 371 Or at 606-07, and the Due Process Clause 

itself does not provide any constitutional limit on a state’s 

25 In other contexts—the obligation to pay child support, for example—a 

man’s biological connection to a child is sufficient to impose that parental obligation regardless of whether the man had “grasped the opportunity” to be a parent.
Cite as 371 Or 573 (2023) 637

determination of parentage.26 In my view, that conclusion is 

in error because, as demonstrated above, Sause does have 

a parental interest that is legally significant under Oregon 

parentage law. Even if she did not, the Due Process Clause 

limits the extent to which state law can foreclose a genetic 

parent’s claim to legal parentage.

The majority opinion may be correct in concluding 

that state law ultimately determines the outcome in “the 

vast majority of cases,” 371 Or at 607 (quoting Lehr, 463 US at 

256). However, the Due Process Clause independently limits 

the extent to which state law can foreclose Sause’s parental 

interest.27 Thus, even if Sause has no state law claim to 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 protection afforded that 

interest. Sause and Schnitzer, 312 Or App 71, 112, 493 P3d 

1071 (2021) (Kamins, J., dissenting).

D. The majority opinion’s contractual analysis is flawed.

The majority opinion aims for consistency with the 

equality principle set out in ORS 109.030 by concluding 

that neither genetic parent has a legally cognizable parental interest in S. But the majority opinion goes on to conclude that Schnitzer’s parentage “arises from his surrogacy 

agreement with the gestational carrier and her husband,” 

371 Or at 602, and that Sause might have some contractual rights—but not a parental interest—regarding S, to be 

determined on remand. The majority opinion’s analysis is 

flawed in two respects.

26 The majority opinion also suggests that this case differs from Lehr

“because the child in Lehr was conceived through intercourse and not through 

ART or AI.” 371 Or at 607 n 8. The majority opinion does not explain why the Due 

Process Clause would give greater parental recognition to persons who might 

casually (or accidentally) create a child through sexual intercourse than to 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 context can terminate parental rights arising from other presumptions of parentage, but they cannot create parental 

rights on their own. Second, if Oregon law does allow a person to “contract into” legally cognizable parental rights—a 

proposition that, in my view, is incorrect—then the equality 

principle means that Sause should be allowed to establish 

on remand that she “contracted into” those rights, just as 

Schnitzer did.

The majority opinion cites five Court of Appeals’ 

decisions in support of its conclusion that Oregon law 

allowed Schnitzer to “contract into” a legally cognizable 

parental right without going through the statutory adoption 

procedures. See 371 Or at 603 (citing McIntyre v. Crouch, 98 

Or App 462, 780 P2d 239 (1989); Leckie and Voorhies, 128 

Or App 289, 875 P2d 521 (1994); In re Adoption of Baby A 

and Baby B, 128 Or App 450, 877 P2d 107 (1994); Weaver 

v. Guinn, 176 Or App 383, 31 P3d 1119 (2001); Dahl and 

Angle, 222 Or App 572, 194 P3d 834 (2008), rev den, 346 Or 

65 (2009)). None of those cases held that Oregon law allows 

a person to “contract into” parental rights without going 

through adoption proceedings.

The parental rights at issue in In re Adoption of Baby 

A and Baby B were established through adoption; the court 

held that a surrogacy contract did not preclude the adoption. 

128 Or App at 452. In Weaver, 176 Or App 383, the court held 

that custody of the child was properly awarded to the birth 

mother and refused to enforce an AI agreement that would 

have given custody to the biological father because he had 

impregnated the mother through sexual intercourse, not AI. 

In Leckie, 128 Or App 289, the court held that a sperm donor 

waived his parental rights by contract. In Dahl, 222 Or App 

at 585, the court held that an agreement giving a woman 

custody and control of embryos gave her the right to destroy 

the embryos despite her husband’s objection; parentage was 

not at issue.

Finally, as noted above, McIntyre was decided by a 

divided court, with no majority opinion. Two of the judges 
Cite as 371 Or 573 (2023) 639

thought that, if ORS 109.239 (1977) precluded a known 

sperm donor from having any parental interest, it would 

violate the donor’s rights under the Due Process Clause. 

McIntyre, 98 Or App at 470 (Newman, J., lead opinion); id.

at 472 (Deits, J., specially concurring). The lead opinion 

concluded, “We hold that ORS 109.239, as applied to [the 

sperm donor] petitioner, will violate the Due Process Clause 

of the Fourteenth Amendment if he can establish that he 

and respondent agreed that he should have the rights and 

responsibilities of fatherhood and in reliance thereon he 

donated his semen.” Id. at 470 (Newman, J., lead opinion) 

(emphasis in original).

Thus, no Oregon court—before today’s majority 

opinion—has ever held that Oregon law allows a person to 

“contract into” parental rights without going through adoption procedures. Neither does any Oregon statute authorize 

“contracting into” legal parentage.28 At most, Oregon statutes provide that a court will consider any contracts the parents have executed when determining parental rights, such 

as the right to custody of, or parenting time with, a child. 

But even there, the ultimate decision is made by the court 

based on its determination of what is in the child’s best 

interests—not the terms of a contract or what the parties 

to a contract may have intended. See ORS 109.175(1) (court 

“shall give primary consideration to the best interests and 

welfare of the child” in determining custody after parentage 

is established); ORS 107.102(5)(b) (in developing a parenting 

plan, “the court may consider only the best interests of the 

child and the safety of the parties”). The majority opinion 

28 The majority opinion criticizes my statement that, under Oregon parentage law, a contract can terminate parental rights but cannot create parental 

rights, as being offered “without citation to case law or statute.” 371 Or at 612 

n 11. But as noted above, in In re Adoption of Baby A and Baby B, the Court of 

Appeals held that the birth mother gave up her parental rights by contract—a 

consent to the child’s adoption by the intended parents. 128 Or App at 452. And 

the party claiming a legal right to “contract into” parental rights—Schnitzer 

in this case—has the burden of establishing that the law supports his claim. 

Schnitzer cites no statute or case holding that he had a legal right to “contract 

into” sole parentage. Other than those five inapplicable Court of Appeals’ decisions, the majority opinion cites no authority for its conclusion, noting instead 

that “Schnitzer’s parentage is not at issue in this case.” 371 Or at 612. But 

Schnitzer’s parentage is relevant here because, at least genetically, he is in the 

same position as Sause, making the equality principle in Oregon parentage law 

germane to Sause’s parentage claim.
640 Sause and Schnitzer

offers no reason why a contract should control the predicate 

question of parental status, when it merely informs a court’s 

determination of parental rights and responsibilities. As an 

independent source of parentage, contract law is an awkward fit.

If Schnitzer’s genetic link to S did not give rise to 

any legally cognizable parental interest, but he could just 

“contract into” parental rights by executing a contract with 

the gestational surrogate and her husband (without going 

through adoption), then Schnitzer could also “contract into” 

parental rights by executing a contract with any pregnant 

woman and her spouse. That is not, and has never been, the 

law in Oregon, and the majority opinion offers no persuasive 

reason why it should be the law. Nor does it provide any limiting principle that would allow Schnitzer to “contract into” 

parental rights under the circumstances presented here but 

would prevent him or any other person from “contracting 

into” parental rights under different circumstances. The 

novel facts of this extraordinary case do not merit such an 

upheaval of Oregon’s approach to parentage.

Finally, even if the majority opinion is correct that 

Schnitzer has a legally cognizable parental interest in S 

based solely on his contract with the gestational surrogate 

and her husband, not on his genetic link to the child, then 

Sause should have that same opportunity. By denying her 

the same opportunity that Schnitzer had, the majority opinion violates the equality principle set out in ORS 109.030.

II. CONCLUSION

The genetic link between Sause and S gave her a 

legally significant parental interest, just as the genetic link 

between Schnitzer and S gave him a legally significant 

parental interest. That interest is protected under Oregon 

parentage law and by the Due Process Clause of the United 

States Constitution. The trial court determined, correctly 

in my view, that Sause’s interest was not overcome by any 

contrary provision of law, the parties’ agreement, or other 

evidence in this case.

The majority opinion errs by (1) failing to recognize that both Sause and Schnitzer have legally significant 
Cite as 371 Or 573 (2023) 641

parental interests in S arising from their undisputed 

genetic link to the child; (2) determining, for the first time in 

Oregon, that a person can “contract into” a legally cognizable 

parental interest without going through adoption; (3) determining in this case that Schnitzer has “contracted into” 

parentage and remanding the case to determine whether 

Sause has contractual—but not parental—rights regarding 

S, thereby denying Sause the opportunity to “contract into” 

parental rights as Schnitzer did; and (4) interpreting the 

donor statute, ORS 109.239 (1977), to preclude both Sause 

and Schnitzer from having any legally cognizable parental 

interest based on their genetic connection to S.

For those reasons, I respectfully dissent.

Flynn, C.J., and Linder, S.J., join in this dissenting 

opinion.

LINDER, S.J., dissenting.

I join Justice Bushong’s dissent. I agree with his 

analysis that, under state law, Sause is entitled to a judicial declaration that she is S’s parent, along with Schnitzer. 

This case should end with that state law answer. But the 

majority resolves that issue differently, holding that state 

law provides no basis for Sause to be recognized as S’s legal 

parent. The majority therefore reaches and resolves the 

federal law question of whether S has a parental interest 

protected under the Due Process Clause of the Fourteenth 

Amendment to the United States Constitution, concluding 

that she does not. Justice Bushong addresses why the majority’s federal law analysis is wrong, and I agree with him. I 

write separately, however, to further explain why, under the 

federal constitution, Sause should prevail.

My central premise is this: When two people bring 

a child into the world by combining their genetic material 

using assisted reproduction technology (ART), and they do 

so with the intent that both will have parental roles in the 

child’s life, each has a protected parental interest under the 

Due Process Clause. That conclusion follows regardless of 

how they agree between themselves to divide and structure 

their parental roles. For purposes of due process, what matters is whether, as the child’s genetic and intended parents, 
642 Sause and Schnitzer

each has demonstrated the commitment, consistent with 

the opportunities available to them, to have a parent-child 

relationship with their genetic offspring.

The United States Supreme Court’s jurisprudence 

on due process protection for personal liberties involving 

reproduction and family relationships, including parentchild relationships, is vast. Canvassing that jurisprudence, 

however, is not necessary for this case. The issue here is 

narrower: It is not what rights Sause has as a parent; it 

is whether, for constitutional purposes, Sause is entitled to 

legal parental status at all. Few Supreme Court precedents 

guide that inquiry. What few there are culminated in the 

Court’s 1983 decision in Lehr v. Robertson, 463 US 248, 256, 

103 S Ct 2985, 77 L Ed 2d 614 (1983). The Court has not provided authoritative guidance on the issue since. Lehr thus 

is the Supreme Court’s principal holding on whether and 

when a state violates a genetic parent’s constitutionally protected interests by declining to recognize that individual as 

a child’s legal parent.1

As to what guidance Lehr provides, Justice Bushong 

observes that Lehr recognizes an “opportunity” or “inchoate 

interest” that is itself subject to due process protection; if a 

genetic parent adequately “grasps” that opportunity by taking “some measure of responsibility for the child,” then a 

constitutionally protected parent-child relationship arises. 

371 Or at 635-37 (Bushong, J., dissenting) (quoting and discussing Lehr’s holding). That understanding of Lehr accords 

with the views of countless courts and legal commentators. 

One commentator, for example, explains:

“As an initial point, the Court [in Lehr] made clear that 

biological parentage is not dispositive, ruling that ‘the mere

existence of a biological link does not merit equivalent constitutional protection.’ Instead, the Court put forth what is 

commonly referred to today as the ‘biology plus’ doctrine. 

According to the Court, ‘when an unwed father demonstrates a full commitment to the responsibilities of parenthood by “coming forward to participate in the rearing of 

1 See generally Anthony Miller, The Case for the Genetic Parent: Stanley, 

Quillion, Caban, Lehr, and Michael H. Revisited, 53 Loy L Rev 395 (2007) (tracing the evolution of the Supreme Court’s jurisprudence on due process protection 

for the interests and rights of genetic parents; discussing Lehr’s significance as 

the last decision providing authoritative guidance for the analysis).
Cite as 371 Or 573 (2023) 643

his child,” his interest in personal contact with his child 

acquires substantial protection under the Due Process 

Clause.’ In other words, biological parenthood provides a 

nonmarital father with an incipient right, one that will 

not fully develop until he takes sufficient steps to foster a 

parental relationship with the child. Accordingly, the Court 

upheld the New York law given that it ‘had adequately protected his opportunity to form such a relationship.’ In the 

Court’s view, the fact that Lehr never seized that opportunity was nobody’s fault but his own.

Michael J. Higdon, Constitutional Parenthood, 

103 Iowa L Rev 1483, 1499 (2018) (footnotes and brackets 

omitted).2

Lehr thus frames the questions: What opportunity 

did the state provide Sause to foster a parent-child relationship with S? And did she sufficiently grasp it?

Under the majority’s analysis of Oregon’s statutes, 

state law provided Sause with no opportunity to develop a 

parent-child relationship with S. Sause was not the birth 

mother, so she had no presumptive parental status. Schnitzer 

broke off communications with Sause and prevented her from 

having any contact with S after the day he was born. Shortly 

after, Schnitzer filed for and swiftly obtained a declaratory 

judgment designating him S’s “sole genetic” and “legal parent.” Sause was not named in Schnitzer’s petition for that 

judgment; she was not given notice of the petition; and the 

petition did not identify her participation in S’s conception. 

When Sause later learned of the judgment and moved to 

intervene to assert her parental interest, her motion was 

2 Courts and other scholars taking the same view are too numerous for 

citation. But representative cases spanning the decades since Lehr was decided

include: Matter of Doe, 170 Idaho 901, 911, 517 P3d 830, 840 (2022) (protected 

parental rights arise under Lehr based on established relationship between 

genetic parent and child, while protected “inchoate” interest arises in opportunity to develop that relationship); Thurnwald v. A.E., 2007 UT 38, 163 P3d 623, 

635 (Utah 2007) (under federal due process, state adoption procedures must give 

unwed genetic father opportunity to establish a relationship with child); In re 

M.N.M., 605 A2d 921, 927 (DC 1992), cert den, 506 US 1014 (1992) (Lehr recognizes opportunity interest in genetic parent to develop a relationship with his 

offspring, one that requires state procedural protection); In Re Steve B.D., 112 

Idaho 22, 25, 730 P2d 942, 945 (1986) (under Lehr, state owes due process and 

equal protection to the parental rights of unwed fathers who have established 

relationships with their children, and also owes them the opportunity to establish such relations).
644 Sause and Schnitzer

denied. Sause therefore pursued the only state procedural 

avenue available to her to obtain legal parent status: She 

filed this declaratory judgment action. But under the majority’s holding in this case, that avenue is a dead end—nothing in Oregon law gives Sause, as S’s undisputed genetic 

parent, any opportunity to foster and form a relationship 

with S. For Sause, the state procedural door of opportunity 

closed and locked without ever opening.

That result violates Sause’s protected due process 

interests under Lehr. What Lehr requires in terms of a sufficient “grasping” of the opportunity to develop a parent-child 

relationship must be viewed through the lens of the factual 

circumstances of each case. Unlike the putative father in 

Lehr, see 463 US at 250-54 (describing facts), Sause had no 

post-birth opportunity for a parental relationship with S, 

because Schnitzer would not allow her to have any contact 

with S. As one legal commentator observes, the protected 

opportunity interest that Lehr identified is violated when—

either practically or legally—it is cut off before it can arise:

“[Under Lehr, the] genetic parent who has established a 

relationship with his or her child should be considered a 

parent for constitutional purposes. [And], the genetic parent should be treated as a parent, even when this parent 

has not had the opportunity to develop a relationship with 

the child, in two distinct situations: first, where the parent 

has been prevented through no fault of his or her own from 

establishing a relationship; and second, where new parents 

utilize cutting edge reproductive technology and the state 

has moved to sever the parent-child relationship before the 

opportunity to develop such a relationship has arisen.”

Anthony Miller, The Case for the Genetic Parent: Stanley, 

Quilloin, Caban, Lehr, and Michael H. Revisited, 53 Loy L 

Rev 395, 450 (2007). Here, it is not the state qua state “moving” to sever Sause’s opportunity. The majority achieves that 

severance via its judgment in this case. But that is state 

action just the same.3

3 This is a dispute between private parties whose arguments reflect their 

self-interests. The state is not a party in an amicus capacity or otherwise; the 

Oregon Attorney General is not before this court urging that a state interest is 

served by foreclosing Sause from legal parental status under the circumstances 

of this case.
Cite as 371 Or 573 (2023) 645

As the quote above suggests, Lehr frames a second 

question as well: Despite the lack of state legal protection for 

Sause’s “opportunity interest” in developing a parent-child 

relationship with S, did Sause nevertheless achieve that 

relationship in fact? If she did, she is entitled to parental 

status under the federal constitution.

Answering that question requires context. In this 

case, the important context is the parties’ collaborative ART 

conception. Before a child’s birth, a parent cannot develop a 

relationship with the child in the sense that Lehr expected 

of the unwed father in that case, whose child was about two 

years old when the parties’ dispute arose. See 463 US at 

250-54 (describing facts). But before a child’s birth, a parent 

can demonstrate a commitment to that parent-child relationship. For a collaborative ART conception, which in this 

case entailed a deliberative process by which one genetic 

parent combined gametes with another to bring a child into 

the world through gestational surrogacy, the parents’ prebirth commitment should carry constitutional weight.

Sause’s commitment to a parent-child relationship

with her offspring arose well before S was conceived. 

Specifically, her commitment began with her decision to 

have her eggs retrieved and preserved for her own reproductive use, not that of an anonymous recipient whom she 

would never know and who would never know her. From the 

outset, Sause made the decision to use ART to have her eggs 

medically retrieved to preserve her future ability to have 

genetic offspring and be a mother.

Her motivation shifted—but only partly—when 

she and Schnitzer, with whom she had begun an intimate 

relationship, began to discuss conceiving children together. 

Sause urged that it was in a child’s interest to know the 

child’s genetic mother, something that would not happen if 

Schnitzer had a child using anonymously donated eggs. If 

Sause and Schnitzer instead were to combine her eggs and 

his sperm, the child could know Sause as his mother and 

have contact with her. Schnitzer, however, wanted only a boy, 

and he wanted sole legal custody of him. Sause understood 

Schnitzer’s reasons for those limitations, and she could 

accept and support Schnitzer in them. It was important to 
646 Sause and Schnitzer

her, however, that if her eggs were used, the boy would know 

her as his mother and she would be active in the boy’s life.

Schnitzer and Sause struck a mutually beneficial 

agreement: Schnitzer would have custody of any viable male 

embryos, which he would attempt to bring to term through 

a gestational surrogacy that he would arrange. Sause would 

have custody of any viable female embryos, which she would 

have frozen for her future reproductive use. If the gestational surrogacy succeeded, Schnitzer would have full legal 

custody of the boy. Sause would be the boy’s acknowledged 

mother and have contact with him. She would have, in effect, 

the kind of noncustodial role that parents may privately 

agree to without forfeiting their legal parental status and 

that Oregon courts routinely order for divorcing or unwed 

parents who either do not want or cannot agree to joint custody. See ORS 107.169(3) (court may not order joint custody 

unless both parents agree to terms and conditions of order).

With their mutual intent and understanding in place, 

Sause followed through with having her eggs retrieved.4 She 

then consented to having them fertilized with Schnitzer’s 

donated semen. For the three viable embryos that resulted, 

Sause agreed to have them tested to determine their sex. 

The embryos remained in her full and unilateral custody 

4 The lead opinion in the Court of Appeals described the trial court as having 

found, factually, that Sause chose to have her eggs retrieved for her own purposes, not for purposes of sharing them with Schnitzer. Sause and Schnitzer, 312 

Or App 71, 103, 493 P3d 1071 (2021). That description failed to appreciate that 

the trial court’s finding related only to Sause’s initial decision, not her state of 

mind later when she underwent the medical procedure for retrieval of her eggs. 

In particular, the trial court found that early in Sause and Schnitzer’s intimate 

relationship, Sause decided to have her eggs retrieved for her own reproductive 

purposes. The trial court further found, however, that Sause and Schnitzer soon 

began discussing the possibility of combining their reproductive efforts. The trial 

court specifically credited Sause’s testimony about those discussions, including 

that both Sause and Schnitzer considered it a “win-win” to combine her eggs 

and Schnitzer’s sperm, and then to divide any viable embryos between them 

based on sex. They further agreed that, although Schnitzer would have sole legal 

custody of any male child, the child would know Sause as his mother and she 

would be involved in his life. Sause did not undergo the procedure to have her 

eggs retrieved until much later. By that time, Sause and Schnitzer had engaged 

in those discussions, had decided to combine their gametes, had worked with 

the Oregon Health and Science University (OHSU) fertility clinic on that basis, 

and—as the trial court found—had formed the mutual intent that Sause have a 

parental role in the life of any son that their collaboration might bring into the 

world.
Cite as 371 Or 573 (2023) 647

throughout that time. Once the testing revealed that all 

three viable embryos were male, Sause transferred custody 

of them to Schnitzer.5 She did not do so with the understanding that she would have no parental relationship with any 

child the gestational surrogate might carry to term. Just 

the opposite: Sause and Schnitzer’s mutual intent remained 

that Sause would be the child’s acknowledged mother and 

she would have a maternal (albeit a noncustodial) role in his 

life. Months later, one of the viable embryos was successfully 

implanted in the gestational surrogate. Sause remained 

committed to having a maternal relationship with the yetto-be-born boy; Schnitzer remained committed to that too. 

Even after Sause’s interest in possibly marrying Schnitzer 

changed and their intimacy cooled, they remained on good 

terms, and their mutual intent for Sause to have a parentchild relationship with S did not waver. When the two of 

them had their irreparable falling out on the day that S was 

born, Schnitzer’s intent changed, but Sause’s did not. As 

the trial court pointedly found, “at that moment, and not 

before,” Schnitzer decided to cut Sause out of S’s life.

In her dissent in the Court of Appeals, Judge Kamins 

recounted in detail the interactions between Schnitzer and 

Sause (and Sause’s family) throughout the 16 months of 

their intimate relationship and beyond, up to the day of S’s 

birth. Sause and Schnitzer, 312 Or App 71, 112-14, 493 P3d 

1071 (2021) (Kamins, J., dissenting). Those details further 

demonstrate not just the fact of Sause’s commitment to a 

parent-child relationship with S, but also the depth of her 

commitment. That commitment, along with Sause’s collaboration in S’s conception and the parties’ mutual intent 

that Sause have a parental role, is sufficient to satisfy Lehr

5 Contrary to the majority’s suggestion, 371 Or at 578, OHSU did not have 

Sause sign a “standard” egg donor form. Nudelman, Schnitzer’s business lawyer, 

obtained that form and had Sause sign it before she began working with OHSU 

for her egg retrieval. Until this litigation, OHSU was not aware that Sause had 

signed that form. Dr. Battaglia, the physician who oversaw the collaborative ART 

process for Schnitzer and Sause, explained that the standard form did not fit 

what they wanted to accomplish. Instead, OHSU had both parties sign other 

consents and directives, ones by which custody and control of the retrieved eggs 

remained with Sause until it was time, well after her eggs were retrieved, for her 

to give Schnitzer custody of the viable male embryos if she remained willing to 

do so. As Battaglia’s undisputed testimony established, Sause was never an egg 

donor.
648 Sause and Schnitzer

where, as here, Sause had neither a practical nor a legal 

opportunity to foster a parent-child relationship with S after

S’s birth.6

What animates the majority’s analysis may be the 

same concern that Judge Kamins identified as possibly animating the Court of Appeals majority: that Sause was not 

committed to a full-enough role as a parent to be entitled 

to constitutional protection. Sause, 312 Or App at 114-15. 

That is suggested by, among other statements in the majority opinion, that Sause intended Schnitzer to have sole legal 

custody while retaining for herself only the “hope” of contact 

with the child and of some “undefined quasi-parenthood” 

role. 371 Or at 606. To borrow from Judge Kamins’s apt 

observation:

“As the Lehr Court recognized, ‘the intangible fibers that 

connect parent and child have infinite variety.’ 463 US 

at 256. That variety has only multiplied as parents have 

woven those fibers in ever-increasing family arrangements 

in the forty years since Lehr was decided. Whether the way 

someone chooses to make a family creates a constitutional 

right cannot be as simple as whether someone intends to be 

a full-time parent or not a parent at all.” 

6 The majority all but summarily rejects Sause’s federal claim. The majority 

reasons that, under the donor statute (ORS 109.239 (1977)), Oregon does not recognize Sause as S’s legal parent; therefore, federal law gives her no protection. 

371 Or at 598 n 5, 607. I agree with Justice Bushong that the majority has not 

interpreted the statute consistently with the legislature’s intent. 371 Or at 624-

35 (Bushong, J., dissenting). But even if the donor statute applies, that conclusion 

frames the federal issue rather than resolves it. As other courts have recognized, 

the federal issue then is whether the donor statute is unconstitutional as applied. 

Although lower courts have come to differing results on the facts before them, 

none reason that the federal issue evaporates with a conclusion that state law 

categorically renders gamete donors legal strangers to their own genetic children. See, e.g., C.O. v. W.S., 64 Ohio Misc 2d 9, 10-12, 639 NE 2d 523, 524-25 (Ohio 

Ct CP 1994) (assuming arguendo that state donor statute extinguished semen 

donor’s parental interests, statute was unconstitutional as applied where donor 

was known to recipient, recipient solicited donor to provide semen, and recipient 

agreed donor could have contact with the child and be a “male role model” for the 

child); In re Interest of R.C., 775 P2d 27, 35 (Colo 1989) (avoiding constitutional 

issue by construing donor statute not to apply when semen donor is known to 

unmarried recipient and the two expressly agree at time of conception that donor 

will be treated as child’s father); see also In re K.M.H., 285 Kan 53, 169 P3d 1025, 

1040-42 (2007), cert den, 555 US 937 (2008) (donor statute did not unconstitutionally deny parental status to semen donor who orally agreed with recipient that he 

would have parental role in resulting twins’ lives where statute gave donor the 

option to enter written agreement to preserve parental status and donor failed to 

exercise that option).
Cite as 371 Or 573 (2023) 649

Sause, 312 Or App at 115 (Kamins, J., dissenting) 

(brackets omitted).

To that observation, I add this: Sause’s choice to 

agree that Schnitzer would be S’s sole legal custodial parent 

did not amount to her shirking parental responsibility or 

disregarding S’s best interests. Schnitzer was insistent that 

he have sole legal custody, for reasons that Sause understood 

and, apparently, was sympathetic to. Sause knew Schnitzer 

to be a mature, experienced, loving father of his two daughters. Sause likewise knew that Schnitzer, due to his wealth, 

was easily able to support S financially and meet his every 

need. In persuading Schnitzer that she should have a parental, even if noncustodial, role in S’s life, Sause did so not 

just to ensure that she would have a parent-child relationship with her own offspring; she also believed it was in S’s 

best interest to know and have contact with his genetic (and 

only) mother. Finally, with her expectation and desire to be 

on S’s birth certificate, Sause intended to be legally recognized as S’s mother. Her desire for that legal parental status 

necessarily amounted to a full commitment to S’s care and 

support, because no matter how a child’s legal parents may 

privately allocate their parental rights and responsibilities 

between themselves, it remains within an Oregon court’s 

jurisdiction and authority to depart from their agreement if 

doing so will be in the child’s best interests.

In sum, in the context of this collaborative ART 

conception case, Sause’s genetic parental link to S, together 

with her consistent pre-birth commitment to a parental 

relationship with S, gives rise to parental status under the 

federal constitution. Nothing in Sause’s conduct in this case 

or the terms on which she and Schnitzer agreed to bring S 

into the world should divest her, as S’s genetic and intended 

parent, of the fundamental parent-child relationship that 

the Due Process Clause so jealously protects.

Respectfully, I dissent.

Bushong, J., joins in this dissenting opinion.