350 P.3d 495
Or. Ct. App.2015Background
- Two women were domestic partners who conceived a child (R) via artificial insemination; respondent is the biological mother and petitioner seeks recognition as R’s legal parent under ORS 109.243.
- ORS 109.243 automatically confers parentage on a husband who consented to his wife’s artificial insemination; it originally applied only to married opposite-sex couples.
- In Shineovich, the Oregon Court of Appeals held ORS 109.243 violated Article I, §20 (unequal privileges) and remediated by extending the statute to same-sex partners who consented to insemination, but did not define which same-sex couples qualify.
- The parties here registered a domestic partnership after R’s birth; petitioner asserts she consented to insemination and that the parties would have married if able. Respondent contends they rejected legal marriage and did not intend to share legal parentage.
- The trial court granted summary judgment for petitioner relying on Shineovich; the Court of Appeals reversed, holding material factual disputes remain about whether the couple would have chosen marriage and thus whether ORS 109.243 applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 109.243 applies to an unmarried same-sex partner who consented to artificial insemination | Petitioner: Shineovich requires only partner consent and domestic-partner status; statute should be applied so she is R’s parent | Respondent: Statute applies to spouses/domestic partners existing before birth; parties did not seek legal status before birth and respondent never intended shared parentage | Court: ORS 109.243 extends to same-sex partners who consented only if the couple would have chosen to marry had marriage been available; factual dispute on that question precludes summary judgment |
| Proper test for deciding which same-sex couples are "similarly situated" to married opposite-sex couples | Petitioner: focus on intent to be a parent and consent to insemination | Respondent: consent should require an express request/assent and imply intent to share legal parentage; domestic-partnership timing matters | Court: The correct test asks whether the same-sex couple would have chosen to marry before the child’s birth; intent alone is insufficient because statute’s scope tracks marriage-choice |
| Meaning of "consent" in ORS 109.243 | Petitioner: consent means assent/approval to insemination | Respondent: consent requires that mother sought partner’s approval and intended to share legal parentage | Court: "Consent" requires assent/approval only; it does not include a separate requirement that the mother intend to share legal parentage (but such intent may be relevant to the marriage-choice inquiry) |
| Whether applying ORS 109.243 here would violate respondent's due-process parental rights | Petitioner: statutory parentage protects child’s rights and treats similarly situated couples equally | Respondent: applying statute infringes her fundamental right to be sole legal parent | Court: Due-process claim not decided as premature; remand required so parties can litigate under clarified standard |
Key Cases Cited
- Shineovich and Kemp v. Ashcroft, 229 Or. App. 670 (Or. Ct. App. 2009) (held ORS 109.243 violated Article I, §20 and extended statute to consenting same-sex partners)
- Tanner v. OHSU, 157 Or. App. 502 (Or. Ct. App. 1998) (discusses treatment of "true classes" and suspect class analysis for sexual orientation)
- State v. Savastano, 354 Or. 64 (Or. 2013) (privileges must be granted equally to similarly situated persons)
- Hewitt v. SAIF, 294 Or. 33 (Or. 1982) (courts may extend statutes to remedy constitutional disparities when extension comports with legislative scheme)
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (recognizes parental due-process rights regarding care, custody, and control of children)