In this case, we consider how to determine whether an unmarried same-sex couple is similarly situated to a married opposite-sex couple for purposes of ORS 109.243 and, thus, entitled to the privilege granted by that statute. ORS 109.243 creates parentage in the husband of a woman who bears a child conceived by artificial insemination if the husband consented to that insemination. The statute’s effect is automatic; it requires no judicial or administrative filings or proceedings. In Shineovich and Kemp,
This case raises that question. During the parties’ relationship, respondent gave birth to a daughter, R, who was conceived by artificial insemination. Shortly thereafter, the Oregon Family Fairness Act took effect, allowing same-sex couples to register domestic partnerships, which petitioner and respondent then did. They later separated, and petitioner brought this action for dissolution of the domestic partnership. Among other claims, petitioner sought a declaration that she is R’s legal parent by operation of ORS 109.243. The trial court granted summary judgment for petitioner on that claim based on our analysis in Shineovich. Respondent appeals. For the reasons set out below, we conclude that ORS 109.243 applies to unmarried same-sex couples who have a child through artificial insemination if the partner of the biological parent consented to the insemination and the couple would have chosen to marry had that choice been available to them. The record in this case includes evidence creating a genuine dispute on the latter point. Accordingly, the trial court erred in entering summary judgment, and we reverse.
The parties present fairly divergent views of the facts. Because this appeal comes to us following a grant of summary judgment, we view the facts in the light most favorable to respondent, the nonmoving party. Jones v. General Motors Corp.,
During their time in Colorado, petitioner pressured respondent to hold a “commitment ceremony” with family and friends. The parties agreed that they did not want to seek a legal relationship, because they “did not believe in such social constructs” and “shared a common belief in freedom from marriage.” Respondent was hesitant about having a commitment ceremony because petitioner was becoming more controlling of respondent and of their situation. Respondent took comfort in knowing that a ceremony would not be legally binding with respect to either the
Notwithstanding respondent’s reservations, the parties eventually agreed that they would have the commitment ceremony. Together, they chose and bought rings and dresses for the ceremony and registered for gifts. In mid-2005, respondent succumbed to pressure from petitioner to move back to Oregon. The parties returned to Oceanside and held the commitment ceremony that September, as they had planned. Petitioner and respondent exchanged vows and rings at the ceremony. For several years thereafter, the parties had annual anniversary photos taken in the dresses that they had worn that day.
The month after the ceremony, the parties accepted joint positions managing the Clifftop Inn in Oceanside. They lived and worked at the inn, renovating the business and the premises. In March 2007, they bought the inn.
Respondent had wanted to have a child since before the parties met. By spring 2007, that desire had become urgent. She told petitioner that she “was going to have a child of [her] own no matter what.” Respondent felt that it was her decision, and it did not matter to her whether she had the child with petitioner or not. Petitioner was initially hesitant about having a child at that time because she was concerned about the parties’ financial stability and about the fact that working at the inn consumed so much of their time and energy. Respondent also had “mixed thoughts” about it, but they eventually “romanticized it and talked about doing it together.” Respondent was concerned about having to “legally share” her baby with the biological father, so the parties decided to use two sperm donors in order to obscure the father’s identity. Respondent wanted petitioner to be biologically related to the child, so she suggested asking petitioner’s brothers if they would donate sperm. Only one of the brothers agreed, so respondent asked a friend of hers, and he agreed to be the other donor. A few days apart, the parties obtained the sperm donations and respondent was artificially inseminated. Petitioner assisted with the first insemination procedure but not the second. Respondent became pregnant.
The parties’ relationship deteriorated during the pregnancy. Respondent gave birth to the baby, R, on January 21, 2008. By that point, respondent later asserted, the parties were “nothing more than ‘roommates.’” After R was delivered, petitioner told respondent that she had not realized how hard it would be to not have a biological connection with the baby.
Both parties legally changed their last names. Before R was born, respondent had often considered changing her own last name, and, having studied matrilineal societies, she wanted her daughter to have a “powerful, independent” last name. Respondent and petitioner both liked the name Madrone, and they agreed to give R that name. They both changed their last names to Madrone about two weeks after R was born, and it is the surname listed for R on her birth certificate.
The summary judgment record does not disclose who filled out R’s birth certificate, but petitioner was not listed as a parent. Respondent did not attempt to put petitioner’s name on the birth certificate, because she did not want petitioner to be R’s legal parent. Respondent stated in an affidavit that she was “always clear that [she] was the legal, biological and SOLE guardian” of R. She also said, “I had the choice to add [petitioner] to my daughter’s birth certificate, and I never did and never intended to.” Petitioner never asked to have her name added. The parties were both aware that petitioner’s name could be added to the birth certificate, but, in respondent’s words, “because of an overall deteriorated relationship and a disconnect in any parenting of [R] by petitioner, it never happened.”
Documentary evidence conflicts with both of respondent’s accounts. A copy of the declaration of domestic partnership that the parties actually filed indicates that both parties signed it, and the midwife notarized it, on February 19, 2008, nearly a month after R was born.
R was reared with “attachment parenting,” a practice that calls for more-or-less constant physical contact between the baby and a caregiver. In respondent’s understanding, it is a “mother-centered philosophy” that “does not allow for ‘co-parenting.’” R slept between petitioner and respondent in their bed at night, but otherwise, respondent generally carried R in a sling, and R was dependent on her “for everything.” Petitioner would spend time with R, but never for very long without respondent being present and never alone for a night, as respondent “always had concerns” about petitioner and R “being alone together.”
The parties separated in 2012 and respondent subsequently denied petitioner regular contact with R. Later that year, petitioner commenced this action for dissolution of the domestic partnership. In the operative petition, she asserted a claim for declaratory relief, seeking a declaration that she is a legal parent to R. Petitioner alleged that, at the time of R’s conception and birth, she was respondent’s “domestic and life partner,” that she and respondent had planned the pregnancy with the intent to raise the child together, and that she had consented to the artificial insemination procedure. Petitioner also alleged that the parties would have married had Oregon law permitted them to.
In support of the declaratory-relief claim, petitioner relied on ORS 109.243, which provides:
“The relationship, rights and obligation between a child born as a result of artificial insemination and the mother’s husband shall be the same to all legal intents and purposes as if the child had been naturally and legitimately conceived by the mother and the mother’s husband if the husband consented to the performance of artificial insemination.”
Petitioner alleged that the statute unconstitutionally discriminated against her on the basis of sex and sexual orientation because, if she were male and married to respondent, it would create legal parentage in her without regard to whether she was R’s biological parent.
Petitioner later moved for summary judgment on her declaratory-relief claim. She relied on our opinion in Shineovich in support of the motion. In Shineovich, we explained that “ORS 109.243 grants a privilege — legal parentage by operation of law — to the husband of a woman who gives birth to
“Because same-sex couples may not marry in Oregon, that privilege is not available to the same-sex domestic partner of a woman who gives birth to a child conceived by artificial insemination, where the partner consented to the procedure with the intent of being the child’s second parent. We can see no justification for denying that privilege on the basis of sexual orientation, particularly given that same-sex couples may become legal coparents by other means — namely, adoption. There appears to be no reason for permitting heterosexual couples to bypass adoption proceedings by conceiving a child through mutually consensual artificial insemination, but not permitting same-sex couples to do so. Thus, we conclude that ORS 109.243 violates Article I, section 20.”
Id. at 686. We went on to hold that the appropriate remedy for the violation was to “extend the statute so that it applies when the same-sex partner of the biological mother consented to the artificial insemination.” Id. at 687.
In her motion, petitioner argued that, under Shineovich, “there are two requirements for application of the statute to [R’s] situation: that the parties be domestic partners and that [petitioner] consent to the insemination.” She asserted that both requirements were satisfied and, thus, that the court should grant summary judgment in her favor.
In response to the motion, respondent argued that Shineovich is distinguishable from this case. She asserted that, there, the parties were registered domestic partners before their children were born, whereas she and petitioner did not become domestic partners until nearly two months after R was born. Respondent contended that “the protections afforded in ORS 109.243 apply to domestic partners, not simply people in a relationship.” According to respondent, “[i]f petitioner were male, the situation at hand would be that of a boyfriend trying to assert parental rights over a child who was born before the marriage and is undisputedly not the biological father.” Respondent also argued that she had never consented to petitioner being considered her “husband equivalent” and that “to presume such consent now would be to deprive Respondent of significant due process rights to consent or withhold consent to the biological and/or legal paternity of a child born of her body.” Respondent argued that this case is further distinguishable from Shineovich because, in that case, “the parties were unable to have both parties’ names on the birth certificate, but in this case the parties were able, but chose not, to add Petitioner’s name to the birth certificate. This gives insight into the parties’ intent ***."
After a hearing, the trial court granted the motion for summary judgment. In a letter opinion, the court stated:
“No pertinent facts are in dispute regarding the nature of the parties’ relationship prior to the birth of [R], It is crystal clear that they lived together as a couple, intended to remain together, and intended to have a child and to co-parent the child. It is evident that [petitioner] consented to the performance of the artificial insemination.”
The court entered a limited judgment declaring that R is the child of petitioner and respondent “the same as if born to them in lawful wedlock” and ordering the State Registrar and the Center for Health Statistics to issue a birth certificate for R designating both parties as legal parents.
Respondent appeals, assigning error to the trial court’s grant of summary judgment. She makes three primary arguments. First, respondent contends that summary judgment was inappropriate because there are factual disputes that, if resolved in her favor by a factfinder, distinguish this case materially from Shineovich. Second, she argues that the trial court’s interpretation of Shineovich actually creates a privilege or immunity that is not granted to all citizens on equal terms, in violation of Article I, section 20. Specifically, respondent asserts that the trial court created a privilege
Respondent’s argument that this case is factually distinguishable from Shineovich misses the mark, as we addressed a different question in Shineovich than we address in this case. In Shineovich, we analyzed only whether ORS 109.243 violates Article I, section 20, because it denies a privilege to the same-sex partner of a woman who conceives a child through artificial insemination and, having concluded that the statute does violate Article I, section 20, held that the appropriate remedy was to extend the statute “so that it applies when the same-sex partner of the biological mother consented to the artificial insemination.”
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.” As we explained in Shineovich, that provision of the constitution
“protects against disparate treatment of ‘true classes’— that is, classes that are defined not by the challenged law itself, but by a characteristic apart from the law, such as gender, ethnic background, residency, military service, and — as pertinent here — sexual orientation. Tanner v. OHSU,157 Or App 502 , 521, 524,971 P2d 435 (1998). Disparate treatment of a subset of true classes — ‘suspect classes’ — is subject to more rigorous scrutiny than disparate treatment of other true classes. Suspect classes are those that have been ‘the subject of adverse social or political stereotyping or prejudice.’ Id. at 523. Homosexuals constitute a suspect class. See id. at 524 (‘[I]t is beyond dispute that homosexuals in our society have been and continue to be the subject of adverse social and political stereotyping and prejudice.’). Disparate treatment of suspect classes is permissible only if it can be justified by genuine differences between the class and those to whom privileges or immunities are made available.”
In Shineovich, we held that ORS 109.243 violates Article I, section 20, because it creates a privilege that “is not available to the same-sex domestic partner of a woman who gives birth to a child conceived by artificial insemination, where the partner consented to the procedure with the intent of being the child’s second parent.”
In retrospect, we recognize that our reference in Shineovich to the nonbiological partner’s intent to be the child’s second parent may be misleading. The reference simply reflected the facts of that case — there was no question that the petitioner in Shineovich intended to be the children’s second parent. See id. at 672 (“The parties rushed to perform the ceremony before [the first child’s] birth specifically with the intent that petitioner would be his legal parent.”). We did not mean for that fact to establish a benchmark for determining whether ORS 109.243 should be applied to any particular same-sex couple. When it enacted the statute, the legislature may have assumed that any husband who consented to his wife’s being artificially inseminated intended to be the resulting child’s parent, and thus saw no need to include an intent requirement in the statute. Whatever the reason, the statute does not turn on intent, and our ultimate conclusion in Shineovich reflects that. We concluded that “the appropriate remedy is to extend the statute so that it applies when the same-sex partner of the biological mother consented to the artificial insemination.”
Extending the statute simply on the basis of intent to be a parent would comport with one purpose of the legislation — protecting the support and inheritance rights of children conceived by artificial insemination — but it would not be consistent with the overall statutory scheme— specifically, the legislature’s decision to make the statute apply only to children of married couples. If an unmarried opposite-sex couple conceives a child by artificial insemination using sperm from a donor, the statute does not apply, even if the couple, in the words that the trial court used to describe petitioner and respondent, “lived together as a couple, intended to remain together, and intended to have a child and to co-parent the child.” Accordingly, it would be inappropriate for courts to extend the statute to same-sex couples solely on the basis of one or both of the parties’ intent to have the nonbiological party assume a parental role. See Hewitt,
We therefore conclude that choice is the key to determining whether ORS 109.243 applies to a particular same-sex couple. Ultimately, the distinction between married and unmarried heterosexual couples is that the married couples have chosen to be married while the unmarried couples have chosen not to be. And, as we have explained, that choice determines whether ORS 109.243 applies. Given that same-sex couples were until recently prohibited from choosing to be married, the test for whether a same-sex couple is similarly situated to the married opposite-sex couple contemplated in ORS 109.243 cannot be whether the same-sex couple chose to be married or not. Rather, the salient question is whether the same-sex partners would have chosen to marry before the child’s birth had they been permitted to.
Whether a particular couple would have chosen to be married, at a particular point in time, is a question of fact. In some cases, the answer to that question will be obvious and not in dispute. For example, there was no disputing that the parties in Shineovich would have chosen to marry — they actually did make that choice, and were not legally married only because their marriage was later declared void ab initio. Shineovich,
In this case, the summary judgment record includes evidence pointing to two factors that tend to support the opposite inference — that the couple would not have married in any event: rejection of the institution of marriage and intent not to share legal parentage of any children born during the relationship. We use the phrase “tend to support” advisedly, particularly with respect to rejecting the institution of marriage. A factfinder would need to evaluate a professed rejection of marriage carefully in the light of a couple’s conduct and history. It stands to reason that a person who has been denied the benefits of a social institution might react to that denial by rejecting the institution’s validity or worth but might, once the prohibition is lifted, change his or her view and embrace the institution. Because the question is whether a couple would have married if they could have, the factfinder must determine what the individual’s views would have been if marriage had not been prohibited. In some cases, it may be reasonable to infer that the individual’s views would not have changed — that is, they still would have declined to marry, just as many committed opposite-sex couples do. In other cases, the more reasonable inference may be that a same-sex couple’s rejection of marriage was rooted in the prohibition itself and that, indeed, the couple would have married had the law allowed.
With the above standards in mind, we turn to whether summary judgment was appropriate in this case. “The court shall grant [a summary judgment] motion if the pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law.” ORCP 47 C. Respondent stated in her affidavits that the parties did not want to enter into a legal relationship, because they “did not believe in such social constructs.” A factfinder could find that respondent was not credible or, given that the parties registered a domestic partnership (the closest thing to marriage that the state offered to same-sex couples at the time) shortly after such partnerships became available, that her view would have been different had same-sex marriage not been prohibited. However, because the case is in a summary-judgment posture, we must draw all reasonable inferences in respondent’s favor. Jones,
As noted above, respondent argues that ORS 109.243 does not apply for another reason, namely, that petitioner did not consent to the artificial insemination. Because the meaning of “consent” will be at issue on remand, we address it briefly here. Respondent understands “consent” to require that the biological mother not only received the approval of her partner for the artificial insemination, but that she also sought that approval in the first place. Respondent notes that the common definition of “consent” is “give assent or approval,” see Webster’s Third New Int’l Dictionary 482 (unabridged
Respondent’s argument raises an issue of statutory-construction. To determine whether the legislature intended “consent” to be understood to include intent by the mother to share legal parentage, we look to the text of ORS 109.243 in context and to any relevant legislative history. State v. Gaines,
We turn finally to respondent’s due process argument. Respondent asserts that the Due Process Clause of the Fourteenth Amendment to the United States Constitution “‘protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.’” (Quoting Troxel v. Granville,
We decline to address that argument for two reasons. First, the parties’ very brief arguments on appeal do not adequately grapple with the difficulty in “identifying] the scope of the parental rights protected by the Due Process Clause.” O’Donnell-Lamont and Lamont,
To summarize, the summary judgment record, viewed in the light most favorable to respondent, establishes that there are issues of material fact that, if resolved in respondent’s favor, lead to the conclusion that the parties were not similarly situated to a married heterosexual couple. If the factual disputes were resolved in that manner, the result would be that ORS 109.243 does not operate to make petitioner R’s legal parent. It follows that the trial court erred in granting petitioner’s summary judgment motion.
Reversed and remanded.
Notes
The parties registered their partnership in Tillamook County under the Oregon Family Fairness Act (OFFA), ORS 106.300 to 106.340, which provided for the “establishment of a domestic partnership system [to] provide legal recognition to same-sex relationships.” ORS 106.305(6). The OFFA was signed into law in 2007, “but because of a court challenge, did not go into effect until February 4, 2008.” Slater v. Douglas County, 743 F Supp 2nd 1188, 1190 (D Or 2010). Thus, the OFFA was not in effect when R was born.