In the case of Sause v. This week’s Schnitzer is about the question of the extent to which a donor of reproductive material (such as sperm or egg cells) can have legal parental rights. And it is a factually complex case that leads to a number of different and contradicting decisions. Fortunately, the Oregon Appeals Court has just issued an opinion that appears to logically resolve many of the problems in the case. That is, unless the Oregon Supreme Court decides on a new round of appeals.
Where to start This case has been going on for a while – the child in question was born in December 2015 – and I admit that in order to write this week’s column I read my own article on the 2016 case. In short, Jordan Schnitzer is an Oregon business tycoon and philanthropist. He had two daughters from a previous marriage but was very much hoping for a son. He tried assisted reproductive technology, including finding an anonymous egg donor and a pregnancy carrier, to no avail. At a time when he was still working on conceiving with donated eggs and a pregnancy carrier, he was romantically involved with a woman 30 years his junior, Cory Sause. In 2014, Sause had her eggs removed separately for cryopreservation. Knowing that Schnitzer wanted another child, Sause offered Schnitzer to donate some of the eggs she found … under special conditions.
The couple agreed that Schnitzer’s sperm would be used to fertilize Sause’s egg cells and that Sause would receive all rights to all female embryos and Schnitzer all rights to all male embryos. Unfortunately for Sause, the fertilization process only resulted in three embryos, all of which were male. The male embryos were transferred to the Schnitzer fertility clinic and he signed a contract with a gestation carrier and the gestation carrier’s husband. Sause was not involved in this contract.
After a failed first attempt at transferring the embryos, Schnitzer’s efforts to find a gestation carrier ultimately led to a healthy pregnancy and finally to the birth of a child who, in the opinion of the court of appeal, was named S. At that point, Schnitzer and Sause were no longer in a relationship. Schnitzer, however, kept Sause informed about the progress of the pregnancy and the birth. He then broke off contact with her when the two had an argument shortly after giving birth. Schnitzer became the only legal parent of the child under Oregon law shortly after the child was born.
An argument arose when Sause decided to claim she was the child’s mother. She asserted this even though she had previously agreed to expressly waive all rights to custody of any arising child, as well as any financial responsibility. She says she didn’t equate with giving up parental rights. Schnitzer, not surprisingly, disagreed.
A Multnomah County court first ruled in response to a petition filed by Schnitzer that Schnitzer was the only legal parent of S and that neither the gestation bearer nor her spouse were parents (as the law defaults to suggest). A hearing was held on Sause’s objection to this ruling, and the court ruled in favor of Schnitzer.
When Sause filed a separate lawsuit after a multi-day trial, a Multnomah County judge found that Sause initially had a presumption of maternity due to her genetic link to the child and that she had taken steps to assert those parental rights. Sause was born as the parent of S.
Schnitzer appealed, and on June 3, 2021, the Oregon Appeals Court split, ruling 2-1 for Schnitzer.
Given the complexity of assisted reproductive technology issues and outdated parentage laws, the three judges could not agree on the decision or the legal basis for the decision. Ultimately, two judges ruled against Sause’s legal parentage, finding that Schnitzer was the child’s sole legal parent, although he went different ways to get there. The third judge disagreed and took the side of the trial and Sase’s finding that S.
One judge, Judge DeHoog, challenged the finding of the court of first instance that Sause was a mother of S “because she is his undisputed female genetic parenthood” and “took every legal measure available to her to protect her parental rights and role to protect and enforce “. “In the child’s life. DeHoog stated that the court did not believe that Sause had made the additional demonstration required to acquire the rights. Some of the factors DeHoog relied on included the fact that Sause had not made sufficient efforts prior to birth to protect and enforce her parental rights, the fact that genetics alone do not make a parent, the intent of the parties ( e.g. Schnitzer had tried to have a child with the aim of being the only legal parent of the child) and the fact that Schnitzer Sause had made no promises that she would play a role in the child’s life. And although the parties had reached a written agreement prior to egg donation, the contract Sause signed with Schnitzer explicitly denied any parental, financial or other responsibility for any male child born as a result of their egg donation to Schnitzer.
Another judge, Judge Mooney, agreed that Sause had failed to take the necessary steps to establish a parent-child relationship. However, he saw the situation more simply. Schnitzer alone took the decisive steps to conceive the child – simply by reaching an agreement with the gestation carrier and her spouse. In the first court ruling, the gestation carrier and her spouse were not designated as parents and Schnitzer as the sole parent. Mooney argued that ancestry through assisted reproductive technology – with its deliberate and planned parenting – should be viewed in a different way than the case analysis of ancestry cases through sexual intercourse. Mooney also relied on amended ORS 109.239 (amended by SB 512, effective Jan. 1, 2018) as the court of first instance judgments making Sause a legal parent were not submitted to the court until after SB 512 came into effect . As Mooney puts it succinctly, “Schnitzer and Sause were just gamete donors. In fact, there is nothing particularly complex about it. Both had no parental rights when S was born. Schnitzer’s status as the legal parent of S comes from his agreement with the gestation carrier and her husband, not from his genetic connection to S. He is a man who is also the legal parent of S. ORS 109.239 excludes any claim by Sause as a gamete donor for parental rights. “
The dissenting judge, Judge Kamins, argued instead that the court should focus on some of Schnitzer’s assurances with his then romantic partner that she was promised a role in the child’s life and that she quickly filed a lawsuit after the birth when that role was threatened was. But these arguments could not prevail.
Contracts are important – and behavior outside of contracts is also important
As mentioned in my earlier article, it is shocking that the contract – written for a wealthy tycoon, not less but by his corporate attorney – stated that Sause had neither custody nor financial responsibility for the child but was silent about the birth Certificate or parentage. If Sause wanted parental rights and should be mentioned on the birth certificate, she should have insisted that the contract be so. She should also have insisted that she be part of the agreement with the gestation carrier and her husband. She didn’t do any of this. The ambiguity, coupled with communications outside of the contract (despite the contract, of course, which states that it is the entirety of her agreement) and Sase’s lack of involvement in the gestation carrier and this agreement have caused the last five years of litigation.
1) Donation recipients take note – especially in countries without updated assisted reproductive technology (ART) laws. Since S’s birth in 2017, Oregon has updated its ART laws to clearly define that an egg donor has no parental rights. Check your state’s applicable laws and speak to an ART attorney to better understand your risk before entering into a donation agreement.
Robin Pope, Oregon ART attorney, a key force behind the updated Oregon ART law and co-author of an amicus briefing in support of Schnitzer’s position, gave her response to the appeals court ruling. “I am pleased with the outcome of this trial as it confirms that the ART Act is alive in Oregon. The intention is important. “
2) While known donation agreements are generally positive, the legal framework for donating becomes less clear when there is a romantic relationship or other communications or promises are made regarding the donor as the parent or the donor’s involvement in the child’s life. Consider avoiding donation agreements if the donor-recipient relationship falls into the romantic or “complicated” category.
3) And of course, both donors and recipients should be represented in the required jurisdiction by an independent attorney who specializes in assisted reproductive technology law and a solid contract that leaves no key words – e.g. a parent of a resulting child in the future or not – silent. Don’t ask your business or family law attorney friend to write it for you. Lawyers, take note: don’t try this area of law. It is specialized and risky.
We hope we won’t be back here in a couple of years.
Ellen Trachman is the executive attorney for Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I want to put a baby inside you. You can reach them at [email protected].