A Service of Rainbow Law

Holding that a state donor insemination statute must be construed to allow the former lesbian partner of a woman who conceived two children during their relationship to seek a legal determination of parental rights, the Oregon Court of Appeals ruled in Shineovich v. Kemp, 2009 Westlaw 2032113 (July 15, 2009), that the failure to so construe a state statute would produce unconstitutional results.

According to the opinion for the court by Judge Rosenbloom, the parties decided to have a child together in 2003, and the defendant became pregnant through donor insemination.  Shortly before their child was due to be born, the Multnomah County Board, responding to the same-sex marriage frenzy set off by San Francisco Mayor Gavin Newsom in February 2004, determined to issue marriage licenses to same-sex partners.  The parties quickly obtained a license so they would be married before the birth of their child.  Subsequently, the Oregon courts decided that those licenses were not valid.  After the child was born, the plaintiff shared parenting responsibilities with the defendant.  They decided to have another child, and defendant became pregnant through donor insemination in 2006, but the relationship deteriorated and the parties separated before the child was born.  After the separation, defendant "denied petitioner regular contact with the children," so she sued to establish her parental rights.

The plaintiff relied on two Oregon statutes.  One provides that when a woman becomes pregnant while married to a man who is neither impotent nor sterile at the time of conception, the man will be "conclusively presumed" to be the legal father of the child.  The second provides that when a married woman becomes pregnant through donor insemination with the consent of her husband, the child and the husband will have the same legal status as if the husband had physically conceived the child with its mother.  Plaintiff argued that she should have the benefit of being presumed the parent of these two children borne by her former partner, pointing out that they were married when the first child was born and arguing that plaintiff had consented to the donor insemination proceedings both times with the intent of being the legal parent of the resulting children.  She argued that it would violate her right to equal protection of the laws to treat her any differently from a husband in these circumstances.  The trial court rejected her arguments and granted the defendant's motion to dismiss the case.

The appeals court rejected her argument regarding the first statute but accepted it as to the second.  The first statute was intended to create the parental presumption in circumstances where the husband was physically capable of having participated in the conception of the child, and, the court observed, a lesbian same-sex partner cannot generate sperm -- science hasn't gotten us that far yet, has it? -- so it did not find invocation of that statute to be appropriate to this case. 

But the second statute, involving donor insemination, did seem on point to this situation.  If the wife becomes pregnant through donor insemination from a third party's sperm, then there is no possibility or pretense that her husband was physically involved in impregnating her, and the statutory goal is to recognize the intended family grouping and ensure that the resulting child has two legal parents from the moment of its birth.  Given these policy goals, there is no good reason to deny similar standing and status to a same-sex partner, and refusal to do so raises constitutional issues.

In getting to this conclusion, the court had to deal with the fact that Oregon voters amended their state constitution in 2004 to add a ban on same-sex marriage.  Luckily, the Oregon marriage amendment is of the minimalist variety, merely providing that only marriage between a man and a woman would be legal in Oregon.  This led the court to the same conclusion recently embraced by the California Supreme Court in construing Prop 8 - that the marriage amendment does not undermine the equal protection rights of same-sex couples to be entitled to the same rights and benefits as opposite sex couples under state law, except to the extent of denying the name of "marriage" for their relationships.  This is consistent with the recent action by the Oregon legislature and executive to enact a broad Domestic Partnership Act that extends almost full marriage rights under state law to same-sex couples.  And it means that the Marriage Amendment is not a barrier to plaintiff's claim in this case to the right to be treated the same as a husband, inasmuch as Oregon would not allow her to marry her former partner during the time they were together and having these children.

In its key holding, the court said, "To the extent that anything in the enactment history of Measure 36 suggests that the measure was intended to permit the state to exclude same-sex couples from legal benefits granted to married couples, such an intent cannot be squared with the unambiguous text."

Turning to the donor insemination statute, the court readily agreed with the plaintiff that it would be unconstitutional to deny the benefits of that statute to same-sex couples.  "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," which contains the Oregon Constitution's equal protection requirement.

Turning to the issue of remedy, the court noted that there would be substantial disruption if it were to strike down the statute on grounds of unconstitutionality, casting doubt on the legal status of many children and their parents in Oregon.  The alternative route is to construe the statute to avoid the constitutional problem, which the court did by extending the statute to this situation.  Since the trial court had dismissed the case on pre-trial motion, this necessitated a remand to the trial court so there can be fact-finding as to the circumstances of conception of the two children.  If the plaintiff shows that her partner was inseminated with her consent and their intention to raise the children as co-parents, then she will be entitled to a determination of legal parental status, and the trial court can then move on to determine whether it would be in the best interest of the children to make a custody and visitation award.

This case is significant, apart from the specific issue of parental rights, in forecasting that any attempt to challenge the constitutionality of the Domestic Partnership Act is likely to fail.

Oregon attorney Mark Johnson represents the plaintiff, Murphy McGrew represents the defendant, who had argued that the plaintiff had no legal rights to contact with the children.  The ACLU and Basic Rights Oregon participated as amicus on behalf of the plaintiff.