Oregon Appellate Court Adopts Progressive Interpretation of Donor Insemination Statute in Custody Dispute Between Lesbian Former Partners

Arthur Leonard Lesbian/Gay LawNotes 9.09

A lesbian who had separated from her partner
challenged the constitutionality of two Oregon
statutes: one that creates a presumption that a
husband is the father of a child born to his wife,
so long as the spouses are not separated; and
another that gives a husband parental rights
over a child born as a result of his wife’s artificial
insemination, so long at the husband consented
to the insemination. An Oregon appellate
court deemed the former statute
constitutional and inapplicable to lesbian couples,
but held the latter statute unconstitutional
unless it extends to give parental rights to a
same-sex domestic partner of an artificially inseminated
woman. Thus, the statute was upheld,
but judicially amended to apply under
circumstances such as those presented here.
Shineovich and Kemp, 230 Or. App. 670, 2009
WL 2032113 (Or. App. July 15, 2009).
The appeal by the woman cut off from her
partner’s children was argued by Mark Johnson
of Johnson and Lechman-Su of Portland, Oregon,
with amicus briefs from the American Civil
Liberties Union, ACLU Foundation of Oregon,
Inc., and Basic Rights Oregon. Murphy
McGrew of Lake Oswego, Oregon, represented
the birth mother.
Sondra Lee Shineovich and Sarah Elizabeth
Kemp had a 10–year relationship during which
Kemp was artificially inseminated and bore two
children. Shineovich alleges that she consented
to the insemination. Around the time of
the birth of their first child, the couple was married
in Multnomah County, but the marriage
was later declared void when the courts determined
that the county did not have authority to
issue marriage licenses to same-sex couples.
After the couple’s separation, Shineovich
sued for a declaration of parental rights. The
lower court dismissed her suit for failure to state
a claim, and only cursorily discussed the constitutionality
of the statutes. Shineovich appealed,
contending that laws that extend parental
rights to husbands must be read to extend
such rights to same-sex partners of women who
give birth during their partnership.
One statute challenged by Shineovich, Or.
Rev. Stat. Section 109.070(1), created a presumption
that a husband was the parent of his
wife’s child, but only if he was not impotent or
sterile at the time of the conception. (The provision
regarding impotency or sterility was removed
from the statute in 2007, after the events
precipitating this action.) The court held that
because this statute relates only to biological
paternity, and specifically applies only to people
capable of fertilizing a woman’s egg, it could
not, even if it were phrased in gender-neutral
terminology, grant parental rights to a woman; it
is not possible for a woman to fertilize the egg of
another woman. Thus, the lesbian partner of a
birth mother is in the same position, under this
statute, as an impotent or sterile man. Since the
presumption equally excludes any man or
woman incapable of fertilizing an egg, the statute
is not unconstitutionally discriminatory, according
to the court.
The second statute challenged by Shineovich
is quite different. Under Or. Rev. Stat.
Section 109.243, the relationship, rights and
obligation between a child born as a result of artificial
insemination and the mother’s husband
is viewed as the same as if the child had been
naturally and legitimately conceived by the
mother and the mother’s husband, so long as
the husband consented to the performance of
artificial insemination. Thus, the statute gives a
status to “husbands” that is not available to
other similarly situated persons. Under Oregon
law, therefore, a woman partnered with another
woman cannot be a “husband,” or any other
type of spouse, thus, the statute privileges men
and discriminates against women. Further, homosexuals
are a suspect class under Oregon jurisprudence,
and laws that disfavor a suspect
class are only justifiable if there is a genuine
difference between that class and other persons
granted some sort of privilege or immunity.
Thus, the court found the latter statute to contravene
the equal protection clause of Oregon’s
constitution.
The appeals court also considered the section
of the Oregon Constitution that prohibits
legal recognition of same-sex marriage . Unlike
such provisions in other states’ constitutions,
Oregon’s constitution does not prevent
marital-type benefits from being extended to
same-sex partners. (The court compared the
provisions in Georgia, Ohio, and Utah.) Definitions
of marriage from both legal and non-legal
sources do not indicate that “marriage,” in and
of itself, encompasses any particular benefits.
Thus, it is not unconstitutional under the marriage
amendment to extend statutory privileges
to same-sex partners on the basis of unequal
treatment of women or homosexuals. Such an
extension does not impinge on prerogatives integral
to the concept of “marriage.”
Under the rules of statutory interpretation
recognized in Oregon, if a statute is defective
because of under-inclusion, there exist two remedial
alternatives: a court may either (1) declare
the statute a nullity and order that its
benefits not extend to the class that the legislature
intended to benefit, or (2) extend the coverage
of the statute to include those who are aggrieved
by exclusion. In order to decide which
path to choose, the court sought to determine
which course would further the legislative objective.
The objective of the statute was, according
to the court, to protect children conceived
by artificial insemination from being
denied the right to support by the mother’s husband
or to inherit from the husband. Invalidating
the statute would undermine that purpose,
and might nullify the legal parent-child relationship
of any such child and the mother’s
husband.
“On the other hand,” said the court, “extending
the statute’s coverage to include the children
of mothers in same-sex relationships advances
the legislative objective by providing
the same protection for a greater number of
children.” Thus, “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.”
Under the first statute, the appellate court ordered
the trial court to enter a judgment declaring
that Shineovich is not the legal parent of
Kemp’s children, because she is not biologically
capable of being the genetic parent of
Kemp’s children.
Under the second statute, however, the trial
court, on remand, must treat Shineovich the
same as it would treat a mother’s husband.
Note, however, that the latter statute includes
an element of consent. Thus,Kemp alleged that
Shineovich could not prove that she “con-
Lesbian/Gay Law Notes September 2009 157
sented” to the artificial insemination because
no writing evidenced such consent. The court
held that writing is not essential to show consent,
and the lack of a writing does not foreclose
a claim. On the other hand, on remand, Shineovich
must prove that she in fact consented to
the insemination. Whether she consented is a
factual issue appropriate for determination by
the trier of fact. (Note: The appeals court also rejected
an attempt to dismiss this suit on jurisdictional
grounds, namely, that the petitioner must
name the state as a party whenever a state statute’s
constitutionality is challenged in an action
for declaratory relief.) Alan J. Jacob