There’s a new case out of Oregon that I think warrants some discussion here. You can read the opinion but I’m going to summarize the facts and issues in some detail. Ultimately the issue presented here is important so bear with me as I lay it all out.
I’m actually going to start by talking about Oregon law generally because this, I think, is where the core issue lies. In Oregon if a man and woman are married and the woman is inseminated with sperm from a third party and if the man (who is of course a husband) consents to this procedure, then the man is automatically (and apparently indisputably) a legal parent of the resulting child. (This is set out in the first paragraph of the opinion, which I think is a manifestation of the centrality of this point.) The court notes (page 127) that this is not dependent on the intent of the parties (although perhaps the legislature made some assumptions about intent) but simply on the marital status of the people involved.
Equally important, under Oregon law if the man and woman are not married, the presumption does not apply. (127-28 in the opinion.) I think this follows from the court’s conclusion about the unimportance of intent. Either the couple is married (in which case the presumption applies and the man is a legal father) or they are not (in which case the presumption does not apply and the man is not a legal father, unless there is some other basis for his claim.) You cannot get yourself back into the assumption by showing that he was intended to be a legal father. The intent of the people involved has nothing to do with it.
The case at hand raises the question of what this all means for lesbian couples. But isn’t the first OR case on that point. Several years ago the OR Supreme Court decided a case called Shineovich (and if you search this blog you’ll find discussion of that opinion.) Some background here is also necessary.
In Shineovich the court extended the presumption of legal parenthood to a woman whose domestic partner gave birth to a child conceived with third-party sperm. (The insemination had occurred with the consent of the partner.) The court reasoned that the application of the presumption to a married man gave him (and indeed, the married couple) a benefit–automatic recognition as a legal parent–and that the failure to extend the same privilege to a similarly situated woman was a violation of the OR constitution. The court therefore extended the statutory presumption to reach the same-sex partners of a women who gave birth, assuming consent to insemination.
This brings us to the new case. Karah and Lorrena Madrone were a same-sex couple. (The opinion labels them as “respondent” and “petitioner” throughout. I find this confusing and will be using their names, but it it appears to you I have confused the parties, do by all means speak up. It’s been known to happen.) Lorenna gave birth to a daughter, R. R was conceived by assisted insemination and Karah consented to that insemination. The two women split up and Lorrena asserted that Karah was not a legal parent of R and hence had no rights to visitation, etc. Karah relied on Shineovich and asserted that she was entitled to recognition as a legal parent.
Now there are lots of disputed facts here. If you read the opinion you will see Lorrena’s version of the facts. The court lays Lorrena’s version rather than Karah’s because of the procedural posture of the case. Ultimately a trial judge will have to figure out which version of the facts is “true.” The court here does not reach any conclusion about that and neither do I. It is accepting Lorrena’s facts for the sake of argument. For the moment that’s enough said about the facts, though if anyone wants to talk about them we can surely do that.
Here’s the key thing for me: The court does not allow Karah to invoke Shineovich at this point. And it doesn’t do so because of that crucial distinction between married and unmarried couples in OR: Married couples get the benefit of the presumption of parentage while unmarried couples do not. Now the couple in Shineovich wasn’t married, but it seemed clear that the reason they weren’t married was that they weren’t allowed to be married. Lorrena’s assertion here is that she and Karah wouldn’t have been a married couple even if marriage had been allowed at the critical time. (Marriage is available to same-sex couples in OR now, if you’re wondering.) If they wouldn’t have been married even if they’d been permitted to marry, Lorrena claims, then they should be treated like an unmarried couple–which is to say no presumption of parenthood.
The appellate court here accepts the argument. This means that there is a question that the trial court has to determine in order to figure out whether Karah can invoke the presumption: Would they have gotten married if they could have gotten married? And so the case is sent back to the trial court for that determination.
Now I rather had to say this, but I think the appellate court may be reasoning correctly. Imagine it was clear beyond doubt that this couple would have been an unmarried couple no matter what. Let’s suppose it was clear that both agreed that they didn’t want to marry. Why should they have access to the presumption when a different-sex couple in the same situation would not?
The problem, from my point of view, is with the starting point: The presumption applies if you’re married but not if you’re not. And remember, it doesn’t apply even if the intent that the partner would be a parent is absolutely clear and unchallenged.
I’ll stop here–it’s long enough for one day. But you can see the next thing to think about is that pesky presumption and the line the OR court (or perhaps the statute) draws.