In re Schnitzer

• Decision Date: 03 June 2021
• Docket Number: A167020
• Citation: 493 P.3d 1071,312 Or.App. 71
• Court: Oregon Court of Appeals
• Parties: In the MATTER OF the Parentage of Samuel Director SCHNITZER, a Minor Child. Cory Noel Sause, Petitioner-Respondent, and Jordan Director Schnitzer, Respondent-Appellant. In the Matter of the Parentage of Samuel Director Schnitzer, a Minor Child. Jordan Director Schnitzer, Petitioner-Appellant, and Cassandra Lynn Gibeaut and Charles Burett Gibeaut, Petitioners below, and Cory Noel Sause, Respondent-Respondent, and Dale C. Sause and Heidi N. Sause, Respondents below.

312 Or.App. 71

493 P.3d 1071

In the MATTER OF the Parentage of Samuel Director SCHNITZER, a Minor Child.

Cory Noel Sause, Petitioner-Respondent,

and

Jordan Director Schnitzer, Respondent-Appellant.

In the Matter of the Parentage of Samuel Director Schnitzer, a Minor Child.

Jordan Director Schnitzer, Petitioner-Appellant,

and

Cassandra Lynn Gibeaut and Charles Burett Gibeaut, Petitioners below,

and

Cory Noel Sause, Respondent-Respondent,

and

Dale C. Sause and Heidi N. Sause, Respondents below.

A167020

Court of Appeals of Oregon.

Argued and submitted October 1, 2019.

June 3, 2021

James N. Westwood, Portland, argued the cause for appellant. Also on the briefs were Stoel Rives LLP, Davis Wright Tremaine LLP, Stahancyk Kent & Hook PC, and Laurel Parrish Hook.

Jay W. Beattie, Portland, argued the cause for respondent. Also on the brief were Lindsay Hart LLP, Thomas E. McDermott, Erin Gould, and Charles D. Gazzola.

Robin E. Pope filed the brief amicus curiae for Academy of Adoption and Assisted Reproduction Attorneys.

Before DeHoog, Presiding Judge, and Mooney, Judge, and Kamins, Judge.^*

DeHOOG, P. J.

This appeal involves a dispute over the legal rights, status, and relationship of respondent Sause to a male child, S, who, after being conceived by in vitro fertilization using appellant Schnitzer's sperm and an unfertilized egg that Sause had provided, was then carried and birthed by a gestational carrier (also known as a surrogate mother). After the child's birth, the parties initiated separate legal proceedings seeking a determination of their respective rights and interests as to S, and the trial court subsequently consolidated those actions.¹ Schnitzer asserted that Sause had no parental rights to S and that, even if she might otherwise have had such rights, she had knowingly waived them in a written contract with Schnitzer. Sause asserted that she is S's mother with all of the legal rights afforded that status, subject only to any express waiver of rights in the parties’ contract. In that regard, Sause acknowledged that she had agreed to relinquish legal custody of any male embryos conceived with Schnitzer as part of the assisted reproductive technology (ART) process that she and Schnitzer had engaged in, and that she had further agreed that Schnitzer would have sole legal custody of any resulting male offspring; however, Sause denied that she had ever waived—or intended to waive—all legal rights to S or a parental role in his life. Following a multiday bench trial, the trial court entered a general judgment declaring Sause to be S's legal mother.² Schnitzer, who had sought a declaration establishing himself as S's sole parent, now appeals that judgment and raises five assignments of error.

In his first and second assignments of error, Schnitzer asserts that the trial court erred in concluding that Sause is S's "mother by virtue of being his undisputed female genetic parent" and having taken "every legal step available to her to protect and assert her parental rights and role in [S's] life." Put somewhat differently, Schnitzer asserts that the trial court erred in treating Sause's biological parentage as giving rise to a presumption of legal parentage and in ultimately concluding that Sause has a constitutionally protected parental right. In Schnitzer's third and fifth assignments of error, he contends that the trial court erred in failing to recognize that Sause had entered into a contract with him confirming that she had no parental rights as to S and by failing to enforce all of the terms of that contract. Finally, in Schnitzer's fourth assignment of error, he contends that, in light of his other arguments, the court erred in denying his claim for a declaration of sole parentage. For the reasons that follow, we agree with Schnitzer that the trial court erred in concluding, based largely on Sause's genetic connection to S, that Sause is his legal mother. That conclusion renders it unnecessary to reach Schnitzer's third and fifth assignments of error regarding the parties’ contract; it also leads us to further conclude that, as asserted in the fourth assignment of error, Schnitzer is entitled to a declaration that he is S's sole legal parent.³ We therefore reverse and remand for entry of a declaration to that effect.

I. BACKGROUND

A. Standard of Review

As an initial matter, we note that Schnitzer assigns error to the denial of his ORCP 54 B(2) motion to dismiss Sause's claim for a declaration of parentage, which he made at the conclusion of Sause's presentation of her case. However, Schnitzer also includes argument regarding the court's ultimate conclusions on the merits of the case pertaining to that same legal issue, which he raised midtrial.⁴ Based on the substance of the parties’ arguments, we understand Schnitzer to challenge both the trial court's denial of his ORCP 54 B(2) motion and its de facto denial of Schnitzer's renewed argument made during closing argument, which raise the same legal issue, albeit at different points in time. See Larisa's Home Care, LLC v. Nichols-Shields , 277 Or. App. 811, 812-13, 372 P.3d 595 (2016), rev'd on other grounds , 362 Or. 115, 404 P.3d 912 (2017) (considering argument made during closing argument to be the functional equivalent of a motion to dismiss under ORCP 54 B(2) and concluding that, as presented in that case, the argument made on appeal was adequately preserved).

"On appeal of a denial of an ORCP 54 B(2) motion to dismiss a claim, we review the entire record to determine whether sufficient evidence was presented to establish a prima facie case on the applicable claim, viewing the evidence and all reasonable inferences that may be drawn from it in the light most favorable to" the party opposing the motion. Marlow v. City of Sisters , 281 Or. App. 462, 468, 383 P.3d 908 (2016) (internal quotation marks omitted). In addition, "we review the trial court's legal conclusions for errors of law." Id .

B. Factual and Procedural History

We begin by describing the pertinent facts in accordance with that standard, most of which are taken from the trial court's extensive written findings and conclusions of law. Schnitzer is a divorced father of two daughters, who wanted to add a son to his family. In early 2013, he began the process of becoming a parent through ART and worked with a program at Oregon Health & Science University (OHSU) Fertility Consultants. Because he had previously experienced contentious divorce and custody proceedings, he considered it important to have sole legal custody of any child produced through ART so that he could avoid any possibility of difficult custody litigation in the future. In 2013, he attempted to achieve a pregnancy via ART with an anonymous egg donor and a gestational carrier; however, that attempt did not result in a successful pregnancy.

In 2014, Schnitzer continued to work with OHSU and a gestational carrier in an effort to produce a son using embryos created with eggs from an anonymous donor.

Schnitzer met Sause early that year and the two developed an intimate relationship not long thereafter. In February, Schnitzer told Sause of his plans to have a son, which he continued to pursue. In April, pursuant to that plan, OHSU transferred an embryo that had been created using Schnitzer's sperm and an egg from the anonymous donor to the gestational carrier; however, Schnitzer learned on May 19 that, like the 2013 attempt, the April 2014 embryo transfer had not resulted in a successful pregnancy.

In the meantime—while her relationship with Schnitzer was ongoing—Sause decided to have her own eggs retrieved for independent purposes, unrelated to Schnitzer's plans to have a male child through ART. To that end, Sause met with her physician, Dr. Wu, at OHSU Fertility Consultants in early March 2014 to begin the process of having her eggs retrieved for fertility preservation purposes.

In April, as Schnitzer proceeded in his efforts with the anonymous egg donor and gestational carrier, he and Sause discussed the possibility of Sause gifting him her eggs to support that effort. Sause testified about her conversations with Schnitzer and acknowledged that he had made it clear that he wanted to have sole physical custody and wanted to raise the child. Sause explained, however, that, although it was clear that the child would not live with her, it had never occurred to her that she would not be known as the child's mother. Rather, she understood that she would be actively involved and that Schnitzer welcomed the thought of her as a part of the child's life. She told him that she would not seek financial payments from him and that she would give him custody. She thought that they were fully in agreement, and it did not occur to her to ask about the child's birth certificate.

In response to Sause's offer, Schnitzer told her that he would consider accepting the gift of her eggs only if she would sign the same documents as any anonymous donor would. Sause agreed to sign any documents necessary to transfer her eggs to Schnitzer.

On April 23, 2014, Sause shared the idea of donating her eggs to Schnitzer with her doctor. Wu wrote in a chart note that Sause "may wish to create embryos together with her significant other" and that "she understands that contracts will need to be signed." Sause had her eggs retrieved on May 21, 2014.

Wu testified at trial that she had spoken with Sause by phone on May 29, 2014, and that they had discussed her plan to donate eggs to help Schnitzer have a son. Wu could not confirm having taken notes at the time of the phone call, but she said that her usual practice is to do so. On June 10, Wu entered a chart note about the May 29 call. That chart note indicated that Sause planned to donate any male embryos to Schnitzer and keep custody of all female embryos; it also stated that Sause "reports that their discussion and agreements have been that she will not have any future custodial or parenting rights to the male embryo(s) she donates to [Schnitze...