Family Law, Health Care / Medicine, Kids

I Want To Put A Baby In You: The Schnitzer Case – Taking Sex Selection To A Whole Other Level

The latest case to hit headlines, that of Oregon business tycoon Jordan Schnitzer, makes prior sex-selection controversies look completely straightforward by comparison.

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baby boy baby girl brother sister sex genderLast week I discussed Chrissy Teigen’s controversial choice to select the sex of her baby—using the in vitro fertilization (IVF) process—with husband John Legend. But the latest case to hit headlines, that of Oregon business tycoon Jordan Schnitzer, makes Teigen’s sex-selection controversy look completely straightforward by comparison.

In a convoluted set of emerging allegations, it appears that the 64-year-old Schnitzer had two daughters from an earlier marriage, but still wanted a son to inherit his business ventures. He tried to undergo IVF with his sperm and an anonymous donor twice, but each time it failed. The first time the surrogate didn’t become pregnant. The second time, the surrogate did become pregnant, but later miscarried.

Then Cory Sause entered the picture. Nearly thirty years younger than Schnitzer, she was also of prominent Oregon business lineage. Sause had already frozen some of her eggs before meeting Schnitzer. When they started dating, she apparently offered her eggs to try to conceive with Schnitzer. To add to the made-for-TV movie storyline, Sause had been in a drunken car accident while a student at Lewis and Clark Law School in 2004, killing a 21-year-old man and severely injuring his 14-year-old brother. Schnitzer alleges that Sause repeatedly told him, “I took a life and I want to help create a life.” (Sause’s mug shot is here.)

The couple had a contract drawn up in the summer of 2014, several years after Sause was released from jail. Media reports indicate that Schnitzer unequivocally disavowed rights and responsibilities to any embryos that were female, and Sause gave up rights to male embryos. The controversy relates to what it means to give up rights to an “embryo” once the embryo later becomes a human baby.

Schnitzer had one of the male embryos that was formed—bear with me here—with (1) his sperm and (2) Sause’s frozen eggs transferred (3) to the uterus of a surrogate, and in December 2015 a son was born. Schnitzer successfully petitioned an Oregon court for an order stating that only his name should go on the child’s birth certificate, based on the argument that the embryos were formed from his sperm, as an intended parent, and eggs from a donor.

Now the wording and intent of the contract is hotly at issue. Sause claims that while she did give up certain rights to the male embryos, she did not give up the right to be acknowledged as the mother of the child on the child’s birth certificate, or the right to visitation with the child.

Other assertions muddying the waters include Schnitzer’s claims that he was clear with Sause that having another parent—as was the case with his daughters and his ex-wife—made parenting more complicated than he wanted for his son. But Sause claims that Schnitzer was texting her throughout the pregnancy, and making comments about the birth of “their child.”

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1. Is this a case of Sloppy Lawyering or Trying to Pull a Fast One? It appears from reporting about the contents of the embryo contract that it lacked parallel provisions. That is, Schnitzer gave up rights to the female embryos and any offspring from those embryos, and Sause gave up rights to the male embryos. But the contract was silent as to rights to offspring from such male embryos. In other words, Sause has a good argument that the contract contemplated that rights to “embryos” are different than rights to “offspring.” For a contract so focused on the questionable desires of a man to have his son inherit his business ventures, this would be a surprising drafting error.

But if that language is not intentional, it’s the result of one of two things: either sloppy lawyering, or an attempt to pull a fast one by Sause. Since it’s hardly likely that Sause had this planned from the beginning, it seems like a case of the lawyers simply not noticing the importance of the two provisions. Indeed, the way the contract is written maximizes the possibility of confusion and simply begs for the current litigation.

2. Does Giving Up Rights to Reproductive Material Automatically Give Up Rights to Parent Resulting Children? While Oregon does not have an egg donor statute on point, it does have a sperm donation statute stating that a “donor shall have no right, obligation or interest with respect to a child born as a result of the artificial insemination.” This type of statue seems initially helpful for Schnitzer. Not so fast, though. In the 1980s, an Oregon court ruled against Linden Crouch, an Oregon woman who had her friend donate sperm to help her conceive a child. After the child was born, Crouch’s friend tried to claim parental rights. A trial court initially dismissed his claims based on the artificial insemination statute discussed above, but an appellate court reversed. It held that Crouch’s friend was entitled to a hearing to prove that he and Crouch had agreed for him to be involved in the child’s life. The Oregon Supreme Court and U.S. Supreme Court refused to disrupt that ruling.

In short, as much as Schnitzer tried to cover his bases, it looks like Sause may have a plausible argument. Sause is trying to raise her legal issues at a hearing on April 4. I, for one, will be curiously watching.

Earlier: I Want To Put A Baby In You: And I Want To Choose If It’s A Boy Or Girl

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.

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