Family Law

Oregon Court Of Appeals Rules For Tycoon Oregon Dad, Against His Egg Donor Ex-Girlfriend

This case has been going on for a while -- the child in question was born in December 2015.

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This week’s case — Sause v. Schnitzer — involves the extent to which a donor of reproductive material (like sperm or eggs) may have parental rights under law. And it’s a factually complicated case — resulting in a number of varying and conflicting decisions. Luckily, the Oregon Court of Appeals just issued an opinion that seems to logically settle many of the issues in the case. That is, unless the Oregon Supreme Court hears a new round of appeal.

Bizarre Facts

Where to start? This case has been going on for a while — the child in question was born in December 2015 — and I admit that in order to write this week’s column I went back and read my own article on the case from 2016. In short, Jordan Schnitzer is an Oregon business tycoon and philanthropist. He had two daughters from a prior marriage, but hoped very much to have a son. He tried assisted reproductive technology techniques, including finding an anonymous egg donor and a gestational carrier, without success. At a point when he was still working to create a pregnancy using donated eggs and a gestational carrier, he entered into a romantic relationship with a woman 30 years his junior, Cory Sause. In 2014, Sause separately had her eggs retrieved to be cryopreserved. Knowing that Schnitzer wanted another child, Sause offered to donate some of her retrieved eggs to Schnitzer … under some unique conditions.

The pair agreed that Schnitzer’s sperm would be used to fertilize Sause’s eggs, and that Sause would receive all rights to any female embryos, and Schnitzer would receive all rights to any male embryos. Unluckily for Sause, the fertilization process resulted in only three embryos, all of which were male. The male embryos were transferred to Schnitzer’s control at the fertility clinic, and he entered into a contract with a gestational carrier and the gestational carrier’s husband. Sause was not a party to that contract.

After a failed first transfer attempt with the embryos, Schnitzer’s efforts working with a gestational carrier finally resulted in a healthy pregnancy and ultimately the birth of a child, known as S in the Court of Appeals opinion. By that time, Schnitzer and Sause were no longer in a relationship. Schnitzer, however, kept Sause informed of the progress of the pregnancy and the birth. He then cut off contact with her when the two had an argument shortly after the birth. Schnitzer was legally established as the child’s only legal parent shortly after the child’s birth, in accordance with Oregon law.

The Dispute

A dispute arose when Sause decided to claim she was the mother of the child. She made this claim despite having previously agreed that she explicitly gave up all rights to custody of any resulting child as well as any financial responsibility. She says she did not intend for that to equate to giving up parental rights. Schnitzer, unsurprisingly, disagreed.

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A Multnomah County court initially issued a judgment, in response to a petition filed by Schnitzer, that Schnitzer was S’s sole legal parent, and neither the gestational carrier nor her spouse were parents (as the law presumed by default). A hearing was held on Sause’s objections to that judgment, and the Court ruled in Schnitzer’s favor.

When Sause brought a separate suit, after a multiday trial, a Multnomah County judge determined that Sause had an initial presumption of maternity based on her genetic connection to the child, and that she had taken actions to assert those parental rights. Sause was ruled a parent of S.

Schnitzer appealed, and on June 3, 2021, the Oregon Court of Appeals issued a split opinion, finding 2-1 in favor of Schnitzer.

The Split

Giving credence to the complexity of issues regarding assisted reproductive technology and outdated parentage laws, the three judges were unable to agree on the decision or the legal basis for the decision. Ultimately, two judges ruled against Sause having legal parentage, finding that Schnitzer was the sole legal parent of the child, although taking different paths to get there. The third judge disagreed, siding with the trial court and Sause’s finding as a legal parent of S.

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One judge, Judge DeHoog, took issue with the trial court’s finding that Sause was a mother of S “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 the child’s life. DeHoog explained that the court disagreed that Sause made the requisite additional showing to acquire rights. Factors relied on by DeHoog included the fact that Sause made insufficient effort before the birth to protect and assert her parental rights, the fact that genetics alone do not a parent make, the parties’ intent (e.g., Schnitzer had been trying to have a child using donor eggs and a gestational carrier for some time, with the goal of being the child’s only legal parent), and the fact that Schnitzer had not made any promises to Sause that she would have a role in the child’s life. And while the parties had entered into a written agreement prior to the egg donation, the contract Sause signed with Schnitzer specifically disavowed any custodial, financial, or other responsibility on her part to any male child born as a result of her egg donation to Schnitzer.

Another judge, Judge Mooney, concurred with the finding that Sause had not taken the necessary steps to establish a parent-child relationship. However, he viewed the situation in simpler terms. Schnitzer alone took the key steps for the conception of the child –- alone entering an agreement with the gestational carrier and her spouse. The initial court ruling determined the gestational carrier and her spouse not to be parents and Schnitzer to be the sole parent. Mooney argued that parentage by assisted reproductive technology — with its deliberate and planned parenthood — should be viewed in a distinct manner from the case analysis of parentage cases by sexual intercourse. Mooney also relied on amended ORS 109.239 (as amended by SB 512, effective January 1, 2018), as the trial court’s judgments making Sause a legal parent were not entered with the court until after SB 512’s effective date. As Mooney succinctly states, “Schnitzer and Sause were simply gamete donors. In fact, there is nothing terribly complex about that. Neither had any parental rights when S was born. Schnitzer’s status as S’s legal parent came from his agreement with the gestational carrier and her husband, not from his genetic link to S. He is a man who is also S’s legal parent. ORS 109.239 bars any claim by Sause as a gamete donor for parental rights.”

The dissenting judge, Judge Kamins, argued instead that the court should focus on some of Schnitzer’s assurances with his then-romantic partner, that she was assured a role in the child’s life, and that she took swift action in filing a lawsuit after the birth when that role was threatened. But these arguments failed to carry the day.

Contracts Matter — And Behavior Outside Contracts Matter, Too

As noted in my earlier article, it is shocking that the contract — written for a wealthy tycoon, no less, but by his business attorney — specified that Sause would have no custody or financial responsibility for the child, but was silent as to the birth certificate or parentage. If Sause wanted parental rights and to be named on the birth certificate, she should have insisted that the contract say that. Further, she should have insisted she be part of the agreement with the gestational carrier and her husband. She did none of these things. The ambiguity, paired with communications outside of the contract (despite the contract, of course, saying that it is the entirety of their agreement), and the lack of Sause’s involvement with the gestational carrier and that agreement, created the past five years of litigation.

Lessons Learned

1) Recipients to a donation beware — especially in states without updated assisted reproductive technology (ART) laws. Since the birth of S, Oregon in 2017 updated its ART laws to clearly define that an egg donor has no parental rights. Check your state’s applicable laws, and speak with an ART attorney to better understand your risk before entering into a donation arrangement.

Robin Pope, Oregon ART attorney, one of the main forces behind Oregon’s updated ART law, and co-author of an amicus brief in support of Schnitzer’s position, provided her reaction to the Court of Appeal’s ruling. “I am delighted with the outcome of this case, as it confirms that ART law is alive and well in Oregon. Intent matters.”

2) While known donation arrangements are generally positive, the legal framework for donation becomes less clear when there is a romantic relationship or other communications or promises are made involving the donor as a parent or the donor’s involvement in the child’s life. Consider avoiding donation arrangements when the relationship between the donor and recipient falls into the romantic or the “it’s complicated” category.

3) And, of course, both donor and recipient(s) should have representation by independent counsel specialized in assisted reproductive technology law in the requisite jurisdiction and a solid contract that does not leave key terms — such as whether one party may be recognized as a parent of a resulting child in the future or not — silent. Do not ask your friendly business or family law attorney to draft it for you. Attorneys, take warning: do not dabble in this area of law. It’s specialized and fraught with risk.

Here’s to hoping we aren’t back here again in a few years.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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