McIntyre v. Crouch

DEITS, J.,

specially concurring.

I agree with the lead opinion’s conclusion that ORS 109.239, if it applies to this case, violates father’s right to due process. However, I do not believe that we should even reach that issue, because the father in this case is not a “donor” for the purposes of ORS 109.239.

Judge Newman concludes that the term “donor,” as used in ORS 109.239, is unambiguous and clearly applies to petitioner. I disagree. The term is not defined in the statute. When read in the context of the statutory scheme and its purpose, it becomes clear that the statute was not intended to apply to this unique fact situation. ORS 109.239 was adopted as part of Oregon Laws 1977, chapter 686, an act concerned exclusively with artificial insemination. The act established certain procedures for artificial insemination and required that only a licensed physician could perform the insemination. *473It also provided that only a physician or a person under his supervision could select the donor, that the woman must request and consent to the insemination and that copies of the consent must be filed with the Bureau of Vital Statistics.

The legislative history of the act clearly reveals that the legislature did not intend to address the circumstances presented in this case. Rather, the act was designed: (1) to establish a legal obligation for a husband to support a child born to his wife by means of an artificial insemination to which he has consented and (2) to relieve the sperm donor and the child of any rights or obligations toward one another when neither the donor nor the mother intended that the donor be the legal father.1

Father’s situation here falls somewhere between the situation contemplated by the statute when a mother is inseminated with sperm obtained through a sperm bank from an anonymous donor, which clearly is governed by ORS 109.239, and the situation when a mother becomes pregnant through intercourse with a man who is not her husband, which clearly is not governed by ORS 109.239. In my view, the father in this case is much more closely aligned with the latter. Although there are significant differences between the situation here and one involving an anonymous donor, the only difference between this case and one involving an “ordinary,” out-of-wedlock pregnancy is that mother and father here did not engage in intercourse. In my view, that should not be the test of fatherhood, and I do not believe the statute compels v. to conclude that it is.

I would not construe the term “donor” to apply to father in this case. In my view, a donor, be it of property or of biological matter, is one who makes an unconditional, *474no-strings-attached “donation.”2 How can it be said that one “donates” a thing when he reserves the right to visit its product one weekend each month, six weeks each summer, every other birthday, alternate holidays and every Father’s Day? How is one a “donor” when he agrees to participate in the support, maintenance and upbringing of the product of the donated thing? If, on remand, father establishes that an agreement exists between mother and him, I would hold it enforceable under ORS 109.230.3

Although I agree in general with the lead opinion’s summary of the purposes of the artificial insemination statute, I do not agree with its broad application of the third purpose “to resolve potential disputes about parental rights and responsibilities.” 98 Or App 462 at 468. Although disputes over parental rights and responsibilities may be particularly cumbersome when an anonymous donor is involved, the same problems do not arise in a case such as this, where there is no question as to the identity of the donor or, for purposes of summary judgment at least, the parties’ intent. Ironically, the only cumbersome dispute in this case arises out of the statute itself. Were it not for the statute, there would be no question but that father has rights in and responsibilities for his biological child. I fail to see how a broad application of the statute to this case furthers any of the purposes that it cites.

See, e.g., Black’s Law Dictionary 437, 439 (5th ed 1979):

“Donatio. * * * The act by which the owner of a thing voluntarily transfers the title and possession of the same from himself to another person, without any consideration.
“Donor. * * * One who makes a gift.”

ORS 109.230 provides:

“Any contract between the mother and father of a child born out of wedlock is a legal contract, and the admission by the father of his fatherhood of the child is sufficient consideration to support the contract.”