dissenting.
I agree with the lead opinion that ORS 109.239 applies to petitioner by its terms and precludes him from obtaining parental rights in the child. I do not agree that that application of the statute is unconstitutional. I therefore respectfully dissent.
I have little to add to the lead opinion’s able discussion of the applicability of the statute. I agree with the observation in the concurring opinion that the legislature “did not intend to address the circumstances presented in this case” 98 Or App at 473 if, by that, Judge Deits means that the legislature probably did not think of this situation when it considered and adopted ORS 109.239. However, I do not think that that matters. The language of the statute is reasonably clear, and its general objective of denying parental rights to males whose semen is used for artificial insemination is very clear. ORS 109.239 applies when “the donor of semen used in artificial insemination is not the mother’s husband.” Thus, even the husband of a recipient is a “donor” under the statute, and husbands of recipients are the only donors who are not subject to the statutory exclusion of rights and obligations.
The quoted language also shows that the legislature *475was aware that a male who is acquainted with a woman, as well as a stranger, can be the source of the semen that is used for artificial insemination. The only “known” males to whom it made the statutory exclusions inapplicable are husbands who donate semen to their wives. Whether that was done by design or oversight, it was done unambiguously. It may be that, if the legislature had thought of a situation like this, where a donor who is not the mother’s husband has a consensual parental arrangement with her, it might have considered a second exception to the operation of the statute. However, it is not for this court to create that exception on the supposition that the legislature would or should have done so or that it did not mean what its statute clearly says.
I do not agree with the lead opinion and the concurrence that the application of ORS 109.239 to petitioner is a denial of due process. Lehr v. Robertson, 463 US 248, 103 S Ct 2985, 77 L Ed 2d 614 (1983), and Stanley v. Illinois, 405 US 645, 92 S Ct 1208, 31 L Ed 2d 551 (1972), on which the lead opinion and petitioner rely, involved the rights of unwed fathers with respect to children who were conceived through sexual intercourse. The lead opinion postulates that petitioner’s constitutionally protected interest is of the same magnitude as that of the fathers in those cases. Even if I shared that assumption, I would not agree with the lead opinion’s resolution of the due process issue. The state has a legitimate and compelling interest in the regulation of artificial insemination and its social and economic incidents. The state’s interest in this subject and in this substantive regulation is far greater than the governmental interest in the procedure that was held unconstitutional in Stanley or the one that was upheld in Lehr.
The lead and concurring opinions seem to treat petitioner’s situation as more analogous to that of a father who has impregnated a mother by sexual intercourse than to that of the typical artificial insemination donor. They emphasize the consensual decision to have a child that likens petitioner to an ordinary father and the “anonymous” nature of the typical donor that differentiates petitioner. My colleagues appear oblivious of the fact that the lines they draw are easily crossed. I cannot discern why the lead opinion’s due process reasoning would not extend to an anonymous donor who has second thoughts, obtains the mother’s identity and institutes *476a filiation proceeding or why that donor would any the less than petitioner be engaged in “efforts to assert the rights and responsibilities of fatherhood.” 98 Or App at 471.
The lead opinion also seeks to differentiate petitioner from other donors who might be familiar with the mother of an artificially inseminated child. It states:
“There is no constitutional requirement that, because the donor is known to the unmarried woman when he gives his semen, he must have a claim to be a father. That he is known does not mean that he has asserted any rights or assumed any responsibilities of fatherhood other than the donation itself. Simply by donating semen and making his identity known to the unmarried woman, he does not, in the language of Lehr ‘grasp the opportunity to accept some measure of responsibility for the child’s future.’ ” 98 Or App at 471, n 5.
The lead opinion attempts to put petitioner in a one-man compartment and does not recognize that he cannot be forced into the compartment without bursting it. The relevant language in Lehr v. Robertson, supra, does not turn on the mother’s awareness of the father’s identity, but on the father’s subsequent attempt to assert and accept parenthood. There is no difference, for purposes of due process analysis, between petitioner and the other artificial insemination donors whom the lead opinion seeks to distinguish, except that petitioner is the only donor of semen who has sought to be recognized as a father so far.
The foregoing discussion is not designed to demonstrate that other donors enjoy the due process entitlement that my colleagues would confer on petitioner, but to help explain why petitioner has no such entitlement. Unlike the procedures considered in Stanley v. Rlinois, supra, and Lehr v. Robertson, supra, ORS 109.239 is a substantive regulation in which the governmental interest is great. Its effect is not limited to parental rights and obligations. As the lead opinion points out, the resolution of “potential disputes about parental rights and responsibilities,” 98 Or App at 468, is integral to the legislative scheme of regulating artificial insemination. The statutes contemplate that the ultimate relationship, or absence of one, must be defined before the child is conceived in order to facilitate informed decisions about whether to *477donate and to conceive. The statutory policy assures the stability of all the parties’ lives in the aftermath of the decisions. The holding of the lead opinion turns the statutory scheme into a house of sand.
I would reject petitioner’s due process argument. I agree with the lead opinion that his other constitutional arguments fail, and I would affirm the judgment.
I dissent.