The Oregon case that proves children lose when it comes to reproductive technologies

The Oregon Supreme Court ruled in November that the biological mother of a young boy is not his legal mother and has no right to visitation, following a years-long legal battle that began the day the boy was born in December of 2015.

In 2014, Jordan Schnitzer and his now-former girlfriend Cory Noel Sause entered a legal agreement in which they would create embryos using IVF with her eggs and his sperm. They agreed that he would have the rights to the male embryos and she would have the rights to the female embryos. When a baby boy was born via surrogate, Sause expected to act as the child’s mother — though from a distance, with visitation. Schnitzer had other plans, and on the day of the boy’s birth, he filed for sole custody.

No girls allowed

Schnitzer was in his 60s and a divorced father of two girls when he began dating Sause. She was 27 years his junior but both came from exorbitantly rich families on the West Coast. When the two got together, she had been out of prison for five years for negligent homicide after driving drunk and colliding with another car, killing a 21-year-old man. Schnitzer had recently broken up with an ex-Playboy model in a seemingly long string of girlfriends he had post-divorce. Sause was a Catholic-raised Republican. He was a Jewish Democrat. They both wanted to create children to continue their family lineage.

Schnitzer had, in fact, already begun his quest for a son. He had created embryos using egg donors and a surrogate. The first embryo did not implant while the second died in miscarriage. Schnitzer explained, “I have two wonderful girls, and I thought it might be nice to do some balancing. And, frankly, being a divorced dad was complicated. The idea was that I’d have this son without complications.”

Sause, 35 at the time, had already been considering freezing her eggs.

Schnitzer claimed that Sause said, “I took a life and I want to help create a life.”

Together, they decided to have children — but even though they were dating, the process was contractual. They would not create children via sex, but via IVF. “I agreed given our budding relationship, and my own decision to have my eggs retrieved, to create embryos with [Schnitzer],” Sause said.

She added, “[Schnitzer] told me that he only wanted a male heir and wanted to attempt pregnancies with as many male embryos as possible. I agreed that [he] could take possession of the male embryos and implant as many as he wanted in the surrogates of his choosing.”

But, she said, “I did not want the female embryos to be destroyed so I agreed to take possession of the female embryos and [Schnitzer] would relinquish all rights to any female offspring produced from those embryos since he did not want any more female children.”

Schnitzer’s attorney drew up paperwork in 2014 that said, “Schnitzer hereby relinquishes any claim to or jurisdiction over any female embryos from Sause and any resulting female offspring.” Sause, however, relinquished rights to male embryos but not male ‘offspring’ in that contract. Her attorneys argue that this meant she would have visitation rights and act as the boy’s mother after he was born.

If that seems confusing, it’s because it is. Embryos are offspring, after all.

There were two contracts, however, and the private contract stated, “Notwithstanding anything to the contrary in the [Directed Sperm Donor Consent Form signed by Schnitzer] or [the Informed Consent for Egg (Oocyte) Donation signed by Sause], Schnitzer hereby relinquishes any claim to or jurisdiction over any female embryos from Sause and any resulting female offspring that might result from the use of Sause’s eggs. Sause confirms and acknowledges that Schnitzer has full jurisdiction custodial rights over the future disposition of male embryos created from her eggs and she renounces any rights and responsibilities of custody of any male embryo.”

While the agreement does not contain parallel language regarding parental rights, Sause maintains that she gave up only the custodial rights and responsibility to the male embryos, not the male offspring. Apparently the misguided thinking was that embryos and offspring are two different things, when in fact, they are not.

In April 2015, a male embryo created from Schnitzer and Sause was transferred to surrogate Cassondra Gibeaut’s uterus.

The pregnancy and birth of a son

After the embryo transfer, Sause said Schnitzer texted her, “Very soon, we will know whether you are going to be a mom. This is our baby.” The following month he texted her, “Cassie says everything is fine with your baby.” In August, he texted, “We are having a baby. Do you realize that?”

But then, as the baby’s due date approached, the couple split.

“During the summer of 2015, I was pulling away from the romantic relationship with [Schnitzer],” Sause said. “He had encouraged me to marry him and/or move in with him so we could raise the child together. However, I did not want to marry Mr. Schnitzer or share a life with him.”

In December, the baby boy was born via surrogate. It is unclear if he spent any time with her after birth, given that she was the only mother he had known until that point. Schnitzer notified Sause, who went to the hospital to meet her biological son.

But that same day, Schnitzer filed a petition in court saying he was the baby’s sole parent and he excluded Sause’s name from the baby’s birth certificate. In court documents, he allegedly denied that Sause had even been a part of the boy’s creation.

“The embryos were created with… Schnitzer’s sperm and donor eggs, which were the exclusive property of [Schnitzer],” he said in the court filing, according to Willamette Week. “It is in the best interests of [the baby] that the child’s birth records and birth certificate accurately reflect the child’s genetic and intended parentage to the fullest extent possible.”

Sause was apparently “shocked.”

“It was always my intention to be the biological mother of any child that resulted from our embryos. I am the biological mother,” she said.

The dispute played out in courts for years, until the state Supreme Court ruled in November in favor of Schnitzer. That means it ruled against not only Sause, but an innocent child who has been denied a relationship with his biological mother for eight years — his entire life.

“Anytime you’re creating a baby in a laboratory, the rights of the child are at risk,” Katy Faust, founder and president of Them Before Us told Live Action News. “Not only do children have a right to life — which IVF routinely violates — they also have a right to a relationship with both mother and father. They have a right to be born free, not bought and sold. They have a right to bodily integrity, not to be designed, graded, frozen and discarded according to pre-implantation screenings or ‘selective reduction.'”

The Oregon Supreme Court rules against the biological mother

A trial court ruled in favor of Sause based on the U.S. Supreme Court’s decision in Lehr v. Robertson, in which a biological father through sex was fighting against his child’s adoption by another couple.

But Schnitzer appealed to the Oregon Court of Appeals, and won. That court determined that Sause was not a parent of the child because biological connection alone does not confer parental rights, only the opportunity to have parental rights.

Then, a new law came to Oregon updating its sperm and egg donor laws to state that they are simply donors, not parents. The Academy of Adoption and Assisted Reproduction Attorneys (AAAA) filed an amicus brief stating that this new law should apply to Sause and Schnitzer’s case. As reported by Above the Law, “AAAA argued that in the context of assisted reproduction, a finding that a genetic connection to a child equates to the genetic contributor being a legal ‘parent,’ or proves that genetic contributor with the right to secure a parental status based on genetics, would inject uncertainty into the assisted reproduction process and the establishment of legal parentage in the state of Oregon.”

The Supreme Court ruled that determining parental rights is different when the child’s conception occurred through the use of artificial reproductive technology (ART) versus sex. It rejected Sause’s claim to parenthood because her biological connection was not enough for her to be able to be her son’s mother.

Yet, the court also said that there is a question that remains: Whether ‘donors’ like Sause can seek limited visitation rights based on her agreement with Schnitzer. But it will not answer that question, and sent it to the trial court to determine if she has enforceable, non-parental rights based on the contract.

A little boy loses

The Oregon Supreme Court’s decision to deny parental rights to the only woman fighting to be this boy’s mother — a woman who is his biological mother — doesn’t just mean that Sause lost her legal battle for now. It means that an innocent child, who already lost his birth mother, will not know his biological mother.

Marcy Darnovsky, director of the Center for Genetics and Society, explained that adults need to remember that children are not commodities.

“What if this boy grows up to have no interest in real estate or his father’s other pursuits?” she said. “What then?”

Faust noted, “This case highlights how reproductive technologies dehumanize children and regard them as commodities over which to barter and negotiate. The contracts do not deem them as individuals whose rights should be respected and protected. Rather, they are property to be contractually distributed. Had this couple come together and created the child through a sexual embrace, there would be no confusion about whether or not Sause is a ‘mother’ or a ‘donor.’ Only the ‘progress’ we’ve achieved via reproductive technologies could cause this level of confusion about something so fundamental to the nature of humanity.”

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