Nancy Polikoff

Oregon appeals court holds unconstitutional donor insemination statute for married heterosexuals only

Filed By Nancy Polikoff | July 19, 2009 4:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: donor insemination, lesbian parents, Oregon, Oregon constitution

In the most astonishing ruling on same-sex couples having children I have ever read, an Oregon appeals court this week ruled that the state's donor insemination statute making a consenting husband the legal father of a child born to his wife using donor insemination was unconstitutional because it excluded lesbian couples.

The Oregon statute is quite typical. It's the kind of statute written in the early 1970's when the only people using donor insemination (as far as anyone knew!) were heterosexual married couples. Making the husband the legal father of the child was really a no brainer, but it turns out some courts in earlier decades had ruled otherwise, so lots of states passed laws like these.

Rewriting such statutes to include lesbian couples has been the driving force behind my work for the last two years. (Stay tuned for a post on the new DC statute next week).

Then along comes the Oregon court, reasoning that since same-sex couples can't marry it's discrimination on the basis of sexual orientation to deny us access to this statute. Oregon ruled over a decade ago that sexual orientation was a "suspect classification" under its state constitution. It cited that case in ruling on the donor insemination statute.

The result is that the nonbiological mother of the two children involved in the case is a legal parent as long as she consented to her partner's insemination -- which it seems clear she did but there has to be a further hearing about it.

I've written a long post about the ruling here. It is so great to have such good news to share. Kudos to Portland lawyer Mark Johnson, who's been doing LGBT family law for many years.

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Great stuff is right! Hopefully, it is confusing enought the other side won't understand it!

kim in portland | July 25, 2009 12:49 AM

Yay! Kudos to Mark Johnson a fellow Portlander.