Shineovich v. Kemp

Oregon Court of Appeals · Family Law

Family LawParentageDeclaratory JudgmentEqual Privileges and ImmunitiesORS 109.070ORS 109.243artificial inseminationsame-sex partner

Facts

Petitioner and respondent were in a same-sex relationship for 10 years. Respondent twice became pregnant by artificial insemination, allegedly with petitioner's consent both times, and gave birth to P and A. Before P's birth, the parties obtained a same-sex marriage license and married, intending petitioner to be P's legal parent, but that marriage was later declared void. After the parties separated, respondent denied petitioner regular contact with the children, and petitioner sought a declaration that she was their legal parent under statutes that confer parentage on a mother's husband.

Issue

Whether petitioner could pursue declaratory relief against respondent without naming the state, and whether ORS 109.070(1) (2003) and ORS 109.243 violate Article I, section 20, by granting legal parentage by operation of law to a mother's husband while same-sex couples could not marry. Also at issue was the proper remedy if ORS 109.243 was unconstitutional.

Rule

A declaratory judgment action is justiciable if the parties have adverse interests and the court's decision will have a practical effect on their rights; the state need not be named as a party in every private constitutional challenge to a statute. ORS 109.070(1) (2003) establishes a presumption of biological paternity and applies only where biological parentage is at least possible. ORS 109.243 grants legal parentage by operation of law based on the mother's husband's consent to artificial insemination, without requiring possible biological parentage, and denying that privilege to same-sex partners who could not marry violates Article I, section 20; when a statute is unconstitutional because of underinclusion, a court may extend its coverage rather than invalidate it, guided by legislative purpose.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Eugene, Oregon, Maya Rios and Elena Park ended a long relationship after Elena gave birth through donor insemination. Maya files a declaratory judgment action against Elena alone, seeking a declaration that she is the child's legal parent under an Oregon statute she claims is unconstitutional as applied; she serves the Oregon Attorney General with the complaint but does not name the state as a party.

Elena moves to dismiss, arguing there is no justiciable controversy because only the state can defend the constitutionality of the statute and any declaration against Elena would be advisory. How should the court rule?

Explanation. A declaratory judgment action is justiciable when the parties have adverse interests and the court's decision will have a practical effect on their rights. The majority held that the state need not be named as a party in every private constitutional challenge to a statute, although the Attorney General must be served. The possibility that additional litigation may later be needed does not make the present controversy nonjusticiable. (Derived from Shineovich v. Kemp (n.d.).)