The Validity of Surrogacy Agreements in Wisconsin

By John DiMotto

In a blockbuster decision today, the Wisconsin Supreme Court, in Rosecky v. Schissel, 2013 WI 66, ___Wis.2d ___, upheld the validity and enforceability of all but one provision in a Surrogacy Agreement.  In the decision, the Court addresses the tragic quagmire that results when the surrogate mother changes her mind and does not want to terminate her parental rights in accordance with the agreement.  The Court urges the Wisconsin Legislature to "address surrogacy agreements to ensure that when the surrogacy process is used, the courts and the parties understand the expectations and limitations under Wisconsin Law."

Facts

The facts in this case reveal that David and Marcia Rosecky entered into a Parentage Agreement with their good friends, Monica and Cory Schissel.  Due to health issues, Marcia could not become pregnant.  Monica offered to act as a surrogate for the Roseckys. After extensive conversation about the legal ramifications of surrogacy, they each retained legal counsel and the four of them executed a Parentage Agreement.  They agreed that Monica would become pregnant and carry the child for the Roseckys; that the Roseckys would be the legal parents of the child; that the best interests of the child would be served by being in the Roseckys' legal custody and physical placement; and that the parties would cooperate fully in any parentage proceedings to determine the Roseckys as the child's legal parents, including termination of parental rights and adoption.  Monica became pregnant through artificial insemination using her egg and David Rosecky's sperm. Prior to the birth of the child, the Roseckys and the Schissels had a falling out.  As a result, Monica reneged on the Parentage Agreement and refused to terminate her parental rights. After the birth of the child, David Rosecky commenced a paternity action and was adjudicated father of the child.  A guardianship action was also commenced to resolve all other issues in the Parentage Agreement.  The trial court found that the Parentage Agreement was not enforceable; that the Monica could not be forced or required to terminate her parental rights; that custody and placement could not be decided under the Parentage Agreement but rather would be decided under Chapter 767 provisions regarding custody and placement.  The trial court granted David primary physical placement and granted Monica periods of placement finding this to be in the best interest of the child.  This appeal resulted.

Majority Opinion

In its decision, the Court held:

1)  Contract law principles apply when examining a surrogacy agreement.

2)  The Parentage Agreement contains the essential elements of a contract.

3)  While traditional defenses to the enforcement of a contract apply in the context of a surrogacy agreement, none are present here to render the Parentage Agreement unenforceable.

4)  The portions of the Parentage Agreement requiring a voluntary TPR do not comply with the procedural safeguards set forth in 48.41 because Monica would not consent to TPR and there is no legal basis for involuntary termination, however, aside from the TPR provisions in the Parentage Agreement, the agreement is a valid and enforceable contract unless enforcement is contrary to the best interest of the child.

5)  The severability clause in the Parentage Agreement is valid.

6)  A Parentage Agreement is not contrary to public policy.

7)  The trial court erred in excluding the Parentage Agreement.

8)  The trial court erred in rendering its custody and placement decision without consideration of the Parentage Agreement.

9)  The case be remanded to the trial court for a hearing on custody and placement, wherein the terms of the Parentage Agreement are enforced unless enforcement is contrary to the best interests of the child.

In arriving at its decision, the Court discusses and highlights;

1)  that surrogacy has created ways for people to have children regardless of their reproductive capacity;

2)  that surrogacy agreements outline the rights and responsibilities of all parties throughout the process in order to effectuate their intent. 

3)  that the Wisconsin Statutes do not provide a specific answer to whether the Parentage Agreement is enforceable; 

4)  that the Wisconsin Statutes do not contain a position of public policy with respect to surrogacy;

5)  that the Wisconsin Statutes do not contemplate nor address the use of a surrogacy parenting agreements in the adjudication of custody and placement disputes;

6)  that the Wisconsin Statutes do not contemplate nor address surrogacy vis a vis adoption and termination of parental rights;

7)  that the TPR-Adoption scheme does not provide relief in a surrogacy scenario;

8)  that the interests supporting enforcement of a Parentage Agreement are more compelling than interests against enforcement because enforcement promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation that could drag on for the first several years of the child's life.

Concurring Opinion

While the Court was unanimous in the result, Chief Justice Abrahamson wrote a concurring decision.  She believes: 

1)  that the issues of custody and placement should be determined based on the best interest of the child from the factors in Chapter 767 -- 767.41(5)(am) -- and not based on the surrogacy agreement. 

2)  that the majority opinion's "authorization of people to contract out of the State's traditional oversight role in the protection of children." is wrong.

3)  that custody and placement of children born of surrogacy should not have different rights and be treated differently from any other child.  

4)  that the majority holding that "a Parentage Agreement is a valid, enforceable contract unless enforcement is contrary to the best interest of the child." is overly broad.

5)  that the trial court should adhere to the legislative directions in Chapter 767 since this is an action affecting the family and Chapter 767 addresses custody and placement.

6)  that any change in the law and the procedure regarding actions involving paternity, legal custody, and physical placement of a child when an alternative reproductive method and a surrogacy contract are implicated should not be undertaken by the Court; 

7)  any change here is a task best left to the legislature.

Conclusion

While the Wisconsin Supreme Court has finally addressed the issue of surrogacy contracts, it remains to be seen whether the Wisconsin Legislature will step into the breach and address the concerns set forth in both the majority and concurring opinions.  Unless the Wisconsin Legislature does so, parties to a surrogacy contract will be free to set their own rules regarding how to address all of the very thorny issues surrounding surrogacy.  This scenario is rife with problems which can contribute to great instability in the life of a child born of surrogacy.  Only time will tell.