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Wisconsin Supreme Court Upholds Enforceability Of Surrogacy Contracts

What great news that surrogacy contracts are now enforceable in Wisconsin. Hopefully this will help prevent custody issues from occurring. For those interested, the article below also includes a very brief description of the history of surrogacy.

The question of whether surrogacy agreements are valid in Wisconsin has had no clear answer until recently. On July 11, the Wisconsin Supreme Court announced that traditional surrogacy contracts are enforceable, ruling on a case in which a surrogate mother who decided during pregnancy to seek custody and placement of the child she was carrying. The court’s decision clears up an area of law that has not been settled by statute or case law for decades.

A history of surrogacy

In the late 1970s, in vitro fertilization produced the world’s first test tube baby. With IVF, several types of surrogacy became possible, including traditional surrogacy. WebMD.com defines a traditional surrogate as a woman who is artificially inseminated with the intended father’s sperm, meaning the child is genetically related to the surrogate mother and the intended father. There are other types of surrogacy resulting in different sets of genetic parents for the child but, in the case before the court, a traditional surrogacy was at issue.

As surrogate pregnancy became an option for couples who could not conceive on their own, discussions concerning who would be the legal parents of the child also arose. Some states passed legislation regarding surrogacy, while others, including Wisconsin, did not. Despite the lack of guidance, couples in states without surrogacy laws continued to contract with surrogates. One of these arrangements gave rise to the case that the court recently decided.

The history of the case

The case, Rosecky v. Schissel, involved a married couple who could not have children following the wife’s two bouts of leukemia. A childhood friend of the wife volunteered to act as a surrogate. Despite concern by the couple, the friend offered to use her own eggs. The friend and the couple sought legal counsel before signing a surrogacy and parentage agreement. The agreement provided that the couple would be legal parents of the child with sole custody and physical placement. In addition, the friend agreed to cooperate in any legal proceedings, including the termination of her parental rights and the wife’s subsequent adoption of the baby. At some point during the pregnancy, the friend decided she wanted to keep the baby, prompting the husband to file suit against her.

The Circuit Court hearing the case ruled that the agreement was unenforceable, but it awarded sole custody and primary placement to the husband and secondary placement to the friend, including weekend visitation. The husband appealed, and the case was certified to the Wisconsin Supreme Court for review, so it could decide if the agreement was enforceable since there was no law in place addressing that issue.

The Wisconsin Supreme Court reversed the Circuit Court agreement and ruled that traditional surrogacy agreements are enforceable since they promote “stability and permanence in family relationships,” but that the provision in the contract requiring the friend to voluntarily terminate her parental rights was not permissible, as it did not meet statutory requirements. The Court also noted that the legislature should address the issue of surrogacy to further clarify this area of law.

Custody and placement

Most parents will not face such difficult custody and placement struggles. As in this example, custody and placement is one area of law that requires careful consideration and work to meet the needs of the whole family. An experienced attorney can help you work through any custody and placement issues you may be facing. Contacting a family law professional can provide a workable solution.


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