You and your husband visit a lawyer, and your friend and her husband visit a different lawyer. The gist of the arrangement is that your friend will be artificially inseminated with your husband’s sperm. She will carry and bear the child, but she agrees that you and your husband alone would raise the child and she agrees to terminate her parental rights to allow you to adopt the child. She would still be able to see the child; after all, you have long been friends and you plan to continue to see each other through social visits. You’re a bit concerned, though, that your friend may have difficulty giving up a child to whom she has biological ties, but she assures you she can do it. Your lawyers create numerous drafts of your agreement and each revises these drafts until finally all of you agree that what is written accurately reflects your understanding of the arrangement. You all sign this agreement in November. By this time, your friend is already almost five months’ pregnant. She is due the following March.
After all of you sign the agreement, your relationship with your friend crumbles, and before the child is born your friend informs you that she will no longer terminate her parental rights to the child, as she had agreed. Furthermore, she wants to have custody of the child. In March, she gives birth to the baby.
Now what? Biologically, the child’s mother is your friend and the father is your husband. Legally, without that surrogacy agreement and because of the marital presumption (Wis. Stat. § 891.41(1)(a)), the child’s parents are your friend and her husband. Neither of these is the result you had wanted—and thought you planned to avoid.
With today’s technology, there are a number of ways that otherwise infertile couples can bear children. Surrogacy is one of those ways, whether it be gestational surrogacy (where a woman carries a child to term but has no biological relation to the embryo that is implanted in her uterus) or traditional surrogacy (where the woman’s egg is used to create the embryo that she then carries to term) and the practice is booming in both Wisconsin and in the nation, although definite numbers are difficult to ascertain. Either kind of surrogacy raises a host of legal and ethical issues. Yet the technology has developed faster than the law, and the law varies dramatically from state to state. There appear to be very few legislative schemes to handle issues surrounding surrogacy; instead, courts have been left to deal with the facts of the cases before them. Perhaps the most visible of these cases has New Jersey’s Baby M case, 537 A.2d 1227 (N.J. 1988).
Baby M presented a situation similar to the facts described above, minus the long-time friendship between the couples. William Stern, the husband in a married couple, contracted with Mary Beth Whitehead and her husband to have Mrs. Whitehead inseminated with Mr. Stern’s sperm, carry the resulting child to term, and turn the child over to Mr. Stern and his wife. Mrs. Whitehead was to cooperate with the Sterns in terminating her parental rights to allow Mr. Stern’s wife, Elizabeth, to adopt the child.
After the baby’s birth, Mrs. Whitehead began having second thoughts about relinquishing the child. While she initially did deliver the child to Mr. and Mrs. Stern, within a day she went to visit them and told them she simply could not live without her child. She promised if she could take the baby for a week she would then return her to the Sterns. The Sterns, concerned about Mrs. Whitehead’s emotional state, allowed her to take the baby, but Mrs. Whitehead then refused to return the child to the Sterns.
Mr. Stern sued to enforce the surrogacy contract, but the New Jersey Supreme Court refused, holding the surrogacy contract void. With the contract voided, the court determined its job was to decide custody under the “best interests of the child” standard as between the two parents, Mr. Stern and Mrs. Whitehead. The court granted Mr. Stern legal custody and allowed Mrs. Whitehead visitation. (Interestingly, one source notes that when Baby M—Melissa Stern—turned 18, she terminated Mrs. Whitehead’s parental rights and was legally adopted by Elizabeth Stern.)
While the Baby M case remains something of the premier case in surrogacy, its legal reach is New Jersey only. Which brings us back around to the facts at the beginning of this post. How is this state to handle such a situation?
By enforcing the surrogacy agreement, except for its provisions on termination of parental rights, and provided that enforcement is not contrary to the best interests of the child.
The Wisconsin Supreme Court reached this decision in Rosecky v. Schissel, 2013 WI 66, earlier this month. Based on the facts I presented above, the circuit court determined the surrogacy agreement was unenforceable. After a trial based on the child’s best interest in determining custody, the circuit court judge awarded the father, David Rosecky, sole custody and primary placement, giving secondary placement to the child’s biological mother, the surrogate, Monica Schissel. Mr. Rosecky appealed and the court of appeals certified the question to the Wisconsin Supreme Court.
The court’s opinion, authored by Justice Annette Kingsland Ziegler, explained the kinds and rising use of surrogacy, examined existing Wisconsin law to guide its analysis, and ended with a call for legislative action. The court acknowledged that surrogacy “is a reality in Wisconsin and . . . Wisconsin attorneys attempt to effectuate the parties’ intent in surrogacy,” id. ¶ 38, notwithstanding the lack of any clear Wisconsin law on the subject. Many, if not most, times, court involvement in such agreements is minimal because the parties each perform their respective parts. But not everything always goes as planned.
According to the court, “The Wisconsin Statutes do not provide a specific answer as to whether [a surrogacy agreement] is enforceable, and they do not contain a statement of public policy against enforcement.” Id. ¶ 40. The court then examined the several statutes that might deal with a surrogacy situation (Wis. Stat. § 69.14(1)(h) on birth certificates for those born of surrogate mothers; Wis. Stat. § 891.40(1) on presumption of paternity of a child of a married woman when the woman is inseminated with donor sperm; Wis. Stat. ch. 767 on actions concerning the family, specifically § 767.41 on determining custody and placement of children in certain enumerated actions that affect the family, although surrogacy is not one of the enumerated actions; as well as various adoption and termination of parental rights (TPR) statutes).
The court then turned to contract law, citing a “founding principle of freedom of contract is that ‘individuals should have the power to govern their own affairs without governmental interference.’” Id. ¶ 56 (quoting Merten v. Nathan, 108 Wis. 2d 205, 211, 321 N.W.2d 173 (1982)). Should a contract contain an illegal provision, the offending portion may be severable, provided that severing the offending portion “does not defeat the primary purpose of the bargain.” Id. ¶ 58. The court also noted that there are, of course, defenses to the enforcement of an otherwise valid contract, including “misrepresentation, mistake, illegality, unconscionability, void against public policy, duress, undue influence, and incapacity,” Id. ¶ 57.
Applying basic contract law to the Rosecky-Schissel surrogacy agreement, the court easily found a contract existed, although it aptly noted “[t]he unique nature” of this particular contract, which was for the creation of a child. Id. ¶ 60. The court held the provisions for the termination of parental rights were not enforceable; however, they were severable from the remainder of the contract.
According to the court, there were no public policy reasons to not enforce the contract. Rather, “the interests supporting the enforcement of the [surrogacy agreement] are more compelling than the interests against enforcement.” Id. ¶ 61.
Enforcement of surrogacy agreements 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.
Id. Buttressing this conclusion were legislative statements that put the best interests of children first in proceedings that relate to them, the legislative declaration that “‘instability and impermanence in family relationships are contrary to the welfare of children.’” id. ¶ 62 (quoting Wis. Stat. § 48.01(1)(a)), and social science research on the effect of contentious family relationships on children’s development, id. ¶ 63.
The portions of the agreement that dealt with Mrs. Schissel’s voluntary termination of her parental rights, however, were not enforceable because they did not comply with the procedural safeguards set forth in Wis. Stat. § 48.41 on voluntary termination of parental rights, Mrs. Schissel no longer consented to TPR, and there was no basis for an involuntary TPR. But because the agreement contained a severability clause, a fact to which the court gave great weight, the portion of the agreement about the TPR could be severed from the remainder of the contract without affecting the purpose of the agreement, which was to give David and Marcia Rosecky sole legal custody and physical placement of the child. See id. ¶¶ 65-66.
The court examined the potential defenses to the enforcement of the contract, finding none of them applicable. Id. ¶¶ 67-68. The court concluded by remanding the case to the circuit court, which had not considered the surrogacy agreement in its analysis of custody and placement of the child.
Finally, the court directly asked the legislature to take up the issue of surrogacy to provide more definitive guidance on how to handle such agreements.
Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley concurred in the judgment, but Chief Justice Abrahamson wrote separately for two reasons. First, she noted her concern about surrogacy agreements, which she said were not per se void, but required “a court’s careful attention” because “[s]uch agreements are not standard run-of-the-mill contracts subject to the usual offer, acceptance, and consideration analysis. . . . Standard contract defenses and remedies are a starting point, but may not be sufficient.” Id. ¶ 82 (internal citation omitted). In her view, public policy issues dominate such agreements because each is likely to be different, depending on whether the agreement is for a traditional surrogacy or a gestational surrogacy, between friends or family or between a couple and a stranger. See id. ¶¶ 82-84, 97-99.
Second, because Rosecky case arose when Mr. Rosecky petitioned for a determination of paternity and for legal custody and placement of the child, in Chief Justice Abrahamson’s view, this case was an “action affecting the family,” and thus subject to those statutes, particularly Wis. Stat. § 767.41(5)(am), which lists the factors courts must use to decide legal custody and placement. See id. ¶¶ 85-86, 102, 111-16. Thus, she agreed the case should be remanded so the circuit court could consider the surrogacy agreement as one of those factors. Id. ¶ 117.
As Chief Justice Abrahamson expressly notes, there are many public policy concerns that surround surrogacy agreements. It’s all too easy to envision a case where there is an imbalance of bargaining power and potential for exploitation, with, say, a wealthier couple and a more impoverished woman who needs the money. There are concerns about the appropriateness of “buying” a baby (by paying a surrogate well above and beyond her expenses) or concerns about whether a woman can—or should—literally rent her womb to the highest bidder. These, and others, are not small concerns.
On the other hand, when you have two sides that are well informed and well represented, as both the Roseckys and Schissels appeared to be, there seems to be no reason not to enforce the agreement they negotiated. The difficult part of dealing with surrogacy is that it produces a child, not a product, and decisions by both sides both during the pregnancy and after will have a profound effect on that child’s wellbeing and development at a very important stage in the child’s life—the very beginning. Perhaps there’s no being “100% sure” that as a surrogate you would be able to turn over the child you’ve just carried for nine months whether you are biologically related to that child or not. But for the wellbeing of the child, whose best interests always control once he or she arrives on the scene, all parties better be darn sure they understand what they’re agreeing to—and what might go wrong. At least now in Wisconsin, we have some idea of how to handle those situations.