{"id":20837,"date":"2013-07-28T16:25:35","date_gmt":"2013-07-28T21:25:35","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=20837"},"modified":"2013-07-28T16:25:35","modified_gmt":"2013-07-28T21:25:35","slug":"enforcing-surrogacy-agreements-in-wisconsin","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2013\/07\/enforcing-surrogacy-agreements-in-wisconsin\/","title":{"rendered":"Enforcing Surrogacy Agreements in Wisconsin"},"content":{"rendered":"
\n
\"scan2\"<\/a>Let\u2019s say you are part of a married couple in Wisconsin. Due to a leukemia diagnosis and treatment for that disease, your eggs are no longer viable. Doctors agree that you are currently in good health and the disease is \u201ca nonissue,\u201d but your husband and you want children and you cannot bear them. A friend has offered to help you out. This woman has been your friend since grade school; you\u2019ve each participated in the other\u2019s wedding.\u00a0 You and your husband are godparents to her youngest daughter. Your friend and her husband have five children of their own and have said they are done expanding their family. Her husband even had a vasectomy. Twice in four years she has offered to carry and bear a child for you.\u00a0 Finally, you agree.<\/div>\n<\/div>\n

You and your husband visit a lawyer, and your friend and her husband visit a different lawyer.\u00a0 The gist of the arrangement is that your friend will be artificially inseminated with your husband\u2019s 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.\u00a0 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\u2019re 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.\u00a0 You all sign this agreement in November.\u00a0 By this time, your friend is already almost five months\u2019 pregnant.\u00a0 She is due the following March.<\/p>\n

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.\u00a0 Furthermore, she wants to have custody of the child.\u00a0 In March, she gives birth to the baby.<\/p>\n

Now what? Biologically, the child\u2019s mother is your friend and the father is your husband.\u00a0 Legally, without that surrogacy agreement and because of the marital presumption (Wis. Stat. \u00a7 891.41(1)(a)), the child\u2019s parents are your friend and her husband. Neither of these is the result you had wanted\u2014and thought you planned to avoid.<\/p>\n

With today\u2019s 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\u2019s 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<\/a>. Yet the technology has developed faster than the law, and the law varies dramatically from state to state<\/a>. 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\u2019s Baby M<\/i> case, 537 A.2d 1227 (N.J. 1988).<\/p>\n

Baby M<\/i> 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\u2019s sperm, carry the resulting child to term, and turn the child over to Mr. Stern and his wife.\u00a0 Mrs. Whitehead was to cooperate with the Sterns in terminating her parental rights to allow Mr. Stern\u2019s wife, Elizabeth, to adopt the child.<\/p>\n

After the baby\u2019s 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.\u00a0 She promised if she could take the baby for a week she would then return her to the Sterns.\u00a0 The Sterns, concerned about Mrs. Whitehead\u2019s emotional state, allowed her to take the baby, but Mrs. Whitehead then refused to return the child to the Sterns.<\/p>\n

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 \u201cbest interests of the child\u201d 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<\/a> notes that when Baby M\u2014Melissa Stern\u2014turned 18, she terminated Mrs. Whitehead\u2019s parental rights and was legally adopted by Elizabeth Stern.)<\/p>\n

While the Baby M<\/i> 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?<\/p>\n

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.<\/p>\n

The Wisconsin Supreme Court reached this decision in Rosecky v. Schissel<\/a><\/i>, 2013 WI 66, earlier this month. Based on the facts I presented above, the circuit court determined the surrogacy agreement was unenforceable.\u00a0 After a trial based on the child\u2019s 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\u2019s biological mother, the surrogate, Monica Schissel.\u00a0 Mr. Rosecky appealed and the court of appeals certified the question to the Wisconsin Supreme Court.<\/p>\n

The court\u2019s 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 \u201cis a reality in Wisconsin and . . . Wisconsin attorneys attempt to effectuate the parties\u2019 intent in surrogacy,\u201d id. <\/i>\u00b6 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.<\/p>\n

According to the court, \u201cThe 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.\u201d Id.<\/i> \u00b6 40.\u00a0 The court then examined the several statutes that might deal with a surrogacy situation (Wis. Stat. \u00a7 69.14(1)(h) on birth certificates for those born of surrogate mothers; Wis. Stat. \u00a7 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 \u00a7 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).<\/p>\n

The court then turned to contract law, citing a \u201cfounding principle of freedom of contract is that \u2018individuals should have the power to govern their own affairs without governmental interference.\u2019\u201d Id.<\/i> \u00b6 56 (quoting Merten v. Nathan<\/i>, 108 Wis. 2d 205, 211, 321 N.W.2d 173 (1982)).\u00a0 Should a contract contain an illegal provision, the offending portion may be severable, provided that severing the offending portion \u201cdoes not defeat the primary purpose of the bargain.\u201d Id. <\/i>\u00b6 58. The court also noted that there are, of course, defenses to the enforcement of an otherwise valid contract, including \u201cmisrepresentation, mistake, illegality, unconscionability, void against public policy, duress, undue influence, and incapacity,\u201d Id.<\/i> \u00b6 57.<\/p>\n

Applying basic contract law to the Rosecky-Schissel surrogacy agreement, the court easily found a contract existed, although it aptly noted \u201c[t]he unique nature\u201d of this particular contract, which was for the creation of a child. Id.<\/i> \u00b6 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.<\/p>\n

According to the court, there were no public policy reasons to not enforce the contract.\u00a0 Rather, \u201cthe interests supporting the enforcement of the [surrogacy agreement] are more compelling than the interests against enforcement.\u201d Id.<\/i> \u00b6 61.<\/p>\n

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\u2019s life.<\/p><\/blockquote>\n

Id.\u00a0 <\/i>Buttressing this conclusion were legislative statements that put the best interests of children first in proceedings that relate to them, the legislative declaration that \u201c\u2018instability and impermanence in family relationships are contrary to the welfare of children.\u2019\u201d id.<\/i> \u00b6 62 (quoting Wis. Stat. \u00a7 48.01(1)(a)), and social science research on the effect of contentious family relationships on children\u2019s development, id.<\/i> \u00b6 63.<\/p>\n

The portions of the agreement that dealt with Mrs. Schissel\u2019s voluntary termination of her parental rights, however, were not enforceable because they did not comply with the procedural safeguards set forth in Wis. Stat. \u00a7 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.\u00a0 See id. <\/i>\u00b6\u00b6 65-66.<\/p>\n

The court examined the potential defenses to the enforcement of the contract, finding none of them applicable.\u00a0 Id.<\/i> \u00b6\u00b6 67-68.\u00a0 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.<\/p>\n

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.<\/p>\n

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 \u201ca court\u2019s careful attention\u201d because \u201c[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.\u201d\u00a0 Id.<\/i> \u00b6 82 (internal citation omitted). \u00a0In 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.<\/i> \u00b6\u00b6 82-84, 97-99.<\/p>\n

Second, because Rosecky <\/i>case arose when Mr. Rosecky petitioned for a determination of paternity and for legal custody and placement of the child, in Chief Justice Abrahamson\u2019s view, this case was an \u201caction[] affecting the family,\u201d and thus subject to those statutes, particularly Wis. Stat. \u00a7 767.41(5)(am), which lists the factors courts must use to decide legal custody and placement.\u00a0 See id. <\/i>\u00b6\u00b6 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.<\/i> \u00b6 117.<\/p>\n

As Chief Justice Abrahamson expressly notes, there are many public policy concerns that surround surrogacy agreements. It\u2019s 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 \u201cbuying\u201d a baby (by paying a surrogate well above and beyond her expenses) or concerns about whether a woman can\u2014or should\u2014literally rent her womb to the highest bidder. These, and others, are not small concerns.<\/p>\n

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\u2019s wellbeing and development at a very important stage in the child\u2019s life\u2014the very beginning. Perhaps there\u2019s no being \u201c100% sure\u201d that as a surrogate you would be able to turn over the child you\u2019ve just carried for nine months whether you are biologically related to that child or not.\u00a0 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\u2019re agreeing to\u2014and what might go wrong. At least now in Wisconsin, we have some idea of how to handle those situations.<\/p>\n","protected":false},"excerpt":{"rendered":"

Let\u2019s say you are part of a married couple in Wisconsin. Due to a leukemia diagnosis and treatment for that disease, your eggs are no longer viable. Doctors agree that you are currently in good health and the disease is \u201ca nonissue,\u201d but your husband and you want children and you cannot bear them. A […]<\/p>\n","protected":false},"author":28,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[45,122,75],"tags":[],"class_list":["post-20837","post","type-post","status-publish","format-standard","hentry","category-family-law","category-public","category-wisconsin-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/20837","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/28"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=20837"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/20837\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=20837"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=20837"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=20837"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}