July 11, 2013 – Traditional surrogacy agreements are enforceable in Wisconsin, under a recent decision by a Wisconsin Supreme Court, binding surrogate-biological mothers who sign such contracts but later change their minds about giving up the baby.
The case, Rosecky v. Schissel, 2013 WI 66 (July 11, 2013), provides more clarity to contracting parties in a traditional surrogacy, which involve a surrogate mother whose eggs are artificially inseminated but agrees to release rights to the child upon birth.
In this case, Monica Schissel agreed to be a surrogate mother for long-time friends David and Marcia Rosecky. Monica agreed to use her own eggs, despite the Roseckys’ initial concern that Monica may have second thoughts about giving up the baby.
The alternative was gestational surrogacy, whereby Monica would serve as a surrogate but not use her own eggs. David would use his sperm with an egg donor, and after in vitro fertilization, the fertilized embryo would be implanted into Monica.
Nevertheless, the parties agreed to use artificial insemination using Monica’s eggs and David’s sperm, meaning Monica would be the biological mother.
The “surrogacy and parentage agreement” provided that the Roseckys would be the legal parents, with sole custody and physical placement of the child.
Under the agreement, Monica promised to cooperate fully in related legal proceedings, including the termination of her parental rights and adoption by Marcia Rosecky.
However, shortly before birth, the parties had a falling out. Monica changed her mind and sought custody and placement of the child. Ultimately, a circuit court ruled the surrogacy and parentage agreement was unenforceable, awarding sole custody and primary placement to David, but giving Monica secondary placement of the child.
The circuit court concluded that the contract could not force Monica to terminate her parental rights because state statute governs voluntary terminations, and the statute’s requirements for voluntary termination of Monica’s parental rights were not met.
David appealed, and the state appeals court certified the case for Wisconsin Supreme Court review, noting that Wisconsin “currently does not have a legislative or common law that addresses the enforceability of a surrogacy agreement.”
Surrogacy Contract Enforceable, But TPR Provisions Severed
A Wisconsin Supreme Court majority (5-2) ruled that traditional surrogacy contracts are enforceable unless contrary to the best interest of the child, reversing the circuit court ruling that gave secondary placement to Monica, the surrogate-biological mother.
Monica argued that such contracts are void on public policy grounds because contracts should not sever ties between a child and a biological parent who is willing to raise the child, regardless of any previous agreement to relinquish parental rights.
A supreme court majority did not agree.
“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,” wrote Justice Annette Ziegler for a majority.
However, the majority ruled that provisions in the surrogacy-parenting contract that required Monica to voluntarily terminate her parental rights were not enforceable because Monica later refused to consent, a requirement under state statute.
The court ruled the parental termination provision could be severed from an otherwise enforceable contract, especially because it contained a severability clause.
“Though a severability clause itself is not controlling, it is entitled to great weight in determining whether the remainder of the contract is enforceable,” Ziegler wrote.
The court ruled that the purpose of the contract – to give the Roseckys sole custody and placement – can still be carried out if the parental termination provisions are severed.
It said the circuit court was wrong to determine custody and placement of the child without considering the agreement entered into by the parties.
The majority remanded the case for a determination of custody and placement under the agreement. However, the majority noted that circuit courts retain discretion to decide what custody and placement arrangement is in the best interest of the child.
Finally, the supreme court urged the legislature to enact legislation in this area. Citing a Wisconsin Lawyer article on surrogacy, the court said legislation could “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.”
Concurrence
Chief Justice Shirley Abrahamson wrote a concurring opinion, joined by Justice Anne Walsh Bradley, agreeing that the case should be remanded to the circuit court. But the chief justice argued that state statute governs the child custody and placement issue.
“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 surrogacy contract are implicated should not be undertaken by this court,” she wrote. “Any change is a task best left to the legislature.”
The majority opinion, she said, “ignores the statutes and creates its own standard for deciding the legal custody and physical placement of the child.” That is, a contract is enforceable unless enforcement is contrary to the best interests of the child.
“In my opinion, when faced with a dispute relating to legal custody and physical placement of a child, a circuit court must carefully scrutinize the surrogacy contract to ensure that the contract does not contravene public policy,” she wrote.
“The majority opinion takes a carefree attitude toward public policy considerations, seemingly declaring all surrogacy agreements valid,” she wrote.
