Inside Track: Surrogacy Agreements and Patients’ Rights – Top Supreme Court Cases of Interest:

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    Jan. 2, 2013 – In this video, appellate lawyer Beth Ermatinger Hanan explains why she believes two cases in particular deserve inclusion in her December 2013 Wisconsin Lawyer™ article “Top 9 Recent Wisconsin Supreme Court Decisions.” One case deals with surrogacy agreements and the nexus between family law issues and contract principles; the other deals with the standard by which a mental health patient may refuse medication.

    • In Rosecky v. Schissel, the supreme court accepted certification of the question of whether an agreement for the traditional surrogacy and adoption of a child is enforceable. Finding no existing statutory scheme to neatly answer the multiple legal issues presented, the court, in an opinion authored by Justice Annette Ziegler, concluded that the agreement is a valid, enforceable contract unless it is contrary to the best interest of the child. Whether by future legislation or additional case law, many questions remain to be answered.

    • Outagamie County V. Melanie L. presents the supreme court’s first interpretation of a 1995 statutory provision establishing an alternative standard to determine the competency of a person to refuse involuntary administration of medication. The supreme court held that the circuit court had misstated the county’s burden of proof to obtain an order for involuntary administration, and that the county had failed to meet the clear-and-convincing standard for proof that a mental health patient was “substantially incapable of applying” an understanding of the advantages, disadvantages, and alternatives of her prescribed medication to her mental illness so as to make an informed choice to receive or refuse the medication.

    The court issued more than 40 substantive decisions during the 2012-13 term. Read Hanan’s complete review in Top 9 Recent Wisconsin Supreme Court Decisions, published in the December 2013, Wisconsin Lawyer.

    Hanan is an appellate and trial attorney at Gass Weber Mullins LLC in Milwaukee.




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