Vol. 85, No. 3, March 2012
Reproductive technology is advancing at a remarkable rate throughout the world, and also growing is the need for laws designed to assist families who come in contact with the technology. One process that has arisen as a result of advances in reproductive technology is surrogacy. Surrogacy, in very general terms, is the process by which a woman makes a choice to become pregnant and then carry to full term and deliver a baby who, she intends, will be raised by someone else. This process typically is accompanied by the execution of written agreements between the woman carrying the child and the parent or parents intending to raise the child. These contracts outline each party’s obligations and the compensation arrangements for the surrogate and contain an agreement that when the child is delivered, the surrogate will turn the child over to the intended parents with no retention of parental rights.
One problem that has developed surrounding these reproductive science advances is that in many states, the laws governing these situations are either unclear or nonexistent. Wisconsin is one of these states. The need for modification or clarification of Wisconsin’s laws regarding surrogacy becomes obvious simply by reviewing the relevant statutes.
This article first sets forth some basic information about surrogacy and then addresses current Wisconsin law regarding surrogacy agreements and demonstrates the deficiencies in that law. Next, it briefly discusses other states’ surrogacy laws. Finally, it discusses possible solutions to the deficiencies in Wisconsin’s laws concerning surrogacy.
The Basics of Surrogate Parenting
Traditional surrogacy is defined as the process whereby “[a] woman … is artificially inseminated with the semen of another woman’s husband. She conceives a child, carries the child to term, and after the birth assigns her parental rights to the birth father and his wife.”1 Gestational surrogacy, in contrast, is the process by which sperm is taken from the father (or from a donor) and an egg is taken from the mother (or from a donor), fertilization happens outside the womb (called in vitro fertilization), and the fertilized embryos are then implanted into the surrogate mother’s uterus. In gestational surrogacy, the surrogate mother is not genetically related to the child.
In a surrogate parenting situation, the parties typically have a written agreement, commonly known as a surrogate parenting agreement or a gestational agreement. The agreement generally outlines the medical procedures that will be done and how compensation will be paid and also delineates who will be parenting the child. These agreements, or series of agreements, are generally signed by all parties participating in the process, including any egg donor, any sperm donor, any surrogate, and the individuals proposing to raise the child as a parent. Thus, there is a potential for there to be five different parties to such an agreement.
After the medical procedures are completed, the next step in the process is to await the birth of the child. After the child is born, the most common way to proceed is to file a petition with the family court in the county where the child was born asking that parentage be established. The specific legal details will vary depending on the circumstances.
For example, if a woman was artificially inseminated by a man not her husband and then gives birth to a child, that couple would have the benefit of the marital presumption and the statutory protections that go with it. This assumes, of course, that the woman’s intent was to raise the child with her husband. If the child is born to this woman and her intent was to give the child to the sperm donor, then a paternity petition would need to be filed. Further, the parental rights of the woman who gave birth to the child would remain in existence even if she wanted to give the child to the sperm donor.
Wisconsin law does not look favorably on terminating the parental rights of one parent without another parent available for a step-parent adoption. Thus, a woman desiring to be a surrogate for a sperm donor and using her own egg may have problems legally separating herself from the child. A parentage action would also need to be filed in a situation in which the child was fertilized in vitro and the surrogate mother is not biologically related to the child. The purpose of a parentage action is to finally settle on the person or persons who are to raise the child.
The surrogacy process can be a source of numerous complications, as illustrated by the experience of Heather A. (see sidebar).2
Although not all surrogacy situations are as extreme as Heather’s, the issues related to surrogate parenting and the struggles faced by the participants are complex. Society as a whole also has an interest in ensuring that the process be regulated, at least to the extent needed to protect children and other innocent participants. But the law in Wisconsin is remarkably undeveloped. Those attempting to use the surrogacy process in this state are left to wonder whether their agreements will be enforced and their own personal needs met.
The Extreme Experience of Heather A.
Heather made contact with a surrogacy agency for the purpose of offering herself as a possible surrogate and eventually reached an agreement with the agency. Her compensation was to be $38,000, and the agency charged prospective parents $180,000 to obtain a child. Heather was flown by the agency to Eastern Europe, where the procedure for transfer of the embryo, which came from two anonymous donors, took place. The FBI had been investigating the agency because of suspicions that it was defrauding infertile couples, and the agency’s owners were eventually charged with wire fraud and conspiracy. Because of the FBI investigation, the agency was shut down, even though Heather A. had not yet given birth and there was no family waiting to take her child. She was left carrying a child she did not want to raise and received no compensation for her efforts.
Current Status of the Law
The goal of the surrogacy process is to provide individuals who are unable to conceive children with the opportunity to become parents. The deficits in Wisconsin’s surrogacy laws are obvious when compared to the other process that is used to achieve that goal, that is, adoption. Adoption, which attempts to bring together parents wanting to raise children with children needing parents, has a lengthy past and a well-developed legal structure. The adoption process generally unites parents seeking to raise a given child and a child whose biological parents are either unavailable or unable to care for the child. In Wisconsin, this process is supervised by the court system, with the final acts of termination of parental rights and adoption occurring only when the court determines that they are in the best interests of the child.3 Although the ultimate goals of surrogacy and adoption are similar, the processes are substantially different.
With surrogacy, there is no final review by a court nor a determination that the process has protected the best interests of the child. The adoption process in Wisconsin mandates that a home study be conducted by a licensed adoption agency before a child is placed for adoption.4 This is a requirement even in cases of step-parent adoption in which one of the biological parents will continue to reside with the child.5 No such requirements exist in surrogacy cases. In the adoption process, counseling services must be offered to the biological parents before they surrender their child for adoption. This gives the biological parents the opportunity to learn about the psychological issues that often accompany the decision to give up a child for adoption. In Wisconsin, specific laws address the compensation that may be paid to biological parents by adoptive parents.6 No similar laws exist for surrogacy arrangements. Even in voluntary adoption situations, the biological parents have a right to legal counsel to explain the legal consequences of their decision and if those parents are unable to afford an attorney, one can be appointed for them at public expense. Surrogate mothers are not offered similar services nor are the sperm and egg donors who become involved in the process.
Wisconsin has no statute specifically prohibiting surrogacy agreements nor has any Wisconsin court specifically addressed the validity of surrogacy contracts. Rather, in Wisconsin, there are two main statutes that address reproductive legal arrangements. One deals with artificial insemination, and one deals with vital statistics (see sidebar).
It is clear that the more complex surrogacy relationships do not easily fit into Wisconsin’s statutory scheme. The statutes do not refer to compensation of surrogate mothers or sperm and egg donors. No provisions address the interests of the child created in this process or by in vitro fertilization. Thus, parties seeking relief in Wisconsin courts are provided no guarantee that relief can be had. Further, circuit court judges attempting to determine if relief is appropriate are given no guidance on how to apportion that relief.
The case law on this subject also is sparse. There are no published surrogacy cases at the appellate level. However, in L.M.S. v. S.L.S.,7 the Wisconsin Court of Appeals addressed the issue of artificial insemination and parentage. A sterile man had entered into an agreement with his wife that she would become pregnant by another man. The court noted that “[a]t the husband’s insistence the wife agreed, had sexual intercourse with the surrogate father, and became pregnant.”8 The court went on to indicate that “[t]he surrogate father complied with the terms of the agreement and never established any relationship with the child or mother. His parental rights were voluntarily terminated in another circuit court.”9 The married couple eventually sought a divorce and the wife requested that the husband be ordered to pay child support. The court said, “We hold that a husband who, because of his sterile condition, consents to his wife’s impregnation, with the understanding that a child will be created who they will treat as their own, has the legal duties and responsibilities of fatherhood, including support.”10
Thus, the court clearly looked at the intent of the parties in this case. The existence of a marital presumption probably had much to do with the relative ease with which this case was resolved. Courts in other states, however, have explored the intent of the parties when discussing the validity of such agreements.11
It is not clear whether a surrogacy agreement will be enforced in Wisconsin if one of the parties wants to back out. As mentioned above, there is no Wisconsin legislation prohibiting such agreements, but neither is there any such authority suggesting that they are valid. No Wisconsin courts have ruled on the topic. Some states have determined that such agreements are void. Needless to say, attorneys must ensure that their contracts are detailed enough for a court to delineate rights and responsibilities for each party and make reference to the applicable Wisconsin statutes. This is the best way to ensure enforceability.
The Experience of Other States
When analyzing potential changes to surrogacy law in Wisconsin, it is useful to consider the laws of other states and the District of Columbia.12 The jurisdictions and their approaches can be divided into six general categories:13
1) States that expressly approve of either traditional or gestational surrogacy agreements or both and have done so via statute;14
2) States that expressly approve of such agreements and have done so by case law;15
3) States that are silent on the issue both statutorily and by case law;16
4) States that have no statutory authority but have some undeveloped case law;17
5) States that have some statutory authority but that authority is undeveloped;18 and
6) States that expressly prohibit such agreements either by statute or case law or both.19
For people who believe that surrogacy violates closely held ethical principles, the position of states that prohibit such procedures obviously is preferable. One of the more aggressive statutes prohibiting surrogacy contracts is in Michigan, which not only prohibits surrogacy contracts and holds them unenforceable but also imposes fines of up to $50,000 and possible jail time of up to five years for anyone who enters into such a contract.
However, states that venture into this area halfway or not at all are doing a disservice not only to the courts that have to sort out these agreements but also to the people who become involved in the process. Legislative direction through passage of relevant statutes is clearly the best course of action. Wisconsin needs to pursue such legislation. Case law is simply too random to be reliable.
An example of a state with a surrogacy law that has many positive features is Illinois, whose legislature passed the Gestational Surrogacy Act in 2004.20 The Act recognizes the rights of intended parents in a gestational surrogacy arrangement.21 Such parents are entitled to full custodial rights.22 However, the Act places some strict guidelines on the process. The surrogate mother must be at least 21 years old, and she must have given birth to at least one child before acting as a surrogate. The surrogate must have undergone a complete medical evaluation before serving as a surrogate parent, and she must also undergo a mental health evaluation before commencing the process. The surrogate must have received independent legal advice regarding the terms and legal consequences of the gestational surrogacy. Finally, she must have health insurance that covers major medical treatments and hospitalization. This insurance must be in place during the entire pregnancy and for at least eight weeks after the child’s birth.23
The intended parents must contribute at least one of the gametes (egg or sperm) required to produce the child. They must have a medical need for the gestational surrogacy, and they must have undergone a mental health evaluation. Finally, they must also consult with legal counsel regarding the terms and legal consequences of the gestational surrogacy.24 The Illinois law also requires that the written agreement itself meet certain minimum requirements.25 As to compensation, the Act only requires that any compensation for such surrogacy services be “reasonable.”26
There obviously are some holes in the Illinois statute. For example, it only addresses gestational surrogacy and does not mention traditional surrogacy agreements. Also, it does not address any services that might be available for gamete donors, such as psychological screening or counseling services. There is no requirement that prospective donors obtain a medical examination. Nevertheless, the Illinois statutory scheme is superior to the Wisconsin scheme in its outline of the primary players’ rights, responsibilities, and expectations. It also gives courts guidelines to follow when confronted with such agreements.
Wisconsin Statutes Addressing Reproduction Legal Arrangements
891.40. Artificial Insemination
(1) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband of the mother at the time of conception of the child shall be the natural father of a child conceived. The husband’s consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, and shall file the husband’s consent with the department of health services, where it shall be kept confidential and in the sealed file except as provided in s. 46.03(7)(bm). However, the physician’s failure to file the consent form does not affect the legal status of the father and child. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, may be inspected only upon an order of the court for good cause shown.
(2) The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is not the natural father of a child conceived, bears no liability for the support of the child and has no parental rights with regard to the child.1
69.14. Registration of births
* * *
(1)(g) Birth by artificial insemination. If the registrant of a birth certificate under this section is born as a result of artificial insemination under the requirements of s. 891.40, the husband of the woman shall be considered the father of the registrant on the birth certificate. If the registrant is born as a result of artificial insemination which does not satisfy the requirements of s. 891.40, the information about the father of the registrant shall be omitted from the registrant’s birth certificate.
(h) Surrogate Mother. If the registrant of a birth certificate under this section is born to a surrogate mother, information about the surrogate mother shall be entered on the birth certificate and the information about the father shall be omitted from the birth certificate. If a court determines parental rights over the registrant, the clerk of court shall report the court’s determination to the state registrar on a form prescribed by the state registrar, along with the fee required under s. 69.22. Upon receipt of the report, the state registrar shall prepare and register a new birth certificate to the local registrar who filed the original certificate. Upon receipt of the copy, the local registrar shall destroy his or her copy of the replaced certificate and file the new certificate.
1 See also Wis. Stat. section 767.87(9), which states as follows: “ARTIFICIAL INSEMINATION; NATURAL FATHER. Where a child is conceived by artificial insemination, the husband of the mother of the child at the time of the conception of the child is the natural father of the child, as provided in s. 891.40.”
The Basis for Reform in Wisconsin
It can be argued that at least some surrogacy agreements would be valid under Wisconsin’s current statutory scheme. (The arguments are not strong, however, and they only suggest the validity of these processes under Wisconsin law.) The Wisconsin statutes do not specifically outline a procedure that respects the rights of the parties and the child. Wisconsin’s statutes go far enough to invite a problem but not far enough to resolve it. That is, the legislature’s approval of artificial insemination and surrogacy is indicated by Wis. Stat. sections 891.40 and 69.14, but nothing is said about how the myriad of problems associated with those procedures should be resolved. Because these types of scenarios are becoming more common, legislation is needed to bring clarity to the process.
The ABA Section of Family Law, through its Committee on Reproductive and Genetic Technology, has drafted a Model Act Governing Assisted Reproductive Technology.27 As with most model acts, this endeavor is an attempt to help states draft better legislation. In the prefatory note to the model act, the drafting committee cited a California appellate opinion in an effort to outline the problems courts are facing:
“We join the chorus of judicial voices pleading for legislative attention to the increasing number of complex legal issues spawned by recent advances in the field of assisted reproduction. Whatever merit there may be to a fact-driven case-by-case resolution of each new issue, some over-all legislative guidelines would allow the participants to make informed choices and the court to strive for uniformity in their decisions.”28
The model act contains 12 separate articles, which address the following topics: informed consent; mental health consultation and additional counseling; privacy and confidentiality; embryo transfer and disposition of embryos not transferred; children born of assisted reproduction; gestational agreements; payment to donors and gestational carriers; health insurance; quality assurance; and enforcement.29
One area of the surrogacy process that has invited a great deal of debate is the payment of compensation to gamete donors and surrogates.30 Some people believe the process is a thinly disguised form of child trafficking, that is, the buying and selling of children. As noted above, comparing surrogacy cases to adoption situations is illustrative, and such a comparison concerning compensation can be very helpful. Wisconsin’s adoption laws prohibit the payment of direct compensation to biological parents, with the exception of reimbursement for certain medical expenses and expenses relating to care of the mother.31
The surrogacy process, however, is not identical to the adoption process. The surrogacy process involves a well thought-out decision, by a woman who otherwise might not have chosen to have a child, to carry a child for someone else and immediately surrender the child to that person or persons. In a common adoption situation, the biological mother does not plan to get pregnant, or she decides, once she gets pregnant, that raising the child to adulthood is something she cannot handle. Providing compensation to a surrogate seems less egregious than enticing a mother, who may be unsure of her decision to put the child up for adoption, with financial remuneration if she surrenders her child. Thus, some states permit surrogacy agreements in which there is no compensation but not agreements in which there is compensation.
The ABA’s Model Act tackles this issue directly. The Model Act requires that “[t]he consideration, if any, paid to a donor or prospective gestational carrier must be reasonable and negotiated in good faith between the parties.”32 The determination of what is reasonable would of course need to be left to courts on a case-by-case basis. Clearly, sperm donors should not receive as much compensation as egg donors because the egg-donation process is much more intensive in terms of time and medical procedures. Surrogates would be entitled to relatively more compensation because of time commitment and risk.
The Model Act approach – allowing for payment of a reasonable amount of compensation to semen donors, egg donors, and surrogates – seems appropriate, given the time and risk involved in these procedures. Failure to provide some form of financial compensation, over and above that needed to reimburse the donors and surrogates for medical expenses, would likely result in a decrease in the number of people willing to participate in this process and a decrease in the ability of infertile people to raise a child.
The Model Act is very comprehensive. As with any model legislation, it is not a one-size-fits-all solution for the states. However, it provides a basis for the Wisconsin legislature to build on. It offers protection to donors, surrogates, and intended parents. Such protection includes requiring specific informed consent of all participants, including explanation of health risks, mental health examinations for all participants, health insurance for surrogates both during and for a brief period after the birth, and legal consultations for the parties.
Most significantly, however, the Model Act approach offers protection to children. Not only does it ensure good prenatal care by requiring health insurance for the surrogate, but it also provides predictability in the process. Parents who are calm and unconcerned about litigation will certainly be more successful at their parenting responsibilities. The act also outlines procedures to ensure that children born through surrogacy have access to their biological parents’ health and genetic history. These protections are not offered under Wisconsin’s current statutory scheme. Children born as a result of surrogacy deserve a level of protection that they are not offered under Wisconsin law.
Finally, one issue that has given rise to significant debate is whether same-sex couples should be allowed to engage the services of surrogates for the purpose of raising children. Under the Model Act, intended parent means “an individual, married or unmarried, who manifests the intent as provided in this Act to be legally bound as the parent of a child resulting from assisted or collaborative reproduction.” This definition would seem to suggest that two unmarried adults could enter into such an agreement and thereby be bound as legal parents, which, of course, is not uncommon. Many unmarried couples have children together. Some states have resolved this issue by indicating that only married persons may use the surrogacy process.33
Thomas J. Walsh, Hamline 1992, is a partner at Walsh & Walsh S.C., De Pere, practicing in family law.
To the extent this issue is a concern, Wisconsin could address it by indicating that two or more people are not permitted to enter into such an agreement unless they are married. Single people would, under this type of statute, be permitted to obtain a child by the surrogacy process, similar to the adoption process in which single people are able to adopt. However, two intended parents could not enter into such agreements unless they were married. Such a resolution seems the most effective way for Wisconsin to address this issue. It would avoid an entangled discussion about same-sex marriage in the context of surrogacy agreements and allow for a “stand alone” debate.
The Wisconsin legislature would be wise to at least take up the issues related to reproductive technology. Modeling a new Wisconsin law on the ABA’s Model Act Governing Assisted Reproductive Technology seems to be the best course. Clearly, some legislation is needed to 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.
1 Black’s Law Dictionary (6th ed. 1990) (citing Matter of Baby M., 109 N.J. 396, 537 A.2d 1227 (1988)).
2 AC 360, CNN, Oct. 21, 2011, available at, http://transcripts.cnn.com/transcripts/1110/21/acd.01.html.
3 See Wis. Stat. §§ 48.426(2), 48.91(3).
4 Wis. Stat. § 48.425.
5Wis. Stat. § 48.88(2)(c).
6 Wis. Stat. § 48.913.
7 105 Wis. 2d 118, 312 N.W.2d 853 (Ct. App. 1981).
8 Id. at 119.
9 Id. at 120.
10 Id. at 122.
11 See Johnson v. Calvert, 5 Cal. 4th 84, 93 (1993) (noting that “she who intended to procreate the child – that is, she who intended to bring about the birth of a child that she intended to raise as her own – is the natural mother under California law”).
12 See generally The Select Surrogate, Surrogacy Laws by State, available at http://www.selectsurrogate.com/surrogacy-laws-state.html.
13 These categories are broad and general, and each state has various nuances that create difficulties with such generalizations. Attorneys seeking specifics about any given state should thoroughly review the state’s statutory scheme before reaching any conclusions about how the state might treat a particular type of agreement. For example, many states differentiate between gestational and traditional surrogacy or require that the intended parents be married to each other. These nuances have not been considered in this categorization.
14Arkansas (Ark. Code §§ 9-10-201, -301, -304); Florida (Fla. Stat. § 63.212); Illinois (750 Ill. Comp. Stat. 47); Nevada (Nev. Rev. Stat. § 126.045); New Hampshire (N.H. Rev. Stat. § 168-B:1-B:32); North Dakota (N.D. Cent. Code §§ 14-18-05, -08); Oregon (governed by Administrative Rule, Or. Admin. R. 413-1120-0200(3)); Texas (Tex. Fam. Code §§ 160.754, 160.762); Utah (Utah Code §§ 78B-15-801 to 809); Virginia (Va. Code § 20-156); Washington (Wash. Rev. Code § 26.26.101).
15 California, New Jersey.
16 Alaska, Colorado, Georgia, Hawaii, Maine, Mississippi, Missouri, Montana, North Carolina, South Dakota, West Virginia, Wyoming.
17 Alabama, Connecticut, Delaware, Idaho, Kansas, Kentucky, Maryland, Massachusetts, Minnesota, Ohio, Oklahoma, Pennsylvania, South Carolina, Vermont.
18 Iowa, Louisiana, New Mexico, Rhode Island, Tennessee, Wisconsin.
19 Arizona (Ariz. Rev. Stat. § 25-218); District of Columbia (D.C. Code §§ 16-401, -402); Indiana (Ind. Code § 31-20-1-1); Michigan (Mich. Comp. Laws §§ 722.851-.861); Nebraska (Neb. Rev. Stat. § 126.045); New York (N.Y. Dom. Rel. Law § 122).
20 750 Ill. Comp. Stat. 47 (2009).
21 750 Ill. Comp. Stat. 47, § 15(b)(1), (2).
22 750 Ill. Comp. Stat. 47, § 15(b)(5).
23 750 Ill. Comp. Stat. 47, § 20(a)(1)-(6).
24 750 Ill. Comp. Stat. 47, § 20(b)(4).
25 750 Ill. Comp. Stat. 47, § 25. Illinois requires that the agreement be in writing. The agreement must be executed before the beginning of any medical procedures. Both the surrogate and the intended parents must sign written acknowledgment that they received information about the legal, financial, and contractual rights, expectations, penalties, and obligations for the surrogacy agreement. Compensation terms must be outlined, and there must be two witnesses. Id.
26 Ill. Comp. Stat. 47, § 25(d)(3).
27 See American Bar Association Model Act Governing Assisted Reproductive Technology [hereinafter Model Act], available at http://apps.americanbar.org/family/committees/artmodelact.pdf.
28 In re Marriage of Buzzanca, 72 Cal. Rptr. 280 (Cal. App. 1998).
29 See generally Model Act, supra note 27.
30 Such a contract was held to be illegal and invalid in a situation in which a woman agreed to act as a surrogate for payment of money with a binding agreement to assign her parental rights to her child. Matter of Baby M., 537 A.2d 1227, 1234-35 (N.J.1988).
31 Wis. Stat. § 48.913
32 Model Act, supra note 27, § 802(1).
33 See Utah Code §§ 78B-15-801 to -809.