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  • Wisconsin Lawyer
    May 01, 2017

    As I See It
    Out of Sync: Assistive Reproductive Technology & Parentage Law

    To resolve disputes over who is the legal parent of a child, Wisconsin courts and the Wisconsin Legislature should give priority to the individuals who demonstrate their intent to become the parents by initiating the use of assistive reproductive technology.

    Hon. Thomas J. Walsh

    newborn baby feet

    Under Wisconsin law, when a child is born to a married woman, her husband is presumed to be the father.1 There is no need for a court proceeding or court order; the child belongs to that couple as legal parents. Furthermore, it is a difficult task for a man who is not the husband to intervene in that parental relationship and overcome the presumption.2

    The public policy behind this law is plain: familial relationships should be held inviolate unless strong evidence is presented to suggest they should be broken.3 Societal stability is promoted by familial stability.4 In the past, the notion that another woman would desire to intervene in that relationship was simply unheard of, because the child, having been born from the woman, belonged to the wife.

    With the rise of assistive reproductive technology, all these legal presumptions and relationships have been called into question. A recent Wisconsin case, S.R. v. Circuit Court (In theInterest of P.L.L.-R.),5 addresses these issues.

    This article analyzes the appellate court decision in P.L.L.-R. by first looking at the factual and procedural background of the case and then discussing arguments used by the petitioners and the circuit court’s and court of appeals’ analysis. The piece concludes with a discussion of the future in this area of the law.

    Background: P.L.L.-R.

    The facts of this case are most easily understood in the context of the recent U.S. Supreme Court decision in Obergefell v. Hodges6 and the decision of the U.S. District Court for the Western District of Wisconsin in Wolf v. Walker.7 Those cases stand for the proposition that same-sex marriages are valid marriages under the 14th Amendment to the U.S. Constitution, and that individual states are not permitted to deny their validity.8

    Thomas J. WalshThomas J. Walsh, Hamline 1992, is a Brown County Circuit Court judge. He practiced privately in family law from 1992-2012.

    Walsh is the 2016 recipient of the Hon. Charles Dunn Author Award, presented annually by the State Bar Communications Committee.

    On Sept. 4, 2013, S.R. was artificially inseminated using sperm from an anonymous donor. On June 7, 2014, P.L.L.-R. was born. S.R. and C.L., both of whom are women, were married on June 13, 2014, in Wisconsin, shortly after the June 6, 2014, decision in Wolf, which invalidated Wisconsin’s prohibition of same-sex marriage.

    On Nov. 25, 2014, S.R. and C.L. filed a petition with the circuit court for Winnebago County, titled “Joint Petition for Determination of Parentage.” Their petition, Winnebago County case number 2014AD77, was filed as an adoption action.

    Not an Adoption Action. The circuit court scheduled a hearing on the petition, at which only the two petitioners and their lawyer appeared. Relying on two separate theories of law, the petitioners requested that C.L. be established as the other legal parent of P.L.L.-R.:

    • A “gender-neutral” reading of Wisconsin’s marital-presumption and artificial-insemination laws would result in the court being required to enter such a parentage order; and

    • The trial court should apply the doctrine of “intended parentage,” which would also require the court to enter a parentage order.

    The circuit court did not reach a conclusion consistent with either of these arguments. Rather, it made a decision on procedural grounds. That is, the petition had been filed as an adoption action, but both petitioners agreed that they were not seeking an adoption order.9

    Alternative: A Paternity-type Action. The circuit court then offered the petitioners a few options other than proceeding on an adoption petition. The first alternative was to file a paternity-type action. The second option was to bring an action for declaratory judgment.

    The trial court stated:

    “[U]nder the petition that you filed I don’t believe that I can grant the relief you’re requesting under the law as it is today. I believe that you have an opportunity to bring an action for declaratory judgment …, that if you gave notice to the Attorney General’s Office, you have the opportunity to pursue the arguments that you’re making here today and I believe they are essentially that the – constitutionally the law is unfair to the parties.”10

    [T]he current state of the law in Wisconsin is inadequate to the task put before it in many assistive reproductive- technology cases.

    Thus, the trial court determined that the petition, as filed, was seeking a declaratory judgment that Wisconsin’s marital-presumption and artificial-insemination laws are unconstitutional as written. As a result, the court found that it could not grant the petition because, without proper notice to the attorney general’s office, it lacked jurisdiction to grant such relief.

    With their petition denied by the circuit court, the petitioners filed an appeal. The Wisconsin Court of Appeals upheld the circuit court decision. The rationale was rather straightforward. Noting that the matter was not proceeding as an adoption by agreement of both petitioners, the appellate court stated that “we can only conclude that S.R. and C.L. ultimately were and are seeking a declaratory judgment.”11

    Finally, the court of appeals noted that “[b]ecause the attorney general was never served and afforded an opportunity to be heard, the circuit court was without competency to hear the matter and appropriately dismissed it.”12

    Gender-neutral Readings of Statutes

    It goes without saying that the current state of the law in Wisconsin is inadequate to the task put before it in many assistive-reproductive-technology cases.13 Nevertheless, the petitioners raised two specific statutes related to parentage. First, the petitioners cited Wis. Stat. section 891.41 which says, inter alia:

    “A man is presumed to be the natural father of a child if … [h]e and the child’s natural mother were married to each other after the child was born but he and the child’s natural mother had a relationship with one another during the period of time within which the child was conceived and no other man has been adjudicated to be the father or presumed to be the father of the child under par. (a).”

    The petitioners further cited Wis. Stat. section 891.40, which provides that if “a wife is inseminated artificially with semen donated by a man not her husband, the husband of the mother at the time of the conception of the child shall be the natural father of a child conceived.”14

    Not All Circumstances Apply

    Given that these two sections of the Wisconsin statutes are written in a gender-specific manner, they do not make sense in the context of this case, in which both spouses are women. Therefore, the petitioners argued that these sections should be read in a gender-neutral fashion pursuant to Wis. Stat. section 990.001(2). That section states as follows:

    “Gender.  Words importing one gender extend and may be applied to any gender. Any person who by statute, rule or ordinance is designated a chairman, alderman or other similar title may use another equivalent title such as, in the case of a chairman, ‘chair,’ ‘chairperson,’ ‘chairwoman,’ or other such appropriate title.”15

    This section is relevant because of the decisions in Obergefell and Wolf. That is, if same-sex couples are permitted to enter into a valid marriage, and if all statutory provisions are to be read as gender neutral, then various statutory sections open parentage opportunities for same-sex married couples.

    For example, Wisconsin’s marital-presumption statutes presume a man to be the natural father of a child if he is married to the mother when the child is conceived or born.16 If that provision is read in a gender-neutral fashion it would permit female same-sex married couples to have the presumption as to a child born to one of the women during their marriage. However, if it is not read in a gender-neutral fashion, it would not permit those couples to have the benefit of that presumption. Similarly, the artificial-insemination statute referenced in P.L.L.-R.would provide a path to parentage to both partners in female same-sex married couples if that section were read in a gender-neutral fashion.

    Gender-neutral readings of these statutes would not be as helpful to male same-sex married couples, but such a reading of Wisconsin’s adoption statute would provide a path to legal parentage for these couples as well.17 Wisconsin’s adoption statute permits adoption by single people or by husband and wife jointly.18 If that section is read in a gender-neutral fashion, then it would permit same-sex married couples to adopt.

    Wisconsin has a parentage statute that permits the father and the mother of a nonmarital child to later get married and declare their child a “marital” child if they were in a relationship when the child was conceived.19 In fact, this is the provision that would have been invoked in P.L.L.-R. because S.R. and C.L wed each other several days after P.L.L.-R. was born, but they were in a relationship at the time the child was conceived. If this section were read in a gender-neutral fashion, then same-sex married couples of both sexes would have a similar right. If not, then they would not have similar rights. These statutory provisions simply would not have been relevant before Obergefell and Wolf, because even if they were read in a gender-neutral fashion, they are still only applicable to those couples who are married or who get married after the child is born.

    In Wolf v. Walker, U.S. District Judge Barbara Crabb ruled that her decision was not meant to answer questions regarding Wisconsin’s paternity statute, nor did her decision answer questions regarding Wisconsin’s artificial-
    insemination statute.20

    Nevertheless, the decisions in Obergefell and Wolf have increased the relevance of these other statutes to the discussion of parentage through the use of reproductive technology.

    The Intended-parent Doctrine

    As referenced above, the petitioners requested that they both be established the legal parents of P.L.L.-R., not only by application of the gender-neutral language in Wis. Stat. section 990.001(2) to various parentage statutes but also based on the intended-parent doctrine. Although the petitioners advanced this argument at the trial court level, it was apparently not addressed by the circuit court nor was it addressed in the court of appeals’ decision.

    The intended-parent doctrine is a court-formulated doctrine outlined in a case from the California Supreme Court. Johnson v. Calvert21addressed a situation in which California statutory law provided two different results regarding parentage. In the case, Mark and Crispina Calvert were a married couple who wanted to have a child. Crispina had undergone a hysterectomy several years before, but her ovaries were still capable of producing eggs. Anna Johnson agreed to serve as a surrogate for Mark and Crispina, and a surrogacy contract was drawn up and fully executed. The in vitro process occurred, and Anna became pregnant. During the pregnancy, Mark and Crispina’s relationship with Anna deteriorated to the point that a dispute arose regarding the child.

    California law recognized two means of proof for maternity: giving birth to the child and genetic relationship. Each party used one of the arguments in advancing claims to the child. The court was faced with the difficult prospect of choosing a mother. The court noted that “[b]ecause two women each have presented acceptable proof of maternity, we do not believe this case can be decided without inquiring into the parties’ intentions as manifested in the surrogacy agreement.”22

    The court determined that when these two methods of establishing maternity do not coincide in one woman, then “she who intended to procreate the child … is the natural mother under California law.”23 Thus, in analyzing this surrogacy case, the California Supreme Court made inquiry into the circumstances surrounding the surrogacy contract and the individual’s intent when entering into the contract.

    The California Supreme Court went on to note the following:

    “We are all too aware that the proper forum for resolution of this issue is the Legislature, where empirical data, largely lacking from this record, can be studied and rules of general applicability developed. However, in light of our responsibility to decide this case, we have considered as best we can its possible consequences.”24

    Finally, the court noted that “[i]t is not the role of the judiciary to inhibit the use of reproductive technology when the Legislature has not seen fit to do so; any such effort would raise serious questions in light of the fundamental nature of the rights of procreation and privacy.”25

    Although the Johnson fact pattern is different from the fact pattern in P.L.L.-R., the issue is very similar. Wisconsin laws on this issue provide no answer to Wisconsin trial courts. The reproductive technology exists, and it is being legally used on a regular basis. It stands to reason that more complex cases will soon arrive in Wisconsin circuit courts in light of the available technology.

    These procreation processes are available to people right now, but the declaratory-judgment process offers no more answers than any of the other legal processes available today.

    Toward a Clear Path Forward

    The P.L.L.-R. case seems to stand for the proposition that the declaratory-judgment process is an option when deciding issues of parentage in assistive-reproductive-technology cases. Yet, a declaratory judgment is simply the “power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.”26 Thus, P.L.L.-R. informs us what one process might look like, but not what the answer should be to the central question. Addressing the issue of whether Wis. Stat. sections 891.40 and 891.41 should be read in a gender-neutral fashion will resolve some, but not all, of the issues, and would do so in a piecemeal fashion.27

    The clearest path forward can be seen by considering the very straightforward hypothetical situation of a child genetically unrelated to any of the parties and born through the use of a surrogate. This is certainly a real possibility. Such a hypothetical shows the clearest path, because it can be discussed without reference to the politically charged situation involved with same-sex married couples. For those who are unwilling to discuss same-sex married couples parenting children, then it bears considering that infertile different-sex married couples who want to start a family could easily choose to procreate by hiring a surrogate to carry a child with donor sperm and a donor egg.

    Including All Permutations

    In circumstances such as these, it seems clear that the only direction for a trial court to move, in the absence of legislative action, is toward the intended-parent doctrine. What would the other options be, short of the onerous choice of placing the child in foster care? The trial court could readily conduct a hearing in which evidence is presented regarding who the intended parents are and who participated in the procreation process. This type of a legal process is clearly within the realm of what courts do and what they do well.

    Further, the intended-parent doctrine provides a very clear path forward for all the various permutations of surrogacy and assistive reproductive technology. It would apply equally and fairly to same-sex couples and different-sex couples. It provides a clear path when a clear path is vital. Such an analysis would be triggered by the court’s determination that a valid surrogacy contract exists. Surrogacy contracts have already been addressed favorably by the Wisconsin Supreme Court in Rosecky v. Schissel,28 and further inquiry into the intentions of the parties seems a reasonable extension of that analysis.

    The intended-parent doctrine also provides an appropriate option for legislation. Clearly, the Wisconsin Legislature could pass a law prohibiting the use of assistive reproductive technology in Wisconsin and prohibit all surrogacy contracts. However, if the legislature does not do so, consideration of the hypothetical outlined above seems to suggest the most logical legislative course. In situations in which none of the parties are related to a child born in Wisconsin, the source of the solution would seem to start and end with an inquiry into the individuals who intended to procreate that child and bring the child into the world.

    Keeping Up with the Issues

    As did Rosecky v. Schissel, P.L.L.-R. brought to Wisconsin courts the problem of resolving parentage issues with outdated statutes. P.L.L.-R. may help identify the legally acceptable process, but not the legally acceptable answer.

    Obergefell and Wolf did not change anything in Wisconsin regarding placement law. However, they created the possibility that a certain type of case will become more common, that is, married couples seeking to establish parentage of children born from assistive reproductive technology. Many married couples want children, and Obergefell and Wolf bring a new category of married parents into that mix. Due to their inability to have a child genetically related to both of them, same-sex married couples may choose to have a child genetically related to one or to neither of them.

    Whether these issues get resolved through the judiciary or the legislature, they must be addressed. The most logical way for that to happen is for the court to conduct a hearing to determine the intended parents. In any case, it is clear that there is an urgent need for further legislation to keep up with issues being faced by the courts in the realm of assistive reproductive technology. This is particularly true, in light of the public’s overall aversion to having judges “make” the law rather than interpret it.

    Meet Our Contributors

    If you could have tried one famous trial, what would it be?

    Thomas J. WalshOf the trials that occurred in the United States in the 20th century, I think I would have most enjoyed presiding over the State of Tennessee v. John Scopes (the Scopes Monkey trial). First, the case had a significant impact on American society. It dealt with the dissemination of scientific information, regarding the theory of evolution, which many people saw as false and in contradiction to the teachings of the Bible. It further dealt with the dissemination of that information to minor children.

    These are all issues that, in a different context, continue to face us today. The scientific information we deal with today involves things like environmental information or health information such as the wisdom of vaccinations for children.  Many people see the data in such issues as bad science. In that sense, the conduct of the Scopes case is still relevant.

    Second, there are very few things that judges enjoy more about their job than the opportunity to watch good attorneys try their case. In the Scopes case, William Jennings Bryan represented the state of Tennessee, and Clarence Darrow represented the defendant. William Jennings Bryan had served the state of Nebraska in the U.S. House of Representatives. He had also been the Democratic Party’s candidate for President of the United States on three occasions. In addition, he had served as Secretary of State under President Woodrow Wilson. His oratorical skills were widely known. Clarence Darrow, on the other hand, was considered to be one of the top criminal defense lawyers of the day. Observing those two attorneys try a case would have been very rewarding for me as a judge. 

    In my collection of home videos is a copy of the 1960 movie Inherit the Wind, starring Spencer Tracey in the role corresponding to attorney Clarence Darrow in the Scopes trial. If you have not seen it, you are missing a classic movie.

    Thomas J. Walsh, Brown County Circuit Court, Green Bay.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email Check out our writing and submission guidelines.


    1 Wis. Stat. § 891.41.

    2 Michael H. v. Gerald D., 491 U.S. 110, 124 (1989).

    3 Id. at 123.

    4 Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

    5 2015 WI App 98, 366 Wis. 2d 134, 876 N.W.2d 147.

    6 135 S. Ct. 2584 (2015).

    7 986 F. Supp. 2d 982 (W.D. Wis. 2014).

    8 For a more complete discussion of the effect of Obergefell, see Christopher S. Krimmer, Same-Sex Marriage in Wisconsin Post Obergefell: A Practical Guide, 34 Wis. J. Family Law 37 (Oct. 2015).

    9 Pursuing an adoption in cases like this may be less desirable for many reasons. Among other things, the adoption process can be more expensive because of the need for a home study conducted by a licensed agency, it can also take longer given that the licensed agency needs to gather information and then write a report, and an adoption would mean that same-sex couples are treated differently than couples who can have their legal rights established using the marital presumption or the paternity process.

    10 In the Interest of P.L.L-R., 2015 WI App 98, ¶ 6, 366 Wis. 2d 134.

    11 Id. ¶ 14.

    12 Id.

    13 See generally Thomas J. Walsh, Wisconsin’s Undeveloped Surrogacy Law, 85 Wis. Law. 16 (March 2012).

    14 Wis. Stat. § 891.40.

    15 Wis. Stat. § 990.001(2).

    16 Wis. Stat. § 891.41(1)(a).

    17 It is plain to see how paternity through the use of the presumption would work with same-sex female couples, but not same-sex male couples. In such a situation, it is likely that the courts would face a challenge on equal-protection grounds given that some married couples would be treated differently than others. The presumption statute would have to be completely rewritten to address these issues.

    18 Wis. Stat. § 48.82(1).

    19 Wis. Stat. § 891.41(1)(b).

    20 In the Interest of P.L.L.-R., 2015 WI App 98, ¶ 13, 366 Wis. 2d 134.

    21 5 Cal. 4th 84 (1993).

    22 Id. at 94.

    23 Id.

    24 Id at 98.

    25 Id. at 102.

    26 Wis. Stat. § 806.04(1).

    27 The argument against applying the gender-neutral reading to Wis. Stat. sections 891.40 and 891.41 were not spelled out by the appellate court in its decision. Because it decided the issue on procedural grounds regarding service of notice, it never addressed whether sections of the Wisconsin statutes should be read in a gender-neutral fashion pursuant to Wis. Stat. section 990.001(2), but these two specific sections should not be so interpreted. The opinion of an appellate court on that issue will have to wait for another day.

    28 2013 WI 66, 349 Wis. 2d 84, 833 N.W.2d 634.

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