Aug. 17, 2026 – An unborn child has a right of informed consent by statute, and with it, a right to pursue legal action against a doctor, the Wisconsin Supreme Court held in Brekke v. Midwest Medical Insurance Co., 2026 WI 29.

“Charlie May Brekke was a patient under [Wis. Stat. section 448.30] before her birth. Dr. Batley had a duty to obtain informed consent from Samantha regarding herself and Charlie,” wrote Chief Justice Jill J. Karofsky for the 4-3 majority.

Justice Rebecca Frank Dallet, Justice Janet C. Protasiewicz, and Justice Susan M. Crawford joined the majority opinion.

The court remanded the case to Winnebago County Circuit Court to resolve the informed consent claim.

Justice Susan M. Crawford’s concurrence, joined by Chief Justice Karofsky, reinforced “that only the pregnant patient has the agency to make such decisions during pregnancy and birth, on behalf of both herself and the unborn child.”

Justice Brian K. Hagedorn warned in his concurrence that “[t]he majority opinion … contains uncareful language that could lead future litigants astray.”

Justice Annette Kingsland Ziegler, concurring in part and dissenting in part, wrote “the plain meaning of the statute instructs that Charlie is a patient who is entitled to informed consent. … Our analysis should stop here.”

“This is not an abortion case, but the majority makes it into one,” Justice Rebecca Grassl Bradley began in concurring in part and dissenting in part.

“[T]he majority inexplicably restricts its holding to Charlie, recognizes her informed consent claim only because she was ‘born alive,’ and strips unborn children of their legal rights under informed consent law.”

Injured During Delivery

Before Charlie was born, Samantha, the surrogate mother, was diagnosed with gestational diabetes, a condition that can result in large babies.

Charlie was born at 11 pounds, five ounces. During vaginal delivery, she suffered injuries that leave “her permanently limited and disfigured.”

Charlie argued she lacked informed consent from Dr. Batley about treatment alternatives such as a cesarean section, which promised to be safer.

The circuit court dismissed the claim because only Samantha, who isn’t a party to the lawsuit, received medical services.

The court of appeals certified for supreme court review: “Whether an unborn child (or any minor child) is a patient under Wis. Stat. § 448.30 and thus entitled to informed consent with the independent right to pursue legal action against a physician who fails to comply with said statute.”

The Unborn Patient

The Wisconsin Legislature codified common-law informed consent requirements in 1981: “Any physician who treats a patient shall inform the patient about the availability of reasonable alternate medical modes of treatment and about the benefits and risks of those treatments.”

The statute doesn’t define patient, but previous Wisconsin decisions “confirm[] a common and reasonable understanding that a ‘patient’ can include an unborn child,” the majority explained.

The statute contains exceptions that Dr. Batley argued shielded him.

The information about Charlie’s risks during delivery, however, doesn’t involve technical information, and the statute does not expressly except minors, the majority said. Case law expects that a parent or guardian would likely provide consent for a minor.

The statute required Dr. Batley to provide informed consent to both Charlie and Samantha, with Samantha exercising consent, the majority summarized.

The dual duties a doctor has to the pregnant patient and the unborn child create no conflict, the majority said.

The statute requires only communicating reasonable alternative treatments, their benefits, and their risks. No particular decision is mandated, the majority distinguished.

Statutory duties to the child “cannot override a pregnant patient’s right to her own bodily integrity and autonomy,” the majority continued.

“[T]he pregnant patient is always responsible for making medical decisions for an unborn child.”

Nor does this decision, the majority specified, expand any rights to unborn children. The case is consistent with informed consent decisions in other states.

Justice Crawford Concurrence: ‘Bodily Integrity and Self-Determination’

“[T]oday’s decision upholds the rights of pregnant patients to make medical decisions implicating their bodily integrity and self-determination,” Justice Crawford emphasized in her concurrence.

These rights come from “the personal liberties protected by the Fourteenth Amendment, and from the guarantee of liberty in Article I, section 1 of the Wisconsin Constitution,” Justice Crawford said.

“[D]uring pregnancy, the pregnant patient has the right and responsibility to grant or withhold consent to medical treatment on behalf of both herself and the unborn child,” Justice Crawford explained.

“In reaching this conclusion, we uphold the pregnant patient’s autonomy to direct what happens to her own body.”

“Pregnant patients may literally be forced to make life-or-death decisions, or decisions with long-term health consequences, for themselves or their unborn children,” Justice Crawford wrote. The majority decision recognizes this reality.

Justice Hagedorn Concurrence: Future Confusion?

“The question the majority answers is whether Charlie can bring an independent claim; the court is unanimous that she can,” Justice Hagedorn wrote in his concurrence.

But the majority’s language may sow future confusion, as the dissents “rightly highlight.”

The majority properly focused on the language of the statute, but Justice Hagedorn believed Justice Crawford’s concurrence went astray by conditioning Charlie’s status on being born alive.

“If the language causes confusion even among the court, it carries the risk of doing worse in the hands of enterprising litigators.”

“The subtext running through these problems is the apparent wariness of ascribing personhood to the unborn child,” Justice Hagedorn wrote.

“It’s almost as if the majority is worried that law and logic will operate as a dangerous undercurrent that might accidentally lead to dignifying unborn children too much.”

“Rather than fret about these matters,” Justice Hagedorn advises, “we do well to simply follow the law – here, the language of the statutes.”

Justice Ziegler: Going Too Far, and Not Far Enough?

“[T]he statute has no ‘born alive’ requirement,” Justice Ziegler highlighted in dissent that described the contrast between the majority’s overreaching analysis while ignoring the terms of the surrogacy contract.

“This is not the first time the majority has overreached,” Justice Ziegler noted, providing four examples since 2020.

“It is the circuit court, rather than our court, that should be fully considering the parties’ arguments,” Justice Ziegler concluded.

“The majority should cabin its answer to the sole question certified by the court of appeals and not decide issues without full consideration of all the facts and arguments, including the contract.”

Justice Bradley: ‘Roe’s Discredited, and Now Overruled Conception’

The majority relied on cases based on Roe v. Wade, which the U.S. Supreme Court overruled in Dobbs v. Jackson Women’s Health Organization, Justice Bradley pointed out in dissent.

“Wisconsin law has long recognized” that a human being begins at conception, “an independent person, not an appendage of a ‘pregnant patient’s’ (aka woman’s) body,” Justice Bradley said.

“Since at least 1898, this court has recognized that a person’s negligence claim survives the death of the injured person.”

By “deny[ing] the personhood of the unborn child,” Justice Bradley said, the majority “would extinguish the child’s claim if the child dies before birth.”

“[T]he majority creates perverse incentives. A physician who fails to obtain informed consent faces liability only if the child lives, but escapes liability under informed consent law if the child dies,” Justice Bradley explained.

The statute is “straightforward,” Justice Bradley concluded, but perhaps “informed consent law may trigger cognitive dissonance for the majority because of its policy preferences on the political issue of abortion.”

“[T]he law is what the statute says and not what the majority may wish it to be.”

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.