Aug. 20, 2012 – The Wisconsin Supreme Court may soon decide
whether a surrogacy and parentage agreement bars a
surrogate mother from asserting parental rights after the child's
birth.
Marcia and David Rosecky asked longtime friend Monica Schissel to be a traditional surrogate, using
artificial insemination to impregnate Monica with David’s
sperm.
The parties entered a written surrogacy and
parentage agreement, whereby Monica would carry the child and then
Monica and her husband, Cory, would release all parental rights upon the
child’s birth and allow the Roseckys to legally
adopt the child.
Before the child’s birth, however, Monica changed her mind and
asserted parental rights contrary to the parentage agreement. After the
child was born, David Rosecky asked a
circuit court to grant specific performance of the parentage
agreement.
The court declined, concluding that the agreement did not conform to
the requirements of voluntary termination of parental rights under Wis. Stat. chapter
48.
After a trial, the circuit court granted sole custody and primary
placement of the child to David Rosecky, but granted
secondary placement rights to Monica Schissel. David
appealed.
In its certification
to the supreme court, Rosecky v. Schissel, 2011AP2166, the
Wisconsin Court of Appeals explained that Wisconsin “currently
does not have a legislative or common law that addresses the
enforceability of a surrogacy
agreement” and noted that enforceability of such agreements
“is a question that is likely to reoccur and involves policy
determinations of statewide importance that are most appropriately
decided by the supreme court.”
In briefs, Monica Schissel argues that
the parentage agreement is unenforceable, and unlawfully attempts to
create parental rights by contract.
However, David Rosecky argues that equitable estoppel bars Monica from asserting parental
rights, and other jurisdictions have upheld parentage agreements in the
surrogacy context.
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