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  • WisBar News
    August 20, 2012

    Appeals Court Sends Surrogacy Case to Supreme Court

    Appeals Court Sends Surrogacy Case to Supreme Court

    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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