The Wisconsin Supreme Court recently took up the issue of the enforceability of surrogacy agreements and rendered a decision that amounts to the court’s first venture into this area of Wisconsin law. In an article that appeared in the Wisconsin Lawyer in spring 2012,1 I remarked that Wisconsin law on this topic was confusing at best and in need of clarification, not simply for the courts that must address the enforceability of these agreements but also for the attorneys who draft them and the parties who enter into them. Although the decision in Rosecky v. Schissel2 offers some clarity in this area of the law, a great deal remains uncertain.
The actual result in the case was not surprising. Pursuant to the decision, the courts will not enforce agreements that automatically terminate the parental rights of a prospective birth parent even if the birth parent is one of the contracting parties. Such a result would clearly violate longstanding policy in Wisconsin.3 In addition to this not-unexpected holding, the supreme court gave some limited direction regarding surrogacy agreements.
This article examines the Rosecky decision and the effect it will have on the law of surrogacy in Wisconsin. First, it reviews the facts of Rosecky. Next, this article briefly reviews the court’s analysis, in which the court focused largely on the law of contract while also discussing some of the public policy issues. Finally, it considers the future for this area of the law and what remains to be done.
Background of Rosecky v. Schissel
The facts of the case are not complex and, in fact, not uncommon in the Wisconsin court system. Monica and Cory Schissel and Marcia and David Rosecky had been close friends for several years. Marcia and David wanted to become parents, but Marcia’s eggs were not viable. Monica twice offered to be a surrogate for Marcia and David. After discussing the various options, both couples agreed to the procedure: Monica would be artificially inseminated using her egg and David’s sperm. Thus they entered into an agreement for traditional surrogacy and adoption. After the child’s birth, the Roseckys would raise the child into adulthood. Monica also agreed to voluntarily terminate her parental rights once the child was born, to facilitate the purpose of the agreement.
Initially, the agreement was oral but the Schissels and Roseckys subsequently committed it to writing in a “parentage agreement” (referred to in the supreme court’s opinion as “the PA”). The written agreement included a provision indicating that the Schissels would have no custodial rights and no placement of the child once the child was born. Both parties had been represented by independent legal counsel when the agreement was drafted and executed. The agreement itself covered “virtually every eventuality which could possibly occur during the pregnancy.”4
General Principles in Surrogacy Law after Rosecky v. Schissel
The following general principles can be derived from this case for attorneys and their clients:
- Surrogacy agreements are enforceable in principle.
- From a legal perspective, traditional surrogacy is too risky to undertake. Traditional surrogacy is the process In which the surrogate is the genetic mother of the child. She is then inseminated with the semen of the intended father.
- Gestational surrogacy arrangements do not entail the same problematic issues and thus are more likely to have successful legal results. Gestational surrogacy is the process in which the surrogate mother is not genetically related to the child. Fertilization happens outside the womb (in vitro) and the embryos are then implanted in the surrogate.
- All surrogacy agreements should contain very specific custody and placement provisions, in the event a party reneges and a family court decision is needed.
The artificial insemination proceeded as planned, and Monica became pregnant. However, before the child was born, the couples had a disagreement. Monica then told the Roseckys that she was no longer willing to voluntarily terminate her parental rights to the child she was carrying. After the child was born, David Rosecky filed a motion in circuit court for specific performance of the parentage agreement. That is, he wanted Monica’s parental rights terminated and he and Marcia decreed the parents of the child. Monica opposed the motion on various grounds, but she never claimed that she did not understand the terms of the agreement.5
On Feb. 11, 2011, after a hearing, the circuit court entered an order finding the parentage agreement null and void. The circuit court reasoned that the agreement did not meet the requirements for a voluntary termination of parental rights under Wis. Stat. chapter 48. During a two-day-long contested placement hearing, the circuit court heard testimony from, inter alia, three psychologists regarding the best way to structure custody and placement. At the conclusion of the trial, the court awarded placement of the child to David, but awarded periods of secondary placement to Monica Schissel: six hours every other weekend until the child reaches the age of two years old and then overnights every other weekend.6 The circuit court made all these placement decisions without regard to the parentage agreement. David Rosecky appealed the circuit court’s decision.
The District IV Court of Appeals noted that “[w]hether a surrogacy agreement should be enforced is a question that is likely to reoccur and involves policy determinations of statewide importance that are most appropriately decided by the Supreme Court.”7 Thus, the court of appeals certified the matter for review by the Wisconsin Supreme Court.
On July 11, 2013, the supreme court issued its opinion and held that the provision in the parentage agreement requiring Monica to terminate her parental rights was not valid because it did not comply with the protections afforded all parties who are subject to a termination of parental rights (TPR) proceeding pursuant to Wis. Stat. chapter 48. However, the court also determined that the TPR provisions were severable from the rest of the agreement and, therefore, did not invalidate the agreement in its entirety. Thus, the supreme court remanded the case to the circuit court for a determination of custody and placement with due consideration being given to the remaining valid terms contained within the parentage agreement.
Supreme Court Analysis
The supreme court took a three-fold approach. First, it discussed extensively the background of assisted reproductive technology and surrogacy. The court cited various articles and treatises on the topic and other states’ statutory schemes. Second, it discussed current Wisconsin law regarding surrogacy and the enforceability of the surrogacy agreements. To that end, it reviewed the TPR and adoption statutes as well as the provisions in Wisconsin law relating to custody and placement. It also reviewed the provisions relating to registering of birth certificates, which use the term “surrogate mother.” Third, it discussed the specific enforceability of this surrogacy agreement. (This article does not repeat the court’s discussion of the background of assisted reproductive technology nor review the status of Wisconsin law prior to this decision.8)
The court determined that Wisconsin statutory law does not address the situation raised by the facts of this case. The court stated that “having determined that the Wisconsin Statutes do not provide a specific answer regarding the enforceability of the PA, we turn to contract law.”9 Thereafter, the court focused almost exclusively on contract law when discussing the validity of the parentage agreement.
As an initial matter, the court said that “Wisconsin courts have long recognized the importance of freedom of contract and have endeavored to protect the right to contract.”10 The court further noted that “individuals should have the power to govern their own affairs without governmental interference.”11 Finally, the court said that “[c]ourts protect parties’ ‘justifiable expectations and the security of transactions’ by ‘ensuring that the promises will be performed.’”12
In reviewing the validity of the written agreement between these parties, the supreme court emphasized Wisconsin’s commitment to freedom of contract. It noted that under current law, the parties had made a contract.13 The court also opined that it found “no public policy statement contrary to the enforcement of the PA in the Wisconsin Statutes or in Wisconsin cases.”14 Thus, the supreme court held that surrogacy contracts are enforceable in Wisconsin unless they are not in the best interests of the child.15 The rationale for this holding was as follows:
“We conclude that enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation that could drag on for the first several years of the child’s life.”16
Depending on one’s perspective, this case can be viewed as a success or failure. The following general principles can be derived from the decision for attorneys and their clients:
Surrogacy agreements are enforceable in principle.
From a legal perspective, traditional surrogacy is too risky to undertake. Traditional surrogacy is the process in which the surrogate is the genetic mother of the child. She is then inseminated with the semen of the intended father.
Gestational surrogacy arrangements do not entail the same problematic issues and thus are more likely to have successful legal results. Gestational surrogacy is the process in which the surrogate mother is not genetically related to the child. Fertilization happens outside the womb (in vitro) and the embryos are then implanted in the surrogate.
All surrogacy agreements should contain very specific custody and placement provisions, in the event a party reneges and a family court decision is needed.
With these general principles, however, the clarity ends. Furthermore, this case illustrates why defining the scope of any complex legal doctrine in the court system is slow and inefficient.
When reviewing Rosecky, the question must be posed whether there is really any substantive difference between the supreme court’s upholding the agreement with a remand to the circuit court for a further analysis of custody and placement versus the supreme court issuing a decision that rendered the parentage agreement wholly invalid. The notion that the state of Wisconsin now recognizes the validity of these agreements is an important development, but seemingly these parties would have ended up in family court in either case. David is the biological father and Monica is the biological mother, and so without a parentage agreement, they would have ended up in family court in an effort to resolve their placement dispute. Once the TPR provisions are severed, the parentage agreement says that Marcia and David shall have primary placement, but it does not cut off secondary placement (formerly called visitation) for Monica.17 Thus, a hearing in family court is inevitable.
The real purpose of the parentage agreement, of course, was to have a situation in which the Roseckys ended up being the parents of the child.18 Being the parents of the child seems, by definition, to exclude the need to coordinate visitation schedules with other people who are also legal parents. Clearly, the parties did not intend to be engaged in such a dispute and, thus, the central purpose of the parentage agreement was not achieved.
Nevertheless, there is a difference between validation and invalidation of this agreement, albeit not a great difference for the parties in this case. This case stands for the proposition that in circumstances in which the biological mother is the surrogate, there is really no way to ensure a result until after the birth of the child because of the requirements of Wis. Stat. chapter 48. However, these problems are eliminated when the biological mother is not the surrogate. In such circumstances, the chances that intended parents will achieve the purpose of their parentage agreement are greatly increased. The Rosecky case was derailed when one of the contracting parties was unable to enforce the agreement because valid consent to termination of parental rights cannot be given absent the protections of Wis. Stat. chapter 48. In cases in which the surrogate is not genetically related to the child, the situation is less problematic. Thus, one substantive effect of this case is that it communicates to intended parents, and to the attorneys drafting surrogacy agreements, that gestational surrogacy is a much more certain process legally than traditional surrogacy.
Attorneys should avoid drafting surrogacy contracts for parties using traditional surrogacy, because given the current provisions of Wis. Stat. chapter 48, there is no way to ensure a desired result until after the baby is born.19 The essence of these agreements is the ability of several individuals to get together, agree to create a child, and decide who will raise that child. Current law provides no certainty for traditional surrogacy arrangements. Therefore, attorneys should shy away from drafting such agreements because they invite both false hopes for contracting parties and the possibility of malpractice claims.
In addition, Rosecky also stands for the proposition that the best practice in drafting is to insert custody and physical placement provisions into the agreement. If a circuit court ends up invalidating any substantive provisions of the parentage agreement, Rosecky dictates that the circuit court consider such provisions when deciding where the child will reside. Failing to insert such provisions would seem to be inviting disaster for the parties and the drafting attorney.
Finally, the Rosecky holding did not eliminate the need for comprehensive legislative input, to determine the appropriate level of court oversight in enforcing parentage agreements. For example, is there an appropriate level of compensation for surrogate mothers or for sperm and egg donors?20 Should any type of legal assistance be mandated to individuals executing parentage agreements?21 If so, should the sperm donor and the egg donor be provided counsel or should only the surrogate mother be required to have counsel? Should any psychological testing be required for parties to a parenting agreement?22
In a TPR situation, a couple seeking to become legal parents of a child who is unrelated to them would need to undergo a home study and obtain circuit court approval. This would be true even if the biological mother and the biological father selected the adoptive parents and desired court approval, and it is true even in step-parent adoptions in which one parent is going to remain in the child’s life.23 Should a home study be required for purposes of enforcing a parenting agreement?
These are just a few of the questions that Wisconsin’s circuit courts and contracting parties need answered. More complex circumstances are likely to arise in Wisconsin courts in the coming years as more and more people use this process.
One might argue that little has been accomplished if the Rosecky decision’s sole result is that surrogacy agreements give the contracting parties the right to a custody and placement fight in family court. The areas in which Rosecky provided clarification can be seen in four general principles: 1) surrogacy agreements are enforceable in principle; 2) traditional surrogacy is too risky to undertake from a legal perspective; 3) gestational surrogacy will not be as legally risky as traditional surrogacy; and 4) specific custody and placement provisions should be delineated as a default provision. These are perceptible improvements in the law, but not nearly sufficient.
Knowing that a court will uphold certain types of surrogacy agreements is only useful if such knowledge will apply to various permutations of the facts as those facts unfold. This decision does not offer that. Awareness that gestational surrogacy agreements provide less risk to participants than do traditional surrogacy agreements is useful, but not useful enough. Certainly traditional surrogacy will work fine if no one backs out of the agreement, but if results cannot be accounted for in drafting the agreement, perhaps too much uncertainty remains even in gestational cases.
The New Jersey Supreme Court seems to have best captured the dilemma of this area of the law:
“Because the issue with all its ramifications is fraught with complexity and encompasses the interest of the law, both civil and criminal, medical ethics and social morality, it is not one which is well-suited for resolution in an adversary judicial proceeding. It is the type [of] issue which is more suitably addressed in the legislative forum, where fact finding can be less confined and the viewpoints of all interested institutions and disciplines can be presented and synthesized. In this manner only can the subject be dealt with comprehensively and the interest of all institutions and individuals be properly accommodated.”24
Wisconsin family law will not provide sufficient guidance about surrogacy to circuit courts and contracting parties until the legislature reviews and updates Wisconsin laws on a comprehensive basis. With the growing number of state residents using the surrogacy process, such a revision is urgently needed.
1 Thomas J. Walsh, Wisconsin’s Undeveloped Surrogacy Law, Wis. Law., March 2012.
2 Rosecky v. Schissel (In re Paternity of F.T.R.), 2013 WI 66, 349 Wis. 2d 84, 833 N.W.2d 634.
3 Id. ¶ 65. The court noted that “the portions of the PA requiring a voluntary TPR do not comply with the procedural safeguards set forth in Wis. Stat. § 48.41 because Monica would not consent to the TPR and there is no legal basis for involuntary termination.” Id.
4 Id. ¶ 67.
6 This type of placement schedule, although not addressed by the supreme court, is inconsistent with current state law in that it is a schedule contingent upon the occurrence of a future event, that is the child reaching the age of two years. See Koeller v. Koeller, 195 Wis. 2d 660, 536 N.W.2d 216 (Ct. App. 1995).
7 Rosecky v. Schissel, Certification by Wis. Ct. App., Appeal No. 2011AP216 (Aug. 9, 2012).
8 For a further discussion of these topics, see Walsh, supra note 1.
9 Rosecky, 2013 WI 66, ¶ 48, 349 Wis. 2d 84.
10 Id. ¶ 56 (citing Watts v. Watts, 137 Wis. 2d 506, 521, 405 N.W.2d 303 (1987)).
11 Id. ¶ 56 (citing Merten v. Nathan, 108 Wis. 2d 205, 211, 321 N.W.2d 173 (1982)).
13 Id. ¶ 59.
14 Id. ¶ 64.
15 Id. ¶ 74.
16 Id. ¶ 69.
17 It is doubtful whether a provision in the parentage agreement saying that Monica is prohibited from seeing the child would be binding.
18 The supreme court suggested that the primary purpose of the agreement was “to ensure that the Roseckys will be the parents of F.T.R. and will have custody and placement.” Id. ¶ 66. While this seems to capture the essence of the agreement, it leaves unspoken the notion that part of parenting includes being free from interference from other people having parental rights.
19 If an attorney does draft a contract in such a situation, at the very least there should be a provision regarding placement that indicates the biological parent acting as surrogate would have no visitation rights if she backs out of the termination of parental rights.
20 See American Bar Association Model Act Governing Assisted Reproductive Technology, Art. 8 (Feb. 2008), (outlining the various recommended methods of compensation for the various participants in this process).
21 Id., art. 2, § 201(c) (noting that the patient in this process should at least be informed that “it is advisable to seek legal counsel”).
22 Id., art. 3, § 301(1) (noting that all participants in the process must undergo a mental health consultation in accordance with current standards).
23 Wis. Stat. § 48.88(2)(c).
24 Johnson v. Calvert, 851 P.2d 776, 788 (1993) (citing Staz v. Perlmutter, 379 So. 2d 359, 360 (Fla. 1980)).