David J. Rosecky v. Monica M. Schissel
349 Wis. 2d 84, 2013 WI 66, 833 N.W.2d 634 (2013)
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Rule of Law:
A traditional surrogacy agreement is a valid and enforceable contract in Wisconsin, but any provisions requiring the termination of parental rights are unenforceable. The remaining terms of the agreement, particularly those concerning legal custody and physical placement, must be enforced unless their enforcement is found to be contrary to the best interests of the child.
Facts:
- Marcia and Monica were close friends, and Marcia was diagnosed with leukemia twice, leaving her unable to have biological children with viable eggs.
- In 2004 and again in 2008, Monica offered to act as a surrogate for Marcia and David, expressing a desire to help her friend.
- The Roseckys accepted Monica's offer in 2008, and after discussions, they decided to use Monica's egg and David Rosecky's sperm for artificial insemination, with Monica reassuring Marcia she could separate from the child.
- The parties, each represented by counsel, extensively discussed and negotiated a Parentage Agreement (PA), which stated that the Roseckys would be the legal parents, have custody and placement, and Monica would cooperate in parentage proceedings, including TPR and adoption.
- Monica became pregnant in June 2009 through artificial insemination, and the agreement was signed by David and Marcia on November 7, 2009, and by Monica and Cory (Monica's husband) on November 17, 2009.
- Toward the end of the pregnancy, relations between the parties deteriorated, and shortly before F.T.R. was born, Monica informed the Roseckys she no longer wanted to give up her parental rights and sought custody and placement.
- Monica gave birth to F.T.R. on March 19, 2010, and allowed the Roseckys to take F.T.R. home from the hospital.
Procedural Posture:
- Shortly after F.T.R.'s birth, the Columbia County Circuit Court appointed the Roseckys as F.T.R.'s temporary guardians.
- On May 13, 2010, David Rosecky filed a separate paternity action in Waukesha County Circuit Court.
- On August 2, 2010, the Waukesha County Circuit Court adjudicated David Rosecky as the father of F.T.R. and transferred the remaining issues to Columbia County to be joined with the existing guardianship case.
- On September 30, 2010, Monica Schissel moved the Columbia County Circuit Court for increased custody and placement of F.T.R., while David Rosecky moved for specific performance of the Parentage Agreement.
- The Columbia County Circuit Court held a hearing on November 18, 2010, for interim custody and placement, awarding primary custody and placement to David and two hours of placement per month to Monica.
- On February 8, 2011, after briefing, the Columbia County Circuit Court held a hearing and determined that the Parentage Agreement was not enforceable, specifically rejecting the enforceability of the TPR and custody/placement provisions because Monica would not consent and statutory requirements for TPR were not met.
- The Columbia County Circuit Court held a trial on July 5 and 6, 2011, to determine F.T.R.'s best interests regarding custody and placement, relying solely on Wis. Stat. § 767.41 and excluding the Parentage Agreement from consideration.
- On August 25, 2011, the Columbia County Circuit Court awarded sole custody and primary placement to David Rosecky and secondary placement to Monica Schissel, rejecting expert and guardian ad litem recommendations that Monica should have no placement.
- On September 13, 2011, David Rosecky filed a notice of appeal with the Wisconsin Court of Appeals, challenging both the circuit court's February 8, 2011, ruling that the PA was unenforceable and the August 25, 2011, custody/placement order.
- On August 9, 2012, the Wisconsin Court of Appeals certified the question of 'whether an agreement for the traditional surrogacy and adoption of a child is enforceable' to the Wisconsin Supreme Court.
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Issue:
Is a traditional surrogacy agreement, which includes provisions for the intended parents to have legal custody and physical placement of the child and for the surrogate mother to terminate her parental rights, enforceable in Wisconsin?
Opinions:
Majority - Annette Kingsland Ziegler, J.
Yes, a traditional surrogacy agreement is a valid and enforceable contract in Wisconsin, provided enforcement is not contrary to the best interests of the child, though provisions compelling the termination of parental rights are unenforceable. The court found that aside from the TPR provisions, the Parentage Agreement (PA) met the elements of a contract (offer, acceptance, consideration). While the PA's provisions requiring Monica to terminate her parental rights are unenforceable under Wis. Stat. §§ 48.41 and 48.415 (which set specific safeguards for voluntary and involuntary TPRs that were not met), the court held these offending provisions could be severed due to the PA's severability clause, as doing so would not defeat the primary purpose of the agreement—for the Roseckys to be the parents with custody and placement. The court reasoned that enforcing surrogacy agreements generally promotes stability and permanence in family relationships, supporting the expectations of the parties and reducing contentious litigation, aligning with the legislative intent in the children's code (Wis. Stat. § 48.01) that a child's best interests are paramount and instability is contrary to their welfare. It found no Wisconsin statute or public policy against enforcing the PA's remaining terms, noting that the existing family law statutes were not designed to address surrogacy specifically. The circuit court, therefore, erroneously exercised its discretion by excluding the PA and making custody and placement decisions without considering its terms.
Concurring - Shirley S. Abrahamson, C.J.
Yes, the matter should be remanded to the circuit court, but the court should be instructed to follow the legislative directive in Wis. Stat. § 767.41(5)(am) for deciding legal custody and physical placement disputes, rather than the majority's newly created standard. Chief Justice Abrahamson argued that the majority opinion wrongly allows parties to contract out of the State's traditional, statutory oversight role in protecting children. She emphasized that surrogacy contracts are not 'run-of-the-mill' agreements and inevitably collide with statutes and public policy concerns, such as 'baby-buying' and the exploitation of women, which courts must carefully scrutinize. The Chief Justice asserted that the present case is an 'action affecting the family' (paternity, custody, physical placement) and is therefore governed by Chapter 767, which explicitly directs courts to consider 'all facts relevant to the best interest of the child,' including agreements between parents (Wis. Stat. § 767.41(5)(am)1). She contended that the majority's new rule, which dictates enforcing the contract unless 'contrary to the best interests of the child,' deviates from the clear statutory mandate to consider all 16 enumerated factors in determining the child's best interests, effectively elevating the contract above the comprehensive statutory framework designed for all children.
Analysis:
This case significantly clarifies the enforceability of traditional surrogacy agreements in Wisconsin, establishing a framework where such contracts are generally valid but subject to a 'best interests of the child' override. By upholding the contractual nature of these agreements while invalidating any provisions attempting to circumvent statutory parental rights termination procedures, the court attempts to balance freedom of contract with child protection. The ruling pushes Wisconsin into a more modern legal landscape regarding assisted reproductive technology, but it also highlights the need for legislative action to provide clearer guidance on surrogacy, as acknowledged by both the majority and concurrence. Future cases will likely grapple with the specific application of the 'contrary to the best interests of the child' standard in enforcing or modifying surrogacy contract terms, especially for custody and placement.
