Parentage agreements allowing for one woman to be a surrogate for another are valid contracts unless enforcement is contrary to the best interests of the child, the Wisconsin Supreme Court ruled Thursday.
In its unanimous decision, the court urged the Legislature to pass a law regarding surrogacy agreements, noting that nothing currently directly addresses the enforcement of such contracts.
"Surrogacy is currently a reality in our Wisconsin court system," Justice Annette Ziegler wrote, adding that legislation could help ensure that the courts and those involved in such agreements understand the expectations and limitations.
Thursday's ruling came in a case that involved two lifelong friends who entered into a parentage agreement in 2009. Under their contract, Monica Schissel agreed to become pregnant and carry a child for David and Marcia Rosecky. She also agreed to give up her parental rights and visitation rights.
Marcia Rosecky was diagnosed with leukemia in 2004 and 2008, and as a result, she was unable to get pregnant. Schissel had repeatedly offered to carry a child for her friend, whom she had known since elementary school.
After entering into the agreement, Schissel became pregnant through artificial insemination. Shortly before Schissel gave birth on March 19, 2010, the two couples had a falling out and Schissel told the Roseckys that she no longer wanted to give up her parental rights or ability to have regular visits with the child, as the agreement required.
The Roseckys went to court, seeking enforcement of the agreement. A Columbia County Circuit Court judge determined that the agreement was not enforceable. The judge awarded David Rosecky custody of the child, but Schissel was given the right to regular visits, including overnight stays after the child turned 2.
Rosecky appealed, seeking to retain both custody and the ability to bar Schissel from having regular visits with the child, as the surrogacy agreement detailed.
The state appeals court sent the case to the state Supreme Court, noting that Wisconsin does not currently have a law that addresses the enforceability of a surrogacy agreement.
The high court determined that such agreements are valid, enforceable contracts.
In upholding the legality of the parentage agreement, the Supreme Court sent the case back to circuit court for a hearing on custody and placement of the child within the terms of the agreement. It also determined that the provision requiring Schissel to terminate parental rights was not enforceable under current law.
But, the court said that provision could be removed without defeating the primary purpose of the agreement.
Attorneys for both Schissel and the Roseckys did not immediately return messages seeking comment.