2013 WI 66

SUPREME COURT OF WISCONSIN

CASE NO.: 2011AP2166

COMPLETE TITLE: In re the Paternity of F. T. R.:

David J. Rosecky,

Petitioner-Appellant,

v.

Monica M. Schissel,

Respondent-Respondent.

ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: July 11, 2013

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: January 9, 2013

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Columbia

JUDGE: Alan J. White

JUSTICES:

CONCURRED: ABRAHAMSON, C.J., BRADLEY, J., concur. (Opinion

filed.)

DISSENTED:

NOT PARTICIPATING:

ATTORNEYS:

For the petitioner-appellant, there were briefs by Stephen

W. Hayes and Anissa M. Boeckman and Grady, Hayes & Neary, LLC,

Waukesha, with oral argument by Stephen Hayes.

For the respondent-respondent, there was a brief by Richard

J. Auerbach and Auerbach & Porter, S.C., Madison, and oral

argument by Richard J. Auerbach.

For the guardian ad litem, there was a brief by Todd J.

Hepler, Lodi, and oral argument by Todd J. Hepler.
2

An amicus curiae brief was filed by Richard E. Schoenbohm,

Appleton, on behalf of the American Academy of Adoption

Attorneys/American Academy of Assisted Reproductive Technology

Attorneys.

An amicus curiae brief was filed by Andrea Lea Olmanson,

Madison, on behalf of Concerned United Birthparents, Inc.
2013 WI 66

NOTICE

This opinion is subject to further

editing and modification. The final

version will appear in the bound

volume of the official reports.

No. 2011AP2166

(L.C. No. 2010PA42PJ)

STATE OF WISCONSIN : IN SUPREME COURT

In re the Paternity of F. T. R.:

David J. Rosecky,

Petitioner-Appellant,

v.

Monica M. Schissel,

Respondent-Respondent.

FILED

JUL 11, 2013

Diane M. Fremgen

Clerk of Supreme Court

APPEAL from an order of the Columbia County Circuit Court,

Alan J. White, Judge. Reversed and cause remanded for

proceedings consistent with this opinion.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This appeal is before

the court on certification by the court of appeals, pursuant to

Wis. Stat. § 809.61 (2009-10).

1 David and Marcia Rosecky (the

Roseckys) entered into a Parentage Agreement (PA or the

1 All subsequent references to the Wisconsin Statutes are to

the 2009-10 version unless otherwise indicated.
No. 2011AP2166

2

agreement) with Monica and Cory Schissel (the Schissels) whereby

the parties agreed that Monica Schissel (Monica) would become

pregnant and carry a child for the Roseckys. The agreement

provided that "[the Roseckys] shall be the legal parents of

[the] Child," that the "Child's best interests will be served by

being in [the Roseckys'] legal custody and physical placement,"

and that "[t]he parties will cooperate fully in any parentage

proceedings to determine [the Roseckys] as [the] [C]hild's legal

parents, . . . including but not limited to termination of

parental rights and adoption." Monica became pregnant through

artificial insemination using her egg and David Rosecky's

(David) sperm. On March 19, 2010, Monica gave birth to F.T.R.

Shortly before F.T.R.'s birth, Monica informed the Roseckys she

no longer wanted to give up her parental rights. She further

sought custody and placement of F.T.R. David responded by

seeking enforcement of the PA. The Columbia County Circuit

Court, Judge Alan J. White, determined that the PA was not

enforceable, and after a trial, awarded sole custody of F.T.R.

to David, primary placement to David, and secondary placement to

Monica. David appealed, seeking enforcement of the PA and sole

custody and placement of F.T.R. The court of appeals certified

to this court the question of "whether an agreement for the

traditional surrogacy and adoption of a child is enforceable."

¶2 We granted the court of appeals' certification and now

reverse the order of the circuit court.

¶3 Aside from the termination of parental rights

provisions in the PA at issue, we conclude a PA is a valid,
No. 2011AP2166

3

enforceable contract unless enforcement is contrary to the best

interests of the child. While the traditional defenses to the

enforcement of a contract could apply, none appear to render the

entire PA in this case unenforceable.

¶4 We also conclude that the circuit court erroneously

exercised its discretion by excluding the PA and rendering its

custody and placement decision without consideration of the PA.

We reverse the circuit court's determination that the PA is

unenforceable and remand for a hearing on custody and placement,

wherein the terms of the PA are enforced unless enforcement is

contrary to the best interests of F.T.R.

I. FACTUAL BACKGROUND

¶5 Marcia and Monica were good friends for many years,

having met in grade school. Each participated in the other's

wedding. The Roseckys were godparents to the Schissels'

youngest daughter.

¶6 In 2004, and again in 2008, Marcia was diagnosed with

leukemia. After receiving treatments, she is currently in good

health and the doctors consider the leukemia "a nonissue."

However, her eggs are no longer viable and she is unable to have

biological children.

¶7 In 2004, and again in 2008, Monica offered to act as a

surrogate for the Roseckys. Monica testified that she wanted to

help the Roseckys: "I was [Marcia's] friend. I offered to do

this. . . . I orchestrated this whole thing. This whole thing

was my doing. I offered. I carried. I said I would do it."

In 2008, the Roseckys accepted Monica's offer. The parties
No. 2011AP2166

4

discussed using a donor egg, but decided to use Monica's egg

because they could be sure of Monica's family history, there was

a higher chance of having multiples using a donor egg, and

Monica preferred to use her own egg. Marcia expressed concern

that Monica would have trouble giving up her biological child,

but Monica reassured Marcia that she would allow the Roseckys to

raise the child.

¶8 The parties had extensive conversations about the

legal ramifications of the surrogacy before Monica became

pregnant. The parties discussed and agreed that Monica and the

child would have no legal relationship, Monica would not have

formal custody and placement of the child, Monica would see the

child through informal social visits, and the Roseckys would

raise the child. Both parties retained counsel, and the

attorneys reduced the agreement to writing. The parties

negotiated terms in the agreement, and sent revised drafts back

and forth. The parties acknowledge that the written agreement

is an accurate reflection of the discussions they had before

Monica became pregnant. Monica became pregnant in June 2009

through artificial insemination using her egg and David's sperm.

¶9 On November 7, 2009, the agreement was signed by David

as the "father," and Marcia as the "mother." On November 17,

2009, the agreement was also signed by Monica as the "carrier,"

and Cory Schissel (Cory) as the "husband." The attorneys for

both parties also signed the agreement.
No. 2011AP2166

5

¶10 Most importantly for this opinion, the PA contains the

parties' agreement as to parentage, legal custody, and physical

placement.

2

¶11 Cory and Monica have five children together. Before

Monica became pregnant with F.T.R., the Schissels did not intend

to have any more children; to that end, Cory had a vasectomy.

¶12 Toward the end of the pregnancy, the parties had a

falling out. It suffices to say that there were several events

resulting in hurt feelings and lack of trust among the parties.

In any event, shortly before F.T.R. was born, Monica reneged on

the PA and refused to terminate her parental rights. On March

19, 2010, Monica gave birth to F.T.R. and allowed F.T.R. to go

home with the Roseckys from the hospital.

II. PROCEDURAL POSTURE

¶13 Shortly after F.T.R. was born, the Columbia County

Circuit Court appointed the Roseckys as the temporary guardians

2 The agreement contains other provisions, including:

Monica's consent to serve as a traditional surrogate; the

procedure by which Monica would be inseminated; the Schissels'

acknowledgement and assumption of risk; the Roseckys'

acknowledgement and assumption of parental responsibility;

medical supervision, counseling, and carrier conduct relating to

the pregnancy; provisions for a medically-necessary abortion;

Cory's waiver of rights and responsibilities; the Roseckys'

agreement to pay enumerated expenses as a result of the

pregnancy; the parties' agreement if the pregnancy were to

result in a stillbirth or a miscarriage; the Schissels'

agreement to maintain health insurance; contingencies if one or

both of the Roseckys were to die; consequences of breach and

procedures for notice; conclusive presumptions; acknowledgement

of advice of counsel; severability; dispute resolution; and

jurisdiction, venue, and controlling law.
No. 2011AP2166

6

of F.T.R.

3 On May 13, 2010, David filed a separate paternity

action in the Waukesha County Circuit Court. On August 2, 2010,

Judge Lee S. Dreyfus Jr. adjudicated David to be 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 moved the circuit court for increased custody

and placement of F.T.R. David moved for specific performance of

the PA, pointing to language in the PA that Monica had waived

her right to custody and placement of F.T.R.

¶14 The circuit court scheduled two hearings: one to

determine interim custody and placement and one to determine the

enforceability of the PA. On November 18, 2010, the court held

a hearing to determine custody and placement. After hearing

testimony from Monica, David, and Marcia, the court determined

that it was in F.T.R.'s best interests to maintain the status

quo: primary custody and placement with David and two hours of

placement per month with Monica.

¶15 The parties then briefed the enforceability of the PA.

On February 8, 2011, the court held a hearing and determined

that the PA was not enforceable. It entered an order to that

effect on the same date. The court made several findings

regarding the PA. First, it found that "[t]he contract, on its

face is clear and unambiguous." Second, the court rejected

3 The appellate record does not contain original documents

relating to the guardianship action in Columbia County.

Documents in this record indicate that an order dated May 28,

2010, granted Monica two hours of placement with F.T.R. per

month.
No. 2011AP2166

7

Monica's argument that the PA lacked consideration because she

was already pregnant at the time the agreement was signed.

Third, the court made additional findings about the PA:

The parties are each represented by counsel, and

were at the time the agreement was drawn. The

agreement itself covers virtually every eventuality

which could possibly occur during the pregnancy.

There is no claim here by [Monica] that she did

not understand the contract when she signed it.

Indeed, to a great extent, it appears it was her idea

to act as a surrogate in the first instance.

Had [Monica] gone through with the termination of

her parental rights, this Court would have no problem

upholding the agreement . . . .

However, the court articulated the main issue as "whether the

Court can, under these circumstances, force or require the

mother to terminate her parental rights." The court determined

that it could not force or require Monica to terminate her

parental rights because the requirements of Wis. Stat. § 48.41,

governing voluntary consent to a termination of parental rights

(TPR), were not met. In the same vein, the court also refused

to enforce the custody and placement provisions of the PA. The

court did not consider the severability clause of the PA.

¶16 On February 16, 2011, in anticipation of the custody

and placement trial, the court ordered Dr. Beth B. Huebner to

complete a custody study to evaluate F.T.R.'s best interests.

See Wis. Stat. § 767.405(14). On February 18, 2011, the court

entered an interim placement order giving David primary

placement and Monica placement of F.T.R. for three hours every

other Saturday.
No. 2011AP2166

8

¶17 On April 6, 2011, Dr. Huebner filed her report. Her

ultimate recommendation was that David should have full custody

and placement of F.T.R., and Monica should not have any

placement. On April 25, 2011, F.T.R.'s guardian ad litem,

Krista E. Miller, filed her report, similarly concluding that

David should have full custody and placement, and Monica should

not have any placement.

¶18 On July 5 and 6, 2011, the court held a trial to

determine F.T.R.'s best interests with regard to custody and

placement under Wis. Stat. § 767.41. The court heard testimony

from David, Marcia, Monica, Cory, Dr. Huebner, Dr. Kenneth H.

Waldron (hired by the Roseckys to review Dr. Huebner's report),

and Dr. Patrick T. Kane (hired by the Schissels to recommend

possible steps to develop a healthy attachment between a parent

and a child).

¶19 Dr. Huebner testified that it was in F.T.R.'s best

interests to have full custody and placement with the Roseckys.

She testified that F.T.R. was attached to Marcia, and to

displace that attachment could have disastrous consequences.

She testified that placement with Monica would be harmful to

F.T.R. because of Monica's desire to be his mother and to

replace Marcia, which would be confusing for F.T.R. Monica

admitted that she referred to herself as "Mom" in interactions

with F.T.R. and that she was "seeking to have placement that

would allow me to act as his mother." Dr. Huebner testified

that the relationship between the Roseckys and the Schissels was

essentially dead; a fact to which all of the parties agreed.
No. 2011AP2166

9

She testified that allowing Monica to have placement in the

current situation——which Dr. Huebner characterized as "beyond

high conflict" even though the parties did not swear or yell at

each other——would have a negative effect on F.T.R.

¶20 Dr. Waldron testified that Dr. Huebner did use the

appropriate methodology in gathering data, making findings, and

incorporating social science research in her report. Further,

Dr. Waldron testified about disrupted secure detachment——where a

young child is separated from a caregiver to whom he or she has

formed an attachment——and the consequences thereof, including

depression, anxiety, mental health problems, behavioral

problems, delinquency, trouble maintaining long-term friendships

and relationships, and increased thoughts of suicide.

¶21 Dr. Kane testified that a child can form more than one

attachment, that a new attachment can be formed through a series

of increased contacts, but that he did not interview the parties

and did not have recommendations specific to this case. Dr.

Kane's discussion assumed that the contact was in the best

interests of the child. Dr. Kane also discussed that a hostile

relationship between parents has negative effects on children,

and that Monica's desire to be F.T.R.'s mother could result in

anxiety and confusion for F.T.R.

¶22 Marcia, David, Monica, and Cory all testified about

the tense relationship between the families. From the Roseckys'

perspective, Monica offered to be a surrogate so the Roseckys

could start a family, Monica was not abiding by the terms of the

agreement, and the Roseckys agreed to use Monica's egg only
No. 2011AP2166

10

after she reassured the Roseckys she could allow them to raise

the child. From the Schissels' perspective, Monica was being

shut out and was not able to visit F.T.R. through social

interactions as she had imagined. A precise retelling of the

testimony at trial is not necessary for the legal analysis, but

it suffices to say that the parties testified about many

instances of failed communication, hurt feelings, and tense

interactions.

¶23 During David's testimony, the court refused to admit

the PA as an exhibit and stated that "it's not going to consider

it." David's attorney, Steven W. Hayes, argued that the PA

contained a severability clause, that the court could sever any

provisions that it found offensive, and that the PA was relevant

to several factors in custody and placement under Wis. Stat.

§ 767.41(5).

¶24 On August 25, 2011, the circuit court awarded sole

custody and primary placement of F.T.R. to David and secondary

placement to Monica. The court awarded Monica six hours of

placement every other weekend until F.T.R. turned two (March

2012), and at that time, Monica was awarded an overnight stay

from Friday evening until Saturday evening every other weekend.

The court did not consider the PA in any way, but instead relied

solely on Wis. Stat. § 767.41 to determine custody and

placement. The court reasoned that under Wis. Stat.

§ 767.41(4)(b), both families were entitled to placement unless

"the court finds that physical placement with a parent would

endanger the child's physical, mental or emotional health." By
No. 2011AP2166

11

granting placement with Monica, the court rejected the expert

testimony and the guardian ad litem's opinion that the tension

between the parties and the separation from attachment figures

could endanger F.T.R.'s mental or emotional health: "The

possibility that difficulties may occur and that allowing the

Schissels to play a role in the child's life is a risk. But

risks are a part of life." The court rejected Dr. Huebner's

opinion that this case was "beyond high conflict," because high

conflict cases are those in which "the parties simply can't

resist the temptation to do anything and everything to subvert,

attack, demean and literally try to destroy the child's

relationship with the other parent." The court noted that the

contact between the families was generally civil, that it hoped

"cordial transitions can be accomplished and that cordiality may

develop into friendly transitions," and that F.T.R. would have

the benefit of five half siblings if Monica received placement.

¶25 On September 13, 2011, David filed a notice of appeal

of (1) the circuit court's February 8, 2011, ruling that the PA

was unenforceable, and (2) the circuit court's August 25, 2011,

order granting Monica periods of physical placement.

Additionally, on September 13, 2011, David filed a motion to

stay the circuit court's August 25, 2011, ruling on placement

pending appeal. On October 6, 2011, the court of appeals denied

David's motion to stay pending appeal.

¶26 The parties and the guardian ad litem filed briefs in

the court of appeals. On August 9, 2012, the court of appeals

certified to this court the question of "whether an agreement
No. 2011AP2166

12

for the traditional surrogacy and adoption of a child is

enforceable." The court noted that "Wisconsin currently does

not have legislative or common law that addresses the

enforceability of a surrogacy agreement."

¶27 On September 27, 2012, we accepted the court of

appeals' certification.

III. STANDARD OF REVIEW

¶28 The PA at issue is analyzed in terms of whether it is

a valid, enforceable contract. Where the material facts are

undisputed, the existence of a valid, enforceable contract is a

question of law, which we review de novo. See Schlosser v.

Allis-Chalmers Corp., 86 Wis. 2d 226, 244, 271 N.W.2d 879

(1978); VanHierden v. Swelstad, 2010 WI App 16, ¶11, 323

Wis. 2d 267, 779 N.W.2d 441.

¶29 As for the custody and placement issue, the circuit

court typically has discretion to make a determination of what

is in a child's best interests. See Wis. Stat. § 767.41(5);

Jocius v. Jocius, 218 Wis. 2d 103, 110-11, 580 N.W.2d 708 (Ct.

App. 1998) (quoting Koeller v. Koeller, 195 Wis. 2d 660, 663-64,

536 N.W.2d 216 (Ct. App. 1995); Hollister v. Hollister, 173

Wis. 2d 413, 416, 496 N.W.2d 642 (Ct. App. 1992). We will

sustain the circuit court's discretionary determination unless

it constitutes an erroneous exercise of discretion. Lubinski v.

Lubinski, 2008 WI App 151, ¶5, 314 Wis. 2d 395, 761 N.W.2d 676;

Bohms v. Bohms, 144 Wis. 2d 490, 496, 424 N.W.2d 408 (1988);

Barstad v. Frazier, 118 Wis. 2d 549, 554, 348 N.W.2d 479 (1984).

A reviewing court will sustain the circuit court's exercise of
No. 2011AP2166

13

discretion if it examined the relevant facts, applied a proper

standard of law, and came to a reasonable conclusion using a

demonstrated and rational process. See Loy v. Bunderson, 107

Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982); Bohms, 144

Wis. 2d at 496.

IV. ANALYSIS

¶30 Aside from the termination of parental rights

provisions in the PA at issue, we conclude a PA is a valid,

enforceable contract unless enforcement is contrary to the best

interests of the child. While the traditional defenses to the

enforcement of a contract could apply, none appear to render the

entire PA in this case unenforceable.

4

¶31 We also conclude that the circuit court erroneously

exercised its discretion by excluding the PA and rendering its

custody and placement decision without consideration of the PA.

We reverse the circuit court's determination that the PA is

unenforceable and remand for a hearing on custody and placement,

wherein the terms of the PA are enforced unless enforcement is

contrary to the best interests of F.T.R.

¶32 Section IV. A. of this opinion discusses the

background of surrogacy, Section IV. B. discusses whether the

Wisconsin Statutes provide guidance to our analysis, Section

4 Even though the TPR provisions in the PA are not

enforceable, the remaining portions of the PA can be enforced if

severing the unenforceable portion does not defeat the primary

purpose of the bargain. See Simenstad v. Hagen, 22 Wis. 2d 653,

662, 126 N.W.2d 529 (1964).
No. 2011AP2166

14

IV. C. discusses the enforceability of the PA, and Section V.

discusses the need for legislative action in this area.

A. Background on Surrogacy

¶33 Assisted reproductive technology (ART) has created

ways for people to have children regardless of their

reproductive capacity: "ART, in particular surrogacy

arrangements, forces us to confront deeply held beliefs about

what makes a 'mother' or a 'father,' . . . and perhaps most

fundamentally, what makes a 'family.'" Darra L. Hofman, "Mama's

Baby, Daddy's Maybe:" A State-By-State Survey of Surrogacy Laws

and Their Disparate Gender Impact, 35 Wm. Mitchell L. Rev. 449,

450 (2009).

¶34 In general terms, surrogacy "is the process by which a

woman makes a choice to become pregnant and then carry to full

term and deliver a baby who, she intends, will be raised by

someone else." Thomas J. Walsh, Wisconsin's Undeveloped

Surrogacy Law, Wisconsin Lawyer, Mar. 2012, at 16. See also

Black's Law Dictionary 1458 (7th ed. 1999) (defining "surrogate

mother" as "[a] woman who carries a child to term on behalf of

another woman and then assigns her parental rights to that woman

and the father"). This opinion will refer to the woman who
No. 2011AP2166

15

carries the baby as the "surrogate."

5 An "intended parent" is

"an individual, married or unmarried, who manifests the

intent . . . to be legally bound as the parent of a child

resulting from assisted or collaborative reproduction."

American Bar Association Model Act Governing Assisted

Reproductive Technology (ABA Model Act) § 102(19) (Feb. 2008).

The Roseckys are the intended parents of F.T.R.

¶35 There are two broad categories of surrogacies,

traditional and gestational, but there are many permutations

within those categories. In a traditional surrogacy, the

surrogate is the genetic mother of the child and is artificially

inseminated with the sperm of the intended father or a sperm

donor. See Walsh, supra, at 16. In a gestational surrogacy,

the surrogate is not genetically related to the child; instead,

"sperm is taken from the father (or from a donor) and an egg is

taken from the mother (or from a donor), fertilization happens

outside the womb (called in vitro fertilization), and the

fertilized embryos are then implanted into the surrogate

mother's uterus." Id. The case before the court involves a

traditional surrogacy, as Monica was artificially inseminated

with David's sperm.

5 There are several terms for the woman who carries the

baby, including "surrogate," "gestational mother," or

"gestational carrier." See American Bar Association Model Act

Governing Assisted Reproductive Technology (ABA Model Act)

§ 102(16) (Feb. 2008) (defining "gestational carrier" as "an

adult woman, not an intended parent, who enters into a

gestational agreement to bear a child, whether or not she has

any genetic relationship to the resulting child").
No. 2011AP2166

16

¶36 Parties contemplating a surrogacy will often enter

into a surrogacy agreement. Id. at 18. This agreement

typically outlines the parties' rights and responsibilities

throughout the surrogacy process. Common provisions include

contemplated medical procedures, contingencies in case of

medical complications, compensation, parental rights and

responsibilities, choice of law, and the parties' intent.

¶37 The ability to create a family using ART has seemingly

outpaced legislative responses to the legal questions it

presents, especially the determination of parentage. See Mark

Hansen, As Surrogacy Becomes More Popular, Legal Problems

Proliferate, ABA Journal, Mar. 2011, at 54. Historically, there

have been no significant questions of maternity: the woman who

gave birth to a child was the child's mother. See Charles P.

Kindregan, Jr., Considering Mom: Maternity and the Model Act

Governing Assisted Reproductive Technology, 17 Am. U. J. Gender

Soc. Pol'y & L. 601, 605 (2009). Indeed, Monica is the mother

of F.T.R. and has the commensurate parental rights. See Wis.

Stat. § 48.02(13) (defining "parent" as "a biological parent, a

husband who has consented to the artificial insemination of his

wife [], or a parent by adoption"). Conversely, paternity could

be established in multiple ways. See, e.g., Wis. Stat. § 767.89

(paternity judgment); § 767.84(1m) (rebuttable presumption when

genetic testing shows probability of paternity of 99 percent or

greater); § 767.805 (voluntary acknowledgment of paternity);

§ 891.41 (presumption of paternity based on marriage of the

parties). With surrogacy, relevant parties could include the
No. 2011AP2166

17

genetic mother, genetic father, intended parents, the surrogate,

and the surrogate's husband.

¶38 The vast majority of states do not have statutory

provisions addressing surrogacy.

6 Many courts have encountered

issues surrounding surrogacy, and the cases often involve ad hoc

procedures attempting to effectuate the parties' intent by

analyzing surrogacy issues under the state's statutes for TPR,

adoption, custody and placement, and the like. See generally

Rachel M. Kane, Cause of Action for Determination of Status as

Legal or Natural Parents of Children Borne by Surrogate or

Gestational Carrier, 48 COA 2d 687 (Jun. 2011). At oral

argument, counsel for the Roseckys explained that surrogacy is a

reality in Wisconsin and that Wisconsin attorneys attempt to

effectuate the parties' intent in a surrogacy. Clearly, when

the parties follow the agreement and everything goes as planned,

the court's involvement is quite limited. For example, if the

surrogate agrees to terminate her parental rights, the intended

parents can adopt the child. See Wis. Stat. § 48.41 (voluntary

consent to TPR); Wis. Stat. § 48.82 (persons eligible to adopt a

minor child); Wis. Stat. § 48.91 (if prerequisites are met,

court shall grant adoption if it is in the best interests of the

child). A court will often adjudicate the intended biological

6 Darra L. Hofman, "Mama's Baby, Daddy's Maybe:" A State-ByState Survey of Surrogacy Laws and Their Disparate Gender

Impact, 35 Wm. Mitchell L. Rev. 449, 454-60 (2009) (state-bystate survey of surrogacy laws); Brief of Amicus Curiae American

Academy of Adoption Attorneys & American Academy of Assisted

Reproductive Technology Attorneys, Appendix 001-012 (same).
No. 2011AP2166

18

parent as the biological parent of a child, as David was

adjudicated to be F.T.R.'s father. The adjudicated parent may

then seek custody and placement of the child. Counsel for David

also noted that some Wisconsin circuit courts have used Wis.

Stat. § 69.14(1)(h) to make a determination of parentage for the

intended mother and intended father.

7 When the parties do not

agree, however, the courts are forced to confront issues of the

most difficult nature.

¶39 Given this general background, we turn to Wisconsin

law for guidance in answering whether the PA is enforceable.

B. Wisconsin Law

¶40 The Wisconsin Statutes do not provide a specific

answer as to whether the PA is enforceable, and they do not

contain a statement of public policy against enforcement.

¶41 One statutory provision seems to contemplate some

level of relief for intended parents:

If the registrant of a birth certificate under

this section is born to a surrogate mother,

information about the surrogate mother shall be

entered on the birth certificate and the information

about the father shall be omitted from the birth

certificate. If a court determines parental rights

over the registrant, the clerk of court shall report

the court's determination to the state registrar

. . . . Upon receipt of the report, the state

registrar shall prepare and register a new birth

7 In this unique case neither of the common routes that

David's attorney explained provided a complete remedy for the

parties because the two biological parents were contesting

custody and placement. Thus, the parties instituted

guardianship and custody and placement proceedings. See Wis.

Stat. ch. 54; Wis. Stat. § 767.41(1)(b).
No. 2011AP2166

19

certificate for the registrant under s. 69.15(6) and

send a copy of the new certificate to the local

registrar who filed the original certificate. Upon

receipt of the copy, the local registrar shall destroy

his or her copy of the replaced certificate and file

the new certificate.

Wis. Stat. § 69.14(1)(h). "Registrant" is defined as "the

subject of a certificate or declaration which a local registrar

has accepted for filing in the system of vital statistics."

Wis. Stat. § 69.01(19). This section seems to contemplate that

a court may make a determination of parental rights to someone

other than the "surrogate mother."

¶42 Wisconsin Stat. § 891.40 provides that if certain

procedures are followed when a woman is inseminated with sperm

from a sperm donor, the woman's husband at the time of

conception "shall be the natural father of a child conceived."

Wis. Stat. § 891.40(1). Further, the statute provides that the

sperm donor "bears no liability for the support of the child and

has no parental rights with regard to the child." Wis. Stat.

§ 891.40(2).

¶43 The Wisconsin Statutes also govern more typical

custody and placement situations, but the statutes do not

specifically contemplate the use of a surrogacy parenting

agreement in the adjudication of custody and placement disputes.

See Wis. Stat. ch. 767. The statutes specify that a circuit

court shall make custody and placement determinations in certain

enumerated actions affecting the family. See Wis. Stat.

§ 767.41(1)(b) (annulment, divorce, legal separation,

adjudicated paternity, custody, compelled support, acknowledged
No. 2011AP2166

20

paternity). Surrogacy is not one of those enumerated actions.

In a more typical custody and placement determination, where

there is no PA, the court "shall consider all facts relevant to

the best interest of the child." Wis. Stat. § 767.41(5). The

statute enumerates 16 factors that the court shall consider.

Id. As the circuit court noted, many of the statutory factors

are difficult to apply to the facts surrounding a surrogacy:

One of the striking things to the court in this

case is how many factors in § 767.41 don't

apply. . . . The interaction of each parent has wholly

been affected by [Monica's] relinquishment of the

child and the orders of this court and earlier

agreements of the parties. The amount and quality of

time with the parent. Same analysis. The child's

adjustment to home. Same analysis. The need for

regularly occurring and meaningful periods of

placement. So far, same analysis. In many respects

it doesn't quite seem to fit into the usual analysis

in family court. That is because of course this case

is so unusual.

¶44 Adoption and termination of parental rights are also

governed by the Wisconsin Statutes, but do not appear to

contemplate the issues surrounding a surrogacy. Adoption is

available when both of the parents are deceased, the parental

rights of both parents have been terminated, the parental rights

of one parent have been terminated and the stepparent seeks to

adopt, or the parental rights of one parent have been terminated

and the other parent is deceased. See Wis. Stat. § 48.81.

Parental rights can be terminated voluntarily, see Wis. Stat.

§ 48.41, or involuntarily if grounds for the termination exist.

See § 48.415 (grounds include abandonment, continuing need of

protection or services, continuing parental disability, and
No. 2011AP2166

21

abuse). The TPR-and-adoption scheme does not provide relief for

a party in Marcia's circumstance: she is the wife of the

biological father, she currently has no parental rights over the

child, the surrogate/egg donor refuses to voluntarily terminate

her parental rights, and there are no facts in the record to

indicate that there would be grounds to terminate the

surrogate's parental rights.

¶45 Further, adoption is distinctly different than

surrogacy. Adoption often occurs in circumstances where the

parent cannot or will not care for the child. Substantial court

oversight is necessary in a voluntary-TPR-and-adoption scenario

to ensure that the biological parents have consented to the TPR

after being informed of the consequences thereof. See Wis.

Stat. § 48.41. In contrast, surrogacies are planned, and the

intended parents want the child and are willing and able to care

for the child. Additionally, the Wisconsin Statutes prohibit

the proposed adoptive parents from making certain payments to

the birth mother, for fear of causing undue influence or

encouraging "baby-selling." See Wis. Stat. § 48.913(4). On the

other hand, surrogacies may not present the same concerns for

undue influence because the surrogate is often a good friend or

family member of the intended parents, or, if the parties use a

surrogacy agency, the surrogate is likely screened by the

agency. See Hansen, supra, at 56-57 (reporting that a reputable

surrogacy agency screens surrogates and "manage[s] all of the

medical, psychological, legal, financial, insurance, and

administrative details that go along with such an arrangement").
No. 2011AP2166

22

¶46 In this case, Monica was presumed to be the mother of

F.T.R. because she gave birth to him, David was adjudicated as

the father of F.T.R., the circuit court determined that the PA

was unenforceable, and Monica is unwilling to voluntarily

terminate her parental rights. Under the current statutory

schemes, Marcia is left without any parental rights unless and

until Monica's parental rights are terminated and Marcia adopts

F.T.R.:

It is clear that the more complex surrogacy

relationships do not easily fit into Wisconsin's

statutory scheme. The statutes do not refer to

compensation of surrogate mothers or sperm and egg

donors. No provisions address the interests of the

child created in this process or by in vitro

fertilization. Thus, parties seeking relief in

Wisconsin courts are provided no guarantee that relief

can be had. Further, circuit court judges attempting

to determine if relief is appropriate are given no

guidance on how to apportion that relief.

Walsh, supra, at 19. Considering the facts of this case, none

of the statutory schemes neatly answer the multiple legal issues

presented.

¶47 In summary, the Wisconsin Statutes do not provide a

specific answer as to whether the PA is enforceable, and they do

not contain a statement of public policy against enforcement.

C. Enforceability of the PA

¶48 Having determined that the Wisconsin Statutes do not

provide a specific answer regarding the enforceability of the

PA, we turn to contract law. As such, we will analyze whether

this contract satisfies the elements of a contract, and whether
No. 2011AP2166

23

there are any defenses that render this contract unenforceable.

First, however, we address the parties' arguments.

1. Parties Arguments

¶49 David makes several arguments as to why the PA should

be enforceable. First, David argues that the PA is enforceable

under contract law and that public policy does not invalidate

the PA. Indeed, David argues that public policy supports the

enforcement of the PA, as it provides stability and

predictability for children and for parties to surrogacies.

David looks to case law and statutes from other jurisdictions

that have enforced surrogacy contracts or otherwise concluded

that the intended parents are the legal parents of the child.

David alternatively argues that the PA should be enforced under

equitable estoppel because the Roseckys relied on Monica's

representations that she would be able to separate herself from

the child, and they would not have gone through with the

surrogacy but for those representations.

¶50 David further argues that the circuit court failed to

consider the severability clause in the PA when addressing the

TPR provisions. The circuit court framed the issue of

enforceability as "whether the court can, under these

circumstances, force or require the mother to terminate her

parental rights." However, David argues that it is not

necessary to terminate Monica's parental rights to effectuate

the parties' overall intent——for the Roseckys to be the parents

of F.T.R., with full custody and placement. Therefore, any
No. 2011AP2166

24

offending portion of the PA can be severed, and the remaining

portions can be used to enforce the parties' intent.

¶51 Finally, David argues that, at the very least, the PA

should have been received into evidence and considered as a

factor in custody and placement. David argues that the PA is

relevant to several factors under Wis. Stat. § 767.41(5)(am),

especially subdivision 1. because the PA is evidence of the

"wishes of the child's parent or parents" or is a "legal custody

or physical placement proposal submitted to the court."

¶52 F.T.R.'s guardian ad litem on appeal, Todd J. Hepler,

argues that, absent some showing of unconscionability, a

surrogacy contract should be presumptively enforceable as long

as it is in the best interests of the child. The guardian ad

litem argues that the best way to promote stability and

predictability is to presumptively enforce surrogacy agreements:

In the case of a last-minute surrogacy

repudiation, once a child is born, the parties will be

forced [to] instigate an immediate whirlwind of

litigation concerning placement and custody of the

child and the newborn's first days, weeks, months and

years of life will be clouded by the atmosphere of

tension, anxiety and angst incumbent with bitter

litigation of this sort.

The guardian ad litem looks to the legislature's pronouncement

that "instability and impermanence in family relationships are

contrary to the welfare of children." Wis. Stat. § 48.01(1)(a).

¶53 Monica looks to a myriad of Wisconsin Statutes and

cases to conclude that the PA cannot be enforceable. She argues

that the PA violates Wis. Stat. § 48.913, which prohibits
No. 2011AP2166

25

certain payments in an adoption, because the PA provides illegal

payments to Monica and Cory. She argues that parents cannot

contract to create parental rights

8 and that custody and

placement agreements are not binding on the parties until they

are approved by a court.

9 Wis. Stat. § 767.34(1) (requiring

court approval to stipulations for "legal custody and physical

placement" in "an annulment, divorce, or legal separation").

Monica further argues that her refusal to follow through with

the PA precludes its enforcement. See Hottenroth v. Hetsko,

2006 WI App 249, ¶13, 298 Wis. 2d 200, 727 N.W.2d 38 (parties to

a divorce "are free to withdraw from a stipulation until it is

incorporated into the divorce judgment") (internal quotation

omitted). She argues that custody and placement orders cannot

be "fixe[d]" such that there can be no modification of the order

in the future and cannot be contingent on a future event. See

Jocius, 218 Wis. 2d at 118 ("[T]he statute permitting a trial

8 See Sporleder v. Hermes, 162 Wis. 2d 1002, 471 N.W.2d 202

(1991), overruled by Holtzman v. Knott, 193 Wis. 2d 649, 690-91,

533 N.W.2d 419 (1995). Though the contract in Holtzman did not

attempt to transfer custody, the court stated that "[n]othing in

ch. 767 expressly prohibits contracts relating to visitation"

and that "public policy considerations do not prohibit a court

from relying on its equitable powers to grant visitation apart

from [sec. 767.41] on the basis of a co-parenting agreement

between a biological parent and another when visitation is in a

child's best interest. We overrule any language in [Sporleder]

to the contrary." 193 Wis. 2d at 690-91.

9 By its terms, Wis. Stat. § 767.34 is applicable only to

actions for "an annulment, divorce, or legal separation."

Monica argues that the requirement in § 767.34——that a court

approve the parties' stipulation as to custody and placement——is

applicable to paternity actions by § 767.89(3)(b).
No. 2011AP2166

26

court to deny a parent physical placement does not permit the

trial court to make a prospective order prohibiting a parent

from requesting a change in physical placement in the future.");

Culligan v. Cindric, 2003 WI App 180, ¶13, 266 Wis. 2d 534, 669

N.W.2d 175 ("It is well settled that a circuit court lacks the

statutory authority at divorce to order a change of physical

placement that is both prospective and contingent on the

occurrence of some anticipated event.").

¶54 Monica argues that the PA violates Wis. Stat.

§ 767.41(5)(am) because it precludes a court from considering

all statutory factors in a custody and placement determination.

Monica argues that enforcement of the PA violates Wis. Stat.

§ 767.41(4)(b), which provides that a court can preclude

placement with a parent only after a hearing and after

determining that the placement would "endanger the child's

physical, mental or emotional health." Finally, Monica argues

that blind enforcement of the PA violates the overarching

principle of custody and placement determinations, that the

child's best interests must dictate any agreement or order. See

Wis. Stat. § 767.41(5) ("[T]he court shall consider all facts

relevant to the best interest of the child.").

2. Contract Law

¶55 Aside from the termination of parental rights

provisions, we conclude the PA is a valid, enforceable contract

unless enforcement is contrary to the best interests of the

F.T.R. While the traditional defenses to the enforcement of a

contract apply, none have been presented to render the PA
No. 2011AP2166

27

unenforceable. We do not accept David's argument that the PA is

wholly enforceable. In fact, the portions of the PA calling for

the termination of Monica's parental rights are unenforceable.

We also do not accept Monica's assertion that the PA is wholly

unenforceable. The main problem with Monica's arguments is that

they are based on law that was never intended to govern the

various issues presented in a surrogacy. The law does not

specifically address the legal issues presented in this

surrogacy dispute.

¶56 Despite this being a unique contract, we turn to

contract law for guidance. "Wisconsin courts have long

recognized the importance of freedom of contract and have

endeavored to protect the right to contract." Watts v. Watts,

137 Wis. 2d 506, 521, 405 N.W.2d 303 (1987). A founding

principle of freedom of contract is that "individuals should

have the power to govern their own affairs without governmental

interference." Merten v. Nathan, 108 Wis. 2d 205, 211, 321

N.W.2d 173 (1982). Courts protect parties' "justifiable

expectations and the security of transactions" by "ensuring that

the promises will be performed." Id.

¶57 The elements of a contract are offer, acceptance, and

consideration. See Goossen v. Estate of Standaert, 189

Wis. 2d 237, 247, 525 N.W.2d 314 (Ct. App. 1994); Michael B.

Apfeld et al., Contract Law in Wisconsin § 2.1 (3d ed. 2012).

Defenses to the enforcement of a contract include

misrepresentation, mistake, illegality, unconscionability, void
No. 2011AP2166

28

against public policy, duress, undue influence, and incapacity.

See Apfeld et al., supra, at ch. 3.

¶58 Even if a contract contains an illegal provision,

"Wisconsin has long accepted that a portion of a contract may be

severable." Markwardt v. Zurich Am. Ins. Co., 2006 WI App 200,

¶30, 296 Wis. 2d 512, 724 N.W.2d 669. A severability clause,

though not controlling, is entitled to great weight in

determining if the remaining portions of a contract are

severable. See Town of Clearfield v. Cushman, 150 Wis. 2d 10,

24, 440 N.W.2d 777 (1989) (internal quotation omitted). If a

contract contains an illegal clause, the remaining portions of

the contract can be enforced if severing the illegal portions

does not defeat the primary purpose of the bargain. See

Simenstad v. Hagen, 22 Wis. 2d 653, 662, 126 N.W.2d 529 (1964);

Baierl v. McTaggart, 2001 WI 107, ¶¶15, 18, 245 Wis. 2d 632, 629

N.W.2d 277.

¶59 In this case, there is no question that the PA

contains the essential elements of a contract. Monica made an

offer to the Roseckys that she would act as a surrogate. The

Roseckys accepted Monica's offer. Consideration was provided.

¶60 The unique nature of this contract, however, cannot be

understated.

10 Creating a child is not something that one can

10 The guardian ad litem's brief summarizes why surrogacies

are so unique:

[T]his case exists at the intersection of several

distinct and historically different areas of law and

stands at the crossroads of ever-evolving artificial

reproduction technology.
No. 2011AP2166

29

decide to do one day and decide not to do the next. Typical

damages cannot make one whole. Nonetheless, this is a contract

and we conclude that it is largely enforceable.

¶61 Specifically, we conclude that the interests

supporting enforcement of the PA are more compelling than the

interests against enforcement. 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.

¶62 We do not hold this opinion alone; the legislature has

manifested its intent in the children's code, wherein it

concluded that the best interests of the child are always

paramount. See Wis. Stat. § 48.01. See also § 767.41(5)

(stating that in custody and placement determinations, the court

considers "all facts relevant to the best interest of the

child"); § 54.15(1) (stating that in selection of a guardian for

a proposed ward, the "best interests of the proposed ward shall

control"); § 938.01(2)(f) (stating that in the Juvenile Justice

Code, the court considers "each juvenile's best interest" in

responding to "a juvenile offender's needs for care and

The most critical fact that distinguishes this

case from others is that [F.T.R.] was created so that

the Roseckys could have a child of their own. This

crucial fact distinguishes this case from an adoption,

third-party placement, paternity or divorce case.
No. 2011AP2166

30

treatment"). Furthermore, the legislature has legislated that

"instability and impermanence in family relationships are

contrary to the welfare of children." Wis. Stat. § 48.01(1)(a).

¶63 According to the expert testimony in this case, social

science research also supports the conclusion that permanency

and stability promote child welfare, whereas being exposed to

contentious family relationships, an inevitable consequence of

litigation, is harmful. As Dr. Waldron testified: "[O]ut of

over 2,000 studies that have been done . . . where there are

separate caregivers, . . . in every single one . . . the higher

the level of tension and conflict, the more detrimental it is to

kids. . . . [T]hat is the number one predictor for child

adjustment over time, [] whether or not there's tension and

conflict between caregivers." Dr. Huebner also testified that,

according to research, the tension between the Roseckys and

Schissels could be harmful to F.T.R.

¶64 We find no public policy statement contrary to the

enforcement of the PA in the Wisconsin Statutes or in Wisconsin

cases.

11

11 To support their public policy arguments, the Roseckys,

the Schissels, and the guardian ad litem point to cases and

statutes from other jurisdictions. While it is true that many

other jurisdictions have examined surrogacy issues, there is no

clear majority rule:

The vast majority of states are silent or near

silent on the issues of whether, when, and how

surrogacy agreements are enforceable, void, or

voidable. Of those states that do have laws on the

books regarding such agreements, the responses range

from relying heavily on the Uniform Parentage Act or

party intent to outright bans or even criminalization
No. 2011AP2166

31

¶65 The portions of the PA requiring Monica to terminate

her parental rights, however, are not enforceable under the

language of the existing statutes. The PA stated that "[t]he

parties will cooperate fully in any parentage proceedings to

determine [the Roseckys] as [C]hild's legal parents, or in any

other similar legal proceedings, including but not limited to

termination of parental rights and adoption." It further

stated:

The parties intend to participate voluntarily in

any legal proceedings necessary to have [the Roseckys]

determined to be Child's legal parents . . . . It is

the intent of the parties that regardless of any

circumstances that may arise in the future, both

of surrogacy. In many of the states that are 'silent'

on surrogacy, bills have been shot back-and-forth

through the legislature but come to naught.

Hofman, supra, at 454. See also Mark Hansen, As Surrogacy

Becomes More Popular, Legal Problems Proliferate, ABA Journal,

Mar. 2011, at 55; Thomas J. Walsh, Wisconsin's Undeveloped

Surrogacy Law, Wisconsin Lawyer, Mar. 2012, at 20. Case law in

this area is similarly scattered. See, e.g., Raftopol v. Ramey,

12 A.3d 783, 793 (Conn. 2011) (concluding that Connecticut

Statute, which governs birth certificates when birth is subject

to a surrogacy agreement, "allows an intended parent who is a

party to a valid [surrogacy] agreement to become a parent

without first adopting the children, without respect to that

intended parent's genetic relationship to the children"

(emphasis omitted)); Johnson v. Calvert, 851 P.2d 776, 782 (Cal.

1993) (concluding that when the intended mother/egg donor and

the gestational carrier had equal claims to maternity under

California law, "she who intended to procreate the child——that

is, she who intended to bring about the birth of a child that

she intended to raise as her own——is the natural mother under

California law"); Matter of Baby M., 537 A.2d 1227, 1246-50

(N.J. 1988) (concluding that enforcement of a traditional

surrogacy agreement violated various statements of public

policy).
No. 2011AP2166

32

[Marcia] and [David] shall be the legal parents of

Child. The parties agree to sign all necessary

documents and attend any scheduled court hearings

either prior to or after Child's birth to achieve

these goals.

As the circuit court correctly noted, 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. See Wis. Stat. § 48.415. As a result,

the TPR provisions of the PA are unenforceable. That fact,

however, does not end the analysis.

¶66 We further conclude that the offending TPR provisions

in the PA can be severed from the remainder of the contract

without defeating the primary purpose of the agreement. The PA

addresses severability:

In the event any of the provisions of this

Agreement are deemed to be invalid or unenforceable,

such provisions will be deemed severable from the

remainder of this Agreement and will not cause the

invalidity or unenforceability of the remainder of

this Agreement. Consistent with the provisions of

this paragraph, if any provision is deemed invalid due

to its scope or breadth, such provision will be deemed

valid to the extent of the scope or breadth permitted

by law.

Though a severability clause itself is not controlling, it is

entitled to great weight in determining whether the remainder of

a contract is enforceable. See Town of Clearfield, 150 Wis. 2d

at 24. The primary purpose of this agreement is to ensure that

the Roseckys will be the parents of F.T.R. and will have custody

and placement. The PA contains provisions for custody and

placement: "The parties believe strongly that Child's best
No. 2011AP2166

33

interests will be served by being in [the Roseckys'] legal

custody and physical placement, as it is necessary for Child to

regard [the Roseckys] as the sole legal parents and [the

Roseckys'] home as the sole parental home." The purpose of the

PA can be carried out, after severing the TPR portions, by

enforcing the custody and placement provisions of the PA. See

Simenstad, 22 Wis. 2d at 662.

¶67 As to the remaining portions of the PA, the current

court record does not support any defense to the enforcement of

the contract so as to render it unenforceable. There are no

facts in the record to indicate, nor does Monica argue, that the

contract should be void or voidable due to misrepresentation,

mistake, duress, undue influence, or incapacity. See Apfeld et

al., supra, ch. 3. Instead, the facts in the record appear to

establish that the contract was entered into voluntarily and was

well-planned, negotiated, and carefully executed. The circuit

court made findings about the PA:

The contract, on its face, is clear and

unambiguous. . . .

The parties are each represented by counsel, and

were at the time the agreement was drawn. The

agreement itself covers virtually every eventuality

which could possibly occur during the pregnancy.

There is no claim here by [Monica] that she did

not understand the contract when she signed it.

Indeed, to a great extent, it appears it was her idea

to act as a surrogate in the first instance.

Had [Monica] gone through with the termination of

her parental rights, this Court would have no problem

upholding the agreement . . . .
No. 2011AP2166

34

Monica offered, not once but twice, to act as a surrogate for

the Roseckys. Both the Roseckys and the Schissels had

independent counsel, who assisted in drafting and revising the

parties' agreement. The parties negotiated the terms of the

agreement. When the Roseckys raised concerns about using

Monica's egg, for fear that she would not be able to separate

herself from the child, Monica reassured the Roseckys that she

could separate herself from the child. Monica testified that

she understood all of the terms of the contract and that she

simply changed her mind as to the terms.

¶68 Instead of arguing that the contract is void due to

duress, mistake, or similar reasons, Monica argues that the PA

is void as against public policy. The essence of Monica's

public policy argument is that a contract cannot cut off a

biological parent from his or her child, and any contract that

purports to do so violates a myriad of cases and statutes

relating to divorce, custody, placement, adoption, and similar

areas. A contract will not be enforced if it violates public

policy. Watts, 137 Wis. 2d at 521. A court may declare a

contract void on public policy grounds only if it determines,

after weighing the interests, that the interests in enforcing

the contract are clearly outweighed by the interests in

upholding the policy that the contract violates. Id.;

Restatement (Second) of Contracts § 178 (1981). Public policy

may be expressed by a statute, regulation, or judicial opinion.

See N. States Power Co. v. Nat'l Gas Co., Inc., 2000 WI App 30,
No. 2011AP2166

35

¶8, 232 Wis. 2d 541, 606 N.W.2d 613. For the reasons stated

above, we reject Monica's public policy arguments.

¶69 In summary, though the TPR portions of the PA cannot

be enforced under Chapter 48 of the Wisconsin Statutes, the

remainder of the PA is an enforceable contract. No Wisconsin

Statute or case contains a specific statement of public policy

contrary to the enforcement of this PA. 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. Aside from the termination

of parental rights provisions in the PA at issue, the PA is a

valid, enforceable contract unless enforcement is contrary to

the best interests of F.T.R. We turn to consider the circuit

court action concerning custody and placement.

3. Application

¶70 The circuit court awarded primary custody and

placement to David and secondary placement to Monica. It did

so, however, without consideration of the PA. We conclude that

the circuit court erroneously exercised its discretion by

excluding the PA and rendering its custody and placement

decision without consideration of the PA.

¶71 In custody and placement determinations, the circuit

court has discretion to make a determination of what is in a

child's best interests. See Wis. Stat. § 767.41(5); Jocius, 218
No. 2011AP2166

36

Wis. 2d at 110-11; Hollister, 173 Wis. 2d at 416. We will

sustain the circuit court's discretionary determination unless

it constitutes an erroneous exercise of discretion. See

Lubinsky, 314 Wis. 2d 395, ¶5; Bohms, 144 Wis. 2d at 497.

¶72 Because we conclude that the PA is a valid,

enforceable contract, the circuit court's exclusion of the PA

and decision to render a custody and placement order without

consideration of the PA constituted an erroneous exercise of

discretion.

12 Id., at 496. We therefore reverse the circuit

court's order and remand for a determination of custody and

placement consistent with this opinion.

V. POTENTIAL LEGISLATIVE ACTION

12 The PA contains several provisions on the custody and

placement of the child:

[The Roseckys] will have physical placement of Child

immediately upon Child's birth . . . . [The Schissels]

waive any and all claims to . . . custody, visitation,

and physical placement of Child . . . . The parties

believe strongly that Child's best interests will be

served by being in [the Roseckys'] legal custody and

physical placement, as it is necessary for Child to

regard [the Roseckys] as the sole legal parents and

[the Roseckys'] home as the sole parental home.

. . . .

. . .It is in Child's best interests that legal

custody be with [the Roseckys] immediately upon

Child's birth, with no child support to be paid by

[the Schissels], that physical placement be with [the

Roseckys] upon Child's release from the hospital, and

that placement or visitation with [the Schissels] be

denied, as the parties agree that Child should view

[the Roseckys] as the sole legal parents and [the

Roseckys'] home as the sole parental home.
No. 2011AP2166

37

¶73 We respectfully urge the legislature to consider

enacting legislation regarding surrogacy.

13 Surrogacy is

currently a reality in our Wisconsin court system. Legislation

could "address surrogacy agreements to ensure that when the

surrogacy process is used, the courts and the parties understand

the expectations and limitations under Wisconsin law."

14 Walsh,

supra, at 56.

VI. CONCLUSION

¶74 Aside from the termination of parental rights

provisions in the PA at issue, we conclude a PA is a valid,

enforceable contract unless enforcement is contrary to the best

interests of the child. While the traditional defenses to the

enforcement of a contract could apply, none appear to render the

entire PA in this case unenforceable.

¶75 We also conclude that the circuit court erroneously

exercised its discretion by excluding the PA and rendering its

custody and placement decision without consideration of the PA.

13 Assisted reproductive technology has turned "the science

of making babies into a $3 billion-a-year industry." Hansen,

supra, at 54. Though reliable data is scarce on the number of

surrogacies that occur every year, one account estimates that

about 22,000 babies have been born using surrogacy in the United

States since the mid-1970s. Id. Anecdotal evidence from

attorneys practicing in this area suggests that the number may

be much higher. Id. (noting a California surrogacy attorney's

account that her office handles about 150 surrogacies a year).

14 See, e.g., Raftopol, 12 A.3d at 801-03 (calling for

legislative guidance and listing a myriad of legal issues

presented by surrogacy); ABA Model Act (Feb. 2008); Uniform

Parentage Act (2002); 750 Ill. Comp. Stat. Ann. § 47/1-47/75

(West 2012) ("Illinois Gestational Surrogacy Act").
No. 2011AP2166

38

We reverse the circuit court's determination that the PA is

unenforceable and remand for a hearing on custody and placement,

wherein the terms of the PA are enforced unless enforcement is

contrary to the best interests of F.T.R.

By the Court.—Order reversed and cause remanded for

proceedings consistent with this opinion.
No. 2011AP2166.ssa

1

¶76 SHIRLEY S. ABRAHAMSON, C.J. (concurring) I too

would remand the matter to the circuit court. I would, however,

instruct the circuit court to follow the legislative directive

in Wis. Stat. § 767.41(5)(am) for deciding the legal custody and

physical placement dispute in the present case.

¶77 I do not join the majority opinion because I disagree

with the majority opinion's authorization of people to contract

out of the State's traditional, statutory oversight role in the

protection of children.

¶78 Courts should not sacrifice statutes or public policy

considerations on the altar of freedom of contract:

There are, in a civilized society, some things that

money cannot buy. In America, we decided long ago

that merely because conduct purchased by money was

"voluntary" did not mean that it was good or beyond

regulation and prohibition.

1

¶79 I write separately for two reasons:

¶80 First, although I conclude that surrogacy contracts

are not per se void as a matter of law in Wisconsin, I caution

that the provisions of these contracts demand a court's careful

attention. Courts must be alert to the terms of a surrogacy

contract no matter how the parties title the contract. In the

present case, the parties decided to call the surrogacy contract

a "Parentage Agreement."

¶81 A surrogacy contract is no less than a contract that

governs bodily intrusions, the use of human bodies for

1 Matter of Baby M., 537 A.2d 1227, 1249 (N.J. 1988) (citing

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)).
No. 2011AP2166.ssa

2

altruistic or commercial gain, the creation of a child, and the

legal custody and physical placement of a child once it is born.

¶82 Such agreements are not standard run-of-the-mill

contracts subject merely to the usual offer, acceptance, and

consideration analysis. See majority op., ¶¶57, 59. Standard

contract defenses and remedies are a starting point, but may not

be sufficient. Surrogacy contracts, in whole or in part, are by

their subject matter likely to collide with statutes and raise

numerous public policy issues (some addressed directly by

statute, others not) and questions of unconscionability. The

majority opinion takes a carefree attitude toward public policy

considerations, seemingly declaring all surrogacy agreements

valid.

2

2 The majority opinion seems to vacillate in reaching its

conclusion. At times it appears to state that the enforcement

of the Parentage Agreement in the present case is not contrary

to statutes, case law, or public policy. At other times, the

majority opinion reads more broadly to state that the public

policy of Wisconsin supports surrogacy agreements in general and

that no Wisconsin statute or case contains a specific statement

of public policy contrary to surrogacy agreements.

Under either interpretation, the majority opinion does not

address the numerous public policy issues regarding the validity

of this agreement and surrogacy agreements in general, including

the following: must the agreement be in writing; should

compensated agreements be allowed and what are the limits on

compensation; should the availability of surrogacy be limited to

married couples or to infertile intended parents; should the age

of any party be limited; should a spouse be required either to

consent or to be made a party to the contract; must each

individual involved be represented by counsel; should the State

require that information about each individual's legal rights be

provided; what provisions are valid regarding who makes

decisions about health care and termination of the pregnancy;

how and when may the agreement be terminated; and must any party

to the agreement be given the opportunity to change his or her

mind before or after the birth of the child?
No. 2011AP2166.ssa

3

¶83 Public policy considerations regarding a surrogacy

contract may differ depending on the nature of the dispute. In

the present case the dispute centers on the paternity, the

custody, and the physical placement of a child born of

alternative reproductive methods with a surrogacy agreement

among friends. See ¶¶104-112, infra. Although the biological

parents "contractually" agreed in the present case that the

child's best interests would be served if the surrogate mother

did not have custody and physical placement, the surrogate

mother has refused to abide by the terms of the contract.

Majority op., ¶¶12, 72 n.12

¶84 Different legal and public policy issues may arise in

different disputes and under different contract provisions.

Different issues may arise when gestational surrogacy

agreements, rather than traditional surrogacy agreements, are

implicated. In all surrogacy contracts, public policy issues

are in the forefront.

3

¶85 Second, I write because the present case arose as a

petition by David Rosecky for paternity requesting a

determination of the legal custody and physical placement of the

named child. The majority opinion ignores the posture of the

3 Policy decisions to be made in validating or voiding

surrogacy agreements appear in the case law and statutes of

other states and nations. See, e.g., Unif. Parentage Act Art.

8, 9B U.L.A. 360 (2000) (gestational agreement); American Bar

Association, Model Act Governing Assisted Reproductive

Technology (2008), available at

http://apps.americanbar.org/family/committees/artmodelact.pdf

(last visited June 28, 2013).
No. 2011AP2166.ssa

4

case and mischaracterizes the instant case as simply a contract

dispute. Majority op., ¶¶28, 48, 55-60, 66-69.

¶86 All three actions brought by David Rosecky, the

biological father——for paternity, custody, and physical

placement——are, under the plain text of the statutes,

categorized as "actions affecting the family," and as such are

governed by Chapter 767. See ¶¶104-112, infra. The legislative

standard established in Chapter 767 for legal custody and

physical placement of a child directs courts to "consider all

facts relevant to the best interest of the child." Wis. Stat.

§ 767.41(5)(am) (emphasis added). Indeed, the legislature has

enumerated 16 factors that may be relevant for a court's

consideration in determining the best interest of a child,

including agreements by a parent.

¶87 The majority opinion ignores the statutes and creates

its own standard for deciding the legal custody and physical

placement of the child. The guiding principle for legal custody

and physical placement when a surrogacy agreement is implicated,

according to the majority opinion, will be the custody and

placement provisions set forth in the surrogacy contract unless

enforcement of the contract is "contrary to the best interests

of the child." Majority op., ¶¶3, 4, 30, 31, 55, 69, 74, 75.

¶88 The majority opinion departs from the legislative

mandate. Yet the majority opinion does not explain why a child

born of alternative reproductive methods should have different

rights and be treated differently under the custody and

placement statutes than any other child.
No. 2011AP2166.ssa

5

I

¶89 The question whether to enforce surrogacy contracts is

a matter of first impression for this court, but not for

legislatures and courts of other states and nations and not for

legal commentators and scholars. In the last three years alone,

over 180 law journal articles have been published addressing

surrogacy contracts.

¶90 Nonetheless, the majority opinion has no hesitancy in

declaring that public policy supports the enforcement of such

contracts. Majority op., ¶¶64, 69. Yet the validity of

surrogacy contracts, in whole or in part, is at this very time

being debated across the globe.

¶91 Other states and nations are, at best, divided over

whether to enforce such contracts because of the difficult

public policy issues they present. A recent law review article

summarized the various approaches to surrogacy contracts from

state to state as follows:

There is no clear majority approach to surrogacy.

There is not even a clear plurality approach. Some

states permit and enforce a wide range of surrogacy

contracts. Some enforce only a limited subset of such

contracts. Many states have no law on the subject or

refuse to enforce surrogacy contracts. Three states

not only refuse to enforce surrogacy contracts, but

impose civil or criminal penalties on those arranging

and entering into surrogacy contracts.

4

4 Paul G. Arshagouni, Be Fruitful and Multiply, by Other

Means If Necessary: The Time Has Come to Recognize and Enforce

Gestational Surrogacy Agreements, 61 DePaul L. Rev. 799, 800

(2012). See generally Raftopol v. Ramey, 12 A.3d 783, 801-804

n.35-46 (Conn. 2011) (collecting statutes and cases). See

majority op., ¶64 n.11.
No. 2011AP2166.ssa

6

¶92 Beyond the fact that there is no clear majority

approach to surrogacy among the states that have acted, many

states still have said virtually nothing on the topic.

5 Among

those that have acted, the legislative approach varies

significantly from state to state.

6

¶93 Several state legislatures ban traditional surrogacy

contracts, while others permit traditional surrogacy contracts

under certain circumstances. Some states differentiate between

traditional and gestational surrogacy contracts. In some states

in which no statutes cover surrogacy contracts, courts have held

5 7 Williston on Contracts § 16.22 Surrogacy Agreements (4th

ed. 2012). See also Darra L. Hofman, "Mama's Baby, Daddy's

Maybe:" A State-by-State Survey of Surrogacy Laws and Their

Disparate Gender Impact, 35 Wm. Mitchell L. Rev. 449 (2009).

6 See, e.g., Ala. Code § 26-10A-34(c) (2013); Ariz. Rev.

Stat. Ann. § 25-218 (2012); Ark. Code Ann. § 9-10-201(b) (West

2013); D.C. Code § 16-402 (2012); Fla. Stat. Ann. §§ 63.212-

.213, § 742.15 (West 2011); Ind. Code Ann. §§ 31-20-1-1 to -3

(West 2013); 750 Ill. Comp. Stat. Ann. §§ 47/1 to /75 (West

2010); Iowa Code Ann. § 710.11 (West 2013); Ky. Rev. Stat. Ann.

§ 199.590(4) (West 2012); La. Rev. Stat. Ann. § 9:2713 (2012);

Mich. Comp. Laws Ann. §§ 722.851-.863 (West 2013); Neb. Rev.

Stat. § 25-21,200 (2012); Nev. Rev. Stat. Ann. § 126.045 (West

2011); N.H. Rev. Stat. Ann. §§ 168-B:1 to B:32 (2013); N.Y. Dom.

Rel. Law §§ 121-124 (McKinney 2010); N.D. Cent. Code §§ 14-18-

05, -08 (2011); Tex. Fam. Code Ann. §§ 160.751-.763 (Vernon

2013); Utah Code Ann. §§ 78B-15-801 to -809 (West 2012); Va.

Code Ann. §§ 20-156 to -165 (West 2012); Wash. Rev. Code Ann.

§§ 26.26.210-.260 (West 2013).

See also 7 Williston on Contracts § 16.22 n.12 (4th ed.

2012) (Surrogacy Agreements); Anne R. Dana, Note, The State of

Surrogacy Laws: Determining Legal Parentage for Gay Fathers, 18

Duke J. Gender L. & Pol'y 353, Appendix 1 (2010-2011). See

generally Raftopol, 12 A.3d at 801-804 n.35-46 (collecting

statutes and cases).
No. 2011AP2166.ssa

7

surrogacy contracts void and unenforceable as contrary to public

policy.

7

¶94 Law review articles have tracked the status of

surrogacy contracts around the world.

8 Only a limited number of

nations have explicitly addressed surrogacy by statute or

through court rulings.

9 Several countries have rejected

movements to permit surrogacy within their countries. Some

7 See, e.g., In re Marriage of Moschetta, 30 Cal. Rptr. 2d

893 (Cal. Ct. App. 1994); R.R. v. M.H., 689 N.E.2d 790 (Mass.

1998); Matter of Baby M., 537 A.2d 1227 (N.J. 1988).

8 See, e.g., Daniel Gruenbaum, Foreign Surrogate Motherhood:

Mater Semper Certa Erat, 60 Am. J. Comp. L. 475 (2012); Ailis L.

Burpee, Note, Momma Drama: A Study of How Canada's National

Regulation of Surrogacy Compares to Australia's Independent

State Regulation of Surrogacy, 37 Ga. J. Int'l & Comp. L. 305,

309 (2008-2009); Austin Caster, Note, Don't Split the Baby: How

the U.S. Could Avoid Uncertainty and Unnecessary Litigation and

Promote Equality by Emulating the British Surrogacy Law Regime,

10 Conn. Pub. Int. L.J. 477 (2010-2011); Sarah Mortazavi, Note,

It Takes a Village to Make a Child: Creating Guidelines for

International Surrogacy, 100 Geo. L.J. 2249 (2012); Sasha N.

Swoveland, Note, Surrogacy and Insurance: The Call for

Statutory Reform in Ohio, 26 J.L. & Health 143 (2013).

9 For example, the United Kingdom, one of the more common

surrogacy centers, has a uniform surrogacy law that employs an

independent ethics committee to evaluate surrogacy requests on a

case-by-case basis and recognizes parents through parental

orders. Parental rights are based on the welfare of the child.

Human Fertilisation and Embryology Act, 1990, c. 37 (U.K.)

(amended 2008), available at http://www.legislation.gov.uk/

ukpga/1990/37/contents/enacted (last visited June 28, 2013).

See Mortazavi, supra note 8, at 2270-71.
No. 2011AP2166.ssa

8

countries that recognize surrogacy have legalized altruistic

surrogacy but not commercial surrogacy.

10

¶95 These conflicting approaches have transnational

implications, one result being that some American states with

less restrictive or no laws on the issue have become interstate

and international medical surrogacy tourism destinations. It is

estimated that over 1,400 babies are born in the United States

each year for international parents with the assistance of a

surrogate, sometimes American, sometimes foreign.

11

¶96 Thus, the present case is significant for people in

Wisconsin and around the world.

10 In a commercial surrogacy arrangement, the surrogate and

often a third party stand to gain financially from the birth of

the child. In contrast, an altruistic surrogacy arrangement may

involve payment to the surrogate to cover expenses associated

with the pregnancy and birth, but neither she nor a third party

is paid a fee for the service itself. See Burpee, supra note 8,

at 309.

For the Canadian law, see Assisted Human Reproduction Act,

S.C. 2004, c. 2 (Can.), available at http://lawslois.justice.gc.ca/PDF/A-13.4.pdf (last visited June 28, 2013).

11 Swoveland, supra note 8, at 164.

The United States is second only to India in providing

surrogates. India, with no law on the issue, permits both

commercial and altruistic surrogacy arrangements and has become

a popular medical surrogacy tourism destination for couples

seeking lower-cost surrogacy arrangements without being mired in

red tape. Mortazavi, supra note 8, at 2271-72; Kathleen Parker,

Editorial, Surrogacy Exposed, Wis. State J., May 26, 2013, at

E3. See also Emanuella Grinberg, The highs and lows of foreign

surrogacy, CNN Living (Mar. 29, 2012) available at

http://www.cnn.com/ 2012/03/29/living/sacred-thread-foreignsurrogacy/ (last visited June 28, 2013).
No. 2011AP2166.ssa

9

¶97 As I see it, many public policy issues involving the

traditional surrogate, the biological father, and the child may

be at stake in a legal custody and physical placement dispute in

which a surrogacy contract is implicated.

12 Surrogacy contracts

by their very nature focus on the interests of the signatories

and the signatories' views of what is in the best interest of

the child at the time the contract is executed. See majority

op., ¶1. A court must view the legal custody and physical

placement of a child, irrespective of the means of reproduction,

through a wider lens, with emphasis on the best interest of the

child, including the legal and constitutional rights of the

child, at the time of the court proceedings.

¶98 The public policy implications of a traditional

surrogacy contract when the legal custody and physical placement

of an existing child are at issue, as in the present case,

include:

• Public policy against baby-buying;

13

12 For example, a dispute may arise when the surrogate or

the intended parents seek an abortion. See Elizabeth Cohen,

Surrogate Offered $10,000 to Abort Baby, CNN Health (Mar. 6,

2013), available at http://www.cnn.com/2013/03/04/health/

surrogacy-kelley-legal-battle/index.html (last visited June 28,

2013) (Medical tests showed an abnormality of the fetus. The

agreement entered into in the State of Connecticut authorized

the intended parents to determine whether an abortion would be

performed; the surrogate refused an abortion and moved to a

state that appeared to have laws more favorable to the

surrogate's position.).

13 In the first surrogacy case in the country, the New

Jersey Court declared:

We have found that our present laws do not permit the

surrogacy contract used in this case. Nowhere,

however, do we find any legal prohibition against
No. 2011AP2166.ssa

10

• Public policy against the exploitation of women;

14

• Statutes and case law relating to adoption, including

terms of consent,

15 termination of parental rights,16

and the payment of funds;

17 and

surrogacy when the surrogate mother volunteers,

without any payment, to act as a surrogate and is

given the right to change her mind and to assert her

parental rights. Moreover, the Legislature remains

free to deal with this most sensitive issue as it sees

fit, subject only to constitutional constraints.

Baby M., 537 A.2d at 1264.

Wisconsin statutes regulate payments regarding children.

See, e.g., Wis. Stat. § 48.913 (allowing certain payments by

proposed adoptive parents to birth parent); Wis. Stat. § 948.24

(criminalizing payments for child placement and services not

explicitly authorized by statute). See majority op., ¶¶45, 53.

14 The Michigan court of appeals explained the compelling

state interests in prohibiting surrogacy contracts as follows:

(1) preventing children from becoming mere commodities; (2)

protecting the best interests of the child, because surrogacy

arrangements focus solely on the parents' interests and desires;

and (3) preventing the exploitation of women. Doe v. Attorney

Gen., 487 N.W.2d 484 (Mich. Ct. App. 1992).

For a discussion of the advertising directed at prospective

surrogates, the fees paid to them, the third parties who benefit

from arranging surrogacy contracts, and the potential for

exploiting poor women, see Kathleen Parker, Editorial, Surrogacy

Exposed, Wis. State J., May 26, 2013, at E3 ("[W]e haven't

scraped the surface of the metaphysical, spiritual, emotional,

[and] psychological issues" that accompany the surrogacy

business.).

A simple Google search of "Wisconsin Surrogacy" turns up

advertisements offering up to $50,000 for women to serve as

surrogates.
No. 2011AP2166.ssa

11

• Statutes and case law governing legal custody and

physical placement focusing on the best interests of

the child.

18

15 Wisconsin has stringent requirements for voluntary

consent to terminate parental rights that require a parent to

appear in court or provide written consent in the presence of a

judge, embassy, or consulate official. See Wis. Stat. § 48.41.

In adoption situations, a mother can withdraw her consent even

after agreeing to give her child up for adoption. Matter of

Adoption of R.P.R., 98 Wis. 2d 613, 619, 297 N.W.2d 833 (1980).

16 Indeed the majority opinion strikes down a provision of

the Parentage Agreement regarding the termination of parental

rights on the ground that the Agreement violates Wisconsin

statutes. Majority op., ¶65.

Other states have also declared surrogacy contracts or

parts thereof invalid because they conflict with legislation

governing adoption and the termination of parental rights, the

public policy embodied in the statutes, and case law. See Baby

M., 537 A.2d at 1242-44.

The California court of appeals refused to give effect to

the terms of a traditional surrogacy agreement, holding that

"enforcement of a traditional surrogacy contract by itself is

incompatible with the parentage and adoption statutes already on

the books." Moschetta, 30 Cal. Rptr. 2d at 894-95.

Compare these decisions refusing to enforce traditional

surrogacy contracts with court decisions approving gestational

surrogacy arrangements. See, e.g., Johnson v. Calvert, 851 P.2d

776 (Cal. 1993); Raftopol v. Ramey, 12 A.3d 783 (Conn. 2011);

J.F. v. D.B., 879 N.E.2d 740 (Ohio 2007).

17 In New York, a surrogacy agreement was declared void and

unenforceable because it violated the statutory prohibition

against acceptance of compensation in exchange for the surrender

of a child for adoption. Matter of Adoption of Paul, 550

N.Y.S.2d 815 (1990). New York has since banned surrogacy

contracts by statute. N.Y. Dom. Rel. Law §§ 122-123 (McKinney

2010).

18 Doe v. Attorney Gen., 487 N.W.2d 484 (Mich. Ct. App.

1992).
No. 2011AP2166.ssa

12

¶99 In my opinion, when faced with a dispute relating to

legal custody and physical placement of a child, a circuit court

must carefully scrutinize the surrogacy contract to ensure that

the contract does not contravene public policy. I do not join

the majority's overly broad holding that "a [Parentage

Agreement] is a valid, enforceable contract unless enforcement

is contrary to the best interests of the child." Majority op.,

¶3 (emphasis added).

II

¶100 I turn now to the second issue, namely what rule of

law the circuit court should apply to decide the legal custody

and physical placement of the child in the present case.

¶101 The majority opinion creates its own law, instructing

circuit courts to enforce the Parentage Agreement unless

enforcement is contrary to the best interests of the child.

Majority op., ¶¶3, 4, 30, 31, 55, 69, 74, 75.

19

¶102 In contrast with the majority opinion, I would

instruct the circuit court to adhere to the legislature's

directions in Wis. Stat. § 767.41(5)(am). This statute

The Supreme Judicial Court of Massachusetts held that no

private surrogacy agreement concerning the custody of a child

can be conclusive, because a judge must decide what is in best

interest of child. R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998).

19 The phrase "contrary to the best interest of the child"

is not entirely new to Wisconsin statutes. None of the statutes

using the phrase applies to the present case. The legislature

seems to have given guidance to the courts in these statutes

regarding what is contrary to the best interests of the child.

See, e.g., Wis. Stat. §§ 48.365(2g)(b)3., 48.977(2)(f),

767.41(2)d)1., 767.80(2), 938.18(6) ("contrary to the best

interests of the juvenile").
No. 2011AP2166.ssa

13

explicitly governs a circuit court's determination of legal

custody and physical placement of a child.

¶103 The majority opinion deviates from the statute by

boldly but erroneously asserting that this action is not an

"action affecting the family." Majority op., ¶43.

¶104 On the contrary, the present case is, without

question, "an action affecting the family" and is governed by

Chapter 767 of the statutes.

¶105 The statute, Wis. Stat. § 767.001, defines "action

affecting the family" to mean an action to determine paternity,

a custody action, and an action concerning physical placement,

in addition to other actions.

20 David Rosecky, the biological

father (and not the husband of the biological mother) brought

the instant case as a paternity action. A paternity action

20 Wisconsin Stat. § 767.001, "Definitions," provides in

relevant part:

In this chapter:

(1) "Action affecting the family" means any of the

following actions:

. . . .

(e) Custody.

. . . .

(k) Concerning periods of physical placement or

visitation rights to children, including an action to

prohibit a move with or the removal of a child under

s. 767.481(3)(c).

. . . .

(L) To determine paternity.
No. 2011AP2166.ssa

14

protects a biological father's rights associated with the

parentage of a child.

¶106 David Rosecky had to have a court determination of

paternity. The Wisconsin statutes create a presumption that the

husband of the birth mother (not David Rosecky) is the

biological father of the child.

¶107 According to the statutes, a husband is presumed to be

the father of a child when the child is born during wedlock.

21

21 Wisconsin Stat. § 891.41 provides as follows:

891.41. Presumption of paternity based on marriage of

the parties.

(1) A man is presumed to be the natural father of a

child if any of the following applies:

(a) He and the child's natural mother are or have been

married to each other and the child is conceived or

born after marriage and before the granting of a

decree of legal separation, annulment or divorce

between the parties.

(b) He and the child's natural mother were married to

each other after the child was born but he and the

child's natural mother had a relationship with one

another during the period of time within which the

child was conceived and no other man has been

adjudicated to be the father or presumed to be the

father of the child under par. (a).

(2) In a legal action or proceeding, a presumption

under sub. (1) is rebutted by results of a genetic

test, as defined in s. 767.001 (1m), that show that a

man other than the man presumed to be the father under

sub. (1) is not excluded as the father of the child

and that the statistical probability of the man's

parentage is 99.0% or higher, even if the man presumed

to be the father under sub. (1) is unavailable to

submit to genetic tests, as defined in s. 767.001

(1m).
No. 2011AP2166.ssa

15

Furthermore, another statute provides that when a woman is

artificially inseminated with semen donated by a man who is not

her husband, the husband is deemed the natural father of the

child (and the donor has no rights regarding the child).

22

Several cases implicating these statutes have come to Wisconsin

22 Wisconsin Stat. § 891.40 provides as follows:

891.40. Artificial insemination

(1) If, under the supervision of a licensed physician

and with the consent of her husband, a wife is

inseminated artificially with semen donated by a man

not her husband, the husband of the mother at the time

of the conception of the child shall be the natural

father of a child conceived. The husband's consent

must be in writing and signed by him and his wife.

The physician shall certify their signatures and the

date of the insemination, and shall file the husband's

consent with the department of health services, where

it shall be kept confidential and in a sealed file

except as provided in s. 46.03(7)(bm). However, the

physician's failure to file the consent form does not

affect the legal status of father and child. All

papers and records pertaining to the insemination,

whether part of the permanent record of a court or of

a file held by the supervising physician or elsewhere,

may be inspected only upon an order of the court for

good cause shown.

(2) The donor of semen provided to a licensed

physician for use in artificial insemination of a

woman other than the donor's wife is not the natural

father of a child conceived, bears no liability for

the support of the child and has no parental rights

with regard to the child.
No. 2011AP2166.ssa

16

appellate courts to determine the paternity of a child born

during a marriage.

23

¶108 David Rosecky's paternity petition asked the circuit

court to determine that David Rosecky is the father of the child

for all legal purposes, to direct the section of Vital

Statistics for the State of Wisconsin to identify David Rosecky

as the birth father of the child,

24 and to determine that David

Rosecky shall have legal custody and physical placement of the

child.

¶109 After the paternity action was filed, and as part of

the paternity action, the parties stipulated that David Rosecky

is the father of the child and that the surrogate mother's

husband shall be excluded as the father of the child.

¶110 In a paternity action, a circuit court may decide

legal custody and physical placement of the named child.

Wisconsin Stat. § 767.41(1)(b) provides that in rendering a

judgment of paternity, "the court shall make provisions as it

deems just and reasonable concerning the legal custody and

physical placement of any minor child of the parties . . . "

(emphasis added). Wisconsin Stat. § 767.41(1) provides, inter

23 See, e.g., Randy A.J. v. Norma I.J., 2004 WI 41, 270

Wis. 2d 384, 677 N.W.2d 630 (husband filed for divorce seeking

custody of child; wife counterclaimed challenging husband's

paternity); In re Paternity of T.R.B., 160 Wis. 2d 840, 467

N.W.2d 553 (Ct. App. 1991) (single man filed paternity claim to

child born to another man's wife); Strawser v. Strawser, 126

Wis. 2d 485, 377 N.W.2d 196 (Ct. App. 1985) (on divorce, husband

challenged paternity of children born during marriage).

24 Birth certificates may be changed by the state registrar

of vital statistics. See Wis. Stat. §§ 69.01(24), 69.15(1).
No. 2011AP2166.ssa

17

alia, that "the question of a child's custody may be determined

as an incident of any action affecting the family . . . ."

¶111 Accordingly, Chapter 767, which governs "actions

affecting the family," governs the present case for at least

three distinct reasons; the present case involves three actions

affecting the family: custody, physical placement, and

paternity. Majority op., ¶13-14. The Parentage Agreement

itself supports the conclusion that the present case involves an

action affecting the family, as the Agreement specifically

includes "the parties' agreements as to parentage, legal

custody, and physical placement." Majority op., ¶10.

¶112 Under Chapter 767, the legislature has directed that

"in determining legal custody and periods of physical placement,

the court shall consider all facts relevant to the best interest

of the child (emphasis added)." Wis. Stat. § 767.41(5)(am).

"Child" is statutorily defined to mean an individual who has not

attained 18 years of age.

25 The individual whose paternity,

custody, and placement are the subject of the present case has

not attained 18 years of age. The statutes governing paternity,

legal custody, and placement govern all children; they do not

differentiate among children on the basis of the reproductive

methods used. The majority opinion should not do so either.

¶113 Wisconsin Stat. § 767.41(5)(am) has enumerated 16

facts relevant in determining the best interest of the child.

For purposes of analysis, these factors "can be grouped into

four broad categories . . .: (1) factors that analyze the wishes

25 Wis. Stat. §§ 822.02(2); 767.01(2m).
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of the parents and the child; (2) factors that analyze the

stability and consistency of the parents' relationship with the

child; (3) factors that focus on the physical and mental health

of the parties and the children; and (4) factors that look at

the behaviors of each party."

26

¶114 Section 767.41(5)(am) provides as follows:

Wis. Stat. § 767.41(5) Factors in custody and physical

placement determinations. (am) . . . in determining

legal custody and periods of physical placement, the

court shall consider all facts relevant to the best

interest of the child. The court may not prefer one

parent or potential custodian over the other on the

basis of the sex or race of the parent or potential

custodian. . . . [T]he court shall consider the

following factors in making its determination:

1. The wishes of the child's parent or parents, as

shown by any stipulation between the parties, any

proposed parenting plan or any legal custody or

physical placement proposal submitted to the court at

trial.

2. The wishes of the child, which may be communicated

by the child or through the child's guardian ad litem

or other appropriate professional.

3. The interaction and interrelationship of the child

with his or her parent or parents, siblings, and any

other person who may significantly affect the child's

best interest.

4. The amount and quality of time that each parent has

spent with the child in the past, any necessary

changes to the parents' custodial roles and any

reasonable life-style changes that a parent proposes

to make to be able to spend time with the child in the

future.

26 Thomas J. Walsh, In the Interest of A Child: A

Comparative Look at the Treatment of Children Under Wisconsin

and Minnesota Custody Statutes, 85 Marq. L. Rev. 929, 944 (2001-

2002) (emphasis added).
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5. The child's adjustment to the home, school,

religion and community.

6. The age of the child and the child's developmental

and educational needs at different ages.

7. Whether the mental or physical health of a party,

minor child, or other person living in a proposed

custodial household negatively affects the child's

intellectual, physical, or emotional well-being.

8. The need for regularly occurring and meaningful

periods of physical placement to provide

predictability and stability for the child.

9. The availability of public or private child care

services.

10. The cooperation and communication between the

parties and whether either party unreasonably refuses

to cooperate or communicate with the other party.

11. Whether each party can support the other party's

relationship with the child, including encouraging and

facilitating frequent and continuing contact with the

child, or whether one party is likely to unreasonably

interfere with the child's continuing relationship

with the other party.

12. Whether there is evidence that a party engaged in

abuse, as defined in s. 813.122(1)(a), of the child,

as defined in s. 48.02(2).

12m. Whether any of the following has a criminal

record and whether there is evidence that any of the

following has engaged in abuse, as defined in s.

813.122(1)(a), of the child or any other child or

neglected the child or any other child:

a. A person with whom a parent of the child has a

dating relationship, as defined in s. 813.12(1)(ag).

b. A person who resides, has resided, or will reside

regularly or intermittently in a proposed custodial

household.

13. Whether there is evidence of interspousal battery

as described under s. 940.19 or 940.20(1m) or domestic

abuse as defined in s. 813.12(1)(am).
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14. Whether either party has or had a significant

problem with alcohol or drug abuse.

15. The reports of appropriate professionals if

admitted into evidence.

16. Such other factors as the court may in each

individual case determine to be relevant.

(Emphasis added.)

¶115 No one factor enumerated in Wis. Stat. § 767.41(5) is

necessarily determinative of custody, and the same combination

of factors does not necessarily call for an identical answer in

two different cases.

27

¶116 Significant for the present case is that the

legislature has explicitly instructed a circuit court how to

address agreements between parents and any legal or custody

proposal submitted to the court. The legislature envisaged

agreements and proposals, and the legislature has directed

courts to consider "the wishes of the child's parent or parents,

as shown by any stipulation between the parties, any proposed

parenting plan or any legal custody or physical placement

proposal submitted to the court at trial." Wis. Stat.

§ 767.41(5)(am)1. The legislature did not direct the courts to

rubber stamp the proposal or order specific performance of an

agreement relating to custody and physical placement, as David

Rosecky requests. Majority op., ¶13.

¶117 I agree with the majority opinion that the circuit

court in the present case erroneously exercised its discretion

27 King v. King (King II), 29 Wis. 2d 586, 590-91, 139

N.W.2d 635 (1966).
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by refusing to consider the Parentage Agreement. I think such

consideration is required by Wis. Stat. § 767.41(5).

¶118 The majority opinion, however, does not require a

circuit court to consider the other relevant enumerated factors

in § 767.41(5) to determine the best interest of the child.

Instead the majority opinion states a new rule: A circuit court

is bound by a surrogacy contract "unless enforcement is contrary

to the best interests of the child." Majority op., ¶¶3, 4, 30,

31, 55, 69, 74, 75.

¶119 The majority opinion errs as a matter of law by not

adhering to the statutory standard set forth in Wis. Stat.

§ 767.41(5). The majority opinion errs as a matter of law by

placing the surrogacy contract above, and to the exclusion of,

all other factors the legislature has enumerated in Wis. Stat.

§ 767.41(5)(am) and above the best interest of the child.

¶120 The best interest of the child is an organizing

principle of Wisconsin family law. See majority op., ¶62.

According to our case law, "The legislature has clearly and

repeatedly expressed the policy that courts are to act in the

best interest of children."

28 "The polestar [in a custody

dispute] is the best interests of the children."

29

¶121 The legislature has made clear that "[t]he child's

best interests transcend an agreement or stipulation of the

28 Holtzman v. Knott, 193 Wis. 2d 649, 682, 533 N.W.2d 419

(1995).

29 Johnson v. Johnson, 78 Wis. 2d 137, 148, 254 N.W.2d 198

(1977).
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parties."

30 This court has long recognized that "the controlling

question [in custody disputes] is not what the parties agreed to

but what is in the best interest of the child."

31 Our court has

further explained the statutory relationship of an agreement of

parties and the child's best interest as follows:

While parents may stipulate as to custody, the

agreement should not be approved by the court unless

it insures and promotes the best interest of the

children. . . . A contract between parents [in a

custody dispute] should be given serious consideration

by the court as it normally expresses what may be best

for the child, nevertheless it does not bind the court

or preclude a modification of a decree based thereon.

32

¶122 Although the majority opinion mentions Wis. Stat.

§ 767.41(5) and the best interest of the child standard in

passing, see majority op, ¶62, it does not rely on § 767.41(5)

or the best interest of the child standard. Rather, it decides,

for purposes of all surrogacy contracts, for all children, for

all persons, and for all circumstances, that "the interests

supporting enforcement of the [Parentage Agreement] are more

compelling than the interests against enforcement." Majority

op., ¶61. The majority opinion adopts its own formulation of a

rule for determining custody and placement that directs circuit

courts to follow the contract unless "contrary to the best

30 Frisch v. Henrichs, 2007 WI 102, ¶72, 304 Wis. 2d 1, 736

N.W.2d 85 (quoting Ondrasek v. Tenneson, 158 Wis. 2d 690, 695,

462 N.W.2d 915 (Ct. App. 1990)).

31 King v. King (King I), 25 Wis. 2d 550, 555, 131

N.W.2d 357 (1964).

32 King I, 25 Wis. 2d at 555 (citing William T. Nelson,

Divorce and Annulment § 15.21 at 268 (2d ed. rev. 1961); Miner

v. Miner, 10 Wis. 2d 438, 103. N.W.2d 4 (1960)).
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interests of the child," without explanation, discussion, or

direction to the courts on how the rule should be applied.

Majority op., ¶¶3, 75. See also ¶¶4, 30, 31, 55, 69, 74.

33

¶123 So why doesn't the majority opinion adhere to Wis.

Stat. § 767.41(5) in the present case? This is a mandatory

(shall) statute that is directly on point.

¶124 The majority opinion explains that "surrogacy is not

one of those enumerated" actions affecting the family, majority

op., ¶43; surrogacy agreements are not explicitly addressed in

Chapter 767 or in Wis. Stat. § 767.41(5); a surrogacy agreement

does not present a typical custody case; "the law does not

specifically address the legal issues presented in this

surrogacy dispute," majority op., ¶55; and that some of the

statutory factors enumerated in § 767.41(5) are difficult to

apply. Majority op., ¶¶43, 44, 45, 55.

34

¶125 This reasoning in the majority opinion justifying its

disregarding Wis. Stat. § 767.41(5) is confusing, contradictory,

and unpersuasive.

33 The guardian ad litem argued that the surrogacy contract

should be presumptively enforceable as long as it is in the best

interest of the child. See majority op., ¶52.

34 Presumably, the 16 factors enumerated in Wis. Stat.

§ 767.41(5)(am) will have different levels of importance in each

custody and physical placement case. Is the majority

instructing us to ignore all of them because some or even many

are "difficult to apply to the facts" of the specific case? See

majority op., ¶43. Still, in ¶71, the majority points out that

circuit courts have discretion to follow § 767.41(5) to

determine what is in the child's best interests. How can ¶43

and ¶71 be reconciled?
No. 2011AP2166.ssa

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¶126 The present case is a paternity, child custody, and

physical placement action; thus, it is "an action affecting the

family" expressly governed by Chapter 767, including Wis. Stat.

§ 767.41(5). The legislature has explicitly and in plain

language directed courts how to address these actions, including

parties' agreements about custody and placement.

¶127 Simply because the words "surrogacy contract" or

"Parentage Agreement" do not appear in Chapter 767 or Wis. Stat.

§ 767.41 (5)(am) does not mean, as the majority opinion reasons,

that the statute does not apply to legal custody and physical

placement disputes that implicate a surrogacy contract.

Majority op., ¶43. The legislature is aware of alternative

methods of reproduction and surrogacy, see majority op., ¶¶41,

42, and has not excluded surrogacy agreements from the

application of Chapter 767 or § 767.41(5). Rather, the

legislature explicitly anticipated that courts should consider

parental agreements, without restricting such agreements to the

reproductive method used or the title of the agreement.

¶128 If a surrogacy contract should be treated differently

than any other type of agreement, the legislature has not

instructed the courts to take this distinction into account in

exercising discretion under Wis. Stat. § 767.41(5).

¶129 Absent specific statutory instructions that provide a

different procedure for adjudicating legal custody and physical

placement disputes when an alternative reproductive method and a

surrogacy contract are implicated, the circuit courts of this

state are, in my opinion, bound to follow the legislative
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directions for adjudicating legal custody and physical placement

for all children set forth in Wis. Stat. § 767.41.

¶130 The plain text of the current statutes applies to the

present case. Any change in the law and the procedure regarding

actions involving paternity, legal custody, and physical

placement of a child when an alternative reproductive method and

a surrogacy contract are implicated should not be undertaken by

this court. Any change is a task best left to the legislature.

¶131 For the reasons set forth, I write separately.

¶132 I am authorized to state that Justice ANN WALSH

BRADLEY joins this opinion.
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