In Re Paternity Of F.T.R

Facts

Marcia Rosecky and Monica Schissels were good friends for many years, having met in grade school. Each participated in the other's wedding. The Rosecky’s were godparents to the Schissels' youngest daughter. 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.' Her eggs are no longer viable and she is unable to have biological children. 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.' The Roseckys accepted Monica's offer. The parties 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 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. 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 through artificial insemination using her egg and David's sperm. 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. The PA contains the parties' agreement as to parentage, legal custody, and physical placement. 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. The parties had a falling out. Shortly before F.T.R. was born, Monica reneged on the PA and refused to terminate her parental rights. Monica gave birth to F.T.R. and allowed F.T.R. to go home with the Roseckys from the hospital. The Court appointed the Roseckys as the temporary guardians of F.T.R. David filed a separate paternity action which 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. 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. 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. The court determined that the PA was not enforceable. 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 of 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. Dr. Huebner filed a custody study ordered by the court. Her ultimate recommendation was that David should have full custody and placement of F.T.R., and Monica should not have any placement. 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. Dr. Huebner testified that the relationship between the Roseckys and the Schissels was essentially dead; a fact to which all of the parties agreed. 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. A battle of the experts ensured with one saying one motherly attachment and the other saying a child can form more than one attachment and detailed how to do that. 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 and at that time, Monica was awarded an overnight stay from Friday evening until Saturday evening every other weekend. David filed a notice of appeal.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.' The court noted that 'Wisconsin currently does not have legislative or common law that addresses the enforceability of a surrogacy agreement.'

Issues

Rule of Law

Holding and Decision

Legal Analysis

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