Wisconsin Supreme Court Decides First Surrogacy Case

By Attorney Gregg Herman
July 11, 2013

The Wisconsin Supreme Court today released its decision in Rosecky v. Schissel, which is the first surrogacy case to be decided by an appellate court in this state.

The Wisconsin Supreme Court held that we conclude a Parenting Agreement (PA) is a valid, enforceable contract unless enforcement is contrary to the best interests of the child.  The court further held that

“[W]hile the traditional defenses to the enforcement of a contract apply, none have been presented to render the PA unenforceable.” 

The court went on to hold:

“The unique nature of this contract, however, cannot be understated.  Creating a child is not something that one can 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.”

The court concluded as follows:

“We respectfully urge the legislature to consider enacting legislation regarding surrogacy.  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.”

CJ Abrahamson concurred, joined by Justice Bradley.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.