Wisconsin Surrogacy Case Raises Interesting Questions

As I reported last week, the Wisconsin Court of Appeals certified a case In re the Paternity of F. T. R., asking the Wisconsin Supreme Court to “decide the issue of whether an agreement for the traditional surrogacy and adoption of a child is enforceable.” In the case, the trial court refused to enforce a parentage agreement under which the surrogate was supposed to have terminated her parental rights.  Instead, the trial court awarded secondary placement to the surrogate.
The case raises a number of interesting questions, both legally and philosophically, including:

• Should parties be able to privately agree, in advance, as to parenting their child and to have the agreement enforced by the courts?
• If so, should it make a difference if the surrogate bears a genetic relationship with the child (a “traditional” surrogate where the surrogate donates the egg) as in this case or has no genetic relationship (a “gestational surrogate” where both the egg and the sperm were donated)?
• If a parenting agreement for surrogacy is enforceable, would one for paternity (where the baby was created the old fashioned way) also be enforceable?  Or, for that matter, a parenting agreement by a married couple (where, say, one party wanted a child more than the other, so tey “contract” for parenting duties)?
• If the agreement in this case is valid, what is the effect of the court order and any subsequent bonding by the child with the surrogate? In other words, if the SC accepts the case and reverses the trial court, that would take about a year (or more) for remand back to the trial court.  Assuming that the child had bonded with the surrogate (who is also the child’s biological mother) in the meantime due to the secondary placement order, would it be in the child’s best interests to sever that relationship at that point, even if it never should have been granted in the first place?
• Since this is a very important issue with all sorts of biological, philosophical and legal ramifications, would it be better for this to be decided by the legislature or by the courts?  Or wouldn’t it matter?

While I don’t have an answer for the above questions, they are worth considering.  I’ll post information on this case as it moves along.

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