Human reproduction is a complex affair with issues that can arise at any stage. That being said, everyone deserves the right to start a loving family and have children of their own. The use of assisted reproductive technology (ART) and surrogacy continues to grow in the United States. Recent CDC data shows that ART procedures have doubled over the past decade, with over 2% of all U.S. births now resulting from these technologies.
We wrote this guide to help you understand surrogacy and ART laws in Wisconsin. You might be thinking about becoming a surrogate. Or maybe you’re hoping to grow your family through surrogacy. Either way, you need to know your legal rights.
This article gives you general information about Wisconsin surrogacy laws. It is not legal advice. Every family’s story is different, and you should talk to a lawyer about your specific situation.
Defining Key Terms
Before you can understand the implications of Wisconsin on your plans of using an alternate method of reproduction, you need to understand the terminology. Let’s get familiar with some key terms you’ll need to know.
- Assisted Reproductive Technology (ART): Medical procedures used to help people have children. They include in vitro fertilization (IVF), where eggs and sperm are combined in a laboratory. They also include intrauterine insemination (IUI), where sperm is placed directly into the uterus.
- Surrogacy: When a woman agrees to carry and give birth to a child for another person or couple. The woman carrying the child is called the surrogate, and the person or couple who will raise the child is called the intended parents.
- Traditional Surrogacy: In this arrangement, the surrogate uses her own egg, making her genetically related to the child. The sperm usually comes from the intended father or a donor.
- Gestational Surrogacy: The surrogate carries an embryo created from someone else’s egg. That egg is either the intended mother’s or a donor’s. The surrogate has no genetic connection to the baby.
- Intended Parents: These are the individuals who plan to raise the child born through surrogacy. They might be unable to carry a pregnancy themselves, or they might be a same-sex couple looking to start a family.
- Gametes: These are the reproductive cells – eggs from women and sperm from men. They contain genetic material that is combined to create an embryo.
The Legal Status of Surrogacy in Wisconsin
These terms we just looked at are clear and unambiguous. We wish we could say the same about the legal status of surrogacy in Wisconsin.
The current legal landscape for surrogacy in our state is uncertain. Wisconsin has no comprehensive statute that directly addresses surrogacy arrangements. This creates challenges for everyone involved in the process.
As lawyers, we like to look at past cases for guidance. This is especially true in murky areas like surrogacy law. Let’s examine a pivotal case that shapes how Wisconsin courts handle surrogacy matters today.
Case Law: In re Paternity of F.T.R. (Rosecky v. Schissel)
The Rosecky case involved a traditional surrogacy arrangement between friends. After the baby was born, the surrogate changed her mind about giving up her parental rights. This led to a legal battle that reached the Wisconsin Supreme Court.
The court’s decision was complex. They didn’t wholly invalidate surrogacy agreements. However, they found that certain parts of surrogacy contracts might violate public policy. Specifically, Wisconsin’s law against selling children (Wis. Stat. § 948.24). Instead of strictly enforcing the agreement, the court focused on what would be best for the child.
Implications of Rosecky
The Rosecky decision created important guidelines for surrogacy in Wisconsin. Traditional surrogacy contracts face significant hurdles in enforcement. However, gestational surrogacy might be viewed differently by courts.
Here’s what to keep in mind:
- “Baby-Selling” Rule: Wisconsin law (Wis. Stat. § 948.24) says you can’t exchange a child for money or anything valuable. Courts look closely at surrogacy arrangements to make sure they follow this rule. You can pay for pregnancy-related expenses. But you can’t pay someone to give up their parental rights.
- Best Interests of the Child: Wisconsin courts always put the child first. This rule comes from Chapter 767 of Wisconsin’s laws. It guides all decisions about children in family court.
Establishing Parentage in Surrogacy Cases
The modern world has no shortage of alternative family-building arrangements. Just like a stepparent can legally adopt their spouse’s child, there are various ways to establish legal parentage in surrogacy cases.
If you’re taking this route, you might wonder, “How do I establish my legal relationship with the child?”
Traditional Surrogacy
In traditional surrogacy, Wisconsin law sees the surrogate as the legal mother. This is because she’s both carrying the baby and using her egg. If the intended father provides the sperm, he can become the legal father through standard procedures. The intended mother would need to adopt the child to get legal rights.
Gestational Surrogacy
Gestational surrogacy is more complicated because Wisconsin doesn’t have specific laws about it. Courts handle these cases in different ways.
Pre-birth orders can sometimes establish parentage before the baby arrives. These orders aren’t guaranteed in Wisconsin – they depend on your specific situation and the judge handling your case.
If you can’t get a pre-birth order, you have other options after the baby is born:
- The surrogate can sign a paper giving up her parental rights.
- You can ask the court for an order based on genetic testing.
- You might need to go through adoption.
Adoption
Adoption in Wisconsin involves background checks and home studies. It usually takes several months. You’ll work with a licensed adoption agency or the Department of Children and Families.
Both intended parents and surrogates should have their own lawyers. Different lawyers protect everyone’s interests and help prevent future problems.
Other Assisted Reproduction Issues
Looking beyond surrogacy, there are other essential aspects to understand.
For egg and sperm donors, Wisconsin law keeps things simple. Donors don’t have any parental rights or responsibilities. But you need proper paperwork and medical procedures to keep these protections in place.
Embryo disposition presents unique challenges. What happens to frozen embryos if a couple divorces or disagrees about their use? Wisconsin courts haven’t provided clear guidance here.
Surrogacy Agreements
Now, we know that we said that enforcing a surrogacy agreement is never guaranteed. That being said, there is no reason not to have an agreement.
A well-written surrogacy agreement puts both the intended parents and surrogate on the same page. Both parties will know about expectations, responsibilities, and rights. Wisconsin courts might not enforce every provision. However, having a signed and notarized written agreement helps prevent misunderstandings. It can also provide a framework for resolving disputes.
Your agreement should cover:
- Compensation: Clear details about payment for pregnancy-related expenses. Always being careful to comply with Wisconsin’s restrictions on baby-selling)
- Medical expenses: Who pays for what, including insurance coverage and unexpected costs
- Insurance coverage: Requirements for health, life, and disability insurance
- Pregnancy decisions: Who makes medical choices during the pregnancy
- Parentage provisions: Plans for establishing legal parentage after birth
- Confidentiality: Rules about sharing information about the arrangement
- Dispute resolution: How disagreements will be handled
Remember that the surrogate and intended parents must have different lawyers review this agreement.
Potential Legal Challenges and Future Developments
We know this legal uncertainty can feel overwhelming when you’re trying to build your family. The lack of clear surrogacy laws in Wisconsin creates challenges for everyone involved. Wisconsin remains one of several states without comprehensive surrogacy legislation. Mind you, other states like Illinois have enacted detailed surrogacy statutes.
The growing use of assisted reproduction highlights the need for clearer legal frameworks. Until then, Wisconsin courts will continue to address surrogacy cases by applying existing family law principles and the best interests of the child standard.
Conclusion
Building a family through surrogacy in Wisconsin takes careful planning and good legal help. The laws aren’t perfect, but understanding your rights helps you make good choices.
Every family’s journey is different. Get a free consultation with Vanden Heuvel & Dineen, S.C. today.
This content was prepared by Vanden Heuvel & Dineen, S.C. for informational purposes only and should not be construed as legal advice.
