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Case analysis: Why state justices ruled in favor of surrogacy agreement

Case analysis: Why state justices ruled in favor of surrogacy agreement

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When longtime family friend Monica Schissel agreed to be a surrogate for Marcia and David Rosecky’s child, the couple figured they had a reliable carrier and loving confidant who would safely carry and deliver their first child.

Instead, the Roseckys found themselves fighting in court weeks before the baby’s birth to enforce a parenting agreement, struggling to keep the surrogate who was going to give up parental rights from getting visitation every other weekend.

The Wisconsin Supreme Court in July found that the Rosecky’s surrogacy agreement was enforceable, David J. Rosecky v. Monica M. Schissel, 2011 AP 2166. Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley filed a strongly worded concurring opinion, however.

“A parenting agreement is a valid enforceable contract,” the majority court wrote, “unless enforcement is contrary to the best interests of the child.”

Although parts of the parenting agreement were clearly unenforceable, the court noted, the [parenting agreement]’s severability clause allowed the rest of the agreement to survive.

A friendly offer

Monica Schissel and Marcia Rosecky had been friends since grade school. The two were in each other’s weddings and Marcia was a godparent to one of Schissel’s daughters.

Marcia Rosecky was diagnosed with leukemia in 2004 and again in 2008. The treatments for the disease took a toll and by the time she was declared well, her eggs were no longer viable.

Schissel in 2004 offered to use one of her own eggs and carry a child for the couple. She made the same offer in 2008, at which point the couple said “yes.”

“I was [Marcia’s] friend,” Schissel said in circuit court testimony. “I offered to do this. … I orchestrated the whole thing. This whole thing was my doing.”

The two families talked about the pros and cons of Schissel carrying a child using her own egg.

Marcia Rosecky feared, according to trial court testimony, that Schissel would have a problem giving up a biological child. Schissel dismissed her friend’s concerns, saying she was happy with her own family of five children.

Both the Roseckys and the Schissels had attorneys who helped create a Parenting Agreement. Drafts were exchanged back and forth and a final agreement was reached with the following primary guidelines: 1) Schissel would have no formal custody or placement, 2) Schissel would have no legal relationship with the child, 3) Schissel would see the child through informal social visits, and 4) the Roseckys would raise the child.

Schissel was confirmed pregnant in early 2009. Six months later, the Schissels and Roseckys finalized a Parenting Agreement that designated David the “father,” Marcia the “mother” and Monica as “carrier.”

Things fall apart

Several months before Schissel gave birth in March 2010, the Roseckys and Schissels had a falling out, to the point where the relationship between the two families was “essentially dead.” Schissel indicated she had no intention of giving up her parental rights, voicing concerns about the stability of the Roseckys’ marriage.

Once the child was born, David Rosecky had to obtain a court order allowing the newborn child to go home with him. The court allowed Schissel temporary visitation every other Saturday, for three hours.

    Later, after two extensive hearings were held where family members, a guardian ad litem and several medical experts testified, the trial court found the Parenting Agreement was unenforceable. David Rosecky was given sole custody and primary placement, and Schissel was awarded secondary placement and visitation.

    The circuit court was troubled, the trial judge wrote, by the idea of “whether the court can, under those circumstances, force or require the mother to terminate her parental rights.” The court ruled it could not force Schissel to terminate her parental rights because the provisions of Wis. Stat. 48.81 dealing with voluntary consent to terminate parenting rights were not met.

    Guardian ad litem Krista Miller recommended that David Rosecky get full custody and placement, and recommended Schissel get no custody rights.

    The court also ordered Dr. Beth Huebner to investigate the custody situation, and in her report back to the court, Huebner found that the child’s “best interests were full custody and placement with the Roseckys,” according to court testimony. She noted that Schissel strongly desired to be the mom, and “replace Marcia,” which would have a detrimental effect on the Roseckys and the child.

    However, the trial court rejected Miller and Huebner’s testimony, and gave secondary placement to Schissel, expanding her visitation to six hours every other weekend and an overnight visit when the child turned two.

    David Rosecky appealed, and the appellate court certified the case to the state Supreme Court.

    The high court weighs in

    State justices ruled that the circuit court had “erroneously exercised” discretion when it failed to consider the Parenting Agreement, and reversed the circuit court decision out of Columbia County, remanding for further hearings incorporating consideration of the PA and the best interests of the child.

    Although there are contract law issues that could undermine portions of the parenting agreement, “no defense here renders the entire contract unenforceable,” the court wrote. Misrepresentation, mistake, illegality, unconscionable, void against public policy, duress, undue influence and capacity – there was no credible evidence showing that any defense applied, the court stated.

    The court reviewed statutory laws in other states, noting that the “vast majority of states do not have statutory provisions addressing surrogacy.”

    The court struggled to find any Wisconsin statutory provisions that were precisely on point to the case and its unique facts. It found no statute taking a public policy position against parenting agreements in surrogacy or against enforcement of these agreements.

    Routinely, the courts in Wisconsin cases where custody and placement determinations are made would contemplate all of those factors relevant to what was in the best interests of the children, the court noted, as stated in Wis. Stat. 767.41(5).

    “However,” the court explained, “one of the strangest things to the court in this case is how many factors of 767.41 don’t apply.”

    Ultimately, the justices concluded that the parenting agreement contains essential terms of a contract. “Monica made an offer, the Roseckys accepted and consideration was provided,” the court wrote.

    The court also looked into whether the PA was enforceable, and determined that, although unique, the parenting agreement was at least partially enforceable.

    David Rosecky had argued that it was good public policy to find the PA enforceable. Upholding the PA and other surrogacy contracts would provide, according to his counsel, “stability and predictability for children and for parties to surrogacy.”

    But Schissel’s counsel countered the PA could not be enforced because it was the equivalent of making illegal payments involving an adoption.

    If the court couldn’t find that public policy supported enforcement of the parenting agreement, David Rosecky argued that equitable estoppel should apply: Schissel insisted that she could perform the role of a traditional surrogate parent and the Roseckys had relied on her representation.

    The state Supreme Court found that Wisconsin has a long history of allowing parties to freely contract, particularly in a case such as this, where both sides were represented by attorneys during the entire parenting agreement negotiations.

    Also, the court found substance in the idea that enforcing surrogacy agreements would in fact promote “stability and permanence within family relationships.” This was consistent with the Wisconsin legislative intent that, in children’s custody cases, “BIC was always paramount,” as stated in Wis. Stat. 48.01.

    The fact that some residual custody with Schissel might inevitably cause ongoing friction between the families and cause harm to the child was not lost on the court.

    “Being exposed to contentious family relationships is harmful,” the court concluded.

    Citing a study mentioned during the circuit court proceedings, the justices noted, “Out of almost 2000 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.”

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