GESTATIONAL SURROGACY IN WISCONSIN

Gestational Surrogacy is permitted in Wisconsin by the Wisconsin Supreme Court decision Paternity of F.T.R., Rosecky v. Schissel.  The court concluded that surrogacy contracts are enforceable unless contrary to the child’s best interest.

PRE-BIRTH PARENTAGE ORDERS

Do courts grant pre-birth parentage orders?  Yes, pre-birth orders are issued, but they are considered “interim” orders. An additional, final, order must be issued after the child’s birth to facilitate obtaining the birth certificate.

Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?

• Married heterosexual couple using own egg and own sperm: Yes
• Married heterosexual couple using an egg donor or sperm donor: Most likely, but it varies by county.
• Unmarried heterosexual couple using own egg and own sperm: Likely, but it varies by county.
• Unmarried heterosexual couple using an egg donor or sperm donor: Likely, but it varies by county.
• Same-sex couple using an egg donor or sperm donor: Likely, but it varies by county.

Note: Wisconsin attorneys expect it to be more likely that both parents will start to be declared the legal parents in a pre-birth order if the same-sex couple is married, following the October 6, 2014 Supreme Court ruling denying review of a 7th Circuit decision in Baskin v. Bogan (2014) that declared Wisconsin’s ban on same-sex marriages unconstitutional. The effect of the Supreme Court ruling was, effectively, to permit same-sex marriages in Wisconsin.

Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?

• Single parent using own egg or sperm: Yes
• Married heterosexual couple: Varies by county
• Unmarried heterosexual couple: Varies by county
• Same-sex couple: Varies by county
• Single parent: Varies by county

What are the bases for venue?  County of the Gestational Carrier’s residence, county of the Intended Parents’ residence, county of the child’s birthplace, or in some instances, the county where the child is temporarily located in Wisconsin.

Do results vary by venue?  Not usually, but there are some courts less inclined to grant the requested orders in a one-step pre-birth parentage order.

If yes, are motions to waive venue accepted?  Usually

Is a hearing required to obtain a pre-birth order?  Yes, almost always, and all parties must attend.

Is a pre-birth order possible in Wisconsin based on a Gestational Carrier’s plan to deliver in Wisconsin, if no party lives in Wisconsin?  No

Will Wisconsin Vital Records honor a pre-birth order from another state?  Yes, if the Wisconsin Vital Records form is used to obtain the birth certificate.  Because this form requires the date of the final court order to be after the child’s date of birth, a post-birth final court order, on or after the child’s date of birth, is necessary.

What is the typical time frame to obtain a birth certificate after delivery?  2 to 14 days after delivery

SAME SEX COUPLE

How are same-sex parents named on the final birth certificate?  Parent 1 and Parent 2

Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier?  Yes

Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier?  Yes

Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in Wisconsin (i.e., neither of the Intended Parents lives in Wisconsin)?  No

If no, will Wisconsin Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate?  Yes

SECOND PARENT & STEPPARENT ADOPTIONS FOR WISCONSIN RESIDENTS

Note: This situation typically arises if the child is born outside of the state.  The parents then return to Wisconsin to obtain a second parent adoption or stepparent adoption in Wisconsin.

Will courts in Wisconsin grant second parent adoptions or stepparent adoptions to heterosexual couples living in Wisconsin?  Yes
Does the couple need to be married?  Yes

Will courts in Wisconsin grant second parent adoptions or stepparent adoptions to same-sex couples living in Wisconsin?  Hopefully, soon, following the Supreme Court’s October 6, 2014 ruling referenced above and the 7th Circuit decision that it let stand.
Does the couple need to be married?  Yes

EGG AND SPERM DONATION

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?  Yes, under Wis. Stat. § 891.40, a sperm donor has no parental rights if the donation was provided to a licensed physician for use in artificial insemination.

If the statute only refers to sperm donors, is there a case law interpreting this statute to provide the same protection in the egg donor context?  No

TRADITIONAL SURROGACY IN WISCONSIN

Traditional Surrogacy is permitted in Wisconsin pursuant to the Wisconsin Supreme Court case of In Re Paternity of F.T.R., Rosecky v. Schissel.  The court also held that the Traditional Surrogate could not be required to relinquish her parental rights, but that provisions in the contract regarding the child’s custody, placement and visitation could be upheld so long as they were not contrary to the child’s best interest.

State law information provided by the following attorneys practicing Reproductive Law in this state:

Theresa Roetter
Madison, WI
troetter@annenroetter.com
www.annenroetter.com
(608) 251-6700

Other attorneys practicing Reproductive Law in this state:

Lynn Bodi, The Law Center, S.C.
Madison, WI
lbodi@law4kids.com
www.law4kids.com

Emily Dudak Taylor, The Law Center, S.C.
Madison, WI
edudaktaylor@law4kids.com
www.law4kids.com

J. Alberto Quiroga, The Law Center, S.C.
Madison and Oregon, WI
jaquiroga@law4kids.com
www.law4kids.com

Law Office of Brian Esser
brian@esserlawoffice.com
www.esserlawoffice.com

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