GESTATIONAL SURROGACY IN WISCONSIN

Gestational Surrogacy is permitted in Wisconsin by the Wisconsin Supreme Court decision Paternity of F.T.R., Rosecky v. Schissel, 2013 WI 66, 349 Wis. 2d, 833 N.W.2d 634. 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 by most judges in Wisconsin, but they are considered “interim” interlocutory 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 can vary by county and judge.
• Unmarried heterosexual couple using own egg and own sperm: Likely, but can vary by county and judge.
• Unmarried heterosexual couple using an egg donor or sperm donor: Likely, but can vary by county and judge.
• Same-sex couple using an egg donor or sperm donor: Likely, but can vary by county and judge.
• Single parent: Likely, but varies by county and judge, and may be more difficult for an international parent.

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 and may be more difficult for international parent.

What are the bases for venue?  County of the child’s (Gestational Carrier’s) residence, county of the alleged Father’s residence, or the county where the child or alleged Father is found at the time of filing the legal action.

Do results vary by venue?  Yes.

If yes, are motions to waive venue accepted?  Usually.

Is a hearing required to obtain a pre-birth order?  Yes, in most cases. Some courts have been willing to sign stipulated orders or permit the gestational carrier to appear by telephone; but generally, all parties must attend the hearing.

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 specific Wisconsin Vital Records form is used to obtain the birth certificate. Because this form requires the date of the court order determining parentage to be on or after the child’s date of birth, a final court order is issued. It is always necessary to obtain a final order.

What is the typical time frame to obtain a birth certificate after delivery?  4 to14 days after delivery

SAME SEX COUPLE

How are same-sex parents as a result of surrogacy 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?  Yes
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, supra.  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 L. Roetter
Madison, WI
tlr@dewittllp.com
www.annenroetter.com
(608) 252-9251

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

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

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