Tangled Surrogacy Case Must Face Another Look

     (CN) – A woman who changed her mind after agreeing to bear a child for another couple must face another review of her custody rights, the Wisconsin Supreme Court ruled.
     Marcia Rosecky lost the ability to have biological children after she survived a second bout of leukemia in 2008 and no longer had viable eggs.
     Monica Schissel, a friend of Marcia’s from grade school, offered to help. Monica and her husband, Cory, already had five children, and Cory had even had a vasectomy because the couple did not plan to have more children.
     In the deal they signed with Marcia and David Rosecky, the Schissels agreed to give up all parental rights to the child.
     Monica conceived the baby through artificial insemination, using David’s sperm and her own egg. The families had a falling out, however, shortly before Monica gave birth. Monica told the Roseckys that she had changed her mind about giving up parental rights.
     A Columbia County judge appointed the Roseckys as temporary guardians of the baby shortly after Monica gave birth in March 2010. After Monica moved for increased custody and placement of the baby, David moved for specific performance of the parental agreement. Finding judge the contract unenforceable, the court granted Monica secondary placement, consisting of six hours every other weekend for the next six months. After March 2012, Monica would get overnight stays every other weekend. David had sole custody and primary placement.
     The Wisconsin Supreme Court, which had been certified the case from the Court of Appeals, reversed Thursday.
     “Aside from the termination of parental rights provisions in the PA at issue, we conclude a PA is a valid, enforceable contract unless enforcement is contrary to the best interests of the child,” Justice Annette Kingsland Ziegler wrote for the court, abbreviating parentage agreement. “While the traditional defenses to the enforcement of a contract could apply, none appear to render the entire PA in this case unenforceable.”
     The case must be remanded for a hearing on custody and placement, according to the ruling. Unless the terms of the parentage agreement run contrary to the best interests of the child, its terms must be enforced, the court found.
     “Creating a child is not something that one can decide to do one day and decide not to do the next,” Ziegler wrote. “Typical damages cannot make one whole. Nonetheless, this is a contract and we conclude it is largely enforceable.”
     In a concurring opinion, Justice Shirley Abrahamson said the majority should have prioritized the best interests of the child above the enforcement of the contract.
     “I disagree with the majority opinion’s authorization of people to contract out of the state’s traditional, statutory oversight role in the protection of children,” Abrahamson wrote. “Courts should not sacrifice statutes or public policy considerations on the altar of freedom of contract.”

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