Child caught in Wisconsin surrogate birth case

A deal is a deal when it comes to surrogate birth, even if the mother changes her mind, the Wisconsin Supreme Court ruled today.

The court ruled in the case of Monica Schissel of Columbus, Wis., who changed her mind after agreeing to bear a child for David and Marcia Rosecky of Menomonee Falls, using Rosecky’s sperm. The two women had been friends since grade school.

Schissel changed her mind after the two families had a falling out, the Roseckys sued, citing a provision in the contract they’d all signed that Schissel and her husband would terminate their parental rights after the child’s birth and give up all rights of custody.

The child is now 3 years old and lives with the Roseckys, but at an earlier trial, a judge awarded six hours every other weekend for two years to Schissel, and every other weekend after that.

What happens now? In today’s ruling, the court said the part of the deal terminating all rights isn’t enforceable, but it refused to throw out the entire contract. The case has been sent back to a lower court to determine the future of the child.

It also expressed its frustration that the law isn’t keeping up with the nature of things.

“The main problem with Monica’s arguments is that they are based on law that was never intended to govern the various issues presented in a surrogacy,” the court said. “The law does not specifically address the legal issues presented in this surrogacy dispute.”

Justice Shirley Abrahamson, however, criticized the court for not providing more instruction on how the child’s future will be decided, saying some American states with less restrictive or no laws on the issue “have become interstate and international medical surrogacy tourism destinations.”

“This court has long recognized that ‘the controlling question [in custody disputes] is not what the parties agreed to but what is in the best interest of the child.’” she wrote. “So why doesn’t the majority opinion adhere to Wis. Stat. § 767.41(5) in the present case?”

Here’s the full decision.