GESTATIONAL SURROGACY LAW WISCONSIN
Case law in Wisconsin, Paternity of F.T.R., Rosecky v. Schissel (2013), expressly permits traditional surrogacy and in practice, implicitly permits gestational surrogacy. The court ruled that surrogacy contracts are enforceable if the contract is not contrary to the childs best interest. Surrogacy is a legal and accepted practice in Wisconsin.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Wisconsin, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in Wisconsin.
Is Gestational Surrogacy Legal in Wisconsin?
Yes. A 2013 case, Paternity of F.T.R., Rosecky v. Schissel (2013) expressly permits traditional surrogacy and in practice, implicitly permits gestational surrogacy. Surrogacy contracts will be upheld as long as they are not contrary to the childs best interest.
Is Traditional Surrogacy Legal in Wisconsin?
Yes. In the 2013 published surrogacy case, Paternity of F.T.R., Rosecky v. Schisse, the Wisconsin court held that a traditional surrogate could not be required to relinquish her parental rights, but that provisions in the contract regarding the childs custody, placement and visitation can be upheld, so long as they are in the childs best interest.
Is Compensated Surrogacy Legal in Wisconsin?
Yes. Compensated surrogacy is legal in Wisconsin; this is something that is established when the surrogacy contract between surrogates and intended parents is drafted. In addition to their base pay, Surrogates are compensated for their time, the medical risks they accept, and the list of expenses below:
- Mock cycle compensation
- Embryo transfer compensation
- Starting medication compensation
- Monthly allowance for miscellaneous expenses
- Monthly Housekeeping budget
- Maternity clothing budget
- Medical expenses
- Travel to and from clinic/hospital
- Lost wages if applicable
- Child care if bed rest is required
- Term life insurance
- Medical insurance
- Independent legal counsel
- Psychological counseling
- Other depending on agency
Creating a Wisconsin Surrogacy Contract
There are no Wisconsin surrogacy laws that address surrogacy contracts, other than the published case that states they are enforceable when drafted in the childs best interest.
Both the surrogate and the intended parents must be represented by separate surrogacy attorneys to ensure each parties rights and interests are protected. These attorneys will negotiate a contract that addresses at least the following:
- Each partys rights and responsibilities during the process
- Risks and liabilities
- Surrogate compensation and other financial information
- Contact expectations before, during, and after the surrogacy process
- A plan for the babys delivery
Once the agreement is finalized and signed by both parties, the medical process of surrogacy can begin.
Determining Legal Parentage in Wisconsin
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 childs birth to facilitate obtaining the birth certificate.
Pre-birth parentage orders are available in certain situations in Wisconsin, but results vary greatly by judge and county. A pre-birth order is only certain to be granted when the intended parents are a married heterosexual couple who are both genetically related to the child or when it is a single parent who is genetically related to the child. In all other situations and circumstances, a parentage order is likely to be granted, but not certain.
Same-Sex Surrogacy in Wisconsin
Q: Is Same-Sex Surrogacy Legal in Wisconsin?
A: Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Wisconsin?
A: No. There are no additional laws impacting same-sex parents in this state.
FAQs
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Wisconsin?
A: Yes. Wisconsin surrogacy contracts are enforceable as long as they are in the best interest of the child born via surrogacy.
Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in Wisconsin?
A: No. International intended parents are subject to the same Wisconsin surrogacy laws as domestic intended parents. It is important, however, that Intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: In most Wisconsin surrogacy cases, intended parents can obtain a pre-birth order (with a final order issued after birth), regardless of marital status and genetic relationship. However, in cases where intended parents cannot obtain these orders, an adoption after birth may be necessary.
Q: Does Wisconsin Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: No. Second-parent adoptions are not currently available in Wisconsin. Intended parents must either get married in Wisconsin to obtain a stepparent adoption or complete their second-parent adoption in another state. Wisconsin Vital Records will typically honor a second-parent adoption order from another state and update a childs birth certificate accordingly.
Stepparent adoptions are available to married couples.
Q: If Intended Parents Cannot Complete a Second Parent Adoption, How Can Unmarried Non-biological Intended Parents Protect their Parental Rights?
A: One Wisconsin assisted reproduction law states that a sperm donor has no parental rights if the donation was provided to a licensed physician for use in artificial insemination. However, there are no case laws that apply this to egg donors.
Most intended parents can obtain a pre-birth order, even if an egg donor or embryo is used, but results vary by county and by judge.
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?
A: One Wisconsin assisted reproduction law states that a sperm donor has no parental rights if the donation was provided to a licensed physician for use in artificial insemination. However, there are no case laws that apply this to egg donors.
Most intended parents can obtain a pre-birth order, even if an egg donor or embryo is used, but results vary by county and by judge.
REPRODUCTIVE LAW PRACTITIONERS
Stephen W. Hayes
Waukesha, WI
swh@ghnlawyers.com
(262) 347-2098
Lynn J. Bodi
Madison, WI
LBodi@law4kids.com
(608) 821-8212
Theresa Roetter
Madison, WI
tlr@dewwittllp.com
(608) 252-9251
This is a copyrighted document and therefore protected by the copyright laws of the United States. Violation of these laws is a punishable offense under the US Copyright laws and, depending on the method of transmission, under the Digital Millennium Copyright Act. Any retransmission or use of this document or any map herein is expressly prohibited without prior and express authorization of SurrogateFirst Corp.
SurrogateFirst Corp. is not providing legal advice to users of this website, nor does use of any of the maps or summaries on this website constitute or create any attorney-client relationship between SurrogateFirst Corp. and users of this site.
This website is not intended to substitute for consulting with legal counsel in the appropriate local jurisdiction. SurrogateFirst Corp. makes no warranties that the information on this site is current, accurate, or that favorable results that have been obtained in prior cases will be obtained in future cases.
Please advise us of any state law updates at info@surrogatefirst.com.
