Wisconsin Surrogacy Laws
Wisconsin has case law addressing a traditional surrogacy: IN RE: the Paternity of F.T.R., Rosecky v. Schissel (2013 WI 66). In practice, the holding of this case has been extended to gestational surrogacy. The Wisconsin Supreme Court determined that surrogacy contracts are enforceable unless a contract defense would apply (i.e., fraud, misrepresentation, etc.) or if the contract is contrary to the child’s best interest. The Court also held that the 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 those provisions were not contrary to the child’s best interest.
Additionally, there are two statutes that deal with ART in Wisconsin; one addresses artificial insemination (Wis. Stat. § 891.40); and the other addresses registration of births at Vital Statistics (Wis. Stat. § 69.14(1)h).
Types of Surrogacy Available in Wisconsin
Can a parentage order be obtained for the following?
Who can be declared as the parent(s) of a child from a surrogate via a court parentage order?
Courts are favorable to married couples with at least one genetic connection to the child, but rulings vary by county and by judge.
How are Intended Parent(s) Listed on the Birth Certificate?
Intended Parent(s) may be listed as Father-Mother, or Parent-Parent.
Rights of Egg or Sperm Donor(s)
According to Wis. Stat. § 891.40, sperm donors who contribute gametes in a physician’s office for the purpose of assisted reproduction procedures have no parental rights over the donated gametes or a resulting child. There are no statutes or case law that pertain to egg or embryo donors, however there is a federal decision which requires this statute to be read in gender neutral terms: Torres v. Seemeyer, 207 F. Supp. 3rd 905 (2016).
Surrogacy Steps in Wisconsin
Surrogacy Process in Wisconsin
Birth Certificate Timeline
Legal and medical steps involved in the surrogacy process may differ from case to case. Please speak with your agency and attorneys about how the process might look for you.
Case law recognized both gestational and traditional surrogacy contracts in Wisconsin unless contrary to the child’s best interest. In Re Paternity of F.T.R., Rosecky v. Schissel, supra. However, application of the case to a specific set of facts can vary by county and judge.
Independent counsel is recommended as “best practice” for negotiating surrogacy agreements and for the court-based parentage model in Wisconsin, but is not required by law for all parties involved in a surrogacy agreement. However, ethics codes may apply to some situations which would require all parties to be represented.
Requirements for Surrogates and Intended Parent(s)
Wisconsin has no statutory requirements that must be met for surrogates and Intended Parent(s) to participate in a surrogacy agreement. However, agencies and fertility clinics have their own requirements based on the American Society for Reproductive Medicine, the American Medical Association, and the American Academy of Adoption and Assisted Reproduction Attorneys.
Wisconsin requires a post-birth order to obtain a birth certificate but in most cases a pre-birth order can be obtained. However, pre-birth orders are considered an “interim” or “interlocutory” measure and hence a final post-birth order must be secured before Intended Parent(s) can obtain the birth certificate.
Bases of Venue
International Intended Parent(s) will have additional legal steps to complete before their return home regarding their country’s immigration and citizen laws that impact the child. It’s imperative the international Intended Parent(s) speak with an experienced attorney in their home country about their situation. The law of more than one country will need to be considered if the Intended Parent(s) are citizens or residents of more than one country.
Passports are regulated at the federal level in the United States. To learn more about the process of receiving a US passport, visit Travel.State.gov.
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The content contained in this website is provided for informational purposes only. Content contained herein may or may not reflect the most current legal information on the subject; accordingly, this website is not promised to be correct or complete at any given time. Outcomes referenced should not be interpreted as an indication of future outcomes. Love & Kindness Surrogacy explicitly disclaims all liability for actions taken or not taken based on the contents of this website.
This website does not constitute a replacement for legal advice or counsel. Always consult an attorney before beginning the surrogacy process.
Last updated October 2019