STATE SURROGACY LAW:

Wisconsin Surrogacy Laws

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Overview

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?

Gestational surrogacy

YES

Commercial surrogacy

YES

Traditional surrogacy

YES

Altruistic surrogacy

YES

Parentage

Who can be declared as the parent(s) of a child from a surrogate via a court parentage order?

– Both Intended Parent(s) can be named on the parentage order.

– Only a genetic Intended Parent can be named on the parentage order. A non-genetic Intended Parent will need to establish parentage via a second or stepparent adoption following birth.

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

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations

Select attorney and complete legal contract

Begin IVF cycle with surrogate

Pre-birth order

Wisconsin allows interim/interlocutory pre-birth orders to be requested prior to a post-birth order. Preparation for either a pre-or post-birth order typically begins after the anatomical ultrasound (often at weeks 19-21). There is almost always a court hearing held where all parties (Intended Parents, surrogate, and partner) typically are required to be present in person at the court in Wisconsin.

Delivery

Post-birth order

Wisconsin requires a final, post-birth order in addition to an interim/interlocutory pre-birth order that finalizes the birth certificate and affirms the Intended Parent(s) as the legal parents. If a pre-birth hearing has been completed, the final order can usually be obtained by the attorney without an additional hearing. If no pre-birth order has been entered, the hearing will occur after birth with all parties present in person at the court in Wisconsin.

Birth Certificate Timeline

Birth certificate

5-10 days

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.

Court Processes

Surrogacy Contracts

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

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.

Birth Orders

Do courts issue pre-birth orders?

YES, in most courts

Do courts issue post-birth orders?

YES

Are hearings required to obtain either pre- or post-birth orders?

YES

If hearing is required, do all parties need to attend?

YES, in most cases

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

What are the bases of venue?

The county where the alleged father or the child resides or is found.

Do rulings vary by venue?

YES

Can you file a motion to waive venue?

YES

International Issues

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.

Residency Requirements

Does Wisconsin have any residency requirements for out-of-state or International Intended Parents?

Birth Certificates

Can an international same-sex male couple receive an initial birth certificate naming the biological father and Gestational Carrier?

YES

Can an international same-sex male couple obtain an initial birth certificate naming only the biological father?

YES

Can they receive a subsequent birth certificate naming only the Intended Parent(s) with no mention of the Gestational Carrier?

YES

Passport Timeline

6-8 weeks after submitting birth certificate.

Passports can be expedited for a 2-3 week delivery with an extra fee. Intended Parent(s) can also visit a regional passport agency to receive one within 1-2 business days.

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.

Consulting Attorneys

Theresa Roetter
Annen Roetter
211 S. Paterson St., Suite 340
Madison, WI 53703
(608) 251-6700
troetter@annenroetter.com
www.annenroetter.com

Legal Disclaimer

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