The only certainty for same-sex couples who want to create a family is that their children are not born “by accident.” Children of same-sex couples are deeply wanted, planned for, and sometimes contracted for. Whether these contracts can be enforced is a question Wisconsin’s Court of Appeals has recently asked our Supreme Court to answer.
In the current case before the court, two heterosexual couples contracted for one of the wives to have a child for her childhood friend who, for medical reasons, could not bear children. The woman who contracted to be the surrogate already had five children. Neither she nor her husband wanted more children for their family.
The couples, each represented by attorneys, executed a clear and well-crafted agreement where the surrogate mother would be artificially inseminated with the sperm of the “intended father” (the husband of the woman who could not bear children), and, upon giving birth, would waive all parental rights. The contract provided that the father and his wife would be the sole legal parents of the child.
The pregnancy was successful, but the relationship between the couples deteriorated. The father’s wife accused him and the surrogate mother of having an “emotional affair” and threatened divorce. The surrogate mother states that she was concerned about the stability of their marriage. After the child’s birth, the surrogate mother allowed the child to live with the father, but refused to waive her parental rights.
The father and his wife remained married. Despite their continued marriage, the surrogate mother refused to honor her original agreement to waive her parental rights. In a court hearing, the surrogate mother was awarded limited placement with the child for a few hours every couple of weeks. The father and his wife appealed, requesting the court to enforce the contract. Everyone agreed the child, now about two years old, was doing well with the father and his wife.
Absent a written agreement, the law would be clear. The biological father and biological mother would be presumed to have equal custodial rights to the child, and the child would have rights to physical placement with both parents. The question is whether biological parents and “intended parents” can contract these rights away.
The intention of these parents was clear:
“WHEREAS, Carrier is a married adult resident of the State of Wisconsin, has five (5) children, does not desire nor intend to parent any additional children, and desires to take part in the insemination procedure in which Carrier will serve as a carrier for Parents in order to fulfill Parents’ desire to parent a child and their desire to retain full care, custody, and control of, and responsibility for, this child; and Parents will accept custody of and assert full parental rights and responsibilities to Child immediately upon Child’s birth, regardless of any impairment of Child …
The parties will perform any and all acts and execute any and all documents deemed helpful to vest Child’s legal custody and physical placement in Parents and to ensure that Parents’ names are placed on Child’s birth certificate … Parents will have physical placement of Child immediately upon Child’s birth and Child will be placed with Parents upon Child’s release from the hospital. Carrier and Husband waive any and all claims to parentage, custody, visitation, and physical placement of Child, and the right to petition a court for any such rights pursuant to Wis. Stat. § 767.43 or any other applicable legal authority. Parents shall be solely responsible for the Child unless otherwise expressly provided herein. Carrier and Husband will have no responsibility for Child’s care or support. The parties believe strongly that Child’s best interests will be served by being in Parents’ legal custody and physical placement, as it is necessary for Child to regard Parents as the sole legal parents and Parents’ home as the sole parental home … Carrier and Husband understand that the court cannot determine finally that they have no legal rights to Child prior to Child’s birth; however, they intend and desire that the court make such a determination as soon as possible after Child’s birth, in order to be relieved of the responsibilities or parenthood with respect to Child and to allow Parents to assume these responsibilities. “
One of the ways a contract can be challenged is to claim that the very subject matter of the agreement is “contrary to public policy.” In some states, courts have concluded that contracts entered before the birth of a child which require the child to live solely with one parent and require the other parent to terminate her rights are against public policy.
Contracts with a surrogate mother are not prohibited in Wisconsin. In fact, there is mention of “surrogate” in the statute related to birth certificates. It might surprise some that this statute requires that only the surrogate mother’s name be placed on the birth certificate until the parentage of the father is determined. Only then can a father’s name be included on the birth certificate. If the surrogate is married, her husband is presumed to be the father of any child she has. In the case of a surrogate, after the child is born, it is necessary to confirm who the father is.
This statute provides no guidance to whether the surrogate can change her mind about giving up her rights to the child. Historically, the fundamental rights of the biological or adoptive parent outweigh what some might consider to be the best interests of the child. The case law from the United States Supreme Court provides that the rights of a parent are fundamental rights, and can be terminated only if a parent is found to be unfit. The surrogate in the current Wisconsin case is clearly not an unfit parent, and, in fact, was a mother of five children and a dear friend to the intended mother.
The question comes down to whether a birth mother can contract to “voluntarily” waive her parental rights before she gives birth and not be allowed to change her mind afterward. Is such a contract invalid because it is against public policy, or is it invalid because of the fundamental rights of a biological parent? Or do such contracts, when the parents are adequately represented and know exactly what they are agreeing to, supersede these legal considerations?
The question of money is part of the concern in this case. During the pregnancy, the father and intended mother paid for the medical and some living expenses of the surrogate. If the father were not the biological father, there might be a clear violation of Wisconsin law, which prohibits paying money to a pregnant woman in exchange for receiving sole custodial rights to a child. But it could be argued that this father, as a biological father, has financial obligations toward this child by law, and would be free to contribute to the mother’s expenses. The issue in this case is whether the payments of the mother’s expenses were in exchange for receiving a child, which is prohibited.
While the explanation of this case may seem complex to some, it actually is a relatively straightforward situation and is referred to as a “traditional” surrogate childbirth. Artificial insemination of a biological mother by a willing father establishes a baseline for legal decisions. If either the egg or sperm are donated by unknown persons, some courts have balanced the rights of the surrogate mother, the intended father, and the child differently in deciding whether to enforce the contract. From the child’s point of view, of course, the source of the egg and sperm is irrelevant. What matters to the child is the attachment to the parents who actually care for him or her.
Reproductive technology has long outstripped the ability of the courts to analyze the related rights of the parents and the children. In this case, the trial court acknowledged that the child was doing quite well at his “intended parents’” home. The primary expert who advised the court recommended that the “intended parents” be awarded sole custody and placement to prevent the child from experiencing the negative effects of living with two families in conflict. Unlike a divorce of a child’s two parents who were married, it was argued that there was no reason to expose this child to that type of upbringing.
The trial court rejected the expert’s recommendation. The fundamental parental rights of the biological mother carried great weight. The trial court also considered the fact that this child has five half-siblings who might contribute positively to the child’s life.
Now the appellate courts have to decide whether a trial court should even consider what might be good for this child if the surrogate mother shares parenting when there is a contract that excludes the surrogate mother from the child’s life. While there are two biological parents involved in this case, the court’s decision must consider whether it would draw the same conclusion if neither the “intended parents” nor the surrogate mother were the biological parents of the child. Any rule regarding surrogate parents contracts would have to apply to all situations.
Such cases remind some of the biblical Solomon when confronted by two women claiming to be the mother of a child. Rather than see the child split in two as threatened by Solomon, the true mother gave up her rights to the child. In fact, this trial court quoted that biblical story in support of its decision to grant the surrogate mother placement rights with the child resulting in this child being split between two families.
Today, courts not held to the standards of Solomon must decide whether a person or couple unable to have their own biological child can enforce a contract with a surrogate mother who volunteered to have their child and then step aside as a parent.
For those interested in the details of the case, you can read the briefs submitted to the Court of Appeals at http://miniurl.org/surrogacy1 as well as the Court of Appeals’ request to the Wisconsin Supreme Court to take the case at http://miniurl.org/surrogacy2.
Even if the Supreme Court does not take the case at this time, the Court of Appeals will issue a decision on the case and the parties may then request the Supreme Court to take the case.
Linda Balisle is a shareholder in the Madison law firm of Balisle & Roberson, S.C. where she practices Family Law. For the LGBT community she has worked in the courts and legislature to establish rights of children of LGBT parents.