## Facts

- David J. Rosecky and his wife, Marcia, entered a written “Parentage Agreement” with Monica M. Schissel and her husband, Cory, for a traditional surrogacy arrangement.
- The agreement contemplated conception by artificial insemination using David’s sperm and Monica’s egg, followed by Monica’s relinquishment of parental rights so Marcia could adopt the child.
- The agreement stated the Roseckys would be the child’s legal parents and that the child’s best interests would be served by legal custody and physical placement with them.
- Monica became pregnant and gave birth to F.T.R. on March 19, 2010.
- Shortly before birth, Monica informed the Roseckys she would not terminate her parental rights and sought custody and placement.
- David filed a paternity action seeking enforcement of the agreement; the circuit court appointed a guardian ad litem.
- The circuit court held the agreement unenforceable as contrary to public policy, recognized David and Monica as the legal parents, awarded David sole legal custody, and granted Monica regular physical placement.

## Issues

1. Whether a traditional surrogacy agreement allocating custody and placement is enforceable under Wisconsin law or void as against public policy.
2. Whether a contractual provision requiring the surrogate to terminate parental rights and facilitate adoption is enforceable in light of Wisconsin’s statutory termination-of-parental-rights process.
3. How a court should weigh such an agreement when determining custody and placement under the child’s best interests.

## Decision

- The Wisconsin Supreme Court reversed and remanded.
- The court held that traditional surrogacy/parentage agreements are not categorically void and may be enforced as contracts to the extent consistent with the child’s best interests and not contrary to statute.
- The court held unenforceable (and severable) any provision that would automatically terminate, compel, or predetermine termination of a birth parent’s parental rights outside the statutory termination process.
- The case was remanded for custody and placement proceedings that give appropriate weight to the enforceable portions of the agreement while independently applying the best-interests standard.

## Legal Principles

- Surrogacy agreements are not per se unenforceable; enforceability turns on compatibility with the child’s best interests and with governing statutes.
- Contract terms conflicting with an explicit statutory scheme may be severed, leaving the remainder of the agreement enforceable.
- Parental rights may be terminated only through the statutory termination-of-parental-rights process; private agreements cannot bind a court to terminate rights or bypass required judicial findings.
- A parentage agreement may be relevant evidence of the parties’ intentions, but it cannot displace the court’s independent duty to decide custody and placement based on the child’s best interests.

## Conclusion

The court recognized limited enforceability of traditional surrogacy agreements in Wisconsin, while holding that any contractual attempt to require or predetermine termination of parental rights is invalid; custody and placement must ultimately be decided through a best-interests determination that considers, but is not controlled by, the agreement.


In re Paternity of F.T.R., 833 N.W.2d 634 (Wis. 2013)