Rosecky v. Schissel

Decision Date11 July 2013
Docket NumberNo. 2011AP2166.,2011AP2166.
Citation2013 WI 66,349 Wis.2d 84,833 N.W.2d 634
PartiesIn re the Paternity of F.T.R. David J. Rosecky, Petitioner–Appellant, v. Monica M. Schissel, Respondent–Respondent.
CourtWisconsin Supreme Court


For the petitioner-appellant, there were briefs by Stephen W. Hayes and Anissa M. Boeckman and Grady, Hayes & Neary, LLC, Waukesha, with oral argument by Stephen W. Hayes.

For the respondent-respondent, there was a brief by Richard J. Auerbach and Auerbach & Porter, S.C., Madison, and oral argument by Richard J. Auerbach.

For the guardian ad litem, there was a brief by Todd J. Hepler, Lodi, and oral argument by Todd J. Hepler.

An amicus curiae brief was filed by Richard E. Schoenbohm, Appleton, on behalf of the American Academy of Adoption Attorneys/American Academy of Assisted Reproductive Technology Attorneys.

An amicus curiae brief was filed by Andrea Lea Olmanson, Madison, on behalf of Concerned United Birthparents, Inc.



[349 Wis.2d 91]¶ 1 This appeal is before the court on certification by the court of appeals, pursuant to Wis. Stat. § 809.61 (2009–10).1 David and Marcia Rosecky (the Roseckys) entered into a Parentage Agreement (PA or the agreement) with Monica and Cory Schissel (the Schissels) whereby the parties agreed that Monica Schissel (Monica) would become pregnant and carry a child for the Roseckys. The agreement provided that [the Roseckys] shall be the legal parents of [the] Child,” that the “Child's best interests will be served by being in [the Roseckys'] legal custody and physical placement,” and that [t]he parties will cooperate fully in any parentage proceedings to determine [the Roseckys] as [the][C]hild's legal parents, ... including but not limited to termination of parental rights and adoption.” Monica became pregnant through artificial insemination using her egg and David Rosecky's (David) sperm. On March 19, 2010, Monica gave birth to F.T.R. Shortly before F.T.R.'s birth, Monica informed the Roseckys she no longer wanted to give up her parental rights. She further sought custody and placement of F.T.R. David responded by seeking enforcement of the PA. The Columbia County Circuit Court, Judge Alan J. White, determined that the PA was not enforceable, and after a trial, awarded sole custody of F.T.R. to David, primary placement to David, and secondary placement to Monica. David appealed, seeking enforcement of the PA and sole custody and placement of F.T.R. The court of appeals certified to this court the question of “whether an agreement for the traditional surrogacy and adoption of a child is enforceable.”

¶ 2 We granted the court of appeals' certification and now reverse the order of the circuit court.

¶ 3 Aside from the termination of parental rights provisions in the PA at issue, we conclude a PA is a valid, enforceable contract unless enforcement is contrary to the best interests of the child. While the traditional defenses to the enforcement of a contract could apply, none appear to render the entire PA in this case unenforceable.

¶ 4 We also conclude that the circuit court erroneously exercised its discretion by excluding the PA and rendering its custody and placement decision without consideration of the PA. We reverse the circuit court's determination that the PA is unenforceable and remand for a hearing on custody and placement, wherein the terms of the PA are enforced unless enforcement is contrary to the best interests of F.T.R.


¶ 5 Marcia and Monica were good friends for many years, having met in grade school. Each participated in the other's wedding. The Roseckys were godparents to the Schissels' youngest daughter.

¶ 6 In 2004, and again in 2008, Marcia was diagnosed with leukemia. After receiving treatments, she is currently in good health and the doctors consider the leukemia “a nonissue.” However, her eggs are no longer viable and she is unable to have biological children.

¶ 7 In 2004, and again in 2008, Monica offered to act as a surrogate for the Roseckys. Monica testified that she wanted to help the Roseckys: “I was [Marcia's] friend. I offered to do this.... I orchestrated this whole thing. This whole thing was my doing. I offered. I carried. I said I would do it.” In 2008, the Roseckys accepted Monica's offer. The parties discussed using a donor egg, but decided to use Monica's egg because they could be sure of Monica's family history, there was a higher chance of having multiples using a donor egg, and Monica preferred to use her own egg. Marcia expressed concern that Monica would have trouble giving up her biological child, but Monica reassured Marcia that she would allow the Roseckys to raise the child.

¶ 8 The parties had extensive conversations about the legal ramifications of the surrogacy before Monica became pregnant. The parties discussed and agreed that Monica and the child would have no legal relationship, Monica would not have formal custody and placement of the child, Monica would see the child through informal social visits, and the Roseckys would raise the child. Both parties retained counsel, and the attorneys reduced the agreement to writing. The parties negotiated terms in the agreement, and sent revised drafts back and forth. The parties acknowledge that the written agreement is an accurate reflection of the discussions they had before Monica became pregnant. Monica became pregnant in June 2009 through artificial insemination using her egg and David's sperm.

¶ 9 On November 7, 2009, the agreement was signed by David as the father,” and Marcia as the mother.” On November 17, 2009, the agreement was also signed by Monica as the “carrier,” and Cory Schissel (Cory) as the “husband.” The attorneys for both parties also signed the agreement.

¶ 10 Most importantly for this opinion, the PA contains the parties' agreement as to parentage, legal custody, and physical placement.2

[349 Wis.2d 95]¶ 11 Cory and Monica have five children together. Before Monica became pregnant with F.T.R., the Schissels did not intend to have any more children; to that end, Cory had a vasectomy.

¶ 12 Toward the end of the pregnancy, the parties had a falling out. It suffices to say that there were several events resulting in hurt feelings and lack of trust among the parties. In any event, shortly before F.T.R. was born, Monica reneged on the PA and refused to terminate her parental rights. On March 19, 2010, Monica gave birth to F.T.R. and allowed F.T.R. to go home with the Roseckys from the hospital.


¶ 13 Shortly after F.T.R. was born, the Columbia County Circuit Court appointed the Roseckys as the temporary guardians of F.T.R.3 On May 13, 2010, David filed a separate paternity action in the Waukesha County Circuit Court. On August 2, 2010, Judge Lee S. Dreyfus Jr. adjudicated David to be the father of F.T.R. and transferred the remaining issues to Columbia County to be joined with the existing guardianship case. On September 30, 2010, Monica moved the circuit court for increased custody and placement of F.T.R. David moved for specific performance of the PA, pointing to language in the PA that Monica had waived her right to custody and placement of F.T.R.

¶ 14 The circuit court scheduled two hearings: one to determine interim custody and placement and one to determine the enforceability of the PA. On November 18, 2010, the court held a hearing to determine custody and placement. After hearing testimony from Monica, David, and Marcia, the court determined that it was in F.T.R.'s best interests to maintain the status quo: primary custody and placement with David and two hours of placement per month with Monica.

¶ 15 The parties then briefed the enforceability of the PA. On February 8, 2011, the court held a hearing and determined that the PA was not enforceable. It entered an order to that effect on the same date. The court made several findings regarding the PA. First, it found that [t]he contract, on its face is clear and unambiguous.” Second, the court rejected Monica's argument that the PA lacked consideration because she was already pregnant at the time the agreement was signed. Third, the court made additional findings about the PA:

The parties are each represented by counsel, and were at the time the agreement was drawn. The agreement itself covers virtually every eventuality which could possibly occur during the pregnancy.

There is no claim here by [Monica] that she did not understand the contract when she signed it. Indeed, to a great extent, it appears it was her idea to act as a surrogate in the first instance.

Had [Monica] gone through with the termination of her parental rights, this Court would have no problem upholding the agreement....

However, the court articulated the main issue as “whether the Court can, under these circumstances, force or require the mother to terminate her parental rights.” The court determined that it could not force or require Monica to terminate her parental rights because the requirements of Wis. Stat. § 48.41, governing voluntary consent to a termination of parental rights (TPR), were not met. In the same vein, the court also refused to enforce the custody and placement provisions of the PA. The court did not consider the severability clause of the PA.

¶ 16 On February 16, 2011, in anticipation of the custody and placement trial, the court ordered Dr. Beth B. Huebner to complete a custody study to evaluate F.T.R.'s best interests. SeeWis. Stat. § 767.405(14). On February 18, 2011, the court entered an interim placement order giving David primary placement and Monica placement of F.T.R. for three hours every other Saturday.

¶ 17 On April 6, 2011, Dr. Huebner filed her report. Her ultimate recommendation was that David should have full custody and placement of F.T.R., and Monica should not have any placement. On April 25, 2011, F.T.R.'s guardian ad litem, Krista E....

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