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Recent Surrogacy Case Does Not Provide Guidance for Wisconsin’s Surrogacy Law

The Court of Appeals recently decided S.R. and C.L. v. Circuit Court of Winnebago County, 2015AP219-AC in which the trial court of Winnebago County was affirmed when it held that it could not declare parentage in a case filed as an adoption. The trial court ruled that it lacked competency to make such a ruling in a case filed as an adoption case. The court also held that the Attorney General’s office should have been noticed because constitutional issues had been raised in the trial court.

Although the case was filed for the purpose of recognizing the intended parents as the parents of the child born to a surrogate, the Court of Appeals’ decision focused primarily on the erroneous case classification suggesting that the case should have been filed as a paternity case rather than an adoption case. Legislative activity would be welcomed to better define surrogacy procedure. It should be remembered, however, that Wisconsin law does support the enforcement of surrogacy agreements. See Rosecky v. Schissel, 2013 WI 66. Further development of the law would be welcomed, but the S.R. and C.L. case is not such a case.

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