The Tie That Binds
Stephen Hayes tried the first traditional surrogacy case in Wisconsin, then helped write the law on it
Published in 2017 Wisconsin Super Lawyers Magazine on November 10, 2017
David and Marcia Rosecky had been friends with Monica and Cory Schissel for years—such great friends that Monica had, on multiple occasions, offered to carry a child for Marcia, who could not.
In 2009, the Roseckys agreed, and the embryo was conceived via artificial insemination with Monica’s egg and David’s sperm. The two couples then entered into a parentage agreement. Stephen Hayes, a family law attorney in Waukesha who helped draft the agreement, says contracts are typically done before a pregnancy is attempted. This particular agreement gave the Roseckys both physical placement and custody of the child after the birth; it stated that Monica would cooperate with the termination of her parental rights.
Right around the time the child was born, however, Monica told the Roseckys she had changed her mind. Since Wisconsin didn’t have any laws on whether or not a surrogacy contract is binding, David Rosecky filed a motion to enforce the parentage agreement in Columbia County Circuit Court, and Hayes argued on the couple’s behalf. A neutral psychologist met with the parties, and based on their evaluation, sided with the Roseckys.
In February 2011, the court awarded primary placement to David, but also granted the Schissels six hours of placement every other weekend until the child was 2—at which point the hours would be increased.
“I was frustrated with the decision,” Hayes says. “My clients didn’t want to continue with her having that contact, because this wasn’t a divorce. It wasn’t a situation where the child had a relationship with one set of parents and that relationship was being cut off. This was an agreed-upon plan whereby Monica Schissel was not to have any legal rights.”
So the Roseckys appealed. And because it was the first traditional surrogacy case in Wisconsin, the appeals court certified Rosecky v. Schissel for review by the state Supreme Court, which the court accepted.
In January 2013, oral arguments were held. Hayes had argued before the Supreme Court previously, but this time, he says, the courtroom was “packed.” An overflow crowd watched the arguments in the capitol’s basement on a closed-circuit TV.
“We couldn’t find any [prior Wisconsin case] that was directly on point with our case, so we argued by analogy to a couple of cases outside Wisconsin,” says Hayes.
Six months later, the court ruled that a traditional surrogacy contract can be legally enforced. The case was remanded back to Columbia County, then transferred to Dodge County. Before hearings began, a neutral custody evaluator interviewed both parties and recommended the Roseckys have exclusive placement. The Roseckys and Schissels then reached a stipulation giving the Roseckys sole placement. The judge approved.
The decision—the first significant surrogacy decision in Wisconsin history—creates an expectation that a properly drawn surrogacy contract will be enforced by the law. “Some cases can mean a little more than others to you to win,” says Hayes. “I felt real good about winning for these people.”
Though he believes the case would have been an easier one if Monica weren’t the biological mother, Hayes feels his clients were right from the start.
“They had a written agreement,” he says. “You can’t just walk away from a promise.”