State Laws and Legislation

Wisconsin Surrogacy Law

Summary: Wisconsin law does not directly address the legality of surrogacy contracts; however, at least one court case has recognized the parental rights of someone who is not genetically related to their child. The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender (LGBT) individuals has not yet been considered by the courts.

Explanation: In the Wisconsin statute pertaining to the collection of vital statistics, it states that the surrogate mother’s name is to be added to the birth certificate until “a court determines parental rights.” Once a court determines those rights, a new birth certificate with names of the intended parents may be issued; however, the statute does not lay out the factors a court should consider in making that decision.

In 1981, a Wisconsin Court of Appeals heard the case of L.M.S. v. S.L.S. , which featured an unusual set of facts: a husband, who was sterile, consented to the impregnation of his wife by another man (essentially, a surrogate father). Later, when the husband and wife were divorced, the husband argued that he was not responsible for child support because he was not the legal father of the child. The Court rejected this argument and cited numerous facts, such as the husband originally holding himself out to be the child’s father and the husband claiming the child as a dependent on income tax returns, as evidence that the husband was in fact the legal father of the child.

The Wisconsin courts have held that an individual cannot adopt the child of their same-sex partner without terminated the parental rights of that partner. Although the courts have not ruled directly on the issue of joint adoption by a same-sex couple, the aforementioned decision suggests that courts would not be receptive to it.

Citations: WIS. STAT. § 69.14(h) (2008); In Interest of Angel Lace M., 516 N.W.2d 678 (Wis. 1994); L.M.S. v. S.L.S., 312 N.W.2d 853 (Ct. App. 1981).

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Updated: Wed, September 09, 2009 - 11:00:07