                                                                       2013 WI 66

                  SUPREME COURT              OF     WISCONSIN
CASE NO.:                 2011AP2166
COMPLETE TITLE:           In re the Paternity of F. T. R.:

                          David J. Rosecky,
                                    Petitioner-Appellant,
                               v.
                          Monica M. Schissel,
                                    Respondent-Respondent.


                             ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED:            July 11, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:            January 9, 2013

SOURCE OF APPEAL:
   COURT:                 Circuit
   COUNTY:                Columbia
   JUDGE:                 Alan J. White

JUSTICES:
   CONCURRED:             ABRAHAMSON, C.J., BRADLEY, J., concur. (Opinion
                          filed.)
     DISSENTED:
     NOT PARTICIPATING:


ATTORNEYS:


         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 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.




                                      2
                                                                                 2013 WI 66
                                                                         NOTICE
                                                          This opinion is subject to further
                                                          editing and modification.   The final
                                                          version will appear in the bound
                                                          volume of the official reports.
No.        2011AP2166
(L.C. No.       2010PA42PJ)

STATE OF WISCONSIN                                    :            IN SUPREME COURT

In re the Paternity of F. T. R.:



David J. Rosecky,                                                             FILED
                Petitioner-Appellant,                                    JUL 11, 2013
       v.                                                                   Diane M. Fremgen
                                                                         Clerk of Supreme Court
Monica M. Schissel,

                Respondent-Respondent.




       APPEAL from an order of the Columbia County Circuit Court,

Alan       J.    White,       Judge.       Reversed       and    cause      remanded       for

proceedings consistent with this opinion.



       ¶1       ANNETTE KINGSLAND ZIEGLER, J.                   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


       1
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
                                                                            No.      2011AP2166



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,
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                                                                     No.        2011AP2166



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.

                            I. FACTUAL BACKGROUND

     ¶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
                                           3
                                                                         No.    2011AP2166



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.




                                                4
                                                                No.   2011AP2166



     ¶10   Most importantly for this opinion, the PA contains the

parties' agreement as to parentage, legal custody, and physical

placement.2

     ¶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.

                       II. PROCEDURAL POSTURE

     ¶13   Shortly   after   F.T.R.       was   born,   the   Columbia   County

Circuit Court appointed the Roseckys as the temporary guardians


     2
       The agreement contains other provisions, including:
Monica's consent to serve as a traditional surrogate; the
procedure by which Monica would be inseminated; the Schissels'
acknowledgement   and   assumption   of   risk;  the   Roseckys'
acknowledgement and assumption of parental responsibility;
medical supervision, counseling, and carrier conduct relating to
the pregnancy; provisions for a medically-necessary abortion;
Cory's waiver of rights and responsibilities; the Roseckys'
agreement to pay enumerated expenses as a result of the
pregnancy; the parties' agreement if the pregnancy were to
result in a stillbirth or a miscarriage; the Schissels'
agreement to maintain health insurance; contingencies if one or
both of the Roseckys were to die; consequences of breach and
procedures for notice; conclusive presumptions; acknowledgement
of advice of counsel; severability; dispute resolution; and
jurisdiction, venue, and controlling law.

                                      5
                                                                     No.    2011AP2166



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

     3
       The appellate record does not contain original documents
relating to the guardianship action in Columbia County.
Documents in this record indicate that an order dated May 28,
2010, granted Monica two hours of placement with F.T.R. per
month.

                                           6
                                                                       No.    2011AP2166



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.

See Wis. 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.

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                                                                     No.     2011AP2166



      ¶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. Miller, filed her report, similarly concluding that

David should have full custody and placement, and Monica should

not have any placement.

      ¶18   On July 5 and 6, 2011, the court held a trial to

determine F.T.R.'s best interests with regard to custody and

placement under Wis. Stat. § 767.41.                  The court heard testimony

from David, Marcia, Monica, Cory, Dr. Huebner, Dr. Kenneth H.

Waldron (hired by the Roseckys to review Dr. Huebner's report),

and Dr. Patrick T. Kane (hired by the Schissels to recommend

possible steps to develop a healthy attachment between a parent

and a child).

      ¶19   Dr. Huebner testified that it was in F.T.R.'s best

interests to have full custody and placement with the Roseckys.

She   testified      that    F.T.R.     was    attached      to    Marcia,      and   to
displace    that     attachment       could    have    disastrous    consequences.

She testified that placement with Monica would be harmful to
F.T.R.   because     of     Monica's    desire    to    be   his    mother      and   to

replace Marcia,       which    would     be    confusing     for   F.T.R.       Monica
admitted that she referred to herself as "Mom" in interactions

with F.T.R. and that she was "seeking to have placement that
would allow me to act as his mother."                     Dr. Huebner testified

that the relationship between the Roseckys and the Schissels was

essentially dead; a fact to which all of the parties agreed.
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                                                                     No.        2011AP2166



She testified that     allowing       Monica      to   have    placement          in    the

current situation——which        Dr.    Huebner     characterized           as    "beyond

high conflict" even though the parties did not swear or yell at

each other——would have a negative effect on F.T.R.

     ¶20     Dr. Waldron testified that Dr. Huebner did use the

appropriate methodology in gathering data, making findings, and

incorporating social science research in her report.                            Further,

Dr. Waldron testified about disrupted secure detachment——where a

young child is separated from a caregiver to whom he or she has

formed an     attachment——and    the     consequences         thereof,      including

depression,     anxiety,   mental           health      problems,          behavioral

problems, delinquency, trouble maintaining long-term friendships

and relationships, and increased thoughts of suicide.

     ¶21     Dr. Kane testified that a child can form more than one

attachment, that a new attachment can be formed through a series

of increased contacts, but that he did not interview the parties

and did not have recommendations specific to this case.                                 Dr.

Kane's   discussion   assumed     that      the   contact      was   in     the        best
interests of the child.     Dr. Kane also discussed that a hostile

relationship between parents has negative effects on children,
and that Monica's desire to be F.T.R.'s mother could result in

anxiety and confusion for F.T.R.
     ¶22     Marcia, David, Monica, and Cory all testified about

the tense relationship between the families.                  From the Roseckys'
perspective, Monica offered to be a surrogate so the Roseckys

could start a family, Monica was not abiding by the terms of the

agreement,    and the Roseckys        agreed      to   use    Monica's      egg        only
                                        9
                                                                           No.    2011AP2166



after she reassured the Roseckys she could allow them to raise

the child.             From the Schissels' perspective, Monica was being

shut    out       and    was    not     able   to    visit    F.T.R.   through         social

interactions as she had imagined.                      A precise retelling of the

testimony at trial is not necessary for the legal analysis, but

it     suffices         to   say   that    the      parties    testified      about     many

instances         of    failed     communication,       hurt      feelings,      and   tense

interactions.

       ¶23    During David's testimony, the court refused to admit

the PA as an exhibit and stated that "it's not going to consider

it."      David's attorney, Steven W. Hayes, argued that the PA

contained a severability clause, that the court could sever any

provisions that it found offensive, and that the PA was relevant

to several factors in custody and placement under Wis. Stat.

§ 767.41(5).

       ¶24    On August 25, 2011, the circuit court awarded sole

custody and primary placement of F.T.R. to David and secondary

placement to Monica.                   The court awarded Monica six hours of
placement every other weekend until F.T.R. turned two (March

2012), and at that time, Monica was awarded an overnight stay
from Friday evening until Saturday evening every other weekend.

The court did not consider the PA in any way, but instead relied
solely       on    Wis.        Stat.     § 767.41     to      determine     custody      and

placement.               The     court    reasoned         that    under      Wis.     Stat.
§ 767.41(4)(b), both families were entitled to placement unless

"the court finds that physical placement with a parent would

endanger the child's physical, mental or emotional health."                               By
                                               10
                                                                     No.    2011AP2166



granting placement with Monica, the court rejected the expert

testimony and the guardian ad litem's opinion that the tension

between the parties and the separation from attachment figures

could     endanger       F.T.R.'s   mental      or    emotional      health:     "The

possibility that difficulties may occur and that allowing the

Schissels to play a role in the child's life is a risk.                           But

risks are a part of life."               The court rejected Dr. Huebner's

opinion that this case was "beyond high conflict," because high

conflict       cases are those      in   which      "the   parties    simply can't

resist the temptation to do anything and everything to subvert,

attack,        demean    and   literally      try    to    destroy    the     child's

relationship with the other parent."                  The court noted that the

contact between the families was generally civil, that it hoped

"cordial transitions can be accomplished and that cordiality may

develop into friendly transitions," and that F.T.R. would have

the benefit of five half siblings if Monica received placement.

        ¶25    On September 13, 2011, David filed a notice of appeal

of (1) the circuit court's February 8, 2011, ruling that the PA
was unenforceable, and (2) the circuit court's August 25, 2011,

order         granting     Monica   periods          of    physical        placement.
Additionally, on September 13, 2011, David filed a motion to

stay the circuit court's August 25, 2011, ruling on placement
pending appeal.          On October 6, 2011, the court of appeals denied

David's motion to stay pending appeal.
    ¶26        The parties and the guardian ad litem filed briefs in

the court of appeals.           On August 9, 2012, the court of appeals

certified to this court the question of "whether an agreement
                                         11
                                                                             No.    2011AP2166



for   the    traditional        surrogacy       and     adoption        of     a    child    is

enforceable."         The court noted that "Wisconsin currently does

not   have        legislative      or    common       law     that       addresses          the

enforceability of a surrogacy agreement."

      ¶27    On    September      27,    2012,     we    accepted         the      court     of

appeals' certification.

                             III. STANDARD OF REVIEW

      ¶28    The PA at issue is analyzed in terms of whether it is

a valid, enforceable contract.                   Where the material facts are

undisputed, the existence of a valid, enforceable contract is a

question of law, which we review de novo.                           See Schlosser v.

Allis-Chalmers        Corp.,      86     Wis. 2d 226,        244,        271       N.W.2d 879

(1978);     VanHierden       v.   Swelstad,       2010      WI     App    16,       ¶11,    323

Wis. 2d 267, 779 N.W.2d 441.

      ¶29    As for the custody and placement issue, the circuit

court typically has discretion to make a determination of what

is in a child's best interests.                   See Wis. Stat. § 767.41(5);

Jocius v. Jocius, 218 Wis. 2d 103, 110-11, 580 N.W.2d 708 (Ct.

App. 1998) (quoting Koeller v. Koeller, 195 Wis. 2d 660, 663-64,

536   N.W.2d 216      (Ct.    App.      1995);   Hollister         v.    Hollister,         173

Wis. 2d 413,       416,   496     N.W.2d 642      (Ct.      App.    1992).           We     will

sustain the circuit court's discretionary determination unless

it constitutes an erroneous exercise of discretion.                            Lubinski v.

Lubinski, 2008 WI App 151, ¶5, 314 Wis. 2d 395, 761 N.W.2d 676;

Bohms v. Bohms, 144 Wis. 2d 490, 496, 424 N.W.2d 408 (1988);

Barstad v. Frazier, 118 Wis. 2d 549, 554, 348 N.W.2d 479 (1984).

A reviewing court will sustain the circuit court's exercise of
                                           12
                                                                   No.     2011AP2166



discretion if it examined the relevant facts, applied a proper

standard of law, and came to a reasonable conclusion using a

demonstrated and rational process.                 See Loy v. Bunderson, 107

Wis. 2d 400,    414-15,         320    N.W.2d 175        (1982);       Bohms,        144

Wis. 2d at 496.

                                  IV. ANALYSIS

     ¶30    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

     ¶31    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.
     ¶32    Section     IV. A.        of    this     opinion     discusses           the

background of surrogacy, Section IV. B. discusses whether the
Wisconsin   Statutes     provide      guidance      to   our   analysis,       Section



     4
       Even though the TPR provisions in the PA are not
enforceable, the remaining portions of the PA can be enforced if
severing the unenforceable portion does not defeat the primary
purpose of the bargain. See Simenstad v. Hagen, 22 Wis. 2d 653,
662, 126 N.W.2d 529 (1964).

                                           13
                                                                      No.    2011AP2166



IV. C. discusses the enforceability of the PA, and Section V.

discusses the need for legislative action in this area.

                         A. Background on Surrogacy

       ¶33    Assisted    reproductive           technology   (ART)    has       created

ways    for     people     to     have      children      regardless        of    their

reproductive          capacity:        "ART,       in    particular         surrogacy

arrangements, forces us to confront deeply held beliefs about

what   makes    a   'mother'      or   a    'father,' . . . and       perhaps      most

fundamentally, what makes a 'family.'"                  Darra L. Hofman, "Mama's

Baby, Daddy's Maybe:" A State-By-State Survey of Surrogacy Laws

and Their Disparate Gender Impact, 35 Wm. Mitchell L. Rev. 449,

450 (2009).

       ¶34    In general terms, surrogacy "is the process by which a

woman makes a choice to become pregnant and then carry to full

term and deliver a baby who, she intends, will be raised by

someone      else."       Thomas       J.   Walsh,      Wisconsin's     Undeveloped

Surrogacy Law, Wisconsin Lawyer, Mar. 2012, at 16.                           See also

Black's Law Dictionary 1458 (7th ed. 1999) (defining "surrogate

mother" as "[a] woman who carries a child to term on behalf of

another woman and then assigns her parental rights to that woman

and the father").          This opinion will refer to the woman who




                                            14
                                                                                   No.    2011AP2166



carries the baby as the "surrogate."5                            An "intended parent" is

"an   individual,          married        or     unmarried,            who        manifests       the

intent . . . to         be    legally      bound          as    the    parent       of     a    child

resulting      from          assisted       or           collaborative            reproduction."

American      Bar       Association             Model          Act     Governing          Assisted

Reproductive Technology (ABA Model Act) § 102(19) (Feb. 2008).

The Roseckys are the intended parents of F.T.R.

      ¶35    There      are     two       broad          categories          of     surrogacies,

traditional       and   gestational,            but      there       are   many     permutations

within    those     categories.             In       a    traditional         surrogacy,         the

surrogate is the genetic mother of the child and is artificially

inseminated with the sperm of the intended father or a sperm

donor.      See Walsh, supra, at 16.                      In a gestational surrogacy,

the surrogate is not genetically related to the child; instead,

"sperm is taken from the father (or from a donor) and an egg is

taken from the mother (or from a donor), fertilization happens

outside     the     womb      (called      in vitro            fertilization),            and     the

fertilized        embryos      are       then     implanted           into        the    surrogate

mother's uterus."             Id.     The case before the court involves a

traditional       surrogacy,        as    Monica         was    artificially            inseminated

with David's sperm.

      5
       There are several terms for the woman who carries the
baby,    including   "surrogate,"   "gestational   mother,"  or
"gestational carrier."   See American Bar Association Model Act
Governing Assisted Reproductive Technology (ABA Model Act)
§ 102(16) (Feb. 2008) (defining "gestational carrier" as "an
adult woman, not an intended parent, who enters into a
gestational agreement to bear a child, whether or not she has
any genetic relationship to the resulting child").

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                                                                                No.   2011AP2166



       ¶36    Parties     contemplating          a    surrogacy          will    often    enter

into    a    surrogacy     agreement.            Id.        at    18.       This      agreement

typically      outlines     the     parties'          rights       and    responsibilities

throughout        the   surrogacy    process.              Common       provisions      include

contemplated        medical    procedures,                contingencies          in   case     of

medical      complications,         compensation,                 parental       rights       and

responsibilities, choice of law, and the parties' intent.

       ¶37   The ability to create a family using ART has seemingly

outpaced      legislative      responses             to     the     legal       questions     it

presents, especially the determination of parentage.                                  See Mark
Hansen,      As    Surrogacy      Becomes        More       Popular,        Legal      Problems

Proliferate, ABA Journal, Mar. 2011, at 54.                          Historically, there

have been no significant questions of maternity: the woman who

gave birth to a child was the child's mother.                               See Charles P.

Kindregan, Jr., Considering Mom: Maternity and the Model Act

Governing Assisted Reproductive Technology, 17 Am. U. J. Gender

Soc. Pol'y & L. 601, 605 (2009).                      Indeed, Monica is the mother

of F.T.R. and has the commensurate parental rights.                                   See Wis.

Stat. § 48.02(13) (defining "parent" as "a biological parent, a

husband who has consented to the artificial insemination of his

wife [], or a parent by adoption").                       Conversely, paternity could

be established in multiple ways.                  See, e.g., Wis. Stat. § 767.89

(paternity judgment); § 767.84(1m) (rebuttable presumption when

genetic testing shows probability of paternity of 99 percent or

greater);     § 767.805       (voluntary         acknowledgment             of    paternity);

§ 891.41     (presumption      of    paternity            based     on    marriage       of   the

parties).         With surrogacy, relevant parties could include the
                                            16
                                                                               No.    2011AP2166



genetic mother, genetic father, intended parents, the surrogate,

and the surrogate's husband.

     ¶38         The    vast    majority        of    states    do     not   have     statutory

provisions addressing surrogacy.6                      Many courts have encountered

issues surrounding surrogacy, and the cases often involve ad hoc

procedures         attempting       to    effectuate          the    parties'        intent    by

analyzing surrogacy issues under the state's statutes for TPR,

adoption, custody and placement, and the like.                                 See generally

Rachel M. Kane, Cause of Action for Determination of Status as

Legal       or   Natural       Parents     of    Children       Borne     by   Surrogate        or

Gestational            Carrier,    48     COA 2d       687     (Jun.    2011).         At     oral

argument, counsel for the Roseckys explained that surrogacy is a

reality in Wisconsin and that Wisconsin attorneys attempt to

effectuate the parties' intent in a surrogacy.                                 Clearly, when

the parties follow the agreement and everything goes as planned,

the court's involvement is quite limited.                              For example, if the

surrogate agrees to terminate her parental rights, the intended

parents can adopt the child.                    See Wis. Stat. § 48.41 (voluntary

consent to TPR); Wis. Stat. § 48.82 (persons eligible to adopt a

minor       child);      Wis.     Stat.   § 48.91       (if     prerequisites         are     met,

court shall grant adoption if it is in the best interests of the

child).          A court will often adjudicate the intended biological


        6
       Darra L. Hofman, "Mama's Baby, Daddy's Maybe:" A State-By-
State Survey of Surrogacy Laws and Their Disparate Gender
Impact, 35 Wm. Mitchell L. Rev. 449, 454-60 (2009) (state-by-
state survey of surrogacy laws); Brief of Amicus Curiae American
Academy of Adoption Attorneys & American Academy of Assisted
Reproductive Technology Attorneys, Appendix 001-012 (same).

                                                 17
                                                                   No.       2011AP2166



parent   as    the    biological     parent   of     a    child,   as       David    was

adjudicated to be F.T.R.'s father.                 The adjudicated parent may

then seek custody and placement of the child.                  Counsel for David

also noted that some Wisconsin circuit courts have used Wis.

Stat. § 69.14(1)(h) to make a determination of parentage for the

intended mother and intended father.7                When the parties do not

agree, however, the courts are forced to confront issues of the

most difficult nature.

     ¶39      Given this general background, we turn to Wisconsin

law for guidance in answering whether the PA is enforceable.

                                 B. Wisconsin Law

     ¶40      The    Wisconsin    Statutes    do    not    provide      a    specific

answer as to whether the PA is enforceable, and they do not

contain a statement of public policy against enforcement.

     ¶41      One    statutory    provision   seems       to   contemplate          some

level of relief for intended parents:

         If the registrant of a birth certificate under
    this   section   is  born  to   a   surrogate   mother,
    information about the surrogate mother shall be
    entered on the birth certificate and the information
    about the father shall be omitted from the birth
    certificate.   If a court determines parental rights
    over the registrant, the clerk of court shall report
    the court's determination to the state registrar
    . . . . Upon   receipt  of  the   report,   the   state
    registrar shall prepare and register a new birth

     7
       In this unique case neither of the common routes that
David's attorney explained provided a complete remedy for the
parties because the two biological parents were contesting
custody   and   placement.     Thus,   the parties  instituted
guardianship and custody and placement proceedings.  See Wis.
Stat. ch. 54; Wis. Stat. § 767.41(1)(b).

                                        18
                                                                             No.    2011AP2166


       certificate for the registrant under s. 69.15(6) and
       send a copy of the new certificate to the local
       registrar who filed the original certificate.     Upon
       receipt of the copy, the local registrar shall destroy
       his or her copy of the replaced certificate and file
       the new certificate.
Wis.   Stat.       § 69.14(1)(h).          "Registrant"         is    defined        as     "the

subject of a certificate or declaration which a local registrar

has accepted for filing              in    the   system    of        vital    statistics."

Wis. Stat. § 69.01(19).            This section seems to contemplate that

a court may make a determination of parental rights to someone

other than the "surrogate mother."

       ¶42    Wisconsin      Stat.      § 891.40     provides         that     if     certain

procedures are followed when a woman is inseminated with sperm

from    a    sperm     donor,     the     woman's    husband          at     the     time     of

conception "shall be the natural father of a child conceived."

Wis. Stat. § 891.40(1).            Further, the statute provides that the

sperm donor "bears no liability for the support of the child and

has no parental rights with regard to the child."                                  Wis. Stat.

§ 891.40(2).

       ¶43    The     Wisconsin      Statutes       also       govern        more     typical
custody      and    placement     situations,       but        the    statutes        do     not

specifically         contemplate     the     use    of     a    surrogacy           parenting

agreement in the adjudication of custody and placement disputes.

See Wis. Stat. ch. 767.                 The statutes specify that a circuit

court shall make custody and placement determinations in certain

enumerated         actions   affecting       the    family.            See     Wis.       Stat.

§ 767.41(1)(b)          (annulment,          divorce,            legal         separation,

adjudicated paternity, custody, compelled support, acknowledged


                                            19
                                                                  No.    2011AP2166



paternity).       Surrogacy is not one of those enumerated actions.

In a more typical custody and placement determination, where

there is no PA, the court "shall consider all facts relevant to

the best interest of the child."             Wis. Stat. § 767.41(5).             The

statute enumerates 16 factors that the court shall consider.

Id.   As the circuit court noted, many of the statutory factors

are difficult to apply to the facts surrounding a surrogacy:

           One of the striking things to the court in this
      case   is   how   many  factors   in   § 767.41    don't
      apply. . . . The interaction of each parent has wholly
      been affected by [Monica's] relinquishment of the
      child and the orders of this court and earlier
      agreements of the parties. The amount and quality of
      time with the parent.     Same analysis.    The child's
      adjustment to home.    Same analysis.     The need for
      regularly   occurring   and   meaningful   periods    of
      placement.   So far, same analysis.   In many respects
      it doesn't quite seem to fit into the usual analysis
      in family court. That is because of course this case
      is so unusual.
      ¶44   Adoption and termination of parental rights are also

governed    by    the   Wisconsin     Statutes,    but    do    not     appear    to

contemplate the issues surrounding a surrogacy.                       Adoption is

available when both of the parents are deceased, the parental

rights of both parents have been terminated, the parental rights

of one parent have been terminated and the stepparent seeks to

adopt, or the parental rights of one parent have been terminated

and   the   other     parent   is   deceased.     See    Wis.    Stat.   § 48.81.

Parental rights can be terminated voluntarily, see Wis. Stat.

§ 48.41, or involuntarily if grounds for the termination exist.

See § 48.415 (grounds include abandonment, continuing need of

protection       or   services,     continuing    parental      disability,      and

                                        20
                                                                       No.     2011AP2166



abuse).     The TPR-and-adoption scheme does not provide relief for

a   party   in    Marcia's       circumstance:      she   is    the     wife    of    the

biological father, she currently has no parental rights over the

child, the surrogate/egg donor refuses to voluntarily terminate

her parental rights, and there are no facts in the record to

indicate      that   there       would    be   grounds         to     terminate       the

surrogate's parental rights.

      ¶45    Further,      adoption       is   distinctly            different       than

surrogacy.        Adoption often occurs in circumstances where the

parent cannot or will not care for the child.                   Substantial court

oversight is necessary in a voluntary-TPR-and-adoption scenario

to ensure that the biological parents have consented to the TPR

after being informed         of the       consequences     thereof.            See   Wis.

Stat. § 48.41.        In contrast, surrogacies are planned, and the

intended parents want the child and are willing and able to care

for the child.          Additionally, the Wisconsin Statutes prohibit

the proposed adoptive parents from making certain payments to

the   birth      mother,   for     fear   of   causing     undue       influence       or

encouraging "baby-selling."           See Wis. Stat. § 48.913(4).                On the

other hand, surrogacies may not present the same concerns for

undue influence because the surrogate is often a good friend or

family member of the intended parents, or, if the parties use a

surrogacy     agency,      the    surrogate    is    likely         screened    by    the

agency.     See Hansen, supra, at 56-57 (reporting that a reputable

surrogacy agency screens surrogates and "manage[s] all of the

medical,      psychological,         legal,    financial,            insurance,       and

administrative details that go along with such an arrangement").
                                          21
                                                            No.   2011AP2166



      ¶46    In this case, Monica was presumed to be the mother of

F.T.R. because she gave birth to him, David was adjudicated as

the father of F.T.R., the circuit court determined that the PA

was   unenforceable,    and    Monica    is   unwilling   to   voluntarily

terminate    her   parental   rights.     Under   the   current   statutory

schemes, Marcia is left without any parental rights unless and

until Monica's parental rights are terminated and Marcia adopts

F.T.R.:

           It is clear that the more complex surrogacy
      relationships do not easily fit into Wisconsin's
      statutory scheme.     The statutes do not refer to
      compensation of surrogate mothers or sperm and egg
      donors.   No provisions address the interests of the
      child created in this process or by in vitro
      fertilization.     Thus, parties seeking relief in
      Wisconsin courts are provided no guarantee that relief
      can be had.   Further, circuit court judges attempting
      to determine if relief is appropriate are given no
      guidance on how to apportion that relief.
Walsh, supra, at 19.      Considering the facts of this case, none

of the statutory schemes neatly answer the multiple legal issues

presented.
      ¶47   In summary, the Wisconsin Statutes do not provide a

specific answer as to whether the PA is enforceable, and they do

not contain a statement of public policy against enforcement.

                      C. Enforceability of the PA

      ¶48   Having determined that the Wisconsin Statutes do not

provide a specific answer regarding the enforceability of the

PA, we turn to contract law.        As such, we will analyze whether

this contract satisfies the elements of a contract, and whether



                                    22
                                                                             No.      2011AP2166



there are any defenses that render this contract unenforceable.

First, however, we address the parties' arguments.

                               1. Parties Arguments

       ¶49   David makes several arguments as to why the PA should

be enforceable.         First, David argues that the PA is enforceable

under contract law and that public policy does not invalidate

the PA.      Indeed, David argues that public policy supports the

enforcement       of     the       PA,   as       it       provides        stability         and

predictability         for   children     and       for    parties     to     surrogacies.

David looks to case law and statutes from other jurisdictions

that have enforced surrogacy contracts or otherwise concluded

that the intended parents are the legal parents of the child.

David alternatively argues that the PA should be enforced under

equitable       estoppel     because     the      Roseckys      relied        on      Monica's

representations that she would be able to separate herself from

the    child,    and    they    would     not       have    gone     through          with   the

surrogacy but for those representations.

       ¶50   David further argues that the circuit court failed to
consider the severability clause in the PA when addressing the

TPR    provisions.           The     circuit      court      framed        the     issue      of
enforceability         as    "whether         the      court        can,     under          these

circumstances,      force      or    require      the      mother    to     terminate        her

parental     rights."          However,       David        argues     that       it    is     not

necessary to terminate Monica's parental rights to effectuate

the parties' overall intent——for the Roseckys to be the parents

of    F.T.R., with full            custody    and      placement.          Therefore,        any


                                             23
                                                                            No.     2011AP2166



offending portion of the PA can be severed, and the remaining

portions can be used to enforce the parties' intent.

        ¶51    Finally, David argues that, at the very least, the PA

should have           been received        into      evidence      and   considered as a

factor in custody and placement.                        David argues that the PA is

relevant to several factors under Wis. Stat. § 767.41(5)(am),

especially subdivision              1.    because       the   PA    is   evidence     of   the

"wishes of the child's parent or parents" or is a "legal custody

or physical placement proposal submitted to the court."

        ¶52    F.T.R.'s guardian ad litem on appeal, Todd J. Hepler,

argues        that,     absent    some      showing        of      unconscionability,       a

surrogacy contract should be presumptively enforceable as long

as it is in the best interests of the child.                              The guardian ad

litem     argues       that   the        best    way     to     promote    stability       and

predictability is to presumptively enforce surrogacy agreements:

            In   the   case   of   a  last-minute   surrogacy
       repudiation, once a child is born, the parties will be
       forced [to] instigate an immediate whirlwind of
       litigation concerning placement and custody of the
       child and the newborn's first days, weeks, months and
       years of life will be clouded by the atmosphere of
       tension, anxiety and angst incumbent with bitter
       litigation of this sort.
The guardian ad litem looks to the legislature's pronouncement

that "instability and impermanence in family relationships are

contrary to the welfare of children."                     Wis. Stat. § 48.01(1)(a).

       ¶53     Monica looks to a myriad of Wisconsin Statutes and

cases to conclude that the PA cannot be enforceable.                              She argues

that    the     PA     violates     Wis.        Stat.    § 48.913,        which    prohibits


                                                24
                                                                   No.   2011AP2166



certain payments in an adoption, because the PA provides illegal

payments to Monica and Cory.               She argues that parents cannot

contract     to    create   parental       rights8   and    that    custody    and

placement agreements are not binding on the parties until they

are approved by a court.9              Wis. Stat. § 767.34(1) (requiring

court approval to stipulations for "legal custody and physical

placement"    in    "an   annulment,      divorce,   or    legal   separation").

Monica further argues that her refusal to follow through with

the PA precludes its enforcement.               See Hottenroth v. Hetsko,

2006 WI App 249, ¶13, 298 Wis. 2d 200, 727 N.W.2d 38 (parties to

a divorce "are free to withdraw from a stipulation until it is

incorporated       into   the   divorce    judgment")      (internal     quotation

omitted).     She argues that custody and placement orders cannot

be "fixe[d]" such that there can be no modification of the order

in the future and cannot be contingent on a future event.                      See

Jocius, 218 Wis. 2d at 118 ("[T]he statute permitting a trial

     8
       See Sporleder v. Hermes, 162 Wis. 2d 1002, 471 N.W.2d 202
(1991), overruled by Holtzman v. Knott, 193 Wis. 2d 649, 690-91,
533 N.W.2d 419 (1995). Though the contract in Holtzman did not
attempt to transfer custody, the court stated that "[n]othing in
ch. 767 expressly prohibits contracts relating to visitation"
and that "public policy considerations do not prohibit a court
from relying on its equitable powers to grant visitation apart
from [sec. 767.41] on the basis of a co-parenting agreement
between a biological parent and another when visitation is in a
child's best interest. We overrule any language in [Sporleder]
to the contrary." 193 Wis. 2d at 690-91.
     9
       By its terms, Wis. Stat. § 767.34 is applicable only to
actions for "an annulment, divorce, or legal separation."
Monica argues that the requirement in § 767.34——that a court
approve the parties' stipulation as to custody and placement——is
applicable to paternity actions by § 767.89(3)(b).

                                          25
                                                                                        No.      2011AP2166



court to deny a parent physical placement does not permit the

trial court to make a prospective order prohibiting a parent

from requesting a change in physical placement in the future.");

Culligan v. Cindric, 2003 WI App 180, ¶13, 266 Wis. 2d 534, 669

N.W.2d 175 ("It is well settled that a circuit court lacks the

statutory authority at divorce to order a change of physical

placement      that        is    both      prospective             and          contingent          on     the

occurrence of some anticipated event.").

       ¶54    Monica           argues      that      the      PA       violates            Wis.          Stat.

§ 767.41(5)(am) because it precludes a court from considering

all statutory factors in a custody and placement determination.

Monica argues that enforcement of the PA violates Wis. Stat.

§ 767.41(4)(b),            which        provides        that       a       court        can      preclude

placement      with        a     parent       only      after          a    hearing           and        after

determining         that       the   placement          would       "endanger              the      child's

physical, mental or emotional health."                                 Finally, Monica argues

that   blind        enforcement          of    the      PA     violates              the   overarching

principle      of    custody         and      placement        determinations,                   that      the

child's best interests must dictate any agreement or order.                                                See
Wis. Stat. § 767.41(5) ("[T]he court shall consider all facts

relevant to the best interest of the child.").

                                        2. Contract Law

       ¶55    Aside        from      the       termination                 of        parental        rights

provisions, we conclude the PA is a valid, enforceable contract

unless   enforcement            is contrary            to    the    best         interests          of the

F.T.R.       While the traditional defenses to the enforcement of a

contract      apply,       none      have      been     presented               to    render        the     PA
                                                  26
                                                                            No.     2011AP2166



unenforceable.       We do not accept David's argument that the PA is

wholly enforceable.          In fact, the portions of the PA calling for

the termination of Monica's parental rights are unenforceable.

We also do not accept Monica's assertion that the PA is wholly

unenforceable.       The main problem with Monica's arguments is that

they are based on law that was never intended to govern the

various     issues   presented          in    a    surrogacy.         The   law     does    not

specifically       address        the        legal      issues       presented      in     this

surrogacy dispute.

      ¶56    Despite       this   being        a     unique     contract,      we    turn    to

contract     law     for     guidance.              "Wisconsin        courts      have     long

recognized     the    importance         of        freedom      of   contract       and    have

endeavored to protect the right to contract."                             Watts v. Watts,

137   Wis. 2d 506,         521,    405        N.W.2d 303        (1987).        A    founding

principle of freedom of contract is that "individuals should

have the power to govern their own affairs without governmental

interference."         Merten      v.    Nathan,          108   Wis. 2d 205,        211,    321

N.W.2d 173     (1982).            Courts           protect      parties'       "justifiable

expectations and the security of transactions" by "ensuring that

the promises will be performed."                    Id.

      ¶57    The elements of a contract are offer, acceptance, and

consideration.             See    Goossen          v.     Estate     of   Standaert,        189

Wis. 2d 237, 247, 525 N.W.2d 314 (Ct. App. 1994); Michael B.

Apfeld et al., Contract Law in Wisconsin § 2.1 (3d ed. 2012).

Defenses      to      the        enforcement              of    a     contract       include

misrepresentation, mistake, illegality, unconscionability, void


                                               27
                                                                              No.     2011AP2166



against public policy, duress, undue influence, and incapacity.

See Apfeld et al., supra, at ch. 3.

       ¶58    Even      if    a    contract    contains       an   illegal          provision,

"Wisconsin has long accepted that a portion of a contract may be

severable."        Markwardt v. Zurich Am. Ins. Co., 2006 WI App 200,

¶30, 296 Wis. 2d 512, 724 N.W.2d 669.                         A severability clause,

though       not    controlling,        is     entitled       to       great        weight   in

determining        if    the       remaining       portions       of     a    contract       are

severable.         See Town of Clearfield v. Cushman, 150 Wis. 2d 10,
24, 440 N.W.2d 777 (1989) (internal quotation omitted).                                   If a

contract contains an illegal clause, the remaining portions of

the contract can be enforced if severing the illegal portions

does    not    defeat        the    primary    purpose       of    the       bargain.        See

Simenstad v. Hagen, 22 Wis. 2d 653, 662, 126 N.W.2d 529 (1964);

Baierl v. McTaggart, 2001 WI 107, ¶¶15, 18, 245 Wis. 2d 632, 629

N.W.2d 277.

       ¶59    In     this     case,    there       is   no    question        that     the    PA

contains the essential elements of a contract.                               Monica made an

offer to the Roseckys that she would act as a surrogate.                                     The

Roseckys accepted Monica's offer.                  Consideration was provided.

       ¶60    The unique nature of this contract, however, cannot be

understated.10          Creating a child is not something that one can

       10
       The guardian ad litem's brief summarizes why surrogacies
are so unique:

       [T]his case exists at the intersection of several
       distinct and historically different areas of law and
       stands at the crossroads of ever-evolving artificial
       reproduction technology.

                                              28
                                                                             No.        2011AP2166



decide to do one day and decide not to do the next.                                      Typical

damages cannot make one whole.                      Nonetheless, this is a contract

and we conclude that it is largely enforceable.

        ¶61        Specifically,         we        conclude      that      the      interests

supporting enforcement of the PA are more compelling than the

interests          against       enforcement.             Enforcement        of     surrogacy

agreements          promotes          stability       and       permanence         in     family

relationships because it allows the intended parents to plan for

the arrival of their child, reinforces the expectations of all

parties       to    the    agreement,        and     reduces    contentious        litigation

that could drag on for the first several years of the child's

life.

     ¶62       We do not hold this opinion alone; the legislature has

manifested          its    intent      in     the     children's        code,     wherein      it

concluded          that    the    best      interests     of    the     child     are     always

paramount.           See       Wis.   Stat.    § 48.01.          See     also     § 767.41(5)

(stating that in custody and placement determinations, the court

considers          "all    facts      relevant       to   the    best    interest        of   the

child"); § 54.15(1) (stating that in selection of a guardian for

a proposed ward, the "best interests of the proposed ward shall

control"); § 938.01(2)(f) (stating that in the Juvenile Justice

Code, the court considers "each juvenile's best interest" in

responding          to    "a     juvenile      offender's        needs     for      care      and

             The most critical fact that distinguishes this
        case from others is that [F.T.R.] was created so that
        the Roseckys could have a child of their own.     This
        crucial fact distinguishes this case from an adoption,
        third-party placement, paternity or divorce case.

                                                29
                                                                        No.    2011AP2166



treatment").     Furthermore, the legislature has legislated that

"instability     and   impermanence        in        family     relationships         are

contrary to the welfare of children."                Wis. Stat. § 48.01(1)(a).

     ¶63    According to the expert testimony in this case, social

science research also supports the conclusion that permanency

and stability promote child welfare, whereas being exposed to

contentious family relationships, an inevitable consequence of

litigation, is harmful.        As Dr. Waldron testified: "[O]ut of

over 2,000 studies that have been done . . . where there are

separate caregivers, . . . in every single one . . . the higher

the level of tension and conflict, the more detrimental it is to

kids. . . . [T]hat     is    the     number      one        predictor         for   child

adjustment over time, []           whether      or    not     there's     tension     and

conflict between caregivers."          Dr. Huebner also testified that,

according   to   research,   the     tension         between    the     Roseckys      and

Schissels could be harmful to F.T.R.

     ¶64    We find no public policy statement contrary to the

enforcement of the PA in the Wisconsin Statutes or in Wisconsin
cases.11

     11
       To support their public policy arguments, the Roseckys,
the Schissels, and the guardian ad litem point to cases and
statutes from other jurisdictions.   While it is true that many
other jurisdictions have examined surrogacy issues, there is no
clear majority rule:

          The vast majority of states are silent or near
     silent on the issues of whether, when, and how
     surrogacy   agreements  are  enforceable,  void,   or
     voidable.   Of those states that do have laws on the
     books regarding such agreements, the responses range
     from relying heavily on the Uniform Parentage Act or
     party intent to outright bans or even criminalization
                                      30
                                                                No.      2011AP2166



      ¶65   The portions of the PA requiring Monica to terminate

her   parental    rights,   however,      are   not   enforceable     under    the

language of the existing statutes.                The PA stated that "[t]he

parties will cooperate fully in any parentage proceedings to

determine [the Roseckys] as [C]hild's legal parents, or in any

other similar legal proceedings, including but not limited to

termination      of   parental   rights     and    adoption."       It    further

stated:

           The parties intend to participate voluntarily in
      any legal proceedings necessary to have [the Roseckys]
      determined to be Child's legal parents . . . . It is
      the intent of the parties that regardless of any
      circumstances that may arise in the future, both


      of surrogacy. In many of the states that are 'silent'
      on surrogacy, bills have been shot back-and-forth
      through the legislature but come to naught.

Hofman, supra, at 454.     See also Mark Hansen, As Surrogacy
Becomes More Popular, Legal Problems Proliferate, ABA Journal,
Mar. 2011, at 55;     Thomas J. Walsh, Wisconsin's Undeveloped
Surrogacy Law, Wisconsin Lawyer, Mar. 2012, at 20. Case law in
this area is similarly scattered. See, e.g., Raftopol v. Ramey,
12 A.3d 783, 793 (Conn. 2011) (concluding that Connecticut
Statute, which governs birth certificates when birth is subject
to a surrogacy agreement, "allows an intended parent who is a
party to a valid [surrogacy] agreement to become a parent
without first adopting the children, without respect to that
intended   parent's  genetic   relationship  to   the  children"
(emphasis omitted)); Johnson v. Calvert, 851 P.2d 776, 782 (Cal.
1993) (concluding that when the intended mother/egg donor and
the gestational carrier had equal claims to maternity under
California law, "she who intended to procreate the child——that
is, she who intended to bring about the birth of a child that
she intended to raise as her own——is the natural mother under
California law"); Matter of Baby M., 537 A.2d 1227, 1246-50
(N.J. 1988) (concluding that enforcement of a traditional
surrogacy agreement violated various statements of public
policy).

                                       31
                                                                      No.     2011AP2166


      [Marcia] and [David] shall be the legal parents of
      Child.    The parties agree to sign all necessary
      documents and attend any scheduled court hearings
      either prior to or after Child's birth to achieve
      these goals.
As the circuit court correctly noted, the portions of the PA

requiring     a voluntary     TPR    do   not   comply     with      the    procedural

safeguards set forth in Wis. Stat. § 48.41 because Monica would

not   consent    to    the   TPR    and    there   is    no    legal        basis   for

involuntary termination.           See Wis. Stat. § 48.415.            As a result,

the TPR provisions of the PA are unenforceable.                             That fact,

however, does not end the analysis.

      ¶66    We further conclude that the offending TPR provisions

in the PA can be severed from the remainder of the contract

without defeating the primary purpose of the agreement.                         The PA

addresses severability:

           In the event any of the provisions of this
      Agreement are deemed to be invalid or unenforceable,
      such provisions will be deemed severable from the
      remainder of this Agreement and will not cause the
      invalidity or unenforceability of the remainder of
      this Agreement.    Consistent with the provisions of
      this paragraph, if any provision is deemed invalid due
      to its scope or breadth, such provision will be deemed
      valid to the extent of the scope or breadth permitted
      by law.
Though a severability clause itself is not controlling, it is

entitled to great weight in determining whether the remainder of

a contract is enforceable.           See Town of Clearfield, 150 Wis. 2d

at 24.      The primary purpose of this agreement is to ensure that
the Roseckys will be the parents of F.T.R. and will have custody

and   placement.       The   PA    contains     provisions      for    custody       and
placement:      "The   parties      believe     strongly      that    Child's       best

                                          32
                                                                             No.   2011AP2166



interests        will   be   served      by    being      in   [the    Roseckys']        legal

custody and physical placement, as it is necessary for Child to

regard     [the     Roseckys]       as   the       sole    legal      parents      and   [the

Roseckys'] home as the sole parental home."                           The purpose of the

PA   can    be    carried    out,     after     severing       the     TPR   portions,     by

enforcing the custody and placement provisions of the PA.                                 See

Simenstad, 22 Wis. 2d at 662.

      ¶67    As to the remaining portions of the PA, the current

court record does not support any defense to the enforcement of

the contract so as to render it unenforceable.                               There are no

facts in the record to indicate, nor does Monica argue, that the

contract should be void or voidable due to misrepresentation,

mistake, duress, undue influence, or incapacity.                             See Apfeld et
al., supra, ch. 3.           Instead, the facts in the record appear to

establish that the contract was entered into voluntarily and was

well-planned, negotiated, and carefully executed.                              The circuit

court made findings about the PA:

      The   contract,    on              its        face,      is       clear      and
      unambiguous. . . .

           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 . . . .


                                              33
                                                                           No.     2011AP2166



Monica offered, not once but twice, to act as a surrogate for

the    Roseckys.           Both    the    Roseckys        and     the     Schissels      had

independent counsel, who assisted in drafting and revising the

parties' agreement.            The parties negotiated the terms of the

agreement.         When      the   Roseckys       raised        concerns    about      using

Monica's egg, for fear that she would not be able to separate

herself from the child, Monica reassured the Roseckys that she

could separate herself from the child.                          Monica testified that

she understood all of the terms of the contract and that she

simply changed her mind as to the terms.

       ¶68    Instead of arguing that the contract is void due to

duress, mistake, or similar reasons, Monica argues that the PA

is    void   as    against    public      policy.         The    essence    of     Monica's

public    policy     argument      is    that    a   contract      cannot        cut   off   a

biological parent from his or her child, and any contract that

purports      to   do   so    violates     a     myriad    of     cases    and     statutes

relating to divorce, custody, placement, adoption, and similar

areas.       A contract will not be enforced if it violates public
policy.       Watts, 137 Wis. 2d at 521.                   A court may declare a

contract void on public policy grounds only if it determines,

after weighing the interests, that the interests in enforcing

the    contract      are     clearly      outweighed        by     the     interests         in

upholding      the      policy     that    the       contract       violates.           Id.;

Restatement (Second) of Contracts § 178 (1981).                            Public policy

may be expressed by a statute, regulation, or judicial opinion.

See N. States Power Co. v. Nat'l Gas Co., Inc., 2000 WI App 30,


                                            34
                                                                                No.   2011AP2166



¶8, 232 Wis. 2d 541, 606 N.W.2d 613.                         For the reasons stated

above, we reject Monica's public policy arguments.

      ¶69    In summary, though the TPR portions of the PA cannot

be enforced under Chapter                48    of    the    Wisconsin       Statutes,       the

remainder of the PA is an enforceable contract.                                  No Wisconsin

Statute or case contains a specific statement of public policy

contrary    to    the       enforcement       of    this    PA.       We    conclude       that

enforcement       of     surrogacy       agreements         promotes        stability       and

permanence       in     family      relationships           because        it     allows    the

intended    parents         to    plan   for       the   arrival      of        their    child,

reinforces the expectations of all parties to the agreement, and

reduces contentious litigation that could drag on for the first

several years of the child's life.                       Aside from the termination

of parental rights provisions in the PA at issue, the PA is a

valid, enforceable contract unless enforcement is contrary to

the best interests of F.T.R.                   We turn to consider the circuit

court action concerning custody and placement.

                                     3. Application
      ¶70   The        circuit      court      awarded        primary           custody     and

placement to David and secondary placement to Monica.                                   It did
so, however, without consideration of the PA.                          We 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.
      ¶71   In custody and placement determinations, the circuit

court has discretion to make a determination of what is in a

child's best interests.              See Wis. Stat. § 767.41(5); Jocius, 218
                                              35
                                                                       No.       2011AP2166



Wis. 2d at    110-11;        Hollister,     173   Wis. 2d at      416.           We   will

sustain the circuit court's discretionary determination unless

it   constitutes       an    erroneous      exercise    of   discretion.               See

Lubinsky, 314 Wis. 2d 395, ¶5; Bohms, 144 Wis. 2d at 497.

     ¶72     Because        we   conclude      that    the   PA    is        a     valid,

enforceable contract, the circuit court's exclusion of the PA

and decision to render a custody and placement order without

consideration of the PA constituted an erroneous exercise of

discretion.12      Id., at 496.           We therefore reverse the circuit
court's    order   and      remand for      a determination       of     custody       and

placement consistent with this opinion.

                      V. POTENTIAL LEGISLATIVE ACTION


     12
       The PA contains several provisions on the custody and
placement of the child:

     [The Roseckys] will have physical placement of Child
     immediately upon Child's birth . . . . [The Schissels]
     waive any and all claims to . . . custody, visitation,
     and physical placement of Child . . . . The parties
     believe strongly that Child's best interests will be
     served by being in [the Roseckys'] legal custody and
     physical placement, as it is necessary for Child to
     regard [the Roseckys] as the sole legal parents and
     [the Roseckys'] home as the sole parental home.

            . . . .

     . . .It is in Child's best interests that legal
     custody be with [the Roseckys] immediately upon
     Child's birth, with no child support to be paid by
     [the Schissels], that physical placement be with [the
     Roseckys] upon Child's release from the hospital, and
     that placement or visitation with [the Schissels] be
     denied, as the parties agree that Child should view
     [the Roseckys] as the sole legal parents and [the
     Roseckys'] home as the sole parental home.

                                          36
                                                                   No.   2011AP2166



        ¶73     We   respectfully     urge    the    legislature    to   consider

enacting        legislation     regarding     surrogacy.13         Surrogacy     is

currently a reality in our Wisconsin court system.                   Legislation

could        "address   surrogacy    agreements     to   ensure   that   when   the

surrogacy process is used, the courts and the parties understand

the expectations and limitations under Wisconsin law."14                   Walsh,

supra, at 56.

                                    VI. CONCLUSION

        ¶74     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.

     ¶75        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.

        13
       Assisted reproductive technology has turned "the science
of making babies into a $3 billion-a-year industry."      Hansen,
supra, at 54. Though reliable data is scarce on the number of
surrogacies that occur every year, one account estimates that
about 22,000 babies have been born using surrogacy in the United
States since the mid-1970s.      Id.    Anecdotal evidence from
attorneys practicing in this area suggests that the number may
be much higher.   Id. (noting a California surrogacy attorney's
account that her office handles about 150 surrogacies a year).
        14
       See, e.g., Raftopol, 12 A.3d at 801-03 (calling for
legislative guidance and listing a myriad of legal issues
presented by surrogacy); ABA Model Act (Feb. 2008); Uniform
Parentage Act (2002); 750 Ill. Comp. Stat. Ann. § 47/1-47/75
(West 2012) ("Illinois Gestational Surrogacy Act").

                                         37
                                                          No.     2011AP2166



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.

     By   the     Court.—Order   reversed   and   cause   remanded      for

proceedings consistent with this opinion.




                                   38
                                                             No.   2011AP2166.ssa


     ¶76     SHIRLEY   S.   ABRAHAMSON,     C.J.     (concurring)       I    too

would remand the matter to the circuit court.               I would, however,

instruct the circuit court to follow the legislative directive

in Wis. Stat. § 767.41(5)(am) for deciding the legal custody and

physical placement dispute in the present case.

     ¶77   I do not join the majority opinion because I disagree

with the majority opinion's authorization of people to contract

out of the State's traditional, statutory oversight role in the

protection of children.

     ¶78   Courts should not sacrifice statutes or public policy

considerations on the altar of freedom of contract:

    There are, in a civilized society, some things that
    money cannot buy.    In America, we decided long ago
    that merely because conduct purchased by money was
    "voluntary" did not mean that it was good or beyond
    regulation and prohibition.1
    ¶79    I write separately for two reasons:

    ¶80    First, although      I    conclude      that   surrogacy   contracts

are not per se void as a matter of law in Wisconsin, I caution

that the provisions of these contracts demand a court's careful

attention.     Courts must be alert to the terms of a surrogacy

contract no matter how the parties title the contract.                      In the

present case, the parties decided to call the surrogacy contract

a "Parentage Agreement."

     ¶81   A surrogacy contract is no less than a contract that

governs    bodily      intrusions,    the    use     of   human    bodies      for



     1
       Matter of Baby M., 537 A.2d 1227, 1249 (N.J. 1988) (citing
West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)).

                                       1
                                                             No.   2011AP2166.ssa


altruistic or commercial gain, the creation of a child, and the

legal custody and physical placement of a child once it is born.

     ¶82   Such     agreements     are    not     standard    run-of-the-mill

contracts subject merely to the usual offer, acceptance, and

consideration analysis.         See majority op., ¶¶57, 59.            Standard

contract defenses and remedies are a starting point, but may not

be sufficient.      Surrogacy contracts, in whole or in part, are by

their subject matter likely to collide with statutes and raise

numerous   public     policy     issues   (some     addressed      directly    by

statute, others not) and questions of unconscionability.                      The

majority opinion takes a carefree attitude toward public policy

considerations,     seemingly     declaring     all   surrogacy      agreements

valid.2
     2
       The majority opinion seems to vacillate in reaching its
conclusion.   At times it appears to state that the enforcement
of the Parentage Agreement in the present case is not contrary
to statutes, case law, or public policy.     At other times, the
majority opinion reads more broadly to state that the public
policy of Wisconsin supports surrogacy agreements in general and
that no Wisconsin statute or case contains a specific statement
of public policy contrary to surrogacy agreements.

     Under either interpretation, the majority opinion does not
address the numerous public policy issues regarding the validity
of this agreement and surrogacy agreements in general, including
the following:     must the agreement be in writing; should
compensated agreements be allowed and what are the limits on
compensation; should the availability of surrogacy be limited to
married couples or to infertile intended parents; should the age
of any party be limited; should a spouse be required either to
consent or to be made a party to the contract; must each
individual involved be represented by counsel; should the State
require that information about each individual's legal rights be
provided; what provisions are valid regarding who makes
decisions about health care and termination of the pregnancy;
how and when may the agreement be terminated; and must any party
to the agreement be given the opportunity to change his or her
mind before or after the birth of the child?
                                2
                                                                            No.    2011AP2166.ssa


      ¶83    Public         policy    considerations            regarding          a    surrogacy

contract may differ depending on the nature of the dispute.                                     In

the   present        case    the     dispute   centers          on    the       paternity,     the

custody,     and       the    physical        placement         of     a        child   born    of

alternative          reproductive      methods          with    a     surrogacy         agreement

among friends.          See ¶¶104-112, infra.                   Although the biological

parents     "contractually"           agreed       in    the    present         case    that   the

child's best interests would be served if the surrogate mother

did   not   have       custody       and   physical           placement,         the    surrogate

mother    has    refused       to     abide    by       the    terms       of    the    contract.

Majority op., ¶¶12, 72 n.12

      ¶84    Different legal and public policy issues may arise in

different       disputes       and    under     different            contract       provisions.

Different        issues        may     arise        when        gestational             surrogacy

agreements,      rather       than traditional            surrogacy         agreements,        are

implicated.          In all surrogacy contracts, public policy issues

are in the forefront.3

      ¶85    Second, I write because the present case arose as a

petition        by     David        Rosecky        for        paternity          requesting     a

determination of the legal custody and physical placement of the

named child.           The majority opinion ignores the posture of the



      3
       Policy decisions to be made in validating or voiding
surrogacy agreements appear in the case law and statutes of
other states and nations.   See, e.g., Unif. Parentage Act Art.
8, 9B U.L.A. 360 (2000) (gestational agreement); American Bar
Association,   Model   Act    Governing   Assisted   Reproductive
Technology            (2008),             available            at
http://apps.americanbar.org/family/committees/artmodelact.pdf
(last visited June 28, 2013).

                                               3
                                                                             No.    2011AP2166.ssa


case and mischaracterizes the instant case as simply a contract

dispute.     Majority op., ¶¶28, 48, 55-60, 66-69.

     ¶86     All      three     actions          brought        by    David        Rosecky,        the

biological        father——for             paternity,          custody,            and       physical

placement——are,             under        the     plain       text      of     the           statutes,

categorized as "actions affecting the family," and as such are

governed by Chapter 767.                  See ¶¶104-112, infra.               The legislative

standard     established            in     Chapter      767     for    legal        custody         and

physical placement of a child directs courts to "consider all

facts relevant to the best interest of the child."                                      Wis. Stat.

§ 767.41(5)(am) (emphasis added).                        Indeed, the legislature has

enumerated       16     factors       that      may     be    relevant        for       a       court's

consideration         in     determining         the     best    interest          of       a   child,

including agreements by a parent.

     ¶87    The majority opinion ignores the statutes and creates

its own standard for deciding the legal custody and physical

placement of the child.                  The guiding principle for legal custody

and physical placement when a surrogacy agreement is implicated,
according    to       the    majority          opinion,      will     be    the     custody        and

placement provisions set forth in the surrogacy contract unless

enforcement of the contract is "contrary to the best interests

of the child."          Majority op., ¶¶3, 4, 30, 31, 55, 69, 74, 75.

     ¶88     The      majority           opinion       departs       from    the        legislative

mandate.     Yet the majority opinion does not explain why a child

born of alternative reproductive methods should have different

rights     and     be       treated       differently         under         the    custody         and

placement statutes than any other child.

                                                   4
                                                                  No.    2011AP2166.ssa


                                         I

      ¶89    The question whether to enforce surrogacy contracts is

a   matter   of    first    impression       for    this    court,      but    not   for

legislatures and courts of other states and nations and not for

legal commentators and scholars.             In the last three years alone,

over 180 law journal articles have been published addressing

surrogacy contracts.

      ¶90    Nonetheless, the majority opinion has no hesitancy in

declaring that public policy supports the enforcement of such

contracts.       Majority   op.,   ¶¶64,      69.          Yet   the    validity      of

surrogacy contracts, in whole or in part, is at this very time

being debated across the globe.

      ¶91    Other states and nations are, at best, divided over

whether     to   enforce    such   contracts        because      of    the    difficult

public policy issues they present.                 A recent law review article

summarized the various approaches to surrogacy contracts from

state to state as follows:

      There is no clear majority approach to surrogacy.
      There is not even a clear plurality approach. Some
      states permit and enforce a wide range of surrogacy
      contracts. Some enforce only a limited subset of such
      contracts. Many states have no law on the subject or
      refuse to enforce surrogacy contracts.   Three states
      not only refuse to enforce surrogacy contracts, but
      impose civil or criminal penalties on those arranging
      and entering into surrogacy contracts.4


      4
       Paul G. Arshagouni, Be Fruitful and Multiply, by Other
Means If Necessary: The Time Has Come to Recognize and Enforce
Gestational Surrogacy Agreements, 61 DePaul L. Rev. 799, 800
(2012).   See generally Raftopol v. Ramey, 12 A.3d 783, 801-804
n.35-46 (Conn. 2011) (collecting statutes and cases).       See
majority op., ¶64 n.11.

                                         5
                                                              No.   2011AP2166.ssa


        ¶92   Beyond   the   fact   that   there   is    no    clear     majority

approach to surrogacy among the states that have acted, many

states still have said virtually nothing on the topic.5                     Among

those       that   have   acted,    the    legislative        approach     varies

significantly from state to state.6

     ¶93      Several state legislatures ban traditional surrogacy

contracts, while others permit traditional surrogacy contracts

under certain circumstances.          Some states differentiate between

traditional and gestational surrogacy contracts.                In some states

in which no statutes cover surrogacy contracts, courts have held




        5
       7 Williston on Contracts § 16.22 Surrogacy Agreements (4th
ed. 2012).    See also Darra L. Hofman, "Mama's Baby, Daddy's
Maybe:"   A State-by-State Survey of Surrogacy Laws and Their
Disparate Gender Impact, 35 Wm. Mitchell L. Rev. 449 (2009).
        6
       See, e.g., Ala. Code § 26-10A-34(c) (2013); Ariz. Rev.
Stat. Ann. § 25-218 (2012); Ark. Code Ann. § 9-10-201(b) (West
2013); D.C. Code § 16-402 (2012); Fla. Stat. Ann. §§ 63.212-
.213, § 742.15 (West 2011); Ind. Code Ann. §§ 31-20-1-1 to -3
(West 2013); 750 Ill. Comp. Stat. Ann. §§ 47/1 to /75 (West
2010); Iowa Code Ann. § 710.11 (West 2013); Ky. Rev. Stat. Ann.
§ 199.590(4) (West 2012); La. Rev. Stat. Ann. § 9:2713 (2012);
Mich. Comp. Laws Ann. §§ 722.851-.863 (West 2013); Neb. Rev.
Stat. § 25-21,200 (2012); Nev. Rev. Stat. Ann. § 126.045 (West
2011); N.H. Rev. Stat. Ann. §§ 168-B:1 to B:32 (2013); N.Y. Dom.
Rel. Law §§ 121-124 (McKinney 2010); N.D. Cent. Code §§ 14-18-
05, -08 (2011); Tex. Fam. Code Ann. §§ 160.751-.763 (Vernon
2013); Utah Code Ann. §§ 78B-15-801 to -809 (West 2012); Va.
Code Ann. §§ 20-156 to -165 (West 2012); Wash. Rev. Code Ann.
§§ 26.26.210-.260 (West 2013).

     See also 7 Williston on Contracts § 16.22 n.12 (4th ed.
2012) (Surrogacy Agreements); Anne R. Dana, Note, The State of
Surrogacy Laws: Determining Legal Parentage for Gay Fathers, 18
Duke J. Gender L. & Pol'y 353, Appendix 1 (2010-2011).      See
generally Raftopol, 12 A.3d at 801-804 n.35-46 (collecting
statutes and cases).

                                       6
                                                                No.   2011AP2166.ssa


surrogacy contracts void and unenforceable as contrary to public

policy.7

     ¶94    Law     review    articles       have    tracked    the      status    of

surrogacy contracts around the world.8               Only a limited number of

nations     have    explicitly    addressed         surrogacy    by   statute       or

through     court     rulings.9     Several         countries     have     rejected

movements    to     permit   surrogacy   within       their    countries.         Some




     7
       See, e.g., In re Marriage of Moschetta, 30 Cal. Rptr. 2d
893 (Cal. Ct. App. 1994); R.R. v. M.H., 689 N.E.2d 790 (Mass.
1998); Matter of Baby M., 537 A.2d 1227 (N.J. 1988).
     8
       See, e.g., Daniel Gruenbaum, Foreign Surrogate Motherhood:
Mater Semper Certa Erat, 60 Am. J. Comp. L. 475 (2012); Ailis L.
Burpee, Note, Momma Drama:     A Study of How Canada's National
Regulation of Surrogacy Compares to Australia's Independent
State Regulation of Surrogacy, 37 Ga. J. Int'l & Comp. L. 305,
309 (2008-2009); Austin Caster, Note, Don't Split the Baby: How
the U.S. Could Avoid Uncertainty and Unnecessary Litigation and
Promote Equality by Emulating the British Surrogacy Law Regime,
10 Conn. Pub. Int. L.J. 477 (2010-2011); Sarah Mortazavi, Note,
It Takes a Village to Make a Child:      Creating Guidelines for
International Surrogacy, 100 Geo. L.J. 2249 (2012); Sasha N.
Swoveland, Note, Surrogacy and Insurance:          The Call for
Statutory Reform in Ohio, 26 J.L. & Health 143 (2013).
     9
       For example, the United Kingdom, one of the more common
surrogacy centers, has a uniform surrogacy law that employs an
independent ethics committee to evaluate surrogacy requests on a
case-by-case basis and recognizes parents through parental
orders. Parental rights are based on the welfare of the child.
Human Fertilisation and Embryology Act, 1990, c. 37 (U.K.)
(amended 2008), available     at   http://www.legislation.gov.uk/
ukpga/1990/37/contents/enacted (last visited June 28, 2013).
See Mortazavi, supra note 8, at 2270-71.

                                         7
                                                          No.    2011AP2166.ssa


countries    that   recognize   surrogacy   have   legalized       altruistic

surrogacy but not commercial surrogacy.10

     ¶95    These    conflicting    approaches     have         transnational

implications, one result being that some American states with

less restrictive or no laws on the issue have become interstate

and international medical surrogacy tourism destinations.               It is

estimated that over 1,400 babies are born in the United States

each year for international parents with the assistance of a

surrogate, sometimes American, sometimes foreign.11

     ¶96    Thus, the present case is significant for people in

Wisconsin and around the world.




     10
        In a commercial surrogacy arrangement, the surrogate and
often a third party stand to gain financially from the birth of
the child. In contrast, an altruistic surrogacy arrangement may
involve payment to the surrogate to cover expenses associated
with the pregnancy and birth, but neither she nor a third party
is paid a fee for the service itself. See Burpee, supra note 8,
at 309.

     For the Canadian law, see Assisted Human Reproduction Act,
S.C.   2004,    c.   2   (Can.),   available    at   http://laws-
lois.justice.gc.ca/PDF/A-13.4.pdf (last visited June 28, 2013).
     11
          Swoveland, supra note 8, at 164.

     The United States is second only to India in providing
surrogates.   India, with no law on the issue, permits both
commercial and altruistic surrogacy arrangements and has become
a popular medical surrogacy tourism destination for couples
seeking lower-cost surrogacy arrangements without being mired in
red tape. Mortazavi, supra note 8, at 2271-72; Kathleen Parker,
Editorial, Surrogacy Exposed, Wis. State J., May 26, 2013, at
E3. See also Emanuella Grinberg, The highs and lows of foreign
surrogacy,   CNN    Living   (Mar.    29,   2012)   available   at
http://www.cnn.com/       2012/03/29/living/sacred-thread-foreign-
surrogacy/ (last visited June 28, 2013).

                                    8
                                                                  No.   2011AP2166.ssa


     ¶97    As I see it, many public policy issues involving the

traditional surrogate, the biological father, and the child may

be at stake in a legal custody and physical placement dispute in

which a surrogacy contract is implicated.12                  Surrogacy contracts

by their very nature focus on the interests of the signatories

and the signatories' views of what is in the best interest of

the child at the time the contract is executed.                         See majority

op., ¶1.      A court must view the legal custody and physical

placement of a child, irrespective of the means of reproduction,

through a wider lens, with emphasis on the best interest of the

child,    including   the   legal    and    constitutional         rights    of   the

child, at the time of the court proceedings.

     ¶98    The   public    policy    implications           of    a     traditional

surrogacy contract when the legal custody and physical placement

of an existing child are at issue, as in the present case,

include:

     •      Public policy against baby-buying;13

     12
       For example, a dispute may arise when the surrogate or
the intended parents seek an abortion.      See Elizabeth Cohen,
Surrogate Offered $10,000 to Abort Baby, CNN Health (Mar. 6,
2013),    available   at    http://www.cnn.com/2013/03/04/health/
surrogacy-kelley-legal-battle/index.html (last visited June 28,
2013)   (Medical tests showed an abnormality of the fetus.    The
agreement entered into in the State of Connecticut authorized
the intended parents to determine whether an abortion would be
performed; the surrogate refused an abortion and moved to a
state that appeared to have laws more favorable to the
surrogate's position.).
     13
       In the first surrogacy              case   in   the    country,      the   New
Jersey Court declared:

    We have found that our present laws do not permit the
    surrogacy contract used in this case.        Nowhere,
    however, do we find any legal prohibition against
                              9
                                                 No.   2011AP2166.ssa


     •    Public policy against the exploitation of women;14

     •    Statutes and case law relating to adoption, including

          terms of consent,15 termination of parental rights,16

          and the payment of funds;17 and




     surrogacy   when  the   surrogate  mother   volunteers,
     without any payment, to act as a surrogate and is
     given the right to change her mind and to assert her
     parental rights.    Moreover, the Legislature remains
     free to deal with this most sensitive issue as it sees
     fit, subject only to constitutional constraints.

Baby M., 537 A.2d at 1264.

     Wisconsin statutes regulate payments regarding children.
See, e.g., Wis. Stat. § 48.913 (allowing certain payments by
proposed adoptive parents to birth parent); Wis. Stat. § 948.24
(criminalizing payments for child placement and services not
explicitly authorized by statute). See majority op., ¶¶45, 53.
     14
       The Michigan court of appeals explained the compelling
state interests in prohibiting surrogacy contracts as follows:
(1) preventing children from becoming mere commodities; (2)
protecting the best interests of the child, because surrogacy
arrangements focus solely on the parents' interests and desires;
and (3) preventing the exploitation of women.    Doe v. Attorney
Gen., 487 N.W.2d 484 (Mich. Ct. App. 1992).

      For a discussion of the advertising directed at prospective
surrogates, the fees paid to them, the third parties who benefit
from arranging surrogacy contracts, and the potential for
exploiting poor women, see Kathleen Parker, Editorial, Surrogacy
Exposed, Wis. State J., May 26, 2013, at E3 ("[W]e haven't
scraped the surface of the metaphysical, spiritual, emotional,
[and]   psychological   issues"  that  accompany the    surrogacy
business.).

     A simple Google search of "Wisconsin Surrogacy" turns up
advertisements offering up to $50,000 for women to serve as
surrogates.

                               10
                                                        No.   2011AP2166.ssa


     •      Statutes   and   case   law   governing   legal   custody   and

            physical placement focusing on the best interests of

            the child.18


     15
       Wisconsin   has  stringent   requirements  for   voluntary
consent to terminate parental rights that require a parent to
appear in court or provide written consent in the presence of a
judge, embassy, or consulate official. See Wis. Stat. § 48.41.
In adoption situations, a mother can withdraw her consent even
after agreeing to give her child up for adoption.       Matter of
Adoption of R.P.R., 98 Wis. 2d 613, 619, 297 N.W.2d 833 (1980).
     16
       Indeed the majority opinion strikes down a provision of
the Parentage Agreement regarding the termination of parental
rights on the ground that the Agreement violates Wisconsin
statutes. Majority op., ¶65.

     Other states have also declared surrogacy contracts or
parts thereof invalid because they conflict with legislation
governing adoption and the termination of parental rights, the
public policy embodied in the statutes, and case law. See Baby
M., 537 A.2d at 1242-44.

     The California court of appeals refused to give effect to
the terms of a traditional surrogacy agreement, holding that
"enforcement of a traditional surrogacy contract by itself is
incompatible with the parentage and adoption statutes already on
the books." Moschetta, 30 Cal. Rptr. 2d at 894-95.

     Compare these decisions refusing to enforce traditional
surrogacy contracts with court decisions approving gestational
surrogacy arrangements. See, e.g., Johnson v. Calvert, 851 P.2d
776 (Cal. 1993); Raftopol v. Ramey, 12 A.3d 783 (Conn. 2011);
J.F. v. D.B., 879 N.E.2d 740 (Ohio 2007).
     17
       In New York, a surrogacy agreement was declared void and
unenforceable because it violated the statutory prohibition
against acceptance of compensation in exchange for the surrender
of a child for adoption.      Matter of Adoption of Paul, 550
N.Y.S.2d 815 (1990).     New York has since banned surrogacy
contracts by statute.   N.Y. Dom. Rel. Law §§ 122-123 (McKinney
2010).
    18
          Doe v. Attorney Gen., 487 N.W.2d 484 (Mich. Ct. App.
1992).

                                    11
                                                                 No.    2011AP2166.ssa


      ¶99    In my opinion, when faced with a dispute relating to

legal custody and physical placement of a child, a circuit court

must carefully scrutinize the surrogacy contract to ensure that

the contract does not contravene public policy.                    I do not join

the   majority's        overly     broad      holding   that       "a     [Parentage

Agreement] is a valid, enforceable contract unless enforcement

is contrary to the best interests of the child."                       Majority op.,

¶3 (emphasis added).

                                        II

      ¶100 I turn now to the second issue, namely what rule of

law the circuit court should apply to decide the legal custody

and physical placement of the child in the present case.

      ¶101 The majority opinion creates its own law, instructing

circuit     courts     to    enforce    the     Parentage     Agreement         unless

enforcement     is    contrary to the         best   interests     of    the     child.

Majority op., ¶¶3, 4, 30, 31, 55, 69, 74, 75.19

      ¶102 In      contrast      with   the    majority      opinion,       I    would

instruct     the     circuit   court    to    adhere    to   the       legislature's

directions      in    Wis.     Stat.    § 767.41(5)(am).            This        statute


     The Supreme Judicial Court of Massachusetts held that no
private surrogacy agreement concerning the custody of a child
can be conclusive, because a judge must decide what is in best
interest of child. R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998).
      19
       The phrase "contrary to the best interest of the child"
is not entirely new to Wisconsin statutes. None of the statutes
using the phrase applies to the present case.     The legislature
seems to have given guidance to the courts in these statutes
regarding what is contrary to the best interests of the child.
See,   e.g.,   Wis.   Stat.   §§ 48.365(2g)(b)3.,   48.977(2)(f),
767.41(2)d)1., 767.80(2), 938.18(6) ("contrary to the best
interests of the juvenile").

                                        12
                                                                No.    2011AP2166.ssa


explicitly   governs    a     circuit    court's      determination         of    legal

custody and physical placement of a child.

     ¶103 The   majority       opinion       deviates   from    the     statute        by

boldly but erroneously         asserting       that   this    action    is       not   an

"action affecting the family."           Majority op., ¶43.

    ¶104 On     the    contrary,        the     present      case     is,    without

question, "an action affecting the family" and is governed by

Chapter 767 of the statutes.

     ¶105 The   statute,       Wis.   Stat.     § 767.001,      defines      "action

affecting the family" to mean an action to determine paternity,

a custody action, and an action concerning physical placement,

in addition to other actions.20               David Rosecky, the biological

father (and not the husband of the biological mother) brought

the instant case as a paternity action.                      A paternity action


     20
       Wisconsin      Stat.    § 767.001,       "Definitions,"         provides        in
relevant part:

     In this chapter:

    (1) "Action affecting the family" means any of the
    following actions:

          . . . .

    (e) Custody.

          . . . .

    (k) Concerning periods of physical placement or
    visitation rights to children, including an action to
    prohibit a move with or the removal of a child under
    s. 767.481(3)(c).

          . . . .

    (L) To determine paternity.

                                        13
                                                           No.   2011AP2166.ssa


protects     a    biological    father's    rights   associated      with   the

parentage of a child.

     ¶106 David Rosecky had to have a court determination of

paternity.       The Wisconsin statutes create a presumption that the

husband    of     the   birth   mother     (not   David   Rosecky)    is    the

biological father of the child.

    ¶107 According to the statutes, a husband is presumed to be

the father of a child when the child is born during wedlock.21


     21
          Wisconsin Stat. § 891.41 provides as follows:

     891.41. Presumption of paternity based on marriage of
     the parties.

     (1) A man is presumed to be the natural father of a
     child if any of the following applies:

    (a) He and the child's natural mother are or have been
    married to each other and the child is conceived or
    born after marriage and before the granting of a
    decree of legal separation, annulment or divorce
    between the parties.

    (b) He and the child's natural mother were married to
    each other after the child was born but he and the
    child's natural mother had a relationship with one
    another during the period of time within which the
    child was conceived and no other man has been
    adjudicated to be the father or presumed to be the
    father of the child under par. (a).

    (2) In a legal action or proceeding, a presumption
    under sub. (1) is rebutted by results of a genetic
    test, as defined in s. 767.001 (1m), that show that a
    man other than the man presumed to be the father under
    sub. (1) is not excluded as the father of the child
    and that the statistical probability of the man's
    parentage is 99.0% or higher, even if the man presumed
    to be the father under sub. (1) is unavailable to
    submit to genetic tests, as defined in s. 767.001
    (1m).

                                      14
                                                                 No.    2011AP2166.ssa


Furthermore,         another      statute     provides   that   when    a    woman   is

artificially inseminated with semen donated by a man who is not

her husband, the husband is deemed the natural father of the

child        (and   the   donor    has   no    rights    regarding     the   child).22

Several cases implicating these statutes have come to Wisconsin




        22
             Wisconsin Stat. § 891.40 provides as follows:

        891.40.      Artificial insemination

    (1) If, under the supervision of a licensed physician
    and with the consent of her husband, a wife is
    inseminated artificially with semen donated by a man
    not her husband, the husband of the mother at the time
    of the conception of the child shall be the natural
    father of a child conceived.    The husband's consent
    must be in writing and signed by him and his wife.
    The physician shall certify their signatures and the
    date of the insemination, and shall file the husband's
    consent with the department of health services, where
    it shall be kept confidential and in a sealed file
    except as provided in s. 46.03(7)(bm).    However, the
    physician's failure to file the consent form does not
    affect the legal status of father and child.       All
    papers and records pertaining to the insemination,
    whether part of the permanent record of a court or of
    a file held by the supervising physician or elsewhere,
    may be inspected only upon an order of the court for
    good cause shown.

    (2) The donor of semen provided to a licensed
    physician for use in artificial insemination of a
    woman other than the donor's wife is not the natural
    father of a child conceived, bears no liability for
    the support of the child and has no parental rights
    with regard to the child.

                                              15
                                                                        No.       2011AP2166.ssa


appellate       courts to determine             the       paternity    of     a    child    born

during a marriage.23

        ¶108 David Rosecky's paternity petition asked the circuit

court to determine that David Rosecky is the father of the child

for     all     legal      purposes,      to    direct       the      section       of     Vital

Statistics for the State of Wisconsin to identify David Rosecky

as the birth father of the child,24 and to determine that David

Rosecky shall have legal custody and physical placement of the

child.

        ¶109 After the paternity action was filed, and as part of

the paternity action, the parties stipulated that David Rosecky

is    the     father      of    the   child    and    that     the   surrogate        mother's

husband shall be excluded as the father of the child.

        ¶110 In      a    paternity     action,       a    circuit     court       may   decide

legal        custody      and    physical      placement        of    the     named      child.

Wisconsin       Stat.      § 767.41(1)(b)           provides    that    in        rendering    a

judgment of paternity, "the court shall make provisions as it

deems        just   and    reasonable       concerning        the    legal        custody   and
physical placement of any minor child of the parties . . . "

(emphasis added).               Wisconsin Stat. § 767.41(1) provides, inter


        23
       See, e.g., Randy A.J. v. Norma I.J., 2004 WI 41, 270
Wis. 2d 384, 677 N.W.2d 630 (husband filed for divorce seeking
custody of child; wife counterclaimed challenging husband's
paternity); In re Paternity of T.R.B., 160 Wis. 2d 840, 467
N.W.2d 553 (Ct. App. 1991) (single man filed paternity claim to
child born to another man's wife); Strawser v. Strawser, 126
Wis. 2d 485, 377 N.W.2d 196 (Ct. App. 1985) (on divorce, husband
challenged paternity of children born during marriage).
        24
       Birth certificates may be changed by the state registrar
of vital statistics. See Wis. Stat. §§ 69.01(24), 69.15(1).

                                               16
                                                                       No.   2011AP2166.ssa


alia, that "the question of a child's custody may be determined

as an incident of any action affecting the family . . . ."

     ¶111 Accordingly,        Chapter        767,     which        governs       "actions

affecting the family," governs the present case for at least

three distinct reasons; the present case involves three actions

affecting     the      family:    custody,          physical           placement,      and

paternity.      Majority      op.,    ¶13-14.         The    Parentage          Agreement

itself supports the conclusion that the present case involves an

action     affecting    the   family,    as     the      Agreement           specifically

includes     "the    parties'     agreements        as      to     parentage,       legal

custody, and physical placement."             Majority op., ¶10.

    ¶112 Under Chapter 767, the legislature has directed that

"in determining legal custody and periods of physical placement,

the court shall consider all facts relevant to the best interest

of the child (emphasis added)."                 Wis. Stat. § 767.41(5)(am).

"Child" is statutorily defined to mean an individual who has not

attained 18 years of age.25             The individual whose paternity,

custody, and placement are the subject of the present case has
not attained 18 years of age.           The statutes governing paternity,

legal custody, and placement govern all children; they do not

differentiate among children on the basis of the reproductive

methods used.       The majority opinion should not do so either.

     ¶113 Wisconsin       Stat.      § 767.41(5)(am)             has    enumerated      16

facts relevant in determining the best interest of the child.

For purposes of analysis, these factors "can be grouped into

four broad categories . . .: (1) factors that analyze the wishes

     25
          Wis. Stat. §§ 822.02(2); 767.01(2m).

                                        17
                                                            No.   2011AP2166.ssa


of   the   parents   and   the   child;    (2)   factors   that   analyze   the

stability and consistency of the parents' relationship with the

child; (3) factors that focus on the physical and mental health

of the parties and the children; and (4) factors that look at

the behaviors of each party."26

      ¶114 Section 767.41(5)(am) provides as follows:

      Wis. Stat. § 767.41(5) Factors in custody and physical
      placement determinations. (am) . . . in determining
      legal custody and periods of physical placement, the
      court shall consider all facts relevant to the best
      interest of the child. The court may not prefer one
      parent or potential custodian over the other on the
      basis of the sex or race of the parent or potential
      custodian. . . . [T]he   court   shall   consider  the
      following factors in making its determination:

      1. The wishes of the child's parent or parents, as
      shown by any stipulation between the parties, any
      proposed parenting plan or any legal custody or
      physical placement proposal submitted to the court at
      trial.

      2. The wishes of the child, which may be communicated
      by the child or through the child's guardian ad litem
      or other appropriate professional.

      3. The interaction and interrelationship of the child
      with his or her parent or parents, siblings, and any
      other person who may significantly affect the child's
      best interest.

      4. The amount and quality of time that each parent has
      spent with the child in the past, any necessary
      changes to the parents' custodial roles and any
      reasonable life-style changes that a parent proposes
      to make to be able to spend time with the child in the
      future.


      26
       Thomas J. Walsh, In the Interest of A Child: A
Comparative Look at the Treatment of Children Under Wisconsin
and Minnesota Custody Statutes, 85 Marq. L. Rev. 929, 944 (2001-
2002) (emphasis added).

                                      18
                                             No.   2011AP2166.ssa

5. The child's adjustment      to   the   home,    school,
religion and community.

6. The age of the child and the child's developmental
and educational needs at different ages.

7. Whether the mental or physical health of a party,
minor child, or other person living in a proposed
custodial household negatively affects the child's
intellectual, physical, or emotional well-being.

8. The need for regularly occurring and meaningful
periods    of    physical    placement    to provide
predictability and stability for the child.

9. The availability of public or private child care
services.

10. The cooperation and communication between the
parties and whether either party unreasonably refuses
to cooperate or communicate with the other party.

11. Whether each party can support the other party's
relationship with the child, including encouraging and
facilitating frequent and continuing contact with the
child, or whether one party is likely to unreasonably
interfere with the child's continuing relationship
with the other party.

12. Whether there is evidence that a party engaged in
abuse, as defined in s. 813.122(1)(a), of the child,
as defined in s. 48.02(2).

12m. Whether any of the following has a criminal
record and whether there is evidence that any of the
following has engaged in abuse, as defined in s.
813.122(1)(a), of the child or any other child or
neglected the child or any other child:

a. A person with whom a parent of the child has a
dating relationship, as defined in s. 813.12(1)(ag).

b. A person who resides, has resided, or will reside
regularly or intermittently in a proposed custodial
household.

13. Whether there is evidence of interspousal battery
as described under s. 940.19 or 940.20(1m) or domestic
abuse as defined in s. 813.12(1)(am).

                          19
                                                                       No.    2011AP2166.ssa

     14. Whether either party has or had                         a     significant
     problem with alcohol or drug abuse.

     15. The reports of appropriate                        professionals                if
     admitted into evidence.

     16. Such other factors as the court may                                 in    each
     individual case determine to be relevant.
(Emphasis added.)

     ¶115 No one factor enumerated in Wis. Stat. § 767.41(5) is

necessarily determinative of custody, and the same combination

of factors does not necessarily call for an identical answer in
two different cases.27

     ¶116 Significant          for     the     present          case     is        that      the

legislature has explicitly instructed a circuit court how to

address    agreements     between      parents       and   any       legal        or    custody

proposal    submitted     to    the    court.        The    legislature            envisaged

agreements    and   proposals,         and     the   legislature             has       directed

courts to consider "the wishes of the child's parent or parents,

as shown by any stipulation between the parties, any proposed

parenting    plan   or    any     legal      custody       or    physical          placement

proposal     submitted    to     the    court        at    trial."            Wis.        Stat.
§ 767.41(5)(am)1.        The legislature did not direct the courts to

rubber stamp the proposal or order specific performance of an

agreement relating to custody and physical placement, as David

Rosecky requests.       Majority op., ¶13.

     ¶117 I agree with the majority opinion that the circuit

court in the present case erroneously exercised its discretion



     27
       King v. King            (King   II),     29    Wis. 2d 586,            590-91,        139
N.W.2d 635 (1966).

                                          20
                                                                          No.    2011AP2166.ssa


by refusing to consider the Parentage Agreement.                                I think such

consideration is required by Wis. Stat. § 767.41(5).

       ¶118 The      majority      opinion,        however,       does     not     require       a

circuit court to consider the other relevant enumerated factors

in § 767.41(5) to           determine        the    best    interest       of     the    child.

Instead the majority opinion states a new rule: A circuit court

is bound by a surrogacy contract "unless enforcement is contrary

to the best interests of the child."                       Majority op., ¶¶3, 4, 30,

31, 55, 69, 74, 75.

       ¶119 The majority opinion errs as a matter of law by not

adhering      to    the    statutory      standard        set     forth    in     Wis.    Stat.

§ 767.41(5).         The majority opinion errs as a matter of law by

placing the surrogacy contract above, and to the exclusion of,

all other factors the legislature has enumerated in Wis. Stat.

§ 767.41(5)(am) and above the best interest of the child.

       ¶120 The      best    interest        of    the     child     is     an     organizing

principle      of   Wisconsin      family         law.      See    majority        op.,       ¶62.

According      to   our     case   law,    "The     legislature           has    clearly       and
repeatedly expressed the policy that courts are to act in the

best    interest      of    children."28           "The     polestar       [in     a    custody

dispute] is the best interests of the children."29

       ¶121 The      legislature       has    made       clear    that     "[t]he       child's

best    interests     transcend      an      agreement       or    stipulation           of    the


       28
            Holtzman v. Knott, 193 Wis. 2d 649, 682, 533 N.W.2d 419
(1995).
       29
            Johnson v. Johnson, 78 Wis. 2d 137, 148, 254 N.W.2d 198
(1977).

                                             21
                                                                     No.    2011AP2166.ssa


parties."30     This court has long recognized that "the controlling

question [in custody disputes] is not what the parties agreed to

but what is in the best interest of the child."31                          Our court has

further explained the statutory relationship of an agreement of

parties and the child's best interest as follows:

      While parents may stipulate as to custody, the
      agreement should not be approved by the court unless
      it insures and promotes the best interest of the
      children. . . . A contract between parents [in a
      custody dispute] should be given serious consideration
      by the court as it normally expresses what may be best
      for the child, nevertheless it does not bind the court
      or preclude a modification of a decree based thereon.32
      ¶122 Although        the    majority         opinion   mentions        Wis.      Stat.

§ 767.41(5)      and     the    best   interest       of   the   child      standard      in

passing, see majority op, ¶62, it does not rely on § 767.41(5)

or the best interest of the child standard.                      Rather, it decides,

for purposes of all surrogacy contracts, for all children, for

all   persons,    and     for    all   circumstances,         that    "the      interests

supporting      enforcement       of   the    [Parentage      Agreement]        are     more

compelling than the interests against enforcement."                              Majority

op., ¶61.       The majority opinion adopts its own formulation of a
rule for determining custody and placement that directs circuit

courts     to   follow    the    contract         unless   "contrary       to   the     best

      30
       Frisch v. Henrichs, 2007 WI 102, ¶72, 304 Wis. 2d 1, 736
N.W.2d 85 (quoting Ondrasek v. Tenneson, 158 Wis. 2d 690, 695,
462 N.W.2d 915 (Ct. App. 1990)).
      31
       King v. King              (King       I),     25    Wis. 2d 550,         555,     131
N.W.2d 357 (1964).
      32
       King I, 25 Wis. 2d at 555 (citing William T. Nelson,
Divorce and Annulment § 15.21 at 268 (2d ed. rev. 1961); Miner
v. Miner, 10 Wis. 2d 438, 103. N.W.2d 4 (1960)).

                                             22
                                                                  No.    2011AP2166.ssa


interests     of   the   child,"     without     explanation,         discussion,      or

direction     to   the   courts    on    how    the   rule     should    be    applied.

Majority op., ¶¶3, 75.         See also ¶¶4, 30, 31, 55, 69, 74.33

       ¶123 So why doesn't the majority opinion adhere to Wis.

Stat. § 767.41(5) in the present case?                        This is a mandatory

(shall) statute that is directly on point.

       ¶124 The majority opinion explains that "surrogacy is not

one of those enumerated" actions affecting the family, majority

op., ¶43; surrogacy agreements are not explicitly addressed in

Chapter 767 or in Wis. Stat. § 767.41(5); a surrogacy agreement

does    not   present    a   typical     custody      case;    "the    law    does    not

specifically       address     the      legal    issues       presented       in     this

surrogacy     dispute,"      majority op., ¶55;          and    that    some    of   the

statutory     factors    enumerated      in     § 767.41(5)      are    difficult      to

apply.      Majority op., ¶¶43, 44, 45, 55.34

       ¶125 This reasoning in the majority opinion justifying its

disregarding Wis. Stat. § 767.41(5) is confusing, contradictory,

and unpersuasive.



       33
       The guardian ad litem argued that the surrogacy contract
should be presumptively enforceable as long as it is in the best
interest of the child. See majority op., ¶52.
       34
       Presumably, the 16 factors enumerated in Wis. Stat.
§ 767.41(5)(am) will have different levels of importance in each
custody and physical     placement   case.    Is   the   majority
instructing us to ignore all of them because some or even many
are "difficult to apply to the facts" of the specific case? See
majority op., ¶43. Still, in ¶71, the majority points out that
circuit courts have discretion to follow § 767.41(5) to
determine what is in the child's best interests.     How can ¶43
and ¶71 be reconciled?

                                          23
                                                                          No.    2011AP2166.ssa


        ¶126 The present case is a paternity, child custody, and

physical placement action; thus, it is "an action affecting the

family" expressly governed by Chapter 767, including Wis. Stat.

§ 767.41(5).          The   legislature          has    explicitly          and     in    plain

language directed courts how to address these actions, including

parties' agreements about custody and placement.

        ¶127 Simply     because      the     words          "surrogacy          contract"    or

"Parentage Agreement" do not appear in Chapter 767 or Wis. Stat.

§ 767.41 (5)(am) does not mean, as the majority opinion reasons,

that the statute does not apply to legal custody and physical

placement       disputes      that     implicate             a     surrogacy        contract.

Majority op., ¶43.            The    legislature            is    aware    of     alternative

methods of reproduction and surrogacy, see majority op., ¶¶41,

42,     and   has     not   excluded        surrogacy             agreements       from     the

application      of    Chapter       767    or     § 767.41(5).                 Rather,     the

legislature explicitly anticipated that courts should consider

parental agreements, without restricting such agreements to the

reproductive method used or the title of the agreement.
        ¶128 If a surrogacy contract should be treated differently

than    any   other    type    of    agreement,             the   legislature        has    not

instructed the courts to take this distinction into account in

exercising discretion under Wis. Stat. § 767.41(5).

        ¶129 Absent specific statutory instructions that provide a

different procedure for adjudicating legal custody and physical

placement disputes when an alternative reproductive method and a

surrogacy contract are implicated, the circuit courts of this

state    are,    in   my    opinion,       bound       to    follow       the     legislative

                                            24
                                                           No.   2011AP2166.ssa


directions for adjudicating legal custody and physical placement

for all children set forth in Wis. Stat. § 767.41.

     ¶130 The plain text of the current statutes applies to the

present case.      Any change in the law and the procedure regarding

actions   involving     paternity,     legal    custody,     and     physical

placement of a child when an alternative reproductive method and

a surrogacy contract are implicated should not be undertaken by

this court.   Any change is a task best left to the legislature.

     ¶131 For the reasons set forth, I write separately.

     ¶132 I   am    authorized   to    state   that   Justice      ANN   WALSH

BRADLEY joins this opinion.




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