I cannot tell you why it is so difficult to make time for the blog this fall, but it must be obvious to you all that it is. I figure the best I can do is press on, trying as I can. So here I am with what is, I am afraid, both a late and a disconnected post.
Over the summer the Wisconsin Supreme Court issued an important opinion on surrogacy. The case began when David and Marcia Rosecky, a married couple, made an agreement with Monica and Cory Schissel, also a married couple, that Monica would serve as a surrogate for David and Marcia.
Marcia and Monica had been good friends for many years. When Marcia required treatment for leukemia (treatment which was fortunately successful), Monica offered to be a surrogate. She offered twice–in 2004 and 2008.
In 2008 the Roseckys accepted the offer. They considered using a donor egg but decided on using Monica’s eggs instead. (This decision was at least partly motivated by the idea that they could be sure of Monica’s family history, which seems to me to be resonate with arguments frequently raised on this blog.) The parties agreed that Monica would have no legal rights as a parent, but would see the child through informal social visits. (I don’t think I can tell if there was an agreement about whether/when the child would know who Monica was, vis-à-vis the child.)
Of course, there wouldn’t be a case if this hadn’t all gone sideways in the end. Sad to say, it did. By the time the child was born (March, 2010) Monica had changed her mind and refused to agree to the termination of parental rights.
In hindsight (and of course, it is always easier in hindsight) there’s at least one thing that might have signaled potential trouble. Surrogacy isn’t for everyone. Not everyone can be a surrogate. And sadly, it seems fairly clear that not all the people who think they can be surrogates are right. Monica, it would seem, falls into this category.
I think you have to assume–and indeed, I believe–that all the people here acted in good faith. They meant to do what they said they’d do. This isn’t a commercial surrogacy case. No one was tempted by (or coerced by) offers of money. The Rosecky’s and the Schissels were close friends.
But as I said, surrogacy isn’t for everyone and Monica couldn’t hold up her end of the bargain. I don’t know if that’s what lead to the falling out the opinion refers to (paragraph 12) or if the change of heart about the surrogacy caused the falling out, but it doesn’t matter much. In the end, these two families are clearly not on good terms and the whole thing is very messy indeed.
So what’s the point? Writ broadly I suppose I’d say we all need to be pretty careful about what we say (and what we think) we can do, because we don’t always know ourselves that well. But more specifically I’d say that anyone contemplating being or using a surrogate should be very careful to have someone competent do some psychological screening of all the participants.
Now in truth, I don’t know how good the screening is. I don’t know if anyone’s done a really rigorous study that shows the difference between screened and unscrewed surrogates. So you can tell me I’m wrong here. (If you’ve got studies that show I’m wrong, that is. If it’s your gut feeling vs. my gut feeling you’ll have a harder time persuading me.) But it makes sense to me that dispassionate and trained professionals can help people make a better assessment of what they can and cannot do. And while there’s no saying what the Roseckys would have done if Monica had retracted her offer before she became pregnant, we can be pretty sure we wouldn’t have ended up where this case does.
That is all an important, but in some ways tantential, point. That is about how you could avoid this next time. But the WI court couldn’t avoid this and so had to decide it. What it did is noteworthy. First, it held that Monica’s agreement to terminated parental rights (TPR) is not enforceable. That means Monica remains a legal parent.
(An aside here. It looks to me like she is a legal parent because she gave birth to the child and WI has law that say is presumed that a woman who gives birth is a legal parent. I wonder if that presumption could be rebutted in a case where the intending mother provided the egg and so could claim genetic connection? I don’t know the answer. More on that another time, perhaps. And this is an aside here because Monica was also the genetic parent and so there would be no apparent basis for rebutting the presumption anyway.)
But the rest of the agreement–which provided that the child would live with and be raised by the Roseckys and not by Monica–is enforceable unless it is shown to be against the child’s best interest. This means that for now (further proceedings could follow) the child is raised by the Roseckys with no visitation/contact for Monica.
This seems to me a slightly odd place to land in the end. Monica has the legal status of a parent (and Marcia Rosecky therefore does not) but she has no contact with the child. And it’s not because she is unfit.
I’ll stop here. Maybe if I leave it hanging I’ll be back tomorrow. Fingers crossed.