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The elements of a contract are offer, acceptance, and consideration. Defenses to the enforcement of a contract include misrepresentation, mistake, illegality, unconscionability, void against public policy, duress, undue influence, and incapacity.
David and Marcia Rosecky (the Roseckys) entered into a Parentage Agreement (PA or the 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 would become the child's legal parents and that the parties will cooperate fully in any parentage proceedings to determine the Roseckys as the child’s legal parents, including, but not limited to, termination of Monica’s parental rights. Shortly before the child’s birth, Monica informed the Roseckys that she no longer wanted to give up her parental rights. David Rosecky sought enforcement of the PA. The Columbia County Circuit Court determined that the PA was not enforceable, and awarded sole custody of the child to David, primary placement to David, and secondary placement to Monica. David appealed, seeking enforcement of the PA and sole custody and placement of the child. The court of appeals certified to the state supreme court the question of "whether an agreement for the traditional surrogacy and adoption of a child is enforceable."
Was the agreement for the traditional surrogacy and adoption of a child enforceable?
The court held that aside from the termination of parental rights provisions, the PA was a valid, enforceable contract unless it was contrary to the child's best interests. The PA contained the essential elements of a contract, as the surrogate mother made an offer to the biological father and his wife that she would act as a surrogate, the biological father and his wife accepted the offer, and consideration was provided. The court found no public policy statement contrary to the enforcement of the PA in Wisconsin statutes or cases, and the record did not support any defense to the enforcement of the contract. The termination of parental rights provisions could be severed from the remainder of the contract without defeating its primary purpose. The court held that the trial court erred by rendering its custody and placement decision without consideration of the PA. Accordingly, the trial court’s order was reversed and the case was remanded for a hearing on custody and placement.