A recent Wisconsin case makes it apparent that it’s time for a reform of the state’s sparse surrogacy laws. Many are concerned that the murky laws could potentially breed judicial activism.
In the case at issue, fathers Jay Timmons and Rick Olson, who reside in Virginia, were entangled in a battle to gain parental rights to their son, born to a Wisconsin surrogate.
Although the fathers had written agreements with their surrogate and their surrogacy agency, a Wisconsin court grappled with enforcing these agreements.
Well, at least Dane County Circuit Judge James Troupis did – in March, he denied the fathers a court order affirming their parental rights.
Trapped in a yearlong battle, the men were pummeled with legal fees, which reached $400,000. Above all, they were in legal limbo with their newborn son, Jacob.
Reports indicate that the fathers were offered two frozen embryos as a gift from a heterosexual couple they met a few years ago. The couple had undergone infertility treatments and wanted Timmons and Olson to raise any child that might be born from the embryos. The men happily accepted, and Jacob was born via a surrogate.
Surrogacy wasn’t new to Timmons, 54 and Olson, 49, who have been partners for 25 years and who wed in 2008. Through surrogacy, the men had their five and six-year-old daughters.
The men thought it would be a smooth process to add the newest child to their family, but instead it triggered havoc.
“We were frightened to death, first and foremost, if Jacob was taken away, how we would tell the girls, who fell hopelessly in love with their brother from the second they saw him,” Timmons shared in an interview. “We were afraid to fall in love with our own child.”
According to Daniel Brice, a reporter for the Milwaukee -Wisconsin Journal Sentinel, parental orders stemming from surrogacy arrangements are “rubberstamped” in Wisconsin, particularly when no one is contesting the order, such as in this instance.
However, Judge Troupis voiced some troubling claims, likening surrogacy to human trafficking.
Brice perused Troupis’ March 25 decision and wrote, “In his 21-page ruling, Troupis adopted often-polemical language to criticize surrogacy, even though it’s not illegal under state law. He referred to the surrogate mother as a ‘womb,’ labeled the frozen embryo a ‘child’ and said the two fathers were seeking ‘ownership’ of the child.”
Troupis also appointed a guardian ad litem to advocate for the best interests of the child. The fathers received a $100,000 bill for these services – a service normally priced at $1,500 in uncontested cases involving parental rights.
Brice indicated that while the report written by the guardian ad litem stated that the men should be Jacob’s fathers, it also indicated that changes in the traditional family structure were morally questionable.
“The report concluded that it was in the child’s best interest that Timmons and Olson become his legal parents — but urged Troupis to reject their surrogacy agreement on legal grounds,” Brice wrote in his article. He continued, “Troupis then issued a decision stripping the surrogate mother of her parental rights and denying Timmons and Olson parentage. That rendered the then-7-month-old boy an orphan.”
Since that time, Troupis has stepped down from the bench and another judge has taken his place.
Brice shared that the new judge called Troupis’ ruling , “…faulty for ignoring a recent state Supreme Court decision that he said found surrogacy arrangements are valid as long as they are in the best interests of the child.”
While Timmons and Olson are now the legal parents of their son, as one can imagine, they are still reeling from the legal chaos.
The fathers are bringing awareness to this case through the media in hopes of preventing future acts of judicial activism in states where the surrogacy laws are unclear or nonexistent.