David Rosecky (left) and Stephen Hayes (right) pose with six boxes of files from the
Rosecky v. Schissel surrogacy case—the first of its kind in Wisconsin.
David and Marcia Rosecky had been friends with
Monica and Cory Schissel for years—such great
friends that Monica had, on multiple occasions, of-
fered to carry a child for Marcia, who could not.
In 2009, the Roseckys agreed, and the embryo
was conceived via artificial insemination with
Monica’s egg and David’s sperm. The two couples
then entered into a parentage agreement. Stephen
Hayes, a family law attorney in Waukesha who
helped draft the agreement, says contracts are
typically done before a pregnancy is attempted.
This particular agreement gave the Roseckys both
physical placement and custody of the child after
the birth; it stated that Monica would cooperate
with the termination of her parental rights.
Right around the time the child was born, however, Monica told the Roseckys she had changed
her mind. Since Wisconsin didn’t have any laws on
whether or not a surrogacy contract is binding, David Rosecky filed a motion to enforce the parent-
Stephen Hayes tried the first traditional surrogacy case in Wisconsin,
then helped write the law on it BY ANDREW BRANDT
age agreement in Columbia County Circuit Court,
and Hayes argued on the couple’s behalf. A neutral
psychologist met with the parties, and based on
their evaluation, sided with the Roseckys.
In February 2011, the court awarded primary
placement to David, but also granted the Schissels six hours of placement every other weekend
until the child was 2—at which point the hours
would be increased.
“I was frustrated with the decision,” Hayes says.
“My clients didn’t want to continue with her having
that contact, because this wasn’t a divorce. It wasn’t
a situation where the child had a relationship with
one set of parents and that relationship was being
cut off. This was an agreed-upon plan whereby
So the Roseckys appealed. And because it was the
first traditional surrogacy case in Wisconsin, the ap-
peals court certified Rosecky v. Schissel for review by
the state Supreme Court, which the court accepted.
In January 2013, oral arguments were held. Hayes
had argued before the Supreme Court previously,
but this time, he says, the courtroom was “packed.”
An overflow crowd watched the arguments in the
capitol’s basement on a closed-circuit TV.
“We couldn’t find any [prior Wisconsin case]
that was directly on point with our case, so we
argued by analogy to a couple of cases outside
Wisconsin,” says Hayes.
Six months later, the court ruled that a traditional surrogacy contract can be legally enforced.
The case was remanded back to Columbia County,
then transferred to Dodge County. Before hearings
began, a neutral custody evaluator interviewed
both parties and recommended the Roseckys have
exclusive placement. The Roseckys and Schissels
then reached a stipulation giving the Roseckys sole
placement. The judge approved.
The decision—the first significant surrogacy de-
cision in Wisconsin history—creates an expectation
that a properly drawn surrogacy contract will be
enforced by the law. “Some cases can mean a little
more than others to you to win,” says Hayes. “I felt
real good about winning for these people.”
Though he believes the case would have been an
easier one if Monica weren’t the biological mother,
Hayes feels his clients were right from the start.
“They had a written agreement,” he says. “You
can’t just walk away from a promise.”
Stephen W. Hayes