I Want To Put A Baby In You: Beware Of The Bad Judge
"We felt like we were in the middle of some freakish, never-ending nightmare."
Last week, I was excited to write on a happy surrogacy story where things went only a little wrong and history was made. This week, I am back to writing about things going a lot wrong. But it wasn’t in Thailand or Mexico. This time it happened in Wisconsin.
It Should Have Been Easy. Intended parents Jay Timmons and Rick Olson were a same-sex married couple who had been together for over 25 years. They had adopted two embryos and had had two successful surrogacy experiences. As a result, they had two daughters when the next chapter of their lives took an expensive and stressful turn.
The embryo donors asked Timmons and Olson if they would be willing to adopt their two remaining embryos. They agreed, and specifically chose Wisconsin for their next surrogacy experience. At the time, Wisconsin recognized same-sex marriage, while their home state of Virginia did not. Moreover, the Wisconsin Supreme Court had recently recognized the validity of surrogacy arrangements. In the case of Rosecky v. Schissel, the Wisconsin Supreme Court held that a surrogacy parenting agreement may be a valid, enforceable contract, except in cases where enforcement would be contrary to the best interests of the child.
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A Bad Draw On The Judge. Before the birth of their third child, one Wisconsin judge approved a pre-birth order of parentage that would be finalized after the child’s birth. And literally no one was contesting the petition for parental rights. Unsurprisingly, Timmons and Olson’s expected a simple process. But their case came before Judge James Troupis. During the course of the case, Judge Troupis referred to surrogacy as “human trafficking,” and even suggested that the couple had “purchased” the child at issue. He refused to confirm the prior parentage order, and instead appointed a guardian ad litem to the case.
Beware of the Guardian Ad Litem. No one disagrees that protecting children is a good thing. And naturally, a child’s best interests are always relevant to a parentage case. But an unnecessary and expensive process is not in anyone’s best interest. The appointed guardian ad litem in this case, Mark Knutson, billed over $100,000, for Timmons and Olson to pay. (Remember, this was an uncontested case.) The guardian ad litem went further, though, by requiring depositions of Timmons, Olson, the surrogate, and even the directors of the surrogacy agency. Timmons and Olson’s legal bill defending depositions and fighting for their son Jacob exceeded $400,000 in total.
Additional Difficulties
While refusing to grant Timmons and Olson’s parental rights, the judge terminated parental rights for the surrogate. This would have been the right move if Timmons and Olson were the legal parents already, but instead it left the child an orphan as the case proceeded. At one point, the couple sought to discontinue their parentage claims in Wisconsin and seek to adopt their son in Virginia. They even got the guardian ad litem to agree. But the judge denied the request. In an op-ed, Timmons writes a powerful (and depressing) account of what they went through. “We felt like we were in the middle of some freakish, never-ending nightmare.”
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Ultimately, Judge Troupis resigned. Timmons and Olson then quickly had their case heard before a new judge, Judge Peter Anderson. Judge Anderson dismissed the guardian ad litem and reversed Troupis’s ruling, while noting that Troupis’s decision was “weird” and inconsistent with the Wisconsin Supreme Court’s Rosecky decision. Timmons and Olson were granted legal parental rights to their almost one-year-old son.
Like judges in many other states, Wisconsin judges work in the frontier of assisted reproductive technology law without clear statutory guidance. In some contexts, this has led to positive outcomes; for instance, Wisconsin judges routinely grant orders securing the legal relationship between intended parents and their surrogate-born children.
On the other hand, this case demonstrates that negative outcomes also occur. It takes only a single judge to turn a happy family-building journey into a nightmare. Notably, Timmons and Olson point out that they were the lucky ones. If their case had happened to another couple—one that wasn’t able to take a second and third mortgage on their home to pay their legal bills—their son would have remained an orphan. He would have faced the tragic and irrational consequence of being placed in the state foster system.
It is preferable that state laws clearly support family building, while protecting all parties involved in a surrogacy arrangement. But failing that, judges must at least refrain from the intentional legal harassment of same-sex families. That is hardly high-tech stuff.
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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at [email protected].
